HAFIZ TARIQ NASIM, J. --- Facts leading to this writ petition are that the petitioner was appointed as Air Hostess in Flight Services Department of Pakistan International Airlines (P.I.A.) on contract basis for a period of one year with effect from 24.10.1995. However, through letter dated 31-:12.2004 the petitioner is informed that she will not be detailed on any flight duty with effect from 1.1.2005 as her contract is not extended.
2. Learned counsel for the petitioner submits that practically the petitioner's contract appointment was converted into regular appointment, her performance remained satisfactory during her entire service period, however, she is discriminated with no fault of her and that too on extraneous consideration. Learned counsel submits that the petitioner was amenable to the provisions of Removal from Service (Special Powers) Ordinance, 2000 and could not be ousted from service except by invoking the provisions of the Ordinance ibid, neither the petitioner was served with a show-cause notice nor she was allowed a chance of personal hearing before termination, so it is a sufficient ground for her reinstatement.
3. On the other hand, the learned counsel for the respondents submits that the petitioner was a contract employee, of course she remained on contract for a decade and her performance was also unblemished but it is the - prerogative of the employer either to extend the contract or to refuse extension. Further submits that the petitioner filed a petition before the Labour Court, could not succeed and filed a labour appeal, which is pending before the Punjab Labour Appellate Tribunal, so she cannot be allowed to assail the departmental action in the writ, when she has already availed the alternate remedy.
4. After hearing both the parties at length and perusal of record, it is established that the petitioner worked with P.I.A. For ten years approximately and if the law laid down by the Hon'ble Supreme Court reported as &ram Bari and 524 others v. National Bank of Pakistan (2005 SCMR 100) is adverted to, the petitioner shall be entitled for regularization even if there was some artificial gap in her ten years' performance of duties.
5. It shall be appropriate to reproduce the relevant portion of the judgment supra, which is as follows:--- "15. An Islamic Welfare State is under an obligation to establish a society which is free from exploitation wherein social and economic justice is guaranteed to its citizens. The temporary Godown staff and the daily wages employees were continued in service of the Bank on payment of meager emoluments fixed by the Bank. In most of the cases of these employees, there were artificial breaks in their service so as to circumvent the provisions the Labour Laws and the Rules of the Bank and to deny them the salaries and other service benefits of regular employees. In some cases, the Bank did not issue formal letters of appointment or terminatin to the employees so as to preclude them to have access to justice. There was no equilibrium of bargaining strength between the employer and the employees. The manner in which they had been dealt with by the Bank was a fraud on the Statute. A policy of pick and choose was adopted by the Bank in the matter of absorption/regularization of the employees. By Article 2-A of the Constitution, which has been made its substantive part, it is unequivocally enjoined that in the State of Pakistan principle of equality, social and economic justice as enunciated by Islam shall be fully observed which shall be guaranteed as fundamental right. The principle of policy contained in Article 38 of the Constitution also provide inter alia, that the State shall secure the well-being of the people by raising their standards of living and by ensuring equitable adjustment of rights between employers and employees and provide for all citizens, within the available resources of the country, facilities for work and adequate livelihood and reduce disparity in income and earnings of individuals. Similarly, Article 3 of the Constitution makes it obligatory upon the State to ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle, from each according to his ability to each according to his work. It is difficult to countenance the approach of the Bank that the temporary Godown staff and the daily wages employees should be continued to be governed on disgraceful terms and conditions of service for an indefinite period. In view of Section 24-A of the General Clauses Act, 1897, the National Bank was required to act reasonably, fairly and justly. An employee being jobless and in fear of being shown the door had no option but to accept and continue with the appointment on whatever conditions it was offered by the Bank. In the case of Pakistan v. Public-at-Large (PLD 1987. SC 304), it was contended before the Shariat Appellate Bench of this Court that the provisions of law impugned therein amounted to a contract between the Government and the civil servant and thus they involved his consent. It was observed that in fact it is not in the nature of a free consent between the agents. On the one hand, State power was projected in the form of a Statute and on the other the civil servant had no choice of a bargain on those provisions when joining the service. He could not get it changed. In Habibullah v. Government of the Punjab and 5 others PLD 1980 Lah. 37, it was held that the employer being placed in a position of authority and strength could always coerce employees to waive their legal protection and accept contractual terms at the pains of losing his job.
16. In Ghulam Abbas (supra), a number of Management Trainees were ordered to be absorbed It was held that the protection of Labour Laws was available before the Tribunal while dealing with the cases of workmen. In the case of Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101, it was held that even the contract employees could be re-instated in service in appropriate cases if such appointment had become permanent by efflux of time. A similar view was taken in Abdul Sattar and another v. Sui Northern Gas Pipelines Limited and others 2001 SCMR 1935."
6. Record reveals that the order dated 10.4.1995 clearly reflects that appointment of the petitioner wa "convertible into regular employment subject to satisfactory performance during the contract period" this contract was for one year and during the contract period her work and conduct remained upto the mark, meaning thereby that she became entitled for the regularization. Learned counsel for the , petitioner also submitted a list of employees wherein the petitioner's name is figured at serial No. 14 and she is stated to be converted into regular, showing the date of her appointment as 23.10.1995. This very document also supports the petitioner's contention that she was virtually regularized but was wrongly treated as a contract employee in the impugned order.
7. So far the objection of the learned counsel for the respondents regarding alternate remedy and its availing is concerned, suffice it to refer to the judgments in the cases of It. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty (PLD 1961 SC 119), Mst. Sattan and others v.
Group Captain Masroor Hussain, Officer Commanding P.A.F. Station Sargodha (PLD 1962 (W.P.)
Lahore 151) Muhammad Akram Butt v. Government of Pakistan and 3 others (PLD 1978 Karachi 132) and Farzand. Raza Naqvi and 5 others v. Muhammad Din through Legal Heirs and others (2004 SCMR 400), wherein it is held that even in case of availability of alternate remedy the writ etition is competent.
8. In the present case, it is not disputed that before passing the impugned order neither the petitioner was served with a show-cause notice nor she was allowed to explain her conduct in person and in such-like situation reliance can be placed on a judgment of the Hon'ble Supreme Court reported as PIA v. Nasir Jamal Malik (2001 PSC 1), wherein it is held that if some employee works for six months he cannot be terminated without issuing him a show-cause notice.
9. To another case reported as Muhammad Ahmad v. Sindh Government (1999 SCMR 255), the Hon'ble upreme Court held that if some delay is found in approaching the Court/Tribunal by a petitioner but if it is established that show-cause notice was not served before condemnation, then the petitioner shall be entitled for reinstatement.
10. The law is developed even to the extent that even in case of employees of Corporation having non-statutory rules, grant of personal hearing before condemnation is mandatory. Reliance in this respect in placed on Arshad Jamal v. N.-W.F.P. Forest Development Corporation and others (2004 SCMR 468).
11. Viewing the case from all angles, it is held that the petitioner's ouster from service is a nullity in the eye of law and she shall be deemed to be in service of the P.I.A.
Writ petition is allowed in the above terms.