' MUSHIR ALAM, J.--- Petitioner has impugned the termination of service and inaction on the part of the respondent-Civil Aviation Authority (hereinafter abbreviated as CAA), for reinstating him in service.
2. Brief facts as may be relevant for the purpose of present controversy appear to be that the petitioner is qualified as I. Corn. And joined the respondent No,1 as Helper on 15-10-1990 on daily wages against a permanent vacancy, he has been deputed on various locations from time to time, to load, unload, shift, stack and pack store besides other table work as and when assigned. It is the case of the petitioner that petitioner was orally terminated on 10-9-2000 and the petitioner was assured that he will be reinstated once sanction is received from the headquarters. It is the case of the petitioner that he was discriminated as other employees similarly paced were not only retained and absorbed but on receipt of the sanction (page 59) from the headquarters other persons were recruited and inducted on 25-5-2005. According to the petitioner the sanction received also shows that there is still a shortfall of 14 employees against the head of Helper/Head Helper.
3. It is the case of learned counsel for petitioner that appellant has on his credit more than 10 years of uninterrupted service and has given his youth to serve the respondent No,1 to the best of his ability, impugned termination was sudden and without any show-cause notice. It is stated that petitioner was appointed against a permanent post of continuous and regular nature. On termination the appellant filed Departmental Appeal on 22-6-2001 (page 47), and after expiry of 90 days, preferred appeal (page 47), before the Federal Service Tribunal and has been pursuing the remedy all along but to his misfortune in view of judgment in Mubin-us-Salam's case PLD 2006 SC page 602, the proceedings abated vide order of the FST dated 28-7-2008, and therefore, the petitioner had no option but to approach this court. It was vehemently contended by learned counsel for petitioner that the fresh candidates were recruited on 25-5-2005. According to petitioner, CAA Service Regulations, do not provide for daily wager and the Regulations only defines "Casual Employee" under clause 3.05 as "an employee who has been employed in place of a permanent employee who is temporarily away from his duty for any reason". He urged that the petitioner is neither a Casual Employee nor employed against leave vacancy. He was working against a permanent post on regular basis continuously for a period of 10 years, which under the normal course would have earned him pension. According to him, the respondent, CAA not only exploit innocent persons like petitioner, hang sword of confirmation indefinitely get the work done against permanent vacancy, which act is not only fraud on the statutes and Civil Aviation Regulations but also against the fundamental rights of the petitioner to be treated in accordance with law. In support of his contention he has placed reliance on the case of Ikram Bari and 524 others v. National Bank of Pakistan 2005 SCMR 100; Muhammad Shoiab v. Government of N.-W.F.P.
2005 PLC (C.S.) 1056 and unreported case of Abdul Hameed Khan v. Maqbool Ahmed Khakwani Civil Appeal No,2 of 1996, in cited cases, apex court disapproved conduct of public functionaries exploiting weak and poor segment of society. Learned counsel therefore, prayed that the petitioner may be reinstated in service with back-benefits.
4. Learned counsel for respondent-CAA, urges that the respondent-Authority was established under Civil Aviation Authority Ordinance, 1982 and no writ could be issued against the Authority. It was vehemently urged that the petitioner being a daily wager, could seek his remedy before the Labour Court or from the Commissioner Payment of Wages. He has been rightly removed from the service and has no vested right to claim reinstatement. It was urged that vacancies are filled in after following due process and procedure against the advertisement of a permanent vacancy. It is stated that the petitioner at the best could be treated a casual worker and cannot claim himself to be appointed on permanent post.
5. We have heard the arguments and perused the record.
6. Adverting to foremost objection raised by the respondents as to maintainability of the writ petition, on the ground that the petitioner being workman could have invoked the jurisdiction of Labour Court under Industrial Relations Ordinance, 1969, (now succeeded by Industrial Relations Act, 2008). Short and simple answer is provided in section 23 of the Civil Aviation Authority Act, 1982, which provides that Industrial Relations Ordinance, 1969 does not apply to or in relation to the CAA or any person in the service of the CAA. Secondly section 1(4) I.R. Act, 2008 takes the Aviation Industry out of the purview of Industrial Relations Act, 2008. It is for these valid reasons the petitioner had filed Service Appeal before the Federal Service Tribunal, which has since abated in view of case of Muhammad Mubeenul Islam v. Federation of Pakistan reported in PLD 2006 SC 602.
Question, whether employees of State Controlled Corporation could invoke writ jurisdiction was answered by a Full Bench of this Court in the case of Muhammad Dawood v. Federation of Pakistan reported in 2007 PLC (C.S.) 1046 at page 1062 as follows:--- "(i) Irrespective of an employee of a State Controlled Corporation not being a civil servant the Corporation themselves to remain amenable to the jurisdiction of this Court under Article 199 of the Constitution owned.
(ii) The rule of master and servant is inapplicable to cases where there is violation of statutory provisions or of any other law.
(iii) The expression "violation of law" would not be confined merely to violation of any specific provision of a statute but the expression "law", as observed by Hamoodur Rehman, J., (as his Lordship then was) in ,Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 at page 31 and ought to be considered in its generic sense connoting all that is termed as law in this country including even the judicial principles laid down from time to time by the superior Courts. It means according to the accepted norms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may, instances, include the principles of natural justice, the public duty to act fairly and honestly and absence of mala fides in fact and law. In all such cases the Court would be competent to grant relief of reinstatement."
7. CAA is a statutory Authority, established under CAA Act of 1982, it has statutory Service Regulations, by virtue of section 23 (ibid), Industrial Relations Ordinance, 1969 (now I.R. Act of 2008) is inapplicable, we are therefore, of the considered opinion that instant petition is maintainable.
8. Now adverting to merits of the case, there is no denial that the petitioner was employed on 15- 10-1990 on daily wages against a permanent vacancy, it is also not disputed that he was disengaged on 10-9-2000. In para.3 of the counter-affidavit filed on behalf of CAA, it is admitted that petitioner was appointed or "hired at a time for a period not exceeding 89 days with intermittent gap, usually of one day", (underlined to emphasize). It is not denied that petitioner was first hired on 15-10-1990, he was continued to be rehired at a time for a period not exceeding 89 days with intermittent gap, usually of one day, this practice continued for few days short of 10 years, when 'on 10-9-2000, his services were admittedly terminated without any show-cause notice.
9. We have examined the CAA Service Regulations, 2000 as framed by the Civil Aviation Authority Board in exercise of power conferred under sections 12, 14 and 27 of the CAA Act, 1982, in its 87th Meeting dated 15 January, 2000. Regulation exhaustively deals with procedure for the appointment of officers, servants, experts and consultants and their terms and conditions of services.
10. Regulation 2.09 defines "Casual Employees" as a "person appointed not against a permanent/temporary post, for a job which is casual in nature". Regulation 2.20 defines "Employees" as "any person referred to in Regulation 3.24 employed by the Authority, but does not include a consultant or a casual employee". Regulation 2.46 defines "Operational Personnel" to mean "officers and staff declared as operational personnel in relations to CAA duties with the approval of Director-General". "Permanent Post" is defined under Regulation 2.52 to mean "a post sanctioned without limit", In terms of Regulation 2.50 "Regular appointment in relations to an employee meant that:-
(a) he was recommended/selected by a properly constituted DPC/DSC and was approved by the competent authority.
(b) The appointment/promotion was made in a vacancy reserved for promotion or direct appointment, as the case may be.
(c) He fulfills the required experience/qualifications and other conditions prescribed for the post and
(d) He has completed probationary period satisfactorily. Regulation '3.33 provides that a person could be employed on contract for a period of three years further extendable for another period of two years, such contract appointments are made to meet the exigency circumscribed by Regulation 3.29.
11. Civil Aviation Regulations, do not provide for daily wager employee, however, appointment of Casual Worker" under CAA Service Regulation 3.31, is provided, which reads as under:- ' When it is expedient to appoint a person on casual basis, not against a permanent or temporary post, to meet Jan 'immediate/operational requirement, the Appointing Authority may appoint such for a period not exceeding ninety days /at a time, provided that such appointment shall be regulated in a manner that the total emoluments offered shall not be more than what is allowed to a CAA employee of PG-3, provided further that any appointment made under these Regulations shall not create any vested interests in favour of any person for permanent appointment/promotion in the service of the Authority."
12. On reading above regulation, it is clear that a person could be appointed on casual basis to meet on immediate/operational requirement such appointments are not to be made against a permanent or temporary post. In instant case there is no denial that the petitioner was appointed on 15-10-1990 on daily wages 'against a permanent vacancy, it is also not disputed that he was dismissed verbally on 10-9-2000.
13. In paragraph 3, of the counter-affidavit filed by CAA, it is admitted that petitioner was appointed or "hired at a time for a period not exceeding 89 days with intermittent gap, usually of one day".
From the own showing of the respondent, it is manifest that break was created in the employment of petitioner to avoid his acquiring status of permanent employee. It may be observed that, service of a workman is regulated through Industrial Relation legislation, which is remedial in nature, on one hand it recognizes and protects workers and employees right to collective bargaining and job security against arbitrary termination and on the other regulate their conduct to go on strike and lock out. CAA Service Regulation likewise regulates the relationship between the CAA and its employees; CAA Service Regulation tends to discipline and regulate the discretion of the management while dealing with matter relating to their terms and conditions of service, employment security and check against arbitrary and whimsical exercise of authority in the matter of appointment, promotions, disciplinary proceedings and removal or termination from service.
Every person is obligated under Article 5 of the Constitution of Pakistan to abide by and follow the Constitution and law, such obligation is more onerous on public functionaries including statutory authorities and bodies as they are repository of public trust and confidence, they should not be swa yed by their whims and fancies or extraneous consideration. Laws are framed to advance good and suppress mischief. Where a public functionary or authority misuses or oversteps authority or misapplies law, it in fact commits breach of public trust and violate law, warranting correction in exercise of power of judicial review vested in this Court. It may not be out of place to mention that lack of good governance, unbridle exercise of authority, brazen violation law, whimsical exercise of discretion by the public functionaries/authorities are but few maladies that adds salt to public suffering and miseries driving sufferers to approach the courts of law for the redressal of their grievance, clogging the Courts of law with undesired and uncalled for litigation, which could be easily avoided if the public functionary/bodies discharge their duties honestly, fairly, diligently, in accordance with Constitution and law and by conscious and judicial application of mind.
14. In the instant case the respondent CAA has tried to take refuge behind Regulation 3.31 of CAA Service Regulation as reproduced earlier, which permits appointment of a person on casual basis, <u.for> It may be observed firstly that such appointment is not permissible against a permanent or temporary post and secondly such casual appointment is made to meet an immediate/operational requirement, admittedly the petitioner was appointed against a permanent vacancy, he was not serving the respondent to meet immediate/operational exigencies, nor appointed against leave vacancy. He served the CAA for few days short of 10 years.
Regulation 3.31 clothes the authority to meet the exigency, it cannot be allowed to be exploited, by the CAA, as a tool of oppression.</u.for>
15. Admittedly large numbers of similar placed persons were adjusted against permanent vacancy.
Termination of the petitioner under circumstances is clear case of discrimination; in brazen exercise of colourable authority, still petitioner was able to demonstrate that permanent vacancies were still available when he had approached the Court. It is manifestly clear that the CAA misused the Regulations 3.31 (ibid), artificial break is being used to deny the petitioner acquiring status of permanent employee, which action is nothing short of fraud on statute i.e, CAA Regulations, it cannot be approved of.
16. In the case of Ikram Bari and 524 others v. National Bank of Pakistan 2005 SCMR 100, the bank had employed godown staff and other employees on daily wages, who continued to serve the bank for several years with intermittent breaks, without being regularized. Several employees were terminated. Some of the appeals filed before the Services Tribunal for reinstatement, were accepted. However, some of the appellants were denied the relief on the ground of limitation. The apex Court reinstated all such employees and laid down a rule that all those employees having 3 years length of service to their credit with intermittent break of not more than 15 days would be reinstated. In the case of Muhammad Shoiab v. Government of N.-W.F.P. 2005 PLC (C.S.) 1056 employees were terminated, who were initially recruited for 6 months however; continued in service for several months altogether their termination was held to be illegal. In another unreported case of Abdul Hameed Khan v. Maqbool Ahmed Khakwani in Civil Appeal No,2 of 1996 the apex Court considered 9 years of service, against different project, sufficient to entitle for pensionary benefits. Learned counsel therefore, prayed that the petitioner may be reinstated in service with back-benefits.
17. Guided by the wisdom culled from case of Ikram Bari, Muhammad Shoiab (supra), termination of the petitioner 12-9-2000, being discriminatory and illegal is set aside. Respondent is directed to issue appointment letter to the petitioner, and previous service rendered by the petitioner from the date of initial appointment dated 15-10-1990 would be counted towards retirement and pensionary benefit, since the petitioner is victim of circumstances, he cannot be blamed of delay in getting the ultimate relief, as he was made shuttle from one forum to another for the reasons beyond his control, we would allow reinstatement of the petitioner with 50% of the back-benefit from the date of termination upto date of short order and regular salary and benefit from date thereafter.
' We had allowed this petition vide short order, dated 25-8-2009 and above are the reasons for the same.