SYED MANSOOR ALI SHAH, J. - Brief facts of the case are that the petitioner was appointed as an unskilled worker (Farrash) on daily wages at Rs. 120/- per working day at the Library of the respondent University for a period of three months on 13.8.2001. Subsequently the petitioner was allowed to continue work and his period of employment was extended from time to time and finally on 16.8.2004 the appointment was converted into monthly salary basis in BS-1 a period of six months w.e.f. 1.9.2004 on the following terms and conditions:- "1. The appointment is temporary and terminable on one month's quit service notice or pay in lieu thereof from either side as the case may be.
2. The appointee will obtain immediately a certificate from the University Chief Medical' Officer to the effect that he is physically fit and free from any contagious disease.
3. During the period of his appointment he will be governed by such University Service Rules, Regulations and Statutes as are applicable to such category of employees."
(emphasis supplied)
2. Thereafter the petitioner was terminated without-notice vide impugned order dated 24.2.2005 on account of unsatisfactory work with immediate effect.
3. Learned counsel for the petitioner contends that the terms and conditions of appointment provided for one month's notice or pay in lieu thereof. However, the impugned order has been issued without show-cause notice to the petitioner. He further refers to Rule 8 of the Calendar of the University of the Punjab, 2002 to submit that a reasonable notice is required before the services of the employees were terminated. He further refers to series of letters wherein the performance of the petitioner has been praised by the senior officers including note dated 26.3.2005 appearing on application dated 28.2.2005. The petitioner submits that inspite of the said recommendations by the senior officers, the impugned order showing that the work of the petitioner was unsatisfactory, is based on malice and smacks of mala fide. Reliance has been placed on Muhammad Asim and others v. Telecommunication and others (1997 PLC (C.S.) 1131) as well as Ikram Bari and 524 others v. National Bank of Pakistan through President and another (2005 SCMR 100) to support the above contentions.
4. Counsel for the respondent University submits that the petitioner is a temporary employee and has no vested right to the post. The tenure of the petitioner was to expire on while letter of termination was issued on 24.2.2005, therefore, no notice under the contract could have been issued to him as it would have extended his tenure beyond the contract period. He further submits that the matter pertains to terms and conditions of service of the petitioner, which are contractual in nature, hence, the writ jurisdiction cannot be invoked. He placed reliance on Ijaz Hussain Suleri v.
The Registrar and another (1999 SCMR 2381) and University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali (1992 SCMR 1093). He further submits that opportunity of hearing was not required in the present case as the petitioner was an ad hoc/daily wager/temporary employee. Reliance has been placed on Amjad Ali and others v. Board of Intermediate and Secondary Education and others (2001 SCMR 125) and Capt. Retd. Dr. Muhammad Iqbal v. Defence Housing Authority. Lahore (2004 PLC (C.S.) 276). By referring to an unreported judgment passed in I.C.A. No. 160/2009, it is submitted that the petitioner has not impleaded the University of the Punjab and, therefore, the instant petition is not maintainable. He also submits that the remedy of the petitioner lies before the Civil Court for damages and relied on Ijaz Hussain Suleri v. The Registrar. And another (1999 SCMR 2381) and Muhammad Afzal (through legal heirs) v. House Building Finance Corporation, Karachi (PLD 1976 Karachi 1121). In the end the counsel conceded that at best the petitioner is entitled to one month's salary.
5. Arguments heard.
6. The petitioner was appointed by the University for a period of three months and his term was to expire on 13.8.2007 and his terms and conditions stated that his appointment was terminable on one month's notice or salary in lieu of one month's notice.
7. Article 7 of the Constitution guarantees the petitioner an inalienable right to enjoy the protection of law and to be treated in accordance with law. "Law" in Articled includes the cardinal principle of natural justice. Article 4 is a loud and clear Constitutional guarantee and reminder that every citizen and every person for the time being in Pakistan must enjoy the protection of law and be treated in accordance with law. Hamood-ur-Rehman, J. In Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14) while discussing Article 2 of the 1962 Constitution (same as Article 4 of the 1973 Constitution) said: "Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the Superior Courts ... In this sense it is as comprehensive as the American "due process" clause in a new garb."
8. An integral, intrinsic and incidental part of "law" under Article 4 is the right to procedural due process, right to treated fairly at all times, right to procedural fairness and right to procedural propriety. Right to a fair procedure is therefore constitutionally guaranteed in our country and makes our Constitution stand of proudly in the Constitutions of the world. Article 4 of our Constitution is a robust and dynamic amalgam of the cardinal principle of natural justice, procedural fairness and procedural propriety of the English Jurisprudence and Procedural Due process of the American jurisprudence. Our Constitution has, boldly recognized this right to be an inalienable right of every citizen or of any other person for the time being in Pakistan. Reliance is placed upon re: Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), re: New Jubilee Insurance Company Ltd., Karachi v. National. Bank of Pakistan (PLD 1999 SC 1126), re: Aftab Shah ban Mirani v. President of Pakistan & others (1998 SCMR 1863) and re: Government of Pakistan v. Farheen Rashid (2009 PLC (CS) 966).
9. The respondents had an obligation to issue one month's notice or make payment of one month's salary in lieu of notice under the terms and conditions of service, if they desired the termination of services of the petitioners. Failure to issue notice, also violates the requirement of Section 24-A of the General Clauses Act, 1897 which provides that Government functionary must at fairly, justly and reasonably. Therefore, the element of fairness has to be there in all government actions, which is starkly missing in the present case. Case-law relied upon by- the counsel for respondent University holds that contractual employment and employment that is not regulated by statutory rules of service is not amenable to writ jurisdiction. There is np cavil with this proposition. The difference in the present case is that the requirement of notice as envisaged under the contract has not been complied with, therefore, Article 4 of the Constitution stands violated. The requirement of notice backed by Article 4 of the Constitution applies to all persons, even if the employment is contractual or governed by non-statutory rules, in either. Case termination cannot be ordered without due process of law.
10. The arguments of the learned counsel for the University that daily wagers do not require right of hearing seriously offends the concept of social justice provided in Objectives Resolutions, which is substantive part of the constitution. Admittedly, the petitioners belong to a less privileged segment of the society with limited social and economic choices in life. Petitioners have an unequal bargaining position compared to the University, It is for their protection that the Constitution provides the concept of social & economical justice. "The expression social and economic justice involves the concept of 'distributive justice' which connotes the removal of economic inequalities and rectifying the injustice resulting from dealings or transaction between unequals in society, social justice is the comprehensive form to remove social imbalance by harmonizing the rival claims or the interest of different groups and sections in the social structure or individuals by means of which alone it would be possible to be build a Welfare state." (The Shorter Constitution of India, 13th Edition by Durga Das Basu). Reliance is placed upon re: Ikram Bari and 524 others v.
National Bank of Pakistan through President and another (2005 SCMR 100), re: Capital Development Authority through Chairman and another vs. Mrs. Shaheen Faruq and another (2007 SCMR 1328) and re: M/s. Airport Support Services v. The Airport Managers, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268).
11. It does not befit institutions to violate the very terms and conditions which have been settled by the said institutions themselves while offering appointment. To brush aside due process of law tarnishes transparency and weakens governance.
12. Reliance by the counsel for the University on unreported judgment dated 14.7.2009 is misplaced, In that case the University was not made a party in the writ petition and was impleaded at the time, of I.C.A. The said judgment has no relevance to facts of this case. The objection besides being too technical cannot be raised at this stage. Learned counsel" for the University has appeared on behalf of respondents tendered his power-of-attorney and has been attending to this case regularly. The said objection would have carried force had the petitioner filed an application for deletion of the name Of the respondents at the very beginning of the case which was not done, It is at best a case of mis-description of the respondents, In any case the petitioners cannot be non- suited on this ground. This objection is therefore overruled.
13. In this case, the University has flouted its own letter of. Appointment without remorse, wherein it was mandatory to issue a notice before termination. However, the same was not issued. The impugned order is, therefore, set aside. Considering that the term of the petitioner has expired on 13.8.2007, he cannot be allowed to resume service, the petitioner is however entitled to one month's salary in lieu of notice as provided in the appointment letter, which will be paid to him immediately.