' SHER MUHAMMAD KHAN J.--- Through the instant writ petition, petitioner seeks to declare, by this Court, the orders of his termination from service passed by respondents Nos.3 and 4 on 27-10-2005 and 21-11-2005 respectively, approved by respondent No,2, as illegal, without lawful authority, arbitrary, discriminatory, void ab initio and of no legal effects. Consequent upon the above sought declaration reinstatement on his service from the date of his appointment with all benefits has, also been prayed for.
2. Precise facts, relevant for deciding the instant writ petition are that petitioner was appointed as Line Superintendent Grade-I vide Order No, 25615-19/Admn/1147 on 25-6-2003 on contract basis and-after five days he was elevated to the post of Junior Engineer on contract basis vide order No,45074- 83/Admn/1147 dated 30-6-2003 by respondent No,4. The contract period was extended till 9-11-2005 vide Order No,998-1003/MA/DMA/ESTT:/1/1310 dated 8-1-2005. The above mentioned appointment and promotion were given to petitioner on the basis of meritorious services rendered by him to the department, which has been acknowledged through certificates awarded by different high officials, under whose supervision he worked.
3. On 27-9-2005, petitioner was charged in criminal case F.I.R. No,131 registered at Police Station, Penyala District D.I. Khan under sections 10(3)/11/16 Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 read with section 337-J, P.P.C.
4. Respondent No,3 vide Order No,7368-26/ENQ/5 012 dated 27-10-2005, regretted to further extend the contract period with effect from 10-11-2005 on account of his conduct i.e, due to his involvement in moral corruption and he was relieved from his service with effect from 9-11-2005.
Petitioner's appeal for extension of the contract agreement was disallowed by respondent No,4 vide order No,7643/ENQ/5012 dated 21-11-2005.
6. It is pertinent to mention here that the complainant and alleged eye-witness in the criminal case mentioned above recorded their statements before the trial Court on 31-1-2006 and the prosecution abandoned other four PWs namely Mst. Robina, Mst. Zareena, Inayatullah and Rab Nawaz being unnecessary and thereafter counsel of the petitioner submitted an application under section 265-K, Cr.P.C. In the trial Court for acquitting accused of the charges levelled against him in the F.I.R., without further proceedings. The learned trial Court after giving notice to State counsel and complainant, decided the application on 21-2-2006, after hearing their arguments and held that in the circumstances, further proceedings in the case would amount to futile exercise and petitioner was acquitted.
7. That in between the period of his removal of service and acquittal from the charges, the respondents circulated policy of regularization of services of the contract employees and all other employees on contract basis were regularized vide order dated 13-5-2006.
8. The petitioner challenged the impugned orders passed by respondents Nos.3 and 4, before Federal Services Tribunal, Islamabad through Appeal No,199 (P) C.E/2005, which was admitted for regular hearing but later on due to judgment of the apex Court dated 27-6-2006 in Civil Appeals Nos.792 to 816 of 2005 etc, the appeal of petitioner was considered to be abated vide letter dated 26-7-2006 issued by the Registrar, Federal Services Tribunal, Islamabad.
9. Finding no other forum, petitioner approached this Court through Writ Petition No,176 of 2006, which was disposed off in terms that the order/letter dated 26-7-2006, issued by the Registrar of the Federal Services Tribunal, Islamabad was set at naught and appeal of petitioner before the Federal Services Tribunal was revived and the memo. Of appeal along with copy of the order was sent to the Registrar Federal Services Tribunal Islamabad for decision afresh on merits strictly in accordance with law.
10. Petitioner again appeared before the Federal Services Tribunal, Islamabad but ultimately vide order dated 23-4-2010 the appeal of petitioner was dismissed on the ground that the petitioner was contractual employee and not a civil servant. It was also observed by honourable Tribunal that PESCO is not governed by statutory rules, therefore, no remedy could be granted to petitioner by the honourable Tribunal, hence, having no other remedy petitioner has again approached this Court for the above mentioned remedy as prayed in the title of this writ petition.
11. Learned counsel of the petitioner argued that while penalizing petitioner, respondents have not followed the golden principles of audi alterm partrm and have condemned the petitioner unheard.
Moreover, the impugned orders are, sketchy, non-speaking and passed without providing opportunity of hearing. It was further argued that simpliciter termination order or non-extension of contract would not have aggrieved the petitioner but basing the impugned orders on moral corruption has attached stigma to the career of petitioner, therefore, for that reasons the orders are liable to be declared void ab initio. He submitted that competency, skill, efficiency and punctuality in performing duty of the petitioner has not been questioned by any one during his service, therefore, he should also have been treated like his other colleagues regularised by respondents. At the last leg of his arguments learned counsel of the petitioner argued that the criminal case, registered against the petitioner was the result of conspiracy hatched by his adversaries which culminated into his honourable acquittal and by this way the reason, mentioned in the impugned order has been vanished and there is no justification to keep petitioner out of service on that ground.
11. On the other hand, learned counsel appearing on behalf of respondents argued that the petition is not maintainable because petitioner was not permanent employee of the respondents and according to terms and conditions of his initial appointment the services of the petitioner could be terminated at any time by issuing one month prior notice but his services has not been terminated rather on expiry of contract period further extension was not given to him, which is prerogative of the department. However, he frankly conceded that the contract period was not extended due to registration of criminal case against him, as according to him it could create embarrassment for the WAPDA Authorities in dealing with public.
12. After hearing of the arguments of the learned counsel of the parties we would like to seek guidance from the precedents laid down by the apex Court that whether an employee who is temporary or on contract basis could be removed from service without giving opportunity of hearing. In this respect we are guided by the apex Court in the case of Muhammad Amjid v. The Chief Engineer, WAPDA and others 1998 PSC 337 and The Secretary, Government of the Punjab v.
Riazul Haq 1997 SCM R 1552. In both the cases it has been ruled that even if a person, who is temporary employee or employed on contract basis, to be condemned for misconduct, in that event he is entitled to a fair opportunity to clear his position, which means that there should be regular inquiry in terms of efficiency and discipline rules before condemning him of the alleged misconduct.
13. The appointment orders of the petitioner also contains the condition that he will be governed by efficiency and discipline rules as amended from time to time by the authority. In ordinary course the appointment on contract could be terminated on pre months notice or payment of one months pay in lieu thereof by either side without assigning any reason. However, this condition was not attached to the termination on the grounds if petitioner was found guilty of dishonesty, misconduct, negligence, discipline or breach of trust. Conditions Nos.9 and 11 of the appointment orders may be perused for ready reference. The word "found guilty" is very significant in Condition No,11 of the orders ibid. A person can be found guilty after proper inquiry, on the basis of solid evidence and providing opportunity of hearing to the subject. Without following the proper procedure, the allegations how strong it may be, cannot be considered sufficient for finding a person guilty of the charge. Therefore, in the instant case the charge of "moral corruption" should have been properly investigated, inquired and proved after providing opportunity of hearing to the petitioner.
14. Keeping in view the above mentioned conditions in the appointment orders and legal procedure established by the apex Court the petitioner was deprived of fair chance to clarify his position, in spite of the fact that the non-extension order of contract contained the reason of moral corruption.
15. The only ground prevailed upon the respondents, not to extend his contract period was his involvement in a criminal case registered against him. The result of the trial was not awaited and before that the impugned orders were passed and after acquittal by the competent Court, the respondents resisted the efforts of the petitioner for reinstatement on the ground that the acquittal of the petitioner is not on merit. We are of the view that every acquittal, whether on merits or on other grounds are "honourable" and should be accepted as such. We are backed in holding this view by the judgments of the apex Court delivered in the cases of Chairman Agricultural Development Bank of Pakistan v. Mumtaz Khan PLD 2010 Supreme Court 695 and Superintending Engineer v. Muhammad Yousaf 2007 SCM R 537 wherein it has been ruled consistently that acquittal of accused recorded under section 249-A or 265-K, Cr.P.C. Or on benefit of doubt are "honourable acquittal". The stigma attached to the career of petitioner with registration of criminal case has been removed by the competent Court with the order of acquittal but the same is still stuck to the future of petitioner with the impugned orders. In the case of Attaullah Sheikh v. WAPDA and others 2001 SCM R 269 the apex Court ruled that all acquittals are "honourable" and there can be no acquittal which can be termed as "dishonourable". It was also ruled that where the criminal charges were not established before a competent Court of law and the civil servant was acquitted on those specific charges, the departmental proceedings exactly on the same charges, would be wholly irrelevant and unjustified and he would be entitled to all pay and allowances admissible to him.
16. It is also not denied that similarly appointed employees on contract basis were regularised vide Order No,109858-81 dated 13th of May 2006 but petitioner was under termination due to registration of criminal case, in which he obtained acquittal order on 21-2-2006, before the regularisation of other employees, therefore, petitioner should not have been deprived of regularisation of his service on the grounds which did not exist at the time of regularisation and he should not have been discriminated. Petitioner was also entitled to be treated equally without discrimination by the department as it is command of the Constitution of Pakistan in Article 25 that all citizens are equal before law and are entitled to equal protection of law. The apex Court also all the time stressed for equal, treatment between persons similarly placed.
17. As observed above, the petitioner was deprived of his service without following the mandatory provision of law, in spite of the fact that allegation of moral corruption was levelled against him, without following the mandatory provisions of efficiency and discipline rules of the authority, therefore, the impugned orders are void ab initio and of no legal effects. So far as involvement of petitioner in criminal case is concerned he has succeeded in getting order of acquittal from the competent Court of law, therefore, the ground prevailed upon the respondents for non-extension of his contract and then not regularising his service like others, has also evaporated in the year and does not exist, therefore, we allow the above mentioned writ petition and order reinstatement of petitioner on service from the date of his termination and his service is also ordered to be regularized like other employees.