SHAHID WAHEED, J . --- The appellant, Muhammad Saghaeer, through this Intra Court Appeal under Section 3 of the Law Reforms Ordinance, 1972, has called in question Order dated 23.2.2012 passed by the learned Single Judge-in-Chamber whereby the appellant's W.P. No. 17310-2011 against termination order dated 17.5.2011, has been disposed of.
2. Briefly, the facts of the case are that on 17.10.2005 the appellant was appointed as Junior Instructor (Computer) by the Punjab Technical Education and Vocational Training Authority (TEVTA) on contract basis. After joining service the appellant improved his qualification by obtaining Master degree in Information Technology from the Virtual University and to avail the benefit of Notification dated 6.5.2008 applied to the respondents for his up-gradation as Instructor.
The appellant's application for up-gradation was recommended by all the concerned officers and the case was forwarded to the General Manager, Finance/respondent No. 2 for further necessary action under the Rules/Policy. Getting no response and after lapse of considerable time, the appellant directly talked with the General Manager and requested for the up-gradation. The General Manager took ill of it and through District Manager/respondent No. 4 called explanation of the appellant as to why the appellant did not adopt the procedure/proper channel and talked with the higher authority directly. The appellant submitted explanation. Finally, on 17.5.2011, the.
Chairman TEVTA respondent No. 1 terminated the services of the petitioner, with immediate effect.
Feeling aggrieved, the petitioner moved this Court through WP No. 17310/2011. In response to notice, the respondent appeared before the Court and raised an objection regarding the maintainability of the petition as the Service Regulations of TEVTA did not have statutory force. In view :of the objection raised by the learned counsel for the respondents, the learned Single Judge in Chamber held that the petition was not maintainable but allowed the appellant to pursue other legal remedies for relief in respect of the action complained, against and disposed of the petition. Hence, this appeal.
3. Learned counsel for the appellant in support of this appeal submits that the termination order Of the appellant is violative of the principle of . natural justice as no opportunity of hearing was granted to the appellants; that-the appointment letter of the appellant was issued by the General Manager/respondent No. 2 whereas the termination letter has been issued by the ,Chairperson/respondent No. 1 and, therefore, the impugned termination letter was without lawful authority and jurisdiction; that impugned termination letter is violative of Article 4 and Article 10-A of the Constitution of Islamic Republic of Pakistan,- 1973; that the impugned letter is against the provisions contained in Section 24-A of the General Clauses Act, 1897 which envisages a fair right of hearing.
4. Conversely, learned Assistant Advocate General submits that the Technical Education and Training Authority has been constituted as a body corporate under the provisions of the Punjab Technical Education and Vocational Training Authority Act, 2010 and the Regulations framed thereunder are non-statutory in character and, therefore, the order passed by he learned Single Judge in Chamber is valid in all respects; that the services of the appellant have been terminated in accordance with Clause (d) of his appointment letter dated 17.10.2005; and, that the services of the appellant have been terminated, without any stigma.
5. We have heard the learned counsel for the appellant as well as the learned Assistant Advocate General and perused the record.
6. The appellant was appointed as Junior Instructor (Computer) on contract basis vide order dated 17.10.2005 which was issued by the General Manager/respondent No. 2. Subsequently, after having improved his qualification, the appellant moved an application dated 27.11.2010 so as to avail the benefit granted by the Notification dated 6.5.2008 regarding up-gradation of the post of Junior Instructor. This application was routed through proper channel and recommended by the concerned officers after making due recommendations forwarded it to respondent No. 2. Therefore, the appellant -sent reminders for the disposal of the application. The appellant did not get any reply from the office of respondent No. 2 and, therefore, he opted to talk directly with the General Manager/respondent No. 2 on telephone and apprised him about his application. This gesture offended respondent No. 2 and gave a fillip to him to call for the explanation of the appellant and directed him to explain the reasons as to why he did not adopt the procedure/proper channel and talked with a higher officer directly. The appellant submitted reply but it could not evoke favourable response and resultantly respondent No. 1 (Chairman, TEVTA) without affording opportunity of hearing terminated the services of the appellant vide order dated 17.5.2011. The preliminary objection raised by the learned Assistant Advocate. General, Piinjab regarding the maintainability of the petition on the plea that the Regulations framed by the TEVTA are non-statutory in character, in the given facts and circumstances of the case, has no force. The fact that there are no statutory rules and relationship between the petitioner and the TEVTA is of that master and servant will not negate the application of the maxim audi alterm partem. The Hon'ble Supreme Court of Pakistan- in the case of ANEESA REHMAN v. PIAC and another (1994 SCMR 2232) has held that the violation of the principle of natural justice can be equated with the violation of a provision of law warranting pressing into service Constitutional jurisdiction under Article 199 of the Constitution. Somewhat similar proposition of law came up for hearing before the Hon'ble Supreme Court of Pakistan in the case of MUHAMMAD SHOAIB ROOMI v. THE SECRETARY/ADDL. SECRETARY EDUCATION (2005 SCMR 605) and it was held as follows:- "The allegations levelled against the appellant had been vehemently controverted by him through a detailed explanation which he had submitted. The said accusations emanated from the complicated, disputed and controversial facts. The appellant had been denied opportunity to face the evidence available against him and to adduce evidence in disproof of the charges levelled against him Irrespective of the fact whether the rules in question bad or had not the status of statutory rules, it is an admitted fact that it Wasthe Board itself which had elected to deal its employees through the process and the procedure envisaged by the said Rules of 1975. Therefore, the respondent-Board could not be permitted to go back, on the commitment thus, made by it to its employees to treat them, in the disciplinary matters, in the manner prescribed by the said rules."
7. The appellant, as stated above, was appointed as Junior Instructor on contract basis vide order dated 17.10.2005. The cumulative reading of explanation letter dated 16.5.2011 and impugned termination order dated 17.5.2011 shows that the appellant was condemned for misconduct. It is not a case of simpliciter termination. The Hon'ble Supreme Court of Pakistan in the case of the SECRETARY GOVERNMENT OF THE PUNJAB through Secretary Health Department, Lahore and others v. R1AZ-UL-HAQ (1997 SCMR 1552) has held that if a person is employed on contract basis and terms of employment provide the manner of termination of his service the same can be terminated in terms thereof. Where, however, a person is to be condemned for misconduct, in that event, even he is a temporary employee or a person employed on contract basis or probationer, he is entitled to a fair opportunity to clear his position which means that there should be a regular inquiry before condemning him for the alleged misconduct.
In view of the principle laid down by the Hon'ble Supreme Court in the case of Riaz-ul-Haq (supra) the impugned termination order is not sustainable as neither any regular inquiry was held nor opportunity of hearing was granted.
8. There is yet another angle to address the instant issue. The services of appellant were terminated purportedly under Clause (d) of the appointment order dated 17.10.2005. The termination order dated 17.05.2011 shows that the same has been issued without assigning any reason. The Division Bench of this Court in the case of SAMINA KANWAL v.
DIRECTOR PUNJAB FORESTRY RESEARCH INSTITUTE, FAISALABAD (PLD 2011 Lah. 563) has disapproved the termination without assigning any reason in following words:- "The matter does not end here. Termination clause in the contract as well as sub-clause (i) of the Policy mentions that termination can take place without assigning any reason (for clarity and brevity referred to as the "NO REASON CLAUSE"). This part of sub-clause (i) does not stand the test of due process (Article 4), fundamental rights (Articles 9, 14, 25), rule of law, reason, logic, ethics and good governance. While the modern world moves towards accountability and transparency, the "No Reason Clause" reminds us of unfettered, un mufflered and unchecked discretion. Such a clause has no place in a Constitutional democracy, which rests on the supremacy of the rule of law. "No Reason Clause" can be a recipe for corruption, mismanagement, nepotism and jobbery.
Foundations of good governance are based on reasons, accessibility, accountability, transparency, participation, consensus, inclusiveness, efficiency, ethics and responsiveness. The said clauses therefore ex facie lack the requirement of fairness and procedural due process thereby offending Article 4 of the Constitution. The said clause is also facially discriminatory besides being liable to be used in a discriminating manner thereby violating Article 25 of the Constitution. Reliance is placed on Dr. Mobashir Hassan v. Federation of Pakistan and others (PLD 2010 SC 1) and Government of Baluchistan v. Azizullah Memon (PLD 1993 SC 341).
The said clause is also opposed to public policy and violates Section 23 of the Contract Act, 1872 as well as Section 24-A of the General Clauses Act, 1897. Clause XVII (i) of the Policy to the extent of WITHOUT ASSIGNING ANY REASON is opposed to public policy, logic and good governance. The said portion of the sub-clause (i) is therefore struck down as unconstitutional and offensive to human dignity and reason. Reliance is placed on "Faisal Sultan v. E.D.O. (Education) and others (2011 PLC
(CS) 419)."
Hence, non-assigning of any reason in the termination order is a fatal defect which cannot be condoned on any principle of law.
9. Before parting we area constrained to observe that according to Article ,9 of the Constitution of Islamic Republic of Pakistan, 1973 no person shall be deprived of his "life" save in accordance with law. The term "life" used in Article 9 is of very wide import and includes all those rights which are necessary for living a quality life befitting human dignity. The Honourable Supreme Court of Pakistan in. Suo Motu Case No. 13 of 2009. (PLD 201 1 SC 619) has held that right to life includes right to livelihood. This fundamental right cannot be treated lightly. Termination of employment without affording opportunity of hearing to the employee or adopting due process of law is a clear violation of Article 9 as it amounts to depriving the person of his livelihood. Violation of this right is a Constitutional tort and aggrieved person as a matter of right can move a petition before this Court under Article 199(2) of the Constitution of Islamic Republic of Pakistan, 1973 for the redressal of his grievance and for the enforcement of fundamental right.
10. In view of what has been discussed above, this appeal is allowed and order dated 23.2.2012 passed by the learned Single Judge in Chamber in W.P. No. 17310/2011 and termination order dated 17.5.2011 are set aside, however, the respondents, if they deem appropriate, shall be at liberty to proceed against the appellant afresh but in accordance with law. .