Syed Muhammad Hamid, Member.--Appellant Abdul Ghafoor Malik, ex-Local Messenger, Welfare Wing, Consulate General of Pakistan Jeddha, Saudi Arabia, has filed this appeal, under Section 4 of the Service Tribunals Act, 1973, challenging the impugned order dated 23.11.2014, passed by the Head of Chancery, Consulate General of Pakistan Jeddha whereby his 25 years long and continuous service has been terminated. Against which his departmental appeal dated 27.11.2014 was rejected vide order dated 30.11.2014. Hence, this appeal.
2. Briefly stated, the facts of the case are that appellant was appointed as Local Messenger vide Office Order No. Estt. 1/1/90 dated 23.1.1990, on temporary basis w.e.f.
23.01.1990 in the Welfare Wing, Consulate General of Pakistan, Jeddha. Subsequently three , Office Orders No. Estt. 1/1/90 dated 27.01.2003, 16.05.2004 and No. Estt(J)1/86 dated 01.01.2014 were issued whereby his services were converted into contract basis but his appointment as Local Messenger was continued w.e.f.
23.01.1990 i.e. The date of his temporary initial appointment as a Local Messenger, in all the aforementioned three, Office Orders without a single day's break in service.
3. The Vice Consul, Welfare, Consulate General of Pakistan, Jeddha, vide Office Order No. CWA/Admn/2014 dated 11.02.2014, intimated three officials of the Welfare Wing, including the appellant, that the Consul General of Pakistan had desired to probe into the matter regarding mishandling the final exit case of a Pakistani National, Mr. Manzoor Abdullah and appellant was directed to submit the statement, in writing by 14.02.2014. The appellant submitted his reply on 11.02.2014. However, Respondent No. 3, passed "Office Order" on 23.11.2014, holding the appellant guilty of misconduct, inefficiency and causing suffering to Mr. Manzoor Abdullah and the services of the appellant were terminated by giving him one month's notice. He submitted representation to the Consult General which was rejected on 30.11.2014. Hence this appeal.
4. In the parawise comments, it has been contended on behalf of the respondents that the appellant was a contract employee, purely on temporary basis and in all the Office Orders dated 27.01.2003, 15.05.2004 and 01.01.2014, as referred to above, it was mentioned that the appellants employment was "purely Temporary" and could be terminated without any notice, in case of disobedience and on disciplinary grounds. It was also alleged that the services of the appellant had been terminated by the Head of the Mission after the charges of inefficiency, misconduct and causing suffering to a Pakistani applicant, Mr. Manzoor Abdullah, were established in the "Inquiry Report", submitted by the Inquiry Officer, it was further stated that according to the prevalent rules of the Ministry of Foreign Affairs of Pakistan, local based employees of the Missions are purely temporary employees, employed on contract basis and are not eligible for permanent employment. In support of their contention they have referred to Sl.No. 9.1 of the "Financial Management at Missions abroad, volume-11. Attention has also been drawn to Clause (b), chapter-1, titled "2. Definitions" of civil servant which specifies that civil servant does not include a person who is employed on contract or on work charged basis or who is paid from contingencies and in view of this it is evident that the appellant is not eligible to file an appeal before this Tribunal.
5. We have heard the learned Counsel of the appellant and the Respondents, at length and perused the record. The whole case, in fact, hinges around the determination of the status of the appellant in regard to his being a civil servant within the meaning of the Civil Servants Act, 1973 or a contract employee.
6. Learned Counsel for the appellant, while placing on record, copies of the Ministry of Overseas Pakistanis Budget 2009-2010 and the latest "New item Statement (N.I.S)" of the Welfare Wing, consulate General of Pakistan, Jeddha for the year 2015-2016, contends that the appellant was appointed, vide Office Order No. Estt:1/1/1990 dated 23.01.1990, as "Local Messenger", on temporary basis, w.e.f.
23.01.1990 in the Welfare Wing of the Consulate General of Pakistan, Jeddah, Saudi Arabia in Pay Scale Rs. 950-70-1650, against one of the two sanctioned posts of Local Messengers, as a local.
Based Pakistani employee and remained in continuous service as such for 25 years till his illegal/unlawful termination on 01.12.2014. His initial appointment was not on contract and in the Office Orders dated 27.01.2003, 16.05.2004 and 01.01.2014, as referred to above, whereby his continued employment was converted into a contract appointment, the fact of his continuation in service w.e.f.
23.01.1990, the date of his first appointment as a Local Messenger, has categorically been mentioned in all subsequent appointment letters, as the date of his appointment. According to the learned Counsel of the appellant these subsequent Office Orders may be relevant for the purposes of other allowances attached to the post but these cannot alter the initial terms and conditions of the appointment of the appellant and that, too, with retrospective effect from 23.01.1990 in respect of a sanctioned budgetary post of Local Messenger. In support of his contention the learned counsel relies on Estacode-Edition .2007 page 458 SI 2 and a judgment of the Service Tribunal passed in Appeal No. 566(R)CS/1994 dated 05-051995.
7. For proper examination of the case, it would be appropriate if extract from Establishment division O.M. No. 31/64-86-R-3 dated 20.04.1987, as mentioned in the Estacode-Ediction 2007-Page 458 SI 2, is reproduced below for facility of reference:-- "SI No. 2: Termination of Services of Temporary Government Servants: ' A civil servant is not necessarily in temporary employment merely because of a statement in the order of appointment that his appointment will be purely temporary and liable to termination at any time without any notice or reasons being assigned. No civil servant is a temporary employee as long as the employment is for an indefinite period or against a post which continues to exist for an indefinite period. It is extremely difficult to attribute to the legislature an intention to clothe the authorities concerned with, arbitrary powers of terminating the services of a civil servant in their discretion without assigning any reason. The Courts have always been reluctant to interpret these provisions in a manner as would justify the externment of an employee without any justification.
2. Further after the enactment of Civil Servant's Act, 1973, the services of a civil servant can either be terminated under Section 11 of the Act or under Government servants (E&D) Rules, 1973. It is not possible to spell out any power to a terminate the services of an employee without notice and without assigning any reason from the provision of sub-section (3) of Section 11 of the Civil Servants Act, 1973, especially in the presence of the provision of sub-section (1) thereof regarding termination of service during the initial or extended period of probation. If an employee has passed through the period of probation to the satisfaction of the competent authority, he is no longer a temporary employee Within the meanings of sub-section (3) if his employment is for an indefinite period or against a post which continues to exist for an indefinite period.
3. In the light of the above advice of the Justice Division services of an employee can no more be terminated without notice and without assigning reasons." [Extract from the Estt. Division O.M. No. 31/64-86-R-3 dated 20.4.1987]
8. Further, according to the learned counsel of the appellant, the Service Tribunal, in the above quoted judgment was pleased to hold that local based Pakistani employees, having been appointed on temporary basis are civil servants and amenable to the jurisdiction the Service Tribunal. The impugned order, according to the learned counsel of the appellant has been passed against the doctrine of the audi alteram partem and without any recourse to the due process of law. Hence it is arbitrary, illegal, unlawful and ab-initio void having no effect on the rights of the appellant as penalty of termination is not provided under the Government Servants (E&D) Rules, 1973, where a civil servant is appointed on regular basis. It was further contended that the Honble Supreme Court of Pakistan and other Courts have held that penalties imposed upon civil servants should be commensurate to guilt and based on the quantum of guilt whereas in case of the appellant the extreme penalty for termination has been imposed without even establishing the charge, without any evidence, without holding formal inquiry and without permitting him to cross- examine the witnesses. There is no cavil to the well settled proposition of law that where the charges, in a departmental inquiry, are denied by the accused or where nature of the charges is such that the issues could not be proved without recording of evidence/statements of witnesses, then holding of a regular inquiry, through an Inquiry Officer and recording of statements of witnesses is a mandatory requirement before imposition of any penalty on the accused. On this point of law, reliance has been placed on 2004-SCMR-316, 2004-PLCCL-524, 2002-SCMR-57, 2000-SCMR-1321 & 1868, 1994-PLC (CS)-1717 (FST) and 1993-SCMR-603. According to the learned Counsel of the appellant, in the instant case the nature of the charges levelled against the appellant required fulfledged inquiry which was not held resulting in denial of fair trial to the appellant and violation of article 10 A of the Constitution of the Islamic Republic of Pakistan because the appellant has been deprived of the opportunity to cross-examine the witnesses used against him. Even in the so-called "Inquiry Report" of the Inquiry Officer, the alleged charges were not established against the appellant, as alleged by the respondents. The appellant's previous unblemished service record is spread over 25 years in which he earned commendation not only from the superior officers of the Consulate General of Pakistan, Jeddha but also from the Saudi Ministry of Interior. It was not considered before holding him guilty in the serious charge of misconduct. The learned counsel of the appellant, therefore, prays that the impugned order of the Head of Chancery, Consulate General of Pakistan, Jeddha dated 02.11.2014 regarding termination of appellant's service may be set aside being ab-initio void and not sustainable in the eyes of law.
9. This is an un-deniable fact that the appellant was appointed as a Local Messenger on 23.01.1990, on temporary basis, in the Labour Wing of the Consulate General of Pakistan, Jeddah, against a sanctioned budgetary post and not on contract. He remained in continuous service for 25 years without a single day's break, despite conversion of his employment on contract basis, vide subsequent office orders dated 27.01.2003, 16.5.2004, 01.01.2014, as referred to above and in all these three Office Orders, continuation in service of the appellant and his date of initial appointment w.e.f.
23.01.1990 has categorically been mentioned. This fact has not been controverted by the learned counsel for the respondents. A question arises whether, continuous employment of the appellant in service, continuing for an un-interrupted and a long period of 25 years, can be converted into a contrast employment through any subsequent order/orders altering the initial terms and conditions of his service, to his total disadvantage, particularly when there is not a single day's break in the service. The answer is in the negative. Even the termination clause of the later employment contracts have been violated as he has been paid neither the salary of the period of one month nor is there anything on record that any prior notice was given to the appellant. Besides when a stigma of misconduct is attached to an employee, in such a situation the termination clause loses its efficacy because during proceedings, the principles of natural justice are to be invariably followed, religiously. Further the above quoted rules of the Ministry of Foreign Affairs (i.e. SI.No. 9.1 of "Financial Management at Missions Abroad, Vol-11) pertain to the employees who are initially appointed, purely on contract for a specified period. Hence we agree to the view point of the learned counsel of the appellant that the appellant is a civil servant, appointed against one of the two duly sanctioned budgetary posts of Welfare Wing of the Consulate General of Pakistan Jeddah, as already decided by this Tribunal in a similar case No. 566(R)CS/1994 dated 05.06.1995. The Service Tribunal has already held, in the said judgment, that local based Pakistani employees, appointed on temporary basis, in foreign Missions and continuing for an indefinite period are civil servants and amenable to the jurisdiction of Service Tribunal. Furthermore, the way the services of the appellant have been terminated, without due process of law and proper procedure is quite disgraceful and is not sustainable in the eyes of law.
10. Here we are unable to ignore the conduct of the Head of Chancery in this case. During the pendency of the appeal, this Tribunal, vide its orders dated 06.01.2015 had directed that no adverse order shall be passed against the appellant by the respondents but despite timely delivery and receipt of these orders in the Consulate General of Pakistan, Jeddah, the Head of Chancery, in utter disregard and violation of these orders referred the case of final exit of the appellant along with his family to the Saudi Ministry of Foreign Affairs. Even another direction of the Tribunal, dated 12.03.2015 to withdraw the letter of final exit of appellant and his family members from the Saudi Ministry of Foreign Affairs, pending finalization of the appeal by the Tribunal, was completely ignored. Due to conduct of Respondent No. 3 we were to impose heavy cost upon him under, CPC but taking a lenient view leave it to Respondent No. 1 to take appropriate action against the delinquent officer under the relevant law under intimation to this Tribunal and compliance thereof be submitted to the Registrar of this Tribunal positively within a period of two months so that nobody could dare to commit disobedience of lawful orders of a Court of Law. The MP is disposed of.
11. Upshot of the above discussion is that the appellant is a civil servant against a post of Local Messenger for the last 25 years and is amenable to the jurisdiction of the Tribunal. Hence, he cannot be shown the door without due process of law. In the instant case serious miscarriage of justice and unfair-play has been witnessed. We, accordingly, accept this appeal, set aside the impugned order No. Estt JO-1/1/1990, dated 23.11.2014 and impugned appellate order dated 30.11.2014 and reinstate the appellant in service with all consequential back benefits.
12. No order as to costs.
13. Parties be informed.