Justice (R) Sheikh Ahmad Farooq, Chairman.--Through the instant appeal the appellant has challenged the order dated 16:7.2009 whereby his departmental appeal against the order of the termination of his services dated 25.9.2000, has been rejected. The appellant has prayed for his reinstatement in service along with back benefits. The appellant has also prayed for setting aside the directions of the respondents whereby he has been debarred from rendering Consulate services in the Missions of Pakistan abroad.
2. Succinctly, the facts essential for the adjudication of the instant appeal, are that the appellant was appointed as Stenotypist, with effect from 12.08.1991 by the Embassy of Pakistan, Paris. The appellant completed the period of probation to the satisfaction of his officers and thereafter had been performing duties in various sections. However, in 1998-99 some complaints emerged vis-a- vis Consulate's fee, in pursuance thereof, investigations were carried and Ex-Assistant Consular Mrs. Tasneem Zubair, posted in the Mission was held responsible. Consequently, a fact finding enquiry was conducted by another officer who also involved the appellant along with other delinquent officials on surmises and conjectures. It appears from the record, that on the basis of said investigation, the services of the appellant were terminated with fourteen days notice vide letter No. Admn.3/3/91 dated 25.09,2000. The appellant filed a departmental appeal on 26.09.2000 to the Ambassador, Embassy of Pakistan, Paris which remained unresponded. The appellant then, through his Advocate, sent a legal notice, dated 30.04.2008, to the Secretary, Ministry of Foreign Affairs, Islamabad, which also remained unresopnded. Thereafter, another legal notice was sent on 02.07.2008, to Director General (P) Ministry of Foreign Affairs, Islamabad which too met the same fate. Subsequently, the appellant approached the Hon'ble Islamabad High Court, Islamabad through Writ Petition No. 1477 of 2008, which was disposed of with the direction to the respondent:department to decide the departmental appeal within 15 days, if not earlier decided.
Vide letter dated 16.07.2009, the Charged Affairs, Embassy of Pakistan Paris being competent authority, rejected the departmental appeal, whereafter, the appellant filed this appeal before this Tribunal on 13.08.2009, through his father/attorney.
3. This Tribunal, after hearing the parties, earlier dismissed this appeal vide order dated 30.06.2010, being not maintainable as the appellant did not approach the Tribunal within time when his departmental appeal remained unanswered for 90-days. The appellant challenged the said order of this Tribunal dated 30.06.2010 before the Honble Supreme Court of Pakistan, through Civil Petition No. 961 of 2010 which was accepted and the instant appeal was remanded to this Tribunal for a decision afresh vide order dated 10.7.2013.
4. Learned counsel for the appellant vehemently argued that the proceedings against the appellant were taken in a slipshod manner, as before imposing penalty of termination, neither a charge sheet or how-cause notice was issued nor a regular inquiry was held. He - submitted that the appellant has been condemned unheard, as no opportunity of personal hearing was afforded to him. He contended that before imposition of penalty, even explanation of the appellant was not called. He further submitted that the appellant has been punished for the offence regarding which the Inquiry Officer himself was not sure and in this regard, he referred to the remarks made by the Ambassador in his letters, dated 23.09.2000 and 17.10.2000. Learned counsel submitted that Deputy Chief Accounts Officer, in his report dated 16.06.1999, held Mrs. Tanseem Zubair, former Consular Assistant, responsible for the misappropriation of Consular Fee. He stated that in another inquiry, the appellant along with four others were held directly involved in the embezzlement, but the appellant has been singled out, as such, he has been discriminated. He argued that the word 'termination', is not provided in the penalties, prescribed by law. He claimed that the order of termination, being illegal is required to be quashed and set aside and the appellant deserves to be reinstated in service with all back benefits.
5. Conversely, the respondents opposed the instant appeal by way of filing their parawise comments wherein they claimed that the appellant was a local based employee in the Mission, appointed on contract basis. Learned Standing counsel for the respondents, at the outset, raised the objection that the appeal is not maintainable as the appellant was not a civil servant within the meaning of Section 2(1)(b) of the Civil Servants Act, 1973. He submitted that according to the appellant's appointment letter, he was appointed on contract basis in France, though he worked for more than nine years but remained on contract and also removed from service at France, as such, this Tribunal has no jurisdiction. He also objected that the appeal has been filed through attorney, which is against rule 6(f) of the Service Tribunals (Procedure) Rules, 1974, which provides that "every memo of appeal shall be signed or thumb impressed by the appellant". Learned counsel also raised the objection of limitation as the appeal has been filed belatedly.
6. In rebuttal, learned counsel for the appellant contended that the Hon'ble Supreme Court of Pakistan, in the remand order dated 10.07.2013, held the appeal having been filed within the time after rejection of his departmental appeal. As regards the other objection, that the appellant is not a civil servant, learned counsel submitted that the appellant was appointed after due process, i.e. Test and interview and he was placed on probation for three months, which was neither extended nor terminated and that he worked with the department for more than nine (9) years. He further submitted that, according to appointment letter, the appellant was entitled to gratuity as per rules of the Ministry of Foreign Affairs and that he will be considered for an increase after -completion of one year service as well as other conditions of service as framed by the Embassy from time to time, as such, he is/was a civil servant as he was holding a post in connection with the affairs of the Federation, which could neither be on contract nor contingent paid employee. In support of his contention, learned counsel placed reliance on the case law reported as PLD 2011 SC 22 and 2005 SCMR 100.
7. We have heard the learned counsel for the appellant as well as learned Standing Counsel, who appeared for the respondents, in addition to examining the record carefully.
8. Before dilating upon merits of the case, it would be appropriate to decide the preliminary objections raised by the respondents.
9. Firstly, we will take up the objection of limitation. As mentioned above, this Tribunal, vide order dated 30.06.2010, dismissed the appeal having been filed belatedly. The appellant agitated the matter before the Hon'ble Supreme Court of Pakistan and the instant appeal was remanded for decision afresh, after holding that the same was filed within 30 days of the rejection of the departmental appeal vide order dated 10.7.2013. Hence, this objection of the respondent- department is no longer valid as the same has been turned down by the Hon'ble Supreme Court of Pakistan vide order dated 10.7.2013.
10. The second objection raised by the respondents in their parawise comments and vehemently argued by the learned Standing counsel, who appeared on behalf of the respondents is that the appellant is not a civil servant within the meaning of Section 2(1)(b) of the Civil Servants Act, 1973 as he was appointed as local based employee in the Mission on contract basis. Learned counsel for the respondents argued that the Head of the Mission is fully empowered to dispense with the service of any local employee in accordance with the terms of service contract signed between the Mission and the local employee. He contended that the instant appeal is not maintainable, as the cause of action accrued in Paris (France)/outside Pakistan, which is beyond the jurisdiction of this Tribunal. In this context, the letter No. Admn.3/3/91 of Embassy of Pakistan, Paris, dated 'nil', whereby the present appellant was appointed as Stenotypist with effect from 12.8.1991 is of vital importance. A plain reading of the said letter makes it clear that conditions of service of the present appellant were to be governed by the rules and regulations framed by the Embassy from time to time. It is also revealed from the said letter that the present appellant was appointed on probation for a period of three months with effect from 12.8.1991, but neither his services were regularized nor terminated on the completion of the period of probation of three months. It is worth consideration that the present appellant worked for almost 9 years and as such, he cannot be considered by. Any stretch of imagination as a contract employee,, because the contract employees are always taken for a specific period or a short term and they are not initially appointed on probation and that too which is allowed to remain in field for 9 years. Hence, the appointment of the present appellant for all practical purposes shall be deemed to have become permanent with efflux of time. In this regard, we would like to refer to the judgment of the Hon'ble Supreme Court of Pakistan reported as 2005 SCMR 100.
11. Even otherwise, the conditions of service of the present appellant were governed by the rules and regulations framed by the Embassy from time to time. Meaning thereby that statutory rules were applicable vis-a-vis the services of the present appellant. Till the omission of Section 2A by the Service Tribunals (Amendment) Act, 2010 vide Notification dated 6.3.2010, all persons holding posts under any authority/organization established by or under a Federal law were deemed to be civil servants and could invoke the jurisdiction of this Tribunal for redressal of their grievances. The instant appeal was filed on 13.8.2009 and as such, this Tribunal has the jurisdiction to entertain and adjudicate upon the same as per dicta laid down by the Hon'ble Supreme Court of Pakistan in judgments reported as PLD 2007 SC 681 and 2013 SCMR 314. Furthermore, the present appellant was entitled to gratuity at the end of his service as per rules framed by the Ministry of Foreign Affairs, Government of Pakistan, according to Condition No. 8 of the appointment letter. The Embassy of Pakistan in France (Paris) is working under the administrative control of the Ministry of Foreign Affairs, Govt. Of Pakistan, Islamabad and as such any order passed by the said Embassy in France can be challenged before this Tribunal. It has been laid down in the judgment reported as PLD 1994 SC 60 that Ambassador of Pakistan including the one, who is on contract appointment is deemed to be holding the post in connection with the affairs of the Federation and is to be governed by the rules applicable to the general body of civil servants. In this backdrop, we are of the considered opinion that the present appellant falls within the definition of 'civil servant' under Section 2(1)(b) of, the Civil Servants Act, 1973.
12. The third objection raised by the learned Standing counsel for the respondents during his arguments is that the instant appeal has been filed through an attorney, whith is violative of Rule 6(f) of the Service Tribunals (Procedure) Rules, 1974. In this context, it is pertinent to mention that an Appeal No. 168(R)CS/2002 was filed by one Syed Muntazir Hussain Shah on 25.02.2002 through his attorney, which was dismissed by this Tribunal vide order dated 23.09.2004 on Ithe ground that his appeal was not maintainable under Rule 6(f) of the Rules ibid, on two-fold ground, firstly that the Memo of Appeal was not signed by the appellant himself and secondly, that it could not have been filed through an Attorney. The appellant/Syed Muntazir Hussain Shah assailed the said order before the Apex Court of Pakistan and vide judgment reported as 2006 SCMR 1705, it was decided as under: "4. In the instant case,' the appeal before the Tribunal was instituted on 25.02.2002 but the Registrar never returned the memorandum of appeal for making up the deficiency, which was taken up for the first time by the Tribunal almost two and a half years after the institution. The appellant was decidedly condemned unheard by making no resort to the provisions of Rule 10 (supra), thereby attracting the provisions of limitation to the detriment of the appellant
5. Consequently, the appeal is accepted, the impugned judgment dated 23.09.2004 is set aside and the case is remanded to the learned Federal Service Tribunal, Islamabad for hearing the appeal on merits."
Furthermore, the provisions of CPC are applicable in the proceedings before this Tribunal, according to Section 5(2) of Service Tribunals Act, 1973, which permits the filing of a suit or appeal by a person through his properly appointed attorney. Even otherwise, at this belated stage the instant appeal cannot be dismissed on this score alone that the same was not signed or thumb marked by the appellant himself. Hence, this particular objection carries no weight and the same is hereby overruled.
13. Adverting to the merits of the case, there is no denial of the fact that before passing the order of termination, due process of law has not been followed, in as much as, no explanation of the appellant was called, no charge sheet was issued, no show-cause notice was served and even chance of personal hearing has also not been granted to him, therefore, the order of termination could not stand the test of judicial scrutiny. A perusal of the record has revealed that only fact finding inquiries were conducted in this case, which legally cannot be considered as a substitute of a regular inquiry as provided under the rules. This Tribunal in its judgment reported as 2006 PLC (C.S.) 604 has held that no major punishment could, be imposed on the basis of fact finding inquiry. In this case, the fLts were controversial and the allegations were denied and as such, holding a regular inquiry was mandatory. The Hon'ble Supreme Court of Pakistan in a judgment reported as 2007 SCMR 1860 has laid down that prescribed procedure, which was mandatory in nature must be followed and it could not be flouted on the pretext that alleged charges against Government employees were serious in nature. Flagrant violation of the provisions of law and principles of natural justice were sufficient to vitiate the entire proceedings. It is also worth consideration that after the termination order of the present appellant, the then Ambassador of Pakistan in France, Mr. Shehryar M. Khan wrote a letter dated 17.10.2000 to the Secretary, Ministry of Foreign. Affairs, wherein he stated as under: "7....Mr. Ali Naseem, apart from being the whistle-blower (the inquiry contends that he did so when thieves fell out), he was also not in charge of the section (passport and legalization) in which the fraud has taken place. His guilt has also been presumed with no witness confirming his misdemeanor. Ali Naseem has been serving in this mission for 9 years and has shown himself a decent, obedient and conscientious official. Certainly his general conduct deserved that at least he be given a show-cause notice and a fair hearing before punitive action is taken."
' Finally, during the course of arguments, the learned counsel for the appellant has placed on record a letter issued by the Ministry of Foreign Affairs, Government of Pakistan, Islamabad dated 22.1.2014 wherein it is mentioned as under: "The services of Mr. Ali Naseem, local-based Stenotypist at Parep Paris, were terminated on suspicions of misappropriation of funds. Hence his name was blacklisted at the request of the.
Ministry of Foreign affair& Letter No. DP 2.3/A1R-1997-2000 dated 27th February, 2007 (copy enclosed).
2. However, subsequent scrutiny of the relevant records has established that Mr. All Naseem was not involved in any embezzlement of government funds.
3. It is therefore requested that his name may he removed from the ECL/BL."
14. In view of above, we have arrived at a inescapable conclusion that the services of the present appellant were not terminated in accordance withthe relevant law and rules.
15. For the forgoing reasons, the impugned orders dated 25.9.2000 and 13.8.2009 are not sustainable in the eyes of law-and the same are accordingly set aside. Resultantly, the instant appeal is accepted and the appellant is ordered to be reinstated in- service. However, the question of back benefits shall be decided by , the competent authority in accordance with the instructions contained at Serial No. 155 of Civil Establishment Code [Estacode, 2007 Edition], and the dicta of the judgment of the Hon'ble Supreme Court of Pakistan reported as 2010 SCMR 11.
16. Parties to bear their own costs and they also be informed accordingly.