' Brief facts of the case as narrated in the writ petition are that the petitioner was appointed as SSE (Math, Phy) in BPS-16 in Education Department vide appointment Letter No, 2127 dated 31.03.2012 in Government High School, Ban Shaheed, District Jhelum on contract basis for a period of five years.
On 21.09.2012, the petitioner was served a notice of explanation while leveling allegation of poor performance, misconduct and inefficiency against the petitioner. Thereafter, the petitioner's services were terminated vide order dated 07.10.2015 on the ground that the petitioner failed to produce good performance. The petitioner filed departmental appeal against said order which appeal was rejected vide order conveyed to the petitioner vide letter dated 09.01.2016 holding that it was not maintainable. Hence this writ petition has been instituted.
2. Learned counsel for the petitioner inter alia contends that the petitioner though was initially appointed on contract basis but his services stood regularized by the Government of the Punjab vide Notification No, SO (SE-III)2-16/2007(P-J) dated 07.08.2015 prior to issuance of order of termination of petitioner's services, therefore, the respondents were required to proceed against the petitioner, if there was any fault on his part, under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (PEEDA Act, 2006) and not otherwise. He further argues that even otherwise, the petitioner's services were terminated by levelling stigma of poor performance, therefore, an inquiry should have been conducted against the. Petitioner to reach a just and fair conclusion before passing the impugned order of termination which was not done, therefore, the.
Impugned order dated 7.10.2015 is not sustainable in the eye of law. Learned counsel prays that this writ petition be allowed, the impugned order dated, 7.10.2015 be set aside and the petitioner be re- instated into service.
3. On the other hand, learned Law Officer has vehemently opposed the averments of learned counsel for the petitioner and fully supported the impugned order while asserting that the petitioner was a contract employee, as such, his services could be terminated even without giving any show-cause notice.
4. Arguments heard. Record perused.
5. Perusal of record reveals that the petitioner was inducted into service in the year 2012. There was no complaint regarding efficiency of the petitioner till 21.09.2015 when the petitioner was called to explain as to why the result of 9th Class Examination 2015 in the subject of Math's (Science) remained 6% (below average). In the said explanation letter, allegations of poor performance, misconduct and inefficiency were levelled against the petitioner. The petitioner denied such allegations. This warranted holding of regular inquiry as well as recording of evidence so as to establish or otherwise the charges levelled against the petitioner. But the petitioner's services were terminated without holding any such inquiry by just affording him opportunity of hearing which cannot be considered a substitute of regular inquiry. Since allegations of poor performance, misconduct and inefficiency were levelled against the petitioner putting stigma upon him, the respondents were under legal obligation to conduct inquiry against the petitioner and record evidence whereafter they could terminate services of the petitioner if findings of inquiry committee/officer come against the petitioner and charges levelled against the petitioner were proved which has not been done. Dispensation of regular inquiry though is provided under the law but this discretion demands sufficient reasons which are also missing in. This case. Therefore, the impugned order, even if the petitioner is considered to be a contract employee, is not sustainable in the eye of law. Reliance is placed on the law laid down in case reported as Muhammad Riaz Vs. Medical Superintendent, Service Hospital, Lahore and 2 others (2016 PLC (CS) 296) wherein it has been held that: "... In this case specific allegations had been levelled against the petitioner which included inefficiency and misconduct. When the petitioner in response to Show Cause Notice, had specifically denied both the charges against him and furthermore, considering the nature of charges, all those allegations required evidence under each head, then it had become incumbent upon the authority to have ordered for a regular inquiry and in the above, given situation departure from normal course does not reflect bona fides on the part of the authority, rather shows mechanical application of mind on his part, consequently the petitioner appears to be justified in pleading that the authority was in fact biased towards him."
(Emphasis provided)
6. Furthermore, prior to issuance of said explanation letter as well as termination letter dated 07.10.2015, the Government of Punjab vide Notification No, SO (SE-III)2-16/2007(P-J) dated 07.08.2015 had ordered to regularize services of teachers including SSE teachers (BS-16) who were appointed on contract basis under the provisions of Recruitment Policy, 2011 dated 25.10.2011 amended on 05.06.2012. The petitioner was undeniably appointed under the said policy of 2011.
Therefore, the petitioner's services would have been regularized prior to issuance of the impugned notice/order if the respondent, department had actively proceeded in pursuance of said notification dated 07.08.2015. Had it been done, the services of the petitioner would have been regularized and he could only be proceeded under PEEDA Act, 2006. The petitioner cannot be penalized for lethargic attitude of the respondent department. As such, the respondent department should first regularize services of the petitioner and then, proceed against the petitioner, if there is any complaint against him, in accordance with law.
7. For what has been discussed above, this writ petition is allowed, impugned notice dated 21.09.2015 and impugned order dated 7.10.2015 are set aside and the petitioner is re-instated into service. The period of absence of the petitioner from duty will be treated as leave of the kind due.
The respondents are, however, at liberty to proceed against the petitioner after regularization of his services and serving notice upon him in accordance with law.