This intra court appeal impugns order dated 14.9.2018 whereby Writ Petition No,13164/2018 filed by the appellant against his termination from service was dismissed.
2. Facts pertinent to disposal of this appeal are that the appellant was appointed on contract basis as ESE (Science-Math) through Memo. No,4447 dated 31.7.2017 on recommendation of District Recruitment Committee against open merit in BPS-9 for a period of five years at Government Girls Primary School 35/KB, Burewala. As fate would have it, he got implicated in FIR No,682/2015 dated 18.11.2015 under section 302/34, P.P.C. and was arrested on 11.10.2017. His absence from work resulted in his termination vide order No,8912/ESR dated 30.11.2017. An appeal was filed before present respondent No,3 which rema ined undecided, prompting the petitioner to file W.P. No,8540/2018, wherein a direction dated 01.6.2018 was issued for timely decision of pending appeal. By order dated 04.7.2018 the appeal was dismissed.
3. The petitioner filed W.P. No,13164/2018 wherein the termination of the petitioner was challenged. Learned Single Judge in Chambers vide Order dated 14.9.2018 dismissed the same which is now the subject-matter of this intra court appeal.
4. Learned counsel for the appellant has argued that the termination of the appellan t on ground that he was willfully absent w.e.f 11.10.2017 is totally unjustified; that he had been detained by the police for investigation consequent to his wrongful nomination in FIR No,682/15 wherein he was later found innocent; and that as such ground of wilful absence from duty was inoperative qua the rights of the appellant. Learned counsel for the respondents opposed the arguments of the learned counsel for the appellant and iterated that an enqui ry was conducted, the petitioner was provided opportunity of hearing which he did not avail, and as such his termination was warranted.
5. Arguments have been heard and available record duly perused. The petitione r was appointed under Memo.
No,4447 dated 31.7.2017 for an initial period of five years further extendable by five years on the basis of good performance. The said document at clause 8 recorded inter alia the following grounds upon which the employment could be terminated:- "f. The Contract will be terminated on the following GROUND& i. If the Educator is willfully absent from duty or does not achieve Student Teacher Ratio (STR) (40:1), 100% their retention financial embezzlement, misconduct and quality education to be judged on the basis of Examination / Assessment by the Department or any agency ."
(emphasis supplied)
6. It appears that due to the appellant's entanglement in police investigation and purported detention after lodgment of FIR No,682/2015 dated 18.11.2015 he was allegedly prevented from attending his duty at the school. His absence was noticed and when an explanation could not be found vide order No,8912/ESR dated 30.11.2017 the services of the appellant were terminate d with effect from the date of his reported absence on 11.10.2017 as follows: "Whereas I, Muhammad Maroof District Education Officer (EE-M) Vehari being competent authority invited proceedings against Mr. Muhammad Rashid ESE (Sci-Math) Government Primary School 35/KB Tehsil Burewala District Vehari under section 8- II of Contract Agreement, on the charge of wilful absence from duties w,e,f, 11.10.2017 to up till now, during the visit of AEO/MEA and reported by the Deputy District Education (EE-M) Tehsil Burewala vide Letter No, 1 132 dated 12.10,2017 and 1 162 dated 17.10.2017.
An opportunity of personal hearing was offered to the accused vide No,7937/ESR dated 31.10.2017 No, 8054/ESR dated 02.11.2017 and No, 8227/ESR dated 14.11.2017 but he failed to appear before the undersigned and failed to submit his written defense/statement. '
Whereas the undersigned has gone through the record of the case and given anxious consideration to meet ends of the justice. The personal record reveals that the said charge of wilful absence w,e,f, 11.10.2017 to up till now has been proved against Mr . Naeem Aslam ESE Government Primary School 162/EB Tehsil and District V ehari.
Now therefore in exercise of power conferred upon section 8-II of the letter of agreement I, Muhammad Maroof District Education Officer (EE-M) Vehari being a competent authority hereby terminate contract w,e,f, 11.10.2017 (the date of absence).
7. The reasons recorded for terminating the services of the appellant were his wilful absence from duties w,e,f, 11.10.2017 till the date of the order i,e, 30.11.2017. It is stated in the termination order supra that he was provided opportunities of hearing on 31.10.2017, 02.11.2017 and 14.11.2017 but he failed appear before the respondents on those dates.
8. At the time the appeal was heard by respondent No,3 pursuant to direction of this Court dated 01.6.2018 in W.P No,8540/2018 the appellant presented himself and submitted that he had not willfully absented himself but was in police custody . It has also been submitted that while in police custody a number of postal attempts were made to notify the respondents of his whereabouts. Despite indication of these factors the decision passed by the respondents still concluded that opportunity of hearing was duly provided which he did not avail and that he was guilty of wilful absence.
9. It appears that the respondents in characterizing the absence of the appellant from duty as "wilful" and ignoring his explanation of being in police custody , appear to have not considered the meaning of the word "wilful" as it occurs in ordinary use which Shorter Oxford English Dictionary (Oxford University Press - Edition 2007) defines as "asserting or disposed to assert ones own will contrary to persuasion, instructions or command; headstrong; obstinate; determined to have ones own way".
10. Notwithstanding the factual aspect of the explanation offered, the reasoning adopted by the respondents in arriving at the conclusion that his absence was wilful, is inherently defective, because a person who is physically prevented by reasons beyond his control from participating in a process, could not be saddled with penalty entailing willfulness that presupposes existence of "choice".
11. The August Supreme Court in "Messrs Airport Support Services v.The Airport Manager , Quaid-e-Azam International Airport, Karachi and others" (1998 SCMR 2268 ) has observed that:- "It has consistently been held that while routine contractual disputes between private parties and public functionaries are not open to scrutiny under the Constitutional jurisdiction, breaches of such contracts, which do not entail inquiry into or examination of minute or controversial questions of fact, if committed by Government, Semi Government or Local Authorities or like controversies if involving dereliction of obligations, flowing from a statute, rules or instructions can adequately be addressed for relief under that jurisdiction ... public functionaries, deriving authority from or under law, are obligated to act justly , fairly equitably , reasonably , without any element of discrimination and squarely within the parameters of law , as applicable in a given situation."
12. Mere implication in FIR No,682/2015 dated 18.11.2015 from which the appellant was able to clear his name by demonstrating his C innocence, could not be used to deprive him of his employment. Reliance in this regard may be placed on " Superintending Engineer GEPCO, Sialkot v . Muhammad Yousaf" (2007 SCMR 537 ).
13. The proper course to adopt once it had come to light that the absence of the appellant front duty was allegedly due to circumstances beyond his contr ol, might be issuance of specific show-cause notice, followed by an opportunity of reply and provision of personal hearing wherein chance to defend and explain was provided, and thereafter to pass a completely imparti al decision supported by valid reasons . These indeed are the basic requirements of due process guaranteed by Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.
This not having been done renders the action of terminating the appellant from employment legally untenable.
14. For reasons recorded above this appeal is allowed and impugned orders dated 30.11.2017 and 04.7.2018 are set aside. The appellant shall be reinstated to service forthwith. It is however clarified that this order shall not prevent the respondents from proper determination of facts through inquiry condu cted in accordance with law by meeting the requirements of due process.