Tauqeer Ahmed Khan, Member. By means of this appeal under Section 4 of the Service Tribunal, appellant, above-named, assails the order dated 30.07.2020 through which he was dismissed from service. As stated in the memo. of appeal, the appellant approached the office of Squadron Leader, Assistant Director (Housing), AFOHS (Dett), New Malir, Karachi for redressal of his grievance, but no positive response was given regarding his reinstatement in service, as such, he approached the Hon'ble High Court of Sindh in Const. Petition No. D-61, 62/2020 which was dismissed vide order dated 1.4.2021 directing the appellant to avail his remedy as provided under the applicable laws.
Hence, this appeal.
Along with the appeal, an application for condonation of delay (Misc Petition No. 71/2021) has also been filed duly supported by an affidavit.
2. Brief facts of the case are that the appellant was appointed as Civilian working as Staff SDO (B&R) 1485, AFOHS, after fulfillment of all codal formalities as required by the appointing authority, but no any appointment order was given to the appellant and throughout his service, no Rules and Regulations for appointment were provided to him, inspite of such situation, the appellant continued to discharge his responsibilities, without any complaint. The appellant, throughout his career, performed his duties dedicatedly, honestly and with the entire satisfaction of his superiors and without having any complaint from any corner against him. In this regard, the department issued Good Work Experience/Satisfactory Certificate to him on 02.04.2017 which was issued by Flying Officer Al) (Tech), AFOHS, ahq (Dett), New Malir.
On 30.07.2020, alleged order of dismissal from service was issued by Squadron Leader, AFOHS on the instructions of ACAS (Hsg), on complaint of resident of SH-353, Sqn-Ldr Raza (Rtd) against the appellant, received by appellant and as per contents of said alleged dismissal order, the allegations made regarding immoral activities of appellant and on alleged immoral activities, the matter communicated between the officials who are described in said alleged dismissal order and as per contents of the said order, the confession of the appellant mentioned. In response to such cited order, no any kind of immoral activity described and no any inquiry committee constituted in this matter and no any confession recorded by the appellant, that is all managed one and it's the general method of mala fide officials for defaine the such low grade employees as the applicant victimized through such illegal and managed story of immoral activities, resulting in dismissal of the appellant from service.
It was stated in the grounds that without serving any explanation call, show-cause notice, warning letter to the appellant and without personal hearing, such order was passed which is against the rule of law and also over ruled the right of appellant.
3. Objections were filed on behalf of the respondents, taking certain Preliminary objections as to the maintainability of appeal as follows: "1. That as per Sections 1(3) and 3(2) of the Federal Service Act, 1973, the instant Tribunal has jurisdiction only to the extent of Civil Servants". Whereas, the definition of "Civil Servants" excludes "a person who is employed on contract", as per Section 2(1)(b)(ii) of the Civil Servants Act, 1973. The post of the Appellant, as per his appointment letter, especially clause 2(b) thereof, the "is purely temporary", "Therefore, the Appellant, being excluded from the definition of "civil servants" is not liable to invoke the jurisdiction of the instant Tribunal.
2. That without prejudice to the above, the Appellant has not filed any departmental appeal against the dismissal thus, the instant Tribunal does not have entertain the instant pre-mature appeal.
3. That without prejudice, as per clauses 2(b) and 2(e) of the Appointment Letter, the service of the Appellant was liable to be terminated without any notice; which has been done vide the dismissal order.
"Clause 2(b): The post is purely temporary and is liable to be terminated....at any time even without serving any prior notice.
Clause 2(e): "Your service can be terminated any time on account of non-accomplishment of assigned tasks, lack of efficiency/interest and violation of AFOHS rules and regulations.
4. That hence, no remedy lies for the Appellant, who, even otherwise, is to be governed by the principles of Master and servant; and his remedy, if any, lies before the competent Civil Courts".
On factual side, it was stated that the appellant was appointed vide appointment letter with effect from 23.01.2009 on a purely temporary post and appellant was liable to be terminated without any notice as per the clauses 2(b) and 2(e) of appointment letter and the prevailing law, rules and regulations. It is pertinent to mention here that at best it's the case of master and servant relationship which cannot be agitated before this August forum with the prayer for reinstatement, hence proceedings are not maintainable and are corum-non-judice. It is categorically submitted that no illegality has been committed by the answering defendant and the appellant was treated in accordance with law. The instant termination has been made by invoking power given under the appointment letter, as stipulated hereinabove. Any previous good conduct or any character certificate issued, if any, to the appellant would have no relevance in this regard. The appellant was terminated in terms of appointment letter, which states that the appellant could be terminated without any notice, whatsoever, however, over and above any such requirements, appellant has been given a proper opportunity to prove his innocence regarding the instant allegations against him. Therefore, being contractual/temporary employee, appellant was not entitled to any notice or right of hearing, however, appellant has been granted this privilege without being so entitled but in fact, it's a simplicitor termination in terms of appointment letter as the appellant do not qualify to be a civil servant in terms of Civil Servants Act, 1973.
On grounds, it was stated that there do not exist any such requirements to issue any show-cause notice or provide an opportunity of hearing to the appellant, as per the clauses 2(b) and 2 (e) of the appellant's appointment letter, however, over the above this, the appellant has been given opportunity of hearing but appellant was terminated simpliciter in terms of his appointment letter.
It was further averred and reiterated that the instant dismissal order is legal and lawful. Even otherwise, if the appellant was aggrieved of the instant order, appellant should have filed an appeal before the appellate authority for the redressal of his grievance, which appellant failed to do and filed the instant appeal prematurely, without exhausting the remedy of appeal provided under the law.
4. On 05.06.2023, detailed arguments of both the learned counsel for parties were heard and matter was reserved for judgment with an option to both sides to submit written arguments, if any, within three days, but some documents are submitted on 14.06.2023 along with the written synopsis, which include the sanction/approval, letter dated 20.10.1992, issued by Section Officer, Government of Pakistan, Ministry of Defence, Terms and Conditions of Air Force Officers Housing Scheme (Appendix 'A') and Judgment reported in 2010 SCMR 1904.
5. We have carefully considered the arguments orally advanced and also perused the documents placed on the file including the judgment cited/relied.
6. So far as the first point, as raised by the respondents in their comments is with regard to the status of the appellant being not a civil servant, we would like to point out that despite providing ample opportunity to the respondents to show that the appellant is not a civil servant, the respondents failed to convince us about the status of appellant being not a civil servant. We have perused the letter dated 20.10.1992 issued by the Section Officer, Ministry of Defence, thereby granting establishment, "of Directorate of Housing under Admin Branch at Air Headquarters, Chaklala, manpower, budget, MT and other allied facilities for this directorate are to be provided from within the existing sanctioned establishment of the PAF". The sanction/approval letter dated 18.02.2009 has also been perused by us, as annexed with the written arguments, and we find that it recommended that, "the selected candidates Mr. Rahat Hussain CNIC No. 42201-0450007-7 s/o Riaz Hussain and Mr.Ghulam Shabbir CNIC No. 42501-8498902-7 s/o Niaz Hussain may be employed on contract wef 23 Jan, 09 on the above said terms and conditions". No such approval was granted for appointment of appellant on contract basis, however, he was appointed on purely temporary basis as per his appointment letter annexed with the appeal memo. We have perused the appointment order of the appellant placed alongwith the memo of appeal, signed by Squadron Leader, Deputy Director Housing, Air Headquarters, Islamabad and its clause-2(c), being relevant, is reproduced as under: "(c) Your conduct and discipline will be governed in accordance with Civilians Efficiency and Discipline Rules, 1973. Additionally, you are governed by such criterion guideline and orders, as may be given by the Staff/Director of Housing from time to time."
The impugned order of dismissal of the appellant from service states: "1. It is informed to you that resident of SDH-353 Sqdn Ldr Raza (R) reported involvement of immoral activities to the undersigned on 29.07.20. The information about your immoral activities were discussed in detail with Sqn Ldr (R) Raza and find your direct involvement in reported immoral activities in his house on same day, the same was communicated to Base Commander PAF Base, Malir and on the instruction of Base Commander PAF Base, Malir the initial investigation was carried out by the Reps of Al and Base Provost Sqn, PAF Base, Malir respectively on 30th July, 2020 in that you confessed all the allegations forwarded against you. After your confessional statement the matter was discussed with ACAS (Housing) and after detail discussion ACAS (Housing) instructed to dismiss you from service immediate basis.
2. Undersigned is conveying the instructions of ACAS (Hsg) and confirming your immediate dismissal from service i.e. 30th July, 2020 and you are black Listed AFOHS Complex, New Malir. If you found in this Complex you will be handed over to Civil Police.
Sd/ (IMRAN SABIR)
Squadron Leader Assistant Director Housing AFOHS AHQ (Dett) New Malir"
Here it may be mentioned that no such confession has been placed on record for our perusal and if there was any such confession, as alleged, there was no need to hold a regular inquiry.
7. Aggrieved by such order of his dismissal from service, appellant approached the Hon'ble High Court of Sindh by filing Const. Petition No. D-6162 of 2020 which was decided/disposed by the Hon'ble Court, vide order dated 01.04.2021, concluding that: "9. In the light of the foregoing, without touching the merits of the case, we are of the view that the case of petitioner squarely falls within the ambit of the ouster clause of Article 199(3) of the Constitution, therefore, there is a bar of jurisdiction of this Court from entertaining the instant Constitutional Petition. Hence, the same is dismissed along with the pending application(s), however, the petitioner would be at liberty to avail his remedy as provided under the applicable laws".
Article-199(3), referred to in the order by the Hon'ble High Court is reproduced as under: "[(3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Force of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law.] Admittedly, the appellant is not a uniform person and his conduct and discipline are governed in accordance with Civilian Efficiency -and Discipline Rules, 1973, therefore, for all intents and purposes, the appellant is a civil servants defined in The Civil Servants Act, 1973 where, "a person who is a member of an All-Pakistan Service or of a civil servant of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence ...". The appellant was, admittedly working since 23.01.2009, though on temporary basis, in the department as SDO (B&R) at ASOHS AHQ (Dett), New Malir, Karachi and such certificate was issued to him by Director of Housing (Proj-II), Air Headquarters, Islamabad, available on record, filed with the memo of appeal.
8. Here, it may be mentioned that besides the above legal objection another objection has been raised regarding, non-filing of departmental appeal by the appellant before approaching this Tribunal. In this regard, it is not disputed and, as stated above, the appellant has approached the Hon'ble High Court of Sindh in Const. Petition No. D-6162/2020, therefore, due to pendency of the said petition, question of filing of departmental appeal does not arise, as held in 2004 SCMR, 1439, and such the bar of limitation of non-filing of departmental appeal will not come into play, as the petition can be treated as departmental appeal and the comments thereon, if any, be treated as appellate rejection order.
9. As per term-2(b) of employment letter, it was stated that, "the post is purely temporary and is liable to be terminated by Director of Housing at any time even without serving any prior notice". As mentioned in the order of dismissal of the appellant, allegation of involvement of the appellant in immoral activities has been leveled against him, in such eventuality, his services could not have been terminated/dismissed without recourse to the procedure provided under the law. On this point, we rely on a judgment reported in 1997 SCMR 1552 where it was observed 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 even, even if 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".
10. There is an application for condonation of delay, having been filed by the appellant along with the memo. of appeal, notice of which was though issued to the respondents, but no counter- affidavit to such application is filed therefore, the delay as prayed for is condoned, as the appellant has approached this Tribunal, after the order of Hon'ble High Court passed on 01.04.2021, but the appeal was filed on 24.09.2021. The order of dismissal of the appellant, being a void order, as such, no limitation runs against such an order.
11 We have also concluded that the appellant though was appointed on 23.01.2009 as a temporary employee, but he continued to work on such position till 30.07.2020 on a post which lasted till his termination/dismissal from service, therefore, he cannot be -termed/ treated as a temporary employee; hence, he became a permanent/regular employee of the department. Reliance in this respect is placed on famous case as reported in PLD 2003 SC 724 (Managing Director, Sui Southern Gas Company Ltd., Karachi-v-Ghulam Abbas and others), it was observed by the Apex Court that, "...Since in the instant cases, respondents were allowed to hold the posts assigned to them on completion of training of a six months, for a period of more than two years, therefore, presumption would be that on having completed the period of probation satisfactorily, they have acquired the status of regular employee of the appellant company, being controlled by the Government and they would be deemed to be the civil servants ....". In yet another case reported in PLD 2002 SC 101 (Dr. Anwar Ali Sahto-v-Federation of Pakistan), the Hon'ble Supreme Court has also been pleased to observe that, "... Needless to mention that a contract assignment cannot become permanent by efflux of time. It is not the case of the appellants that such course was resorted to by the respondent-company at any point of time between the suggested period of their contractual service. The alleged and admitted continuation of the contract assignments of the appellants is visibly the result of the continuation of the projects beyond the period of six months for which the appellants were initially inducted into service as such. We are not impressed by the contention that the contract period of the appellants having not been extended, the Rules had taken GER over seen from another angle, the contract appointments in these cases continued to hold the field throughout". In yet another case as reported in 2018 SCMR 1405 (Board of Intermediate and Secondary Education, Islamabad through Chairman and others-v-Tan veer Sajid and others), it was observed by the Apex Court that, "... It may be noted that the superior Courts have always condemned the practice of keeping the employees on temporary basis for long periods of time without confirming or regularizing their services. It has been held that an employee being jobless and in fear of being shown the door has no option but to accept and continue with the appointment on whatever term a job is offered by the employer". It was further observed by the Apex Court that: "8. Turning to the instant case, the respondents-employees have been working with the petitioner- BSIEs for a long period of time ranging between 3 to 12 years, as mentioned in the impugned judgments by the learned High Court. Though they were initially appointed for a period of 89 days but after the expiry of said period, their contracts were renewed from time to time for further periods of 89 days at a time with an artificial break of 1 or more days. It seems that the motive behind such artificial break was to avoid regularization of their services on the pretext that they were not continuously in service. Since the respondents were in service for a long time, it clearly shows that the posts they were occupying were permanent in nature and not casual or temporary.
It further indicates that the services of respondents were not only required but also beneficial to the department and that they (respondents) had been performing their duties with due diligence to the satisfaction of the authorities. Nothing has been placed on the record that may show anything to the contrary"
In another case reported in 1984 PLC 943, the Punjab Labour Appellate Tribunal had observed that, ".... The mere fact that initially and on the expiry of every period services were extended for a fixed period temporary is not sufficient to show that the service was temporary. For four years the respondents remained in continuous service. Of course if per chance for some cogent reasons work is not completed and service is extended it remains temporary but in the present case the work obviously was of permanent nature as was to last for more than nine months in all probabilities and only to deprive the respondents from acquiring the rights of permanent service device was made to show them as temporary employees ...".
12. For what has been discussed above, we have arrived at the conclusion that as allegation has been levelled against the appellant and he was dismissed/terminated, without recourse to procedure provided under the law, therefore, we while condoning the delay, allow the appeal and setting the impugned order, direct the respondents to reinstate the appellant in service with all back benefits. However, the respondents would be at liberty to hold a regular inquiry against the appellant on the allegations, as levelled against him in the impugned order, after affording full chance of defence to him to adduce his evidence in defence and cross-examining the witnesses, if any, appearing against him during the said inquiry. The inquiry, if any be initiated and completed within a period of four months from the date a copy of this judgment is received.
13. No order as to costs. Parties may be informed.