IRSHAD HASAN KHAN, C.J.---By this common judgment, we intend to dispose of the above civil appeals as well as civil petitions involving common questions of law and fact.
2. M/s. Riazul Haq Sheikh; Fateh Muhammad Khan and Abdul Hafeez Lakhoo, learned counsel for the petitioners/employees argued that notwithstanding the fact that their appeals before the Tribunal were barred by time, the question of condonation of delay should have-been considered by the Tribunal sympathetically on account of prevailing confusion with regard to the availability of remedy to an aggrieved person who was an employee in an organisation controlled by the Government. Reliance was also placed on Muhammad Nazir Malik v. S.A.T. Wasti and others (2000 SCMR 1255) wherein, in similar circumstances, the order of the Service Tribunal was set aside and the case was remanded with the observation that the Service Tribunal would reconsider the application for condonation of delay in the light of the observations of this Court in Muhammad Afzal v. Karachi Electric Supply Corporation (1999 SCMR 92). Before dealing with the merits of the case, suffice it to say that delay in filing appeals before the Tribunal is condoned in view of the peculiar facts and circumstances of these cases.
3. Mr. Lakhoo also placed on record particulars of officers appointed/posted against the management grades posts/management positions after termination of services of his clients to contend that the impugned order of termination was mala fide. The chart reads as follows: PARTICULARS OF THE OFFICERS APPOINTED/POSTED AGAINST MANAGEMENT GRADES POSTS/MANAGEMENT POSITIONS NAME OF THE MINISTRY: MINISTRY OF PETROLEUM & NATURAL RESOURCES NAME OF THE AUTONOMOUS BODY/CORPORATION: PAKISTAN STATE OIL COMPANY LIMITED Sr.No,Name of the OfficerName of the post/Designation with Management Grade/Management PositionDate of PostingDate of Superannuation/Tenure of EmploymentTerms and Conditions of EmploymentDate of BirthPlace of Birth/Province of Domicile 1 2 3 4 5 6 7 8 1 Wajid Jamil Accounts Manager/Group-IV01-08-00 06/12/17/1 Mth(s) Regular 6-12-57 Karachi/Sindh Urban 2 Faiyaz Maklai Sr.Executive/Group-IV 01-07-00 17/11/28/2 Mth(s) Regular 17-11-68 Karachi/Sindh Urban 3 Asif Ali DurraniSr. Executive/Group-IV 01-07-00 08/01/28/2 Mth(s) Regular 08-01-68 Karachi/ Sindh Urban 4 Syed Muhammad TahaSr. Executive/Group-IV 01-07-00 02/01/27/2 Mth(s) Regular 02-01-67 Karachi/ Sindh Urban 5 Shahid Iqbal MalikManager HSE/ Group- IV21-08-00 31/05/14/1 Mth(s) Regular 31-05-54 Lahore/ Punjab 6 Salman Shah Trainee Exec. HSE/ Group- V01-09-00 20/08/24/0 Mth (s) Regular 20-08-64 Karachi/ Sindh Urban 7 Wajahat Ali SyedManagement Trainee/Group-VI01-06-00 23/06/36/3 Mth (s) Regular 23-06-76 Islamabad/Punjab 8 Irteza Siddique Management Trainee/Group-VI01-06-00 29/05/33/3 Mth (s) Regular 29-05-73 Abbottabad/ Punjab 9 Majid Saeed Management Trainee/Group-VI01-06-00 10/02/36/3 Mth (s) Regular 10-02-76 Sialkot/Punjab 10 Shahmat Sultan-al- MahmoodManagement Trainee/Group-VI01-06-00 18/02/36/3 Mth(s) Regular 18-02-76 Gujrat/Punjab 11 Adnan Ahmad Management Trainee/Group-VI01-06-00 16/04/38/3 Mth(s) Regular 16-04-74 Islamabad/Punjab 12 Syed Azfar YazdaniTrainee Engineer/ Group-VI01-06-00 08/09/34/3 Mth(s) Regular 08-09-74 Karachi/ Sindh Urban 13 Benaifer J.
RanderiaManagement Trainee/Group-VI01-06-00 03/01/37/3 Mth(s) Regular 03-01-77 Karachi/ Sindh Urban 14 Humaira RasoolManagement Trainee/Group-VI01-06-00 03/01/38/3 Mth(s) Regular 03-01-78 Karachi/ Sindh Urban 15 Marium Khan Management Trainee/Group-VI01-06-00 07/07/37/3 Mth(s) Regular 07-07-77 Karachi/ Sindh Urban 16 Abdul Ahad WahednaManagement Trainee/Group-VI01-06-00 20/05/37/3 Mth(s) Regular 20-05-77 Karachi/ Sindh Urban 17 Haider Rahat SaeedManagement Trainee/Group-VI01-06-00 06/01/36/3 Mth(s) Regular 06-01-76 Karachi/ Sindh Urban 18 Safdar Ghani Management Trainee/Group-VI01-06-00 06/06/36/3 Mth(s) Regular 06-06-76 Karachi/ Sindh Urban 19 Huzefa Hazari Management Trainee/Group-VI01-06-00 07/07/36/3 Mth(s) Regular 07-07-76 Karachi/ Sindh Urban 20 Aneeza Haider Management Trainee/Group-VI01-06-00 09/11/35/3 Mth(s) Regular 09-11-75 Lahore/ Punjab 21 Roomana Aziz KhanManagement Trainee/Group-VI01-06-00 28/08/37/3 Regular 28-08-77 Karachi/ Sindh Urban 22 Raja Muhammad FaisalManagement Trainee/Group-VI01-06-00 07/12/37/3 Regular 07-12-77 Karachi/ Sindh Urban 23 Malik Amir AbbasTrainee Engineer/ Group-VI05-06-00 02/12/34/3 Regular 02-12-74 Punjab 24 Wasif Sheikh Farooq Management Trainee/ Group-VI21-08-00 15/06/36/2 Mth(s)Regular 15-06-76 Islamabad/Punjab 25 Arif Abdul Qayyum Management Trainee/ Group-VI07-08-00 28/07/31/1 Mth(s)Regular 28-07-71 Karachi/Sindh Urban 26 Muhammad Zubair KhanManagement Trainee/ Group-VI21-08-00 07/12/34/1 Mth(s)Regular 07-12-74 Hairpur/Punjab 27 Muhammad Afzal MalikManagement Trainee/ Group-VI21-08-00 05/01/34/1 Mth(s)Regular 05-01-74 Sialkot/Punjab 28 Sarmad Hussain Khan Management Trainee/ Group-VI21-08-00 13/10/34/1 Mth(s)Regular 13-10-74 Budapest/N.W.F.P.
29 Moeez Ahmed Khan Management Trainee/ Group-VI21-08-00 24/04/35/1 Mth(s)Regular 24-04-75 Kharian/Punjab 30 Tariq Ali Korejo Management Trainee/ Group-VI21-08-00 08/05/37/1 Mth(s)Regular 08-05-77 Karachi/Sindh Urban 31 Irfan Ahmad Management Trainee/ Group-VI01-09-00 01/12/28/0 Mth(s)Regular 01-12-68 Lahore/Punjab 32 Mohsin Ali Management Trainee/ Group-VI01-09-00 03/2/37/0 Mth(s)Regular 03-12-77 Islamabad Sindh Rural
4. During the course of arguments it was also submitted that the following persons were appointed in the P.S.O. After termination of the services of the petitioners/employees: Sr.No,Name Designation
1. Adnan Khan s/o Mushtaque Khan G.M. Aviation
2. Idrees Rana s/o Rana Bashir Confidential Secretaries to M.D.
3. Rashid Waris Purchase officer
4. Mian Shakeel Depot Officer
5. Asim Naqvi s/o Qasim Naqvi Senior Executive Consumer
6. Zafar Ashfaque Construction Engineer
7. Kamran Construction Engineer
8. Sajid Channa
9. Humayoon Tarar
10. Raja Khizar Consumer Sale Labour
11. Haq Nawaz Soomro Audit Officer
12. Ismail Kodpur Larkana Sales Officer
5. The General Manager, P.S.O. Was present in Court. Raja Haq Nawaz, learned Advocate Supreme Court was confronted with the above documents. After seeking instructions from the General Manager, the learned Advocate Supreme Court did not dispute the appointments of the above persons but argued that they were appointed on merit pursuant to the regular advertisements issued by the Corporation.
6. When faced with this, Raja Haq Nawaz stated that all the appellants are not regular employees in that some of them were trainees and others were probationers. Be that as it may, even in case of a trainee or a probationer, if his services are terminated on grounds of mala fide in law or fact, they are entitled to show-cause notices not on the basis of principles of natural justice but on the ground that the authority concerned has abused the power vested in it. Their cases are, therefore, also at par with others. He has taken great pains in preparing a chart giving brief particulars of the cases and the grounds urged therein The Chart reads as follows:
1. Contractual Employees/Management Trainees of Pakistan State Oil. Raja Hatt Nawaz Khan with Ch. Akhtar Ali, A.O.R.
S.No, Case No, Title Date of InductionDate of TerminationFST Appeal No,Date of orderPoints involved
1. CA 1796/98 Out of CPLA 1267/98M/s. Pakistan State Oil Co. Ltd. V.
Muhammad Tahir kahn 2 others17-10-1994 22-9-199619-9-1997 Appeal No, 21(P)98 2-2- 199819-8-1998 Principles of natural justice grossly violated relying on the 1994 SCMR 2232 Anisa Rehman's case.
Limitation period of appeals.
Appointment on political considerations and without any merit.
2. CA 1798/98 Out of CPLA 1269/98M/s.Pakistan State Oil Co Ltd and another v.
Farmanullah Khan and 2 others27-3-1995 20-8-1997 Appeal No, 317(R)/98 15-5- 199819-8-1998 --------
3. CA 1797/98 Out of CPLA 1269/98M/s. Pakistan State Oil Co Ltd v. Syed Ali Naqi Shah and 2 other14-9-1995 10-9-199619-9-1997 Appeal No, 22(P)/98 2-2- 199819-8-1998 ---------
4. C.A. 378/99 Ishfaq Hussain v.
M/s. Pakistan State Oil Co. Ltd.26-4-1995 1-8-199620-9-1997 10-4-1999 Principles of natural justice Contract Service Limitation Sh. Riazul Haq with Mr. M.A. Zaidi A.O.R.
5. CA 388/99 Out of CPLA 1483/98 16-2- 1998Fazle Mansoor 8-8-1995 10-2-199619-9-1997 298(P)98 25-9-19984-11-1998Departmental appeal dt. 2-10-1997 was filed and also filed W.P. No, 1889/1997 in the Peshawar H.C. on 16- 12-1997 which was withdrawn on 23-9- 1998 (pg. 25).
It was challenged before FST on the ground that no show- cause notice given hence condemned unheard. (pg. 10)
Appeals hopelessly time-barred. Para. 3-- pgs. 6-8 --Limitation --Principle of natural justice --No show-cause notice hence condemned unheard.
6. CA 389/99 Out of CPLA 1484/98 16- 2-1998Muhammad Tariq10-2-1996 27-8-1997 299(P)/98 25- 9-19984-11-1998Departmental appeal dt. 2-9-1997 was filed and also filed W.P. No, 1623/1997 in Peshawar H.C. on 8-10-1997 which was withdrawn on 23-9-1998 (pg.23).
It was challenged before FST on the ground that no show- cause notice given hence condemned unheard. (pg. 10.)
Appeals hopelessly time-barred. Para. 3 of judgment.
Limitation Principle of natural justice No show=cause notice hence condemned unheard.
7. CA 390/99 Out of CPLA 1485/98 16- 2-1998Nasir Ali Khan 25-8-1995 20-8-1997 300(P)/98 25- 9-19984-11-1998Departmental appeal dt. 2-9-1997 was filed and also filed W.P. No, 1614/1997 in the Peshawar H.C. on 3- 10-1997 which was withdrawn on 23-9- 1998 (pg. 18)
It was challenged before FST on the ground that no show- cause notice given hence condemned unheard. (pg. 10).
Appeals hopelessly time-barred. Para. 3 of judgment.
Limitation Principle of natural justice No show-cause notice hence condemned unheard.
8. CA 391/99 Out of CPLA 1486/98 16- 2-1998Syed Raza Shah 6-7-1995 20-8-1997 302(P)/98 25- 9-19984-11-1998Departmental appeal dt. 2-9-1997 was filed and also field W.P. No, 1615/1997 in the Peshawar H.C. on 3- 10-1997; which was withdrawn on 23-9- 1998 (pg. 23).
It was challenged before FST on the ground that no show- cause notice given hence condemned unheard. (pg. 11)
Appeals hopelessly time-barred. Para. 3 of judgment
--Limitation -- Principle of natural justice. --No show-cause notice hence condemned unheard.
9. CA 392/99 Out of CPLA 1487/98 16-2- 1998Matiullah Khan 20-10-1994 20-8-1997 304(P)/98 26- 9-19984-11-1998Departmental appeal dt. 13-10-1997 -No writ filed.
It was challenged before FST on the ground that no show- cause notice given hence condemned unheard. (pg. 10).
Dept. appeal and Service appeal both are time-barred Appeals hopelessly time-barred. Para 3 of judgment. -- Limitation -- Principle of natural justice --No show-cause notice hence condemned unheard.
10. CA 393/99 Out of CPLA 1488/98 16- 2-1998Arbab Najibullah 14-9-1995 20-8-1997 305 (P)/98 25-9-19984-11-1998Departmental appeal dt. 2-9-1997 was filed and also filed W.P. No, 1587/1997 in the Peshawar High Court which was withdrawn on 23-9-1998 (page 24).
It was challenged before FST on the ground that no show- cause notice given hence condemned unheard. (pg. 10) Dept. appeal and SERvice appeal both are time barred. Appeals hopelessly time barred. Para 3 of Judgment. --Limitation --Principle of natural justice -- No show-cause notice hence condemned unheard.
Mr. Abdul Hafeez Lakho with Mr. K.A. Wahab, A.O.R.
11. CPLA 23- K/99Allah Dino Mirani15-12-1994 19-91997 790(K)/98 8- 6-199817-10-98 Departmental appeal dt. 18-10- 1997 was filed and also Civil Suit No, 1357/1997 (p. 52) in the Sindh H.C. on 11-10-1997.
It was challenged before FST on the ground that no show-cause notice given hence condemned unheard and of limitation. (pg.25) and 27. --Limitation -- Principle of natural justice --No show-cause notice hence condemned unheard
12. CPLA 24- K/99Shafaqat H.
Mahesar15-9-1994 1-3-199619-9-1997 791(K)98 8-6- 199817-10-98 Departmental appeal dt. 18-10- 1997 was filed and also Civil suit No. 1357/1997 (p.52) in the Sindh H.C. on 11-10-1997 It was challenged before FST on the ground that no show-cause notice given hence condemned unheard and of limitation (pg. 30).
Appeals hopelessly time- barred. Para 10 of judgment at pgs.
26 and 28. --Limitation --Principle of natural justice --No show-cause notice hence condemned unheard
13. CPLA 25- K/99Sikandar Ali Sahito1-3-1996 19-9-1997 812(K)/98 12- 6-199817-10-98 Departmental appeal dt. 20-10- 1997 was filed with Secretary M/Petroleum and also Civil Suit No, 1355/1997 in the Sindh H.C. on 13- 10-1997.
It was challenged before FST on the ground that no show-cause notice given hence condemned unheard and of limitation. (pg. 30).
Appeals hopelessly time- barred. Para 10 of judgment at pgs.
26 and 28. --Limitation --Principle of natural justice --No show-cause notice hence condemned unheard
14. CPLA 26- K/99Shah Dost Bajkani8-8-1990 19-9-1997 813(K)/98 12- 6-199817-10-98 Departmental appeal dt. Was filed and also Civil Suit No, 1216/1997 in the Sindh H.C. on 27-9-1997 Judgment of HC dt. 12-3-1997 pg. 62 It was challenged before FST on the ground that no show-cause notice given hence condemned unheard and of limitation. (pg. 30).
Appeals hopelessly time- barred. Para 10 of judgment at pgs.
26 and 28.
S.No, Case No, Title Date of InductionDate of TerminationFST Appeal No, Date of order Points involved --Limitation --Principle of natural justice --No show-cause- notice hence condemned unheard
15. CPLA 37-K/99 Abdul Jabbar Jamali 1-7-1996 19-9-1997 814(K)/98 12-6- 199817-10-98 Departmental appeal dt. Was filed and also No, 1355/1997 in the Sindh H.C. on 13- 10-1997 Judgment of HC dt. 5-6-1998 ph. 57 It was challenged before FST on the ground that no show-cause notice given hence condemned unheard and of limitation.
(pg. 30)
Appeals hopelessly time-barred. Para. 10 of judgment at pgs. 26 and 28. --Limitation --Principle of natural justice --No show-cause notice hence condemned unheard
16. CPLA 28-K/99 Shabbir Ahmed Samejo2-5-1990 19-9-1997 815(K)/98 12-6- 199817-10-98 Departmental appeal dt. Was filed and also Civil Suit No. 1355/1997 in the Sindh H.C. on 13-10-1997.
Judgment of HC dt.
5-6-1998 p.68 It was challenged before FST on the ground that no show-cause notice given hence condemned unheard and of limitation.
(pg. 30).
Appeals hopelessly time-barred. Para. 10 of judgment at pgs. 26 and 28. --Limitation --Principle of natural justice --No show-cause notice hence condemned unheard
17. CPLA 29-K/99 Muhammad Siddique Mirani1-11-1996 20-9-1997 920(K)/98 16-6- 19817-10-98 Departmental appeal dt. 20-10- 1997 was filed and also Civil Suit No, 1357/1997 in the Sindh H.C. on 11- 10-1997. Judgment of HC dt. 5-6-1998 p. 62 It was challenged before FST on the ground that no show-cause notice given hence condemned unheard and of limitation.
(pg. 30)
Appeals hopelessly time-barred. Para 10 of judgment at pgs.
26 and 28. --Limitation --Principle of natural justice --No show-cause notice hence condemned unheard
18. CPLA 30-K/99 Noor Mustafa Khoro 8-7-1990 19-9-1997 816(K)/98 12-6- 199817-10-98 Departmental appeal dt. Was filed and also Civil suit No, 1355/1997 in the Sindh H.C. on 13-10-1997.
Judgment of HC dt.
5-6-1998 pg. 62 It was challenged before FST on the ground that no show-cause notice given hence condemned unheard and of limitation.
(pg.30).
Appeals hopelessly time-barred. Para. 10 of judgment at pgs. 26 and 28. --Limitation --Principle of natural justice --No show-cause notice hence condemned unheard
19. CPLA 31- K/99 Irfan Ahmed Memon 10-6-1990 19-9-1997 237(K)/98 18-3- 199817-10-98 Departmental appeal dt. 20-10- 1997 was filed and also Civil Suit No, 1216/1997 in the Sindh H.C. on 27-9- 1997. Judgment of HC dt. 12-3-1998 p.
58 It was challenged before FST or the ground that no show-cause notice given hence condemned unheard and of limitation.
(pg. 30)
Appeals hopelessly time-barred. Para 10 of judgment at pgs.
26 and 28. --Limitation --Principle of natural justice --No show-cause notice hence condemned unheard
20. CPLA 32-K/99 Irshad Ali Shaikh 1-7-1990 19-9-1997 238(K)/98 17-10-98 Departmental appeal dt. 18-10- 1997 was filed and also Civil Suit No, 1216/1997 in the Sindh H.C. on 29-9-1997.
Judgment of HC dt.
12-3-1998 p. 57 It was challenged before FST on the ground that no show-cause notice given hence condemned unheard and of limitation (pg.30)
Appeals hopelessly time-barrd. Para 10 of judgment at pgs.
26 and 28. --Limitation --Principle of natural justice --No show-cause notice hence condemned unheard
7. Mr. Raja relied upon CPs No,2049-L to 2051-L of 1998 titled Furqan Habib and others v. Government of Pakistan and others to contend that the petitioners/employees were not prosecuting their cases with "due diligence" and therefore, they are not entitled to the enlargement of time as visualised by section 14 of the Limitation Act; and that filing of appeal in a wrong Court on account of mistaken advice tendered by the counsel would not attract the provisions of section 5 of the Limitation Act. In this behalf reliance was also placed on Khan Muhammad v. Senior Superintendent of Police, Rawalpindi and others 1989 SCMR 589 and Syed Haji Abdul Wahid and another v. Syed Sirajuddin 1998 SCMR 2296. The precise submission was that the Tribunal was justified in dismissing the appeals of the petitioners on the ground of limitation and that in somewhat similar cases this Court refused leave and dismissed above CPs 2049-L to 2051-L of 1998.
8. It was further argued that petitioners' impugned termination from service does not suffer from any infirmity in that the petitioners/employees have been allowed one month's salary each in lieu of one month's notice in accordance with the terms of their employment. It was also contended that relationship of corporation/employer and its employees is that of master and servant in the absence of any statutory provisions or rules as held in:
(i) Lt.-Col. Shujauddin Ahmad v. Oil and Gas Development Corporation 1971 SCMR 566;
(ii) Chairman of East Pakistan Development Corporation v. Rustam Ali PLD 1966 SC 848;
(iii) Lahore Central Cooperative Bank Limited v. Pir Saifullah Shah PLD 1959 SC (Pak.) 210;
(iv) Zainul Abedin v. Multan Central Cooperative Bank Limited PLD 1966 SC 455;
(v) Shahid Khalil v. P.I.A.C., Karachi 1971 SCMR 568;
(vi) A. George v. Pakistan International Airlines Corporation PLD 1971 Lah. 748;
(vii) R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146; (viii)Muhammad Yousaf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224;
(ix) Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194;
(x) Anwar Hussain v. The Agricultural Development Bank of Pakistan and others 1992 SCMR 1112;
(xi) Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531;
(xii) Chairman, WAPDA and 2 others v. Syed Jamil Ahmed 1993 SCMR 346; and
(xiii) Muhammad Umar Malik v. The Muslim Commercial Bank Ltd. Through its President, Karach and 2 others 1995 SCMR 453. and reiterated by a two-member Bench of this Court in C.Ps. Nos.391-K to 456-K of 1998 titled Abdul Jabbar and others v. Sui Southern Gas Co. Ltd.
9. Relying on the unreported judgment in the case of Abdul Jabbar (supra) it was argued that an employee working in any of the organisations covered by section 2-A has been treated to be in the service of Pakistan for the limited purpose of providing remedy by way of appeal against an order of which he may feel aggrieved. Reference was also made to an unreported judgment rendered in C.Ps. 507-K to 513-K of 1998 titled Ghiasuddin Sheikh and others v. Federation of Pakistan and others wherein it was opined that it was not necessary for an employee working in any of the organisations covered by section 2-A that he should also come within the ambit of definition of 'civil servant' given in section 2-B of the Act. The employees of the various bodies/corporations mentioned in section 2-A have been treated in the service of Pakistan for the limited purpose of providing a forum to them. Reliance was also placed on the judgment in C.P.L.A. 1305-K of 1997 titled Syed Aftab Ahmad v. K.E.S.C.
Wherein leave to appeal against the judgment of the Tribunal declining relief to the employees, was refused.
10. Raja Haq Nawaz, A.S.C. Also placed reliance on Anisa Rehman v. P.I.A.C. And another 1994 SCMR 2232 to contend that, in law, contractual service is not governed by any statutory rules and that terms and conditions of contract of service have a binding effect. He also argued that contractual employees are bound by the contract under the Injunctions of Islam as ordained in the Holy Qur'an (Surah V, Al-Maidah: 1 and Surah XVII Bani Israil: 34) and the parties must fulfil their obligations under the contract.
Reliance was also placed on Ahmad Faraz v. Government of Pakistan 1991 PLC (C.S.) 407 to contend that under the service contract both parties are bound by the law of contract and the Holy Qur'an. In these circumstances, it was vehemently argued that the respondent-company can terminate the services of the appellants/petitioners and that they can also leave their job by giving one month's notice to the Company. It was further argued that no statutory rules or regulations exist to regulate the terms and conditions of the respondent-company's employees and therefore the employees are estopped by their conduct to avoid the complications of their own commitments. In support of the above, pleas reliance was placed on Muhammad Sadiq Shah v. Government of N.-W.F.P. Etc. 1998 PLC (C.S.) 768, Karachi Catholic Cooperative Housing Society Ltd. v. Mirza Jawad Baig PLD 1994 Karachi 194 and Habib Bank Ltd., Karachi v. Pakistan Industrial Promoters (Pvt.) Ltd. PLD 1996 Karachi 218.
11. He further argued that the charge against the appellants/petitioners/employees is of misconduct, yet the competent authority instead of taking drastic steps had done a favour to them by passing orders of termination of service simpliciter, a course within their competence. In this behalf, reliance was placed on Abdul Karim v. The West Pakistan Province PLD 1956 SC (Pak.) 298, Pakistan v. Muhammad Abdul Ali PLD 1961 Dacca 543, The Secretary, East Pakistan Industrial Development Corporation, Dacca v. M.D. Serajul Hague 1970 SCMR 398, Pakistan (Punjab Province) v. Riaz Ali Khan 1982 SCMR 770, The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170, PLD 1992 SC 531 and The Secretary, Government of the Punjab v. Riaz ul Haq 1997 SCMR 1552.
12. Another argument urged by him with great vehemence was that the impugned termination orders were in the nature of termination simpliciter and being in accordance with the terms and conditions of service, therefore, neither any show cause notice was required nor any such right accrued in favour of the employees in contract service. The termination clause incorporated in the contract excludes requirement of show-cause notice and therefore the Tribunal was wrong in relying upon the principle of audi alteram partem enunciated in the case of Anisa Rehman (supra) and that in any case the above principle was not applicable to the cases of the respondents/employees in that the author Judge (Ajmal Mian, J. As he then was) himself clarified in the case of Habib Bank Ltd. v. Ziaul Hassan Kazmi 1998 SCMR 60 that the ratio of the judgment in the case of Anisa Rehman (supra) was that a corporation cannot demote its employees without hearing them and that the question of termination or suspension was not dealt with in the said precedent. To the same effect is the judgment in: United Bank Ltd. And others v. Ahsan Akhtar and others 1998 SCMR 68.
13. We have gone through the judgments cited at the Bar and anxiously considered the arguments advanced on behalf of the parties. Suffice it to say that every case is to be adjudged in the light of its own circumstances with ,reference to the applicable law. Of course, precedents are to be kept in view so as to avoid contradictory judgments.
14. The first question which requires consideration/resolution is as to what was the rationale behind the insertion of section 2-A in the Service Tribunals Act, 1973. The intention of the Legislature appears to be to provide a forum to the employees of corporations etc. Against their arbitrary removal, discharge from service or other final orders that may be passed by such corporations adversely affecting the terms and conditions of their service. The appellants/petitioners herein were employees of a corporation controlled by the Government. Their terms and conditions of service are not regulated by any statute or statutory Rules. They are also not civil servants within the meanings of the Civil Servants Act, 1973 and the rules framed thereunder. It is also an admitted fact that no statutory rules or regulations have been framed in respect of the terms and conditions of service of the appellants/petitioners. Similarly, service rules have not been framed by the employers regulating their terms and conditions of service even for the purposes of internal management. The terms and conditions of service of the appellants/petitioners are wholly regulated by the contract/s of employment. Viewed in the above perspective, after insertion of section 2-A, the appellants/petitioners have a right to approach the appropriate Service Tribunal for protection of their rights of employment flowing from the contract/s of service.
15. We have minutely perused the contracts of employment, which provide for pension, gratuity, leave, etc. It is also provided in the contract that they shall continue in service up to the age of 60 years. Be that as it may, the contract simultaneously provides two other clauses under subheadings 'termination simipliciter' and 'dismissal'. The above provisions read thus: "TERMINATION SIMPLICITER Your services can be terminated by the Company without assigning any reason whatsoever, on one month's written notice of termination of your service or on one month's gross salary in lieu thereof together with full benefits as per your entitlements.
Likewise you can also terminate your service by giving the Company one month's written notice of resignation from service or payment of one month's gross salary in lieu thereof. For the purpose of this clause the expression "gross salary" shall be the same as defined in the accompanying Gratuity Scheme. DISMISSAL For reasons of any omission or commission on your part and/or for reasons of your conduct/behaviour unbecoming of your position and status in the Company and/or for reasons of any misconduct, you are liable to be dismissed from service in which event you will not be entitled to any notice of termination of service or salary in Heti thereof nor you will be entitled to gratuity or any other compensation or benefit: ' Provided, however, in case of dismissal from service under this clause, you will be given the opportunity of submitting written explanation and, where so considered necessary by the Company, you will be given the opportunity of personal interview also."
16. A bare reading of the above provisions shows that under the terms and conditions provided in the contract of service of employer has the right to terminate the services of an employee without assigning any reason, throughout the currency of his service, in lieu of payment of one month's salary. In case of dismissal, however, for reasons of misconduct or improper conduct, it is incumbent upon the employer to provide an opportunity to the employee to explain, in writing, the allegations against him.
The proviso to dismissal clause states in unequivocal terms that the employee shall be provided an opportunity to explain the allegations against him.
17. It is well-settled principle of construction of documents that one has not to read a provision in isolation or in bits and pieces but the entire document has to be read as a whole to gather the intention of the parties. The contract of service of the appellants/petitioners reads as under: Dear Sir, We have pleasure in offering you employment with the Company in the management cadre in the position of Deport Officer with effect from 1-10-1996 on the following terms and conditions: Your Basic Salary will be Rs,3,900 (rupees three thousand nine hundred only) per month. ALLOWANCES You will receive the following Allowances:
(a) House Rent Allowance @ 55% of basic salary with a minimum of Rs,3,486 per month.
(b) You will be paid an Entertainment Allowance @ 10% of basic salary subject to a maximum of Rs,1,000 per month.
(c) You will be entitled to Leave Fare Assistance @ Rs,11,408 per annum.
(d) Conveyance Allowance @ 20% of basic salary with a minimum of Rs,300 per month. The conveyance allowance will not be admissible to you if you are provided Transport facility by the Company to come to office and back to residence after the closing of working hours or if you are covered under the Company's Car Policy.
(e) You will be paid cost of living allowance @ Rs,25 per month as admissible under Cost of Living Relief Act, 1973 as amended by Act No, LXI of 1975. PROVIDENT FUND You will be eligible for membership to the Company's Provident Fund Scheme. You will be governed by the Bye Laws/Rules of the State Oil Company Limited Staff Provident Fund. GRATUITY You will be entitled to gratuity as per Gratuity Scheme of the Company applicable to management cadre. MEDICAL You will be entitled to Medical Assistance as per Company's Medical Policy. LEAVE You will be governed by the Company's Leave Rules applicable to the management cadre. TRAVEL ALLOWANCE You will be entitled to reimbursement of travelling expenses as applicable under the Company's Business Travel Policy. You are entitled to the following expenses:
(a) Mode of travel.---By Train 1st class (sitter)/sleeper or by Air (economy) class with the approval of Departmental Head.
(b) Hotel Accommodation.---Actual hotel bills subject to a maximum of Rs,150 per day.
(c) Daily Allowance: Rs,100 per day. TRANSFER ALLOWANCE ' You will be entitled to reimbursement of expenses for self, wife and children below 18 years of age, on transfer as per Company's Staff Transfer Policy. Under this policy, you will be entitled to the following expenses:
(a) Mode of Travel.---By Train 1st class (ordinary) or by Air (economy class) with the approval of Departmental Head.
(b) Personal effects.---750 cfts. By rail or one truck load.
(c) Packing and forwarding.---Up to Rs,750.
(d) Settling Allowance for a period up to 15 days at new location:
(i) Employee and wife each: Rs, 70 per day up to 15 days.
(ii) Children up to 18 years of age each: Rs, 35 per day up to 15 days. RETIREMENT The age of retirement shall be 60 (sixty) years. TRANSFER During the course of your employment, you are liable to be transferred to any location of the Company's operations in Pakistan or on any assignment in any capacity or to any other affiliated/subsidiary company anywhere in Pakistan to be decided by the Company. TERMINATION SIMPLICITER Your services can be terminated by the Company without assigning any reason whatsoever, on one month's written notice of termination of your service or on one month's gross salary in lieu thereof together with full benefits as per your entitlements.
Likewise you can also terminate your service by giving the Company one month's written notice of resignation from service or payment of one month's gross salary in lieu thereof. For the purpose of this clause the expression "gross salary" shall be the same as defined in the accompanying Gratuity Scheme.
DISMISSAL For reasons of any omission or commission on your part and/or for reasons of your conduct/behaviour unbecoming of your position and status in the Company and/or for reasons of any misconduct, you are liable to be dismissed from service in which event you will not be entitled to any notice of termination of service or salary in lieu thereof nor you will be entitled to gratuity or any other compensation or benefit. Provided, however, in case of dismissal from service under this clause, you will be given the opportunity of submitting written explanation and, where so considered necessary by the Company, you will be given the opportunity of personal interview also. POSITION AND STATUS Having regard to the nature of your duties and responsibilities and the benefits and facilities, as a member of management staff, you hold a position requiring initiative, direction and administration and supervisory abilities and management potentialities for future advancements to higher/top management positions in the Company. You must, therefore, at all times conduct yourself with exemplary behaviour for your subordinates/workmen in the Company. ANNUAL APPRAISAL The Company has the right to appraise your performance annually. The Company may discuss with you, your performance for the concerned year at the time when the said Appraisal Form is presented to you for your signature. You will pay proper regard to the annual appraisal and where so indicated, would improve your performance. GENERAL
(i) You shall during your employment with the Company obey all lawful orders given by the Company or your immediate superior or by any other duly authorised person or persons and shall devote your whole time and energy and attention to the business and interest of the Company and shall not engage in any other business or occupation in any capacity, whatsoever.
(ii) During the working hours you will devote all your time and energy to the performance on your duties and shall not indulge in any activity unrelated to Company's work during duty and working hours.
(iii) You will not engage or indulge in any political or any other activity which may be considered to be in conflict with the interest of the Company or which may in any manner harm the Company's image and status.
(iv) You will treat your salary and allowances as "Confidential". Further that you will protect Company's confidential information, which may come in your possession by reasons of your employment, to the best of your ability and shall not disclose in any manner, whatsoever, to any unauthorised person any information which is considered by the Company as 'proprietary' or 'confidential'.
(v) Your appointment in the Company will be subject to passing your medical examination conducted by the Company appointed doctor.
(vi) Your employment will be governed by the management personnel policies of the Company as presently in force and as may be amended from time to time by the Company. Any revision in your salary and allowances will be at the sole discretion of the Company.
(vii) You will fully abide by the instructions contained in the enclosed Circular headed as POLICY REGARDING CONFLICT OF INTEREST.
(viii) Any breach or disregard and/or non-compliance of any term of this contract of your employment will also be regarded as misconduct on your part. In case the above terms and conditions of service offered to you are acceptable to you, please sign your acceptance on the duplicate copy of this letter. Yours faithfully (Sd.)
SOHAIL AHMAD, GENERAL MANAGER, HUMAN RESOURCES cc: Payroll Accepted. (Sd.)
(Muhammad Tahir Khan.)"
18. The above document, when read as a whole, would indubitably show that ordinarily an employee once recruited after successful completion of his probationary period is entitled to continue in service till the age of 60 years except where he is removed earlier on the ground of misconduct or improper conduct. The employer has also retained the power to terminate the services of an employee in the exigencies of service. The question whether the termination of the appellants/petitioners' services was 'simpliciter' or 'dismissal in the garb of termination', necessitates an enquiry into facts which cannot be undertaken in these proceedings and that this aspect of the matter was not gone into by the Tribunal.
19. Resultantly, we allow Civil Appeals Nos.378 and 388 to 393 of 1999, convert Civil Petitions Nos. C.P. 1707 of 1998, 23-K to 32-K of 1999, 75 of 1999, 947 to 972 of 1999, 1147 of 1999 and C.P. 129-K of 2000 into appeals and by allowing them all, set aside the impugned judgments respectively and remit the cases to the Tribunal for disposal afresh on merits and in accordance with law in the light of the above observations. The parties Shall be entitled to produce additional material in support of their respective pleas, if so advised.
20. Civil Appeals Nos.1796 to 1798 of 1998 filed by the P.S.O. Are also allowed, the judgment of the Tribunal is set aside and the cases are remanded to the Tribunal for decision alongwith the connected matters in order to avoid contradictory findings.
Meanwhile, the employees/respondents in these three appeals, shall continue in service till the final decision by the Tribunal.
There will be no order as to costs.