' IRSHAD HASAN KHAN, C.J.---Through this common judgment we intend to dispose of Civil Appeals Nos. 367 to 378 of 2001, 613 to 637 of 2001, 648 to 655 of 2001, 985-986 of 2001, 1113 to 1124 of 2001 and 120 of 1999 and Civil Petitions Nos. 745 to 760 of 2001, 1263-1341 of 2001, 1877--1921 of 2001, 1926, 1934- -2067 of 2001, 1381 of 2001, 1459 of 2001, 2112 of 2001 and 1515 of 2001, which have arisen out of various consolidated/single judgments passed by the Federal Service Tribunal, Islamabad and Karachi (hereinafter referred to as the Tribunal) in respectively Appeals Nos. 69(K) of 1998, dated 27-5- 2000, 2464(K), 2465(K) to 2474(K) of 1997 dated 16-11-2000; Appeals Nos.573-K of 1999, etc. Dated 6-6-2000; Appeals Nos.1067-K of 1999, etc. Dated 25-5-2000 and 1209-K of 1999, dated 1-6-2000; Appeals Nos.2166-R of 1999 and 2178-R of 1999 dated 23-9-2000; Appeals Nos.2325-R of 1999, etc. And 70-71-R of 2000 dated 29-1-2001; Appeals Nos. 228-K of 1999, etc. Dated 23-1-2001; Appeals Nos.553-R(CE) of 2000, etc. Dated 21-3-2001; Appeals Nos.1268-R of 1999, etc. Dated 12-5-2000; Appeal No,190-K of 1998 dated 28-7-1998; Appeal No,798-K of 1999 dated 13-4-2000; Appeal No,2240-R of 1999, 2237-R of 1999 and 2308-R of 1999 dated 23-9-2000.
2. All these cases were heard together. However, in view of different backgrounds, each category of appeals/petitions has been separately dealt with and disposed of. C.As. Nos.366 to 378 of 2001 (Contract Employees)
3. Briefly stated, the facts of the above cases are that appellants were appointed as Medical Officers in the respondent-Company on contract basis initially for six months but on expiry of stipulated period, neither their contract was terminated nor the same was renewed. The appellants' services were, however, terminated when all of them had, more or less, served the Company for 11/2 to 21/2 years on the ground that their services were on contract basis. After exhausting departmental remedy the appellants approached the Tribunal for redress of their grievance. The Tribunal dismissed their appeals holding that the appellants were contract employees, therefore, their services could be terminated by the respondent-Company.
4. Leave to appeal was granted by this Court to. Consider the following points:
(i) As to whether services of the petitioners have been rightly terminated by the Company in view of the fact that they -have accepted their appointments on contract basis for a period of six months?
(ii) As to whether petitioners have attained status of confirmed employees after completion of initial period of six months because after this period the contract of their service was not terminated and no letter of fresh contract was issued by the Company. If so, to what effect?
'(iii) As to whether for non-termination of services of petitioner exactly after the expiry of initial period of six months their services will be governed by the Sui Southern Gas Company Limited Executive Services Rules?
(iv) What would be the effect of the judgments delivered by this Court in the cases of Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh (PLD 2001 SC 176), Engineer Narain Das and others v. Sui Southern Gas Company (Civil Petition No,1670 of 2000 etc. Decided on 2nd February, 2001) (2002 SCMR. 82), Abdul Samad and others v. Federation of Pakistan and others (C.Ps.Nos.436 to 444 of 2001 etc. Decided on 28th March, 2001) (2002 SCMR 71) and Civil ReviewPetitions Nos.79 of 2001 etc. Decided on 30th March, 2001 Sui Southern Gas Company v.
Narain Das and others.
5. Mr. Wasim Sajjad learned Senior AS.C. For the appellants in Civil Appeals Nos.367 to 378 of 2001 at the outset, read out appointment letter dated 23-10-1994 of appellant-Dr. Aftab Ahmed, to the following effect: "MEDICAL OFFICER ON CONTRACT ' Reference your application, we are pleased to offer you a contract assignment for our temporary requirement for new projects as a Medical Officer, subject to our receiving a satisfactory report on your health from our Medical Officer, for a period of six months only, extendable at the discretion of the Company, on the clear understanding that this assignment is without commitment to provide you regular employment in the Organization at any stage; on the following terms and conditions:
(1) You will receive a fixed salary of Rs,10,000 per month (all inclusive) during your contract assignment.
(2) You will be entitled to free medical facilities for yourself only.
(3) You may be posted for your assignment anywhere in Pakistan.
(4) Should you decide to accept our offer, please report for your temporary assignment to General Manager (P&A), Head Office, 4th Floor, Station Life Building No, 3, Dr. Ziauddin Ahmed Road, Karachi, within 15 days hereof, failing which this offer shall stand withdrawn." ' to contend that initial contract was for six months only, extendable at the discretion of the respondent-Company but neither the contract was renewed after six months nor the services of appellant were terminated, with the result that it ceased to be a contract simpliciter. He argued that in this eventuality, the Rules would take over, which are enforceable as has been held by this Court in Engineer Narain Das v. Sui Southern Gas Co. Ltd. (Civil Petition No,1670 of 2000) (2002 SCMR 82) that once the probation period of one year is over, the appellants would be deemed to have been absorbed as regular employees of the respondent-Company. He argued that it is a case of discrimination as well, inasmuch as, one Dr. Humaira Shaheen was appointed on the same terms on 4-12-1994, and though she is junior to at least two of the appellants herein, during her contract period she was absorbed on permanent basis on the ground that her performance was found satisfactory vide letter, dated July 19, 1998. His precise submission was that there is no distinction between the cases of the appellants and those of Engineer Naraindas (supra) and Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh (PLD 2001 SC 176), therefore, on the basis of ratio laid down in the precedent cases, the appellants are also entitled to be absorbed in the regular employment of the respondent-Company by treating their contract as probationary period, as has been done in the case of Dr. Humaira Shaheen. In support of his submissions, he referred to paragraph (h) of Grounds of Appeal before the Tribunal, which reads thus: "That immediately after termination of the services of the appellant and other Medical Officers whose services were also terminated on similar circumstances, there was a great shortage of Doctors for rendering medical services in the employees of the Corporation, as a result of which the Corporation is hiring the services of other Doctors already working in other hospitals namely, Dr. Asadullah Siddiqui, Dr. Mussarrat Hussain, Dr. Tehmina were hired from other hospitals."
' He also read out paragraph (i) of the Grounds of Appeal, which runs as under: "That during the pendency of the case of the appellant, as many as 5 Doctors of the respondent- Corporation have retired namely Dr. Aziz Qazi, Dr. Yousuf Zai, Dr. Imtiaz, Dr. Uqooli and Dr. Musavi.
The appellant could be reasonably, justly and legitimately fill the above vacancies and there was no reason to terminate the services of the appellant."
' Further: he referred to paragraph (q) of the Grounds of Appeal to contend that a number of Doctors who were appointed on contract basis were eventually absorbed on regular basis: The relevant paragraph is as follows: "That earlier a number of Doctors who were like the appellant appointed on contract basis were eventually absorbed on regular basis. Some of the Doctors so absorbed are (1) Dr. Gul Hassan, (2)
Dr. Mazhai Ahmed, (3) Dr. M.A. Chandio and (4) Dr. Riaz Ahmed."
6. We have also heard Mr. Abdul Hafiz Pirzada, learned Senior A.S.C. On 26-9-2001 in Civil Appeal No, 366 of 2001. This appeal also falls in the above category, in that, Dr. Anwar Sahto-appellant was appointed as Medical Officer in the respondent-Company on contract basis initially for six months.
He claims that on expiry of stipulated period neither his contract was terminated nor the same was renewed, therefore, he continued in service till he was terminated from service on the ground that his services were on contract basis. At the time of his termination he had served the Company for 11/2 years. After exhausting departmental remedy, the appellant approached the Tribunal for redress of his grievance. The Tribunal dismissed his appeal holding that the appellant was a contract employee, therefore, his services could be terminated by the respondent-Company.
7. Mr. Abdul Hafiz Pirzada argued that once the appellant was treated as civil servant under section 2-A of the Service Tribunals Act, 1973 (hereinafter referred to as the Act) and he acquired a statutory right of appeal before the Tribunal, the common law distinction of master and servant and statutory appointment had ceased to exist, in that, if it is not so, the provisions of section 2-A ibid would be rendered nugatory. He explained that it cannot be said that a person conferred with a statutory right of appeal as a civil servant is also governed by the law of master and servant and has a remedy in tort. He elaborated that when a person is deprived of a right and given another one under a provision of law, then such provision is to be construed liberally in his favour. He submitted that by virtue of section 2A, the distinction between various types of employment i,e, contractual, temporary, permanent or as trainee in Government has ceased to exist and a person aggrieved by an order of his removal from service, has a right to have his grievance adjudicated upon in a proper manner. In support of his submissions, he referred to WAPDA v. Khanimullah (2000 SCMR 879), wherein at page 881 of the report, it has been observed: "Nevertheless, under subsection (5) of section 25-A of the Industrial Relations Ordinance, 1969 in adjudicating and determining a grievance under subsection (4) thereof, the Labour Court was required to go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case. The words 'shall go into all the facts of the case' clearly signify that the Labour Court had full and complete powers to enter even into questions of facts and to arrive at its own conclusions regardless of there being no illegality of procedure in the domestic proceedings. A double check has been provided, one in the 'form of domestic inquiry to be held by an employer and the other in the form of a judicial determination by the Labour Court itself."
' His precise submission was that the Tribunal was duty bound to treat the appellant as civil servant and examine his case on merits as to whether there was justification for issuing the order of termination from service or not. His next submission was that in the instant case doctrine of promissory estoppel, as enunciated and dilated upon by this Court in a string of authoritative judgments, is fully attracted and that the respondent-Company is estopped by its own conduct to contend that the appellant was not a regular employee, therefore, it had no authority under the law to terminate his service without notice. In order to explain his standpoint further, Mr. Hafeez Pirzada referred to a portion of `Letter of Appointment' available at pages 65-66 of the Paper Book, which reads thus: "Reference your application, we are pleased to offer you a contract assignment for our temporary requirement of Sui Southern Gas Rehabilitation and Expansion Project (SSREP) as a Medical Officer, subject to our receiving a satisfactory report on your health from our Medical Officer, for a period of six months only, extendable at the discretion of the Company, on the clear understanding that this assignment is without commitment to provide you regular employment in the Organization at any stage." ' and contended that after the expiry of initial six months, the respondent-Company was obliged to either terminate his contract of service or enter into a fresh contract, which was not done and thus by its conduct the respondent-Company created a legitimate expectation in the mind of the appellant that since the project was not over and the respondent-Company is indulging into tremendous developmental works where its activities are on the increase as more gas fields are found, therefore, his contract service is being treated as a regular employee. He further contended that the appellant was appointed for a particular project i,e, Sui Southern Gas Rehabilitation and Expansion Project (SSREP) as a Medical Officer, which project is still continuing whereas in the termination letter dated 9-9-1997 it was stated that: "Pursuant to completion of projects, the requirement of Medical Officers has been reviewed and it has become necessary to retrench the surplus doctors", which is tantamount to wilful deception on the part of the respondent-Company as it did not state that that particular project for which services of appellant were required has come to an end. His precise submission was that under the doctrine of promissory estoppel the appellant had legitimate expectation, at least, to receive a show-cause notice before being terminated from service. To further reinforce his argument, he referred to R v. Secretary of State for the Home Department, ex parte Khan (1985) 1 All ER 40), relevant portion whereof at page 41 of the report reads thus: "A Home Office circular giving guidance to persons in the United Kingdom who wished to adopt a child from abroad stated that, although the immigration rules did not permit a foreign child to enter the United Kingdom for the purposes of adoption, the Secretary of State would in exceptional circumstances exercise a discretion to allow a child to enter the United Kingdom for adoption if certain specified criteria were met. The circular a set out the procedural steps to be taken when such an application was made and stated, inter alia, that when an application was referred to the Secretary of State he would make certain inquiries within the Department of Health and Social Security whether there were any reasons for an adoption order to be refused by the Court. The applicant and his wife, who were settled in England, wished to adopt a relative's child who lived with its natural mother in Pakistan. The applicant obtained a copy of the Home Office circular and applied for an entry clearance certificate for the child. The application together with the entry clearance officer's report on the child was referred to the Secretary of State. There was nothing in the report to indicate that the criteria set out in the circular would not be met. However, the Secretary of State did not make any inquiries within the Department of Health and Social Security or apply the criteria set out in the circular, but instead decided the application by applying different criteria, namely the, criteria for deciding whether to admit for settlement children who were already adopted by persons settled in the United Kingdom, and applying those criteria he decided that the child should not be given leave to enter. The applicant applied for judicial review by way of an order of certiorari to quash the Secretary of State's decision refusing entry clearance for the child, contending that he had a legitimate expectation arising out of the terms of the circular that the criteria and procedure there set out would be followed. The Secretary of State contended that he had an unfettered discretion regarding the grant of leave to a child to enter for the purpose of adoption and in exercising that discretion he was entitled to take into account considerations other than those stated in the circular."
"Where a member of the public affected by a decision of a public authority had a legitimate expectation based on a statement or undertaking by the authority that it would apply certain criteria or follow certain procedures in making its decision, the authority was under a duty to follow those criteria or procedures in reaching its decision, provided that the statement or undertaking in question did not conflict with the authority's statutory duty. Thus, where the Secretary of State undertook to allow persons to enter the United Kingdom if certain conditions were met he could not resile from that undertaking without affording interested persons a hearing and then only if the overriding public interest required it. Accordingly, since a recipient of the Home Office circular, such as the applicant, would have a reasonable expectation that the criteria and procedures there set out would be followed and since (per Dunn, L.J) those criteria and procedures in effect constituted rules made by the Secretary of State for deciding applications for entry, it followed that, vis-a-vis a recipient of the circular, the Secretary of State could only apply different criteria and procedures in regard to granting leave to a child to enter for the purpose of its adoption if he first gave the recipient of the circular a full opportunity of making representations why in his particular case criteria and procedures different from those set out in the circular ought not to be followed. In the circumstances the Secretary of State had acted unfairly and unreasonably in deciding the applicant's application for entry clearance for the child by applying different criteria from those set out in the circular. Accordingly", the appeal would be allowed and the refusal of entry clearance quashed."
' He read out headnote (h) at page 983 of Messrs Pakistan State Oil Co. Ltd. v. Muhammad Tahir Khan (PLD 2001 SC 980), which reads thus: "Art. 212---Service Tribunals Act (LXX of 1973), S.2-A--Appeal to Supreme Court---Service contract between employer and employee, as a whole, indubitably showed that ordinarily an employee once recruited after successful completion of his probationary period was entitled to continue in service till the age of 60 years except where he was removed earlier on the ground of misconduct or improper conduct---Employer, in the said contract, had also retained the power to terminate the services of an employee in the exigencies of service--Question as to whether the termination of employee's services was simplit iter' or 'dismissal in the garb of termination' necessitated an enquiry into facts which could not be undertaken by the Supreme Court at appellate stage--- Service Tribunal had not gone into the said aspect of the case---Supreme Court, in circumstances, remitted the cases to the Service Tribunal for disposal afresh on merits and in accordance with law in the light of the observations of the Supreme Court--Parties were also permitted to produce additional material in support of their respective pleas if so advised."
' Also cited headnotes (c), (e) and (g) of Sui Southern Gas Company Ltd. v. Engineer Naraindas (PL'
D 2001 SC 555), which read as follows: "---Ss.2-A & 5---If the services of any person covered by S.2-A, Service Tribunals Act, 1973 were wrongly/illegally terminated, his grievance could be appropriately remedied by the appropriate Service Tribunal under S.5, Service Tribunals Act, 1973."
"---Ss. 4 & 5---Termination of service---Appeal---Jurisdiction of Service Tribunal---Scope---Rule of master and servant being a common law concept which fell in the realm of contract, it was wrong to contend that on the theory of master and servant relationship the Service Tribunal was not authorised to reinstate an employee whose services had been illegally terminated."
"---Retrenchment---Scope---Termination of services of the employees was not only found wrongful/illegal but also discriminatory qua another particular section of the employees belonging to a particular region-Employer having also advertised vacancies in the Press, case of employer, therefore, was not that of retrenchment with the result that employer could ill-afford to rely on its alleged impecunious circumstances in that behalf."
' Reference was then made to headnote (a) of The Managing Director, Sui Southern Gas Co. Ltd. v.
Saleem Mustafa Sheikh (PLD 2001 SC 176), which reads as under: "---Ss.2-A & 4---Sui Gas Transmission Company Limited Service Rules, 1982, Rr.
2.17, 6.1, 6.2 & 6.3-Constitution of Pakistan (1973), Art. 2I2(3)---Termination from service -Non- statutory rules, enforcement of -Jurisdiction of Service Tribunal---Principle of estoppel--- Applicability---Respondents *ere employees of the petitioner-Company who were inducted as trainee engineers, despite working for more than four years they were not confirmed and their services were terminated --Service Tribunal allowed appeals of the respondents/employees and directed the petitioner-Company to issue the letter of absorption to the respondents-Contention of the petitioner-Company was that rules framed by the company were non-statutory, therefore, the Tribunal had no jurisdiction to adjudicate the matter---Validity---Petitioner was a Company owned and controlled by Federal Government, therefore, it could not be expected of the Government to enact rules and then not to enforce the same or to violate merely because the rules did not have the status of statutory rules-Factum of the rules being statutory or non-statutory would not debar Service Tribunal to enforce the same---Petitioner-Company, under the principle of general law of estoppel, could not be allowed to object to the invocation of the rules by the employees/respondents and as such could not be permitted to violate and dishonour their commitments/undertaking given by it,--Service Tribunal could not be condemned in enforcing the rules which the Board of Directors of the petitioner-company had framed---Service Tribunal had enforced the application of the rules and had not flawed in any way---Neither there was any legal flaw in the judgment of the Service Tribunal, nor there was any substantial point of public importance-Leave to appeal was refused by Supreme Court."
' Mr. Hafeez Pirzada further contended that the whole exercise of termination from service of its employees in bulk undertaken by the respondent-Company was irrational or totally mala fide and that it was duty bound to exercise its discretion fairly with propriety. He added that discretion must not suffer from illegality or irrationality and it must be exercised with procedural propriety. In support of his submission, the learned counsel referred to Council of Civil Service Unions and others v. Minister for the Civil Service (1984) 3 All ER), at page 950 whereof it reads as follows: "My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the ground on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second `irrationality' and the third `procedural impropriety'. That is not to say that further devilment on a case by case basis may not in Court of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of `proportionality' which is recognized in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned with suffice. By 'illegality' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the Judges, by whom the judicial power of the State is exercisable.
"By 'irrationality' I mean what can be now be succinctly referred to as Wedensbury unreasonableness' (See Associate Provincial Picture Houses Ltd. v Wednesbury Corp. (1947) 2 All ER 680, (1948) 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that Judges by their training and experience should be well-equipped to answer, or else there would be something badly wrong with our judicial system. To justify the Court's exercise of this rule, resort I think is today no longer needed to Viscount Radcliff's ingenious explanation in Edwards (Inspector of Taxes) v. Bairstow (1955) 3 All ER 48, (1956) AC 14 of irrationality as a ground for a Court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision- maker. 'Irrationality' by now can stand on its own feet as an accepted ground on which a decision may be attacked by judicial review . "
' He submitted that the need for doctors in the respondent-Company is so enormous that presently there are 65 doctors on its panel. He referred to a report by Directorate of Commercial Audit, Government of Pakistan available at pages 122 to 132 of the Paper Book to show malpractices of the doctors and the administration of the respondent-Company, which, according to report, is making money due to private doctors being on its panel. He also referred to pages 110 to 113 showing lists of doctors who have been engaged on retainership basis: He presented the following chart showing names of doctors junior to the appellant, the doctors who retired during the pendency of the case of the appellant and those doctors who though were contractual medical officers like the appellant but have been absorbed into regular employment of the respondent-Company.
1. List of serving medical officers who are junior to the appellant.
(a) Dr. Aashir Dabir s/o former M.D Mr. Dabir.
(b) t, . Salma
(c) Dr. Mussarat
(d) Dr. Asadullah Siddiqi
(e) Dr. Raza Gohar
(f) Dr. Tahmeena
2. List of doctors who retired during the pendency of appellant's case.
(a) Dr. Aziz Qazi
(b) Dr. Yousaf Zai
(c) Dr: Imtiaz
(d) Dr. Uquali
(e) Dr. Musavi
3. List of doctors appointed on contract basis, eventually absorbed on regular basis.
(a) Doctor Gul Hassan
(b) Doctor Mazhar Ahmad
(c) Doctor M.A Chandio
(d) Doctor Riaz Ahmad
(e) Doctor Ijaz Ahmad ' At the close of his arguments Mr. Abdul Hafeez Pirzada pointed out that this is also a case of discrimination, inasmuch as, the respondent-Company has absorbed in its regular cadre one Dr. Humaira Shaheen, who was also appointed as medical officer on contract basis.
8. Mr. Makhdoom Ali Khan, learned Attorney-General for Pakistan, on Court's notice, addressed his arguments on behalf of the Federation as well as the respondent-Company in Civil Appeal No, 366 of 2001: on 26-9-2001. He also submitted that although he was not present on the previous dates of hearing yet with the assistance of Mr. M. Nawaz Bhatti, learned Deputy Attorney-General he had taken note of the submissions made by the learned counsel for the parties in all these cases, which can be divided into various categories, inasmuch as, there is a set of petitions relating to contract employees and the other relates to trainee engineers/management trainees in whose case - passing of test conducted by IBA is being required as a condition precedent for their permanent absorption in the employment of the respondent-Company. Third category relates to temporary employees or staffers appointed for a particular period of time. Then there is a group of petitions, which are barred by time and yet another category is of those cases where absorption into service instead of reinstatement has been sought in view of the judgment of this Court in Abdul Samad (supra). He argued that the cases of Naraindas, Saleem Mustafa Sheikh and Abdul Samad (supra), related to trainee engineers and not to contractual-employees or ,employees on temporary assignments, therefore, the latter two categories have to be examined by this Court separately to give findings on this issue as the said categories are not hit by the decision in the precedent cases.
He submitted that in Naraindas (supra) there is a specific finding that the applicability of rules 6.1, 6.2 and 6.3 of the Rules was not objected to at any of the relevant stages, therefore, it was too late to raise this question before this Court. Similarly, in Abdul Samad (supra) it was specifically observed on page 21 of the judgment that Rules 6..1, and 6.3 did not apply to contract employees and were applicable only to those persons who were in Executive Service of the respondent- Company, was a point which was not raised before the Tribunal or in the arguments or even in the concise statement. There is a further finding that even the point of limitation was not taken before the Tribunal and, therefore, this Court declined to examine that point on the ground that the same was being raised for the first time before it. He submitted that these are some distinguishing features, of the earlier cases, which this Court may examine for the purposes of resolving these causes. He submitted that in Naraindas, Saleem Mustafa Sheikh and Abdul Samad (supra), specific allegations as to discrimination were made which this Court may consider, since this question has also been raised in these proceedings in a particular category of present causes alleging that one or two persons have been absorbed on permanent basis. He submitted that this Court has laid down in the precedent cases a universal principle that the management has a right either to absorb every one or to absorb no one at all or absorb only a few and that in some of these causes, initially the orders of termination, were passed simpliciter, which were struck down by the High Court as also in some other cases relating to PIA employees on the ground that sufficient reasons were not given for the same and when reasons were given this Court held that if reasons tended to stigmatize that person particularly in the show-cause notice then such termination cannot be based on those reasons. To support his arguments, he referred to PIAC v. Koural Channa (1999 PLC (C.S.) 1539). He submitted that under Service Rules or even under the general law an employer/Corporation may have the power to terminate the services of its employees in the exigencies of service without issuing a show-cause notice.
9. Ch. Muhammad Jamil, learned counsel appearing on behalf of the respondent-Company contended that the appellants were appointed on contract basis for a specific project and on completion of that project their services could be terminated in terms of the contract of their employment and further that their case is distinguishable from the cases of Saleem Mustafa Sheikh and Engineer Naraindas (supra).
10. We have thoroughly considered the arguments of the learned counsel for the parties and scrutinized the entire material available on record. In the light of the submissions made by the learned counsel for the parties as well as the points noted in the leave granting orders, the basic question which requires consideration is whether the appellants had attained status of confirmed employees after completion of initial period. Of six months because thereafter the contracts of their services were neither specifically terminated nor extended. Admittedly, it is the case of both sides that the initial appointment of the appellants stemmed out of a contract, which was to come to a close after the expiry of period of six months. The overall view in these causes further, lends support to the non-applicability of the Sui Southern Gas Company Limited Executive Service Rules (hereinafter referred to as the Rules), in that, the judgments delivered by this Court in Saleem Mustafa Shaikh and Engineer Naraindas (supra) did not proceed on treating their initial appointments on contract basis. The judgments rendered in the precedent cases are thus distinguishable and do not apply to these causes on all fours. This observation also applies squarely to the contentions raised by Mr. Wasim Sajjad to the effect that his clients are also entitled to be absorbed' in the regular employment of the respondent-Company by treating their contract period as probationary period as has been done in the case of Dr. Humaira Shaheen. The period of six ntbnths being the mainstay of the contracts in question, cannot be equated with `probationary period' by any stretch of the imagination. Needless to mention that the expressions 'contract period' and `probationary period' have distinct connotations altogether with the result that the same are of little help to the appellants. The learned Attorney-General was quite right in contending that the appellants having been appointed on contract basis for a specific project and their services having been terminated on the completion of the projects in question, could be dealt with by terminating their contracts of service within the contemplation of their respective appointment letters. Reference in this behalf may be made to Agha Salim Khurshid v. Federation of Pakistan (1998 SCMR 1930), wherein at placitums 'B' and 'C' it was observed as under: " The contract of service, under which the two appellants were appointed, specifically provided that their appointments shall be liable to termination on 3 months' notice or 3 months' salary in lieu thereof on either side without assigning any reason. Such a contract, in our view, does not create any vested right in the appointee so as to make him entitled to notice before termination of the contract of service............................................................................ ".
"7. Since the services of appellants were governed by the terms of contract which they executed at the time they entered the employment, their services could be terminated in accordance with the terms contained in their service contract which provided 3 months' notice or 3 months' salary in lieu of the notice,"
' While discussing the scope of section 2-A inserted in the Service Tribunals Act, 1973, this Court in Messrs Pakistan State Oil Co. Ltd. v. Muhammad Tahir Khan (PLD 2001 SC 980) observed that 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 their terms and conditions of service. It was further held that where the employees were not civil servants within the meaning of the Civil Servants Act, 1973 and where no statutory or service rules were framed by the employer/Corporation, the terms and conditions of service of such employees were wholly regulated by their contracts of employment and after insertion of section 2-A, such employees had a right to approach the appropriate Service Tribunal for protection of their rights of employment flowing from such contracts of service. The relevant observations at page 1005 of the report are reproduced hereunder: "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."
11. Be that as it may, the fact remains that the contractual appointments of the appellants were never transformed into regular appointments through any formal order/s. 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 periods 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 over. Seen from another angle the contract appointments in these cases continued to hold the field throughout.
12. The effect of the above findings is that the cases of Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh (PLD 2001 SC 176), Engineer Narain Das and others v. Sui Southern Gas Company. (Civil Petition No,1670/2000 etc., decided on 2nd February, 2001) (2002 SCMR 82), Abdul Samad and others v. Federation of Pakistan and others (C.Ps. Nos.436 to 444 of 2001 etc., decided on 28th March, 2001) (2002 SCMR 71) and Civil Review Petitions No,79' of 2001 etc. Decided on 30th March, 2001 Sui Southern Gas Company v. Narain Das and others (PLD 2001 SC 555) do not advance the cause of the appellants herein.
13. Messrs Wasim Sajjad and Abdul Hafeez Pirzada vehemently argued that discriminatory treatment has been meted out to the appellants, inasmuch as, Dr. Humaira Shaheen's case was at par with those of the appellants, nevertheless her services were regularized. The above contention is misconceived because in the case of Dr. Humaira, her contract period was not considered as probationary period. On the contrary, she was appointed on regular basis through formal letter, dated 19th July, 1998, which notwithstanding her satisfactory performance during the contract period, is to be treated as a fresh appointment on regular basis.
14. It may be reiterated that prior to incorporation of section 2-A, it was settled law that an employee of a corporation in the absence of violation of law or any statutory rule could not press into service Constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service. His remedy against wrongful dismissal/termination or reduction in rank, etc., was to claim damages. However, after insertion of section 2-A ibid an employee of Corporation/ Company covered thereunder can approach the appropriate Service Tribunal for redress of his grievance against wrongful dismissal/termination etc. Even in the absence of violation of law or any statutory or non-statutory rule in that regard. It is also well-settled that the Tribunal, seized of the matter, can go into all questions of facts and law for determining whether the order passed by Department/Corporation is justified on facts as well as on law. In case of violation of a statutory/non-statutory rule or instruction having the force of law, appropriate orders can be passed by the Tribunal rectifying the wrong done to the employee. However, as observed in the preceding paragraphs where the grievance flows from a contract of service not governed by any statutory rules or departmental rules having the force of law, the jurisdiction of the Tribunal is confined to examination of the grievance of the dismissed/terminated employee on the touchstone of the terms and conditions of the contract of service/letter of appointment. If in a given case the letter of appointment envisages termination of an employee on one month's notice the Tribunal has no jurisdiction to alter the terms and conditions mutually agreed upon between the employer and the employee while exercising its jurisdiction in,terms of section 2-A ibid, which has been intended to provide a forum even to those employees of a Corporation/statutory body, etc. Who are recruited on contract basis and in appropriate cases they could be reinstated in service in accordance with the terms of their contract of service or the rules applicable to them, as the case may be.
15. Resultantly, the above appeals fail and are hereby dismissed. No costs. CIVIL APPEALS NOS. 613 to 637 of 2001 (Temporary Employees)
16. Concisely stated, the facts are that the appellants herein were employed as Helpers, Meter Readers, etc: on temporary basis by the respondent-Company. However, their services were terminated when they had served the respondent-Company for more than an aggregate period of three/four years. On appeal, the Tribunal dismissed their appeals holding that they were appointed on temporary basis for a temporary assignment in respondent-Company's project on fixed emoluments, therefore, their services could be terminated on completion of the particular project.
17. Leave to appeal was granted to consider the following points:
(i) As to whether services of the petitioners have been rightly terminated by the Company in view of the fact that they have accepted appointments as temporary employees of Sui Southern Gas Company Rehabilitation and Expansion Project?
(ii) As to whether petitioners have attained status of permanent employees after serving the company for more than a period of 3/4 years because during this period their services were not terminated nor fresh letters of appointment as temporary employees were issued by the Company. If so, to what effect?
(iii) As to whether in view of the fact that petitioners have served for a continuous period of more than 3/4 years, therefore, their. Services will be governed by the Sui Southern Gas Company Limited Executive Services Rules?
(iv) What would be the effect of the judgments delivered by this Court in the cases of Managing Director, Sui Southern Gas Company Ltd. v. Saleem Mustafa Shaikh (PLD 2001 SC 176), Engineer Narain Das and others v. Sui Southern Gas Company (Civil Petition No,670 of 2000 etc., decided on 2nd February, 2001) (2002 SCMR 82), Abdul Samad and others v. Federation of Pakistan and others (C.Ps. Nos.436 to 444 of 2001 etc., decided on 28th March, 2001) (2002 SCMR 71) and Civil Review Petition No,79 of 2001 etc. Decided on 30th March 2001 Sui Southern Gas Company v. Narain Das and others PLD 21001 SC 555.
18. Mr. Muhammad Akram Sheikh, learned Senior A.S.C. Addressing the Court on behalf of appellants in Civil Appeals Nos.613 to 637 of 2001 argued that while disposing of Engineer Naraindas (supra) this Court through the same judgment disposed of C.P. No, 403-K of 2000 (Kishu Mal v. Sui Southern Gas Co. Ltd.) alongwith C.Ps. Nos.401-K, 407-K, 408-K and 406-K of 2000, although Naraindas was an Engineer and the above petitioners were staffers i,e, the same category of employees of which this Court is hearing the instant appeals. He pointed out that though the respondent-Company had filed a reyiew petition against judgment in the case of Engineer Naraindas (supra), no review petition was filed against these petitioners. He argued that constitutional doctrine of stare decisis fully applies to, these cases, in that, this Court, in the precedent case, examined and found no distinction between the cases of engineers and staff members, which is now a past and closed transaction, inasmuch as, these cases had already been linked and decided and the judgment passed in them had acquired finality as neither any review had been filed against this judgment nor the same had been treated differently and that the mere fact that these appeals were dismissed for non-prosecution on the day when case of Naraindas (supra) was taken up and heard, due to the reason that the learned counsel could not reach from Karachi, a different treatment cannot be meted out to the appellants in this case. His precise submission was that these appeals, in a way, had already been decided by this Court in Naraindas (supra), inasmuch as, the instant appeals were listed for hearing alongwith other appeals in the precedent case but as the learned counsel could not reach from Karachi, these petitions were dismissed for non-prosecution but later, the same were restored and leave to appeal was granted.
He pointed out that the respondent-Company had absorbed Mr. Kishu Mal, petitioner in C.P.
No,403-K of 2000 above, in its permanent employment as Meter Reader in view of the judgment in Naraindas (supra) vide its Letter No,GM(HR)-7-1/TA-551/6, dated 4-4-2001, a copy whereof has also been placed on record. He next argued that the impression, which the Tribunal had taken, probably was that there were no rules governing the staff of the respondent-Company, which in fact, is not correct. In support of his contention, he placed on record a copy of the rules/instructions governing the staff of the respondent-Company. He read out a passage from page 8 of these Rules, to the effect: "VIII-CLASSIFICATION OF WORKMEN The provisions of Order I of the West Pakistan (Standing Orders) Ordinance, 1968 are as under:--
(a) ....................
(b) A 'Permanent Workman' is a workman who has been engaged on work of permanent nature likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation including breaks due to sickness, accident, leave, lock-out strike (not being an illegal lock-out or strike) or involuntary closure of the establishment and includes a Badli who has been employed for a continuous period of three months or for one hundred and eighty-three days during a period of twelve consecutive months." and contended that the Tribunal has not noticed the same, which makes the case of the appellants herein better than the case of engineers whom this Court granted relief under the "Sui Southern Gas Company Limited Executive Service Rules" because under the above-quoted provisions whosoever completes nine months in service shall be a permanent workman. He added that this Court in the judgment in Naraindas (supra) had referred to the case of Mrs. M.N.Arshad v.
Miss Naeema Khan (PLD 1990 SC 612), wherein it was held that non-statutory Rules are enforceable against the department by the Tribunal. He argued that equal protection guaranteed under the Constitution to every citizen should be afforded by this Court to the appellants herein. He further contended that no counter-affidavit or concise statement or document has been filed in response to the leave granting order and after the same no document has been filed indicating any political interference in the appointment of the appellants. He went on to say that no document whatsoever has been filed supporting the inconsistent argument that there was no project at all and that the appointments were made purely on temporary assignment for a particular project. He lastly contended that the order of termination does not qualify for sustenance and the Tribunal should have struck it down or it should have recorded reasons for not striking down the same, which are 'lacking. In support of his submissions, he referred to paragraph 16 of the judgment passed by this Court in Sui Southern Gas Company Ltd. v. Engineer Naraindas (PLD 2001 SC 555), which reads as under: "16. Mr. Muhammad Akram Sheikh, concluded his arguments by referring to Chandra Kumar v.
Union of India (1997) 3 SCC 261; Gunton v. London Borough of Richmond upon Thames (1980) 3 All ELR 577 and R v. Civil Service Appeal Board, Ex parte Bruce (1988) 3 All ELR 686 and contending that there is enough public law element in Government employment where the Court has unfettered powers to restore the employment of a servant. This Court need not go into master and servant rules where (i) it is public corporation and (ii) the employment is not governed by a contract simpliciter. He argued that here the employment is not governed by a contract. It is governed by non-statutory rules. The basic distinction is that the petitioner-Company is a public corporation, and therefore, the judgment under review does not qualify for being interfered with in these proceedings."
19. Ch. Muhammad Jamil, learned A.S.C. Rebutting the arguments of Mr. Muhammad Akram Sheikh argued that the appointments in question were invalid from the very inception, in that, the appellants were politicali appointees and they were inducted into service on temporary basis against projects which never existed. In the alternative, he argued that if they were appointed for a particular project, their assignments automatically stood terminated with the completion of the project concerned. He respectfully argued that the implications of rule 6(2) of the Service Tribunals (Procedure) Rules, 1974, which laid down the procedure as to how the pleadings regarding mala fide, etc. Were to be worded, were not considered. His precise submission was that principle of master and servant was applicable in. The above cases, therefore, the appointments of the appellants could be terminated at any time in terms of their contract of employment. He further submitted that after insertion of section 2-A in the Service Tribunals Act, 1973, the Tribunal could give them only that relief which flowed from their contract of service. CIVIL APPEALS NOS. 64R to 655 of 2001 (Temporary Employees)
20. Facts of these cases, succinctly stated, are that the appellants were appointed on temporary basis. Their services were terminated on 26-11-1997 but on directions by High Court of Sindh they were reinstated. Again, their services were terminated on 10-3-1999 against which they went to High Court of Sindh at Karachi but their Constitution petitions were dismissed. They approached this Court and it was held that services of the appellants could not be terminated without issuing show-cause notice to them. The appellants were reinstated into service on 9-7-1999 and were issued show-cause notices on 16-7-1999. The appellants replied to show-cause notices on 26-7- 1999. But they were terminated on 30-7-1999 and against their termination, they filed appeal before Tribunal on 30-10-1999.
21. The Tribunal dismissed their appeals being barred by time on the ground that if there was no provision or rule to prefer an appeal/representation to the competent departmental authority prior to filing appeal before the Tribunal, then the limitation for filing appeal before it was 30 days. It also dismissed the appeal of Nazir Hussain Bhatti, appellant in Civil Appeal No, 655 of 2001 on the ground that his departmental appeal was time-barred, therefore, his appeal before it was incompetent. On merits, it was held that since they were appointed for a specific project and no statutory/non-statutory rules existed governing their terms and conditions of service, therefore, their services could be terminated in accordance with the terms of their appointment letters. In connected Appeal No, 655 of 2000, however, the appellant was appointed on temporary basis. His service was terminated on 28-10-1997. Tribunal dismissed his appeal holding that though he was terminated from service on 28-10-1997, he did not approach the Tribunal within time and went to High Court, a wrong forum, therefore, his appeal before the Tribunal was barred by time.
22. Leave to appeal was granted to see whether the instant cases being identical with the cases of Engineer Naraindas v. Sui Southern Gas Co. Ltd. (Civil Petition No, 1670 of 2000) (2002 SCMR 82) and The Managing Director, SNGC Ltd. v. Saleem Mustafa Sheikh (PLD 2001 SC 176), the Executive Service Rules would apply to them as well.
23. Hafiz S. A. Rehman, learned Senior A.S.C. Representing appellants/petitioners in Civil Appeals Nos. 648 to 655 of 2001 argued that in the cases of Saleem Mustafa- Sheikh, Engineer Naraindas and Nazeer Ahmad (supra), the Tribunal as well as this Court had taken into consideration the question of limitation and delay of 105, 129 and 96 days respectively was condoned, whereas in the present cases 30 days' delay was not condoned. In support of his contention, he referred to paragraph 22 of the judgment dated 13-4-2001 passed in Appeal No,253(K) of 1999 (Nazeer Ahmed's case), reproduced above. He, in addition to adopting the arguments of Mr. Wasim Sajjad, referred to the observation of this Court in Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185), which reads as under : "16. In our view, it will be just and proper to remand the case to the Tribunal with the direction to re- examine the above case after notice to the affected persons and to decide the same afresh in the light of above observations. We may observe that if the Tribunal or this Court decides a point of law relating to the terms of service of a civil .Servant which covers not only the case of the civil servant who litigated, but also of other civil servants, who may have not taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that the benefit of the above judgment be extended to other civil servants, who may not be parties to the above litigation instead of compelling them to approach the Tribunal or any other legal forum."
He also referred to the case of Ahmad Ali and others v. Government of N.-W.F.P. Through Chief Secretary and others (1998 SCMR 183) wherein the reasons asserted in application for condonation of delay had not been controverted by respondent and appellant's reasons for not filing appeal within time being sufficient and cogent, delay in filing appeal was condoned. Reference was also made' to Syed Imran Raza Zaidi, Superintending Engineer, Public Health Engineering Circle-I, Gujranwala v. Government of the Punjab through Services, General Administration and Information Department, Punjab Secretariat, Lahore (1996 SCMR 645), relevant portion whereof makes the following reading: "Order of Service Tribunal impugned in appeal also forming subject-matter of a connected appeal which was within time, leave was granted in both the petitions to consider identical question coupled with the fact that respondent did not press objection now being raised, at the time of grant of leave although he was duly represented by' counsel who was present in Court, therefore, it would not be fit and proper to dismiss such appeal on ground of limitation. Delay in filing appeal was thus, condoned by Supreme Court in the interest of justice."
' Also cited the case of Ghulam Sarwar Bhutto v. Chief Secretary to Government of Sindh and others (2000 SCMR 104) to refer the following observations: "In the present case Service Tribunal while dismissing the appeal of the employee had proceeded on an assumption that section 4 of the Sindh Service Tribunals Act was applicable in the case of the employee. Although the procedure, as provided by section 4, was not followed in this case by the employee as appeal before the Tribunal was not filed within the period of limitation as provided by the said section, but section 4 is applicable only to civil servants and not to persons who invoke jurisdiction of the Tribunals by virtue of deeming clause inserted in Service Tribunals Act or similar Provincial enactments. The Tribunal had failed to notice that such amendments whereby employees of a Corporation were to be deemed to be civil servants had been made only in the Service Tribunals Act, both Federal as well as Provincial, but corresponding amendments had not been made in the Civil Servants Act. Therefore, the Legislature had only intended to provide a remedy for redressal of grievances to persons serving in corporations owned or controlled by the Federal or a Provincial Governments but the other terms and conditions applicable to civil servants were not intended to be made applicable to such persons. Consequently, the period of limitation, as provided in section 4, which was applicable only to civil servants, could not be made applicable to person who had been declared as such by the said deeming provisions in the Service Tribunals Act as right of a departmental appeal may not be available to them as provided for in case of .a civil servant."
' He argued that after insertion of section 2-A in the Service Tribunals Act, the Tribunal was not clear with regard to its jurisdiction. Thousands of appeals were dismissed on the ground that the Tribunal had no jurisdiction. It was only when this' Court announced the judgment in Syed Aftab Ahmed v.
K.E.S.C. And others (1999 SCMR 197) that the Tribunal assumed its jurisdiction. The relevant portion reads as under : "...In our view, it is not necessary for an employee working in any of the organizations covered by section 2-A that he should also come within the ambit of definition of the 'civil servant' given in section 2(b) of the Act of 1973. The employees of the various Authorities, Corporations etc. Mentioned in section 2-A have been treated in the service of Pakistan for limited purpose of providing remedy by way of appeal to them against an order of which they may feel aggrieved."
' Reference was also made to the following observation in the case of Azimullah, Ex-Inspector v.
Chairman, Board of Trustees, Abandoned Properties Organization,. Cabinet Secretariat; Cabinet Division, Islamabad and 2 others (2001 PLC (C.S.) 358): "3. Hafiz S. A. Rehman, learned Senior Advocate Supreme Court in support of this appeal, contended that undoubtedly as a result of insertion of section 2-A in the Act on 10-6-1997, the employees of Corporations/Organizations being run and controlled by the Federal Government, were declared to be civil servants for the purpose of availing remedy of appeal before the Tribunal provided under the Act but it is also an admitted position that until decision of this Court in the cases of Muhammad Afzal v. KESC (1999 SCMR 92) and Aftab Ahmed v. KESC (1999 SCMR 197), the view prevailing with the Tribunal was that the provisions of section 2-A of the Act were retrospective and as such a person who has been dismissed from service prior to insertion of section 2-A in the Act was not entitled to avail of the remedy of appeal providing under the Act."
24. Ch. Muhammad Jamil,. Learned A.S.C. Contended that as the Tribunal had failed to exercise its discretion in condoning the delay, therefore, the same is not open to scrutiny by this Court.
C.Ps. Nos. 1877 to 1921, 1926 and 1934 to 2067 of 2001 (Temporary Employees)
25. Brief facts are that the petitioners were appointed in different capacities such as Meter Readers, Assistants, Junior Clerks, Drivers, Helpers and of similar cadre of employment on a 'temporary assignment' on 16-1-1995. Their services were terminated on 28-10-1997 with effect from 31-10-1997.
The petitioners were reinstated into service under the orders of the High Court of Sindh vide letter dated 21-10-1998. However, their services were again terminated vide letter dated 7-12-1998. The petitioners, after exhausting their departmental remedy, approached the Tribunal by filing appeals for redress of their grievances.
26. Tribunal while dismissing their appeals, held that since petitioners were appointed for a Project Work and their services were terminated on completion of Project, therefore, in view of the following observation made by this Court in WAPDA v. Khanimullah (2000 SCMR 879) their services could be terminated: "The employees were employed on work-charged basis against a specific project, therefore, on completion of work on the said project, their appointments could be terminated by the competent authority. "
' Hence these petitions for leave to appeal.
27. Mr. Wasim Sajjad, learned counsel appearing in support of Civil Petitions Nos. 1877 to 1921, 1926 and 1934 to 2067 of 2001 argued that relief was refused in these petitions on the ground that the petitioners were civil servants for the purposes of Service Tribunals Act, 1973 and because there were no service rules, therefore, the Tribunal could not assume jurisdiction in their matter. He argued that admittedly the petitioners are workmen and are covered under certain laws, yet the Tribunal refused to examine their cases in the light of those laws under the erroneous view that a civil servant has no protection under such laws. He further. Argued that the petitioners/workmen have been declared civil servants only for the purpose of providing them a forum i,e, Service Tribunal having exclusive jurisdiction for their grievances in relation to terms and conditions of their services but they do not cease to have the protection of a number of labour laws which exist in the field e.g. West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance No, VI, 1968, Industrial. Relations Ordinance, 1969, Factories Act, 1934 etc. Rebutting the argument on behalf of the respondent-Company that master and servant rule shall apply in the instant cases, Mr. Wasim Sajjad vehemently contended that hundred-year old master and servant rule has an element of personal relationship, which has been taken away by the advent of multi-national companies, corporations and modern governmental set-up, and that in due course of time, the law has also developed, in that, relief has been given against Government on the basis of principles of law, justice, equity, proportionality, legitimate expectancy as also in cases of discrimination, therefore, once the Tribunal comes to the conclusion that there is violation of any of the above principles, the master and servant rule will stand displaced and the Tribunal will have jurisdiction to intervene under section 5 of the Service Tribunals Act, 1973. He then presented a chart showing data of profit and loss during the last four years, to contend that the respondent- Company was earning huge profits for the last four years. He also presented before the Court a portion of the 45th Annual Report, 1999 of the respondent-Company to show that several projects are still in progress. He stated that appeals before Tribunal of all the petitioners herein were dismissed except one and referred to para.19 of the judgment dated 13-4-2001 passed by the Tribunal in Appeal No, 253(K) of 1999, etc. (Nazeer Ahmed v. Managing Director, Sui Southern Gas Company Limited, Karachi), which reads as under "We are aware of the latest judgment of our own Tribunal in Appeal No,553(R)(CE) of 2000 and others, decided by the principal seat at Islamabad on 21-3-2001, which was decided on the same lines as was done in Appeal No,762(R) of 1999, decided on 13-10-2000 (Samiullah and others v. Sui Southern Gas Company Ltd. And others), but the view taken by the principal seat was set aside by the Hon'ble Supreme .Court on 26-3-2001 by placing reliance on the cases of Saleem Mustafa Sheikh and others so also Naraindas. We don't dare to differ from the view taken by the Bench of our own Tribunal headed by worthy Chairman but with utmost reverence and humility, we differ from the same as the view did not find favour in the Hon'ble Supreme Court and ultimately the decision taken in Samiullah's case has been set aside on 26-3-2001 vide Petitions Nos.436 to 444 and others." ' to contend that as a result of the above judgment 230 persons were absorbed in the respondent- Company, therefore, it is discriminatory act on the part of the respondent-Company that it challenged some judgments passed against it and did not question some others also passed against it. He referred to opening lines of appointment letter dated 18-10-1994 available at page 40 of the Paper Book in C.P.1877 of 2001, issued to Jan Muhammad petitioner which are to the effect that : "Reference your application, we are pleased to offer you a temporary assignment as Meter Reader for our temporary requirement of new Projects on the following terms and conditions..." and contended that there was no mention of a specific project and his services were required for new projects. He then referred to termination letter dated 10-3-1999 (page 42) issued to the above petitioner wherein it was stated: "It is not possible to continue this assignment any further which is terminated forthwith" and contended that the respondent-Company failed to mention any particular project having been completed. His precise submission was that since according to record there was no particular project, on the completion of which the petitioners were to become redundant in the respondent-Company, therefore, the question of completion of any such project did not arise, especially in view of the fact that the respondent-Company had been advertising vacancies from time to time, the latest in the series being dated 12-7-2001. He next argued that the Tribunal should not have refused to exercise jurisdiction in these cases because there were laws and principles applicable to these appointments, in that, in some cases the petitioners had been in service of the respondent-Company for more than five years. He referred to the case of Barkat Ali Shah v. Regional Chief Executive, decided on 25-10-2000 (page 71 of the paper book) where, according to him, in somewhat similar circumstances the case was remanded to the Tribunal. The learned counsel also referred to a letter dated 26-5-1998 (P/82) written to the Managing Director of the respondent-Company by Mr. Ashfaq A. S. Munshey, General Manager (Q)-D regarding increase in the magnitude of distribution activities and provision of staff. In support of his contentions, he referred to the following case-law:
(1) Zahir Ullah v. Chairman, WAPDA, Lahore (2000 SCMR 826);
(2) WAPDA v. Khanimullah (2000 SCMR 879); and
(3) Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly (AIR 1986 SC 1571).
28. Ch. Muhammad Jamil, learned A.S.C, for the respondent-Company merely stated in rebuttal that his Concise statement alongwith its enclosures may be read as part of his arguments. He, however, submitted that there was no political victimization in the termination of services of the petitioners, which came about during the period of caretaker Government of Mr. Mehraj Khalid, therefore, the petitioners were not entitled to be reinstated even on compassionate grounds.
29. Before taking up the question of limitation involved in some of the causes above, we would like to advert to the merits of the case. The basic controversy revolves around determination of the alleged rights of the employees of the respondent-Company, on violation whereof the appellants/petitioners approached the Tribunal. The mere fact that the Corporation/respondent- Company's employees can competently invoke the jurisdiction of the appropriate Tribunal under section 2-A of the Service Tribunals Act, 1973 would not ipso facto, have the effect of applicability of all the laws relating to Government servants, to such employees. An employee aggrieved by any order passed by the Corporation/Company adversely affecting his terms and conditions of service has to show, as to which of his service rights has been violated and what is its nature i,e, whether such right flows from statutory or non-statutory rules and departmental instructions or a contract of service simpliciter. In case, the terms and conditions of such employees of a corporation are governed by statutory rules, then the Tribunal has jurisdiction to enforce that right through appropriate order. Even, a right accrued to an employee of a corporation/company under non- statutory rules, which have attained the status of rules, if violated, can be enforced depending upon the facts and circumstances of each case. However, where an employee is neither governed by either statutory or non-statutory rules but by his letter of appointment/contract of service, then the 'Tribunal is bound to determine the rights and obligations of the parties strictly in accordance with the terms thereof. In such cases the first question would be whether there is any binding contract between the parties and if so the same has to be given effect to accordingly. As to the applicability of Saleem Mustafa Sheikh, Abdul Samad and Naraindas (supra) to the present cases, suffice it to say that they were resolved keeping in view the cases of the employees within the four corners of their respective disciplines under the Executive Service Rules of the respondent- Company whereas the employees here are not governed by the said Rules. The precedent cases are, thus, distinguishable.
30. It is an admitted position that the appointments of the appellants/petitioners came about in relation to various projects of the respondent-Company and initial period of three months remained current, on one or the other occasions, until the expiry of three/four years with the assertion (by the respondent-Company) that respective projects came to a close. It would be advantageous to reproduce the relevant wording in the letter of 'temporary assignment' of one of the petitioners i,e, Civil Petition No, 1877 of 2001, which makes the following reading: "TEMPORARY ASSIGNMENT"
"Reference your application, we are pleased to offer you a temporary assignment as Meter Reader for our temporary requirement of new Projects on the following terms and conditions:
(1) Your temporary assignment is subject to your medical fitness for the job as declared by the Company's authorized Medical Officer.
(2) Your temporary assignment is strictly in connection with our Project work requirement initially for duration of three months subject always to your satisfactory performance conduct and shall automatically stand terminated on the expiry of this period unless otherwise extended.
(3) In the event of termination/cessation of your assignment, you shall not be entitled to claim as a right for your absorption on any other project and/or continuation of your assignment against any requirement of the Company.
(4) You may be posted at any location of the Company where your services could be utilized and you will carry out all the duties assigned to you from time to time.
(5) You will be paid a consolidated emolument of Rs,3,500 per month, all-inclusive.
(6) You will be entitled to free medical facilities for yourself only during the period of your assignment with, the Company.
(7) It is to be clearly understood that any unauthorized absence may forthwith result in termination of your assignment.
(8) The above only shall constitute your terms and conditions of service for the temporary assignment and you shall not be entitled to any other facilities, allowances, rights, privileges and/or benefit saving those contained in this letter of temporary assignment.
(9) This temporary assignment is also likely to be considered for induction in the Company's regular service as per the policy of the Government.
If the above terms of temporary assignment are acceptable to you, please report for duty within 15 days hereof to General Manager (P&A), Head Office, 4th Floor, State Life Building No, 3, Dr. Ziauddin Ahmed Road, Karachi, at the latest, failing which this offer will lapse automatically."
' The contents of the above letter are common in all letters of 'temporary assignment' issued to other appellants/petitioners herein
31. The Tribunal was quite right in observing that the nature of the assignment given to the appellants/petitioners being what it was, the respondent-Company was within the domain of its authority/jurisdiction under the very charter of its incorporation to take an action with regard to the termination/recalling of their assignments whenever it thought feasible/appropriate on account of closure/completion of the project against which they were employed temporarily. Therefore, mere fact that the project/s for which the appellants/petitioners were employed for a specific period could not be completed within the specified time and they continued in service till completion of such project/s, does not entitle them to be permanently absorbed in service of the respondent- Company. No doubt, the appellants/petitioners had served the respondent-Company for a number of years in its various projects, which continued beyond their normal period within which they were to be completed but the continuing in service due to delayed completion of the project/s for a longer period than the initial period of temporary assignment, would not be a determining factor of the nature of their employment. As soon as the particular project/s, for which they were engaged, came to a close their services also came to an end. Reliance can be placed on an excerpt from WAPDA v. Khanimullah (2000 SCMR 879), wherein, one of us (Irshad Hasan Khan, CJ) observed:-- "9. It would, thus, be seen that permanent workmen are those workmen who are engaged on work of permanent nature likely to last more than nine months and who have completed a probationary period of three months satisfactorily in any occupation in the relevant establishment. In the case in hand, the respondents were not engaged as permanent employees as defined in Standing Order 1(b) vide their appointment letters, they were employed on work-charged basis and their appointments were liable to be terminated at any time without assigning any reason whatsoever.
Mere absence of the specified nature of the project for which they were employed, in employment letters of the respondents is of no consequence in determining their status, in the facts and circumstances of the present case. The impugned orders are based on misreading of material on record and misinterpretation of the Standing Orders as discussed above. After thorough scrutiny of the available material and relevant provisions of law, we are of the cored view that The respondents were employed on work-charged basis against a specific project, i,e, Mardan Scarp'.
Therefore, on completion of work on the said project, their appointments were rightly terminated by the competent. Authority."
32. At this juncture it may be appropriate to mention that during the course of arguments both sides were not unanimous on the existence or otherwise of the project/s against which the appellants/petitioners were taken on job by the respondent-Company temporarily. This question can hardly be resolved without holding a detailed inquiry into the facts duly stated in the documents of the respondent-Company or in the possession of the appellants/petitioners. It is not the case of either party nor such effort was made by them at any stage. The stand taken by the respondent-Company to the effect that the appointments came about in relation to one or more imaginary projects, cannot be equated with the existence of any one of such projects at the time of induction into service of the appellants/petitioners. Be that as it may, we are of the considered view that these causes can be disposed of without adverting to above factual controversy in these proceedings.
33. As to the 'contention raised on behalf of the appellants/petitioners to the effect that their causes are akin to those of Saleem Mustafa Sheikh, Engineer Naraindas and Abdul Samad (supra) what meets the eye is that in the cases of the present appellants/petitioners, their services are admittedly and specifically being described as 'temporary'. The observations made in the precedent cases do not apply to the facts and circumstances of thes& matters squarely, in that, in the precedent cases such observations have been made subject to IBA Test, to be given at appropriate stage. Another distinguishing feature is that in the precedent cases the temporary employment of the petitioners therein was governed by Rules 6.1, 6.2 and 6.3 of the Rules whereas those Rules find no place in these cases.
34. Now we come to the question arising out of conflicting pleas raised by Mr. Jamil, learned counsel for the respondent-Company and Mr. Wasim Sajjad regarding applicability of the rule of master and servant in these cases. Mr. Jamil was of the view that principle of master and servant was applicable under which the services of the appellants/petitioners could be terminated at any time in terms of their contract of employment whereas Mr. Wasim Sajjad argued that due to advent of multi-national Companies, Corporations and modern governmental set-up, hundred- year old rule of master and servant stood displaced, therefore, an employee of a Corporation, etc. Could not be terminated from service without affording him an opportunity of hearing as has been held in Mrs. Anisa Rehman v. PIAC (1994 SCMR 2232). It may be observed that the case of Anisa Rehman (supra) was distinguished by the learned author Judge himself in Habib Bank Ltd. v. Syed Zia-ul-Hasan Kazmi (1998 SCMR 60) by holding that since the petitioner therein was demoted to a lower grade without issuing a show-cause notice and without hearing her, the same was violative of the maxim audi alteram partem and that "The effect of the application of the master and servant rule is that an employee of a Corporation in the absence of violation of law or any statutory rule cannot press into service Constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service, his remedy for wrongful dismissal is to claim damages". In other words, the well-settled proposition of law is that relationship between an employee of a Corporation and its employer is that of master and servant. To the same effect are judgments in United Bank Ltd. v. Ahsan Akhtar (1998 SCMR 68) and Ms. Zeba Mumtaz v. First Women Bank Ltd. (PLD 1999 SC 1106). In the latter case at page 1109 of the report, it was observed as under: " It may be observed here that this Court has consistently held that in the absence of any statutory rules, relationship between the employer and an employee of a Corporation, where protection cannot be sought under the Labour Laws or any statutory instrument, is that of master and servant "
' We are in agreement with the argument of Mr. Makhdoom Ali Khan, learned Attorney-General for Pakistan that an employer/Corporation may have the power to terminate the services of its employees in the exigencies of service without issuing a show-cause notice. Clearly, an employer has two distinct rights: .One to take action against its employee simply by terminating his service and other to dismiss him from service for misconduct. In the latter case, before passing the order of dismissal from service against an employee, the prescribed procedure is to be adopted by the employer/Corporation under the relevant law/rules by issuing him a show-cause notice and if such procedure is not followed by the employer/Corporation, an order of reinstatement may be passed. But if the employer/Corporation is obliged to issue show-cause notice with reasons for taking adverse action in a case of termination simpliciter, which might not sustain before a Court of law if such reasons are found to have stigmatized the employee, the result would be that the power of the employer/Corporation to terminate the services of its employees would be taken away. No doubt such a course is not advisable vis-a-vis the rule of master and servant, which is still applicable in certain cases of employment. The above findings would bring us to the definite conclusion that the master and servant rule is applicable in these cases. The services of the appellants/petitioners herein could be dispensed with at any time in terms of their respective contract/s of temporary assignment. We may, however, observe here that each case is to be decided in the light of its own peculiar circumstances with reference to the applicable law.
However, precedent law is also to be kept in view in order to avoid contradictory decisions.
35. As regards the question of limitation involved in Civil Appeals Nos.648 to 655 of 2001, we may observe that admittedly, the appeals before the Tribunal were dismissed being out of time by 30 days each after due consideration of arguments and the case-law on point of limitation as well as on merits. The Tribunal also dismissed the appeal of Nazir Hussain Bhatti, appellant in Civil Appeal No, 655 of 2001 on the ground that his departmental appeal was time-barred, therefore, his appear before it was incompetent. It is now well-settled that in service matters the Tribunal should press into service question of limitation strictly as has been held in Fazal Elahi Siddiqi v. Pakistan through Secretary, Establishment Division (PLD 1990 SC 692). It would be advantageous to reproduce relevant excerpt from the above report at pages 698-699: "A close scrutiny of the above-referred cases indicates that none of it advances the appellant's case, on the contrary, the cases referred to at serial numbers (i) to (iv) hereinabove are in line with the consistent view of this Court that in service appeals, the Tribunal should press into service question of limitation. Leaves to appeal were granted in the aforementioned cases to consider the question, whether the Tribunal was justified in not dismissing the service appeals on the ground of limitation. The case mentioned above at serial number (v) had no relevancy with the controversy in issue. In the aforesaid case, this Court instead of dismissing a petition for leave simpliciter on the ground of limitation also dismissed the same on merits. It does not lay down as a proposition of law that a Court is bound to examine a case on merits, though the case may be patently barred by limitation under the relevant law. In any case, it is a matter of discretion for the Court concerned.
The factum that in the instant case the Tribunal has dismissed the appellant's appeal on the ground of limitation, without touching upon the merits of the case, does not render the order under appeal legally infirm, as to warrant interference by this Court."
' It may be noticed that the above appeals were not only dismissed being barred by time but also on merits. Even on merits no case is made out and the impugned judgments are unexceptionable.
We find no legal infirmity in the impugned judgments warranting interference in these proceedings.
36. Insofar as Civil Appeal No, 655 of 2001 is concerned, the Tribunal was right in holding' that since the departmental appeal was time-barred, therefore, the appeal before it was incompetent. The same view has been taken in The Chairman, PIAC v. Nasim Malik (PLD 1990 SC 951). Paragraphs 9 and 10 of the report read as under: "9 It has been concluded by the Tribunal that it could be presumed that the delay was condoned by the appellate authority. The reliance has been placed on the case of Muhammad Yousaf v.
Member, Central Board of Revenue (1970 SCMR 170). In our view, the above conclusion is not warranted by law. The rejection of the aforesaid belated appeal of the respondent through appellant's letter dated 6-4-1986 cannot be said to be a rejection of the appeal on merits. It does not indicate that the Appellate Authority had noticed the question of limitation or had applied its mind to the question of limitation. The case relied upon by the Tribunal has no application. It may be advantageous to quote hereinbelow relevant observations, which read as follows:-- ' It is correct that the appeal was barred by time but it cannot be said that the learned Collector was not conscious of this fact. The question of limitation was specifically brought to his notice and in spite of that he allowed the appeal of the said respondents. In these circumstances the view of the High Court that the learned Collector, by deciding the appeal on merits, has impliedly condoned the delay appears to be quite correct. The decision of this Court in the case of Ahsan Ali and others v. District Judge and others (PLD 1969 SC 167) lays down that the authority concerned should be conscious of the question of limitation before deciding the proceedings pending before it.'
"10. In terms of the above-quoted observation, it cannot be held that the appellants' Chairman was conscious of the question of limitation while turning down the above belated respondent's appeal.
The above case, therefore, has no application. We are, therefore, inclined to hold that since the appeal before the department was time-barred, the appeal before the Tribunal was also incompetent on that account."
37. Even otherwise, delay in filing of proceedings cannot be condoned lightly because limitation creates a right in favour of one of the parties. However, where sufficient reasons are shown for condoning the limitation or that the impugned order is coram non judice or void for any strong reason, the delay can be condoned. Refer Ali Muhammad v. Chief Settlement Commissioner (2001 SCMR 1822).
38. Resultantly, Civil Appeals Nos.613 to 637 of 2001, Civil Petitions Nos.1877 to 1921, 1926 and 1934 to 2067 of 2001 and Civil Appeals Nos.648 to 655 of 20001 are hereby dismissed.
CIVIL APPEALS NOS. 1113 to 1124/2001 (Trainee Engineers)
39. Brief facts are that the appellants were among those who were appointed as Trainee Engineers by the respondent-Company initially for a period of six months and later terminated from service when they had served the respondent-Company for more than two years. In this case, on.
Supreme Court's direction to issue show-cause notices to the appellants before taking any adverse action against them in accordance with law, they were issued show-cause notices and again terminated from service.
40. However, the Tribunal passed the impugned order dated 29-1-2001 whereby the cases of the appellants herein were excluded from the list of those arrayed as appellants in the case of Samiullah v. Managing Director, Sui Southern Gas Co. Ltd. Decided by the Tribunal vide judgment dated 13-10-2000, observing that: "The appeals of the appellants have been decided by the august Supreme Court of Pakistan in its judgment referred to in our said judgment. The inclusion of the appeals in our judgment was because of accidental slip, therefore, the same are excluded from the same judgment".
41. Leave to appeal has been granted to consider whether the appellants' case is identical with the cases of Engineer Naraindas, Abdul Samad and Saleem Mustafa Sheikh (supra), and if so, there was no particular justification to hold otherwise.
42. Mr. Wasim Sajjad, learned A.S.C. Appearing on behalf of appellants in Civil Appeals Nos.1113 to 1124 of 2001 submitted that they are management trainees and trainee Engineers, who have been in service of the respondent-Company for more than two years. On the termination of their service, they went to the Tribunal alongwith a number of other people. The judgment was announced by the Tribunal in Samiullah's case on 13-10-2000, the operating part whereof reads as under : "The training assignment of the appellants were terminated without any show-cause notice and, therefore, following the dictum of the august Supreme Court of Pakistan, the order of termination of assignment of the appellants, is set aside and consequently the appellants shall continue on the training assignment of the respondent-Company when they report arrival to the respondent- Company in writing and stipend and other benefits will be paid accordingly. The respondent- Company is to follow the judgment of the august Supreme Court of Pakistan and the above- referred judgments of this Tribunal in terminating the assignment or regularizing the services of the appellants. It is also observed that show-cause notice, if at all served upon any appellants shall be a meaningful show-cause notice and the appellants are to be given opportunity to explain their position in writing and as well personal hearing by the competent authority. The appeals are disposed of accordingly and the parties are to bear their own costs. Parties be informed as per rules."
' He argued that the Tribunal divided the appellants before it into two categories: one category consisted of those cases wherein no show-cause notices were issued (judgment in Samiullah's case) in which appeals were accepted and appellants were reinstated with the observation that the respondent-Company shall issue show-cause notices to the appellants before taking any action against them in accordance with law; and the other category comprised those cases wherein show-cause notices were issued (judgment in Naraindas case) in which appeals were dismissed.
43. Mr. Wasim Sajjad briefly stated the history as to how and in what circumstances the impugned order dated 29-1-2001 in the above appeals was passed by the Tribunal by stating that after the announcement of the judgment in Samiullah's case, the respondent-Company moved an application before the Tribunal under section 21 of the General Clauses Act praying that in the case of Lekhraj and others (present appellants) the respondent-Company did issue show-cause notices and that their names, by mistake, had been bracketed with the appellants in Samiullah's case, therefore, they should be excluded from the said judgment and the Tribunal excluded the appellants from the above judgment and included them in the category of those who were issued show-cause notices (Naraindas case), to contend that the power of excluding a person from the array of appellants is not available to the Tribunal, which can only correct clerical and arithmetic mistakes. In the meantime, the judgment in Samiullah's case came before this Court and it was urged that the Tribunal had wrongly decided the case, inasmuch as, it had given option to the respondent-Company either to regularise the services of the appellants or to throw them out and it was prayed that they should be given the same relief as was given by this Court in Saleem Mustafa Sheikh's case. This Court in the case of Abdul Samad set aside the order and directed that all the appellants should be absorbed in the same way as was done in the case of Nisar Ahmed Sangi.
The case of those who were issued show-cause notices (Naraindas case) also came before this Court and in that case also the judgment of the Tribunal was set aside ordering absorption of the appellants in the same manner as was done in Nisar Ahmed Sangi's case. His precise submission was that whatever category they belonged to, the appellants are entitled to the relief, granted by this Court in the cases of Naraindas and Abdul Samad (supra) whereas the Tribunal excluded the appellants from category of those who were not issued show-cause notices ire. From Samiullah's case but did not put them anywhere as a result of which they are out of their jobs, though they had submitted an application before the Tribunal praying therein that if they had been excluded from Samiullah's case their appeals should be deemed to be pending before the Tribunal but the prayer was rejected by the Tribunal vide order dated 9-2-2001, also impugned in these proceedings.
44. Ch. Muhammad Jamil learned counsel for the respondent-Company argued that Saleem Mustafa Sheikh (supra), was decided only on question of mala fide, therefore, it is not applicable here.
45. We have heard the learned counsel for the parties in the above appeals and perused the impugned orders. We find that the Tribunal accepted appeals in Samiullah (ibid) and ordered reinstatement of the appellants therein. Upon this, the respondent-Company preferred application before the Tribunal praying that since the appellants in the above appeals were served with show- cause notices, their names should be excluded from the array of appellants in Samiullah (ibid), in that, in the precedent case, only those were reinstated into service who were terminated from service without issuing any show-cause notice. The Tribunal ordered exclusion of the names of the appellants vide the impugned order dated 29-1-2001. We find that the appellants then moved applications before the Tribunal praying therein that if their names had been excluded from the case of Samiullah (ibid), their appeals should be deemed to be pending adjudication before it.
Their applications were dismissed by the. Tribunal vide impugned order dated 9-2-2001, with the following observations: "There is no provision in the Service Tribunals Act, 1973 and as well as under the rules framed thereunder for rehearing of an appeal which has been decided. The judgment dated 13-10-2000 in the abovementioned appeals are quite elaborate and question of termination of employees of respondent-Corporations has been decided and settled after following the judgment of the august Supreme Court of Pakistan, and our own judgment in the appeal of Saleem Mustafa Sheikh and others v. Federation of Pakistan through the Secretary, Ministry of Petroleum and Natural Resources, Islamabad and others (Appeal No, 1097 (R)/99, decided on 29th April, 2000). The petitions are misconceived and, therefore, dismissed in limine."
' A bare reading of the impugned orders dated 29-1-2001 and 9-2-2001 shows conflict of opinion in that, vide impugned order dated 29-1-2001 the names of the appellants were excluded as parties in Samiullah's case, denying them reinstatement into service. Whereas vide order dated 9-2-2001 it was observed that: "There is no provision in the Service Tribunals Act, 1973 as well as under the rules framed thereunder for rehearing of an appeal which has been decided. The judgment dated 13-10- 2000 (Samiullah's case) in the abovementioned appeals is quite elaborate and question of termination of employees of respondent-Corporations has been decided and settled after following the judgment of the august Supreme Court of Pakistan". This conflict in the impugned orders in respect of the appellants has put them in a situation of uncertainty, inasmuch as, on the one hand they have been denied the relief given in Samiullah's case by excluding them from the precedent case as appellants and on the other, they have been condemned unheard by observing that their appeals cannot be reheard under the relevant law and that vide judgment dated 13-10- 2000 passed in Samiullah's case, their appeals have been decided.
46. In this view of the matter, we are inclined to allow these appeals, set aside the impugned judgments and remit the cases to the Tribunal for adjudication afresh on merits. .
C.Ps. Nos. 745 to 760 of 2001 (Management Trainees)
47. Background of these cases, briefly stated, is that petitioners herein were appointed as Management Trainees for a period of six months, extendable at the discretion of the respondent- Company. They were terminated from service on one month's ex gratia stipend. During this period, apprehending termination, the petitioners had filed Constitutional Petition in Sindh High Court, which was disposed of observing that: "Learned counsel agree that the petitioners would not be terminated except in due course of law....".
48. Before Tribunal, it was contended on behalf of the petitioners that having served the respondent-Company for more than three years they had completed the probationary period, therefore, under the Executive Service Rules, they being in the regular service of the respondent- Company could not be terminated without issuing a show-cause notice. This contention did not weigh with the Tribunal, and their appeals were dismissed. Tribunal held that the case of the petitioners was distinguishable from the case of Saleem Mustafa Sheikh. Hence these petitions for the leave to appeal.
49. Mr. Wasim Sajjad, learned Senior A.S.C. Appearing on behalf of the petitioners in Civil Petitions Nos.745 to 769 of 2001 argued that findings recorded in paragraph 7 of the impugned judgment were not tenable, in that, the petitioners were not thrust upon the respondent-Company and that the same question was also raised in Engineer Naraindas (supra), which was considered and rejected by this Court. He referred to paragraph 7 of the impugned judgment, which reads thus: "7. The appellant and other appellants were appointed as Trainee Engineers and Management Trainees in the year 1995-96 initially for a period of six months extendable for further period at the discretion of the Company. The appointments were not in response to the advertisement of the Company or test and interview but as the representative of the Company stated that they were thrust upon the Company for employment. The appellant and other appellants apprehending termination of services filed Constitutional petitions and later their services were terminated w,e,f, 11-2-1999. Hon'ble High Court accepting the right of termination of services of the appellant by the Company only directed that action should be taken in due course of law. We would, therefore, not probe into vacancies and availability of job in the respondents-Company and will only confine ourselves to examine whether the termination is in accordance with the terms and conditions of appointment."
' In this connection, Mr. Wasim Sajjad also referred to paragraph 5 of the judgment in Naraindas case, which runs as follows: ' as also the plea raised on behalf of the respondent-Company supporting the orders of termination of service of the petitioners, the Tribunal came to the conclusion that the facts and circumstances of appeals before it were different from those of the appeals decided on 29-4-2000 (in the case of Saleem Mustafa Sheikh and others) in that in the latter cases, they were appointed as Trainee-Engineers after inviting applications' through advertisement in the local press on 18-7- 1993, whereas certain petitioners were selected as Trainee-Engineers by letter of appointment dated 1-8-1994. " The respondent-Company vide letter dated 10-3-1999 just discontinued temporary/trainee assignment and after rejection of their representations, filed appeals in the Tribunal on 23-6-1999. In the appeals in hand, the appellants were appointed on 22-9-1994, rather thrust upon the respondent-Company without inviting-- applications through advertisement."
' He referred to paragraph 8 of the above judgment,. Wherein question of mala fide was also dilated upon, as under:
8. All the learned counsel for the petitioners have, inter alia, placed implicit reliance on Rules 6.1,6.2 and 6.3 of the Rules to contend that having rendered service for more than three years each, their clients were entitled to the natural result of successful completion of their probation and, in the absence of the said course having not been adopted by the respondent-Company, they were entitled to the same treatment as had been meted out to Saleem Mustafa Sheikh and others. They were also one on the point that the cause in relation to Saleem Mustafa Sheikh and others was not distinguishable from the case of the petitioners and that the observations by the Tribunal that it was distinguishable, cannot be sustained for the simple reason that the issuance of show-cause notices to their clients was only a formality to convey the impression that no mala fides are involved in the proceedings against the petitioners. Mr. M. Bilal added that his clients were not even served with any show-cause notice."
' He then referred to paragraph 13 of the above report, which makes the following reading: "13. Mr. Fakhruddin G. Ebrahim, learned counsel appearing on behalf of the respondent-Company supported the impugned judgment with the submission that there was nothing amiss in issuing of show-cause notices to the petitioners. According to him, Rules 6.1, 6.2 and 21 of the Rules were meticulously followed and, in the absence of any material having been brought on the file by the petitioners before the Tribunal, mere allegations of mala fides remained insufficient for successfully challenging the orders passed by the respondent-Company in accordance with the mandate of the rules applicable in that regard. He also referred to rule 6(2) of the Service Tribunals (Procedure)
Rules, 1974 to contend that in the absence of any rule regarding the allegations levelled by the petitioners in their memos. Of appeal before the Tribunal, the same could not be considered as effective to support their pleas in that behalf. As regards the plea that the case of Saleem Mustafa Sheikh and others was applicable to the case of the petitioners as well, it was contended by Mr. Fakhruddin G. Ebrahim that Saleem Mustafa Sheikh was inducted into service after following the prescribed procedure in that regard commencing with advertisements in the press. In the case of the petitioners, their induction into service did not come about after advertisements in the press and that the show-cause notices were issued to them with reasons justifying termination bf petitioners' services on, amongst others, the ground that the respondent-Company was contemplating re-organization of its service structure keeping in view the all important factor that it was running in deficit. He concluded his arguments by submitting that his clients are interested in obtaining maximum benefit from their employees and that putting all concerned to IBA Test in future is being resorted to ever since the year-1994."
' In order to show that mala fide was alleged by the petitioners before the Tribunal but the same was not denied by the respondent-Company, therefore, mala fide on the part of the respondent- Company stood proved, Mr. Wasim Sajjad referred to paragraph 9 of the memo. Of appeal in C.P.
No, 745 of 2001, which reads thus: "9. That the mala fide, discriminatory and political objective of the respondent No,1 which is coupled with the illegal termination of respondent No,2 is evident from the fact that the respondent No,2, while professing transparency of conduct in the case, has confirmed about 61 employees of the same category and even of less period of service. Among these persons one is the son of the previous Managing Director (Photo copy of Daily Ummat' is attached as Annexure E'). This discriminatory and illegal conduct of respondents Nos. 1 and 2 is continuing."
' He then made reference to the comments filed on behalf of the respondent-Company before the Tribunal in the above cases, wherein rebutting the mala fide alleged in the memo. Of appeal of the petitioner herein, it was stated as follows: "(b) the appellant has not filed affidavit in support of the alleged mala fide of the respondent."
' Also referred to paragraph 17 of the above report, which is to the following effect: "17. As regards the case of the respondent-Company that they were on the right rails in putting an end to the services of the petitioners by issuing them show-cause notices within the contemplation of the Rules, we suffice by observing that concerned quarters can ill-afford to meet out different treatment to two groups of its employees and that too when the dictates of law, justice and equity require exercise of power by all concerned to advance the cause of justice and not to thwart the same. We are not inclined to agree with Mr. Fakhruddin G. Ibrahim that the cases of Saleem Mustafa Sheikh and others were different from those of the petitioners."
' He referring to the following passage from The Managing Director, Sui Southern Gas Co. Ltd. v.
Saleem Mustafa Shaikh (PLD 2001 SC 176), vehemently contended that the questions raised in the instant cases such as appointments were made on political pressure; the services of the petitioners were contractual in nature and that the employment was a temporary assignment for a particular project are past and closed transaction, in that, these questions were heard, considered and decided in Naraindas case (supra), whereby in similar circumstances, relief was granted, following the ratio laid down in the precedent case, therefore, the same questions cannot be re- agitated in these proceedings: "The arbitrary manner in which the respondent was removed and the discretion meted out to him as compared to other similarly placed employees has been highlighted in para. 8 of the appeal before the Service Tribunal which is reproduced: "That the respondent-Company's action to terminate or to make retrenchment by wholly arbitrary manner has no rationale behind it or it was not due to any compulsive force of financial constraint and in fact, on the other hand, they have already regularized the services of large number of persons of similarly placed to that of the appellant of their own liking and ignoring the appellant of giving similar treatment is, in fact, for extraneous consideration and these were kept secret and the appellant could lay hand on these letters. It is pertinent to point out that M/s. Jehangir Channa and Nisar Ahmad Sangi were appointed on contract basis for 6 months on 29-9-1994 and 10-1-1995 and both of them filed Writ Petition No 1369 of 1997 in Sindh High Court at Karachi alongwith others and the respondent/Company in their written statement clearly stated that the petitioners are 'political appointees imposed upon the Company in deviation of rules and procedures, without any requirement of Company' but subsequently they have been absorbed in preference to the appellant who was appointed prior in time i,e, 1994 after test and interview. Moreover, vacancies have been caused due to retirement of the serving employees/officers and others and on promotion to the different positions and the respondent could regularize the services of the appellant against any available vacant post without actiye legal hitch and even the ban on recruitment has since been lifted by the Federal Government."
50. Ch. Muhammad Jamil, learned A.S.C. Argued that the petitioners were neither permanent, nor temporary or contractual employees but they were only trainees/apprentices in the respondent- Company, therefore, their cases are distinguishable from the cases of Saleem Mustafa Sheikh and Engineer Naraindas (supra), inasmuch as section 2-A of Service Tribunals Act, 1973 was not considered from the point of view that whether or not the persons who were not holding any post in a Corporation/Company could be deemed to be civil servants.
51. We have heard the learned counsel for the parties and also examined the record with their assistance. There is no need to make an in-depth study of the contentions raised at the Bar, inasmuch as, there is no difficulty in disposing of the above appeals and petitions in that all the questions raised in them were considered and adjudicated upon in identical matters in Saleem Mustafa Sheikh and Naraindas (supra). In the present cases also the appellants were trainee engineers/management trainees. We find no reason to strike a discordant note in these cases.
However, we would like to highlight the striking feature to the effect that after the absorption of the appellants/petitioners the respondent-Company N may make them to take the IBA test and in the light of the result thereof, proceed with the retention or otherwise of the appellants/petitioners in accordance with law. In this context, it may be advantageous to reproduce the respective arguments of the learned counsel in Naraindas (supra): "He (Mr. Fakhruddin G. Ebrahim) concluded his arguments by submitting that his clients are interested in obtaining maximum benefit from their employees and that putting all concerned to IBA Test in future is being resorted to ever since the year 1994."
"While exercising their right of rebuttal M/s. Wasim Sajjad and M. Akram Sheikh argued that the respondent-Company is not going in deficit and that their clients could also be made to sit in the IBA Test before considering them for absorption in the same manner as Saleem Mustafa Sheikh and others had been."
52. Pursuant to the above observations in Naraindas (supra), the respondent-Company arranged IBA Test and issued letters to the employees therein to take the above Test in order to prove their fitness and suitability for retention in career employment. It would be advantageous to reproduce the contents of the above letter, which are to the following effect: "IBA TEST ARRANGEMENTS ' In obedience to the orders of the Supreme Court/Federal Service Tribunal, you were absorbed in the Company. In order to determine your fitness and suitability for career employment, the Company has arranged through IBA a written test. The test is to be conducted on 15th July, 2001 at various IRA Centres located in Sindh, Balochistan and Punjab."
"In the meantime, you are required to send the following to General Manager (Human Resources) for Issuance of Admit Card:
(a) Photocopy of NIC;
(b) Two Passport size photographs
(c) Copies of matriculation certificate degree/diploma.
"Please ensure furnishing of duly attested photocopies of the above documents by 22nd June, 2001.
The original shall be seen at the test centre. In case you fail to comply with the above, it shall be assumed that you are not interested in the job and the Company shall be well within its rights to take any action under Law/Rules of the Company"
' Being dissatisfied with the decision of putting them to test by IBA, the employees in Saleem Mustafa Sheikh, Engineer Naraindas as well as Abdul Samad (supra) and others, brought contempt applications against the respondent-Company and this Court, after hearing the parties, disposed of the matters (Criminal Miscellaneous Appeals Nos.11 to 17 of 2001 and Criminal Original Petitions Nos.27 to 33 of 2001 in C.Ps. Nos.979, 1670, 1671, 1747, 1846, 402-K, 436-K-444-K of 2000 and C.Ps.
Nos.457 to 472, 481 to 506, 512 to 532, 541 to 556 of 2001) on 10-7-2001 wherein, while dealing with the question in relation to which notices were issued to the persons similarly placed as the present appellants/petitioners in IBA Test, it was observed: " Whenever an order is passed against the appellants/petitioners they will be at liberty to take appropriate steps for seeking available remedy from the appropriate forum."
53. In this view of the matter, we convert the above petitions into appeals and by allowing the same set aside the impugned judgments of the Tribunal therein with the direction to respondent- Company to reinstate the appellants in their respective disciplines and thereafter put them to IBA Test and consider their further retention in service in the light of the results thereof. There shall be no order as to costs.
C.Ps. Nos. 1263 to 1341 of 2001 (Trainee Engineers)
54. Facts in brief are that the petitioners were appointed as Trainee Engineers and Management Trainees in the respondent-Company during the years 1994, 1995 and 1996. They served the respondent-Company for 4/5 years. Their services were terminated through common order of termination dated 26-5-2000. The petitioners after exhausting departmental remedy, approached the Tribunal by filing appeals on 8-9-2000.
55. The Tribunal vide consolidated impugned judgment dated 21-3-2001 relying on paragraph 7 of its own judgment passed in Samiullah v. M.D. Sui Southern Gas Co. Ltd. Accepted the appeals and reinstated the petitioners into service with the observation that if the respondent-Company wants to take action in their cases they will follow the observations made in Samiullah (ibid), which read thus: "7. The training assignment of the appellants were terminated without any show-cause notice and, therefore, following the dictum Of the august Supreme Court of Pakistan, the order of termination of assignment of the appellants is set aside and consequently the appellants shall continue on the training assignment of the respondent-Company in writing and stipend and other benefits will be paid accordingly. The respondent-Company is to follow the judgment of the august Supreme Court of Pakistan and the above-referred judgments of this Tribunal in terminating the assignment or regularizing the services of the appellants. It is also observed that show-cause notice, if at all served upon any appellants shall be a meaningful show-cause notice and the appellants are to be given opportunity to explain their position in writing and as well personal hearing by the competent authority. The appeals are disposed of.- ."
' Hence these petitions for leave to appeal.
56. Mr. Wasim Sajjad, learned A.S.C. Appearing in support of Civil Petitions Nos.1263 to 1341 of 2001 argued that the Tribunal erred in law by creating a wrong distinction between the case of Saleem Mustafa Sheikh (supra) and the case of present petitioners. He contended that in the concluding portion of its judgment, the Tribunal, relying on its earlier judgment in Samiullah (ibid), ordered 'reinstatement' of the petitioners but did not grant the relief of 'absorption' in service, which was earlier allowed in the case of Saleem Mustafa Sheikh (supra). He pointed out that the case of Samiullah (ibid) on which reliance was placed by the Tribunal was taken up in appeal before this Court and judgment was rendered in the case of Abdul Samad v. Federation of Pakistan (Civil Petitions Nos. 436 of 2001, etc.), wherein this Court reversed the judgment in Samiullah (ibid) and directed that all the petitioners should be given the same treatment as was earlier meted out to Nisar Ahmed Sangi. In repose to the arguments that the petitioners were trainees/apprentices and were not holding any posts, Mr. Wasim Sajjad referred to a number of documents from pages 30 to 65 of the Paper Book in Civil Petition No, 1263 of 2001 in order to show that the petitioners underwent a programme of training and were posted from one place to another according to requirements of the respondent-Company; they worked under different officers and were paid TA/DA from time to time; and that their evaluation reports were prepared by the concerned officers. He also referred to two advertisements dated 28-5-2000 and 21-1-2001 published in Daily "Dawn" inviting applications against certain posts/vacancies in the respondent-Company as also a recent advertisement inviting tenders for 'Gas Infrastructure Rehabilitation and Expansion Project' published in. The Daily "The News" on 12-7-2001 to contend that the respondent-Company required staff/equipment for its ongoing projects and that on-going projects means that it is extending its gas operations to new areas and since it is an ever-growing demand, the work of the respondent-Company never ceases, therefore, the petitioners could be accommodated by it in its new projects. He further argued that the nature of duties performed by the petitioners indicated that they were holding certain posts and in any case, this question stands decided in several judgments rendered by this Court. He added that two to three hundred employees, who have been absorbed by the respondent-Company were holding' temporary/contractual posts but the petitioners, being temporary/contract appointees are holding 'no posts' but are mere trainees/apprentices, is too inconsistent and illogical a stand that it should not be allowed to be raised at this belated stage, when so many cases have been decided by this Court.
57. Ch. Muhammad Jamil, learned A.S.C. For the respondent-Company reiterated by contending that though the petitioners have been reinstated into service but still they are trainees and not employees of the respondent-Company. He added that they are getting their stipends but getting no training at all and that they shall be absorbed after fulfilling the requirements and not before that. He submitted that the Tribunal had no jurisdiction to order their reinstatement.
58. The contention of Mr. Jamil that the Tribunal had no jurisdiction to order reinstatement of the petitioners is ex facie misconceived and the same is hereby repelled, in that, this Court has already held in Pakistan Railways through General Manager v. Ghulam Rasul (1997 SCMR 1581) that the Tribunal has very wide powers and all questions of law and facts arising therein can be gone into, by the Tribunal and the only limitation on finding on a question of fact by Service Tribunal is that it should satisfy the test of reasonableness. It would be advantageous to reproduce the relevant portion of the judgment, which reads thus: "Provision of section 5, Service Tribunals Act, 1971 confers wide power on Service Tribunal to confirm, set aside, vary or modify the order appealed against. Unlike ordinary litigants who have access to ordinary Courts in the country to seek redress of their grievance, a Government servant is debarred from taking his grievance relating to the terms and conditions of his service before any Court. Such a grievance of civil servant is exclusively triable by a Tribunal established under the provision of Article 212 of the Constitution of Islamic Republic of Pakistan. No doubt an appeal against the order of Tribunal set up under Article 212 lies to Supreme Court but such an appeal is, very limited in scope as provided in sub-clause (3) of Article 212."
"In view of the exclusive nature of appellate jurisdiction exercised by the Service Tribunal in respect of dispute relating to terms and conditions of service of a civil servant and the limited scope of appeal before Supreme Court against the order of Service Tribunal, an appeal before the Service Tribunal against the order of Departmental Authority under section 5 of the Act is very wide in its scope and all questions of law and facts arising therein are open to be gone into by the Tribunal.
The Service Tribunal, therefore, while hearing such an appeal has full power to confirm, alter, set aside, vary or modify the order of Departmental Authority keeping in view the facts and circumstances of the case and to meet the ends of justice. It is, therefore, not correct to argue that when the Departmental Authority has passed an order after following the procedure prescribed by law the Service Tribunal could not interfere with the order of Departmental Authorities. So long the order passed by the Tribunal in appeal against the order of the Departmental Authority shows application of mind by the Tribunal and the reasons given by. The Tribunal satisfy the test of reasonableness and do not suffer from arbitrariness, Supreme Court will not interfere with such an order of the Tribunal."
"The Service Tribunals are forums where questions of law and facts both can be agitated by the aggrieved persons. The limitation, while hearing service appeals, on the power of the Tribunals is only to the extent that while interfering on question of fact, the Tribunal has to state the reasons in the order which should satisfy the standards of reasonableness. Supreme Court, therefore, while hearing the appeal arising from the decision of Service Tribunal would only interfere if the order passed by the Tribunal lacked application of mind or suffered from arbitrariness."
"WAPDA v. Zulfiqar Ali and others PLD 1988 SC 693 and Postmaster-General, AJK v. Muhammad Zorab 1996 SCMR 280 ref.
' Reference can also be made to The Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh (PLD 2001 SC 176), wherein this Court held as under: "S. 4---Reinstatement---Service Tribunal, jurisdiction of Employees worked with the employer company for four years as trainee engineers thereafter the services of the employees were terminated---Service Tribunal allowed the appeal filed by the employees and they were reinstated in service-Contention by the employer company was that the Tribunal had exceeded its jurisdiction as in terms of S.4 of Service Tribunals Act, 1973, the Tribunal could not direct the employer company to issue the letter of absorption of the employees---Validity---Tribunal had given such direction in context of termination order and it had not determined the fitness or otherwise of the employees to be appointed or to hold a particular post---Contention was misconceived and the Tribunal had not exceeded its jurisdiction."
59. After hearing the learned counsel appearing in support of the cases of their respective clients and going through the material available on record with their assistance, we are of the considered view that the impugned judgments are unexceptionable, inasmuch as, the petitioners herein have been reinstated in service, which fact meets the ends of justice and further that the respondent- Company has not challenged their reinstatement before this Court. Notwithstanding the originality and ingenuity of Mr. Wasim Sajjad in his endeavour to create a fine distinction in the words reinstatement' and 'absorption' we are of the view that 'reinstatement' and 'absorption' for all intents and purposes, are synonymous expressions, in that, 'reinstatement' in service involves an element of 'absorption', therefore, the expression 'absorbed' used in Abdul Samad (supra) by this Court is to be construed accordingly and to that extent the case of Abdul Samad (supra) also stands revisited. The findings in this case shall not, however, affect the transactions past and closed.
60. In view of the above, we find no substance in these petitions, which are hereby dismissed. Leave to appeal is refused. C.A. No, 120 of 1999 (Staffer)
61. Succinctly stated, the facts of the case are that the respondent herein was appointed as a Meter Reader and vide order dated 28-10-1997 his services were terminated on the ground that his appointment was temporary till the completion of a particular project. On appeal, the Tribunal while disposing of his case alongwith other matters, accepted his appeal and he, alongwith others, was reinstated into service on the ground that their services were terminated without issuing show-cause notices and affording them opportunity of hearing.
62. Leave to appeal was granted to consider whether in view of the decision of this Court dated 9- 7-1998 passed in Civil Petitions Nos.391-K to 456-K of 1998, etc., the Service Tribunal could not set aside the termination order of respondent No,1 and reinstate him into service.
63. Ch. Muhammad Jamil, learned A.S.C. Appearing on behalf of the appellant-Company in Civil Appeal No, 120 of 1999 contended that the respondent herein, namely, Shabbir Hussain was terminated in accordance with the terms and conditions of his letter of appointment, according to which his appointment was of temporary nature till the completion of a particular project, therefore, his termination from service was in order, being no more required by the appellant- Company after completion of the project. He further argued that in the absence of statutory rules, the relationship between the appellant-Company and the respondent was of master and servant, therefore, the. Tribunal has erred in ordering his reinstatement into service.
64. Mr. Wasim Sajjad, learned A.S.C. For respondent in this appeal at the outset referred to the opening paragraph of the appointment letter dated 19-4-1995, to the following effect: "Reference your application, we are pleased to offer you a temporary assignment as a Meter Reader for temporary requirement of Sui Southern Gas Rehabilitation and Expansion Project (SSREP) on the following terms and conditions.... to contend firstly, that the respondent had applied for the post and was appointed by the appellant-Company by adopting the prescribed procedure and secondly, that the projects of the appellant-Company are on-going whereunder the appellant-Company extends its gas connections to new areas by laying down pipelines and during the process, meter readers, etc. Are appointed and that such jobs, even otherwise, become relevant after the project is completed. Mr. Wasim Sajjad then read out following portion of termination letter of the respondent dated 28-10- 1997: "Pursuant to completion of various projects, the overall work, establishment requirement of staff has been reviewed and it has become necessary to retrench surplus personnel. Since you have become redundant to our requirement, your services are no longer required and are terminated with effect from 31-10-1997."to contend that it is evident from the above excerpt that the respondent was not employed for a particular project but for various projects and his services were .Not terminated on completion of a specific project but he continued in service to work at various projects. His precise plea was that since the projects commenced by the appellant-Company are of ongoing nature, therefore services of the respondent can be utilized for some other projects.
65. We have considered the respective contentions of the learned counsel for the parties. We find that the respondent was appointed against a 'temporary assignment' for a particular project; therefore, he was rightly terminated from service after completion of the project. As regards the contention of Mr. Wasim Sajjad that since the projects commenced by the appellant-Company are of on-going nature, therefore, services of the respondent can be utilized for some other project, suffice it to say that the impugned judgment is not sustainable in view of the rule laid down in Abdul Jabbar's case (Civil Petitions Nos-391-K to 456-K of 1998, etc.) that in the absence of violation of any provision of law or statutory rule, no exception can be taken to the termination of service of the respondent on one month's salary in lieu of notice plus other dues, if any, payable under the terms of the appointment or internal rules of the respondent-Company. However, it may be clarified that in case the respondent has been reinstated into service pursuant to the impugned judgment of the Tribunal, his services may be dispensed with by the respondent-Company but no recovery of the emoluments/salaries paid to him from the date of his reinstatement into service till disposal of this appeal, shall be made from him., in any manner whatsoever.
66. The net result is that the appeal stands disposed of in the above terms. C.P. No,1381 of 2001 (Management Trainee)
67. Brief facts, are that the petitioner-Shah Nawaz Umrani was appointed as Management Trainee initially. For a period of six months, extendable at the discretion of the respondent-Company. He served there for three/four years. Subsequently, his services were terminated without issuing any show-cause notice.
68. Aggrieved by termination of his service, he approached the Tribunal for redress of his grievance. The Tribunal, however, dismissed his appeal being hopelessly barred by time observing that though the petitioner was terminated from service by order dated 26-9-1997 but he filed appeal before it on 23-7-1999. Hence this petition for leave to appeal.
69. Mr. Wasim Sajjad, learned A.S.C. Representing the petitioner in the above petition, at the very outset referred to paragraphs 22 and 23 of the impugned judgment dated 13-4-2001 passed in Appeal No,253(K) of 1999, etc.(Nazeer Ahmed's case), which read thus "22. We have carefully gone through the lot of 230 appeals. Most of the appeals are within time, whereas some of the appeals, the appellants have come after filing of their departmental appeals, when their petitions were finally dismissed/disposed of by Hon'ble High Court as well as by Hon'ble Supreme Court and in some of the cases, the appellants had directly filed their appeals before this Tribunal without filing departmental appeals. There are only two appeals, viz. Appeals Nos.798-K of 1999 and 978-K of 1999 (Shahnawaz Umrani and Shah Baig), one belongs to District Nausheroferoze and other one hails from District Sukkur. Record shows that the appellant in Appeal No,978-K of 1999 remained before Hon'ble High Court, Sukkur Bench till. 18-5-1999 whereafter he came to this Tribunal on 22-9-1999, after filing, departmental appeal, as such, delay of 96 days is condoned in respect of the present appellant as has been done in the cases of Saleem Mustafa Sheikh and Naraindas where delay of 105 days and 120 days respectively was condoned.
23. As regards Appeal No,798-K of 1999 is concerned, no doubt, the appellant has placed reliance on an order passed by Hon'ble Supreme Court in Civil Appeal No,1499 of 1997, which reads : `In this appeal admittedly the termination order has been passed on 22-11-1997 and therefore, the appellants' cause of action if any accrued after the incorporation of section 2-A in the Service Tribunals Act, 1973 by Act No,XVII of 1997 with effect from 10-6-1997, the appellants' remedy, if any, is before the Service Tribunal. The question as to whether the High Court was justified in dismissing the appellants' writ petition, has now become academic question. We would therefore, dismiss the above appeal as it has become infructuous. Since the appellants had been agitating before the Courts and if the question of limitation arises, the Service Tribunal should consider the same sympathetically so that the appellants may not be non-suited on technical ground."
"But neither he was party to that proceedings nor any document whatsoever has been produced which could show that he was pursuing his remedy before any forum. Even the affidavit filed by him alongwith his application under section 5 of Limitation' Act is silent in this regard. No doubt, he is a sufferer 'like others but since he did not follow his legal remedy before any forum and was lying in slumber for all these years, we are afraid, we will not be in a position to condone the delay in this case because he had come before this Tribunal after delay of nearly about 663 days. We, therefore, reject the application for condonation of delay." to argue that the Tribunal dismissed the appeal of the petitioner although the facts and circumstances thereof are similar to those of other cases in which appeals have been accepted and that the Tribunal has erroneously held in paragraph 23 above that since the petitioner did not approach the High Court for relief, therefore, his case was barred by limitation. Referred to page 46 of the Paper Book wherein, in the order dated 18-5-1999 passed by a learned Division Bench of the High Court of Sindh, Bench at Sukkur, name of the petitioner appears at Serial No,1 in Constitution Petition No, D-131 of 1998. The petitioner did approach the High Court and that his case is similar to that of Shah Baig whose appeal was accepted. He was of the opinion that because there were several employees whose cases were being heard by the Tribunal, the facts pertaining to the case of the petitioner could not be properly appreciated.
70. Mr. Jamil, learned counsel for the respondent-Company has, however, supported the impugned judgment.
71. We have heard the learned counsel for the parties and perused the .Relevant material on record.
In the case of the petitioner, the Tribunal held that since he had directly filed appeal before the Tribunal after a delay of about.663 days, without resorting to Constitution Petition before the High Court like his other colleagues therefore, he was not entitled to any relief, his appeal being hopelessly barred by time.
' Mr. Wasim Sajjad has taken us through page 46 of the Paper Book to show that the name of the petitioner herein appeared at Serial No, 1 of Constitution Petition No, 131-D/1998 which was disposed of by a Division Bench of High Court of Sindh, at Sukkur vide order dated 18-5-1999 with direction to the petitioners therein to approach the Tribunal for redress of their grievance. The petitioner filed appeal before the Tribunal on 22-7-1999. This clearly shows that not only the petitioner had approached the High Court but he also filed his appeal before the Tribunal almost two months before Mr. Shah Baig in whose case the Tribunal had condoned the delay of 96 days and granted him relief alongwith other 228 appellants therein. This is, therefore, a clear case of misreading of evidence. We are, therefore, inclined to remit the case to the Tribunal for decision afresh after discussing the case on merits, considering the question of limitation sympathetically.
72. In the result, we convert this petition into appeal and by allowing the same set aside the impugned judgment and remand the case to the Tribunal who shall decide the same afresh on merits, after 'sympathetically considering the delay, if any, in filing appeal before the Tribunal by the petitioner.
C.Ps. Nos. 1515, 1459 and 2112 of 2001
73. The above petitions are respectively out of time by 161, 161 and 227 days.
74. We have heard Hafiz S.A. Rehman, learned Senior A.S.C. For the petitioners in support of these petitions and have also gone through the applications for condonation of delay. The pleas taken therein hardly constitute valid grounds for condoning the delay.
75. Resultantly, the petitions are dismissed being hopelessly barred by time. C.As. Nos. 985 and 986 of 2001 (Trainee Engineers)
76. Brief facts are that the appellants were among those who were appointed as Trainee Engineers by the respondent-Company initially for a period of six months and later terminated from service when they had served the respondent-Company for more than two years. In this case, on Supreme Court's direction to issue show-cause notices to the appellants before taking any adverse action against them in accordance with law, they were issued show-cause notices and again terminated from service.
77. The Tribunal in its own judgment in Engineer Naraindas case (Appeal No, 2122 (R)11999, dated 23-9-2000), dismissed their appeals holding the case of the appellants being distinguishable from the case of Saleem Mustafa Sheikh (supra). This Court vide its judgment rendered in Engineer Naraindas (supra) upset the decision of the Tribunal.
78. Leave to appeal granted in these cases was subject to limitation.
79. Mr. Muhammad Akram Sheikh, learned Senior A.S.C. Appearing on behalf of the appellants in Civil Appeals Nos.985 and 986 of 2001 vehemently argued that there is a conflict of opinion as to whether delay due to poverty can be condoned or not. He submitted that so far as the appellants are concerned this case has a very chequered history and they have been going from pillar to post for redress of their grievances by incurring huge expenses and eventually exhausting all their funds/resources to have further recourse to this Court, therefore, they could not file appeals when the judgment in Naraindas (supra) was announced. He submitted that in view of the fact that the appellants had exhausted their funds due to protracted litigation to have further recourse to this Court within time, this is a fit case for condonation of delay on ground of poverty. He further argued that though the Constitution under Article 9 obliges the State to enable paupers to have recourse to justice; but, in fact, the State does not possess enough means to help its citizens, therefore, the law relating to limitation needs to be developed so as to enable a poor citizen to have recourse to justice after arranging necessary funds for the purpose. He candidly referred to the case of Hakeem Abdur Rehman v. Noor Muhammad and another (1970 SCMR 582) wherein it has been observed that "The plea for the condonation of delay really amounts to plea of poverty which is not a valid ground. If the petitioner is a pauper, he should have filed his application in forma pauperis instead of spending the time in the risky effort of raising funds from different sources and allowing the limitation period to slip out in the meanwhile". He also referred to Maqbool Ahmed v.
Hakoomat-e-Pakistan (1991 SCMR 2063) wherein at page 2069 it has been observed: {{URDU TEXT}} ' His precise submission was that this Court may consider the ground of poverty for condoning the delay.
80. Learned counsel for the respondent-Company submitted that the case of Saleem Mustafa Sheikh (supra) and the present cases are totally different from each other, especially on the point of limitation, inasmuch as, in the precedent case, the Tribunal had concluded that the question of limitation was not raised before it whereas in the instant appeals, question of limitation was specifically raised, therefore, these appeals are time-barred and liable to be struck down on this ground alone. He added that though it was urged before the Tribunal that the respondent- Company had not raised the point of limitation in writing but it is the duty of the Tribunal under the Rules to see each and every appeal as to whether the same is within time or not. He next contended that in the precedent case this Court had held that since the question of limitation was not raised earlier, therefore, the same could not be allowed to be raised at this stage while in the present appeals, the question of limitation was raised, which makes them distinguishable from the case of Saleem Mustafa Sheikh.
81. We have heard the learned counsel for the parties and considered the case-law cited at the Bar, The case of Maqbool Ahmed (supra) decided by the Shariat Appellate Bench of this Court, does not advance the cause of the appellants in that, in the precedent case the unanimous judgment of the Court was that section 28 of the Limitation Act No, IX of 1908 was repugnant to the injunctions of Islam insofar as it provided for extinguishment of right in the property at the determination of the period prescribed for instituting a suit for possession of the said property.
Suffice it to say that the controversy raised herein has no nexus with section 28 of the Limitation Act, 1908. Thus, visualized, the reliance placed on Maqbool Ahmed (supra) by Mr. M. Akram Sheikh is misplaced.
82. Be that as it may, both the appeals are respectively barred by 8 and 98 days. The plea of poverty under the law does not constitute a valid ground for condoning the delay. The appeals are dismissed being barred by time.
83. Summary of the disposal of these cases is as under:
(1) Civil Appeals Nos. 366 to 378 of 2001 are dismissed. No costs.
(2) Civil Appeals Nos. 613 to 637 of 2001; Civil Appeals Nos.646 to 655 of 2001 and Civil Petitions Nos.1877 to 1921, 1926 and 1934 to 2067 of 2001 are dismissed with no order as to costs.
(3) Civil Appeals Nos. 1113--1124 of 2001 are allowed, the impugned orders dated 29-1-2001 and 9-2- 2001 are set a side and the cases remitted to the Tribunal for adjudication afresh on merits.
(4) Civil Petitions Nos. 745 to 760 of 2001 are converted into appeals and allowed. The impugned judgments of the Tribunal are set aside with the direction to respondent-Company to reinstate the appellants in their respective disciplines and thereafter put them to IBA Test and consider their further retention in service in the light of the results thereof. No costs.
(5) Civil Petitions Nos.1263 to 1341 of 2001 seeking 'absorption' instead of 'reinstatement' in service ordered by the Tribunal are dismissed and leave to appeal refused.
(6) Civil Appeal No, 120 of 1999 filed on behalf of the respondent Company challenging reinstatement in service of the respondent by the Tribunal is disposed of with the observation that, in case the respondent has been reinstated into service pursuant to the impugned judgment of the Tribunal, his services may be dispensed with by the respondent-Company but no recovery of the emoluments/salaries paid to him from the date of his reinstatement into service till disposal of this appeal, shall be made in any manner whatsoever.
(7) Civil Petition No, 1381 of 2001 is converted into appeal and allowed. The impugned judgment is set aside and the case is remanded to the Tribunal, which shall decide the same afresh on merits, after sympathetically considering the delay, if any, in filing appeal before it by the appellant herein.
(8) Civil. Petitions Nos. 1515, 1459 and 2112 of 2001 are respectively barred by 161, 161 and 227 days.
The same are dismissed being barred by time.
(9) Civil Appeals Nos. 985 to 986 of 2001 are barred by 8 and 91 days respectively. No case has been made out for condoning the delay. Dismissed being barred by time.
(Sd.)
Irshad Hasan Khan, C.J.
(Sd.)
Ch.. Muhammad Arif, J.