' CH. MUHAMMAD ARIF, J.---Through this common judgment, we intend to dispose of the above petitions which, in their own turn, have arisen out of three separate judgments dated 23-9-2000, 11- 2-2000 and 17-4-2000 passed by the Federal Service Tribunal (hereinafter referred to as the Tribunal) in Service Appeals Nos.2122(K) of 1999, 437 of 2000 and 1247(K) of 1999, respectively.
2. All the petitioners succeeded in obtaining induction into service of the respondent Sui Southern Gas Company Limited, Karachi (hereinafter referred to as the respondent-Company) at various levels of the service structure of the Company. All of them joined as TraineeEngineers/Management Trainees for a period of six months each in the years 1994 and 1995.
3. It is common ground between the parties that orders of termination from service of petitioners were made the subject-matter of various Constitutional petitions before the High Court of Sindh, Karachi and High Court of Sindh, Circuit Bench, Hyderabad which were dismissed. Whereafter, in the petitions for leave to appeal, it was directed by this Court, vide judgment, dated 31-3-1998 that they would be served with show-cause notices and action taken thereafter, in accordance with law. Even during the interregnum, their services were terminated on 10-3-1999 and in contempt proceedings also this Court on 8-7-1999, reiterated the following of course indicated in judgment, dated 31-3-1998 whereafter show-cause notices were issued and services of petitioners Naraindas and others terminated on 30-7-1999.
Petitioner-Naraindas
4. Petitioner-Naraindas took the matter before the High Court of Sindh, Karachi but his Constitutional petition was dismissed on 28-7-1999 and even his petition for leave to appeal against the said judgment, was dismissed by this Court on 5-8-1999. He filed departmental appeal on 28-8-1999 and, after the expiry of 90 days, he made Appeal No,2122(R) of 1999 before the Tribunal on 7-12-1999.
147 Appeals
5. The Tribunal took up as many as 147 appeals before it and delivered the impugned judgments, dated 23-9-2000 (as also judgment dated 11-2-2000 in Civil Petition No,1845 of 2000) and judgment, dated 17-4-2000. After attending to the pleas of the petitioners that. (i) all the petitioners having served the respondent-Company for more than three years, the termination of their services could not be upheld in that under the Sui Southern Gas Company Limited Executive Service Rules, 1982 (hereinafter referred to as the Rules) generally and rules 6.1, 6.2 and 6.3 in particular, their probationary period had been completed with the result that regular employment should have commenced in relation to all of them at that juncture: ..(ii) the issuance of show- cause notice was only a formality and as the same did not contain any reason for not retaining them into service, the respondent-Company should have mentioned in the show-cause notices that there was no vacancy or that jobs were not available for the petitioners this Court's judgment dated 31-3-1998 was not brought to bear upon the facts and circumstances of Petitioners' case; ..The completion of the period of probation should have had the effect of putting the petitioners into the category of persons regularly appointed in the respondent-Company; in line with judgment, dated 29-4-2000 passed by the Tribunal in Appeal No,1097-R of 1999 allowing Saleem Mustafa Sheikh and others appellants therein to be reinstated, the respondent-Company having failed in their efforts to challenge the judgment of the Tribunal dated 29-4-2000 in Appeal No,1097- R of 1999 before this Court on 10-7-2000 in Civil Petitions Nos.979-K to 1012-K of 2000, the law declared by this Court could not be ignored by the Tribunal in the case of the petitioner; . 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 appeal 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.
' The services of the appellants were terminated by letter, dated 30-7-1999 which is impugned in these appeals The appellants spent more than two years in filing Constitutional petition in the Sindh High Court and petition for leave to appeal in the august Supreme Court of Pakistan and again a Constitutional petition in the Sindh High Court, Karachi Bench and leave to appeal from the same before the august Supreme Court of Pakistan. As mentioned earlier, section 2-A was inserted in the Service Tribunals Act, 1973; effective from 7-6-1997 and the appellants could file appeals in this Tribunal from the order of termination which were passed later on from 30-7-1999 but they did not choose this forum and dragged the respondents-Compnay in the Constitutional petition. After failure, filed the appeals in this Tribunal on 7-12-1999". Paragraph 11 of the impugned judgment, dated 23-9-2000 reads thus:--
11. We will also clarify the question of limitation decided in this appeal earlier (para.7 of this judgment). The question of limitation in the appeals of Saleem Mustafa Sheikh and others was not contested by the respondents-Company before us. Saleem Mustafa Sheikh and others, after letter dated 10-3-1999 filed appeals in this Tribunal on 23-6-1999 within a reasonable time. Learned counsel for the respondents-Company submitted that the appellants were not regular employees of the respondents-Company and, therefore, the appeals should have been filed within 30 days of the termination of their assignment within the meaning of subsection (1) of section 4 of the Service Tribunals Act, 1973, which contention was upheld by us."
6. Paras. 7 to 12 of the impugned judgment dated 17-4-2000, passed in Appeal No,1247-K of 1999, read thus:-- "7. In view of the above admitted position of facts and provisions of section 4 of the Service Tribunals Act, 1973, all the appellants were legally required to file their instant service appeals in this Tribunal within 30 days from the original impugned orders of their termination dated 21-11-1997, 23- 10-1997 and 21-9-1997, as admittedly the rules applicable to the terms and conditions of service of the appellants are not statutory and that there is no provision of a departmental appeal/review/representation against such-like orders in the rules applicable to the appellants.
'The appellants have admittedly not filed their service appeals within normal time of limitation but they have filed their instant appeals (on 16-12-1999) after more than 23 months from expiry of limitation period, therefore, the instant appeals are hopelessly time-barred also.
8. The learned counsel for the appellants has contended that the termination is illegal, unjust and in violation of principles of natural justice and Constitution of Islamic Republic of Pakistan, mala fide and discriminatory and without lawful authority hence the appeals are maintainable and the applications for condonation of delay be granted. He has relied upon the law of 1999 SCMR 197 and judgment of this Tribunal rendered in Appeals Nos.1046(K) of 1998 and 72 others on 16-2-2000.
9. We see that the observations of the Hon'ble Supreme Court made in 1999 SCMR 197 are not applicable to these appeals as the causes of actions to appellants had accrued, in the appeals remanded with the observations of Honourable Supreme Court, prior to the insertion of section 2-A in the Service Tribunals Act, and the Service Tribunal had declined to entertain such appeals of the employees on the ground that the Service Tribunals (Amendment) Act, 1997 whereby the insertion of section 2-A was made in the Service Tribunals Act, 1973 was prospective and not retrospective, the Hon'ble Supreme Court held that the Act was retrospective hence the appeals are maintainable before the Service Tribunal and the application for condonation of delay be considered sympathetically in the said cases.
10. The facts and circumstances in the instant appeals are quite different than those discussed in the said citation, therefore, delay in the instant appeals cannot be condoned for the following reasons and law.
11. We see that the appellants have not given any legal and cogent reasons and sufficient explanation for delay in their applications for condonation of delay. In the instant appeals the appellants have knowingly and deliberately ignored the jurisdiction of the competent forum (Service Tribunal) already available to them for agitating/bringing their service appeals at the relevant time, and chosen the wrong forum and spent/wasted their precious time and energy before incompetent forum. In these circumstances the Hob'ble Supreme Court has held in the following citations that there is no justification in codoning the delay in the matters wherein litigation has undergone before incompetent forums. PLD 1983 SC 385, 1975 SCMR 259, 1985 SCMR 333-890, 1991 SCMR 1841, 1997 SCMR 1167. It has been held in 1999 PLC (C.S.) 1293 that pursuit or legal remedy before competent forum would not justify condonation of delay. Even ignorance of law and bona fide mistake for choosing the wrong forum is neither excusable/reasonable nor in consonance with law per 1999 PLC (C.S.) 1244 and that the delay cannot be condoned in the circumstances. It has been held in 1983 SCMR 1354 that after prescribed period is elapsed the door of justice is closed and no plea of injustice, hardship or ignorance can be of any avail unless the delay is properly explained and accounted for. We see that neither delay has been properly explained nor the same has been accounted for to our satisfation, they have merely stated in their applications that they were pursuing the remedy before Hon'ble Sindh High Court which has dismissed the petition on 11-11-1999.
12. We after considering the application for condonation of delay sympathetically and finding no proper and sufficient explanation for the delay, decline to condone the delay of such a long period and reject their application for condonation of delay."
7. We have heard Messrs Wasim Sajjad, M. Akram Sheikh, Mr. M. Bilal, Senior Advocate Supreme Courts and Mr. Attaur Rehman, Advocate Supreme Court on behalf Of the petitioners and Mr. Fakhruddin G. Ebrahim, Senior Advocate Supreme Court on behalf of the respondent-Company. Mr. Tanvir Bashir Ansari, learned Deputy Attorney General for Pakistan has also been heard.
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.
9. Mr. Wasim Sajjad was critical of the decision of the Tribunal on the question Of limitation and contended that absorption of the petitioners in the manner in which the cases of Saleem Mutafa Sheikh, Jehangir Channa and Nisar Ahmed Sangi and others were dealt with up to the level of this Court, was to the point and the Tribunal is wide off the mark in observing that there were distinguishing features between the two sets of the employees of the respondent-Company.
10. Mr. M. Akram Sheikh also referred to the peculiar facts and circumstances of the present lis and respectfully submitted that the Tribunal was in error in not enforcing Rule 6.2 (ibid) in the light of observations made by this Court in Mrs. M.N. Arshad and others v. Miss Naeema Khan and others (PLD 1990 SC 612) para.9 whereof reads thus:- "9. Then it was contended by the learned Advocate Supreme Court for the appellants, that in case this Court holds that the Board was not a corporate body, the Islamabad Model Schools and Colleges (Services) Rules, 1984, framed by the Board, of which violation was alleged, had no statutory force and, therefore, could not have been relied upon by the Tribunal. We find that this point was not urged before the Tribunal. However, we may observe that even departmental instructions become enforceable in service if they have been continuously and consistently acted upon by the department concerned. The Board after having framed the above rules cannot plead that it can violate the same with immunity. We may state that a violation of a non-statutory rule cannot be assailed through a Constitutional writ petition, but the Tribunal while exercising special jurisdiction in service matters may take cognizance of a breach of a non-statutory rule/instruction if the same has been continuously and consistently acted upon by the department concerned. In any case the Tribunal has not prohibited the Federation to apply, the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, while reconsidering the case of promotion in case the aforementioned rules framed by the Board are to be ignored on the ground of not being statutory."
11. Mr. M. Bilal generally subscribed to the arguments of his colleagues M/s. Wasim Sajjad and M.
Akram Sheikh and submitted that the appeals before the Tribunal were not barred by time and the decision of the Tribunal to the contrary does not qualify for being sustained.
12. Mian Attaur Rehman also subscribed to the views of the learned counsel who preceded him and added that his clients were also entitled to the same treatment as was meted out to Saleem Mustafa Sheikh and others.
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 Mutafa 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 of, petitioners' services on, amongst others, the ground that the respondent-Company was contemplating reorganization 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.
14. 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.
15. We have considered the arguments addressed at the bar and have also gone through the material available on the record. It is not denied by either side that the petitioners were driven to making Constitutional petitions before the High Court with a view to challenging the respective orders of termination of their service and that section 2-A was inserted in the Service Tribunals Act (LXX of 1973) with effect from 10-6-1997. It is also not the case of either side that the High Court of Sindh disposed of petitioners' Constitutional petitions on different dates and that this Court disposed of Civil Petitions Nos.418-K to 483-K of 1999 on 5-8-1999 with the observation that "Since the question relating to the termination of services of the petitioners relates to the terms and conditions of their service, the petitioners are free to approach the learned Service Tribunal for redress of their grievance and in case they take such a proceeding, the learned Tribunal will consider the question of limitation, if any, sympathetically. The petitions stand dismissed subject to the observations made above". The parties are also one on the point that the Service Appeals were resorted to by some of the petitioners after making departmental appeals and that appeals before the Tribunal were within 30 days of the expiry of the 90 days' period therefrom. It is settled law that a person who is deemed to be a civil servant for the purposes of Service Tribunals Act, 1973, can make a representation before the competent authority even if no departmental appeal has been provided. See Gulbat Khan v. WAPDA through its Chairman, Lahore and others (1992 SCMR 1789).
There is force in the arguments advanced on behalf of the petitioners that the Tribunal fell into an error in not condoning the delay after duly noticing that he had been agitating the matter in the High Court as well as this Court ever since the times when the respondent-Company decided to terminate their services. In view of the admitted position that petitioner Naraindas went to the High Court even after the passing of termination orders on 30-7-1999 and therefore came before this Court as well by filing Civil Petitions Nos.418-K to 483-K of 1999 which were disposed of on 5-8-1999 with the observation that since the question relating to the termination of services of the petitioners relates to the terms and conditions of their service, the petitioners are free to approach the Tribunal for redress of their grievance and in case they take out such proceedings, the Tribunal will consider the question of limitation, if any, sympathetically. The above direction had the effect of keeping the matter in relation to limitation wide open for due consideration thereof by the Tribunal. Saleem Mustafa Sheikh's appeal before the Tribunal was barred by 105 days and the observation by the Tribunal was that such delay was reasonable. The cases of the appellants are almost at par with the cases of. Saleem Mustafa Sheikh and others. Here, the appeals were barred by 129 days, therefore, following the rule of consistency, this was a fit case for condonation of delay by the Tribunal.
16. A perusal of rules 6.1, 6.2 and 6.3 shows that temporary/contract post is for a limited or specified period otherwise probationary period under the Rules is initially for one year and extendable for a further period not exceeding one year. On the same premises, the Tribunal while dealing with the case of Saleem Mustafa Sheikh came to the following conclusion:-- ' "The Executive Service Rules as mentioned above provide that temporary/contract post is for the limited time otherwise the probationary period under the rules 6.1, 6.2 and 6.3 is initially for one year extendable for a further period not exceeding one year. We will apply the Executive Service Rules of the respondent-Company to the terms and conditions of service of the appellant with the respondent-Company, and therefore, as conceded by the learned counsel for the respondent- Company, we will set aside the letter of discontinuation of termporary/training assignment dated 10-3-1999 of the appellant and direct the respondent-Company to issue the letter of absorption in Career Executive Cadre of the appellant in the respondent-Company as it was issued to Nisar A.
Sangi on 17-4-1998."
Looked at in the context of the above observations of the Tribunal by making a reference to the absorption of Nisar A. Sangi on 17-4-1998 in Career Executive Cadre, we are inclined to the view that the petitioners were also entilted to similar treatment.
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. Ebrahim that the cases of Saleem Mustafa Sheikh and others were different from those of the petitioners.
18. Before parting with this order, it may be noticed that in the case of Saleem Mustafa Sheikh and others (Appeal No, 1097(R) of 1999) the Tribunal did observe that the then learned counsel appearing on behalf of the respondent-Company conceded that the Rules are applicable to the terms and conditions of service of Saleem Mustafa Sheikh and others. We are of the view that in the absence of any justifiable reason for putting an end to the services of the petitioners by the respondent-company, the termination orders passed against the petitioners without considering the import and implication of rules 6.1, 6.2 and 6.3 (ibid) the impugned judgments cannot be sustained.
19. Resultantly, these petitions are converted into appeals and by allowing the. Same, the impugned judgments dated 23-9-2000, 11-2-2000 and 14-7-2000 are set aside with a direction to the respondents to absorb the petitioners in their respective disciplines on the same lines as has been done in the cases of Saleem Mustafa Shekih and others (supra). There shall be no orders as to costs.