Petitioner Syed Muhammad Nasir Hussain has filed this writ petition through his father Syed Hidayat Hussain who is his General Attorney. Through this writ petition, the petitioner has impugned the criminal proceedings pending against him in the Court of the Ilaqa Magistrate, Islamabad under the Pakistan Essential Services Act, 1952.
2. The petitioner was an employee of Pakistan Atomic Energy Commission having been appointed as an Assistant Engineer in the Scale of Rs,3405-215-5985 plus usual allowances by virtue of Office Order No,48/93 dated 18-1-1993 on the basis of Letter No, Estt-21 (1237)/92 dated 3-5-1992. He served the Commission for about a year. During this time, he was awarded a scholarship by the Federal Ministry of "Sciences and Technology for Post-Graduate study leading to Ph.D. Degree in the field of Environmental Sciences, vide Letter No,HRD-92/EC(2)113/ASA (TR), dated 26th June, 1993.
Paragraph 4 of this letter reads as follows:-- "The award is initially valid for a period of one year and is extendible annually up to a maximum period of 60 months subject to your satisfactory academic performance. You are required to send regular reports on your academic performance through your Academic Adviser/Tutor, at the end of each term/semester to the Ministry of Science and Technology, through the Embassy of Pakistan."
3. Before the award of the scholarship vide the aforementioned letter, he had been allowed a special permission to avail the aforementioned scholarship captioned as S & T Scholarship. This permission was given to him by the Training Officer of the Pakistan Atomic Energy Commission through its Letter No,Trg.6(16)/85 dated 22-9-1992. According to the recital in the letter, the permission was given to the petitioner as a special case and to avail the scholarship on terms and conditions which were indicated in the letter, are re-produced below in extenso:-- "(a) The period of his studies abroad will be treated as ex-Pakistan leave without pay' and allowances, he will also not be eligible for the benefits of Housing Subsidy/HRA, and medical allowance etc., for the duration of his studies abroad.
(b) He will have to furnish an undertaking duly attested by Director, KCP-II to the effect that subject chosen for Ph.D studies is relevant to PAEC Programme.
(c) He will be required to intimate about his acceptance in the University and final award by Ministry of S&T, well in time to complete necessary formalities and will proceed abroad only if finally authorized by this Commission.
(d) He will be required to execute necessary surety bond and undertaking before proceeding abroad.
(e) He will continue to be governed under the rules and regulations of PAEC issued from time to time during his stay abroad.
(f) The living expenses, tuition fee and air fare etc. Would be paid by the Ministry of Science and Technology, Government of Pakistan."
4. At the time of joining a training programme of Pakistan Atomic Energy Commission at its Computer Training Centre in Islamabad on 22nd of April, 1991, an undertaking was given through a bond by the petitioner that he will pay certain amounts to the respondent in case he did not join the service of the Commission after successful completion of the course i,e, the Local Training Programme, and the bond was to have no effect if he fulfilled the requirements. So it means that after availing the Local Training Programme he had joined the Pakistan Atomic Energy Commission as the Office Order No,48 aforementioned is dated 18-1-1993.
5. The petitioner then proceeded abroad for availing the scholarship. The Pakistan Atomic Energy Commission on 28-6-1993 issued him a No-Objection Certificate, copy of which is signed by Wali- ur-Rehman, Administrative Officer has been placed on the file. According to No-Objection Certificate, he had permission to leave Pakistan for France with effect from 29-6-1993 his case having been duly approved by the Chairman, Pakistan Atomic Energy Commission, Islamabad.
6. The petitioner did not join the service of the Pakistan Atomic Energy Commission after completion of his training in France and the Commission, therefore, proceeded against him. A Show-Cause Notice was issued to him on 6th November, 1996, which was addressed at his home address in Pakistan and copy of which was also sent to the Second Secretary, Embassy of Pakistan in Paris asking for details of the amount spent against the scholarship offered to the petitioner. The text of the Show-Cause Notice reads as follows:-- "Whereas you Mr. Syed Nasir Hussain son of Mr. Hidayat Hussain were awarded S&T Scholarship by the Government of Pakistan, Ministry of Science and Technoloy vide letter of even No,dated June 26, 1993 for pursuing postgraduate studies leading to Ph.D in the field of Electronics from Georgia Tech. Lorraine, France. And whereas you have been reported to quit your studies on your own without consultation with and permission from the Ministry and moved to USA. This is in contravention of the terms and conditions of S&T Scholarship Award. Now therefore you are hereby called upon through this Notice to explain the reason why a punitive action should not be taken against you for this breach of contract 'attitude, leading to recovery of the Government expenses incurred on your studies in France and imposition of a penalty of Rs,25,00,000. If no reply is received within 10 days receipt of this notice, ex parte proceedings will be initiated."
4. Departmental disciplinary action was also initiated against him and this ended in his dismissal from service. The petitioner through his father kept on writing letters to the Chairman, Pakistan Atomic Energy Commission more in the shape of a beseeching prayer but that did not help him.
5. The office memorandum showing the expenditures incurred on the petitioner has been also placed on the file by the respondent and it is to the tune of US $ 50,640.
6. After having dismissed him from service, the department thought of initiating criminal action against him and lodged a complaint with the Ilaqa Magistrate, Islamabad under section 7(3) read with section 5(1(a)(b) of the Pakistan Essential Services Act, 1952, and, therefore, the proceedings under the Essential Services Act commenced before the Court of the Magistrate, and these are challenged before this Court.
7. The Attorney appearing on behalf of the petitioner has stated that the Magistrate after lodging of the complaint, started sending summons against the petitioner at a wrong address of Islamabad (Bhara Kahu) which was not his address while he was living in Pakistan and was certainly not his address as he was living in the United States. The Attorney showed to this Court photocopies of summons and the fake reports of the Process Server which showed as if the petitioner was deliberately avoiding service and proceeded to take further action against him through issuance of warrants etc. It was at this stage that these proceedings were initially challenged before the Ilaqa Magistrate and secondly through a revision petition before the learned Additional Sessions Judge, Islamabad. But as no relief was provided to the petitioner, he challenged the proceedings through this Constitutional petition.
8. It is the petitioner's case both in writing and through verbal arguments of his Attorney that the provision of the Essential Services Act, 1952, were not applicable in the case of the petitioner. Thai this was a case of recovery of money being a civil liability and for the recovery of which, a civil suit having already been filed at Jauharabad in Khushab, the present proceedings were incompetent in law. It was also stated that the petitioner was never asked to come and join the service in Pakistan except for the threats which have been hurled at him.
9. It also appears from the complaint lodged with the Magistrate and some other correspondence addressed to the petitioner that he had not provided copies of his B.Sc. Degree and had also not provided 15 copies of departure report, which of course was hardly something of significance.
Anyway, the respondent forgot its own inaptitude inaction in this connection before issuing the N.O.C. To the petitioner to depart for France. This Court has also not been shown a copy of any surety bond which the petitioner may have executed pursuant to clause (d) of the permission granted to him to avail the scholarship.
10. It is unfortunate to observe that the petitioner who availed a scholarship given by the Government of Pakistan, has failed to come back and thus a loss has been caused to the country in the matter of foreign exchange. His Attorney, anyway, was of the view that he never was asked to join the service. The respondent can always if they think it proper and if they need his service, ask him to join and if he does not, this will only reflect mala fides on the part of the petitioner. The respondent is also to blame for having failed in proper documentation of the case before the departure of the petitioner for France.
11. However, we have now to see whether the criminal proceedings under the Essential Services Maintenance Act, 1952, apply to the facts of the present case. The preamble of the Act states that its provisions were made for the maintenance of certain essential services. It is an admitted position that the service of the Pakistan Atomic Energy Commission is covered by the Act. However, it may be pointed out that when the provisions of section 3 of the Act apply, a declaration has to be made by the Government every six months declaring an employment or a class of employment to be an essential service.
10. After a service has been declared as an essential service, the Federal Government or an Officer authorized by the Government may by general or special order, direct that ally person or person engaged in such employment shall not depart out of such area or areas as may be specified in such order. The requirement of section 4 further states that any such order made has to be well circulated and published for purposes of notice.
11. Section 5 of the Act prescribes the offences and extends to disobedience of any, lawful order in the case of an employment declared as essential service or where without a reasonable excuse an employee abandons the essential service or absents himself from work or refuses to work or departs from an area without the consent of the Authority making that order or discontinues the employment of such person or does such acts in the manner aforementioned. Anyone who instigates such disobedience or discontinuation of service is also guilty under the Act.
12. Section 7 of the Act provides for penalties and the procedure to be followed.
13. The case of the petitioner is something altogether different. He was awarded a scholarship and with the consent of his employer he proceeded abroad where he continues to live. Through the correspondence exchanged by the respondent, its case has always been that the petitioner has caused a loss to the respondent against the scholarship money given to him on the assurance that he will return.
16. This is not a case where a person was required to work against an employment declared to be essential and to remain within an area where he had to work, had committed an offence by acting otherwise.
17. The word 'essential' according to the Black's Law Dictionary means: "indispensably necessary; important in the highest degree; requisite. That which is required for, the continued existence of thing". The petitioner was to avail a scholarship which extended to one year initially and to a further period of 60 months, which means that his services were dispensed with for all that period and were, therefore, not immediately essential for the Institution, otherwise, he would not have been allowed to go abroad with consent.
18. It may be also pointed out that the provisions of Pakistan Essential Services (Maintenance) Act, 1952, are to be construed strictly being penal in nature and are to be read iri harmony with each other. And as the petitioner has proceeded abroad with the consent of the respondent and has breached his contract while abroad by not coming back although it is his case that he has not been asked to join his duties, this makes his case one of civil liability and not one covered under the criminal provisions of the Essential Services Act, 1952, even if the provisions of the Act were stretched beyond credulity.
19. It will be in the fitness of things if the respondent recovers the amount from the petitioner by whatever legal means possible. But the respondent cannot proceed against him under the Essential Services (Maintenance) Act, 1952, and, therefore, the proceedings before the Court of the Magistrate are quashed. The writ petition is disposed of accordingly.