' AKBAR M. MEMON (MEMBER).---Appellant hereinabove, who got her appointment as Lady Medical Officer vide offer letter dated 17-7-1994 and appointment letter dated 28-7-1994 in PG-VI, has challenged the order of her termination from service dated 21-5-1998. The order of termination in question is reproduced hereunder: (Annex:K, page 91).
"TERMINATION FROM SERVICE 1.Reference Notice for removal from service and personal hearing issued t" you vide LAOO No,GMO198002 dated 6-1-1998.
2. Your reply dated 12-1-1998 and 20-1-1998 in response to the show-cause notice referred hereinabove was evaluated by the Competent Authority and it was not found satisfactory.
However, with a view to giving you fair opportunity to defend the charges levelled against you, you were afforded an opportunity of personal hearing with the Director Administration in the office of Director Administration on 20-1-1998. You were heard in length but you failed to put forward a plausible defence.
3. Competent Authority has therefore, decided to terminate your service with immediate effect.
Your dues, if any, will be settled in accordance with the rules of the Corporation."
2. Mr. Abdul Ghafoor Mangi, learned counsel for appellant has contended that the appellant was appointed as Lady Medical Officer on 17-7-1994 in PG-VI, whereafter she was confirmed on 19-2- 1995. Subsequently she proceeded on study leave for two years for completing Part-II Examination of FCPS and was required to fill in bond for serving the respondents at least for five years after qualifying F.C.P.S. From 15-4-1996 vide letter dated 4-4-1996, but before the 'said leave could have expired, she was terminated on 20-3-1997, as such, she filed Constitutional Petition No,717 of 1997 before Hon'ble High Court, which was allowed on 13-5-1997. He has contended that the appellant was once again given notice for termination and personal hearing on 6-1-1998, which reply was submitted and finally termination letter was issued on 21-5-1998, as mentioned above. He has further contended that the present appellant is highly qualified doctor and prior to her joining the respondents she was selected by Sindh Public Service Commission in an open interview and after her selection she was appointed as Medical Officer in the Government of Sindh from where she applied for a post of Lady Medical Officer in the respondent-Corporation where she was called for interview and underwent an interview before Selection Committee comprising of Director General Services, Director Services, Chief Medical Officer, Deputy Chief Medical Officer and Manager (Employment) whereafter she was selected for the post. He has contended that the appellant was a confirmed employee of the respondents and being a confirmed employee she could not have been terminated in the way in which it has been done by the respondents, meaning thereby, that no show-cause notice was issued nor any inquiry was conducted against her and the only exercise, which was made by the respondents, was that of notice of personal hearing, but in case of termination of confirmed employee, such an exercise was not the requirement of law particularly when there was no allegation of misconduct against such an incumbent. He has contended that this all was done due to change of Government otherwise there was nothing against the appellant nor there was any allegation of inefficiency or lack of qualification. At the same time, he has contended that the appellant was terminated in the first instance behind her back as she was on study leave and the said leave was granted on the specific condition that she would fill in a bond mentioning therein that after completing her FCPS Part-II, she would serve the respondents for five years. He has contended that identical appeals have already been allowed by this Tribunal and has cited the cases of Jamal Nasir Malik and Abdul Hafeez Abbasi v. P.I.A.C. And has contended, that the present appeal is also liable to be allowed and the appellant be given the same concession which Ras been extended to all such incumbents/appellants.
3. Mr. Masood A. Khan, learned counsel for respondents has argued that the very appointment of the appellant was void ab initio and was on unsolicited application, as such, the judgment of Nasir Jamal Malik and Abdul Hafeez Abbasi v ill not be applicable in this case. At the same time, he has contended that there is no provision of final show-cause notice in the rules of Pakistan International Airlines Corporation Employees ("ervice and Discipline) Regulations, 1985. He has contended that decision i-' number of appeals rendered by this Tribunal in which appeals of certain appellants were dismissed, was upheld by the Hon'ble Supreme Court. As such, this appeal is liable to be dismissed. In support of his conten,ions, he has placed reliance on C.P. No,2227 of 2001 (Raja Aamir Abbas Hassan v. P.I.A.C.), C.P. No,66-K of 2000 (Khalid Hussain Bhutto v. P.I.A.C.), Appeal No,1633-K of 1998 (Aamir Rafiq Joyia v. P.I.A.C.) and Appeal No,1528(K) of 1998 (Riaz Ahmed Shahid v.
P.I.A.C.) At the same time, he has contended that Appeal No,1328-K of 1998 as allowed by this Tribunal on 6-12-2000 was challenged before Hon'ble Supreme Court where leave to appeal has been granted and the said order has been reported in 2002 PLC (C.S.) 1019.
4. After hearing the arguments of learned counsel appearing for the parties, we have gone through the appeal file and so also the authorities cited by the respective advocates.
5. Perusal of the record shows that the present appellant joined the respondents on 28-7-1994 and after working for over a year she was confirmed vide letter dated 19-2-1995. On 4-4-1996 the appellant was granted study leave and was required to fill in bond stating therein that after qualifying F.C.P.S., she would serve the respondents at least 5 years. During the course of her study leave, she was terminated on 20-3-1997 on the ground that her appointment was itregular and that her application were unsolicited one, as such, the very appointment order was void ab initio.
The appellant on coining to know about the termination of some 1460 incumbents by the respondents through 'Daily News' dated 21-3-1997 filed a Constitutional Petition No,717 of 1997 where stay was granted in the first instance and finally petition was decided on 13-5-1997 holding that the impugned action of the respondents was 'illegal. It was, however, observed by Hon'ble High Court of Sindh that fresh action can be taken' against the appellant in accordance with law in any particular case, if they so desire. Thereafter the appellant was given notice for removal from service on 6-1-1998 and after the same was replied, she was once again terminated on 21-5-1998.
6. Record shows that the only allegation in case of appellant is that the appointment was made on unsolicited application and that her father being Provincial Chiefof the People Party and so also the Chief Minister of Sindh and thereafter a Senator had used extraneous pressure on the respondents whereby the appointment was made. At the same time, it has been stated that there was no such vacancy available, then too, on account of extraneous pressure, appointment was made, which was a sort of financial burden on the respondents. At the same time, it has been stated that study leave was granted with pay, which was also against the regulations of the respondents. Excepting these allegations, there is no allegation of misconduct or that the appellant was lacking qualification. It would be pertinent to 'bring it on record that this Tribunal has always been mentioning the number of appeals that, no doubt, the respondents have been taking this plea of unsolicited applications, but they have not been able to prove as to whether any appointment was made on the basis of advertisement. In this connection we would like to reproduce an unreported authority of Hon'ble Supreme Court in Civil Petition No,162 of -1998 where similar situation had arisen in case of Dr. Mazhar Naeem and it would he advantageous to reproduce paras. 2 to 6 as well as 7 of the judgment: "2. The relevant facts are that Dr. Mazhar Naeem joined the Pakistan International Airlines Corporation as a Medical Officer and confirmed in Pay Group-IV on 1-2-1996. Without show-cause notice, inquiry or charge-sheet his services were terminated on 20-3-1997. Challenging his termination order he approached the Federal Service Tribunal. By judgment, dated 25-7-1998 his appeal and his termination order was set aside being "void ab initio" for having been issued in flagrant violation of the principles of natural justice.
3. Feeling aggrieved, the P.I.A.C. Has filed this petition.
' It is, inter alia, contended that the learned Tribunal had not properly dealt with the case and mechanically passed a generalized order, that the terms of service of the respondent were governed by the letter of appointment and the Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985 that there existed relationship of Master and Servant between the parties, that since it was a case of simple termination, the principles of natural justice were not applicable; furthermore, as the respondent has secured appointment by using extraneous pressure in violation of the regulations, he had no vested right to remain in service.
4. It was urged before, the Federal Service Tribunal on behalf of Dr. Mazhar Naeem respondent that a Special Board was constituted for his appointment and he was not to be blamed for the non- publication of advertisement by the department/P.I.A.C. As it was not his duty to see to it. He was duly confirmed after initial appointment and became a regular employee, who could not be thrown out of service without any show-cause notice, inquiry or charge sheet.
5. The petitioner/P.I.A.C. Is estopped by its conduct to urge that the appointment of the respondent was against the rules and due to extraneous considerations, and by manoeuvring the said appointment he blocked the career advancement of more experienced employees already working in the P.I.A.C. If they had any grievance in this behalf they would have' challenged the appointment of the respondent soon after the appointment, but admittedly no one did so, nor did the P.I.A.C. Have any complaint against the work and conduct of the respondent. According to the petitioner, this exercise had been taken on the directive dated 4-3-1997, of the Federal Government, requiring review of all cases of irregular and out of turn appointments in the P.I.A.C.
The respondent's appointment was made by the Special Selection Board and he possessed the requisite educational qualifications. The P.1.A.C. Had no cause of grievance against him and his services were terminated on the basis of the circular issued by the Prime Minister Secretariat dated 4-3-1997 directing that all irregular appointments during the Pakistan People's Party Government be terminated.
6. It is a well-settled proposition of law that maxim audi alteram partem is applicable to all judicial and non-judicial proceedings and has to be read into every statute, even if the right of hearing is not expressly provided therein....
7. The petitioner/P.I.A.C. After considering the respondent suitable offering him a job and later confirming him in service is not legally permitted to terminate his service at subsequent stage in the absence of any misconduct on his part and that too without providing an opportunity of hearing to him in relation to the show-cause notice/charge-sheet containing allegations of misconduct during his service period."
' Similarly in a latest case of Nasir Jamal Malik, the Hon'ble Supreme Court in Civil Petitions Nos.330 to 337 and 436 of 1999 had held: "We have considered the arguments so advanced by both the sides in this behalf. It may be noted that in the judicial history of our country as well as in those countries where identical/ corresponding system of administration of justice is in vogue the principle enshrined in the maxim audi alteram partem has been made applicable expressly or impliedly in every instrument governing the proceedings which may be statutory or otherwise and if its absence is conspicuous by not making it a part of the instrument governing the proceedings. Though the principle of audi alteram partem is not universally accepted principle but emphasis on its application has always been made on those proceedings where adverse action is being contemplated to be taken against the person/persons who have at least a right to defend such action or during course of time they have acquired a right to negate allegations on basis of which an action adversely affecting their interest is being taken. To strengthen the argument reference may be made to Chief Commissioner Karachi v. Mrs. Dina Soharb Katrak (PLD 1959 S.C. (Pak.) 45); (ii) Messrs Faridson Limited Karachi and another v. Government of Pakistan and another (PLD 1961 SC 537), (iii) Abdur Rehman v. Collector and Deputy Commissioner Bahawalnagar and others (PLD 1964 SC 461), (iv)
Abul A'la Maudoodi v. Government of West Pakistan (PLD 1964 SC 673), (v) University of Dacca v.
Zakir Ahmed (PLD 1965 SC 90), (vi) Muhammad Hayat v. Province of West Pakistan (PLD 1964 SC 321), (vii) Messrs East-end Exports, Karachi v. The Chief Controller of Imports and Exports, Rawalpindi and another (PLD 1965 SC 605), (viii) Pakistan and others v. Public at Large and others (PLD 1987 SC 304), (ix) Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others (PLD 1994 SC 885). (x) Ghulam Mustafa Jatoi v. Additional District and Sessions Judge Reurning Officer, N.A.
158, Naushero Feroze and others (1994 SCMR 1299), (xi) Faqir Ullah v. Khalid-uzZaman and others (1999 SCMR 2203).
' It may be noted that in the case of University of Dacca (ibid) question of consideration before this Court was as to whether the principle of natural justice (audi alteram partem) in the cases of expulsion of student, by University Authorities, for alleged indiscipline, misconduct and rowdyism is applicable. In this context it was held that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting "the person or property or other right of the parties concerned".
This rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness.
' As far as services of respondents are concerned though the principle of Master and Servant is applicable but in the case of Mrs. Anisa Rehman v. P.I.A.C. And others (1994 SCMR 2232) it was held that the action of the Corporation violating the principles of natural justice will be without lawful authority and of no legal effect. It was further held that violation of the maxim could be equated with the violation of the principle of law warranting pressing into service Constitutional jurisdiction.
Thus we are inclined to hold that in the instant cases appellants terminated the services of the respondents in violation of the principles of natural justice because before passing impugned order no opportunity was given to them to defend themselves against an unilateral adverse action intended to be taken against them."
' It may be observed that as per details of the service of each of the respondents noted in the above paras. They were in the employment of the appellants for more than a period of 6 months, therefore, at least a right to defend had accrued to them against the proposed action of termination of their services which in some of the cases had taken place without assigning any reason whereas in some of the cases it was alleged that they managed their induction in the 4 employment of P.I.A.C. Under the directions of Prime Minister's Secretariat but before the Federal Service Tribunal a consistent stand was taken by the appellants which has also been reproduced hereinabove. According to which the respondents were being removed because their appointments were riot in accordance with law or it had taken place due to their influence etc. Thus apparent contradictions in the reasons disclosed in the termination orders as well as the stand taken by the appellants before the Federal Service Tribunal reflects mala fides of the appellants in removing the respondents from their services."
' Since the respondents themselves have not been able to show us that any post was filled in on the basis of advertisement, they cannot take the plea that the very appointment of the appellant was made on unsolicited application or that the appointment of the appellant was void ab initio.
This aspect of the case has elaborately been discussed by a Bench of this Tribunal in Appeal No,285(K) of 1997 and the said judgment has been maintained by the Hon'ble Supreme Court in Civil Petition No, 162 of 1998. At the same time, this Tribunal had decided Appeal Nos.928 to 936(K) of 1998 (Abdul Hafeez Abbasi and others v. P.I.A.C.), which decision has been maintained by Hon'ble Supreme Court and the said, decision has been reported in 2002 PLC (C.S.) 1083, where placitum
(f) and (g) are relevant, the same are reproduced hereunder: "(f) Service Tribunals Act (LXX of 1973) - ---Ss.2-A, 4 & 5---Constitution of Pakistan (1973) Art. 212(3) --Employees of Pakistan International Airlines Corporation---Master and Servant, relationship of---Termination of services (without show-cause notice)---Service Tribunal ordered the reinstatement of employees---Contention of the Corporation was that services of the employees were governed by the principle of Master and Servant, thus Service Tribunal had no jurisdiction to grant the relief of reinstatement, but in such situation at the best, employees would have claimed damages---Supreme Court repelled the contention while holding that it was wrong to contend that on the theory of master and servant relationship, Service Tribunal had no jurisdiction to reinstate an employee, whose services had been illegally terminated.
(g) Service Tribunals Act (LXX of 1973) - ---Ss. 2-A & 4---Pakistan, International Airlines Corporation Act (XIX of 1956), S.5(2)--- Constitution of Pakistan (1973), Art. 212(3)---Employees of Pakistan International Airlines Corporation---Termination of service/retrenchment without show-cause notice under the directives issued by the Prime Minister Secretariat on 4-3-1997 requiring termination of all illegal appointments made during previous Government against meritlin violation of rules and regulations---Service Tribunal ordered the reinstatement of employees---Contention of the Corporation was that in case of simpliciter termination of service without any stigma, the employees could not have been reinstated on mere violation of principles of natural justice--- Validity---Principle enshrined in maxim "Audi alteram partem" had to be applied in all judicial and non-judicial proceedings notwithstanding the fact that right of hearing had not been expressly provided by the statute governing the proceedings---Employer might, terminate the service of its employee without show cause notice in the case of exigency of service---Corporation had terminated the service of the employee under the directives issued by the Prime Minister Secretariat under the heading "Retrenchment"---Recognised principle of retrenchment was not to remove all the employees from service except to a limited extent by following the principle last come first go---Such directives could not be equated with an exigency of service to remove the employees from service-Federal Government under S.5(2) of Pakistan International Airlines Corporation Act, 1956, might issue directives to the Corporation on matter of policy, which would be binding on the Corporation---Office of Prime Minister alone did not constitute the Federal Government and thus, said directives were not strictly covered by S.5(2) of Pakistan International Airlines Corporation Act, 1956---Employees had been made victim of the Prime Minister's directive alone-Issuance of show-cause notice in such circumstances, to the employees before terminating their services was incumbent upon the Corporation---If the appointments of employees were presumed to be in violation of the rules and regulations and not on merits, even then they had acquired a right for having served the Corporation from 1995 onward during the course whereof, they ,had been confirmed, which could mean that they had attained status of permanent employee having a right to remain in service until their appointments had been proved to be contrary to regulations of the Corporation-- -Supreme Court dismissed the appeals in circumstances.",
7. The authorities cited by Mr. Masood A. Khan, learned counsel for respondents are distinguishable particularly the case of Raja Aamir Abbas Hassan where specific reference of the Minister of State was given and his recommendatory letter was reproduced in the judgment, whereas in the instant appeal only reference has been given that the appellant is the daughter of Provincial Chief, Pakistan People's Party, but no document whatsoever has been produced, which could show that her appointment was made by the respondents on that particular extraneous pressure. Without producing any document to prove that the appointment was made on an extraneous pressure, we are of the view that being a son or daughter of political dignitary is not a sin particularly when there is no allegation that the appellant was lacking qualification. In such a situation case of Aamir Rafiq Joyia v. P.I.A.C. Appeal No,1633(K) of 1998 will not be applicable and is rather distinguishable.
Similarly the facts of appeal of Khalid Hussain Bhutto was not applicable as the appellant Khalid Hussain Bhutto was a IIIrd Divisioner throughout and that he was given proper show-cause notice whereas there is no such allegation against the present appellant that she lacked qualification or that she had no experience of having served as Medical Officer being selectee of Sindh Public Service Commission. As regards the case of Omar Saeed Kazi where leave to appeal has been granted by Hon'ble Supreme Court, reported in 2002 PLC (C.S.) 1019, we are of the view that leave to appeal has been granted to consider as to whether the very appointment of the respondents was in violation or otherwise of the principle laid down by the Hon'ble Supreme Court in case of Abdul Jabbar Memon. Since the matter is subjudice, we will not be in a position to offer any comments, as the appeal was decided by this Tribunal in favor of the appellant. The appellant was a confirmed employee and had served the respondents for more than two years prior to proceedings on study leave, as such, she could not have been thrown from service terming it to be termination simplicitor. Even otherwise, the action, which has been taken by the respondents whereby the appellant was terminated without holding of inquiry, is in violation of principles of natural justice and the legal position is that any action, which is taken in violation of the principles of natural justice, is no action in law.
8. As regards the question of limitation is concerned, we want to bring it on record that first termination order was issued on 20-3-1997 against which the appellant filed Constitutional Petition No,717 of 1997, which was decided on 13-5-1997 where operative part of the judgment reads as under: "6. In the result, these petitions are allowed and the impugned action is held to be without lawful authority. It may, however, be observed that fresh action can be taken by the respondents in accordance with law in any particular case, if it so desires. The parties are left to bear their own costs in view of the questions raised."
' The appellant was then worked with the respondents and finally she was served with a notice of removal from service on 6-1-1998, which was replied and the final action culminated in her termination from service vide order dated 21-5-1998, against which she filed departmental appeal on 16-6-1998, which met with rejection order on 31-8-1998, whereas the appeal before this Tribunal was filed on 25-9-1998, as such, there is no delay in filing the service appeal. The objection, which has been taken by the respondents in their comments, is of no legal force.
9. In view of above discussion, we are of the considered view that the respondents have terminated the appellant without any justification and, as such, we set aside the order dated 21-5-1998 and direct that the appellant be reinstated in service on the same position from which she was terminated with all back-benefits, provided that she files an affidavit that she did not work for gain anywhere to earn her livelihood during the period she remained out of job.
10. In the circumstances of the case, there will be no order as to costs. Parties concerned be informed accordingly.