' MUHAMMAD IQBAL KHAN (MEMBER).--- By this judgment we intend to dispose of these five appeals Nos.1650 to 1654 (K)CE/2001 as facts and question of law involved in these matters are identical.
2. Appeal No,1650(K)CE/2001 is directed against order dated 7-8-2001 whereby the service of the appellant was terminated under Article 7.3 (2) of the Karachi Shipyard and Engineering Works Ltd.
(KSEW) Officers Services Rules (Hereinafter referred as Officers Service Rules).
3. The brief facts giving rise to this appeal are that the appellant Muhammad Ilyas who is B. Tech Honour (Mechanical) was appointed in the respondent-Department as Tech Assistant Trainee (Mechanical) on 4-8-1976. He was promoted as Assistant Superintendent (As) on 22-10-1998 and was confirmed as Assistant Superintendent on regular basis on 21-10-1999. The respondents issued a circular dated 12-6-2001 whereby they introduced Golden Hand Shake Scheme, (hereinafter referred as (scheme) inviting options of the interested/officers for the purpose of retirement under the Scheme by 20-6-2001. As per version of the appellant he did not opt for the Scheme as he still had more than 14 years and 7 months service in his age of superannuation. The appellant was terminated vide order dated 7-8-2001. There is no provision of departmental appeal if the service of an officer is terminated under Article 7.3(2) of the Officers Service Rules. The departmental appeal was however, filed on 20-8-2001.
4. The learned counsel for the appellant's main reliance was that termination order was in conflict with the principle of law and natural justice as it was based on mala fide intentions. The learned counsel also argued that backdrop leading to the issuance of impugned order would show that it was based on allegation that the appellant had ceased to be efficient and as such under the relevant rules, issuance of charge-sheet holding of domestic enquiry and finally issuance of show- cause notice was a legal requirement before terminating the service of the appellant. The counsel further contended that the principle of natural justice involving show-cause notice, personal hearing etc. Is a settled principle, which should be read into all judicial and non-judicial proceedings. The counsel further argued that after terminating the services of the appellant the respondents recruited persons in his place and some of the new recruits possessed qualifications similar to those of the appellant. Hence this action of the respondents the counsel went on to argue, betrayed mala fide on their part. T'le respondents, the counsel pleaded had taken extreme action of terminating the service of the appellant under their own service rules, vide letter dated 7- 8-2001 when the removal from Service (Special Powers) Ordinance 2000 (hereinafter referred as Ordinance 2000) had come into force and that the action if required was to be taken under the provision of this Ordinance. The counsel averred that since the appellant had not opted for Golden Hand Shake Scheme (hereinafter referred as Scheme) floated by the respondents the indifference to the Scheme by the appellant caused annoyance to the respondent, which found expression in the termination of the services of the appellant. Finally, the counsel pleaded that the appellant was subjected to discrimination and some of his colleagues who were equally labelled inefficient were retained in service.
5. The learned counsel for the respondent's main thrust was that no stigma was attached to the termination of the service of the appellant as he had become surplus to their requirements. The counsel argued that it was a termination simplicitor invoked under the relevant terms of his appointment and Officer Service Rules. The counsel submitted that the respondents required Production/Design Engineers. Chemists and Marketing Personnel to attain professional excellence as the outlandish experience of the appellant was no longer relevant to the job requirements in the emerging situation of the industry in the global context. Regarding non-accepting of Scheme by the appellant resulting in ire and annoyance of the respondents and culminating into his termination of service the learned counsel argued that it was an afterthought and is a misconceived notion. Finally, the counsel contended that Ordinance 2000 was not applicable in the case as no stigma was attached with his termination, necessitating action under provisions of the Ordinance 2000 and invited our attention to case-laws reported in 2001 PLC (C.S.) 591 Supreme Court Judgment in Civil Appeals Nos.74, 75 of 1984 and No, 176-K of 1985, No,124 of 1986 and No,228- K of 1986 dated 23-10-1988 and 1983 PLC (C.S.) 600 in support of his contention
6. Arguments heard and record perused.
7. The termination order served upon the appellant on 7-8-2001, relevant provision of promotion order dated 22-10-1998 and Officers Service Rules are reproduced below for facility of reference: "KARACHI SHIPYARD AND ENGINEERING WORKS LTD. (ISO 9002 CERTIFIED).
' Dated 7th August, 2001 No, E-567 Mr. M. Ilyas, ASP. Spo. Purchase. Shipbuilding Division. KSEW Limited.
Karachi TERMINATION OF SERVICE Ref: Article 7.3(2) of Officers Service Rules ' Your services are hereby terminated with immediate effect with 90 days salary in lieu of notice period in terms of para-7 (iii) of you appointment letter.
' You are advised to collect your dues from the Accounts Department on production of clearance certificate in normal course. Sd/- (JAVED IQBAL) CAPTAIN (RETD). PAKNAVY GENERAL MANAGER (CORPORATE AFFAIRS)"
' Order dated 22-10-1998 "(iii) By 90 days notice on either side without assigning any reason or by payment of 90 days pay in lieu thereof or proportionate payment for the unexpired period of notice"
Officers Service Rules.
Rule 7.3 The Managing Director. May dispense with the service, of a confirmed Officer in the following manner:--
(1) xxx xxx xxx xxx xxx
(2) By giving 180 days'/90 days' /30 days' notice in writing (according to the terms and conditions in the case of the Officer concerned as stipulated in his letter of appointment) on either side without assigning any reason or by paying salary in lieu of such notice period of proportionate payment for the balance period of notice."
8.A plain reading of the above documents would show that the termination order apparently seems' to he in consonance with the provisions of his terms and conditions of service read with relevant rules laid down in Officers Service Rules. So far so good.
9.The respondents have placed on record a note dated 17-7-2001 written by the M.D. Of the respondent-Department below the list of the officers working in the S.B. Division which is also reproduced below:--{{TABLE}} S.No, Name . Designation E/No, I. Mr. M. Rayaz Nazamuddin DSP(SG)/Ag.M(SBF) E-358 2.X Mr. Shahid Hussain Siddiqui DSP(FP-II)SG E-128 Mr. Ijaz Ahmed DSP(PF-I)SG E.3000 Mr. Qutubuddin Bhatti ASP(PF-II)SG NOW ASP (TIC) E-467 5.X Mr. Abdul Rehman ASP (SBH) SG E-473
6. Mr. S. Abdul Wali (Retd) ASP(ML) E-550 7.X Mr. M. Ilyas ASP(PF)/Now ASP (SP) E-567 8.X Mr. Saifullah Deudpots M(SBF-OF) E-138 9.X Mr. M. Dawood Khan ASP(LSF) E-435
10. Mr. Muhammad Younus ASP (Pipes) E-551 Mr. Ghulam Hussain Abro M(Berth)SG E-152 Mr. M. Idrees DSP (Birth) SG E-297 Mr. Abdul Razzaque DSP(MOF) E-396 Mr. S. Iqbal Hussain ASP(ERM) E-560 15.X Mr. A.Q. MALLICK M(D&H) E-364 16.X Mr. A. Rauf DSP(D&H)SG E-160
17. Mr. Jamil Ahmed Khan M(Account) E.-125 18.X Mr. M. Talish Shahzad DSP (Elect) " E-419 19.X Mr. Shaheen Akhtar Khan ASP (Elect) E-561
20. Mr. M. Shafi M(SWCD)SG/Now DGM(SR) E-155 Mr. Sated Ahmed Qureshi M(SWCD)SG/Now S/Executive E-222 Mr. Muhammad Ismail M(SWCD)SG E-224 Mr. M. Afzal ASP(SWCD) E-521 Mr. Muhammad Shafique ASP(SWCD) E-523 Mr. Ghulam Hassan ASP(SWCD) E-549 Mr. Izhar Ahmed Usmani ASP(SWCD) E-563 Mr. Ejaz Asghar Malik ASP(SWCD) E-584 {{TABLE}} GM(CA)
(x)
1. These -officers are to be released from service as they have ceased to be efficient. My latest remarks on their ACRs are to be consulted. The notices as per KSEW rules be served to these officers.
2. Priority actions desired.
(Sd)
17-7-2001 GM(CA)
The termination letters be signed by GM(CA)
(Sd)
23-7-2001.
10. It will be observed from this note that the M.D. Had directed as under:--
(i) The officers marked as (x) in the list had become inefficient, hence to be released.
(ii) The MD had made similar remarks about the performance of these officers in their respective ACRs,
(iii) Notices as per KSEW rules were to be issued.
11. Let us now see how far these directions, the respondent department has implemented. The M.D.
Labelled appellant inefficient and freported about him in his ACR, which has to be consulted. Finally the M.D. Directed that notice be served to the officers identified by him in the above list with marking (X) including the appellant as per KSEW rules. The respondents were required, first to convey the advance remarks recorded in his ACR to the appellant by the M.D. And thereafter considering his representation if made against the adverse remarks either agree to what he has prayed or in the event of his representation having been turned down by the competent authority, issue him a notice under the relevant rules. Nothing has been brought on record that such adverse remarks were communicated to him and what was his reaction to the remarks if conveyed to him.
In the absence of any such record, we can presume that directions of the M.D. In his above referred note were not heeded to be by the Department. As the M.D. Had rated the appellant as inefficient and directed to issue him notice as per rule, the respondents should have acted accordingly. But they (respondents) failed to do so. The relevant rule 7.2 of the Officer Service Rules is reproduced below:-- 7.2 Punishment and Appeals.
7.2.1. Subject to the provisions of these regulations, an officer who commits a breach of the Rules and Regulations of the KSEW, or who displays negligence, inefficiency or indolence or who knowingly does anything detrimental to the interests of the KSEW or in conflict with its instructions or commits a breach of discipline or is guilty of any other act of misconduct or insubordination or who is convicted of a criminal offence shall be liable to any of the following penalties:--
(a) Minor penalties
(i) Censure.
(ii) Withholding of increments.
(iii) Recovery from pay of the whole or part of any pecuniary loss caused to the KSEW by the Officer's conduct.
(b) Major Penalties
(i) Reduction to a lower post or time-scale, or to a lower stage in a time-scale.
(ii) Removal from service.
(iii) Dismissal.
7.2.2. The Managing Director is the authority, who may in each case impose any of the penalties limited above. The Officer may prefer an appeal against his order to the Chairman of the Board of Directors, KSEW Ltd. However, in case of officers of the status of General Manager the punishments will be awarded after confirmation by the Board.
7.2.3. No order of dismissal or removal from service or reduction to a lower post or time scale shall be passed against an Officer other than an order based on his conviction in a criminal Court unless he has been served with a show-cause notice in writing to the grounds on which it is proposed to take such ,action and is afforded an opportunity of defending himself including personal hearing by the punishing authority whenever necessary. Before issuance of show-cause notice the Officer concerned shall be served with a charge-sheet containing charge/charges alongwith a statement of allegations on which each charge is based. He shall then be required to submit his explanation in writing within seven" days of receipt of the charge-sheet. On receipt of the explanation, if the Officer served with the charge-sheet so desires or if the Punishing Authority so directs, an enquiry shall be held by an Enquiry Officer appointed by the Punishing Authority. At that enquiry, evidence shall be heard and the Officer allowed to cross-examine any or all of the witnesses and produce his defence witnesses, if any, provided that the. Enquiry Officer may, for special an sufficient reasons to be recorded in writing, refuse to call any witness whose evidence' is irrelevant to the Enquiry. The Enquiry proceedings shall be reduced in writing in the form of a summary on the record of evidence and findings to the Enquiry Officer alongwith reasons thereto.
7.2.4. The above provision regarding Enquiry shall not apply in any case where in the office is charge-sheeted for , unauthorized absence from duty or where the officer while submitting his explanation to the charge-sheet has admitted the charges levelled against him.
7.2.5. All or any of the provisions of these regulations may, for special and sufficient reasons to be recorded writing, be waived where there is a difficulty in observing exactly the requirements of the regulations and those requirements can be waived without substantial injustice to the person charged. In such a case the Managing Director may call for an immediate explanation of the Officer concerned and pass orders thereupon.
12. The appellant was not issued any such notice in blatant violation of the direction of the M.D. Thus instead of adopting the proper, procedure of charge-sheet, enquiry, personal hearing and show- cause notice, the respondents adopted the summary procedure of termination simpliciter to avoid the hassle of lengthy, dilatory and complex disciplinary proceedings. The appellant had ceased to be efficient which was stigma pure and simple and required invocation of rule 7.2 of the Officer Service Rules as also admitted by the respondents which is reflected in para 2 of their comments which are reproduced as under:- "Para. 2 of the parawise comments.
' That the contents of para. 2 are denied. The officer had ceased to be efficient in the performance of his duties and could not match the desired. Requirements particularly in application of Engineering to solve problems. His performance was adjudged much below the desired standard."
13. We would have accepted the plea of the respondents, if they had said that the specialization of the appellant was no longer relevant to the work of the respondents and that on this basis his service was terminated, being no longer required. But they did not say so. They labelled him as inefficient but are shy to take action against him even as 'per relevant provision of their own rules i,e, rule 7.2.3. For reasons best known to them.
14. Next the learned counsel for the appellant has alleged that after terminating the services of the appellant, the respondents recruited a number of persons of the same qualifications as possessed by the appellant and some of them did not have any experience to their credit at all. The respondents have themselves placed on record a list of officers recruited by them since July, 2001 showing their qualification and experience and also placed on record the qualifications and experience of the appellant. The two lists attached with the letter dated 22-4-2003 are reproduced below:-- "KARACHI SHIPYARD AND ENGINEERING WORKS LTD. (ISO 9002 CERTIFIED).
' No, MDS-13-143(a) Date: 22nd April, 2003.
Ch. Rahseed Ahmed, Advocate High Court. 105 A-Amin Tower, Gulshan-e-lqbal, Karachi.
' APPEALS NOS.1650 TO 1654 OF 2001 (5 APPEALS) Dear Sir, ' Please refer to your letters dated 2nd April, 2003 and 2 April, 2003 and 21 April, 2003 on the L.Ptioned appeals requiring clarification with regard to queries raised for Federal Service Tribunal are as under:--
(a) The noting prior to issuing termination letter is the complete record on the file. The MD was monitoring the progress of Shipbuilding Orders himself, which was reflected in the confidential report of the Officers is pointed out by him. MD's note on the file relating to the comments on the file may be relevant here and are enclosed for any action deem fit.
(b) The comparative charge with the desired data in respect of newly inducted officers is enclosed.
It needs to be pointed out here that no Officer was inducted in their replacement. The Officer in other specialties mainly in Ship Design and other specialization where the terminated officer had no utilization.
' JAVED (IQBAL) Captain (Retd) Paknavy General Manager (Corporate Affairs) Encl: as above"
KARACHI SHIPYARD-AND ENGINEERING WORKS LIMITED LIST OF OFFICERS APPOINTED SINCE JULY, 2001. {{TABLE}} S. No, Name Desig. Qualification Experi- ence Date of app Date left KSEW 2 3 4 5 6 7 I. Mr. Zeeshan E-591 Design Engineer B.E. (Elect) 19-7-2001 24-9-2001 Mr. All Ashar Jafri E-594 Do. B.E. (Indus/ Electro) -- 19-7-2001 24-8-2001 Mr. A.. Walla!) Malik E-595 Do B.E. (Indus/ Electro) -- 20-7-2001 26-3-2002 Mr. Linranul Hay E-596 Do B. Electrical 30-7-2001 24-8-2001 Mr. S. Muzammil All E-597 Do B Electrical 7-8-2001 31-12-2001 Mr. M.
Muzamal E-599 Marine Engineer B Electrical 12 years in various fields 9-8-2001 26-9-2002 Mr. Yasir lqbal E-600 do B.Sc. Marine Engg. Apprenticeship 20-8-2001 19-3-2002 Mr. Javed Siddiqui E-603 Do FSc. Marine Engg. Apprentice- ship More than 11 years on various ships 22-8-2001 19:2-2002
9. Mr. S. Tariq Muzafar E-604 Do BSc. Marine Engg. Apprentice- ship More than 10 years on various ships. 9-12-2002 13-3-2002
10. Mr. M.
Ibrahim Memon CD-09 DSP (Ship repair B.E. (Mech) More than 5 years in various fields. 15-8-2001 21-3-2003
11. Mr. M. Akbar E-60I Design Engineer E.E. (Mech) 10-8-2001 31-8-2001
12. Mr. Abubakr Asir E-602 Do E.E. (Mech) 27-9-2001 16-11-2001
13. Mr. Mansoor All E-60 Ahmed E-601 M (Fin.
Accounts) B.Com. ' ACM A 17 years experience in various capacities 27-9-2001 23-9-2002
14. Mr. Mairaj Ahmed E-610 Mech Engineer/ GE B.E. (Mech) '1:10-2001 26-12-2002
15. Mr. Atif Hanieed CD- 015 ASP(TTC) B.E. (Mech) -- 11-122002 On roll
16. Mr. Farhan Ahmed E-606 Design Engineer B.E.(Mech) 11-12-2002 On roll
17. Mr. A. Zahid Khan E-592 Do B.E. (Mech) 19-7-2001 On roll
18. Mr. Danish Zafar E-593 Du B.E. (Mech) 19-7-2001 On roll
19. Mr. Shakil Ahmed E-598 Do B.Sc. MBA. BBA. June, 98 to Jan. 2001 Asstt.
Area Mgr. In (G.S.) 23-7-2001 On roll
20. Mr. Mukaram Habib E.612 Sales Executive B.Com. MBA. 11 years in various posts. 6-2-2002 On roll
21. Mr. S. Lybal Hussain CD-04 Manager (Marine) B.Sc. Reid.
Naval Lt. Cdr. 9-9-2002 On roll
22. Mr. Sohail John CD-11 DSP/Ship- building Marine Engg.
Apprn. 88-02 on var. Ships 12-12-2002 On roll
23. Mr. Azhar A.
Choohan. CD- 13 DSP/Ship- building BE(Eelectro -nits) . 11-12-2002 On roll
24. Mr. Humyun Kabir CD-1.4 ASP . I lect)
'1,11( BE (Indus.
Electro) 16-12-2002 On roll Mr. M. Ancedl CD-16 ASP(TTC) BS(Electro- nits) -- 12-12-2003 On roll Mr. Bilal Ahmed CD-06 ASP(SD) B.E. (Mech) -- 1-1-2003 9-4-2003 Resigned Mr. Hamid Mushtaq CD-(7 ASP (SD) B.E. (Electrical) 6-2-2003 On roll KARACHI SHIPYARD AND ENGINEERING WORKS LIMITED OFFICERS TERMINATED S.No Name Desig.
Qualification Experience Date of apptt. Date of left KSEW I 2 3 4 5 6 7 I. Mr. A.Q Mallick M(Deck & Hodl) SB B.E. (Mech) 19 years in various capacities 8-2-1982 8-8-2001 Mr. M.
Dawood Khan ASP (LSF) /SB B.Sc. (Mcc1ii Fogg) 1-1. )c,i,s J., ASP 13-4 !WO 7-8-2001 Mr. Abdul Rehman ASP (SBH)/SB B.E. (Mech) 12 years as ' ASP 10-9-1989 7-8-2001 Mr. Shahid H. Siddiqi DSP(PF)/ SB B.Sc. Diploma (Mech) 28 years experience 5-1-1973 7-8-2001 Mr. M.
Ilyas ASP (SP)/ SB B. Tech
(Hons) . 25 years experience 4-8-1976 7-8-2001 {{TABLE}}
15. It will be observed from the list of officers recruited since July, 2001 that officers at serial Nos.1 to 5, 11, 12, 14 to 18 and 23 to 27 have no experience at all. Officers shown at serial Nos.6, 8 to 19,13, and 19 have experience ranging from 5 to 17 years. Officers at serial Nos.14 to 18 and 26 hold qualification equivalent to those of the appellant. Thus assertion of the learned counsel for the respondents that the Officers recruited from July, 2001 onwards possessed different qualifications in different disciplines and carried more experience is not correct and reinforces the argument of the opposite counsel that the appellant's services were terminated without any justification and were simply meant to pave the way to recruit their favourites in the resultant vacancy.
16. The assertion of the learned counsel for the respondents that Ordinance 2000 was not applicable in the case of the respondent department is also not correct. Sections I1 and 12 of the Ordinance stipulate as under:-- ' Sections 11 & 12 "11. Ordinance to override other laws.---The provision of this Ordinance shall have effect notwithstanding anything to the contrary contained in the Civil Servant Act, 1973 (LXXI of 1973), and the rules made thereunder and any other law for time being in force.
12. Proceedings under this Ordinance.--- All proceedings initiated on the commencement of this Ordinance in respect of matters and persons in service provided for in this Ordinance shall he governed by the provisions of this Ordinance and rules made thereunder: ' Provided that the Federal Government may, by notification in the official Gazette, exempt and class or classes of employees of a Corporation, a corporate body, authority, statutory body or other organization or institution set up, established, owned, managed or controlling share or interest from the provisions of this Ordinance and such class or classes of employees shall, notwithstanding anything contained in this Ordinance, be proceeded against and dealt with under the law and rules applicable to such employees before the commencement to this Ordinance"
17. Ordinance .2000 is equally applicable to the respondent department as is evident from perusal of section 2 (c) of the Ordinance 2000 which is as under:-- "2(c) person in corporation service" means every person in the employment of a corporation, corporate body, authority, statutory body or other organization or institutions set up, established, owned, managed or controlled by the Federal Government, or by or under any law for the time being in force or a body or organization in which the Federal Government has a controlling share or interest and includes the Chairman and the Managing Director, and the holder of any other office therein; and"
18. The respondent-Department cannot claim any exemption from the application of this Ordinance save as laid in the proviso to section 12 of the Ordinance 2000 as reproduced above.
Section 3 of the Ordinance 2000 deals with dismissal, removal and compulsory retirement etc. Of certain persons in Government or Corporation service, etc. Section 3 (1) (a) is reproduced as under:-
(1) where in the opinion of the competent authority, a person in Government or Corporation service, is---
(a) inefficient or has ceased to he efficient for any reason; or [is guilty of being habitually absent from duty without prior approval of leave, or!
19. The appellant, in the instant case as per version of the M.D. Has ceased to be efficient and as such, action against him is required to be initiated under section 5 of the Ordinance 2000 which, inter alia, involves issuance of charge, sheet holding of enquiry (unless dispensed with under section 5(4) of the Ordinance 2000) granting personal hearing which procedure is closer to what has been laid down under rule 7.2.3 of the Officer Service Rules of the respondent-Department.
Hence we feel that the case-laws as mentioned by the learned counsel for the respondents are not relevant in this case. NO exemption from application of the Ordinance 2000 has been granted to the respondent-Department in the form of notification and as such provision of Ordinance 2000 is applicable in the appellant's case.
20. The learned counsel for the respondents dilated at some length that the Ordinance 2000 was not applicable in the case of the appellants on the analogy of the Corporation Employees (Special Powers) Ordinance 1978 (hereinafter referred as Ordinance 1978) and stressed that section 3 of the Ordinance, 1978 was not applicable the case of employees of the Corporation removed from service reverted to lower post or grade in terms of their letter of appointment read with their respective service rules. The full text of the Ordinance 1978 reads as under:-- "ORDINANCE XIII OF 1978 CORPORATION EMPLOYEES (SPECIAL POWERS) ORDINANCE 1978 An Ordinance to invest the President with certain powers in respect of persons in Corporation service [Gazette of Pakistan, F,xtraordinary I, 19th March 1978] ' No, F.24(1)/78-Pub---The following Ordinance made by the. President on the 16th March, 1978, is hereby published for general information:-- ' Whereas it is expedient ' to invest the President, with certain powers in respect of persons in corporation service: ' And whereas the President is satisfied that circumstances exist which render it necessary to take immediate action.
' Now, therefore, in pursuance of the Proclamation of the fifth day of July, 1977, read with the Laws (Continence in Force) Order, 1977 (C.M.L.A. Order No,1 of 1977) and in exercise of all powers. Enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance:-- ' Short title and commencement. (1) This Ordinance may be called the Corporation Employees (Special Powers) Ordinance, 1975.
(2) It shall come into force at once.
2. Definitions.-In this Ordinance, unless there rs anything repugnant in the subject or context, "person in Corporation service" means every person who is in the employment of a Corporation or an institution set up established, managed or controlled by the Federal : Government, and includes the Chairman and the Managing Director of, and the holder of any other officer in, such corporation or institution.
3. Certain persons to be liable to removal or reversion.-- Notwithstanding anything contained in any law for the time being in force; or in the terms and conditions of service, a person in corporation service appointed or promoted during the period from the first day of January, 1972, to the fifth day of July, 1977, may be removed from service, or reverted to his lower post or grade, as the case may be, without notice, by the President, or a person authorized by him in this behalf, on such date as the President, or as the case may be, the person so authorized may, in the public interest, direct.
4 Representation.---A person who is removed from service' or reverted to a lower post or grade under section 3 may, within fifteen days from the date of receipt of order of removal or reversion prefer a representation to the President: ' Provided that, where the order of removal or reversion has been made by the President, such person may, within the time aforesaid submit to the President a petition for review of the order.
5. Service of corporation to be service of Pakistan etc.---Service of a corporation is hereby declared to be service of Pakistan and every person in corporation service who is removed from service, or reverted to a lower post or grade, under this Ordinance, not being a person who is/on deputation to a corporation from any Province, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973 (LX X of 1973).
' To strengthen his arguments, the learned counsel for the appellant invited our attention to case- laws reported in 1983 PLC (C.S.) 800 and Supreme Court Judgment dated 23-10-1988 and Federal Service Tribunal judgment dated 19-5-2000. The operative parts of these judgments are reproduced below to grasp and (gauge the import of these orders vis-a-vis the respective service rules and the Ordinance 2000.
' 1983 PLC SC 600 "There is no doubt that the service of every Government controlled Corporation has been declared to be Service of Pakistan under the Ordiannce, nevertheless, this does not confer any right on the employee of a corporation to become ipso facto a civil servant for all purposes under the Service Tribunals Act, 1973. The definition of the terms 'Service of Pakistan' is embodied in Article 260 (1) for interpreting the provisions of the Constitution, specially Article 240 which relates to appointment to Service of Pakistan, and condition of service and Article 63 read with Article 127 which provides for disqualifications of a person in service of Pakistan from being a Member of Provincial Assembly or of Parliament section 5 of Ordinance itself does not make an employee of a corporation, a civil servant within the definition given in the Civil Servants Act, 1973, saying plainly, a person who is in the 'Service of Pakistan' is, not necessarily a civil servant for all purposes."
"It is clear enough that under the Ordinance, only those persons can suffer penalty who are appointed to or promoted during the period Ist January, 1972 to the 5th July, 1977. It is not the case of the appellants that they were appointed during this period. Their service was not terminated under the provisions of section 3 of the Ordinance, but they were penalized under the Efficiency and Discipline Rules applicable to them. The jurisdiction of this Tribunal would have come into motion only if the appellants had been removed from service under section 3 of the Ordinance, Such removal is to be made by the President or by a person authorized by him to do so. By no standard, the cases of the appellants fall under section 3 of the Ordinance, and consequently the jurisdiction of the Tribunal under section 5 ibid does not extend to these cases."
' Supreme Court judgment dated 23-10-1988.
"Having examined the several sections of the Ordinance it becomes clear that when an action is taken for removal or reduction to a lower post or grazed of a person in Corporation service appointed or promoted within a prescribed period under section 3 of the Ordinance, it is only then that the person is service of Corporation by a legal fiction is given the status of a civil servant for the purpose of invoking the remedy by way of an appeal before the Service Tribunal. Besides this remedy the other two remedies by way of representation and review are provided in the same situation."
"Therefore, Article 212 of the Constitution is not an impediment for them to seek relief from the High Court if they feel aggrieved by an illegal order of removal or dismissal or imposition of any other penalty by or under any law or regulation. The appellants in all these appeals were not dealt with under this Ordinance and therefore, they are not hit by Article 212 of the Constitution of the Islamic Republic of Pakistan 1973."
' Federal Service Tribunal Judgment dated 19-5-2000.
' Para 7. "The services of the appellant have been dispensed with in accordance with the terms and conditions of his contract and rule 21 of the Corporation Service Rules without any stigma. It is a termination simpliciter and even otherwise is justified in the circumstances of the case. We therefore do not propose to interfere with the discretion exercised by the Authority. The appeal has no merits and is dismissed accordingly with no orders as to cost. Parties be informed."
21. On the strength of the above judgments the learned counsel for the respondents built and justified the case of the respondents that since no sigma was attached with the termination of the service of the appellant it was simply a termination simplicitor as per his terms of appointment and service rules and not as per provision of section 3 of the Ordinance 2000, we are not inclined to share with this tine of argument as in the appeals in hand the background reveals that the appellant's service was terminated as he had ceased to be efficient as is clear from the note of the M.D. Dated 17-7-2001 and therefore his case clearly fell within the mischief of section 3 (a) of the Ordinance 2000 and that this very fact precludes the application of the relevant terms of appointment and service law. The case of the appellant as mentioned elsewhere in this order, is required to be dealt with in accordance with the procedure laid down in the Ordinance 2000. The termination of the service of the appellant was not termination simplicitor as claimed by the learned counsel for the respondents as it was attributable to his having become inefficient which he denied in the departmental appeal dated 20-8-2001 on the around of having been confirmed vide order dated 2140-1999.
' We think that the arguments advanced by the learned counsel for the respondents do not seem to cut any ice when these are scrutinized/examined closely in the light of the case-laws he has himself provided and the backdrop leading to the issuance of the impugned orders in the present appeal as adequately discussed above.
22. Next the learned counsel for the appellant has alleged that Golden Hand Shake Scheme was flouted by the respondents to adjust and appoint their own persons against the resultant positions becoming available to the department on the retirement of the appellant and others opting for the Scheme. The appellant has indicated 10 persons in para 5 of the Memo of appeal who according to him were employed on hefty salaries. The respondents gave omitted any mention of these persons identified by the appellant in their comments, which means that they have admitted the contents of the para.
23. Now reverting to the argument advanced by the learned counsel for the appellant that the Golden Hand Shake Scheme was in fact designed to shed the staff not required by the respondents who had become surplus to their needs as it was anticipated by the respondents that by voluntarily accepting the scheme in large numbers, financial health of the department would show improvement. The circular dated 31st May, 2000 inviting options for Golden Hand Shake Scheme is reproduced to gauge the intent of the employers:-- KARACHI SHIPYARD AND ENGNEERING WORKS LIMITED Ref: Admin/GHS/2000 Dated 31st May, 2000 CIRCULAR ' As you are aware, KSEW has been facing acute financial crisis for the past few years which are attributable to lack of business, underutilization of capacity, overstaffing, withdrawal of subsidy on shipbuilding etc. These factors have accumulatively contributed towards worsening of financial position, mounting up liabilities against employees, banks, suppliers contractors, providers of health and utility supplies and drastic reduction in volume of business. Despite best efforts of all concerned KSEW has not been getting orders for generation of requisite revenue to meet the running expenses.
' The KSEW at present, is not in a position to make payment against out-of-Court settlements with some of the parties which may lead to more serious legal implications in the next future. The most serious problem frequently confronted by the KSEW has been the shortage of requisite funds for making payment even to its bona fide work force on due dates. Under such circumstances, the BMR and preventive maintenance of KSEW's plants machinery and structures remained unattended which also badly eroded these facilities with consequently adverse effects on the business.
' The poor financial state of affairs has been, for the last few years, a subject of serious concern for the Management and the Ministries of Defence and Finance various options for managing the crisis situation were considered and advise was also sought from financial and legal consultants but not worthwhile solution could be found to improve the financial health of KSEW.
' Now that the KSEW is at the verge of financial collapse it is vitally important that this strategic national industry is saved from closure through downsizing/rightsizing so as to drastically cut down its recurring expenses without affecting the productivity and thus making it a viable organization.
This is in fact a sequel to a case of restructuring of KSEW submitted to the Government of Pakistan in 1998 which culminate eventually in the shape of a Golden Handshake Scheme. The implementation of the Scheme was not possible so far for want of requisite funds. Now Pakistan Navy has been kind enough to provide interest free loan to KSEW for funding the Golden Handshake Scheme.
' In the light of above, a Golden Handshake Scheme is being offered to the permanent employees of KSEW. This GHS package has been designed in the best interest of the employer and the employees. The Management hopes that the employees will accept the scheme in a positive way.
A detail of scheme with Option Form for GHS is enclosed with this circular. Option Forms may be obtained from Administration Department by those interested to opt, and returned duly filled by the specified date.
' This is issued with the approval of the Managing Director.
(Sd.)
(G . S .JATOI)
General Manager (Admin)"
24. It will be significant to note the dates of the issuance of the circular which is 31st May, 2000 and the issuance of the impugned order dated 7th August, 2001. It seems that the response to the Scheme was not very encouraging for the employers and this forced them to resort to summary termination of services some employees including the appellant by invoking provision of para 7(iii) of their letter of appointment. It also appears that some of the employees who in the perception of the respondents had ceased to be efficient and whom they wanted to shed did not exercise the option in favour of the Scheme. There appears to be some merit in the insinuation of the learned counsel for the appellant that the employers avenged the non-cooperation of such employees for not accepting the Scheme and showed them exist by way of summary procedure of termination of service by invoking provision of the rules which the respondents deemed would be least controversial and offered a quick fix solution through truncated procedure to shed the undesirable burden. It took one month and 18 days after the close of date of option for acceptance of the Scheme on 20-6-2001 to take a decision to dispense with the service of the appellant. We, therefore, feel that there is nexus between non-accepting of the Scheme by the appellant and his termination from service.
25. The learned counsel for the appellant has placed on record a letter dated 17th Oct.1989 addressed to the Chairman, Pakistan Engineering Council by the M.D. Of the respondent- Department which reads as under:-- "KARACHI SHIPYARD AND ENGINEERING WORKS LTD.
Without Prejudice.
West Wharf Karachi-2 Pakistan No, MDS-10-9 Dated: 17th October, 1989.
' The Chairman, Pakistan Engineering Council, 52 Margala Road, F-613, P.O. Box 1296 Islamabad.
' Dear Sir, ' This is in continuation of our even numbered letter of 4th June, 1989 and the correspondence between PEC and KSEW on the subject-matter, This also refers to you kind visit of KSEW along with some of the member of the Executive Committee of PEC, in which we discussed with you the problems of our technical officers and graduate engineers in the context of specialized nature of work being done at KSEW.
' Elaborating on our view point, I once again take this opportunity to inform you that the principal activities of KSEW, a unique organization in Pakistan, are shipbuilding and ship repairs. The pre- requisite qualifications for the technical personnel in these fields are degree in Naval Architecture and marine transport. Presently there is no institution in Pakistan which offers degree courses in these disciplines.
' Shipbuilding is more of a state of the art rather than a conventional industry manufacturing engineering products. During the first decade (1955-1965) of the establishment of KSEW, a team of German shipbuilders trained KSEW officers in every phase of shipbuilding process at KSEW, and at the same time the technical personnel of KSEW, graduates and non-graduates, continued to be sent to reputable shipyards abroad for obtaining specialized training. Now KSEW possess a team of trained and experienced technical personnel in every department of shipbuilding matching international caliber of experience, except in the field of designing of ships, which are acquired from abroad. To undertake basic engineering and determination of optimum design parameters of a ship, services of specialized institutions are indispensable such as model Tank Test Basin which does not exist locally due to its exorbitant set-up coasts and limited scope in Pakistan.
' Similarly on the ship repair side, KSEW employees Marine Engineers who have considerable sailing experience to their credit (MOT I and ii class). These personnel are best suited to the job requirement, who besides understating the language to ship operating staff are well-conversant with -the operational requirements of various ships's systems and machinery under arduous sailing conditions. Experience has shown that simple graduate mechnical/elect. Engineers have failed to carry out repair business smoothly and profitably.
' In the light of the above discussion/background and the special type of work carried out a KSEW as it is the only Shipbuilding and Shiprepair Yard of Pakistan, it is requested that KSEW and kindly be exempted from the provisions of PEC Act, on the same analogy as organizations like Armed Forces, T&T, Pakistan Atomic Energy Commission. Radio Pakistan etc, have been exempted. Yours faithfully For Karachi Shipyard and Engineering Works Limited, (Sd.)
(M.Naeem Beg) HI(M) S.Bt. Rear Admiral Managing Director"
26. The M.D. Is full praise for the cadre of professionals and specialists trained over the years by the department and is in a way proud of its team of trained and experienced technical persons in every department of shipbuilding matching international caliber of expertise except in the field of designing of ships where experts are acquired from abroad. He has described shipbuilding as a state of the art rather than a conventional Industry. The literal meaning of "state of the art is the most modern or advanced techniques or methods. It is not understood that expertise know-how and skills accumulated over the years in the industry by the appellants have lost their utility to the employers. It is true that some departments such as designing of ships were deficient of the requisite expertise which could be inducted to strengthen the weak areas but to remove the trained manpower at a wink is not an appropriate course specially at the prime of their youth when the experience gained in shipbuilding is irrelevant elsewhere.
27. Next pertinent point raised by the counsel for the appellant that the appellant has been subjected to want on discrimination is also borne out by the fact that the M.D. In his note dated 17- 7-2001 had marked 8 officers to be released but only 5 including the appellant was shown the door and others were retained without any justification/reasons. Their .Retention in service seems to be an afterthought for which no plausible reason has been advanced by the learned counsel for the respondents.
28. Taking into account the above features of the case we find legal and factual infirmities with the impugned order and firmly believe that order of termination of service of the appellant is not regally sustainable and does not stand the test of close scrutiny and examination as carried out above. Accordingly, the termination order dated 7-8-2001 is set aside and the appellant is reinstated into service with effect from the date of his termination from service without back- benefits. The intervening period between his termination and reinstatement shall be treated as leave without pay. The respondent-Department shall be at liberty to institute and complete disciplinary proceedings against the appellant as per law within 6 months of the date of this order under intimation to the Registrar of the Tribunal.
29. The above order is also applicable in appeals Nos.1651, 1652, and 1653 and 1654(K) CE/2001.
30. No orders as to costs.
31. Parties are informed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.