2003 PLP (C (PLC(CS))

Date of hearing: 26th September, 2002. SARDAR MUHAMMAD RAZA, J.‑‑Muhammad Janan son of Badshah Gul of District Karak, on 1‑7‑1975 was appointed by Pakistan Mineral Development Corporation at Bahadurkhel Salt Quarries in Pay Scale Rs.125‑‑5‑‑

175. He was assigned the job of a Shot Firer of which he subsequently got in service training. On 12‑7‑1975 he was given the responsibility of all works of blasting and drilling etc. Owing to his specialization, no other person was allowed to handle the blasting powder/safety fuse as required under the Mines Act, 1923.

2. The Project Manager, Pakistan Mineral Development Corporation, Bahadurkhel, vile Order No.SQB/3‑ET/266 retired Muhammad Janan from service with effect from 21‑9‑1999, for the only reason of acute financial problems. His departmental appeal was rejected on 12‑10‑1999, where-after he filed Appeal No.372(P)/1999 before the Federal Service Tribunal on 11‑11‑1999. The same was rejected vide order dated 14‑12‑2000 on the ground that since the petitioner has been terminated in accordance with Industrial and Commercial (Standing Orders) Ordinance, 1968, the same was legal and hence unexceptionable. The employee has tiled this petition for leave to appeal.

3. We have heard Mr. Habibul Wahabul Khairi, learned Advocate Supreme Court for the petitioner and Mr. M. Munir Peracha, learned Advocate Supreme Court for the respondents/caveators.

4. The order of dismissal bears two peculiar features. Firstly that it is neither removal nor dismissal but a simple retirement for all intents and purposes. Secondly, that the retirement was resorted to because of financial constraints. Both the aspects need to be dealt with independently.

5. The appointment order (Annexure A, page 14 of Papers Book I) is clearly suggestive of the fact that the petitioner s service was governed by Pakistan Mineral Development Corporation Rules enforced from tithe to time: On our demand and with sonic delay, we could get such rules from the learned counsel for the respondents. Rule 36 deals with the retirement, as admittedly has been done in the case of the petitioner. It provides in abundantly clear terms that the employees of the kind of the petitioner would retire from service on attaining the age of 60 years. Admittedly, in the instant ease the age of the petitioner was not 60 years by the time his retirement was ordered with effect from 21‑9‑1999. The retirement is, therefore, illegal at the face of it. This also leads us to realise that the conclusion drawn by the Service Tribunal was totally invalid because it went on the wrong premises of termination and dismissal, which, it was riot in the instant case. The Tribunal should have appreciated the vires of the retirement as such. We hold that the petitioner could not be retired from service without attaining the age of 60 years.

6. The second aspect of the order was that the retirement was a result of financial constraints of the department. We have gone through the record extensively and have observed that this too, was a mere pretext for a poor employee like the petitioner. The department soon thereafter appointed another Noor Saeed and upgraded one Muhammad Raza (pages 3 and 4 of Paper Book‑II). Soon after his so called retirement, the competent authority on 21‑1‑2000 promoted as many as 25 officers to higher grades. Similarly another batch of 26 officials were promoted on 11‑4‑2000 (pages 32 to 35 of Paper Book‑I).

7. The learned counsel has tiled numerous documents (Paper Book‑II) in the shape of clippings from different newspapers proclaiming extremely healthy and prosperous financial condition of PMDC. There are numerous documents on the, not refuted by learned opposite Counsel which indicate that in case of retrenchment the employees were to be given golden handshake. It seems to be misfortune of the petitioner that he was neither given golden handshake nor retirement at appropriate time. The service of a very senior and experienced employee were dispensed with on the pretext of retirement` without any just cause. We are of the view that in case of retirement before superannuation, the petitioner was entitled to be given notice which was not done in the instant case. The Service Tribunal tailed to appreciate the matter in its true perspective and mixed up the termination of an employee with the factum of retirement.

8. Consequently, the petition after conversion into appeal is hereby accepted. The impugned judgment dated 14‑12‑2000 is set aside and the order is passed to the effect that:‑‑ (a) if the appellant, as per service record, has by now attained the age of 60 years, he shall be deemed to have retired on such date with all back and future benefits; (b) if he has not attained the age of 60 years, he is reinstated in service with all back benefits. M.B.A./M‑714/S Appeal accepted.