2002 PLP (C (PLC(CS))

2. All the General Managers and Administrative Units of PTCL, are directed to implement the above decision. (Sd.) (MIAN NAZIR AZHAR), DIRECTOR GENERAL (ADMIN.)"

6. The perusal of the above two letters issued by the respondents Company has brought forth an interesting anomaly. On one hand, the service of all the appellants has been terminated having been appointed during the ban period viz. 1991, 1992, 1993 and 1994 the years during which the appellants were appointed on various jobs. On the other hand, the same respondents have issued instructions to regularize the service of persons working on daily wages and ad‑hoc employees and refraining from lay‑off, which had put in more than 4 years' service. Through this very letter, the employees working against leave vacancies are also to be adjusted and if terminated earlier, be taken back on duty. If the period of 4 years is computed in reverse from the date of issuing of this memorandum, the same also includes the period of so‑called ban period during which most of the appellants were appointed. In our view this is clear discrimination by the respondents Company vis‑a‑vis various groups of their employees. On one hand the employees appointed on ad‑hoc basis and against leave vacancies are ordered not to be retrenched and on the other hand the employees. (appellants) appointed against clear vacancies have been terminated on the pretext of their appointment having taken place during ban period. It may be mentioned to make the purpose of this memorandum dated 26‑2‑1997, more glaring, as the memorandum of settlement mentioned in this memorandum is dated 6‑10‑1996. This memorandum of settlement dated 6‑10-1996 is available in the record of the appeals in hand, pushing the period of four years further back in past, covering the period of appointment of most of the appellants.

7. The learned counsel for the appellant has invited our attention to decision in Appeals Nos.3,4 to 26(K) of 1997 regarding Muhammad Ramzan and others v. Divisional Engineer, Telegraphs, Sukkur Division and two others delivered on 29‑5‑1997, while allowing their appeals. The appellants in these appeals were appointed as Telephone Operators by the respondent Company in the year 1991 and they were terminated vide order dated 1‑3‑1995 for being no more required. The facts of the appeals being disposed of by this Judgment are similar and so also the parties (respondents are also identical) inasmuch as, the appellants were terminated on 4‑4‑1995 and 9‑4‑1995 while the appellants in the judgment being relied upon were terminated a few days earlier viz. on 1‑3‑1995. The same ground of appointment during ban period has been discussed and the appeal allowed, in respect of Appeal No.2710(K) of 1937 tiled by one Muhammad Qasim against the same respondents. And yet in an order set of Appeals Nos.99 to 120(K) of 1995, preferred by Muhammad Younus and others, this Tribunal through judgment dated 4‑3‑1996, the same question of ban period taken as ground for terminating the service, was held as illegal and ultra vires and the appeals were allowed and the appellants ordered to be reinstated in service with all back benefits. It is also matter of the record that the respondent Company ha d in the first instance challenged the verdict of this Tribunals in the case of appellant Muhammad Ramzan and others before the Hon'ble Supreme Court, but subsequently the respondents withdrew the Civil Appeal No. 1434 of 1.997 vide order of the Hon'ble Supreme Court dated 23‑10‑2000. The same is reproduced as under:‑‑ "ORDER SHEET IN THE SUPREME COURT OF PAKISTAN Civil Miscellaneous Application No. 1419 of 2000 In Civil Appeal No. 1434 of 1997. Divisional Engineer Telegraph ..Petitioner(s)/ Sukkur Division and others Appellant(s) Versus Muhammad Ramzan . .....Respondent(s) On appeal from the judgment and order of the Federal Service Tribunal Camp at Karachi dated 29‑5‑1997 in Appeal No.3‑K of 1997 Prayer: That the appellant may kindly be allowed to withdraw all these appeals in the interest of justice Date of Order of Proceeding Order of Chief Justice or Judge 23‑10‑2000 Present: Mehr Khan Malik, A.O.R. for the appellants. The learned A.O.R. for the appellants has stated at the bar that the appellants (PTCL) have decided to withdraw this appeal, in the lerger interest of the Department and the employees vide application placed in C.A. No. 1434 of 1997. This appeal is, therefore, allowed to be withdrawn and as such is dismissed with no order as to costs. (Sd.) MUHAMMAD BASHIR JEHANGIRI Photostat copy of the certified copy has been produced by the appellants.

8. The perusal of the arguments advanced on behalf of the appellants and the case‑law relied upon by them shows that the same authority which had passed an order in favour of an employee, this authority could not be 8 allowed and justify the cancellation and withdraw the same order and the benefits accruing therefrom on the pretext that the same was irregular and against the rules. This view has been elaborately discussed by the Hon'ble Supreme Court in 1996 PLC (C.S.) 927, Director Social Welfare N.‑W. F. P., Peshawar v. Sadullah Khan, the relevant portion of the judgment of the Hon'ble Supreme Court is reproduced as hereunder: "

6. It is disturbing to note that in this case petitioner No.2 had himself been guilty of making irregular appointment on what has been described on 'purely temporary basis'. The petitioners have now turned around and terminated his services due to irregularity and violation of rule 10(2) (ibid). The premise, to say the least, is utterly untenable. The case of the petitioner was not that the respondent lacked requisite qualification. The petitioners themselves appointed him on temporary basis in violation of the rules for reasons best known to them. Now they cannot be allowed to take benefit of their lapses in order to terminate the services of the respondent merely because they have themselves committed irregularity in violating the procedure governing the appointment. In the peculiar circumstances of the case, the learned Tribunal is not shown to have committed any illegality or irregularity in reinstating the respondent."

9. The question of discrimination, the appellants have been targeted, to has been discussed in 1997 PLC (C.S.) 1113, by the` Hon'ble High Court, Lahore in the case of appellant' Muhammad Asim and others v. Telecommunication and others. The termination of the employees by the respondent‑Corporation in discriminatory manner and on extraneous r consideration has been held to be of no legal effect and without lawful " authority. The para. 7 of this judgment being relevant to the case in hand is reproduced as under:‑‑ "

7. In this view of the matter, the impugned action of the respondents against the petitioners is declared to be without lawful authority and of no legal effect. The similar action on administrative ground otherwise than as a penalty against all other employees/workmen who have either been terminated from service recently or in the process of termination is declared to be without lawful authority and of no legal effect provided they were appointed before 1‑1‑1996 on daily wages/ad‑hoc/work‑charge, etc., with or without breaks."

10. As far as the principle of natural justice is concerned it has been held by the Hon'ble Supreme Court that no one should be condemned unheard. Keeping in view the maxim, audi alteram partem, the relevant 0 portion of the judgment of the Hon'ble Supreme Court delivered in Civil Appeals Nos. 330 to 337 and 436 of 1999, PIAC through its Chairman and others v. Nasir Jamal Malik and others is reproduced hereunder: ‑‑ "We have considered the arguments so advanced by both the sides in this behalf. It may lie' 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 betaken 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 arguments reference may be made to Chief Commissioner Karachi v. Mrs. Dina Sohrab Katrak (PLD 1959 SC (Pak.) 45); (ii) Messrs Faridsons Limited. Karachi quid 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 Ahmad (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 another (PLD 1987 SC 304), (ix) Khalil uz Zaman v. Supreme Appellate Court, Lahore and 4 others (PLD 1964 SC 885), (x) Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158, Naushero Feroze and others (1994 SCMR 1299) and (xi) Faqir Ullah v. Khalil‑‑uz‑Zaman and others (1999 SCMR 2203)." We have been further fortified in our view by yet another monumental judgment delivered by august Supreme Court of Pakistan in C.P.L.A. of Engineer Naraindas and others v. Sui Southern Gas Company Limited and Saleem Mustfa Shaikh cases. It may be added with due respect that the respondent in these appeals failed in their efforts to get this judgment reviewed by the Hon'ble Supreme Court, wherein not only the delay in filing the appeal has been condoned even up to the extension of 129 days but also even the issuing of a show‑cause notice before termination, simply as a formality has been held to be not inconsonance with the law and natural justice.

11. The learned counsel for the respondents in few appeals represented by him has raised the issue of limitation suggesting thereby that the appeals are time‑barred. The respondent No.2 General Manager, STR v. Sukkur in the comments filed by him and respondent No.3 Divisional Engineer Telegraphs, Nawab Shah have tried to blow hot and cold at the same time by mentioning therein under heading mentioned "further please" that the appeal is hopelessly time‑barred and at the same time that the appeal is premature and incompetent under law for not exhausting the departmental remedy. The same appeal can be either time‑barred or, premature but it cannot be time‑barred and premature at the same time as both these terms are contradictory to each other, Beside the issue of limitation in the appeal matters of identical nature, in Muhammad Ramzan and others v. Divisional Engineer, Telegraph, Sukkur and others has been dealt with in para. No.5 of the judgment in Appeals Nos.3, 4 to 26(K) of 1997 Muhammad Ramzan and others and the contents are reproduced as under:‑‑ "

5. At the very outset, the issue of limitation has to be dealt with, being of primary nature. The appellants were aggrieved by an order dated 1‑3‑1995 and they have filed the departmental appeals within a period of 30 days. These appeals have not been decided till 7‑2‑1997. This final order of rejection was not based on the ground bf limitation but it was decided on merits, and therefore, the objection of limitation stood condoned. The appellants were entitled to have challenged the original or appellate order and they could either file the service appeals within 120 days of date of filing departmental appeals or within 30 days from the communication of the appellate order. The appellants did not agitate the original order within 120 days. In the meanwhile 12 others similarly placed Telephone Operators, filed service appeals in 1995 Bearings Nos.99, 110 and 120(x) of 1995. These appeals were accepted on 4‑3‑1996 and the order of termination of service was declared to be ultra vires and illegal and by setting aside the said order the appellants were directed to‑ be reinstated in sere with all back benefits. This judgment was issued on 4‑3‑1996 and the respondent department filed civil appeal for leave to appeal before the Supreme Court, alongwith application for suspension of the operation. of the said judgment. The Supreme Court had granted leave to appeal only for the determination of the status of the appellant as civil servants and not on any other ground. and the application for suspending the operation of the judgment was refused. Under the principle of consistency, the respondent department should have reinstated all the Telephone Operators whose sera‑ices were terminated in 1995 or similar ground but it appears that the said 12 appellants have beer reinstated and the present 23 appellants were not allowed to join despite their requests in this regard." These appeals in hand have been admitted by this Tribunal for regular hearing vide order sheet dated 27‑4‑1998 which is reproduced as under:‑‑ "27‑4‑1998. Appeals Nos 2562 to 2614 (K) of 1998, 2651 to 2659(x) of 1997, 2716(x) of 1997, 32 to 34(x) of 1998." BEFORE Mr. Roshan Ali Mangi and Noor Muhammad Magsi, Members. PRESENT: Mr. Faheem R.U SIDDIQI; Advocate for the Appellants. Learned counsel states that identical Appeal No.2710(K) of 1997 has already been admitted, these appeals being of identical nature, deserve the same consideration. Admit. Security Comments. Notice for regular hearing on 12‑5‑1998 alongwith other identical cases, already fixed. (Sd.) MEMBER. (Sd.) MEMBER." The number of appeal quoted above in the order‑sheet was filed by one Muhammad Qasim against Director‑General, Pakistan Telecommunication and two others who was also working as Telephone Operator in the respondents Company. This appeal with identical and common facts was allowed by this Tribunal vide judgment dated 6‑7‑1998. Hence keeping in view the rule of consistency in the decisions of this Tribunal and the fact that instead of knocking down the appellants on technical grounds we, after condoning the delay, if caused in fling any of the above appeals, have proceeded to hear the appeals on merits.

12. It will transpire that a large number of appeals, with common and identical facts have been allowed by this Tribunal; some of which have been quoted in the above paras. Hence the rule of consistency must be made applicable to manifest the uniformity in the decisions of this Tribunal, particularly in the appeals involving the common question of facts and law.

13. We have also been apprised of the fact that during pendency of their appeals, some of the appellants were taken back on duty by the respondent Company and these appellants withdrew their appeals. These Appeals bearing Nos.2565/(K) of 1997, filed by appellant Ejaz Ahmed Chachar, 2573(x) of 1997 filed by appellant Muhammad Saleem Chachar, 2607(x) of 1997 filed by Muhammad Mureed Somroo, 2606(x)) of 1997 filed by Muhammad Younus and 2592(x)/1997 filed by Muhammad Alain. This proves that the respondent‑Company has adopted the policy of utter discrimination by adopting method of pick and choose whereby employees having identical grievance have been favoured by reinstatement and large majority has been made to fight out their grievance before this Tribunal as well as other fora. This dual policy of pick and choose militates against the interest of respondent‑Company and has titled balance of scale in favour of the appellants. The appellants cannot be allowed to be left at the mercy of the whimsical, capricious and unbalanced approach of the respondent‑Company towards different groups of their employees.

14. In view of the above facts, circumstances and after considering the arguments and variety of case‑law in their support we have come to the conclusion that the services of the appellants in all the above appeals in hand have been terminated without lawful authority and against the principles of natural justice. We, therefore, after setting aside the retrenchment order passed against each appellant, allow all the above appeals and order that all the above appellants be reinstated forthwith at their respective job, on which they were working against at the time of their termination of services. The appellants will also be entitled to all the back benefits for the period for which they remained out of job from the time of termination till the date they are reinstated and taken back on duty by the respondents. The back benefits accruing to the account of each appellant will be. disbursed to them within twelve months of the date of this judgment, by instalments. This arrangement of payment of back benefits in instalments, but within twelve 'months, is made in order to lessen the burden of accumulated lump sum amount, upon the respondents, as the respondent‑Company is a commercial organization as well.

15. The parties shall bear their own cost. All the appeals are thus disposed of accordingly. Parties be informed through registered post. H.B.T./147/FST Order accordingly.