2018 PLP (C (PLC(CS)N)

CH. MUHAMMAD IQBAL, J.

Through this lntra Court Appeal, the appellant has challenged the vires of judgment dated 10.05.2017 passed by learned Single Judge-in-Chamber whereby Writ Petition No.11040 of 2012 filed by the appellant was disposed of.

2. Brief facts of the case are that the appellant was appointed as Computer Operator in Punjab Medical Faculty, Lahore (Health Department) on 04.05.2004 on contract basis for a period of five years. His contract period was extended for time and again and lastly contract was extended upto 03.05.2012. On 14th October, 2009, the Chief Minister, Punjab issued notification for regularization of employees in BS-1 to 15 recruited on contract basis under the proyisions of Contract Appointment Policy issued by S&GAD in the year 2004. That the respondents department recommended for the regularization of Computer Operators including the appellant and other staff on 26.10.2009 in compliance of aforementioned notification of regularization of the contract employees issued by the Government of the Punjab. The appellant and other employees time and again filed applications to the competent authority for their regularization. The appellant and his other colleagues filed Writ Petition No.4100/2010 titled as Noman Rafique etc. v. Province of Punjab etc. in which learned Single Judge-in-Chamber passed direction to respondent No.1 to consider regularization of the petitioners according to Government Policy as well as dictum laid down by Hon'ble Supreme Court of Pakistan in Gul Muhammad Hajano's case (2003 SCMR 325). The appellant and others filed contempt petition No.1469-W of 2010 which is still pending adjudication for implementation of order of this Court. That the Secretary Punjab Medical Faculty Lahore (respondent No.2) vide impugned order dated 23rd April 2012 extended the contract period of other employees whereas the appellant's service has been terminated on account of his unsatisfactory performance and allegations of misconduct. Against the said order, the appellant filed W.P.No.11040 of 2012 which was disposed of by learned Single Judge-in-Chamber vide judgment dated 10.05.2017. Hence, this appeal.

3. Learned counsel for the appellant submits that neither any notice was given to the appellant before termination nor Secretary Government of the Punjab (Health Department) has initiated any regular inquiry against the appellant and without affording fair opportunity of hearing, the appellant's service has been terminated mere on the basis of unsubstantiated stigma of a misconduct which is illegal on the face of it; further submits that with the issuance of Notification/Policy by the Government of the Punjab on 14th October, 2009 a tangible right of regularization in favour of the appellant stood accrued; that almost all other employees have already been regularized by the department under aforementioned policy/notification except the appellant and his services were terminated illegally which amounts to commission of blatant discrimination; that learned Single Judge-in-Chamber while passing the impugned order has mainly relied upon the expiry of the tenure of contract on 03.05.2012 and has not considered the aspect that case of appellant has been recommended for regularization and simplicitor termination his service contract without holding of regular inquiry and affording reasonable opportunities of hearing to defend the allegations is illegal on the face of it.

4. Learned law officer appearing on behalf of the respondents submits that no illegality has been committed by the respondents department while passing the impugned order as the authority has the power to terminate the contract even without holding the inquiry and stigmatizing its contract employee that the constitutional petition is not maintainable as the appellant has the alternate remedy at proper forum; that the learned Single Judge-in-Chamber has rightly observed and passed the impugned judgment against the appellant which is not required for any interference.

5. We have heard the arguments of the learned counsels the parties and gone through the record with their able assistance.

6. Admittedly, the appellant along with others was appointed as Computer Operators (BS-11) on contract basis for a period of five years on 04.05.2004 in Punjab Medical Faculty, Lahore. The contract of the appellant was extended from time to time and lastly the contract was extended upto 03.05.2012. In existence / continuation of his contract employment, the Government of the Punjab vide Notification No.DS (O&M) 5-3/2004/ CONTRACT (MI') dated 14th October, 2009 directed all Autonomous/Semi-Autonomous Bodies/Special Institutions in the Punjab to make appointments on regular basis and also directed to regularize all the serving contract employees in BS-1 to 15, recruited after observing all the procedural and meritorious formalities on contract basis under the provisions of the Contract Appointment Policy issued by the S&GAD in the year 2004 against the post presently hold by them in various departments of the Punjab with immediate effect. On 26.10.2009 the department submitted report/recommendation for the regularization of 18 employees of the Punjab Medical Faculty as per Notification No.DS(O&M)5-3/2004/CONTRACT (MF) dated 14th October, 2009 and the name of the appellant is duly reflected at Serial No.5 of list of recommendees. The Secretary Government of the Punjab time and again asked to the Secretary/President MF Government of the Punjab to regularize the contract employees (BS-1 to 15) of Punjab Medical Faculty which (order) could not have been honoured by respondent No.2. The appellant along with others filed Writ Petition No.4100/2010 for the regularization in which direction was passed to consider the case of the petitioners but the Government or the Punjab vide Notification No.S.O(PH) 12-1/89 (P-II) dated 23rd April, 2012 extended the contract period of 13 employees of the Punjab Medical Faculty (PMF), whereas, the appellant's service was terminated on account of unsatisfactory performance as well as with allegations of misconduct without holding any regular inquiry and affording a fair opportunity of hearing as mandated by Article 10-A of the Constitution of Pakistan. Further, the representative of the department also admitted that no such regular inquiry was conducted. It is settled law that when an employee is going to be terminated on the ground of misconduct which in itself is stigma then it is mandatory for the department to hold regular inquiry enabling the employees to defend the levelled allegations before an unbiased and independent forum but in this case the position is otherwise. The Hon'ble Supreme Court of Pakistan in the case reported as Pakistan Defence Officers' Housing Authority and Others v. Lt. Col. Syed Javaid Ahmed (2013 SCMR 1707) settled the principle in respect of the contract employees holding that if competent authority is intending to terminate the contract employees on account of misconduct it is made obligatory / mandatory to hold regular inquiry into the matter. In another case reported as Zahoor Ahmed v. WAPDA and others (2001 SCMR 1566), the Hon'ble Supreme Court or Pakistan held that if authority is of the view to remove its contract employee then it has to probe into allegation/charges of alleged misconduct and also to hold a regular inquiry affording him a fair opportunity to defend himself against the stigma of misconduct as the adverse effect of stigmatized dismissal from service always travel with his entire future career which circumvent him to have and hold a right of earning for livelihood akin to the right of life. For ready reference, relevant portion is reproduced under:- "

4. In view of the law laid down by this Court in the above judgment we are not inclined to comment on the merits of the case as we are of the opinion that in terms of allegations pertaining to misconduct of appellants it was, incumbent upon WAPDA to have conducted regular enquiry against appellant after adopting procedure laid down in Rule 5 of Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978 because we have already held in the judgment cited hereinabove that when an employee has to be removed on the basis of misconduct allegedly committed by him he deserved fair opportunity to defend himself because if for such reasons he is dismissed from service then for all the times to come he carries a stigma of misconduct with him." In another case reported as Aleem Jaffar, Ex-Line Superintendent, WAPDA, Lahore v. WAPDA through its Chairman, Lahore and 2 others (1998 SCMR 1445), the Hon'ble Supreme Court of Pakistan hold that "if the termination Order conveys a message of any stigma, the employee cannot be ousted from service without resorting to the procedure of Efficiency and Discipline Rules". Further reliance is also placed on the case reported as Muhammad Amjad v. The Chief Engineer, WAPDA and another (1998 PSC 337), in which, the Hon'ble Supreme Court of Pakistan hold that even a contract employee cannot be terminated without the recourse of regular inquiry in terms of Efficiency and Discipline Rules if his termination is on account of some misconduct. In other case reported as The Secretary Government of the Punjab through Secretary Health Department, Lahore and Others v. Riaz-ul-Haq (1997 PLC (C.S.) 873), the Hon'ble Supreme Court of Pakistan held that no doubt if a person is employed on contract basis and if the terms of employment provide the manner of termination of his services, the same can be terminated in terms thereof. Further, if a person is to be condemned for misconduct, in that event, even if he is a temporary employee or a person employed on contract basis or a probationer, he is entitled to a fair opportunity to clear his position, which means that there should be a regular enquiry in terms of the Efficiency and Discipline Rules before condemning him from the alleged misconduct. Further reliance can be placed on the case titled Muhammad Riaz v. Medical Superintendent, Service Hospital, Lahore and 2 others (2016 PLC (C.S.) 296) in which this Court held that if the termination order would convey a message of any stigma, the employee could not be ousted from service without resorting to the procedure of Efficiency and Disciplinary Rules. For ready reference, relevant portion is reproduced as under:- "

10. It is by now well settled that right to a fair trial means right to a proper hearing by an unbiased competent forum. Right to a fair trial has been associated with the fundamental right of access to justice, which should be read in every statute even if not expressly provided for unless specifically excluded. While incorporating Article 10A in the Constitution and making the right, to a fair trial a fundamental right, the legislature did not define or describe the requisites of a fair trial, which showed that perhaps the intention was to give it the same meaning as is broadly universally recognized and embedded in jurisprudence in Pakistan. While holding so, guideline has been derived from the case reported in PLD 2012 SC 553." Reliance can also be placed on the cases reported as Muhammad Haleem and another v. General Manager (Operation) Pakistan Railways Headquarter, Lahore and others (2009 SCMR 339) and Tariq Mehmood v. District Police Officer, Toba Tek Singh and another (PLD 2008 SC 451) and Enmay Zed Publications (Pvt.) through Director General v. Sindh Labour Appellate Thibunal through Chairman and 2 others.

7. In view of above circumstances, admittedly, the recommendations were made by the department for the regularization of the appellant under the policy notification dated 14.10.2009 issued by the Government of the Punjab whereas the authority showed defiance to the policy and impeded the process on its own whims and caprice. The appellant's service was terminated on account of unsubstantiated / bald assertion of unsatisfactory performance coupled with allegations of misconduct, without issuance of any notice and holding of regular inquiry which are mandatory under the law as well as dictum laid down by the Hon'ble Supreme Court of Pakistan mentioned supra. Moreover, the Hon'ble Single Bench Judge has dismantled the stigma of misconduct and there is left nothing adverse against the appellant and the respondent department has neither challenged the said order nor filed any objection to the impugned order in this appeal. Mere termination of a contract of an employee whose legitimate right of regularization has been accrued as back as in 2009 and his status was not that of a probationer contract employee rather gather a significant right which cannot be taken away at the fanciful whims and caprice of the authority, as such, termination of the appellant in such manner is not tenable.

8. So far as the prayer of the appellant and others in the Writ Petition No.11040 of 2012 regarding regularization is concerned, admittedly, the Chief Minister Punjab in exercise of the powers conferred upon him by Rule 23 of Punjab, Civil Servants (Appointment and Conditions of Service) Rules, 1974 regularized / services of all the contract employees in BS-1 to 15 and vide notification dated 14.10.2009 and the case of the appellant apparently falls under the said notification from the date of its issuance which explicitly creates a right in favour of the appellant and the same cannot be taken away arbitrarily and in fanciful manner. Furthermore, the department also recommended the name of the appellant for regularization to the competent authority whereafter the appellant also filed several applications for his regularization, as such, the arbitrary termination of contract of the appellant is not warranted by law.

9. Admittedly all other employees of the department as per notification No.DS (O&M) 5-3/2004 / CONTRACT (MF) dated 14th October, 2009 stood regularized by the competent authority. Since other employees have been regularized in view of Regularization Policy / notification dated 14.10.2009, the case of the appellant falls within purview of Article 25 of the Constitution and the authority cannot be allowed cherry picking. Reliance is placed on the cases reported as Qayyum Khan v. Divisional Forest Officer, Mardan and others (2017 PLC (C.S.) 428 = 2016 SCMR 1602), in which, the Hon'ble Supreme Court of Pakistan has held as under:- "The present Appellant was appointed in the year 2010 on contract basis in the project after completion of all the requisite codal formalities, when on 25.05.2012 the project was taken over by the KPK Government. It appears that the Appellant was not allowed to continue after the change of hands of the project. Instead, the Government by cherry picking, had appointed some other person in place of the Appellant. The case of the present Appellant is covered by the principles laid down by this Court in the case of Civil Appeals Nos.134-P of 2013 etc. (Government of KPK through Secretary, Agriculture v. Adnanullah and others), as the Appellants was discriminated against and was entitled to continue the job with the employees who were similarly placed and were allowed induction on regular basis." In another case reported as Government of Khyber Pakhtunkhwa through Secretary Agriculture and others (2016 SCMR 1375), in which, the Hon'ble Supreme Court of Pakistan held as under:- "

31. The record further reveals that the Respondents were appointed on contract basis and were in employment/service for several years and Projects on which they were appointed have also been taken on the regular Budget of the Government, therefore, their status as Project employees has ended once their services were transferred to the different attached Government Departments, in terms of Section 3 of the Act. The Government of KPK was also obliged to treat the Respondents at par, as it cannot adopt a policy of cherry picking to regularize the employees of certain Projects while terminating the services of other similarly placed employees." In another case reported as Rizwan Javed and others v. Secretary Agriculture Livestock and others (2016 SCMR 1443), in which, the Hon'ble Supreme Court of Pakistan has held as under:-- "The present Appellants were appointed in the year 2007 on contract basis in the project and after completion of all the requisite codal formalities, the period of their contract appointments was extended from time to time up to 30.06.2011, when the project was taken over by the KPK Government. It appears that the Appellants were not allowed to continue after the change of hands of the project. Instead, the Government by cherry picking, had appointed different persons in place of the Appellants. The case of the present Appellants is covered by the principles laid down by this Court in the case of Civil Appeals No.134-P of 2013 etc. (Government of KPK through Secretary, Agriculture v. Adnanullah and others) (2016 SCMR 1375), as the Appellants were discriminated against and were also similarly placed project employees." Reliance can also be placed on the cases reported as Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others (2015 SCMR 1257) and Qazi Munir Ahmed v. Secretary Health and 2 others (2013 PLC (C.S.) 168).

10. For what has been discussed above, this appeal is hereby allowed. Order dated 10.05.2017 passed by learned Judge-in-Chamber in Writ Petition No.11040 of 2012 to the extent of maintaining the termination simplicitor and very termination order dated 23.04.2012 passed by Secretary Government of the Punjab Health Department are hereby set aside, as a consequence whereof the appellant is ordered to be reinstated in service w.e.f. 03.05.2012 without back benefits and to be regularized in service in his capacity of what post he was holding at the time of termination of his service. The service of the appellant for the intervening period i.e. from the date of his termination till the date of his re-instatement in service shall be counted towards his pensionary benefits. ZC/F-25/L Appeal allowed.