2002 SCMR 71 (PLP)

CH. MUHAMMAD ARIF, J.‑‑‑Through this common judgment, we intend to dispose of the above petitions which have arisen out of common judgment dated 13‑10‑2000 of the Federal Service Tribunal (hereinafter referred to as the Tribunal) in Service Appeals Nos. 779(R), 786(R), 813(R), 823(R), 845(R), 850(R), 1123(R), 1133(R), 1186(R), 775(R), 782(R), 784(R), 785(R); 802(R), 810(R), 830(R), 832(R), 844(R), 843(R), 846(R), 852(R), 1126(R), 1132(R), 1152(R), 1161(R), 781(R), 841(R), 860(R), 1121(R), 1122(R), 1124(R), 1125(R), 1130(R), 1131(R), 1137(R), 1139(R), 1142(R), 1143(R), 1144(R), 1146(R), 1147(R), 1148(R), 1153(R), 1155(R), 1158(R), 1179(R), 1269(R), 1181(R), 1182(R), 1184(R), I180(R), 1127(R), 1128(R), 1129(R), 1134(R), 1136(R), 1149(R), 1150(R), 1151(R), 1154(R), 1156(R), 1157(R), 1159(R), 1160(R), 1162(R), 1163(R), 1164(R), 1166(R), 1170(R), 1173(R), 1175(R), 1183(R), 1135(R), 1138(R), 1140(R), 1141(R), 1167(R), 1168(R), 1169(R), 1171(R), 1172(R), 1179(R), 1176(R), 1177(R), 1178(R), 1185(R), 1187(R) and 1261(R) of 1999.

2. Brief facts are that the petitioners are working as Trainee Engineers in. the Sui Southern Gas Company Limited/respondent No.2 (hereinafter referred to as the respondent‑Company). The respondent‑Company terminated their training assignment in. the year 1998. They filed appeals before the Tribunal against the termination of their assignment as above. Their grievance before the Tribunal was that their training assignment was put up an end to without issuing any show‑cause notice. The Tribunal set aside the order of termination of assignment of the petitioners and directed that they shall continue working on their training assignment with the respondent‑Company, when they report arrival to the respondent‑Company in writing and that stipend and other benefits shall also be paid to them as heretofore. The Tribunal passed this order on the ground that the training assignment of the petitioners was terminated without any show‑cause notice and, following the dictum of this Court in the case of Tariq Anwar and others v. Federation of Pakistan and others (Civil Appeal No. 117 of 1998 and other connected appeals decided on 31‑3‑1998), the respondent‑Company was directed to follow the above course in either terminating the assignment or regularising the services of the petitioners. The Tribunal also observed that show‑cause notice, if served upon any or all of the petitioners, should be meaningful and that the petitioners be provided an opportunity to explain their position in writing as well as personal hearing by the competent authority.

3. In consequence of the order of the Tribunal dated 13‑10‑2000, all the petitioners reported for duty to the respondent‑Company. However, after about four months of their joining the duty, the respondent‑Company once again issued show‑cause notices for termination of training assignments of the petitioners. The petitioners have pleaded that show‑cause notices were purely mechanical and no allegation either of inefficiency or misconduct has been made therein. They further alleged that they were all regular employees under the relevant service rules of the respondent‑Company but the respondent‑Company by treating them as temporary employees on training assignment issued the impugned show‑cause notices, which cannot be sustained. They have sought leave to appeal against the impugned judgment of the Tribunal on the following amongst other grounds: [Para. .18(1) to (6) in Civil Petition No. 436/2001].

18. In these circumstances, the petitioners seek leave to appeal against the judgment of the Federal Service Tribunal, dated 13th October, 2" on the following amongst other grounds:‑‑ (1) Judgment of the Federal Service Tribunal is a departure from the judgment of this Hon'ble Court in the case of Salim Mustafa Sheikh and Narain Das, referred to above. It was the duty of the Tribunal under Articles 189 and 190 of the Constitution of Pakistan, to follow the dictum of this Hon'ble Court in the abovementioned cases. (2) The petitioner is being discriminated against and not being provided equal treatment which is violation of Article 25 of the Constitution of Pakistan. (3) The petitioner had a legitimate expectancy to continue in service because other employees similarly placed were absorbed in the service of the respondent‑Company, the principle of legitimate expectancy has been violated in this case. (4) The petitioner is a confirmed employee of the Company in accordance with rules 6.1, 6.2 and 6.3 of the Executive Service Rules of the respondent‑Company as held by this Hon'ble Court in the case of Salim Mustafa Sheikh and others. The services of the petitioner could not, therefore, be terminated by the respondent Company. (5) The respondent‑Company has followed a policy of pick and choose and 1 discriminatory treatment against the petitioner. (6) Details of discriminatory treatment were given in the appeals filed by the petitioner before the Federal Service Tribunal. These were not denied, and therefore, must be deemed to have been admitted. Moreover, discriminatory treatment already stands established in the cases of Salim Mustafa Sheikh and Narain Das which dealt with similar cases pertaining to colleagues of the petitioner."

6. Mr. Muhammad Jamil, learned Advocate Supreme Court for the respondent‑Company in Civil Petitions Nos. 512 to 532 and 541 to 556 of 2001, took the Rostrum to state that the petitioners do not fall into the category of civil servants as defined in section 2‑A of the Service Tribunals Act, 1973. According to him, none of the petitioners is a permanent employee of the respondent‑Company or even a contract employee. They are ` Trainee employees and as it was decided in the meeting of the Board dated 25‑2‑1988 that the trainee/fresh graduates be appointed as Trainee Engineers for a period of two years with an increase in their stipend from Rs.2,000 to Rs.4,000 per month after satisfactory completion of their training period against approved establishment vacancies on one year probation, which means that they had to make strides for crossing the intervening stage of being 'trainees' with a view to attaining the status of 'employees' within the contemplation of rule 6 of the Rules. According to him, rule 6 had not been applied to the case of Saleem Mustafa Sheikh and others properly and that same was the position at the appellate stage in that it was only mentioned that the then counsel for the respondent‑Company had conceded that the Rules are applicable to the case. According to him, as no such concession was made in the case of Saleem Mustafa Sheikh and others, therefore, the observation to the contrary is not correct. He concluded his arguments with the assertion that while representing the respondent‑Company in the case of Saleem Mustafa Sheikh and others he had specifically objected to the Tribunal taking the cognizance of the matter within the contemplation of sections 4 and 5 of the Service Tribunals Act, 1973. The plea was that the Tribunal could not direct a company to issue a letter of absorption to the said appellants. It will be in the interest of justice that this Court finally resolves the question whether, under the law, the Tribunal is possessed of the power to direct absroption of petitioners in the respondent‑Company.

7. While replying to the arguments addressed by M/s. Fakhruddin G. Ebrahim and Muhammad Jamil, Mr. Wassim Sajjad, learned Senior Advocatea-Supreme Court for the petitiones submitted that the stand taken by the former that these petitions are barred by time is correct, but, he has made applications seeking condonation of delay on good grounds. This Court was seized of the question relatable to nature of appointment of prersons similarly placed as the petitioners as also the legality or otherwise of the termination of their appointment by the respondent‑Company in Civil Appeals Nos. 117 to 126, 130 to 132, 143 and 181 of 1998 titled Tariq Anwar and others v. Federation of Pakistan and others, decided on 31‑3‑1998 and it was held that the appellants therein should be served with a meaningful show‑cause notice he also made a reference to the judgment of this Court in Appeals Nos.2122 to 2354 of 1999 titled Engineer Narain Das v. Secretary, Ministry of Petroleum and Natural Resources, Islamabad and others, decided on 23rd September, 2000 and contended that the Tribunal did follow the law declared in .the above precedent and that similar treatment has become the entitlement of the petitioners in these causes as well. The Tribunal far excelled the confines of its jurisdiction while leaving the matter to the judgment of the respondent‑Company in the impugned judgment. The petitioners' assertion that the judgments of this Court rule the present lis as well, was not without purpose. The respondent‑Company waited for the expiry of the period of limitation (until 29‑1‑2001) and then served the petitioners with a show cause notice sticking to their earlier stand that their assignments were temporary etc. The case of the respondent‑Company in relation to the petitioners cannot be stamped with authenticity in that it is admitted by the respondent‑Company that many of the persons falling in the same category in which the petitioners do, were regularized. This regularization took notice of the fact that they held their respective jobs with interruption and were also subjected to the process of transfer from one place to another for well over a period of five years. Mr. Wasim Sajjad relied upon Hameed Akhtar Niazi v. Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185) and Syed Imran Raza Zaidi, Superintending Engineering, Public Health Engineering Circle‑12, Gujranwala v. Government of the Punjab through Services, General Administration and Information Department, Punjab Secretariat, Lahore and 2 others (1996 SCMR 645) to contend that his clients have trade out a case for condonation of delay. He concluded his arguments by contending that in view of the peculiar facts and circumstances of these causes his clients have a case for condonation of delay as also for meeting out the same treatment to them as was meted in the cases of Saleem Mustafa Sheikh and others and Engineer Naraindas (supra).

8. We have considered the arguments addressed at the Bar and have also taken through the available material by the learned counsel for the parties.

9. Civil Petitions Nos.435 to 444, 457 to 472, 481 to 506, 512 to 532 and 541 to 556 of 2001.are respectively barred by 65 days, 66 days, 67 days, 68 days and 70 days. In view of the order that we propose to make and keeping in view the declaration of law by this Court in Syed Imran Raza Zaidi, Superintendent Engineer, Public Health Engineering Circle‑I, Gujranwala v. Government of the Punjab through Services, General Administration and Information Department, Punjab Secretariat, Lahore and 2 others (1996 SCMR 645) and Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185) and for the reasons stated in the Civil Miscellaneous Applications Nos.333, 335, 337, 339, 341, 343, 345, 347, 349, 351, 353, 355, 357, 359, 361, 363, 365, 366, 369, 371, 373, 375, 377, 379, 381, 383, 385, 387, 389, 391, 393, 395, 397, 399, 401, 403, 405, 407, 409, 411, 413, 415, 417, 420, 422, 424, 426, 428, 430, 432, 434, 436, 438, 440, 442, 444, 446, 448, 450, 452, 454, 456, 458, 460, 462, 464, 466, 468, 470, 472, 474, 476, 478, 480, 482, 484, 486, 488, 490, 492, 494, 496, 498, 500, 502, 504, 506, 508 of 2001, the same are allowed and the respective delay in them in condoned.

10. It is an admitted position that the cases of the petitioners here are akin to those of the respondents in Mangaging Director, Sui Southern Gas Co. Ltd v. Saleem Mustafa Sheikh. and others (PLD 2001 SC 176 = 2001 PLC (C.S.) 60) and (C.P.L.A. No.1670 of 2000 and others (2002 SCMR 82). The only point of distinction, alluded to by the learned counsel appearing on behalf of the respondent‑Company is that the distinguishing features noticed in the impugned judgment are correct. We find that the insistence of the respondent‑Company to press into service the above facts of the case does not stand a close scrutiny of the matter. The appointment of the petitioners against the Trainee Assignment /Trainee Engineers is common between them and the abovementioned employees of the respondent- Company. As regards the plea that the terms and conditions of the contract entered into between the petitioners and the respondent‑Company, would rule the lis insofar as the question of termination of the said contract of employment is concerned, we suffice by observing that after letting the period of probationary assignment to attain the proportions of more than 4/5 years in case of all concerned, the respondent‑Company can ill‑afford to retrace its steps by putting an end to the employment in the expressed arbitrary manner. Moreover, this Court had specifically ruled 'in Saleem Mustafa Sheikh (supra) that the applicability of Rules 6.1, 6.2 and 6.3 to the case of employees of the respondent‑Company similarly placed as the petitioners was not objected to either then or even at the time of rendering judgment in Naraindas' case (C.P.L.A. dismissed by this Court on 5‑8‑1999). Further, this Court has reitereated the applicability of the above principle in the above precedents. The submission of Mr. Wasim Sajjad that respondent‑Company was bound to follow its Rules is not without force. See Secretary to Government of N.‑W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan (1996 SCMR 413). This Court has reiterated the applicability of the above principle in Engineer Naraindas (supra), as well.

11. The plea taken by Mr. Fakhruddin G. Ebrahim to the effect that the respondent‑Company had issued show‑cause notices before termination orders dated 7‑12‑1998 strictly in line with the mandate contained in the "Contract of Service", cannot be accepted as effective in law for non‑suiting the petitioners, for the simple reason that the treatment meted out to the employees involved in the case of Saleem Mustafa Sheikh (supra) and Engineer Naraindas (supra) should have been brought to bear upon the case of the petitioners as well. Viewed in the above perspective, we do not find any force in the contention being raised by Mr. Fakhruddin G. Ebrahim that the Tribunal was justified in distinguishing the case of Saleem Mustafa Sheikh (supra) from that of the petitioners and, therefore, this Court should not sit over the said judgment of the Tribunal.

12. Further, in Engineer Naraindas (supra) this Court has already held that the respondent‑Company "...can ill‑afford to mete out different treatment between two groups of persons similarly placed and that too when the dictates of law, justice and equity require exercise of power by all concerned to advance the cause of justice and not to thwart the same. We are not inclined to agree with Mr. Fakhruddin G. Ebrahim that the case of Saleem Mustafa Sheikh and others was different from those of the petitioners". The above excerpt is reiterated in this cause as well.

13. As regards the pleas raised by Mr. M. Jamil learned Advocate Supreme Court to the effect that as the petitioners were not civil servants within the contemplation of the Civil Servants Act, 1973 for the purpose of resorting to the remedy of appeal before the Tribunal after the amendment introduced in the Service Tribunals Act, 1973 by insering section 2‑A therein with effect from 10‑6‑1997 and that rule 6.1 of the Rules was not correctly applied by the Tribunal in this case in that the Tribunal did not possess any jurisdiction in law to attend to the cases of persons in the employment of respondent‑Company on contract basis to which rule 6.1 does not apply as it is applicable only to the cases of the members of the Executive Service of the respondent‑Company, we suffice by observing that neither this point was taken by the respondent‑Company in the service appeals nor even during the arguments either before the Tribunal or through separate application/concise statements in this Court. Be that as it may, the grievance of the petitioners before the respondent‑Company as also the Tribunal related to the failure of the respondent‑Company to regularise their employment in terms of the judgment in the case of Saleem Mustafa Sheikh (supra), therefore, the Tribunal was not in error in resolving the controversy before it through the impugned judgment dated 13‑10‑2000 to that extent.

14. As regards the plea that the assignment of the petitioners was temporary in nature and that too sans any commitment by the respondent -Company to provide employment to any one of the petitioners at any stage, it may be noticed that the respondent‑Company having made effective orders in relation to others similarly raced as the petitioners and the said orders having been lost sight of while dealing with the causes of the petitioners, the petitioners were entitled, ex debito justitiae, to similar treatment being meted out to them.

15. Before parting with these causes it may be observed that the arguments advanced on behalf of the respondent‑Company by Mr. Fakhruddin G. Ebrahim to the effect that they have the genuine desire of obtaining the maximum benefit of the services of their employees and in that regard they have made it a condition precedent for all concerned to sit in IBA test before taking up their respective assignments in the respondent -Company, were duly noticed in Engineer Naraindas and others (supra) and the appellants therein directed to be absorbed in the respective dispciplines on the same lines as has been done in the case of Saleem Mustafa Sheikh and others (supra).

16. For all that has, gone before, these petitions are converted into appeals and by allowing the same the impugned judgment of the Tribunal is set aside with the direction to the respondent‑Company to absorb the petitioners in their respective disciplines on the same line as has been done in the cases of Saleem Mustafa Sheikh and others (supra) and Engineer Naraindas and others (supra). No costs. S.A.K./M.A.K./A‑162/S Order accordingly.