1998 PLP (C (PLC(CS))

SAIDUZZAMAN SIDDIQUI, J.

We proposed to dispose of abovementioned two civil appeals by a common order as the points of law and facts arising in these appeals are the similar. The appellant, who was a practising lawyer, was appointed as Member, National Industrial Relations Commission (N.I.R.C.) vide Notification dated 9-4-1996 for a period of two years on contract basis in BPS-20. The contract of service was extendable with the approval of Federal Public Service Commission (F.P.S.C.) on expiry of the original period. By notification dated 8-1-1997, the Government terminated the service contract of the appellant, which provided that the appointment of the appellant has been terminated and he will be paid three months salary in lieu of the notice period. The appellant challenged his termination of contract service in Writ Petition No. 96 of 1997 before the Lahore High Court which was dismissed in limine by a learned Judge in Chambers `through order dated 16-I-1997 An Infra-Court Appeal (I.C.A.) No.2 of 1997 against the order of learned Judge in Chamber was admitted to regular hearing but after hearing the counsel for both sides. it was dismissed on 16-5-1997 against which leave was granted to consider, whether premature termination of contract service of the appellant was justifiable without issuance of show-cause notice to him in view of law laid down by this Court in the case of Anisa Rehman v. P.I.A.C. (1994 SCMR 2232). The appellant in this case was also a practising lawyer, who was appointed as Member, N.I.R.C., in BPS-20 under Cabinet Secretariat Notification dated 15 9-1996 for a period of three years against the quota of N.-W.F.P. Through Notification dated 7-1-1997 issued by the Government of Pakistan. Ministry of Labour, Manpower and Overseas. Labour Division, the appellant's appointment was terminated and subsequently another Notification dated 8-1-1997 was also issued to the same effect. The appellant challenged termination of his service contract in Writ Petition No.80 of 1997 before the Peshawar High Court which was dismissed, whereafter leave was granted to the appellant on the basis of leave granting order Civil Appeal No.454 of 1998.

2. We have hard the learned counsel for the appellants and the learned Deputy Attorney-General in both the cases. Mr. M.A. Ghani, the learned counsel for the appellant in Civil Appeal 737 of 1998 in support of the appeal contended before us that the appointment of the appellant in Civil Appeal 737 of 1998 was a statutory appointment made the Government in accordance with provisions of section 22-A(5) of the Industrial Relations Ordinance (I.R.O.) for a period of three years. The learned counsel contends that as the appointment was a statutory appointment, the Central Government had no power to terminate the said appointment as no such poser is with the Government under any of the provisions of the I R.O. The learned counsel further contended that although the appointment letter, the appellant provides that it is a contract service but since the appointment was made under the provisions of tire I.R.O., it could not be treated as it contract service. It is also contended by the learned counsel that as the premature termination of the contract of service carried a stigma on the appellant, he was entitled to a notice before termination of his service and in the absence of such a notice the order terminating his contract is without lawful authority and of no legal effect. In support of his contention, the learned counsel relied on the following cases:-- (1) Shrilekha Vidyarthi v. State of UP (AIR 1991 SC 537); (2) Central Inland Water Transport Corporation. Ltd v. Brojo Nath (AIR 1986 SC 1571); (3) Pakistan v. Public-at-Large (PLD 1987 SC 304); (4) Pakistan v. Public-At-Large (1989 SCMR) 1690) and; (5) Anisa Rehman v. P.I.A.C. (1994 SCMR 2232).

3. Mr. Muhammad Asghar Malik, the learned counsel for the appellant in Civil Appeal No.454 of 1998 though conceded that the appellant was appointed on contract but vehemently contended that since the appellant was appointed in Basic Pay Scale No.20 and Prime Minister of Pakistan alone was competent to snake an appointment against a post in Basic Pay Scale No.20, therefore, his termination of service by the Secretary Establishment. was wholly without lawful authority as no specific orders were obtained with regard to the termination of contract of his employment by the Prime Minister of Pakistan. It may be mentioned here that Mr. M.A. Ghani, the learned counsel in Civil Appeal No. 737 of 1998 also adopted this argument of Mr. Asghar Malik and contended that no specific order for termination of the contract of his client was obtained from the Prime Minister of Pakistan and as such the notification issued by the Establishment Division terminating the contract of service was without jurisdiction. The learned counsel for the appellant in both the cases also jointly contended that the termination of the appellants was on the basis of an omnibus order issued by the Federal Government after dissolution of Government of Benazir Bhutto during 1996. Both the learned counsel specifically prayed that Establishment Division be directed to produce the summary allegedly moved by them to obtain order for termination of services of the appellants from the Prime Minister of Pakistan. Although there is a presumption to law that all official acts have been performed regularly, and therefore, the notifications issued by the Government terminating contract of services of the appellants would be deemed to have been done regularly but in order to satisfy ourselves, we asked the learned Deputy Attorney-General to produce before us the summary floated by the Establishment Division seeking approval of the Prime Minister for terminating the services of officers who were civilian as well as ex-army employees and were employed on contract basis. The summary moved by the Establishment Division reads as follows:-- CABINET SECRETARIAT ESTABLISHMENT DIVISION SUMMARY FOR THE PRIME MINISTER Subject: CONTRACT APPOINTEES The previous Government appointed a large number of persons, on contract, in BS-17 to BS-22, in various Ministries/Divisions. While some were designated as Adviser/consultant to the Ministry/ Division concerned, the other were appointed against specific posts. Moreover, while the Prime Minister's Secretariat generally conveyed the Prime Minister's directive; approval to the Establishment Division, in other instances. the approval was conveyed directly to the concerned Ministry/Division. In the first instances, a list of 136 such appointees presently on ground, has been consolidated by the Establishment Division and is placed below (Annexures I and II) while all the Ministries/Divisions have been directed to furnish, within one week, the details of contract appointments where the Prime Minister's Secretariats directive was directly addressed to them. The list of contract-appointees available with this Division contains names of retired civil servants, Armed Forces Personnel and those belonging to the private sector. A review of the list shows, however, that most of these contract appointments have been made on grounds extraneous to job requirements otherwise than in accord with the system of procedure against specially created posts. It is accordingly proposed that the contract appointments may be terminated keeping in view the following parameters: (a) services of all the civilian contract-appointees may be terminated within immediate effect except those considered fit for retention; and (b) cases of ex-Armed Forces contract-appointees may be reviewed separately on their own merits.

3. The present list of 136 contract appointees has been reviewed and is proposed as under: (i) services of, all the civilian contract appointees may be terminated with immediate except for: (1) Mr. S. Kamran Rizvi, Consultant (BS-20), Ministry of Human Rights. (2) Mr. S. Asif Hashmi, Honorary Adviser, Industries Division. (ii) cases of ex-Armed Forces contract appointees may be reviewed in consultation with the concerned Ministries/Division and the concerned Service HQs. (iii) all Ministries/Divisions may be moved to furnish lists of contract appointees, both civil and ex-Armed Forces, within one week. (4) The Prime Minister's Orders are solicited to para. 3 above. (5) The Minister for Establishment has seen and approved submission of this summary. (Sd ) (MUHAMMAD AFZAL KAHUT) ESTABLISHMENT SECRETARY"

4. The above summary was duly approved by the caretaker Prime Minister of Pakistan on 6-11-1996. The name of appellants in the two appeals before us appear at Serial Nos.2 and 34 respectively of Annexures 1 and 2 which were submitted alongwith summary of the Establishment Division. After going through the summary moved by the Establishment Division for the Prime Minister, which was duly approved, it is quite clear that the Prime Minister had authorised the termination of the contract of the two appellants in the case. We are. therefore, satisfied that in so far the termination of the contract of service of the appellants :n the cases is concerned, it was done with the express approval of the Prime Minister, and therefore, the contention of the learned counsel for the appellants on factual plain that the services of the appellants were terminated without obtaining specific approval of the Prime Minister is without any basis.

5. The learned counsel for the appellants has further contended that before terminating their services the appellants were entitled to notice and that the appointment being statutory in nature, the Federal Government had no power to terminate their service contract. We are unable to subscribe to the above contention of the learned counsel for the appellants. The contract of service, under which the two appellants were appointed, specifically provided that their appointments shall be liable to termination on 3 months notice or 3 months salary in lieu thereof on either side without assigning any reasons. Such a contract, in our view, does not create any vested right m the appointee so as to make him entitled to notice before termination of the contract of service. The learned counsel has relied on number of cases in support of the contention that the appointment of this nature could not be terminated by the Government. We will first take up the case relied by the learned counsel from Indian jurisdiction. In Shrilekha Vidyarthi v. State of U.P. (AIR 1991 SC 537) the Indian Supreme Court held that the termination of the appointment of District Government Counsel by the State Government through a circular letter was an arbitrary exercise of power by the State Government as these appointments were made on individual basis and, therefore, no common reason was applicable to all of them. These appointments were also held to be statutory in nature, governed by the Provisions contained in Legal Rememberancer's Manual, 1975 Ed. There is nothing in the facts of that case to indicate that the appointments which were subject of consideration in the cited case were made on contract basis which contained a stipulation for its termination in the like manner as in the contract of service of the appellants. The case is, therefore, distinguishable on facts. In Central Inland Water, Transport Corporation Ltd. v. Brojo Nath (AIR 1986 SC 1571), the employees of a Company which was carrying on the business of maintenance and running of river services, entered into a scheme of agreement with Central Inland Water Transport Corporation Ltd., a Company owned by Central Government and two State Governments. The scheme was approved by the High Court and the Company stood dissolved by orders of the High Court. The officers working in the Company became the employees of the Corporation which had service rules providing provision for termination of service of the officers by giving them three months notice. The Supreme Court of India held the Rule empowering the Government owned Corporation to terminate the services of its permanent employees by giving them notice or pay in lieu of notice period, opposed to public policy and in conflict with Article 14 and directive principles. contained in Articles 39 (a) and 41 of the Indian Constitution. In the course of discussion in that case, the Supreme Court of India considered the inequality in the status of employer and the employee. While the latter accepting the employment in the Corporation on merger of the Company with it. The ratio in the above-cited case has no application to the present case as firstly, the employees of the dissolved Company on merger became the permanent employees of the Corporation and secondly, it was found by the Indian Supreme Court in that case that employees of the Company on merger with the Corporation had no option but to accept the rule contained in the service regulations of the Corporation due to inequality of the status between the employer and the employees. In the case before us, the employment of appellants was on contract basis which governed their employment and there was no compulsion on the part of appellants to have accepted the employment under the contract which contained the clause for termination of their service on three months notice or payment of 3 months salary in lieu thereof.

6. In the case of Pakistan v. Public-at-Large (PLD 1987 SC 304) the provisions of section 13 clauses (i) and (ii) of the Civil Servants Act, 1973, section 12 clauses (i) and (ii) of Punjab Civil Servants Act, 1973, section 13 clause (i) of Sindh Civil Servants Act, 1973 and section 13 clauses (i) and (ii) of Balochistan Civil Servants Act, 1973 and section 13, clause (i) of N.-W.F.P. Civil Servants Act, 1973 and sub-rule (3) of Rule 44 of Pakistan Cantonment Servants Rules, 1954 framed under the Cantonment Act, 1924, were held by this Court to be against the Injunctions of Islam as they did not provide for due notice of the action proposed to be taken and opportunity of showing cause against such action to the affected persons. These cases related to the compulsory retirement of civil servants on completion of specific years of service. No such consideration arises in the present appeals. In Pakistan v. Public-at-Large (1989 SCMR 1690), this Court examined the validity of section 6 of the WAPDA Act, 1968 and held that the rationale given in the case of Pakistan v. Public-at-Large (PLD 1987 SC 304) was equally applicable in the case of removal of Chairman or Member of WAPDA under the provisions of section 6 of WAPDA Act. This case also, therefore, does not help the appellants in any manner.

7. Since the services of appellants were governed by the terms of contract which they executed at the time they entered the employment, their services could be terminated in accordance with the terms contained in their service contract which provided 3 months notice or 3 months salary in lieu of the notice. Our above conclusions are supported by the following observations in the case of Secretary, Government of Punjab v. Riazul Haq (1997 SCMR 1553):-- - "

6. It is evident from the above-quoted terms and conditions that the respondent's services were to be governed by the provisions of the Act and of the Rules/Regulations/Instructions framed thereunder. It is also manifest that the respondent's services were on temporary basis, which were liable to be terminated on 30 days' notice or pay in lieu thereof on either side.

7. Without going into the controversy, as to whether the respondent's claim that he was a permanent employee, we may observe that there is marked distinction between simplicitor termination of services to accordance with the terms of appointment and the termination of services on the ground of misconduct. There is no doubt that 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. However, 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 for the alleged misconduct. In this regard, reliance has been placed by the learned counsel for the respondent on the case of Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan (PLD 1974 SC 393), in which Waheeduddin Ahmad, J. has succinctly brought out a distinction between termination of services of a probationer on the ground of unsatisfactory performance and the ground of misconduct as under:-- 'In the light of the above discussion, is appears to me that a probationer is a person who is taken in service subject to the condition that it will attain a sure footing only if during the period that he is on probation he shows that he is a fit person to be retained is service. I agree with the view expressed in Muhammad Afzal Khan v. Pakistan, that a person who is on probation is subject to all checks to which a permanent servant is subject. He cannot, for example, refuse to obey orders, keep his own hours of duty, or indulge in any malpractice. In my opinion, if the service of a probationer is terminated on the ground of unsatisfactory work that will not amount to dismissal or removal from service, such 'termination will be in terms of the contract or the rules made by the Government but if the service of a probationer is terminated on the ground of misconduct that will amount to removal or dismissal. It will be a stigma in his favour. In the last mentioned case, the probationer will be protected by the provisions of Article 177 of the Constitution of 1962 and will be entitled to a show-cause notice and a proper enquiry against him must be made. In view of the above-stated legal position, the appellants were entitled to 3 months notice or pay in lieu thereof to terminate their employment. Appellant in Civil Appeal No.737 of 1998 was offered 3 months salary in lieu of notice but in the case of Agha Salim Khurshid (C.A. 454 of 1998) we find that after termination of his contract, he continued to serve under the orders of the Court and therefore, he has not been paid 3 months salary in lieu of notice period which he is entitled to claim. Subject to this observation, the above appeals are dismissed with no order as to costs. M.B.A./S-90/S Order accordingly.