2019 PLP (C (PLC(CS)N)

MUHAMMAD FARRUKH IRFAN KHAN, J.

Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has assailed the orders dated 10.10.2016 whereby his services have been terminated and order dated 17.7.2017, dismissing his appeal against the termination order.

2. Brief facts of the case are that the petitioner was appointed as Assistant Vice-President in National Bank of Pakistan (hereinafter referred to as "the Bank") on contract basis for the period of three years, vide appointment letter dated 15.4.2016. It is alleged that a few months after joining his duty, his services were terminated through the impugned order dated 10.10.2016 under Clause 5.6 of the contract. Aggrieved, the petitioner made representation/appeal before respondent No.1. His appeal remained unattended which led him to file W.P.No.3929/2017. The said writ petition was disposed of on 10.2.2017 with a direction to respondents to decide the petitioner's appeal. Respondent No.2, vide letter dated 17.7.2017 declined the petitioner's request for reinstatement in service. Hence, the instant writ petition.

3. Learned counsel for the petitioner contends that the impugned orders are contrary to law and facts on record; that the petitioner was appointed in the respondent Bank on the basis of having 11 years of experience in banking sector without there being any complaint qua his work and conduct; that at the time of his employment with the respondent-Bank neither the petitioner concealed any material information qua his previous service career nor made any false statement about his antecedents; that prior to joining NBP the petitioner had resigned from Bank Al-Habib as Assistant Manager, his resignation was accepted and clearance certificate issued on 17.9.2014; that the petitioner also remained in service of Summit Bank for one year and from there he resigned on 16.11.2015; that he was never charged for any kind of allegation in both the previous Banking institutions, therefore, the impugned termination letter in terms of Clause 5.6 of the Contract is the result of misconception; that the respondents have acted illegally and arbitrarily by terminating services of the petitioner without holding proper inquiry into the matter; that the petitioner has not been afforded an opportunity to bring on record his defence and as such has been condemned unheard; and that the impugned orders are the result of arbitrary exercise of jurisdiction, therefore, the same are liable to be set at naught.

4. Conversely, learned counsel for the respondent-Bank submitted that as the petitioner was employed in the Bank as contract employee, therefore, his relation with the respondent-Bank was that of Master and Servant and his remedy lay before the Civil Court as such he could not invoke the Constitutional jurisdiction of this Court; that the petitioner had willfully withheld the details of his previous employments and service record, which was in violation of Clause 5.6 of the Contract of Appointment; that the respondents have rightly terminated services of the petitioner by applying Clause 5.6 of the Contract; that according to the information provided by the petitioner he had earlier worked in Bank Al-Habib Ltd., Askari Bank and Summit Bank before joining the respondent-Bank; that during verification of his antecedents it came to light that petitioner while in service with the Bank Al Habib was asked to resign due to booking of fake expenses in the branch and other wrong doings; that both the impugned orders as having been passed in accordance with law do not call for interference.

5. Arguments heard. Record perused.

6. First of all I would like to take up the question of maintainability of the instant writ petition. There is no cavil with the proposition that the petitioner was appointed on contract basis in the respondent-Bank and in normal course such like employees cannot invoke the Constitutional jurisdiction of this Court. However, it is not the status of the petitioner but it is nature of the grievance raised and prayer made by the aggrieved person which determines the maintainability of the writ petition. Through the impugned order the services of the petitioner have been terminated without affording him an opportunity of being heard. In this petition the petitioner has not assailed his impugned termination with reference to any of the terms and conditions of his contract appointment. He has instead invoked the Constitutional jurisdiction of this Court on the ground that his services have been terminated by the respondent-Bank illegally and unlawfully in violation of Article 10A of the Constitution of Islamic Republic of Pakistan, 1973 as a result whereof he has been deprived of his fundamental right as envisaged under Article 9 of the Constitution. The respondent is a public sector Banking institution, therefore, it is supposed to act fairly and justly and adopt due process of law in the matters relating to its employees irrespective of their status as "regular" or "contract" employee Even otherwise, besides being an employee of the respondent-Bank the petitioner being a citizen of Pakistan also enjoys certain legal rights which are protected by the Constitution and violation thereof gives him right to invoke the Constitutional jurisdiction of this Court. In the case of Faisal Sultan v. E.D.O. (Education) and others (2011 PLC (C.S.) 419) it has been held that removal of an employee from a public sector employment without due process would offend Article 9 of the Constitution as right to life would include right to a lawful and meaningful livelihood. In the circumstances, I am of the considered view that the petitioner has rightly invoked the Constitutional jurisdiction of this Court. The objection raised from other side qua maintainability of this writ petition is held to be without any legal force.

7. The services of the petitioner have been terminated by the respondent-Bank by invoking Clause 5.6 of the Letter of Appointment dated April 15, 2016. For facility of reference the same is reproduced below: "5.6 In case it is discovered at any time that you willfully suppressed any material information about yourself viz. educational qualifications, age, post-employment details such as pay, job, title, service record etc. or if it is discovered that disclosures made by you at the time of selection or thereafter are false in any respect, you will be liable to immediate dismissal from the Bank's service. In that event the Bank will be in its right to demand damages if any sustained by the Bank." Perusal of the impugned termination order dated 10.10.2016 reveals that services of the petitioner have been terminated on the sole ground that he has willfully suppressed information regarding his previous employment history. This Court while exercising powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot go into any dispute arising out of any of the terms and conditions of the contract employment. However, the petitioner's plea that for termination of his services the respondents have not adopted due process of law inasmuch as he has not been afforded an opportunity of being heard, has brought this case within the ambit of Article 199 of the Constitution. The case of the petitioner will thus be adjudged by this Court on the touchstone of "due process of law". It is settled principle of law that nobody should be condemned unheard. Admittedly, prior to termination of the petitioner's services no notice was issued to him which is in violation of the principal of natural justice. In the case of Basharat Ali v. The Director, Excise and Taxation, Lahore and another (1997 SCMR 1543) the Hon'ble Supreme Court of Pakistan has held as follows:- "By now it seems to be a well-settled principle of law that the question, as to whether a regular inquiry is to be held in a case of misconduct against an accused civil servant/employee or not, will depend on the facts of each case. We may observe that while considering the above question we should keep in mind the fact that the concept that no person should be condemned unheard (i.e. audi alteram partem) has acquired new dimensions with the passage of time. Nowadays the Courts apply the above cardinal principle of jurisprudence more liberally even to the cases in which there is no statutory requirement of personal hearing. Furthermore, the right of personal hearing does not mean simpliciter hearing, but it should be fair. What is a fair hearing, it will depend on the facts of case. There cannot be any general criterion of universal application." In the present case allegation against the petitioner is that he willfully suppressed information regarding his previous employment history. However, in both the impugned letters dated 10.10.2016 and 17.7.2017 the respondents have failed to point out the detail of the said lapse on the part of the petitioner. However, in the report and parawise comments the respondents in para 4 reported as under: "That in response to email dated 14.7.2016 of the Bank addressed to the Bank Al-Habib Limited regarding verification of antecedents of the petitioner it was advised to the Bank as under:- Above named (petitioner) remained in the employment of Bank Al-Habib Limited from 10.3.2005 to 6.6.2014 and at the time of leaving (Bank Al Habib) Limited, he was working as Assistant Manager in Area Office (PECO Road), Lahore. He was asked to resign from the services of our Bank due to booking of fake expenses in the branch and other wrong doings. We further confirm that presently there is nothing outstanding liability against him in our books." The respondents have failed to bring on record any material to show that the petitioner was confronted with the said allegation and provided an opportunity of being heard prior to termination of his services. Termination of services of the petitioner on the basis of mere information provided by his previous employer-Bank Al-Habib through email dated 1.7.2016 was not justified. Even otherwise, the information provided by Bank Al-Habib Limited, prima facie, seems to be baseless and after thought for the obvious reason that the letter dated June 18th 2014 written by the said Bank to the petitioner conveying him the acceptance of his resignation does not contain any of the allegations, which have been stated in the email sent to the respondents. The petitioner being an employee of a public sector institution could not be thrown out by issuance of a termination letter without giving him proper hearing. The law has not only protected legal rights of the employees of public sector institutions but has also bound down the employer to adopt due process of law prior to their removal/termination/dismissal from service. The email of Bank Al-Habib Ltd. though contained very serious allegations but the same were not supported by any material against the petitioner. In these circumstances, there existed no lawful reason or ground with the respondents to terminate the services of the petitioner by invoking Clause 5.6 of the Letter of Appointment. Even the impugned order dated 17.7.2017 does not speak about the details of the material information which was allegedly suppressed by the petitioner. There is nothing in the impugned order showing the nature of culpability of the petitioner on the basis of information conveyed by the previous employers of the petitioner i.e. Bank Al-Habib Ltd. and Askari Bank. On the contrary, the letters of acceptance of resignation dated May 6, 2016 and June 18, 2014, issued by Askari Bank and Bank Al-Habib, respectively are sufficient evidence to hold that the impugned termination letter is arbitrary and result of colourable exercise of jurisdiction. The respondents have acted in a most capricious and fanciful manner, which cannot be countenanced by any canons of justice. The impugned orders are, therefore, held to be illegal, unlawful and without jurisdiction.

8. As a necessary corollary of the above discussion, the instant writ petition is allowed and the respondents are directed to reinstate the petitioner in service immediately w.e.f. the date of his termination. However, the intervening period will be treated as leave of the kind due. ZC/L-7/L Petition dismiss