2018 PLP (C (PLC(CS)N)

WAQAR AHMAD SETH, J.-- Through the instant Writ Petition, the petitioners have prayed for issuance of an appropriate writ declaring the impugned termination No. 268/Reg/BKUC/2016 dated 27.7.2016 issued by respondent No.3 as illegal, unlawful, unwarranted, unjustified, based on mala fide, against natural justice and in violation of law and Statute; hence, the same is liable to be set aside with further direction to the respondents to reinstate them in their service with all back benefits.

2. In essence, case of the petitioners is that they were appointed as Regular Sweeper (BPS-1) by respondent No.1 after observing all codal formalities and are performing their duties with zeal and zest, however, surprisingly respondent No.3 without fulfilling legal requirement of law and Statute issued their termination order dated 27.7.2016. Against the said termination order, the petitioners filed departmental representation before respondent No.1 for reinstatement but no response was made; hence, the instant Writ Petition.

3. Comments were called from the respondents, which they accordingly furnished and denied the assertion of petitioners by stating that petitioners never took their duties seriously. They were provided ample opportunities in the shape of notices and warning letters to mend their ways but they have lost interest in the job because of their private engagements; hence, the respondents prayed for dismissal of instant Writ Petition with cost.

4. Arguments heard and record perused.

5. Admittedly, petitioner was appointed upon the recommendations of the Selection Committee as Sweeper BPS-1, on regular basis with effect from 1st June, 2012, but his services have been terminated vide impugned order dated 27.7.2016, without issuing any show-cause/charge sheet or affording him any chance of personal hearing. In the case of Pakistan International Airlines Corporation (PIAC) v. Nasir Jamal Malik and others, reported in 2001 SCMR 934(d) it has been held as under:- "

Maxim "audi alteram partem"

Applicability

Employer, who itself had framed Rules as well as Regulations for its domestic purposes, was bound to strictly follow/adhere to the same

Deviation from such like Rules and Regulations is bound to violate principles of natural justice enshrined in the maxim "audi alteram partem" i.e no one is to be condemned unheard

Where adverse action is being contemplated to be taken against the person/persons, he/they would have at least right to defend such action." Likewise in the case of Arshad Jamal v. N.-W.F.P Forest Development Corporation and others, reported in 2004 SCMR 468, it has been held that:- "

Removal from service of employee of a statutory corporation in the absence of statutory rules notified in the official Gazette by the said Corporation

Validity

Such employee had a vested right of hearing before any order adverse to his interest was passed by virtue of principle of audi alteram partem which was the least requirement

Authorities, in the present case, had passed an order influenced mainly by the fact that the appointment of the employee was illegal, ab initio, void and against the rules

Was incumbent upon authorities that before passing order of terminating / removal of employee, he should have been issued show cause notice and an opportunity of hearing granted and thereafter well consider order should have been passed

Supreme Court declared the order of removal from service of the employee by the Corporation to be illegal and without legal authority and set aside the same." Similarly, in the case of Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaiser Elahi and others, reported in 2005 SCMR 678(a) it has been held as under:- "

Audi alteram partem" (no one should be condemned unheard)

Origin and validity

Violation of principle of natural justice enshrined in the maxim would be enough to vitiate even most solemn proceedings

Such principles originated from Islamic System of Justice and would be read/consider as a part of every statute in the interest of justice

Principle now being made inbuilt part of civil contracts would apply to all kinds of proceedings strictly and departure therefrom would render subsequent actions illegal in the eye of law--Principles. The principles of natural justice enshrined in the maxim "audi alteram partem" is one of the most important principles and its violation is always considered enough to vitiate even most solemn proceedings. Where adverse action is contemplated to be taken against the person/persons, he/they would have a right to defend such action, notwithstanding the fact that the statute governing their rights does not contain provision of the principles of natural justice and even in absence thereof, it is to be read / consider as a part of such statute in the interest of justice. It is important to note that the principles of natural is now made inbuilt part of civil contracts. This principle originates from Islamic system of justice as evidenced from historical episode when Iblees was scolded for having misled Hazrat Adam (P.b.h) into disobedience of Allah's command. Almighty Allah called upon Iblees to explain his conduct and after having an explanation from him, which was found untenable, he was condemned and punished for all time to come. The principle of natural justice has to be applied for all kinds of proceedings strictly and departure therefrom would render subsequent actions illegal in the eye of law.

6. While seeking guidance from the above referred landmark judgments of the apex Court, we feel that petitioner has been condemned unheard. Even otherwise, in service matters, extreme penalty for minor acts depriving a person from right of hearing would defeat the reformatory concept of punishment in administration of justice. Since, the allegation of absence from duty have been levelled therefore appropriate was to deduct the salary for the said period.

7. Of course the record suggests that petitioner is a habitual absentee and on previous occasions, he was issued warning and explanations and even a bond was executed by him, to be punctual in future, but in spite of that he remained absent and as such this time is the last opportunity for him. The respondents / employer is directed to conduct complete proceedings against him next time, as required under the law for imposing major punishment.

8. In view of above this writ petition is allowed, petitioner is deemed to be in service from the date of termination, but with Fifty percent wages/salary. ZC/195/P Petition allowed.