2004 PLP 623 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

Petitioner seeks leave to appeal against the judgment dated June 29, 2000 passed by Federal Service Tribunal camp at Karachi whereby appeal filed by him against order dated 2nd February, 1997 has been dismissed.

2. Briefly stating the facts of the case are that on 8th September, 1975 petitioner joined Pakistan National Oil Limited. On 21st June, 1977 he was promoted to Salary Group-IV. Similarly on 5th June, 1995 he was promoted as General Manager. It appears that subsequently Board of Management in its meeting held on 19th January, 1997 delegated and authorized the Managing Director to examine reasons of promotions of General Managers including the petitioner and pass such orders as may be deemed in and proper in the best interest of the company. It is alleged that on scrutiny it was found that strength of the General Managers was increased from 11 to 29 in order to accommodate the political favourites. Thus petitioner was demoted vide order dated 2nd February, 1997 which reads as under:-- "Mr. Nazir A. Chakrani, Karachi. Dear Sir, The Competent Authority has decided to examine/re-assess promotions/placements of all General Managers appointed and placed during the last three years. As a result of a careful scrutiny of the promotion given to you, it has been found that the same was wrongfully allowed. Resultantly, the promotion granted to you vide letter dated 5th June, 1995, is hereby rescinded with immediate effect and as such you are advised to report in Dy. M.D. 9 (F&A) for further assignment. .. A TO F) .............. The rest of the terms and conditions of service as conveyed to you earlier vide letter dated 5th June, 1995 shall remain unchanged. Your salary, terms and conditions of service being a matter strictly between you and the company must be treated as Private and Confidential".

3. Against above order petitioner availed legal remedy by instituting a civil suit in the Court of Senior Civil Judge, Karachi. However, during pendency of the same, section 2-A in the Service Tribunals Act, 1973 was added in pursuance whereof the employees of an Authority/Corporation, Body or Organization established by order under a Federal Law or which is owned or controlled by the Federal Government etc. were treated to be civil servants for the purpose of Service Tribunals Act. As such in view of this legal position Senior Civil Judge, returned the plaint to the petitioner for presentation before the proper Court. Accordingly service appeal was filed by petitioner before Federal Service Tribunal which has been dismissed by means of impugned order dated 29th June, 2000. As such instant petition has been filed for leave to appeal.

4. After hearing learned counsel for petitioner on 22nd February, 2001 we issued notice to the respondent to examine as to whether petitioner has been condemned unheard in sheer violation of law laid down by this Court in the case. of Mrs. Anisa Rehman v. PIAC and others 1994 SCMR 2232 and Pakistan International Airlines (PIAC) through its Chairman v. Nasir Jamal Malik and others 2001 SCMR 934 = 2001 PLC(C.S.) 890.

5. Learned counsel argued that petitioner was promoted on 5th June, 1995 as General Manager and against this post he worked until his demotion vide letter dated 2nd February, 1997. According to him case of petitioner's promotion was scrutinized behind his back and concerned authority opined that he wrongfully earned promotion as General Manager. But before forming such opinion no opportunity of being heard was afforded to him, therefore, order dated 2nd February, 1997 deserves to be set aside on this score alone. Reliance was placed by him on the judgments referred to in para. supra.

6. On the other hand learned counsel for respondents contended that petitioner was junior officer and in order to accommodate him as well as some other employees sanctioned strength of General Managers was increased by the then Management of the Company under the influence of political Government, as a result whereof junior officers were promoted and the senior officers who had no political backing were ignored from promotion. Therefore, under these circumstances the management constituted a committee who after its deliberations recommended, for demotion of those General Managers who were wrongfully promoted including the petitioner. Petitioner's learned counsel further stated that principle of natural justice would not be applicable in instant case because there are no Statutory rules in the organization to govern the services of the employees, and they are dealt with under the principle of master and servant. According to him the en1ployment of petitioner. would be deemed to be of contractual nature which even can be terminated without adhering to the principle of audi alteram partem as such on same analogy a wrongful promotion can also be set aside by the department because no vested right to retain such promotion can be claimed by the petitioner. In support of his plea reliance was placed by him on Penumbra of Natural Justice by Tapash Can Choudhury; Taxmann's Natural Justice Judicial Review and Administrative Law with Special Reference to Law of Income Tax; judgments in Civil Petitions Nos.507-K to 513-K of 1998. Civil Petition No.2049-L to 2051-L of 1998; Civil Petition No.418-K of 2000 and Rehan Saeed Khan and others v. Federation of Pakistan and others 2001 PLC (C.S.) 1275, PLD 1992 SC 907, 2000 SCMR

907. Learned counsel also stated that judgment in the case of Mrs. Anisa Rehman v. PIAC 1994 SCMR 2232 is distinguishable because in the said judgment the principle of audi alteram patrem has been applied in view of judgment of this Court reported in PLD 1987 SC 304 which has dealt with altogether a different subject.

7. We have heard the learned counsel and have carefully examined the arguments so raised by both the parties. Undoubtedly in absence or departmental Statutory rules governing service of petitioner the principle of master and servant will apply but as he enjoys status of a civil servant under section 2-A of the Service Tribunals Act, 1973 therefore, he was entitled for right of hearing as it has been enshrined in maxim audi alteram partem before passing adverse orders against him. Reliance in this behalf is placed on Pakistan International Airlines (PIAC) through its Chairman v. Nasir Jamal Malik and others 2001 SCMR 934 = 2001 PLC (C.S.)

890. Relevant para. therefrom is reproduced for convenience:-- "

7. Learned counsel for the appellants contended that as the principle of master and servant governs the relationship between the employer and the employees, therefore, before removing/ terminating services of the respondents they were not entitled for right of hearing by issuing show cause to them. Moreover the employees of such category cannot claim their reinstatement in the service except claiming damages as it has been held in the cases of Mahmood Hussain v. Pakistan International Airlines and others 1989 PLC (C.S.) 549 and United Bank Limited and others v. Ahsan Akhtar and others 1998 SCMR 68 + PSC 1998 SC (Pak)

65. Learned counsel for respondents emphatically opposed the arguments raised by the appellants counsel and contended that the principle of audi alteram partem is to be adhered to in every kind of proceedings notwithstanding the fact whether it is being drawn under the Statutory of non-statutory enactments. Reliance was placed by them on the case of Mrs. M.N. Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612." We have considered the arguments so advanced by both the sides in this behalf. It may be noted that in the judicial history of our country as well as in those countries where identical/ corresponding system of administration of justice is in vouge the principle enshrined in the maxim audi alteram partem has been made applicable expressly or implied in every instrument governing the proceedings which may be statutory or otherwise and if its absence. is conspicuous by not making it a part of the instrument governing the proceedings. Though the principle of audi alteram partem is not universally accepted principle but emphasis on its application has always been made on those proceedings where adverse action is being contemplated to be taken against the person/persons who have at least a right to defend such action or during course of time they have acquired a right to negate allegations on basis of which an action adversely affecting their interest is being taken. To strengthen the arguments reference may be made to Chief Commissioner Karachi v. Mrs. Dina Sohrab Katrak PLD 1959 SC (Pak.) 45; (II) Messrs Farid sons Limited, Karachi and another v. Government of Pakistan and another PLD 1961 SC 537, (iii) Abdur Rehman v. Collector and Deputy Commissioner, Bhawalnagar and others PLD 1961 SC 461, (iv) Abul A' la Maudoodi v. Government of West Pakistan PLD 1964 SC 673, (v) University of Dacca v. Zakir Ahmad PLD 1965 SC 90, (vi) Muhammad Hayat v. Province of West Pakistan PLD 1964 SC 321, (vii) Messrs East-end Exports, Karachi v. The Chief Controller of Imports and Exports, Rawalpindi and another PLD 1965 SC 605, (viii) Pakistan and others v. Public at Large and others PLD 1987 SC 304, (ix) Khalid-uz-Zaman v.Supreme Appellate Court Lahore and 4 others PLD 1994 SC 885, (x) Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer N.A.-158 Naushero Feroze and others 1994 SCMR 1299 and (ix) Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCMR 2203. It may be noted that in the case of University of Dacca. (ibid) question for consideration before this Court was as to whether the principle of natural justice (audi alteram partem) in the cases of expulsion of student, by University authorities, for alleged indiscipline, misconduct and rowdyism is applicable, in this context it was held that in all proceedings by whatsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in \consequential Ordinance "the person or property or other right of the parties concerned". This rule applies even though there may be no positive words in the station or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied to it as the minimum requirement of fairness. As far as services of respondents are concerned through the principle of master and servant is applicable but in the case of Mrs. Anisa Rehman v. PIAC and others 1994 SCMR 2232, it was held that the action of the Corporation violating the principles of natural justice will be without lawful authority and of no legal effect. It was further held that violation of the maxim could be equated with the violation of the principles of law warranting pressing into service Constitutional jurisdiction. Thus we are inclined to hold that in the instant cases appellants terminated the services of the respondents in violation of the principles of natural justice because before passing impugned order no opportunity was given to them to defend themselves against an unilateral adverse action intended to be taken against them. It may be observed that as per details of the service of each of the respondents noted in the above paras., they were in the employment of the appellants for more than a period of 6 months, therefore, at least a right to defend has accrued to them against the proposed action of termination of their .services which in some of the cases had taken place without assigning any reason whereas in some of the cases it was alleged that they managed their inclusion in the employment of PIAC under the directions of Prime Minister Secretariat but before the Federal Service Tribunal a consistent stand was taken by the appellants which has been reproduced hereinabove. According to which the respondents were being removed because their appointments were not in accordance with law or it has taken place due to their influence etc., thus apparent contradictions in the reasons disclosed in the termination orders as well as the stand taken by the appellants before the Federal Service Tribunal reflects mala fides of the appellants in removing the respondents from their services." In view of the above judgment it is to be noted that petitioner was promoted as General Manager on 5th June, 1995 and against this post he served up to 2nd of February, 1997 when he was demoted to the post of Deputy General Manager but before taking adverse action against him he was not called upon to explain that under what circumstances he was promoted and whether he is capable to retain the post of Genera Manager or otherwise. As far as letter dated 2nd February, 1997 is concerned it also does riot indicate that on basis of which consideration the Competent Authority formed its opinion that promotion was allowed to petitioner wrongfully. Be that as it may, we are not inclined to go into merits of the case because we are of the opinion that petitioner's demotion has taken place in violation of principles of natural justice i.e no one should be condemned unheard. However respondent organization even now is competent .to take action against the petitioner but after adopting proper procedure as it has been observed in above judgment. Thus for the foregoing reasons, petition is converted into appeal and allowed. The impugned order dated 29th June, 2000 passed by ` Federal Service Tribunal as well as departmental order dated 2-2-1997, are set aside. Needless to observe that Pakistan State Oil Company Limited shall be free to proceed afresh against the petitioner, in, accordance with law. No order as to costs. H.B.T./N-180/S Petition allowed.