2001 PLP (C (PLC(CS))

ABDUR REHMAN KHAN, J.

This order will dispose of the connected C.P.-980-K to C:P.1012-K of 2000, as all these arise under similar circumstances and involve identical legal points for determination.

2. Petitioner feels aggrieved of the judgment of the learned Federal Service Tribunal delivered on 29-4-2000; whereby, the order of termination of service of the respondent passed by the competent authority, was set aside and consequently, the petitioner company was directed "to issue the letter of absorption in Career Executive Cadre of the appellant in the respondent company as it was issued to Nisar A. Sangi on 17-4-1998". Therefore, leave to appeal is sought to call in question the legality of the said judgment.

3. The factual aspect of the controversy which led to the litigation between the parties is that the petitioner which is a body Corporate and registered under the Companies Ordinance, 1984 invited applications for the assignment of trainee engineers for posting in the Province of Sindh and Balochistan. Respondent applied for one of such posts and after qualifying the test/interview he was appointed on 1-8-1994 against a training assignment in the capacity of trainee engineer for a period of six months extendable at the discretion of the Company. However, even after the expiry of the initial probationary period of six months the respondent was allowed to continue in service till 10-3-1999, when his termination order was passed. It was stated in the appeal before the Tribunal that the Company "with mala fide intention and for extraneous consideration prolonged process of regularisation despite availability of posts and the same time exploited their position by allowing the appellant to work on fixed meagre salary for considerable period of service in the same capacity". The arbitrary manner in which the respondent was removed and the discretion meted out to him as compared to other similarly placed employees has been highlighted in para. 8 of the appeal before the Service Tribunal which is reproduced: "That the respondent-Company's action to terminate or to make retrenchment by wholly arbitrarily manner has no rationale behind it or it was not due to any compulsive force of financial constraint and in fact, on the other hand, they have already regularized the services of large number of persons of similarly placed to that of .the appellant of their own liking and ignoring the appellant of giving similar treatment is, in fact, for extraneous consideration and these were kept secret and the appellant could lay hand on these letters. It is pertinent, to point out that M/s Jehangir Channa and Nisar Ahmad Sangi were appointed on contract basis for 6 months on 29-9-1994 and 10-1-1995 and both of them filed Writ Petition No.1369 of 1997 in Sindh High Court at Karachi alongwith others and the respondent/company in their written statement clearly stated that the petitioners are "political appointees imposed upon the Company in deviation of rules and procedures, without any requirement of Company" but subsequently they have been absorbed in preference to the appellant who was appointed prior in time i.e. 1994 after test and interview. Moreover, vacancies have been caused due to retirement of the serving employees/officers and others and on promotion to the different positions and the respondent could regularize the-services of the appellant against any available vacant post without any legal hitch and even the ban on recruitment has since been lifted by the .Federal Government. " Another example of discrimination has been given in para. 9 of the said appeal which reads:-- "That M/s. Muhammad Saeed Ahmad/T.A. No. 8590/, Ali Zaki Ansari/T.A. No. 8582/ S. Ahsan Hasan Kazmi T.A. No.8617, Zubair Alam/T.A. No. 8269/and others were initially appointed on 6 months contract basis without any test and interview but subsequently their services were regularized as Management Trainee purely on the basis of liking and kith and kin basis. Even the respondent-Company had regularised the services of other contract employees. " The petitioner-Company as respondent in the appeal in the written statement controverted the allegation made in the appeal and averred that the appellant was offered training assignment as trainee/temporary assignee. Being a contract employee his services were rightly terminated in the light of his letter of assignment. It was further clarified that the Company is neither a statutory Corporation nor has any statutory rules, therefore, the Service Tribunal could not redress the grievance of such an employee. The allegation of discrimination was also denied and it was stated that no person belonging to the category of the appellant had been regularized and that no violation of any law or the Constitution has been committed.

4. The learned Tribunal after reproducing the arguments advanced before it from both sides elaborately highlighted the provision of various law governing employment in Federal, Provincial, Industrial/Commercial Establishments and under Contract Act and Specific Relief Act. It also took note of the newly-added section 2-A to the Services Tribunal Act; 1973 (hereinafter referred as the Act) and the difficulty in granting relief to an aggrieved "deemed civil servant" in respect of his terms and conditions of service. It also commented on the body Corporate having statutory rules to regulate its services and those Corporation which do not have such rules. It also referred to section 5 (i) of the Service Tribunal Act in the context of new section 2-A and the redressal of grievance under the former section. After that the merits of the case were discussed and the operative portion of the judgment reads-- "The facts of the appointment and termination of Service. of the appellant and submissions/arguments made before this Tribunal are mentioned in paragraph 1 of this judgment. Sui Southern Gas Company Limited is a body corporate under the Companies' Ordinance, 1984 and registered as such by the Registrar, Joint Stock Companies. The Board of Directors have framed rules known as Sui Gas Transmission Company Limited Executive Service Rules' and the rules have come into force w.e.f: 25-2-1982. Rule 2.17 mentions temporary/contract post carrying a definite rate of remuneration and benefits sanctioned for a limited time. Rules 6.1, 6.2 and 6.3 mention the period of probation of an employee of the respondent Company. The appellant was offered the assignment of Trainee Engineer on 1-8-1994 for a period of six months. Some how or the other, this six months period was extended till the termination on 10-3-1999. The appellant is a young person and qualified Engineer from an Engineering Institution had chosen the career -of service with the respondent company on their invitation and settled so in the service of the respondent company from 1-8-1994 till 10-3-1999, i.e. about five years more than the duration for qualifying as an engineer from the Engineering Institution. The respondent company in the garb of keeping him as a 'Trainee Engineer posted him from place to place as an Engineer and the appellant was, helpless in securing an appropriate letter of appointment, whereas his colleague namely Nisar A. Sangi was able to secure the appointment. "

5. The main contention of the Company before the Service Tribunal was that the services of the respondent were never regularized and after the expiry of the terms of training his services were -no longer required, therefore, his grievance could not be redressed by the Tribunal under section 4 of the Act, but the Tribunal rejected this argument and held:-- "The Executive Service Rules as mentioned above provide that temporary/contract post is for the limited time otherwise the probationary period under the rules 6.1, 6.2 and 6.3 is initially for one year extendable for a further period not exceeding one year. We will apply the Executive Service Rules of the respondents company to the terms and conditions of service of the appellant with the respondent company, and therefore, as conceded by the learned counsel for the respondent company, we will set aside the letter of discontinuation of temporary/training assignment dated 10-3-1999 of the appellant and direct the respondent company to issue the letter of absorption in Career Executive Cadre of the appellant in the respondent company as it was issued to Nisar A. Sangi on 17-4-1998."

6. Learned counsel appearing for the petitioner before us argued that the company is public limited company and without statutory rules the relation between it and its employees would be that of master and servant. The learned counsel, however, could not deny the existence of the Rules called "Sui Southern Gas Company Limited Executive Service Rules". We fail to understand that if these rules were not to be acted upon merely on the pretext or ground that they were not statutory rules, then what was the sense in framing them. Does it mean that the company would with immunity violate these rules whenever they go against its interest? It could never be the intention of the framer of the Rules. The Sui Gas Company is owned and controlled by the Federal Government, therefore, it could not be expected of the Federal Government to enact rules and then not to enforce it or to violate it merely because these rules do not have the status of statutory rules. In our view the factum of the rules being statutory or non-statutory would not debar the Tribunal to enforce it as that point would be relevant in cases of exercise of Writ Jurisdiction because there the violation of statutory rules is pre-requisite for issuance of the Writ. Even otherwise under the principle of general law of estoppels the company cannot be allowed to object to the invocation of the rules by the employees/respondents and similarly they could not be permitted to violate and dishonour their commitments when the respondent entered in its service on the basis of the commitment/undertaking given by it. It is thus, obvious that the Tribunal cannot be condemned in enforcing the rules which the Board of Directors of the company have framed. The relevant rules relating to the probation are rules 6.1, 6.2 and 6.3. Under these rules the company could keep the respondent on probation for the maximum period of two years and, therefore, he was either to be confirmed or if his work or conduct were found unsatisfactory then his, services could be terminated. In the present case the respondent was kept on probation for more than four years and then his services were not terminated on account of inefficiency or misconduct but no reason whatsoever was assigned in this respect in termination order. The relevant portion of which reads:-- "You were offered a Training Assignment as Trainee Engineer vide Letter No.MW/C/0001. It is not possible to continue this assignment any further which is terminated forthwith. As per our offer, it was clearly understood that the Company shall not be obliged to offer permanent employment. However, you may apply for the job with the Company if the vacancies are advertised in the respective cadres and your case shall be considered on merits".

7. The Tribunal has enforced the application of the said Rules and, therefore, it cannot be said that it has flawed in any way in this respect. The reliance of the learned counsel on the case reported as United Bank Limited through President v. Shahmim Ahmed Khan and 41 others (PLD 1999 SC 990) is misconceived, as that would not advance his case because of its distinguishable features as that deals with the case of retrenchment of the employees on account of surplus age of employees which is not, the case here. It was next submitted that the appeal before the Service Tribunal was not maintainable as it was time-barred. This argument cannot be permitted at this stage as it was neither taken up in the comments filed by the company in the Tribunal nor at the time of arguments before the Tribunal and as this involves factual controversy, therefore, this Court is not inclined to allow this objection.

8. It was also submitted that the Tribunal has exceeded its jurisdiction as in terms of section 4 of the Act it could not direct the Company to issue the letter of absorption of the respondent. This argument is misconceived as the Tribunal has given the above direction in context of termination Order and it has not determined the fitness or otherwise of the respondent to be appointed or to hold a particular post.

9. It is to be noted that in the memo of appeal before the Tribunal extensive and detailed allegations were made regarding the mala fide of the company in the matter and the discrimination meted out to the respondent as in similar situation those, tamed in the appeal, had been retained in service. But it is curious that no specific reply about those allegations was given by the company in its comments, but rather general and vague comments were filed in reply to these allegations. The Tribunal has positively held that appellant before it was discriminated as others similarly placed have been absorbed and regularized but the learned counsel was unable to rebut the observation of the Tribunal in this regard.

10. We find no legal flaws in the impugned judgment of the Tribunal nor any substantial point of public importance arises in these petitions. Consequently leave is refused and this petition is dismissed. Q.M.H./M.A.K./M-176/S Petition dismissed.