2012 PLP 407 (PLC)

WAQAR AHMAD SETH, J.

Impugned herein is the judgment and decree of learned Additional District Judge-VII, Mardan dated 13-7-2011, whereby appeal of the petitioner against the judgment and decree dated, 30-10-2010 of learned Civil Judge- III, Mardan, has been dismissed.

2. Precise facts given in the plaint are that petitioner/plaintiff brought a suit for declaration against the respondents to the effect that he was an employee of the respondents, on contract basis but his services were terminated on 16-5-2006 vide Exh.PW1/5, the said termination is illegal, unlawful, void and ineffective as petitioner was a regular employee according to the government policy/law and that no inquiry was conducted nor he was referred to any medical board.

3. Upon service respondents/defendants appeared before the court, subsequently and upon the pleadings of the parties, issues were framed. Pro and contra evidence was recorded, according to the wishes of the parties and finally the learned trial court dismissed the suit on merits vide judgment and decree dated 30-10-2010, not contended with the same, petitioner filed an appeal but the same was also dismissed vide impugned judgment and decree dated 30-7-2011, hence this revision petition against the concurrent findings, on merits, by the two courts below.

4. Learned counsel for the petitioner argued that judgments and decrees of both the courts below are factually incorrect and illegal, thus not sustainable in the eyes of law; that both the courts below failed to appreciate the fact that by virtue of law all the contract employees appointed under the contract policy stood regularized under the N.-W.F.P./KPK Act No.IX 2005; that even otherwise if any allegations, pertaining to misconduct are levelled then proper inquiry is required under the law and in the instant case a show-cause notice was issued in which different allegations were levelled, whereas in the impugned termination order different reasons for termination were given besides being mala fide; that the impugned judgments and decrees of both the courts below are based on misreading and non-reading of evidence on record, therefore, after appraisal of evidence both the judgments be set aside and petitioner be reinstated in service with all back benefits.

5. As against this, learned counsel for the respondents contended, that as per requirements of terms and conditions of the contract between the parties, proper show cause notice was issued with no mala fide as the petitioner was in BPS-1 and was having no grudges with the employees, while referring to the contract clause-8, second proviso, it is contended that there is no requirement of show cause notice, even otherwise, hence prayed for rejection of civil revision.

6. Arguments heard and record perused.

7. Record reveals that petitioner was inducted as peon/chowkidar (BPS-1) in the respondents establishment on 19/20-4-2002, for a period of two years. The contract agreement was also signed which is on record and the same was extended from time to time, without any break.

8. Petitioner received a show cause notice Exh.PW1/3 in which the Board observed, on the report of section incharge that the petitioner is not taking interest in his official duties and is maintaining negative PR, creating problem for the board. Petitioner submitted his reply Exh.PW1/4 in which he clearly stated that he was ill and thus was unable to attend his duties and in this respect he submitted the medical certificate to his superiors but vide Exh.PW1/5, on the basis of un-authorized absence from duty from 30-3-2006 to 11-5-2006, his services were terminated as being contract employee.

9. Exh.PW1/8 and Exh.PW1/9 are Medical Certificate issued by one Dr. Siraj Muhammad, Medical Officer, Rural Health Centre, Sakhakot according to which petitioner was having backache/sciatic problem and was advised one month bed rest. Doctor who had issued these medical certificates has been examined in the court on 14-10-2010 and he has given the concurrence that he examined the petitioner, diagnosed the disease and advised bed rest, which confirms that petitioner was ill. If at all the employer/respondent suspect the illness of the petitioner then in that case they are supposed to refer the employee to the Medical Board, which is not done in the instant case, therefore, when the illness is alleged and the doctor is supporting the version of the petitioner the same cannot be denied.

10. According to the calendar of the Board of Intermediate and Secondary Education Rule-13 Chapter-VI page-104 which reads as under:

13. Leave on medical certificate.

Leave applied for on medical certificate shall not be refused. The authority competent to sanction leave may, however, at its discretion, secure a second medical opinion by requesting the Civil Surgeon or the Medical Board to have the applicant medically examined. The existing provisions contained in Supplementary Rules 212, 213 and Rules 220 to 231 for the grant of leave on medical grounds will continue to apply. This provision in law, makes the things more clear.

11. Absence from duty without permission is a misconduct defined in all the laws of the land and for punishing an employee on account of misconduct, a regular inquiry is mandatory. Reliance in this respect is placed on 1997 SCMR 1552, wherein it is held that where, a person is to be condemned for misconduct, in that even, even if he is a temporary employee or a person employed on contract basis or probationer, he is entitled to a fair opportunity to clear his position which means that there should be a regular inquiry in terms of efficiency and discipline rules before condemning him for the alleged misconduct.

12. The record further reveals that after the receipt of reply to the show cause, which is Exh.PW1/4, wherein the petitioner has clarified his position, he was not given the chance of personal hearing before issuing the termination order Exh.PW1/5, hence the very order of termination is against the principle of natural justice i.e. audi alteram partem.

13. KPK Regularization Act No.IX 2005 was promulgated on 23rd of July, 2005 and according to section 19 subsection (2) which reads as under:

(2) A person though selected for appointment in the prescribed manner to a service or post on or after the 1st day of July, 2001, till the commencement of the said Act, but appointment on contract basis, shall, with effect from the commencement of the said Act, be deemed to have been appointed on a regular basis. All such persons and the persons appointed on regular basis to a service or post in the prescribed manner after the commencement of the said Act shall, for all intents and purposes be civil servant, except for the purpose of pension or gratuity. Such a Civil servant shall, in lieu of pension and gratuity, be entitled to receive such amount contributed by him towards the Contributory Provident Fund, along with the contributions made by Government to his account in the said fund, in the prescribed manner; provides full protection of the said law to the petitioner. The record reveals that before the termination of the petitioner other number of employees were regularized and the policy/law of regularization of contract employees was adopted by the respondent establishment, reference in this respect is made to Exh.PW1/10, therefore, it is held that on the day when petitioner services were terminated, as being a contract employee, he was a regular employee of the establishment, by operation of law.

14. According to agreement of appointment clause-4 which reads as under:

In the event of misconduct on the part of the Employee or of breach of any of the terms and conditions herein specified or on any other charge, the Employee may be suspended from duty during the period an inquiry into the charges is being conducted. During the period of suspension the Employee shall not be entitled to any pay but shall receive subsistence grants at such rate as may be decided by Government. It was the bounded duty of the employer to have conducted an inquiry into the charges in the event of misconduct, thus, the proceedings as initiated, conducted and concluded against the petitioner were against the contract, as well, beside being against the law of the land. Both the impugned judgments and decrees of the learned lower fora are based on non-reading and misreading of evidence and record besides being contrary to the law of land.

15. In view of the above, this Civil Revision is allowed both the judgments and decrees along with termination order dated 16-5-2006 are set aside. Suit of the petitioner is decreed and he is reinstated in service with full back benefits and wages, with no order as to costs. Order accordingly. HBT/308/P Petition allowed.