2005 PLP (C (PLC(CS))

27. Having consider all dimensions and facts of the case, we have come to the conclusion that the termination of the appellant without the fulfilment of basic requirements as discussed above: are void, arbitrary and of no legal consequence. We accordingly set aside the impugned order dated 22‑11‑2000 and reinstate the appellant in service with effect from the date of his termination The intervening period between his termination and reinstatement shall be treated as leave due. It is however open to the respondent Corporation that in case they still consider that retrenchment of the appellant is the best interest of the Corporation, they may do so by fulfilling the mandatory requirements identified above and also by removing other infirmities as pointed out in this order and take final action as to his retention or otherwise in service as per law within three months of the date of this order. It will also be open to the appellant to approach the Tribunal if he is not satisfied with any action of the respondent‑Corporation.

28. This order is also applicable in Appeals Nos. 31, 32, 419 to 422, 430, 436 to 439, 446, 447 (R)CE of 2001, 457, 844 (K) CE of 2001, 31 to 33, 35, 36, 48 & 119 ; (P) CE of 2001 as fact and law points involved in all these appeals are of identical nature. The impugned orders in respect of the above mentioned appeals are also set aside. "

3. Learned counsel for appellant, Utility Stores Corporation of Pakistan, hereinafter referred to as "the Corporation", before the Tribunal argued that the Corporation is a private limited company, registered under Companies Laws and its control and management is carried out in accordance with its Articles and Memorandum of Association and that its service rules are not statutory, that the Corporation was financially in shambles and large scale retrenchment was absolutely necessary, that the main object of the Corporation is to provide items bf daily use to people at subsidized rates at `no loss no profit' basis and if its financial strength is not restored it is likely to be wound up, depriving the people of cheap source of supply of merchandise of daily use, that service rules of the Corporation empower the appointing authority to terminate the services of its employees without notice and without personal rehearing, that the employees of the Corporation by virtue of section 2‑A of the Service Tribunals Act, 1973, do not become the civil servants, that there is a lot of difference between the civil servants and the rights of civil servants under the Civil Servants Act, 1973, and that of employees of Corporation that the employees of the Corporation are treated Civil Servants for a limited purpose only, that the Corporation not being a statutory body, the relation between the Corporation and its employees is that of master and servant and the former has power to hire and fire, that the services of the respondents were not terminated on the grounds of inefficiency, misconduct, corruption or indulgence in subversive activities and termination being simpliciter it could not be challenged under the Service Rules of the Corporation, 1981, as amended in the year 1992. Above arguments have been repeated before us and reliance has been placed upon:‑ (1) United Bank Limited through President v. Shamim Ahmed Khan and 41 others (PLD 1999 SC 990). (2) Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others (2002 PLC (CS) 526). (3) Rule 4 of the Service Rules of Utility Stores Corporation of Pakistan (Pvt.) Limited, 1981.

4. It was urged before the learned Tribunal on behalf of the respondents that no show‑cause notices were issued to them before awarding major penalty of termination under the Removal from Service (Special Powers) Ordinance, 2000, nor they were afforded an opportunity for personal hearing, as such, the principle of Audi Alteram Partem was grossly violated, that the Corporation, adopted the policy of pick and choose, as the officers junior to the respondents, as per seniority list, have been retained and the principle of lifo (last in first out) has also been violated, which amounts to discrimination, that retrenched and terminated employees constituted distinct categories, as retrenched employees are either given terminal benefits or the benefits of golden handshake scheme; that the action of the Corporation is illegal for the reason that two officers of B‑18 and B‑17, who were also terminated, but later on they were reinstated with full back benefits by the Controlling Authority viz. Ministry of Industries. Above contentions have also been reiterated before us and the reliance is placed upon the following cases:‑ (1) Mehreen Zaibun Nisa v Land Commissioner, Multan and others (PLD 1975 SC 397). (2) Pakistan and others v. Public at Large and others (PLD 1987 SC 304). (3) Mrs. M.N. Arshad and others v. Miss Naeema Khan and others (PLD 1990 SC 612). (4) Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Ltd., Rawalpindi (PLD 1991 SC 14). (5) Delhi Transport Corporation v. DTC Mazdoor Congress and others (AIR 1991 SC 101). (6) Chairman, Pakistan Broadcasting Corporation, Islamabad v. Nasir Ahmed and 3 others (1995 SCMR 1593). (7) Pakistan Railways through General Manager v Ghulam Rasool (1997 SCMR 1581). (8) Muhammad Ahmed, v. Government of Sindh and another (1999 SCMR 255). (9) Fazal Ilahi and others v. PTC and others (2001 SCMR 768). (10) Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others (PLD 2002 SC 101). (11) Muhammad Janan v. General Manager, Pakistan Mineral Development Corporation (Pvt.) Ltd., Islamabad (PLD 2003 SC 156). (12) Aamir Ikram and 10 others v. District Health Officer, Vehari and others (PLD 2003 SC 266). (13) Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others (PLD 2003 SC 724). (14) SME Bank Limited through Kaiser H. Naseem, President v. Mehfooz Elahi Piracha and 2 others (2003 PLC (C.S.) 1282). (15) Nasim Ahmad v. Water and Power Development Authority through Chairman, Lahore and another (2004 SCMR 56). (16) Arshad Jamal v. N.‑W.F.P. Forest Development Corporation and others (2004 SCMR 468). (17) Farast Hussain and others v Pakistan National Shipping Corporation through Chairman and others (2004 SCMR 1874). (18) WAPDA v. Fida Hussain (2004 PLC (C.S.) 1240). (19) Ghulam Mustafa Khairati v. Federation of Pakistan through Secretary, M/o Finance, Islamabad and another (2005 PLC (C.S.) 417). (20) Ikram Bari and others v. National Bank of Pakistan through its President & others (PLJ 2005 SC 435=(2005 SCMR 100). (21) Section 24‑A of General Clauses Act, 1897. (22) Rule 18 (g) of the Service Rules of Utility Stores Corporation of Pakistan (Pvt) Ltd., 1981.

5. During the course of arguments, learned counsel appearing for the appellant conceded that length of service of all the respondents is not less than 18 years but it could be more than that. Also, it is conceded that neither show‑cause notices were issued to the respondents nor they were heard. It is also an admitted fact that the respondents were not appointed on contract basis, as is reflected in leave granting order dated 25‑3‑2003. Initially, they were appointed as temporary employees and later on many of them were promoted. Learned counsel for the appellant contended that section 2‑A in Service Tribunals Act, 1973, did not change the status of the Corporation's employees into civil servants so far as terms and conditions of service were concerned. They argued that in spite of section 2‑A, the employees of the Corporation continued to be governed by the same terms and conditions of service, which applied to them before introduction of said Section and that its only effect is that an aggrieved employee of the Corporation in respect of his terms and conditions has become entitled to take his grievance before the Service Tribunal, established under Article 212 of the Constitution.

6. The impugned judgments suffer from serious legal infirmities inasmuch as the Corporation has violated the basic principles, while terminating the services of the respondents. Under the circumstances, the services of the respondents, who have served for about 18 years, could not be terminated without giving them an opportunity to explain their position. Principle of natural justice is attracted in the proceedings, whether judicial or administrative, if same results in affecting person or property or other rights of the party concerned. In these cases above principle is applicable.

7. In the instant cases admittedly, neither show‑cause notices were given to them nor the opportunity of being heard was afforded. Action against them was taken without any justification. Under Rule 5 of the Service Rules of the Corporation all matters not provided for in the rules shall be decided by the Board of the Directors in the light of the corresponding provisions of the Government Rules.

8. It is significant to note that in these matters, the provisions of Removal from Service (Special Powers) Ordinance, 2000, could not be invoked for the reasons that there were no charges of inefficiency, guilty of misconduct, corruption etc. and that no enquiry was conducted against the respondents, as is required under section 3 of the said Ordinance.

9. It was not proved that retrenchment was necessary. Learned counsel for the Corporation though argued about retrenchment but swiftly reverted back to prime contention that no show‑cause notice was required under the rules. The procedure adopted by the Corporation for removing the respondents from service was neither under law nor on facts, justified. The principle of lifo (last in first out) was also not applied. Instead discriminatory treatment was given to them. Although, learned counsel appearing for the appellant argued about the financial' difficulties of the Corporation, but no document to substantiate the contention was referred to.

10. It is significant to note that by virtue of section 2‑A ibid service under any authority, corporation, body or organization established by or under a Federal Government of in which the Federal Government has a controlling share or interest has been declared to be service of Pakistan. Removal/dismissal from service on the plea of financial constraints by the department must be established as such and it shall not be a mere pretext. In these cases, ground of financial constraints appears to have been taken, as a pretext. Rule 4 of the Service Rules of the Corporation reads as under:‑ "These rules may be amended, deleted or added to by the Board of Directors. However, all amendments/revisions in Federal Government Rules/instructions shall ipso facto be incorporated in these Rules appropriately in respect of all such Rules which have either been derived from or framed/adopted in accordance with the corresponding Federal Government Rules/instructions. " It appears that necessary amendments in the rules have not been brought in terms of above quoted rule. Ex facie, it does not appear to be a case of termination simpliciter.

11. All observations made by the Tribunal in the paras. quoted above hold the filed and the Corporation may, if it so chooses, proceed against the respondents having complied with the deficiencies pointed out by the Tribunal.

12. Applicant, Zafar Iqbal, has filed CMA No.1920 of 2004 in Appeal No. 1286 of 2004 for impleading him as party on the ground that his case is identical to that of above respondents. His application is allowed and he be treated like other respondents.

13. It is emphasized here that this judgment is applicable only to those, who are parties before this Court and not to others.

14. In consequence, all the appeals are dismissed. M.H/U‑33/S Appeals dismissed.