2010 PLP (C (PLC(CS))

JUSTICE (R) TANVEER BASHIR ANSARI (CHAIRMAN).

The appeal is directed against the order dated 14-11-2002 whereby the appellant was terminated from service upon 14 days notice in terms of clause (iv) of his appointment letter dated 16-1-1990. The departmental appeal against the same remained unactioned. Appeal before the Tribunal was filed on 3-3-2003.

2. Briefly, the facts are that the appellant was appointed as Chief Engineer (Marine) vide appointment letter dated 16-1-1990 on ad hoc basis. Although the said post was described as temporary, the appointment was subject to the provisions of Civil Servants Act, 1973 and other rules as, may be applicable to the category in which the appellant is placed. The appellant was to remain on probation for a period of one year which was extendable for a further period of one year. In accordance with clause (iv) of the said appointment letter, the services of the appellant were liable to be terminated on 14 days notice. In fact this clause was invoked in passing the impugned order of termination.

3. The learned counsel for the appellant contends that the appellant successfully completed the period of probation and thus assumed the character of a permanent employee. It is further submitted that during the course of his service, the appellant was assigned various projects to supervise the following works: (i) To look after Liaison Office at Karachi administratively in all matters in the absence of the Project Director. (ii) To control and maintain Liaison Office at transport. (iii) To supervise construction work of vessels which are being built at KSEW. (iv) To supervise Testing and Communication of vessels which are being built at KSEW. (v) To carry out capital dredging works at Gavadar. At one time the Project Director of Gawadar Fish Harbour recommended the regularization of the appellant. The appellant was later transferred from Gawadar Fish Harbour to Gawadar Development Cell on deputation for 3 years. The appellant was later transferred to his parent-Department i.e. Gawadar Fish Harbour vide order dated 15-1-1997 where he took up the charge of Project Director. It is submitted that the entire narration would show that the appellant had served the respondent department continuously without any break for almost 12 years and that having recourse to clause (iv) of the appointment letter was illegal besides being mala fide.

4. The learned counsel for the appellant has placed reliance upon Muhammad Hanif v. Chairman, Income Tax Appellate Tribunal, Karachi-1994 PLC (C.S.) 24 and judgment passed in case of Naseer Ahmed Balouch v. Government of Pakistan dated 2-6-2005 in Appeal No.19(K)CS of 2003 to contend that in such situation the employee acquired the status of a. confirmed and permanent employee and his services could not be dispensed with otherwise than through due process of law such as issuance of the show-cause notice etc.

5. We have heard the learned counsel for the parties and have perused the record.

6. It is correct that the appointment letter dated 16-1-1990 contains clause (iv) which authorized the termination of service of an employee on a 14 days notice. The subsequent developments such as the completion of the probationary period, the performance of functions on various projects the performance of the functions as Project Director of construction of Fish Harbour .built by foreign contractors, the transfer of the appellant from Gawadar Fish Harbour to Gawadar Development Cell on deputation for 3 years and then his repatriation to his parent department would all go to show that the appellant had acquired the status of a confirmed and permanent employee and whose services could not be terminated otherwise than due process of law. With the passage of time and the happening of the developments as referred to B above, the clause (iv) of the appointment letter had become a anachronism as the appellant had acquired a status of a confirmed and permanent employee. Admittedly, neither a show-cause notice was issued to the appellant nor any disciplinary proceedings in any other manner were initiated against him. The simplistic approach of having recourse of clause (iv) of the appointment letter is not only illegal but is also mala fide.

7. Resultantly the appeal is allowed the impugned order dated 14-11-2002 is set aside and the appellant is reinstated in service. The appeal was admitted to regular hearing on 7-4-2003 but thereafter the appellant was not effectively represented by his learned counsel with the result that the appeal became unnecessarily protected. This being the case it shall be unjust to burden the respondent with the back-benefits as the appellant had contributed substantially to prolong the pendency of the appeal and nobody can be allowed premium of his own default.

8. The appeal is decided in the above terms.

9. No orders as to costs.

10. Parties be informed. H.B.T./22/FST Appeal allowed.