2011 PLP (C (PLC(CS))

CH. SHAHID SAEED, J.

It is contended by the learned counsel for the petitioner that the petitioner was appointed as Charge Nurse on 27-10-1998 on contract basis for four years by the order of respondent No.3. Later on her period was extended. On 8-12-2005 the petitioner was restrained from performing her duties as Charge Nurse by respondent No.4 without any reason. In this regard neither any show-cause notice nor a charge-sheet was issued to her by the competent authority. Thereafter an impugned order dated 1-12-2004/5-12-2005 was issued by respondent No.3 with mala fide intention which is not sustainable in the eye of law by way of which the services of the petitioner were terminated illegally, unlawfully and without providing the opportunity of hearing. The petitioner could not be terminated even invoking the terms and conditions of the contract without serving a show-cause notice and grant of an opportunity of hearing. Some so-called enquiry was also initiated against the petitioner wherein it was recommended that the petitioner is liable to be terminated on the basis of some misconduct/misbehave with a Doctor. After the completion of enquiry retrospective effect was given to the termination of the petitioner which is totally illegal and unlawful because before issuance of the impugned order a copy of order dated 1-12-2004 was also received at home address of the petitioner on 10-12-2005, passed prior to the initiation of alleged enquiry. The impugned order dated 1-12-2004/5-12-2005 passed by respondent No.3 is illegal, arbitrary, without lawful authority, having no legal effect and without providing an opportunity of hearing, liable to be set aside.

2. On the other hand, learned counsel for respondents contends that the matter relates to the terms and conditions of service and this Court has no jurisdiction to entertain the constitutional petition. The petitioner has alternate remedy available and she should approach the service tribunal. Learned counsel referred 2004 PLC (C.S.) 298 and 2008 PLC (C.S.) 127.

3. Arguments heard. Record perused.

4. From the careful perusal of record it reveals that a distortion is apparent on the face of record as a termination order dated 1-12-2004 was issued one year earlier to the impugned order dated 1-12-2004/ 5-12-2005 which was given retrospective effect after conducting so called enquiry wherein no proper opportunity of hearing was provided to the petitioner when there was stigma of misconduct on the petitioner then she was entitled for personal hearing. Furthermore, the petitioner cannot be treated as civil servant as she was appointed on contract basis and in this regard section 2(b)(ii) of the Punjab Civil Servants Act (VIII of 1974) is very clear, which is as under:-- "(b) `civil servant" means a person who is a member of a civil service of the Province or who holds a civil post in connection with the affairs of the Province, but does not include

(ii) a person who is employed on contract, or on work charged basis, or who is paid from contingencies" The citations referred to by the learned counsel for the respondents are not helpful to the version of the respondents that the matter relates to the terms and conditions of service. As such, the instant writ petition is allowed and the impugned order dated 1-12-2004/5-12-2005 passed by respondent No.3 is set aside, with the direction to the respondents that the petitioner shall be treated as an employee on contract basis and her case for regularization also be considered as per the notification issued by the Government of Punjab. C.M.2599 of 2010.

5. Since the writ petition has been allowed, thus, the instant C.M. has become infructuous which is dismissed accordingly. H.B.T./R-76/L Petition allowed.