Termination from service

In case a civil servant has been sent to civil prison on his failure to deposit the decretal amount pursuant to a judgment or decree in a civil suit, it does not fall within the definition of misconduct, for the reason that civil servant is not charged for any moral offence, nor is convicted by Court of law for a criminal offence.

In case a civil servant has been sent to civil prison on his failure to deposit the decretal amount pursuant to a judgment or decree in a civil suit, it does not fall within the definition of misconduct, for the reason that civil servant is not charged for any moral offence, nor is convicted by Court of law for a criminal offence.

The petitioner was appointed as a financial analyst by respondent No.1 in 2007, and his services were terminated in 2016; after issuance of a grievance notice, the petitioner filed a grievance petition

During the proceedings, respondents Nos.1 to 3 filed an application under O. VII, R. 11, C.P.C., contending that the petitioner was not a workman and, therefore, the grievance petition was not maintainable; application was allowed and the grievance petition was dismissed, prompting the petitioner to file an appeal, which was also dismissed resulting in the filing of the present constitutional petition

Moot question before the High Court was as to "whether the petitioner was a workman or not?"

Held: For maintaining a grievance petition by an employee before the forums provided under the labour laws for settlement of an industrial dispute or a case of unfair labour practice, the basic requirement was that the person approaching the said court should be a worker or a workman as contemplated in S.2(xxxiii) of the Industrial Relations Act, 2012 and the initial burden to prove this fact lay upon the employee who has brought the lis before the court, so as to prove that his nature of work is ministerial or clerical and not managerial or administrative and this fact has to be proved by him through his oral as well as documentary evidence

The appointment letter of the petitioner transpired that not a single word had been mentioned therein about the nature of the duties assigned to the petitioner so as to determine that he was a workman or not

Since there was nothing or the record wherefrom this could be culled out that what duties had been assigned to the petitioner as a financial analyst wherefrom his status could be determined and for proving the said fact it was mandatory that the parties should be directed to produce their respective evidence whereupon a decision could be made regarding the status of the petitioner as a workman or otherwise as at the preliminary stage no determination could be made, therefore, impugned orders were not sustainable in law

Constitutional petition was allowed, in circumstances.

Could the trial court order for reinstatement in service or it could ordinarily entertain suit for damages merely as per the principle of master and servant?

Whether the basic principle of master and servant still fits in the present day and age or it requires re-evaluation?

The main legal issue concerned the long-standing principle that in master and servant (contractual employment) relationships, courts could not order reinstatement and instead only damages could be awarded

The petitioner bank relied on the precedent set in the case reported as 'PLD 1961 SC 531', however, the Supreme Court questioned as to whether this precedent being 65 years old remains relevant in the modern context and would continue to be fit for purpose?

For a number of reasons, this was a question which required consideration by the Supreme Court before granting leave to appeal

Given the modern age of internet and even in relation to what was called the "gig economy" (where the position of the hired/engaged person was at its most precious) the courts in many jurisdiction have held that the relationship could not be reduced to that of master and servant

Even the ancient concept as set out in traditionalist terms and certainly as appeared to be in the mind of the court in 'PLD 1961 SC 531' appeared to be outmoded

It appeared that the law might have ossified and became outmoded, being no longer congruent with the demands and requirements of modern times

Rule laid down in 'PLD 1961 SC 531' was ultimately of an equitable nature and it was of the essence of equity that it must retain flexibility and the discretion of the Court (in the judicial sense) so that the law could appropriately develop, and continue to develop, with the passage of time

The rule at hand had prima facie (barring a few developments, which do not however address the issue at the most fundamental level) now acquired a rigidity that was a negation of the discretion that was the hallmark of equity, and became little more than a self-denying ordinance that barred the healthy and organic development of the law so that it remained fit for purpose and the modern age

In the context of the modern economy, the termination of service, in particular by a large corporation, may well in practical terms make a person effectively unemployable even if the termination is later found to be unlawful by a court and compensated by an award of damages

In such circumstances, the decree, when (and if) ultimately honored, may well be cold comfort only

Supreme Court emphasized that it was now long overdue that matters be reappraised at a fundamental level and even, perhaps on the basis of recourse to first principles

Accordingly, leave to appeal was granted to, inter alia, consider the question as to "Whether the rule laid down by this Court in the case reported as PLD 1961 SC 531, and others that follow and/or lay down or affirm the same or similar principle are, and continue to be, fit for purpose or require any modification, replacement or substitution and if so, in what manner and to what extent?

Could the trial court order for reinstatement in service or it could ordinarily entertain suit for damages merely as per the principle of master and servant?

Whether the basic principle of master and servant still fits in the present day and age or it requires re-evaluation?

The main legal issue concerned the long-standing principle that in master and servant (contractual employment) relationships, courts could not order reinstatement and instead only damages could be awarded

The petitioner bank relied on the precedent set in the case reported as 'PLD 1961 SC 531', however, the Supreme Court questioned as to whether this precedent being 65 years old remains relevant in the modern context and would continue to be fit for purpose?

For a number of reasons, this was a question which required consideration by the Supreme Court before granting leave to appeal

Given the modern age of internet and even in relation to what was called the "gig economy" (where the position of the hired/engaged person was at its most precious) the courts in many jurisdiction have held that the relationship could not be reduced to that of master and servant

Even the ancient concept as set out in traditionalist terms and certainly as appeared to be in the mind of the court in 'PLD 1961 SC 531' appeared to be outmoded

It appeared that the law might have ossified and became outmoded, being no longer congruent with the demands and requirements of modern times

Rule laid down in 'PLD 1961 SC 531' was ultimately of an equitable nature and it was of the essence of equity that it must retain flexibility and the discretion of the Court (in the judicial sense) so that the law could appropriately develop, and continue to develop, with the passage of time

The rule at hand had prima facie (barring a few developments, which do not however address the issue at the most fundamental level) now acquired a rigidity that was a negation of the discretion that was the hallmark of equity, and became little more than a self-denying ordinance that barred the healthy and organic development of the law so that it remained fit for purpose and the modern age

In the context of the modern economy, the termination of service, in particular by a large corporation, may well in practical terms make a person effectively unemployable even if the termination is later found to be unlawful by a court and compensated by an award of damages

In such circumstances, the decree, when (and if) ultimately honored, may well be cold comfort only

Supreme Court emphasized that it was now long overdue that matters be reappraised at a fundamental level and even, perhaps on the basis of recourse to first principles

Accordingly, leave to appeal was granted to, inter alia, consider the question as to "Whether the rule laid down by this Court in the case reported as PLD 1961 SC 531, and others that follow and/or lay down or affirm the same or similar principle are, and continue to be, fit for purpose or require any modification, replacement or substitution and if so, in what manner and to what extent?

Respondents raised objection as to maintainability of suit before civil court being a subject of labour laws and the controversy relating to service matter

Validity

Appellant admitted that he was given notices/letters to explain his position; that he remained absent from duty without any intimation and failed to produce any medical prescription or any other documents showing that he remained admitted in the hospital

Appellant did not mention in his plaint that he met with an accident and remained admitted in hospital

Evidence beyond pleadings can neither be produced nor relied upon

In absence of any statutory rules the employee cannot claim the rights and privileges as are available to "Civil Servants" rather the rule of "master and servant" would be attracted which is to the effect that unwilling employer cannot be forced to accept the services of an employees who has been removed from service

No declaration can be issued as to the subsistence of a contract that by its own terms and conditions is terminable at the option of the employer

In absence of any statutory provisions protecting a servant, it is not possible under the law to grant him a decree against an unwilling master to the effect that he is still his servant

If the employee feels that the order of removal was not just or fair or suffered from any mala fide, the remedy will be to sue for damages and not for declaration for subsistence of service as no declaration can be issued as to the subsistence of a contract that by its own terms and conditions is terminable at the option of employer

Appellant was an employee of "Pakistan Telecommunication Corporation Limited", thus, the relationship between him and the "Corporation" was to be regulated entirely by law of "Master and Servant" and the Constitutional safeguards available to the generality of civil servants would not be available to him

Matter of appellant's reinstatement after cancellation of his termination fell within the domain of Labour fora and not in the Civil Courts

Trial Court had rightly held that the Civil Court had no jurisdiction to adjudicate upon the matter

Appellant failed to utter a single word describing the details of loss suffered by him due to his termination order such as fee of advocate or other charges for facing the litigation, medical certificate to prove mental agony as well as damages due to loss of his reputation

Regular Second Appeal was dismissed, in circumstances.

The petitioner establishment (employer) through the present Constitutional petition challenged the judgment passed by the Labour Appellate Tribunal, whereby, respondent No.1 (employee) was reinstated into the petitioner establishment with back benefits after setting aside the Labour Court's order

Petitioner establishment argued that the Appellate Tribunal overlooked undisputed facts and legal provisions, wrongly concluding that respondent No.1 was a permanent worker, despite no convincing evidence and non-service of grievance notice as required under S. 34 of the Sindh Industrial Relations Act, 2013 (SIRA)

Held: It was undisputed (admitted in cross-examination by respondent No.1) that the grievance notice was not served at the address of the petitioner establishment (employer) but at the premises of CEO of the petitioner establishment, in spite of the fact that respondent No.1 was doing duty at the official premises of the petitioner establishment

This was fatal to the case of respondent Employee

Impugned judgment of the Labour Appellate Tribunal was set aside because grievance notice before the Labour Court was incompetently filed and this basic aspect of the case was overlooked by the Labour Appellate Court

Constitutional petition was disposed of, in circumstances.

Contention of the employee was that her case was not considered within the parameters of Pakistan Defence Housing Authority Service Rules, 2008 (Rules) as she was not issued show cause notice

Validity

Pakistan Defence Officers Housing Authority had non-statutory Service Rules, thus, constitutional petition was not maintainable

Petitioner was given a show-cause notice, which was replied by her and then the order of termination followed as per R.8(b)(4) of the Rules, thus, it could not even be argued that the petitioner's case was not considered within the parameters of the Rules, which had been fully complied with in the petitioner's case

Constitutional petition was dismissed, in circumstances.

Petitioner/workman was terminated from service for absent being from duty without leave for a period of more than ten days

Trial forum did not consider absence for such period as misconduct therefore, reinstated the petitioner/workman in service

Lower Appellate Forum set aside order of reinstatement and High Court maintained that order

Validity

National Industrial Relation Commission (Trial forum) in its original order overturned the law and ordered reinstatement but it did not keep in mind doctrine of proportionality and reasonableness and modified act of misconduct from 10 days' absence to 15 days' absence

Full Bench of National Industrial Relation Commission (Lower Appellate Forum) rightly set aside such order in appeal which was affirmed by High Court

Addressing of misconduct aids, keeps an eye on and protects wellbeing of the organization and its employees in order to make sure that the workplace is in a trouble free environment

It is prerogative and inherent right of employer to trigger disciplinary proceedings in accordance with law to address misconduct, if committed by any employee but course of action for encountering any act of misconduct should stick to the principle of natural justice and the set of guidelines provided to ensure due process of law

Wrong handling of misconduct cases results in bad impact on industrial relations and also adversely affects trust level between management and workers

It is also essential for employer to maintain transparency, uniformity and egalitarianism, which insinuates compliance of all legal requirements with equal treatment to employees without any discrimination or favoritism

Supreme Court declined to interfere in order passed by High Court and Lower Appellate Forum

Petition for leave to appeal was dismissed and leave was refused.

Held, that seemingly, the directions issued by the High Court for reinstatement in service with all benefits, which the petitioners (employees) were entitled to at the date of termination of their services, were not complied with

Therefore, the petitioners filed an application in the High Court for initiating contempt proceedings for the non-compliance of judgment

However, the High Court declined to initiate contempt proceedings based on the statement of the alleged contemnors (company) that substantial compliance of the judgment had been made

Impugned order of the High Court did not reflect whether any verified statement of accounts was filed in the High Court by the alleged contemnors to demonstrate compliance and payments, if any, made to the petitioners

Additionally, no due diligence was made by the High Court to ensure compliance with its own judgment

Despite the High Court passing various harsh and deterrent orders on different dates of hearing for ensuring compliance and implementation of its judgment, the contempt application was disposed of precipitously and inconsiderately, and the sole observation was that substantial compliance had been made

What substantial compliance was allegedly made should have been reflected in the order to determine whether due compliance had been achieved or not

So, in all fairness, it was not enough for the High Court to dispose of the contempt application on the ground that if the petitioners had any substantial claim against the respondent (company), they were at liberty to seek a remedy, if any, under the law

Court has to assess the contempt and its gravity and may also purge it if an unqualified apology is tendered by the contemnor; however, there is no concept or parameter to relieve or emancipate the contemnors on the notion that substantial compliance has been made, which had not been demonstrated in the present case

Court has to evaluate the compliance of its judgment in its entirety and not the ratio or percentage of compliance

In the present case denial of exercising jurisdiction proactively in the contempt proceedings for revitalising and assuring the compliance of judgment not only rendered the main judgment worthless and inconsequential, but for all practical purposes, also undermined the writ of the Court and watered down the efficacy of the orders passed by different benches in the same proceedings for ensuring compliance

Petitions were converted into an appeal and allowed; the impugned Order of the High Court was set aside and the matter was remanded back to the High Court for deciding the contempt application afresh and for examining whether the judgment had been implemented as per the directions issued by the High Court or not.

Petitioner/workman was terminated from service for being absent from duty without leave for a period of more than ten days

Trial forum did not consider absence for such period as misconduct therefore, reinstated the petitioner/workman in service

Lower Appellate Forum set aside order of reinstatement and High Court maintained that order

Validity

National Industrial Relation Commission (Trial forum) in its original order overturned the law and ordered reinstatement but it did not keep in mind doctrine of proportionality and reasonableness and modified act of misconduct from 10 days' absence to 15 days' absence

Full Bench of National Industrial Relation Commission (Lower Appellate Forum) rightly set aside such order in appeal which was affirmed by High Court

Addressing of misconduct aids, keeps an eye on and protects wellbeing of the organization and its employees in order to make sure that the workplace is in a trouble free environment

It is prerogative and inherent right of employer to trigger disciplinary proceedings in accordance with law to address misconduct, if committed by any employee but course of action for encountering any act of misconduct should stick to the principle of natural justice and the set of guidelines provided to ensure due process of law

Wrong handling of misconduct cases results in bad impact on industrial relations and also adversely affects trust level between management and workers

It is also essential for employer to maintain transparency, uniformity and egalitarianism, which insinuates compliance of all legal requirements with equal treatment to employees without any discrimination or favoritism

Supreme Court declined to interfere in order passed by High Court and Lower Appellate Forum

Petition for leave to appeal was dismissed and leave was refused.

Held, that seemingly, the directions issued by the High Court for reinstatement in service with all benefits, which the petitioners (employees) were entitled to at the date of termination of their services, were not complied with

Therefore, the petitioners filed an application in the High Court for initiating contempt proceedings for the non-compliance of judgment

However, the High Court declined to initiate contempt proceedings based on the statement of the alleged contemnors (company) that substantial compliance of the judgment had been made

Impugned order of the High Court did not reflect whether any verified statement of accounts was filed in the High Court by the alleged contemnors to demonstrate compliance and payments, if any, made to the petitioners

Additionally, no due diligence was made by the High Court to ensure compliance with its own judgment

Despite the High Court passing various harsh and deterrent orders on different dates of hearing for ensuring compliance and implementation of its judgment, the contempt application was disposed of precipitously and inconsiderately, and the sole observation was that substantial compliance had been made

What substantial compliance was allegedly made should have been reflected in the order to determine whether due compliance had been achieved or not

So, in all fairness, it was not enough for the High Court to dispose of the contempt application on the ground that if the petitioners had any substantial claim against the respondent (company), they were at liberty to seek a remedy, if any, under the law

Court has to assess the contempt and its gravity and may also purge it if an unqualified apology is tendered by the contemnor; however, there is no concept or parameter to relieve or emancipate the contemnors on the notion that substantial compliance has been made, which had not been demonstrated in the present case

Court has to evaluate the compliance of its judgment in its entirety and not the ratio or percentage of compliance

In the present case denial of exercising jurisdiction proactively in the contempt proceedings for revitalising and assuring the compliance of judgment not only rendered the main judgment worthless and inconsequential, but for all practical purposes, also undermined the writ of the Court and watered down the efficacy of the orders passed by different benches in the same proceedings for ensuring compliance

Petitions were converted into an appeal and allowed; the impugned Order of the High Court was set aside and the matter was remanded back to the High Court for deciding the contempt application afresh and for examining whether the judgment had been implemented as per the directions issued by the High Court or not.

Petitioners were appointed with the stipulation that they would obtain the requisite qualification of B.Ed. within the stipulated time

Failure of the petitioners either to obtain the requisite qualification or to obtain the same within the stipulated time

Effect

Contention of the petitioners was that other equally placed employees had been regularized by way of relaxing/extending the limit of time to complete their requisite qualification

Plea of the respondents was that law/policy on the subject had been enforced throughout the Province and employees had not assailed the order of their termination in appeal, therefore, filing of constitutional petition amounted to seeking review of order of High Court

Validity

Petitioners had an opportunity to immediately file an appeal, which they had not done

They had no idea as to whether any other similarly placed employees had been given any extension

Present petition had been filed to take a chance on the basis of principle of similarly placed persons and amounted to review of the judgment of High Court

If relief is given to one person against the applicable policy and/or law, the same cannot be a ground for the grant of same relief in another case

Two wrongs are not going to make one right

No applicable policy/law was violated or deviated, as the petitioners could not obtain qualification in accordance with the applicable policy albeit few had been given undue favour, which was also not of any help to the petitioners inasmuch as the benefit of Para-5(ii) of the judgment of High Court was to be extended to such petitioners if any similarly placed person was regularized prior to the passing of the said judgment and not in negation of the said judgment

If doctrine of similarly placed person is to be applied, the petitioners should also not be extended any such relief as any contra decision (like in case of other employees) would become a case of reverse discrimination qua those individuals across the Province

Division Bench of High had already settled the specific issue and High Court was obliged to follow the same

Constitution petition was dismissed accordingly.

Petitioners (Junior Clerks/ Sanitary Workers posted at Municipal Committee) filed constitutional petition contending that they were terminated without holding regular enquiry and even without serving any Show-Cause Notice

Validity

Record revealed that before termination of services of the petitioners by the respondents / Department, they were not properly served with Show-Cause Notice

Neither any regular departmental enquiry was initiated nor the petitioners were provided any chance of hearing

In view of said aspects, the impugned orders of termination of services of petitioners appeared to be illegal, ultra vires and against the principles of natural justice and fair play

Consequently, High Court set-aside the termination orders of the petitioners, directing the respondents /Department to reinstate the petitioners into service with back benefits, however, the Department would be at liberty to initiate fresh proceedings

Constitutional petition filed by the employees was allowed, in circumstances.

Admittedly, Committee Report revealed that the appellant was neither summoned to appear before inquire committee nor provided any opportunity of personal hearing to justify his position and the said reports were ex-parte and against the universally recognized principle of nature justice (audi alteram partem)

Service Tribunal restored the appellant in service while treating the intervening period as leave without pay

Appeal, filed by the employee, was allowed accordingly.

Held, that record revealed that recommendation of the inquiry committees could not be termed as termination of service of the appellant as no specific order of termination of service of the appellant was issued in pursuance of the inquiry committee recommendation

Both the said committees had merely recommended that the order of the appellant might be considered cancelled, meaning thereby, the said committee had accepted the appointment of the appellant after the completion of codal formalities, therefore, there should be a clear speaking order with regard to termination of service of the appellant and no such order was available on record

Hence, in the absence of any termination letter, the recommendation of the inquiry committee could not be accepted as a legal instrument

Pertinently, all the documents rested in favor of the appellant as well as the recommendations of the inquiry committee wherein the Committee had recommended for release of salary of the appellant and to adjust him in any vacant post and in the absence of any specific termination order in written form with reason, the appellant would be deemed to have been in service and his service was not terminated in the eyes of law

Thus, the recommendation of the inquiry committee was not termed to be a termination order

Service Tribunal restored the appellant in service while treating the intervening period as leave without pay

Appeal was allowed accordingly.

Constitutional petition was dismissed, in circumstances.

Petitioner showed his inability to attend the office due to tribal enmity and eminent threat to his life, as such, filed several applications for grant of leave

Manager of the transferee branch through an 'Absence Notice' informed the petitioner that the competent authority had disregarded his leave applications and directed him to attend the office within three days

Petitioner belatedly joined his duty, filed an application for grant of leave, joining report was accepted, his application for grant of leave was forwarded to the head office with the recommendation that the leave period be treated as leave without pay, however, vide impugned memorandum, the services of the petitioner were terminated on account of unauthorized absence and the period of his absence was treated as leave without pay

Held; period of absence was already condoned and his joining report was accepted by issuing a stern warning to the petitioner, therefore, no ground was available with the Bank to terminate the petitioner

Neither any show-cause notice was issued to the petitioner nor any opportunity of hearing was afforded to him before passing the impugned office memorandum

Entire record was silent in respect of any inquiry conducted against the petitioner

Termination order and the order whereby departmental appeal was dismissed were set aside, in circumstances

Bank was directed to reinstate the petitioner into his service with all back benefits from the date of his dismissal

Constitutional petition was disposed of accordingly.

When the appellant (Ex-Civil Judge) had refuted the allegations, in such eventuality the matters involved controversial questions of facts which could not have been decided without detailed scrutiny and holding a regular inquiry

Termination of services with stigmatic charges, without holding a regular inquiry, degenerated a host of adverse assumptions against one's character, which had bearing on one's reputation and goodwill for his future career

Thus, it offended right to life and dignity as enshrined under Arts. 9 & 14(1) of the Constitution

Competent Authority must not dispense with the regular inquiry that could be necessary to probe into charge, particularly when there was likelihood of imposition of major penalty of termination of service if the allegation was proven because it would result into grave miscarriage of justice and prejudice to the aggrieved civil servant

Plausible reasons were to be provided, if at all, the regular inquiry was to be dispensed with

Record revealed that the Hearing Officer duly appointed by the Administrative Committee , after affording personal hearing to the appellant, recommended him either to be re-instated or to hold regular inquiry in order to establish allegation leveled against him

However, the Competent Authority did not consider the said recommendation and proceeded to pass termination order after simply providing personal hearing to the appellant

Although the Competent Authority was not bound by the recommendation of the Hearing Officer/Inquiry Officer and had powers to differ with it, however, such power had to be exercised on the basis of duly recorded cogent and valid reasons

No cogent reasons had been assigned, in the present case, by the Competent Authority to disagree with the findings and recommendations of the Hearing Officer

Appellant, as a citizen, was entitled to due process, right to be treated fairly at all times, right to procedural fairness and right to procedural propriety

Record also revealed that, in an identical matter, a regular inquiry had been held, thus, the appellant could not be subjected to the discrimination as enshrined under Art. 25 of the Constitution

Subordinate Judiciary Service Tribunal set aside impugned orders/notifications issued by the Registrar High Court and directed him to hold regular inquiry before deciding the matter as per law

Constitutional petition was allowed, in circumstances.

Petitioner assailed the order of termination of his services on the ground of absence from duty and dismissal of his departmental appeal

Contention of the petitioner was that he was on probation when a false criminal case was registered against him, leading to his arrest

After his acquittal, he approached the department and discovered that he had been terminated

Validity

Petitioner's claim was questionable since neither before his arrest nor after the framing of charge, he or anyone on his behalf had informed the department about his alleged involvement in the criminal case

It's important to note that the petitioner was terminated from service before he had attained the status of a confirmed employee

Regular or confirmed employee could be removed from service after conducting a full-fledged inquiry, whereas a probationer could be removed from service based on allegations of misconduct, corruption, or malpractice, provided an opportunity for a hearing was provided

If the termination was simpliciter, it did not require the issuance of any notice

Consequently, the constitutional petition was dismissed.

Petitioner was initially appointed as Manager (Admin & Finance) and was duly confirmed after satisfactorily completing his probation period

Order terminating the services of the petitioner under the subject "service no more required" was though argued to be in terms of the initial appointment letter, according to which, in case of confirmation of his service, his services were liable to be terminated on one month notice or payment of one month salary in lieu thereof, however, in the instance matter, the reason given as 'unsatisfactory performance' after his confirmation became redundant, as the very termination order carried a stigma in the shape of "unsatisfactory performance" which ultimately would be a hurdle for the petitioner while applying to other departments in future

Allegations against the petitioner pertained to bypassing a channel in the matter of correspondence and nowhere, it was alleged that the interest of the University, at any stage, had been compromised

Even otherwise, when there were allegations of any kind against the petitioner, the University was required to have allowed him proper opportunity to defend himself

Termination order was set aside and the petitioner was reinstated in service

Constitutional petition was allowed.

High Court under the provisions of Civil Procedure Code had jurisdiction to entertain constitutional petition even otherwise

Petitioner did not ask for enforcing any right under statutory / non-statutory rules, rather had asked for enforcement of fundamental rights secured and guaranteed under the Constitution

Order of termination of petitioner suffered from patent perversity

Even if allegation made against petitioner was taken as proved, the same did not amount to misconduct so as to attract penalty of termination imposed upon him

Right to form an association was protected under Art.17 of the Constitution

Once the Bank after complying with codal formalities, appointed petitioner, then it could not take a somersault and terminate him on trifling grounds

High Court set aside termination order as the same was in violation of principle of natural justice

Constitutional petition was allowed, in circumstances.

Contention of petitioner was that the Chief Executive Officer had no authority to terminate his service; that the Board, under S.9(6) of Ravi Urban Development Authority Act, 2020, had not delegated its power to Chief Executive Officer and that under S.12, only the Authority could remove him from service

Validity

Employment contract of the petitioner was signed by the Chief Executive Officer

Power for appointment of petitioner was also exercised by the Chief Executive Officer under S.11 by virtue of the delegation of powers and functions conferred on him under subsection (6) of S.9

By the same token, Chief Executive Officer by recourse to subsection (6) of S.9 was empowered to pass the order for termination of the services of the petitioner

Ravi Urban Development Authority Act, 2020, had assigned the powers and functions of the Authority and its Board to the Chief Executive Officer who in exercise of that power had terminated the service contract of the petitioner

Said power under the scheme of the Act was validly exercised by the Chief Executive Officer to which no exception could be taken

Writ petition was dismissed.

Words appearing in subsection (6) of S.9 "subject to this Act and general supervision and control of the Board" do not in any manner whatsoever hamper or curtail the powers of the Chief Executive Officer and/or make the approval of the Authority or Board, as the case may be, a condition precedent for the decisions taken by the Chief Executive Officer

Chief Executive Officercan perform all powers and functions of the Authority for the purposes of the appointment and termination from service of the employees of the Authority.

Where conditions of service of employees are not regulated by a statutory provision(s), the service/employment of employees is to be governed by the principle of "Master and Servant" and the employees of such entity cannot invoke Art.199 of the Constitution, for any violation of terms and conditions of service.

Respondents assailed their termination orders through various constitutional petitions, which were allowed by the Single Judge of High Court vide impugned orders

Validity

Appellant was a private limited company, which was incorporated under the provisions of erstwhile Companies Act, 1913

Terms and conditions of employment of appellant were governed by National Engineering Services Pakistan (Pvt.) Limited Employees Service Rules, which were framed by the Board of Directors in pursuance of powers conferred by the Memorandum and Articles of Association

Employee of appellant could not maintain petition in constitutional jurisdiction of High Court

Petitions filed by respondents were not maintainable

Impugned judgment was set aside and the intra court appeals were allowed.

Respondents assailed their termination orders through various constitutional petitions, which were allowed by the Single Judge of High Court vide impugned orders

Contention of appellant-employer was that its' employees did not have statutory rules of service and that the alleged violation of terms and conditions of service did not attract the constitutional jurisdiction of High Court

Respondents defended the judgment by placing reliance on the judgment reported as "Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed" [2013 SCMR 1707] ('the cited case') and contended that in view of non-adherence of Public Sector Companies (Corporate Governance) Rules, 2013, even in absence of statutory rules of service, the constitutional petition was maintainable

Validity

Supreme Court in the 'cited case' and others case had clearly observed that in order to maintain constitutional petition, it was incumbent upon the petitioner to show statutory intervention

Service rules in the instant case were prepared by Board of Directors of private limited company, having no statutory authority, the case did not meet the criteria and yardstick laid down in paragraph No. 50 of the 'cited case' and others case

Even otherwise, consequences of violation of Public Sector Companies (Corporate Governance) Rules, 2013, were given in R.25 of the same, in the form of fine besides other consequences provided in the Companies Act, 2017

Impugned judgment was set aside and the intra court appeals were allowed.

Plaintiff was appointed by the company when it acquired corporate status, and their relationship was governed by the master and servant rule

Plaintiff had relied on the Human Resource Manual, which suggested that termination could be done without assigning any reason or as a retrenchment measure, provided a notice of three months or payment in lieu thereof was given

Defendant had offered final settlement to the plaintiff after completing the required formalities

Employee could not force his employer to continue his services as it would disrupt the entire internal mechanism and workings of the corporate sector

Therefore, the suit could, at most, be considered a claim for the recovery of damages due to the alleged unlawful termination and nothing more.

Court while dealing with application for grant of injunctions had to look and assess all circumstances obtaining suit and moreso to equitable relief

Discretion vested in Court of law had to be exercised judicially and equitably ensuring all times that justice was adequately applied and administered

Even if a corporation was performing functions in connection with affairs of Federation but had no statutory rules, its employees were governed by principle of "master and servant"

Remedy against wrongful dismissal or termination from service was to claim damages

Plaintiff did not claim damages and/or compensation with regard to his alleged claim of wrongful dismissal from service

Relief sought by plaintiff was barred by S.42 of Specific Relief Act, 1877

High Court declined to grant any relief to plaintiff as he had been terminated from service

Plaint was rejected in circumstances.

Question before High Court was whether the respondent as an Officer Grade-III employee of the petitioner (Bank) ceased to have the status of a workman on account of the power of attorney having been executed in his favour

Validity

Powers that were given to respondent under the power of attorney were of a managerial and supervisory nature

Such powers took the respondent out of the ambit and meaning of a workman

Constitutional petition was allowed, impugned order passed by Full Bench of National Industrial Relations Commission (NIRC) was set aside and the order passed by Member, National Industrial Relations Commission, was restored.

Powers of the Government to terminate the service of an employee in public interest , though not unqualified or unrestricted, are to be regulated in the manner and in the interest of efficiency of public bodies, however the Government should have the authority to terminate the employment of inefficient, corrupt, indolent character and disobedient employee

However, said authority must be exercised fairly, objectively and independently, and the occasions for exercise must be delimited with precision and clarity

Further, there should be adequate reasons for the use of such power, and the decision in this regard has to be taken in a manner showing fairness, that avoids arbitrariness and evokes credibility.

Petitioner assailed order passed by respondent (employer) whereby he was removed from service on account of unauthorized absence from duty

Held, that petitioner, at the relevant time, had more than 20 years' service to his credit

Respondent had not placed on record a single document to show that whether any disciplinary proceedings under the relevant rules were initiated against him

It was not the case of respondent that they had ever served the petitioner with a show cause notice, not a single document was annexed with the written comments to show that the petitioner was proceeded against on account of unauthorized absence in due course of law in accordance with rules

Entire stress had been on the point that the petitioner admitted his willful absence at the time of personal hearing afforded to him pursuant to an order passed in the present writ petition

Treatment afforded to the petitioner for throwing him out of service after rendering 20 years' service as being regular employee in no way could be termed justified and in accordance with the canons of law

Treatment under due process was right of every employee while principle of fair trial was also a fundamental right in terms of Art. 10-A of the Constitution

Termination notice was set aside and the writ petition was allowed.

Principle contained in maxim "audi alteram partem" has to be applied in all judicial and non-judicial proceedings notwithstanding the fact that right of hearing has not been expressly provided by the statue governing the proceedings

Issuance of show cause notice to an employee before termination of his services is indispensable.

Powers of the Government to terminate the service of an employee in public interest , though not unqualified or unrestricted, are to be regulated in the manner and in the interest of efficiency of public bodies, however the Government should have the authority to terminate the employment of inefficient, corrupt, indolent character and disobedient employee

However, said authority must be exercised fairly, objectively and independently, and the occasions for exercise must be delimited with precision and clarity

Further, there should be adequate reasons for the use of such power, and the decision in this regard has to be taken in a manner showing fairness, that avoids arbitrariness and evokes credibility.

When an employee is to be terminated on the ground of misconduct, which in itself is a stigma, it is mandatory for the department to hold regular inquiry enabling the employee to defend the allegations levelled against him before an unbiased and independent forum.

Petitioner challenged order passed by department whereby his services were terminated on account of professional misconduct, negligence and inefficiency

Held, that impugned order carried a stigma with it, which had admittedly been passed without a regular inquiry

Impugned order was set aside for being void and having been passed without lawful authority

Competent authority could proceed against the petitioner on the basis of allegations in question after holding a regular inquiry

Constitutional petition was allowed.

Appointment of petitioner was not based on fake documents rather his promotion was obtained through the document which was, later on, found fake (as per respondent-company)

Petitioner had not committed any act of misconduct as defined by Standing Order No. 15

Petitioner was promoted in the year 1989 but his alleged Matric Certificate was sent to the concerned Board for verification in the year 2010, after a lapse of considerable time; and, thereafter he was charge-sheeted for having a bogus Matric Certificate

Attendance of witnesses from the concerned Board was not procured to substantiate the allegations of fraud and forgery

Even the alleged Matric Certificate was not produced along with an affidavit in evidence of respondent's witness

Petitioner was wrongly terminated from service, as such, he was entitled to the consequential benefits

Constitutional petition was allowed and the respondents were directed to re-instate the petitioner with back benefits, in circumstances.

Contention of petitioner was that he was being victimized and harassed because he had disclosed the secrets of some of his superior officers of NICVD regarding their involvement in corruption and corrupt practices

Validity

Petitioner had continued to remain absent from duty without sanctioned leave despite the warning to join the duty

Petitioner was issued numerous warnings by the competent authority, which were available on record, to improve his attendance/punctuality and comply with the hospital duty hours but he failed to pay any heed to such warning/ communications

Order of dismissal from service clearly showed that same was based on non-attendance, punctuality and non-compliance of hospital duty hours

Petitioner had not placed any material on record to substantiate his plea

Constitutional petition was dismissed, in circumstance.

When the service of a permanent employee is required to be terminated, even on the ground of remaining absent from duty without prior permission of the concerned authority, the minimum requirement of principles of natural justice by issuing a show-cause notice is to be followed.

Even if it was accepted that a notice was sent to the employees, ex facie the same was deficient and did not properly satisfy the test of what constituted a valid show-cause notice

Employees were, at the very least, to be properly confronted with the allegations as to the invalidity of their appointments so as to be able to properly respond thereto, under the given circumstances of the case they did not appear to have been extended such an opportunity, which militated against the well settled principles of natural justice, enshrined in the maxim audi alteram partem

Termination orders were set aside with direction to the respondents to process the cases of the petitioners afresh

Constitutional petitions were disposed of accordingly.

Allegation against petitioners (medical officers) was that they both, instead of marking their respective attendance by themselves, handed over their RFID card to another employee who was caught while swiping the said RFID cards

Petitioners contended that they by reaching the hospital preferred to attend critically ill patients coming across them

Validity

Record revealed that an inquiry committee was constituted, but after the termination of petitioners

Report of said committee showed that both the petitioners were present on their duties

Petitioners, being medical officers in emergency department, keeping in view the requirement and demand of their profession might have prudently given preference to rescue the life of serious patient(s) instead of marking their attendance themselves

Even competent authority could not deny presence of the petitioners on the duty

Awarding of major penalty (i.e. termination from service) on a petty matter of not marking attendance by petitioners themselves, that too, without following the codal formalities, expressed mala fide and bias on the part of the competent authority against the petitioners

Flimsy termination orders , without bona fide, were passed but neither any notice for explanation nor any opportunity of hearing/defence was afforded to the petitioners

High Court set aside impugned termination orders declaring the same as illegal, unlawful and void ab initio, and reinstated the petitioner into service with all back benefits

Constitutional petition was allowed, in circumstances.

Single Member of NIRC, relying on prohibitory clause of Power of Attorney (which was assigned to the petitioner), reinstated him declaring him a workman, whereas Full Bench of NIRC set-aside order of Single Member relying yet another clause of the said Power of Attorney

Held, that another clause of Power of Attorney in question confirmed that the petitioner was performing duties/functions of administrative nature which fell in the managerial and supervisory domain

Single Member of NIRC relying on other clause of Power of Attorney (prohibiting certain functions) was misconceived since powers under the Power of Attorney were usually confined to primary and specific functions performed by an employee and , therefore, at times prohibited certain functions which did not fall within the scope of his assignment

Correct approach would be to read the said Power of Attorney as a whole and give more weight to tasks entrusted upon the employee (i.e. what he could do,) rather than what he was prohibited to do

Reading said Power of Attorney as a whole confirmed that the assignments entrusted to the petitioner were that of managerial in nature/character

Clause 12 of said Power of Attorney was the only prohibitory clause putting restrictions upon the petitioner regarding assignments which he could not do singly but could do in collaboration with another officer, therefore, Single Member of NIRC had completely misread said clause in isolation, to conclude that the petitioner was a "workmen"

Officers Grade-I to III were not "workmen"

Description of work and assigned tasks of an employee were relevant to determine the status of a workman or otherwise

Petitioner was not a workman and thus not entitled to invoke the jurisdiction of NIRC

No illegality or unconstitutionality was found in the impugned order passed by the Full Bench of National Industrial Relations Commission

Constitutional petition was dismissed, in circumstances.

Plea of the petitioner/bank was that the termination orders of employees-respondents were wrongly set aside by National Industrial Relations Commission (NIRC) as they (respondents)held general body meeting of CBA during office hours

Validity

Petitioner-bank had treated the absence(allegation) as the violation of S.27(B) of the Banking Companies Ordinance, 1962, whereas there was no charges of inefficiency, indiscipline, dishonesty or wilful negligence while performing official duties for the petitioner-bank

No allegation of misconduct as defined in Regln. 2(4) of Agricultural Development Bank of Pakistan Officer Service (Efficiency and Discipline) Regulations, 1975 were made against the respondents, whereas they were terminated on the allegation of absence from the duty for participating in trade union activities

Dispute between the parties was, thus, an industrial one and not an individual dispute

National Industrial Relations Commission (NIRC) had validly exercised the jurisdiction in entertaining the grievance petition filed by the respondents under S.33 of Industrial relations Act, 2012

No illegality or irregularity was found in the concurrent judgments passed by NIRC

Constitutional petition was dismissed, in circumstances.

Terms and conditions of the employees as reflected in the different appointment orders would show that the same were of permanent and regular nature

Employees of the Market Committee who had spent/rendered services in the Committee since the year 1994-95 and that too without any blemish, and in spite of Khyber Pakhtunkhwa Agricultural and Livestock Produce Markets Act, 2007 ('the 2007 Act'), the Khyber Pakhtunkhwa Agricultural Produce Markets General Rules, 2011 ('the 2011 Rules'), and Bye-laws of 2013 made under the 2007 Act, had been made rolling stones struggling for their fundamental rights

Action of the competent authorities to terminate the employees and to make fresh appointments orders was oppressive and against their fundamental rights specially when R. 71(v) of the 2011 Rules also gave protection to the persons already employed

While serving the Market Committee for such a long time, almost all of the employees would have lost their chance of fresh appointments in other Government departments

In such circumstances the decision of the government and the Market Committee for termination of the employees or their fresh appointments under the Act 2007, the 2011 Rules and relevant Bye-laws of 2013, could not be concurred with

Order of termination of the employees, being illegal and unlawful, and having no legal effect, was set aside with the direction to the Provincial Government and the Market Committee to consider regularization of the services of the employees in accordance with law.

Terms and conditions of the employees as reflected in the different appointment orders would show that the same were of permanent and regular nature

Employees of the Market Committee who had spent/rendered services in the Committee since the year 1994-95 and that too without any blemish, and in spite of Khyber Pakhtunkhwa Agricultural and Livestock Produce Markets Act, 2007 ('the 2007 Act'), the Khyber Pakhtunkhwa Agricultural Produce Markets General Rules, 2011 ('the 2011 Rules'), and Bye-laws of 2013 made under the 2007 Act, had been made rolling stones struggling for their fundamental rights

Action of the competent authorities to terminate the employees and to make fresh appointments orders was oppressive and against their fundamental rights specially when R. 71(v) of the 2011 Rules also gave protection to the persons already employed

While serving the Market Committee for such a long time, almost all of the employees would have lost their chance of fresh appointments in other Government departments

In such circumstances the decision of the government and the Market Committee for termination of the employees or their fresh appointments under the Act 2007, the 2011 Rules and relevant Bye-laws of 2013, could not be concurred with

Order of termination of the employees, being illegal and unlawful, and having no legal effect, was set aside with the direction to the Provincial Government and the Market Committee to consider regularization of the services of the employees in accordance with law.

Contention of Company was that employee was not "worker" and grievance petition was not maintainable before Labour Court

Validity

Employee at the time of termination of his service was performing duty of Manager Excise

Company had terminated the services of employee in accordance with the service rules applicable to him in lieu of notice

Employee was incharge of his section and was performing the supervisory duty

Petitioner-employee had initiated annual confidential reports, made recommendations for promotion and extension of period of service and had also recommended leave applications of his subordinates

Employee was not "worker", in circumstance

Labour Court had failed to appreciate the evidence on record and had wrongly held that employee was a "worker"

Impugned judgment passed by the Labour Court was not sustainable in the eye of law which was set aside

Grievance petition filed by the employee was dismissed

Appeal was allowed, in circumstances.

Service of employee had been dispensed with under Regln. No. 5 of Khyber Pakhtunkhwa Board of Technical Education Regulations, 1994

Absence of employee from duty was willful and it was not possible to provide him a right of hearing or notice

Right of hearing to the employee was not necessary in circumstances

Action of departmental authority might be reversed on the basis of omission in providing hearing when the right of hearing would make a difference and when petitioner had vested right to be presented before the authority

When a right of hearing was a mere formality then omission of right of hearing could not be made the basis for reversal of an order of administrative authority

Departmental appeal of employee had rightly been dismissed by the department

Constitutional petition filed by the employee was hit by the doctrine of laches

Constitutional petition being not maintainable was dismissed, in circumstances.

Nothing was on record whether these holidays were legally permissible or not and whether salary against those days had been deducted from the account of employee

Inquiry committee had not adverted to the period of absence or total number of days the employee had taken off without permission of employers

Employee was proceeded against in undue haste

Impugned findings were not based on evidence but on his admission of fault

Employee had not been confronted with precise allegations by the inquiry committee for defense

High Court observed that employee had twenty years of service and he should have been retired instead of dismissal

Impugned dismissal order was modified into compulsory retirement/removal from service

Constitutional petition was allowed, accordingly.

Employees of Pakistan Telegraph and Telephone Department transferred to Pakistan Telecommunication Corporation and then to Pakistan Telecommunication Company Limited

Termination from service

Constitutional petition filed on behalf of employees was accepted on the ground that action should have been taken under Government Servants (Efficiency and Discipline) Rules, 1973

Validity

Terms and conditions of service of employees had been protected under S.9 of Pakistan Telecommunication Corporation Act, 1991 and Ss. 35 & 36 of Pakistan Telecommunication (Re-Organization) Act, 1996

Terms and conditions of service of petitioners should not be varied to their disadvantage

Sections 35 & 36 of Pakistan Telecommunication (Re-Organization) Act, 1996, were statutory in nature and employees were no more civil servants, in circumstances

Petitioners recruited before 01-01-1996 had statutory protection and employees recruited after said date were governed by non-statutory rules being their employment as contractual in nature

Intra court appeal was allowed, in circumstances.

Relationship of master and servant existed in the matter of contract appointment and constitutional petition was not maintainable

No illegality or infirmity had been pointed out in the impugned order passed by the Single Judge

Intra-court appeal was dismissed in limine.