PLJ 2001 Peshawar 173 (DB)
Present: MIAN SHAHRULLAH JAN AND QAZI EHSANULLAH QURESHI, JJ.
Dr. ASHIQ MUHAMMAD and 5 others-Petitioners
versus
GOVT. OF N.W.F.P., through SECRETARY HEALTH SERVICES, PESHAWAR and another-Respondents
W.P. No. 1274 of 2000, decided on 18.4.2001.
(i) Service Matters-
—Absent from duty—Allegation of—Charge of absent from duty is apparently a violation of terms & conditions of service and very much falls within purview of misconduct-So if respondents in case opt to resort to terms services of petitioners on charge of absent from duty, in such eventuality they are under bounden duty to abide by condition i.e. Clause-7 of Agreement-They cannot travel beyond and riggle out of such terms which they themselves dictated and drafted and petitioners were made to sign, who were obliged to do so because they were needy and were anxious to join service which they could able to manage after long hectic tiresome exercise and after completion of higher educational studies-However, had it .been a simple termination without allegation in that case petitioners had no case and their services could be terminated safely without notice-But it is a case of termination on serious charges, it involves career, future prospect of petitioners-Impugned termination order is a stigma on their career, service record which can affect their future career in long run, they are young, they have to struggle for existence and survival for considerable time-So such drastic and serious charge was subject to proof under Clause 7 of agreement and underN.W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973 procedure was to be applied for, as respondents themselves accepted and
borrowed procedure given thereto in Clause-7 of Agreement meant for an allegation of absent from duty-Order must be reasonable, fair, just andnot arbitrary. [P. 176] A
borrowed procedure given thereto in Clause-7 of Agreement meant for an allegation of absent from duty-Order must be reasonable, fair, just andnot arbitrary. [P. 176] A
(ii) Contractual Service-
—Contractual service does not confer unbridled, un-armed, un-canalised arbitrary powers upon authority to terminate service unilaterally.
[P. 176] B
(iii) Contractual Service—
—Contractual obligations cannot be taken to be only binding upon employee-Employer and employee are equally bound by terms and conditions—Importance/terms and conditions of contract is to be acknowledged by both parties. [P. 176] C
(iv) Service Matter-
—Petitioners were terminated with one stroke of pen at one and same time on stereotype order on allegation of absence from duty without any record, register of attendance—Even thereafter there is no mention of any solid material nor same is produced before Court on hearing and to justify their action of termination, despite of clear and explicit condition and given procedure laid down in Clause-7 of agreement that violation of provisions of N.W.F.P. Government Servants (Conduct) Rules, 1987, shall amount to misconduct and will be governed in light of NWFP Government Servants (Efficiency & Discipline) Rules, 1973, even thendrastic and sweeping action was initiated following termination order-Held : It is a fit case to interfere with impugned order in exercise of our writ jurisdiction-It is directed that petitioner be reinstated.
[Pp. 177 & 178] D & E
Mr. Abdul LatifAfridi, Advocate for Petitioners. Mr. Tariq Javed, A.A.G. for Respondents. Date of hearing : 18.4.2001.
JUDGMENT
Qazi Ehsan Ullah Qureshi, J.--Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with P.C.0-1 of 1999, Dr. Ashiq Muhammad and five others, petitioners have sought declaration to declare the impugned order of their termination dated 30.8.2000, to be without lawful authority, mala fide, without jurisdiction and ineffective against their rights, as such prayed for reinstatement on their respective posts.
2. According to the averments made in the petition, the petitioners are qualified doctors, selected and appointed in BPS-17 on contract basis intwo groups vide orders dated 27.11.1995 and 18.12.1995 of the Director General Health Services N.W.F.P. Peshawar (Respondent No. 2). Thecontractual service used to be renewed from time to time. The petitioners were serving at Agency Headquarters Hospital
3. Comments were called for from the respondents which were furnished by them. Pre-admission notice to the respondents as well as to theAdvocate-General was given. Today the writ petition is admitted to full hearing. The learned Advocate-General present is Court in this case accepts notice of the main writ petition. Arguments of both the learned counsel for the parties heard.
4. Learned counsel for the petitioners while arguing the case advanced that the impugned notification transpires that the services of thepetitioners have been terminated on the ground of absent from duty. Earlier the petitioners were never charged or warned or informed of such absence inany manner. The record of the hospital also falsifies this charge. The petitioners are awarded with the certificates by the senior doctors regardingtheir satisfactory and punctual performance. He further argued that the petitioners were terminated in violation to the agreement and no noticewhatsoever was served upon them, thus condemned unheard. No show cause notice or opportunity of defence was provided to them. Since thepetitioners were appointed on contract basis, hence they are not civil servants under Section 2(b)(ii) of the Civil Servants Act, 1973, therefore,they can file the writ petition before this Court for their redress,.
5. On the other hand the learned Advocate-General submitted that the writ petition in hand is not maintainable for the reason that thepetitioners were contract employees and that they have no rights whatsoever to move this Court for their redress, the only remedy available to them is tofile a civil suit.
6. We have anxiously considered the arguments advanced by the learned counsel for the parties and have gone through the record availableon the file with their able assistance.
7. Perusal of the service contract/agreement dated 18.12.1995 and the impugned termination order dated 30.8.2000 passed by the respondents against all the petitioners indicate that the termination order on the charge of absent from duty does not confirm or in consonance to the condition contained therein. For the sake of convenience Clause 7 of the Agreement/Contract between the parties is reproduced below :—
"7. Any conduct of the Employee violative of the provisions of the North-West Frontier Province Government Servants (Conduct) Rules, 1987, shall amount to mis-conduct on the part of the Employee and will be dealt with in the light of NWFP Government Servants (E&D) Rules, 1973".
Charge of absent from duty is apparently a violation of terms & conditions of service and very much falls within the purview of misconduct. So if the respondents in case opt to resort to terminate the services of the petitioners on the charge of absent from duty, in such eventuality they are under bounden duty to abide by the condition i.e. Clause-7 of the Agreement. They cannot travel beyond and riggle out of such terms which they themselves dictated and drafted and the petitioners were made to sign, who were obliged to do so because they were needy and were anxious to join service which they could able to manage after long hectic tiresome exercise and after completion of higher educational studies. However, had it been a simple termination without allegation in that case the petitioners had no case and their services could be terminated safely without notice. But it is a case of termination on serious charges, it involves the career, the future prospect of the petitioners. The impugned termination order is a stigma on their career, service record which can affect their future career in the long run, they are young, they have to struggle for existence and survival for considerable time. So such drastic and serious charge was subject to proof under Clause 7 of the agreement and under N.W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973 procedure was to be applied for, as the respondents themselves accepted and borrowed the procedure given thereto in Clause-7 of the Agreement meant for an allegation of absent from duty. Order must be reasonable, fair, just and not arbitrary. Contractual service does not confer unbridled, un-armed, un-canalised arbitrary powers upon the authority to terminate the service unilaterally.
8. Contractual obligations cannot be taken to be only binding upon the employee. The employer and the employee are equally bound by the terms and conditions. The importance/terms and conditions of contract is to be acknowledged by both the parties. In Bell and another v. Lever Brothers Limited and others(1932 Appeal Cases 161) the following observations have been made at page 224 by the House of Lords :--
"....it is of paramount importance that contracts should be observed, and that if parties honestly comply with the essentials of the formation of contracts i.e., agree in the same terms of the same subject-matter they are bound, and must rely on the stipulation of the contract for protection from the effect of facts unknown to them".
9. In the instant case all the six petitioners were terminated with one stroke of pen at the one and the same time on the stereo-type order on the allegation of absence from duty without any record, register of attendance. Even thereafter there is no mention of any solid material nor the same is produced before the Court on hearing yesterday and today to justify their action of termination, despite of the clear and explicit condition and given procedure laid down in Clause-7 of the agreement that the violation of the provisions of the N.W.F.P. Government Servants (Conduct) Rules, 1987, shall amount to misconduct and will be governed in the light of NWFP Government Servants (Efficiency & Discipline) Rules, 1973, even then drastic and sweeping action was initiated following the termination order. In this respect 1992 SCMR 2135, A.I.R. 1991 Supreme Court 537 and valuable guidence referred in 1998 SCMR 1930 relevant para-7 on page 1937 is quite sufficient to reach to a correct and justifiable conclusion which observations are reproduced below :—
"Without going into the controversy, as to whether the respondent's claim that he was a permanent employee, we may observe that there is marked distinction between simpliciter termination of services in accordance with the terms of appointment and the termination of services on the ground of misconduct. There is no doubt that if a person is employed on contract basis and if the terms of employment provide the manner of termination of his services, the same can beterminated in terms thereof. However, if a person is to be condemned for misconduct, in that event, even if he is a.temporary employee or a person employed on contract basis or a probationer, he is entitled to a fair opportunity to clear his position, which means that there should be a regular enquiiy in terms of the Efficiency and Discipline Rule before condemning him for the alleged misconduct. In this regard, reliance has been placed by the learned counsel for the respondent on the case of Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan (PLD 1974 SC 393), in whichWaheeduddin Ahmad, J. has succinctly brought out a distinction between termination of services of a probationer on the ground of unsatisfactory performance and the ground of misconduct as under "
10. Keeping in view the above guide line it leads no room for doubt that action taken by the respondents is uncalled for, un-warranted and is in violation to the terms and conditions in view of the agreement cited above taken place between the parties and is without application of mind. In the circumstances, we consider it a fit case to interfere with the impugned order in the exercise of our writ jurisdiction. We, therefore,accept this writ petition, set aside the impugned termination order of the petitioners dated 30.8.2000 and direct that the petitioners be re-instated in service forthwith but they would not claim nor they are entitled for any salary /benefit for the break-up period i.e. from the date of termination dated 30.8.2000 till the date of their reinstatement order dt. 18.4.2001. However, if the respondents still feel that the petitioners have committed mis-conduct by absenting themselves from duty, the respondents may initiate action against the petitioners under the relevant law.
(M.Y.) Orders accordingly.
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