Civil Servant dismissal from service back benefits after reinstated.
Citation Name : 2016 SCMR 30 SUPREME-COURT
Side Appellant : SHAHID PERWAIZ
Side Opponent : GALAXO KLIN PAKISTAN LTD.
S. O. 15(3)(f)— Dismissal from service—Habitual late comer—Criteria for categorizing a worker as a habitual late comer at work— Employer-company issued a show cause notice to appellant/worker, stating the facts that as to how during the years 1991 to 2001, he had been found habitual late comer and his delayed arrival had been marked on 223 days—During such period worker was also warned on 26 different occasions by sending him advisory letters—Worker did not deny the factum of delay in his attendance, but tried to justify it for different reasons—Employer-company held inquiry against the worker and dismissed him from service with immediate effect—Validity—Worker who admittedly continued to come late on his duty on 223 occasions during the period of ten years and failed to improve his conduct despite issuance of 26 advisory notice /letters to him in such regard, was a habitual late comer and such negligent conduct on his part could not be condoned by the Court to the prejudice of his employer—Late coming of a worker approximately twice a month could not be ignored as of right, more particularly, in the circumstances when in the form of advisory letters on 26 occasions, he was warned to desist and discontinue such practice, but to no avail—Punishment of dismissal from service awarded to the worker in the present case by employer-company was neither illegal nor arbitrary, but was according to the spirit of the law (Standing Order 15(3)(f) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968)—Appeal was dismissed accordingly.
Citation Name : 2016 PLC(CS) 155 LAHORE-HIGH-COURT-LAHORE
Side Appellant : NADEEM ASGHAR NADEEM
Side Opponent : PROVINCE OF THE PUNJAB
Ss. 10(1)(i), 5, 4 & 6—Punjab Judicial Service Rules, 1974, R.7A—Constitution of Pakistan, Arts.10A, 4, 9, 14 & 25—Constitutional petition—Civil service—Judicial Officers—Probation—Termination of service during the initial or extended period of probation—Constitutionality of termination of service without notice under S.10(1)(i) of the Punjab Civil Servants Act, 1974—Petitioners were appointed as Civil Judges-cum-Judicial Magistrates, subject to probation and their services were terminated thereafter, under S.10(1)(i) of the Punjab Civil Servants Act, 1974 without notice and without disclosing of reasons—Petitioners challenged the vires of S.10(1)(i) of the Punjab Civil Servants Act, 1974 on the ground that same was unconstitutional in view of Art.10A of the Constitution—Held, that, in the present case, Ss.4, 5 & 6 of the Punjab Civil Servants Act, 1974, conferred a right to confirmation, once the judicial officer successfully completed his period of probation and also conferred an obligation on the authority to confirm the appointment of the officer if the probationer successfully completed the period of probation—Probationer was also under an obligation to meet the requirements of R.7A of Punjab Judicial Service Rules, 1974 and had a corresponding right to confirmation subject to his fulfilling such obligations—Probationer, in effect, already stood appointed but had to undergo the process of confirmation and therefore, the right of confirmation of a probationer or the obligation of the authority to confirm the probationer, if he successfully completed the period of probation, or vice versa, were covered under Art.10A of the Constitution and such rights and obligations had to be determined through a fair trial and due process—One of the requirements for confirmation after period of probation were given under R.7A(a) of the Punjab Judicial Service Rules, 1974, wherein “performance evaluation” was subjective and relied on sources other than the result of the Departmental Examination and the Course and Training scorecard and if the information or evidence collected was adverse to the interest of the judicial officer, natural justice and the strength of the settled jurisprudence required that the judicial officer be put on notice and be heard after an adequate disclosure of the adverse material and information was made available to such judicial officer—Said well-established principle stood Constitutionalized as a fundamental right under Art.10A of the Constitution, and fair trial and due process required that adequate disclosure was made and the probationer was put on notice and even otherwise, right to life which included right to livelihood and right to dignity of a person under Art.14 of the Constitution also stood behind Art.10A and that S.10(1)(i) of the Punjab Civil Servants Act, 1974, therefore, offended Art.10A of the Constitution in such respect—Termination simplicter was termination from service when a probationer failed to meet the eligibility requirements of the post set by the employer like a departmental examination or in service training or if the appointment was ad hoc and dependent on certain conditions or if the post itself was abolished and such like termination was not punitive or penalizing in nature and it did not cast any allegation or affect the professional reputation of the officer or the future prospects of employment of the probationer; which under the law was referred to as a “discharge” from service—Probationer, in such a case, therefore need not be put on notice if the termination was actually a discharge from service or was termination simpliciter as no useful purpose could be served by issuing any such notice as the authority had already granted the probationer an opportunity of appearing before the authority in the departmental examination and also in the course and training conducted by the authority—High Court observed that in such a case of termination simpliciter, the competent authority was under no obligation to issue notice before termination of service and S.10(1)(i) of the Punjab Civil Servants Act, 1974 was applicable in such a case; however probationer under Art.10A of the Constitution was, free to challenge the legality of the termination order or the merits of the departmental examination or the transparency of the departmental training in a court of competent jurisdiction, if he so desired, on grounds other than the ground of failure to issue notice —Where termination carried allegations of misconduct, inefficiency and corruption, the civil servant was entitled to a notice to defend himself and also to an adequate disclosure of the evidence against him and if such adverse information and material had weighed on the mind of the authority and had been the dominant reason behind the order of termination, withholding of any such allegation or avoiding to disclose any reason for termination, in order to bypass the requirement of notice by opting for termination simpliciter was offensive to Art.10A of the Constitution and the option of termination simpliciter was available with the authority only when the termination according to the service record of the civil servant, was not based on any allegations of misconduct, inefficiency or corruption against a civil servant—While S.10(1)(i) of the Punjab Civil Servants Act, 1974 was unconstitutional in some situations, it was constitutionally permissible in others, and hence in such a situation, the Constitutionality of the said section could be saved if the same was read down, instead of being struck down—High Court, therefore, held that in the light of Art.10A of the Constitution read with Arts.4, 9, 14 & 25 of the Constitution, S.10(1)(i) of the Punjab Civil Servants Act, 1974 was read down, to the extent, that firstly in cases where termination of a probationer was on the grounds of misconduct, inefficiency, corruption, etc. prior notice was mandatory and was required to be issued to the probationer; and that secondly where the probationer had failed to meet the eligibility requirements of a departmental examination or in service training course, the probationer could be terminated without notice , but any such termination order must carry reasons for termination; and thirdly that; in case the probationer had passed the eligibility criteria and had been found liable for misconduct, inefficiency or corruption, the competent authority did not have a choice to opt for termination simpliciter by withholding the real reason for termination and must issue a reasoned termination order—Constitutional petitions were allowed, accordingly.
Citation Name : 2016 PLC(CS) 155 LAHORE-HIGH-COURT-LAHORE
Side Appellant : NADEEM ASGHAR NADEEM
Side Opponent : PROVINCE OF THE PUNJAB
Termination from service—Probationer—Requirement of notice prior to terminating the services of a probationer—Termination simplicter—Scope—Services of a probationer could be terminated without notice , in case of termination simpliciter but where there were allegations of misconduct or inefficiency levelled against the probationer, in such an eventuality, it was mandatory that the officer was put on notice and if there were allegations of inefficiency, misconduct or corruption, a probationer was required to be served with a notice , with the rationale being that any termination in the nature of dismissal or removal carried a stigma, hence the civil servant should be granted an opportunity to defend and wash away any slur and taint alleged against such a civil servant.
Citation Name : 2016 PLC(CS) 155 LAHORE-HIGH-COURT-LAHORE
Side Appellant : NADEEM ASGHAR NADEEM
Side Opponent : PROVINCE OF THE PUNJAB
Termination simpliciter—Concept—Concept of termination simpliciter as opposed to a termination carrying a stigma—“Termination simpliciter” meant termination without any ceremony or termination in a summary manner and such a termination from service was when a probationer failed to meet the eligibility requirements of the post set by the employer like a departmental examination or in service training or if the appointment is ad hoc and dependent on certain conditions or if the post itself is abolished—Such like termination was not punitive or penalizing in nature and more importantly, it did not cast any allegation or affect the professional reputation of the officer or the future prospects of employment of the probationer and in such cases, probationer therefore need not be put on notice if the termination is actually a discharge from service or was termination simpliciter.
Citation Name : 2016 PLC(CS) 67 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. ZAREENA ASHRAF
Side Opponent : D.C.O.
Appointment order, withdrawal of—Scope—Petitioner was appointed in Government Elementary School and she accepted the offer and joined the post and worked there about two and half months but said offer+ was withdrawn—Validity—Petitioner being higher in merit was appointed against the seat of Senior Elementary School Educator (Arabic Teacher) in BS-14—Employee joined her service and worked there till the order of appointment was withdrawn—Neither any notice was served to the petitioner nor she was offered one month salary—Petitioner worked there without any complaint and to the entire satisfaction of her superiors—Legal right had accrued in favour of the employee—No inquiry was conducted against the employee—No order of withdrawal of appointment letter of petitioner had been placed on record—Petitioner was not responsible for change of merit list but same was changed due to mistakes committed by the department—Petitioner could not be made to suffer for the fault—Department was responsible for the lapse—Employee was eligible to be appointed against the said post—Employee had not managed or manipulated the appointment letter issued in her favour—When petitioner had joined her duties, the withdrawal of appointment letter without any show cause notice or inquiry would be against the principles of natural justice which could not be appreciated—Employee who worked about three months with the department was not paid salary for the said period—Employee who was appointed against the seat where petitioner was working had already been transferred to another school and said seat was lying vacant—When the seat against which petitioner was appointed fell vacant she could have been adjusted against the said seat without disturbing any person—Impugned order for withdrawal of letter of appointment of employee was set aside—Department was directed to adjust the employee against the post where she was working prior to impugned order—Petitioner would also be entitled for the salary of the period she worked with the department—Constitutional petition was accepted accordingly.
Citation Name : 2015 SCMR 1418 SUPREME-COURT
Side Appellant : Mst. BASHARAT JEHAN
Side Opponent : DIRECTOR-GENERAL, FEDERAL GOVERNMENT EDUCATION, FGEI (C/Q) RAWALPINDI
R. 3(2)—Civil service—Initial appointment—Relaxation in age prescribed for initial appointment— Typographical error in advertisement for post qua upper age limit of applicant—Vested right of civil servant on issuance of appointment letter and joining of service—Scope— Appellant applied for the position of Assistant Librarian (BPS-9)—Besides other educational qualifications, upper age limit for the advertised post was mentioned as 35 years, which could only be relaxed in exceptional cases—Appellant, who was 37 years of age, qualified the written test and interview and was selected for the post on merits—Appellant was issued appointment letter and accordingly joined service—Along with her joining, appellant furnished certificate of age relaxation to the authorities—After joining the service, appellant was issued a show-cause notice and consequently removed from service on the ground of being over age at the time of initial appointment—Contentions of appellant were that she was 37 years of age at the time of applying for the post and was entitled for general relaxation of 5 years of age as per Government Policy, which was applicable on all the departments under the Federal Government[Federal Government notification/Office Memorandum No.F.9/2/9 R5 dated 28th November, 2000]; that another applicant, who was 39 years of age at the time of applying for the post, was issued appointment letter without any exception, therefore, present case was one of discrimination—Contentions on behalf of Federal Government were that originally age for the advertised position was 25 years, which was increased to 30 years as per the notification in question; that mentioning of 35 years as the upper age limit for the advertised post was a typo-error, as such appellant could not be extended further age relaxation—Validity—Appellant had not procured her appointment letter through dubious means, and she could not be attributed any wrong on her part—Government department could not be allowed to take benefit of its own oversight, lapse or ignorance of law (i.e. Office Memorandum No.F.9/2/9 R5 dated 28th November, 2000 regarding relaxation of general age]—If the notification/memorandum in question had gone unnotice d by the Government department, it was not the fault of appellant—Liability for wrongly mentioning the qualifying age in the advertisement as 35 years could not be attributed to the appellant, and no corrigendum was published in the newspapers to such an effect—Appellant had joined the service after appearing in the test and qualifying in the interview—For a period of seven months (i.e. from the last date for applying for the advertised post till date of issuance of appointment letter to appellant), it did not occur to the Government department that appellant was over aged by two years (37 years) as against the age of 35 years as advertised—In terms of Chapter-II of National Command Authority Rules, para 7(K) for initial appointment the age prescribed was “not less than 18 years or more than 35 years of age”—However it was specifically stipulated in the said Rule that the said age limit “may be relaxed in exceptional cases upto 45 years by the competent authority”—Said Rule was not considered by the Government department in the present case—Government department did not dispute that the appellant did not possess the required qualification for the relevant post and/or that she did not serve the department satisfactorily—Appellant had applied for the advertised post giving her full particulars, including her qualification and age—At the time of joining she submitted the age relaxation certificate—Even if it is presumed that the competent authority over-sighted her age, it would be deemed to have been relaxed in exercise of power vested in the authority—Under the facts and circumstances of the present case, a right had come to vest in the appellant on issuance of appointment letter and more so after joining the service—Another applicant, who was 39 years of age at the time of applying for the post in question, was appointed to the post and no exception to her being over-age was taken by the Government department—Appellant, in such circumstances, was justified to urge that she had been discriminated against—General benefit of age relaxation extended to the employees of the Federal Government across the board, and extended to all departments under the Federal government pursuant to any policy decision could not be denied on the assumption, that particular department was not bound by such decision as it had its own rules—Nothing was brought on record to show that such directive/policy decision expressed through memorandum/notification was not applicable to the Government department in question—Supreme Court directed that appellant shall be given joining within one month from date of present judgment; that her seniority would be counted from the date of her appointment letter, and that no back benefit will be extended to her for the period she remained out of office one month from the date of present order—Appeal was allowed accordingly.
Citation Name : 2015 SCMR 790 SUPREME-COURT
Side Appellant : PUNJAB EMPLOYEES’ SOCIAL SECURITY INSTITUTION, LAHORE
Side Opponent : M. H. CHALLENGE INDUSTRIES, SIALKOT
Ss. 1(3), 20(1) & 21—Social security contribution, payment of—Registered partnership firm—notice sent to registered partnership demanding production of record and payment of social security contribution—Legality—Contention on behalf of partnership firm that it was not registered with the Social Security Institution, hence it could not be coerced into making any contribution—Validity—Admittedly the partnership firm had been making payments of social security contribution for a considerably long time, therefore, they could not deny the payment of social security contribution subsequently, on the ground that they were making payments under coercion or misrepresentation of the Social Security Institution—Partnership firm in question was also debarred from taking the plea that it was not notified under the Provincial Employees’ Social Security Ordinance, 1965—Partnership firm failed to place any material on record to show that it was not making payment of the social security contribution wilfully—Appeal was allowed accordingly and the Provincial Social Security Institution was directed to proceed against the partnership firm in accordance with law.
Citation Name : 2015 PLC 226 SUPREME-COURT
Side Appellant : PUNJAB EMPLOYEES SOCIAL SECURITY INSTITUTION, LAHORE
Side Opponent : M. H. CHALLENGE INDUSTRIES, SIALKOT
Ss. 1(3), 20(1) & 21—Social security contribution, payment of—Registered partnership firm—notice sent to registered partnership demanding production of record and payment of social security contribution—Legality—Contention on behalf of partnership firm that it was not registered with the Social Security Institution, hence it could not be coerced into making any contribution—Validity—Admittedly the partnership firm had been making payments of social security contribution for a considerably long time, therefore, they could not deny the payment of social security contribution subsequently, on the ground that they were making payments under coercion or misrepresentation of the Social Security Institution—Partnership firm in question was also debarred from taking the plea that it was not notified under the Provincial Employees’ Social Security Ordinance, 1965—Partnership firm failed to place any material on record to show that it was not making payment of the social security contribution wilfully—Appeal was allowed accordingly and the Provincial Social Security Institution was directed to proceed against the partnership firm in accordance with law.
Citation Name : 2015 PLC(CS) 1519 SUPREME-COURT
Side Appellant : Mst. BASHARAT JEHAN
Side Opponent : DIRECTOR-GENERAL, FEDERAL GOVERNMENT EDUCATION, FGEI (C/Q) RAWALPINDI
R. 3(2)—National Command Authority Rules, Chap.II, para.7(k)—Civil service—Initial appointment—Relaxation in age prescribed for initial appointment— Typographical error in advertisement for post qua upper age limit of applicant—Vested right of civil servant on issuance of appointment letter and joining of service—Scope— Appellant applied for the position of Assistant Librarian (BPS-9)—Besides other educational qualifications, upper age limit for the advertised post was mentioned as 35 years, which could only be relaxed in exceptional cases—Appellant, who was 37 years of age, qualified the written test and interview and was selected for the post on merits—Appellant was issued appointment letter and accordingly joined service—Along with her joining, appellant furnished certificate of age relaxation to the authorities—After joining the service, appellant was issued a show-cause notice and consequently removed from service on the ground of being over age at the time of initial appointment—Contentions of appellant were that she was 37 years of age at the time of applying for the post and was entitled for general relaxation of 5 years of age as per Government Policy, which was applicable on all the departments under the Federal Government[Federal Government notification/Office Memorandum No.F.9/2/9 R5 dated 28th November, 2000; that another applicant, who was 39 years of age at the time of applying for the post, was issued appointment letter without any exception, therefore, present case was one of discrimination—Contentions on behalf of Federal Government were that originally age for the advertised position was 25 years, which was increased to 30 years as per the notification in question; that mentioning of 35 years as the upper age limit for the advertised post was a typo-error, as such appellant could not be extended further age relaxation—Validity—Appellant had not procured her appointment letter through dubious means, and she could not be attributed any wrong on her part—Government department could not be allowed to take benefit of its own oversight, lapse or ignorance of law (i.e. Office Memorandum No.F.9/2/9 R5 dated 28th November, 2000 regarding relaxation of general age]—If the notification/ memorandum in question had gone unnotice d by the Government department, it was not the fault of appellant—Liability for wrongly mentioning the qualifying age in the advertisement as 35 years could not be attributed to the appellant, and no corrigendum was published in the newspapers to such an effect—Appellant had joined the service after appearing in the test and qualifying in the interview—For a period of seven months (i.e. from the last date for applying for the advertised post till date of issuance of appointment letter to appellant), it did not occur to the Government department that appellant was over aged by two years (37 years) as against the age of 35 years as advertised—In terms of Chapter-II of National Command Authority Rules, para 7(K) for initial appointment the age prescribed was “not less than 18 years or more than 35 years of age”—However it was specifically stipulated in the said Rule that the said age limit “may be relaxed in exceptional cases upto 45 years by the competent authority”—Said Rule was not considered by the Government department in the present case—Government department did not dispute that the appellant did not possess the required qualification for the relevant post and/or that she did not serve the department satisfactorily—Appellant had applied for the advertised post giving her full particulars, including her qualification and age—At the time of joining she submitted the age relaxation certificate—Even if it is presumed that the competent authority over-sighted her age, it would be deemed to have been relaxed in exercise of power vested in the authority—Under the facts and circumstances of the present case, a right had come to vest in the appellant on issuance of appointment letter and more so after joining the service—Another applicant, who was 39 years of age at the time of applying for the post in question, was appointed to the post and no exception to her being over-age was taken by the Government department—Appellant, in such circumstances, was justified to urge that she had been discriminated against—General benefit of age relaxation extended to the employees of the Federal Government across the board, and extended to all departments under the Federal Government pursuant to any policy decision could not be denied on the assumption, that particular department was not bound by such decision as it had its own rules—Nothing was brought on record to show that such directive/policy decision expressed through memorandum/ notification was not applicable to the Government department in question—Supreme Court directed that appellant shall be given joining within one month from date of present judgment; that her seniority would be counted from the date of her appointment letter, and that no back benefit will be extended to her for the period she remained out of office one month from the date of present order—Appeal was allowed accordingly.
Citation Name : 2015 PLC(CS) 243 SUPREME-COURT
Side Appellant : QAISER ZAMAN
Side Opponent : FEDERAL BOARD OF REVENUE, ISLAMABAD
Resignation from Government service, process of—Delay by concerned officials in approving resignation—Resignation of civil servant not processed by concerned officials for 2-1/2 years and instead issuing him a show notice for absence from duty, and consequently dismissing him from service—Legality—Income tax officer (appellant) applied for leave to pursue further studies—Competent authority did not sanction the leave—Appellant tendered his resignation from service on 31-3-2006, which remained unprocessed—On 13-11-2008 a show -cause notice was issued to the appellant on the ground of his absence from duty under the provisions of Removal from Service (Special Powers) Ordinance, 2000—Appellant submitted his reply to the show-cause notice , but no response was received by him—On 17-1-2009 appellant received a notification entailing penalty of his dismissal from service—Departmental appeal filed by appellant against his dismissal from service was also dismissed as time barred—Federal Service Tribunal also dismissed appellant’s appeal as being time barred—Plea of department that resignation of appellant could not be processed in time as his file had been misplaced—Validity—Concerned officials under the law/rules/regulations were responsible for expediting the process of resignation of civil servants well in time—Department could not justify issuance of show-cause notice to the appellant after inordinate delay of 2-1/2 years—After tendering his resignation case of appellant was not processed for 2-1/2 years on the ground that his personal file went missing—Department instead of processing the case of resignation of appellant opted to proceed against him departmentally for absence of duty—Was not understandable as to how the department could sit over the resignation once it was tendered—In case the personal file of the appellant went missing the head of the department should have ordered enquiry and should have proceeded against the delinquent officers found responsible for misplacing the personal file of the appellant—Supreme Court directed Secretaries, Establishment Division and Cabinet Division to ensure that the resignation cases of civil servants should be processed immediately and the concerned civil servant should also be informed about its fate forthwith as per the rules; that delinquent officers/officials who caused delay in processing resignation cases should be made accountable and proceeded against departmentally—Appeal was allowed accordingly and orders passed by departmental authority and Federal Service Tribunal were set aside.
Citation Name : 2016 YLR 1845 LAHORE-HIGH-COURT-LAHORE
Side Appellant : The HEAD OF RETAIL FINANCE DIVISION, THE BANK OF PUNJAB
Side Opponent : MUSHTAQ AHMAD
Art. 199—Law Reforms Ordinance (XII of 1972), S. 3—Intra court appeal—Administration of justice—Appellant Bank was aggrieved of order passed by Single Judge of High Court whereby Constitutional petition filed by respondent was disposed of on the basis of undertaking given by Bank Manager—Validity—Appellant Bank was not given proper opportunity to contest constitutional petition nor report and para-wise comments were awaited—No proper hearing was given to appellant and simply on undertaking given by its Manager, the petition was disposed of—Manager of appellant Bank was not authorized by appellant to give the undertaking—Bank had produced official documents which reflected that show cause notice was issued regarding matter in hand to the Manager who in reply had sought unconditional apology for giving said undertaking while submitting that his appearance before Court was only in obedience of the court and nothing else—Division Bench of High Court, set aside the order in question and remanded the matter to Single Judge of High Court for decision afresh in accordance with law—Intra court appeal was allowed accordingly.
Citation Name : 2016 YLR 1441 LAHORE-HIGH-COURT-LAHORE
Side Appellant : PERVAIZ RASHEED
Side Opponent : EX-OFFICIO JUSTICE OF PEACE
Arts. 185(3) & 189—Order granting or refusing leave by Supreme Court—Binding force of—Order of issuing notice s to the Attorney General for Pakistan and Advocate General, in order to hear view point of Government and other adversary on the point agitated in the case, would not be sufficient to suggest those orders as ‘judgment’; because there was no final adjudication in that regard, and no question of law had yet been decided—Order granting leave or refusing the same, was not a “judgment” and as such was not binding.
Citation Name : 2016 PLC 52 LABOUR-APPELLANT-TRIBUNAL-SINDH
Side Appellant : WASEEM ANWAR UJAN
Side Opponent : KHUSHALI BANK LTD.
Ss. 34 & 48—Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.15(4)—Constitution of Pakistan, Art.11—Resignation without giving one month’s prior notice —Dismissal from service—Employee, who was appointed in the Bank as Customer Service (Trainee), tendered his resignation on the ground that he had been offered a better job—Employer Bank, instead of accepting resignation of the employee, dismissed him from service on the ground that he had resigned without giving one month’s prior notice —Employee while tendering his resignation, had disclosed the reason for resignation i.e. offer of a better job—Labour Court, while holding the employee to be a “workman”, upheld his dismissal for the same reason i.e. tendering resignation without one month’s prior notice —Validity—Orders of the Bank and the Labour Court were not sustainable, for the reasons; that employment contract did not provide consequence of not giving one month’s prior notice , condition of notice could not be treated as mandatory; that according to S.O.15(4) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, a workman could be dismissed only on proof of charge of misconduct, and want of one month’s prior notice , would not come within the purview of misconduct; that under Art.11 of the Constitution, forced labour was prohibited, and no person could be compelled to perform compulsory service unless required so by law—Refusal to accept resignation of the employee without any charge of misconduct against him, would amount to forcing him to do compulsory service—No law required the employee to do service of the Bank compulsorily—Employer Bank had not claimed that it had suffered any loss due to resignation of the employee without one month’s prior notice —At the time of tendering his resignation, the employee had no portfolio—Manager of the concerned branch of the Bank had also no objection on the resignation of employee and had recommended it for acceptance—Labour Court grossly erred in not accepting the grievance application of the employee—Order of the Labour Court was set aside, appeal filed by the employee and grievance application of the employee, were allowed; and order of the Bank dismissing the employee from service was converted into acceptance of his resignation, in circumstances.
Citation Name : 2016 PLC 42 LABOUR-APPELLANT-TRIBUNAL-SINDH
Side Appellant : Mrs. FARHANA
Side Opponent : SINDH SMALL INDUSTRIES CORPORATION
Ss. 34 & 48—Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12—Termination of service—Grievance application—Employee, a junior clerk, was terminated, and she on receiving one month pay in lieu of notice , she severed her relations with the employer corporation—Employee after about 10 years of her removal from service, filed grievance application before Labour Court, without filing application or showing any cause for condonation of the delay, in filing grievance application—Employee, had contended that an other employee, whose service was terminated on the same day by a separate, but similar order, having been directed by Labour Court to be reinstated, benefit of Labour Court judgment of that other employee should be given to her as well—Validity—Said other employee who was reinstated, was ten years senior in service to the employee and her rank was also higher—Order of the Labour Court was not “judgment in rem”, as it had neither decided any question of law, nor its decision was binding—Facts of the two cases being quite different, the ratio of case of other employee, could not be applied to case of employee.
Citation Name : 2016 CLD 1400 ENVIRONMENTAL-PROTECTION-TRIBUNAL-KARACHI
Side Appellant : ABDUL GHANI
Side Opponent : RAIWIND CHEMICAL (PVT.) LTD.
Ss. 21 & 26(3)(b)—Pakistan Environmental Protection Act (XXXIV of 1997), Ss. 6, 11 & 21(3)(b)—Criminal Procedure Code (V of 1898), Ss. 265-K, 200 & 156(3)—Constitution of Pakistan, Art. 176(2)—Environmental Protection Order—Power of court to acquit accused at any stage—Investigation into cognizable offences—Examination of complainant—Jurisdiction and powers of Environmental Tribunal—Respondents contended that the Tribunal had no jurisdiction to take cognizance on direct private complaint, as the complainants had not given a thirty days’ notice before filing of the complaint, and that the Tribunal could not be said to have taken cognizance of the case, as only notice , not summons, had been issued to them, and that under S. 200, Cr.P.C., statement of the complainant had to be recorded at once, whereas, the same had been recorded after eight months of the receipt of the complaint—Validity—If the Tribunal ordered for investigation under S. 156(3), Cr.P.C. or issued search warrants for the purpose of the investigation, the Tribunal could not be said to have taken cognizance of the offence—Issuance of search warrants for the purpose of investigation or directing the investigating agency to ascertain the truth of the complaint, could not by itself be regarded as an act of taking cognizance of the offence—Taking cognizance was not the same as issuance of process—Tribunal might be said to have taken cognizance of complaint if, after receiving the complaint from the agency or an aggrieved person, the Tribunal recorded the statement under S. 200, Cr.P.C., applied its mind to the facts in the statement and proceeded to order registration of the case against the accused—Tribunal, after the agency had submitted its report regarding non-compliance of the Environmental Protection Order by the accused persons, proceeded to take cognizance and ordered the registration of cases against them after recording statement of the complainant under S. 200, Cr.P.C.—Tribunal had only directed the complaint to the agency for the purpose of ascertaining the truth, and no summons had been issued on the complaint; thus, the Tribunal had adopted the proper course in the complaint by not taking cognizance at the earliest, before getting the enquiry/investigation conducted—Section 11 of Pakistan Environmental Protection Act, 1997 imposed two obligations on everyone: firstly, the National Quality Standards (NEQS) should not have been violated; and, secondly, the standards established under S. 6(1)(a) of Pakistan Environmental Protection Act, 1997 must have been maintained—Samples of waste water collected by the Agency exceeded the permissible limits of the NEQS in contravention of S. 11 of Pakistan Environmental Protection Act, 1997—Respondents had not complied with the Environmental Protection Order, even after many chances had been given to them for the compliance—Grounds for allowing the application under S. 265-K, Cr.P.C. did not exist, as the violation continued—Present matter required evidence; therefore, the application under S. 265-K, Cr.P.C. and application under S. 21(3)(b) of Pakistan Environmental Protection Act, 1997 and S. 26(3)(b) of Sindh Environmental Protection Act, 2014 read with Art. 175(2) of the Constitution were without merits—Application for withdrawal of the complaint was not maintainable, as the remaining four complainants had not joined in the application for withdrawal and present case was not limited to the complainants as the alleged violation of the NEQS continued to affect the environment and the public at large—Applications were dismissed in circumstances.
Citation Name : 2016 CLD 1814 SECURITIES-AND-EXCHANGE-COMMISSION-OF-PAKISTAN
Side Appellant : IMRAN GAFOOR, CHIEF EXECUTIVE SITARA SPINNING MILLS LIMITED
Side Opponent : BILAL RASUL, DIRECTOR (ENFORCEMENT) ADDITIONAL REGISTRAR OF COMPANIES, SECP
Ss. 242, 244 & 476—Non-forwarding of copy of balance-sheet to the Registrar of Companies—Improper issue, circulation or publishing of balance-sheet or profit and loss account—Director Enforcement of the Commission, while examining the annual audited accounts of the company, observed that Director’s report was not annexed with the account under S. 242 of the Companies Ordinance, 1984—Show-cause notice was issued to the Chief Executive Officer, Directors and Company Secretary under Ss. 242 & 244, read with S. 476 of the Companies Ordinance, 1984—Director Enforcement being dissatisfied with the response of the company, imposed a penalty of Rs.16,000 for violation of Ss.242 & 244 of the Companies Ordinance, 1984—Validity—Section 242 of the Companies Ordinance, 1984 mandated the filing of the accounts along with required documents and reports with the Registrar within thirty days from the date of the general meeting; and if the said provision was violated by any company, then it should be dealt through the penal provision in subsection (4) of the S. 242 of the Companies Ordinance, 1984—Section 244 of the Companies Ordinance, 1984, laid down the obligation of “issuing”, ‘circulating’ and ‘publishing’ of the accounts along with different documents and reports—Section 244 of the Companies Ordinance, 1984, also imposed certain penalty for violation of improper issue, circulation publishing—Provisions of S.242 and S.244 of the Companies Ordinance, 1984, were inter alia independent with respect to the filing, issue, circulation and publishing perspective—Non-filing of the document under S.242, could not be considered a violation of S.244 of the Companies Ordinance, 1984 on the basis that the said documents had not been filed with the Registrar, same could not be treated as “issued, circulated or published” to or for the Registrar—Conclusion that “Accounts of the company filed under S.242 of the Companies Ordinance, 1984, were deemed to have been issued, circulated and published”, could not be accepted as intended statutory interpretation of law—While deciding the issue related to S.242 of the Companies Ordinance, 1984, Director Enforcement had wrongly applied and interpreted S.244 as related provision of S.242 of the Companies Ordinance, 1984—Act of Director Enforcement, to issue show-cause notice under Ss.242 & 244 read with S.476 of the Companies Ordinance, 1984, was against the fundamental principles of justice and equity—Exercise of issuance of show-cause notice , was void ab initio; both could not be sustained—Impugned order was set aside being illegal and result of mis-interpretation of law—Case was remanded to the Director Enforcement, with direction to initiate fresh proceedings; and adjudicating the matter independently under S. 242 of the Companies Ordinance, 1984, if any default had been committed by the company in compliance of S.242 of the Companies Ordinance, 1984.
Citation Name : 2016 SCMR 30 SUPREME-COURT
Side Appellant : SHAHID PERWAIZ
Side Opponent : GALAXO KLIN PAKISTAN LTD.
S. O. 15(3)(f)— Dismissal from service—Habitual late comer—Criteria for categorizing a worker as a habitual late comer at work— Employer-company issued a show cause notice to appellant/worker, stating the facts that as to how during the years 1991 to 2001, he had been found habitual late comer and his delayed arrival had been marked on 223 days—During such period worker was also warned on 26 different occasions by sending him advisory letters—Worker did not deny the factum of delay in his attendance, but tried to justify it for different reasons—Employer-company held inquiry against the worker and dismissed him from service with immediate effect—Validity—Worker who admittedly continued to come late on his duty on 223 occasions during the period of ten years and failed to improve his conduct despite issuance of 26 advisory notice /letters to him in such regard, was a habitual late comer and such negligent conduct on his part could not be condoned by the Court to the prejudice of his employer—Late coming of a worker approximately twice a month could not be ignored as of right, more particularly, in the circumstances when in the form of advisory letters on 26 occasions, he was warned to desist and discontinue such practice, but to no avail—Punishment of dismissal from service awarded to the worker in the present case by employer-company was neither illegal nor arbitrary, but was according to the spirit of the law (Standing Order 15(3)(f) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968)—Appeal was dismissed accordingly.
Citation Name : 2016 PLC(CS) 155 LAHORE-HIGH-COURT-LAHORE
Side Appellant : NADEEM ASGHAR NADEEM
Side Opponent : PROVINCE OF THE PUNJAB
Ss. 10(1)(i), 5, 4 & 6—Punjab Judicial Service Rules, 1974, R.7A—Constitution of Pakistan, Arts.10A, 4, 9, 14 & 25—Constitutional petition—Civil service—Judicial Officers—Probation—Termination of service during the initial or extended period of probation—Constitutionality of termination of service without notice under S.10(1)(i) of the Punjab Civil Servants Act, 1974—Petitioners were appointed as Civil Judges-cum-Judicial Magistrates, subject to probation and their services were terminated thereafter, under S.10(1)(i) of the Punjab Civil Servants Act, 1974 without notice and without disclosing of reasons—Petitioners challenged the vires of S.10(1)(i) of the Punjab Civil Servants Act, 1974 on the ground that same was unconstitutional in view of Art.10A of the Constitution—Held, that, in the present case, Ss.4, 5 & 6 of the Punjab Civil Servants Act, 1974, conferred a right to confirmation, once the judicial officer successfully completed his period of probation and also conferred an obligation on the authority to confirm the appointment of the officer if the probationer successfully completed the period of probation—Probationer was also under an obligation to meet the requirements of R.7A of Punjab Judicial Service Rules, 1974 and had a corresponding right to confirmation subject to his fulfilling such obligations—Probationer, in effect, already stood appointed but had to undergo the process of confirmation and therefore, the right of confirmation of a probationer or the obligation of the authority to confirm the probationer, if he successfully completed the period of probation, or vice versa, were covered under Art.10A of the Constitution and such rights and obligations had to be determined through a fair trial and due process—One of the requirements for confirmation after period of probation were given under R.7A(a) of the Punjab Judicial Service Rules, 1974, wherein “performance evaluation” was subjective and relied on sources other than the result of the Departmental Examination and the Course and Training scorecard and if the information or evidence collected was adverse to the interest of the judicial officer, natural justice and the strength of the settled jurisprudence required that the judicial officer be put on notice and be heard after an adequate disclosure of the adverse material and information was made available to such judicial officer—Said well-established principle stood Constitutionalized as a fundamental right under Art.10A of the Constitution, and fair trial and due process required that adequate disclosure was made and the probationer was put on notice and even otherwise, right to life which included right to livelihood and right to dignity of a person under Art.14 of the Constitution also stood behind Art.10A and that S.10(1)(i) of the Punjab Civil Servants Act, 1974, therefore, offended Art.10A of the Constitution in such respect—Termination simplicter was termination from service when a probationer failed to meet the eligibility requirements of the post set by the employer like a departmental examination or in service training or if the appointment was ad hoc and dependent on certain conditions or if the post itself was abolished and such like termination was not punitive or penalizing in nature and it did not cast any allegation or affect the professional reputation of the officer or the future prospects of employment of the probationer; which under the law was referred to as a “discharge” from service—Probationer, in such a case, therefore need not be put on notice if the termination was actually a discharge from service or was termination simpliciter as no useful purpose could be served by issuing any such notice as the authority had already granted the probationer an opportunity of appearing before the authority in the departmental examination and also in the course and training conducted by the authority—High Court observed that in such a case of termination simpliciter, the competent authority was under no obligation to issue notice before termination of service and S.10(1)(i) of the Punjab Civil Servants Act, 1974 was applicable in such a case; however probationer under Art.10A of the Constitution was, free to challenge the legality of the termination order or the merits of the departmental examination or the transparency of the departmental training in a court of competent jurisdiction, if he so desired, on grounds other than the ground of failure to issue notice —Where termination carried allegations of misconduct, inefficiency and corruption, the civil servant was entitled to a notice to defend himself and also to an adequate disclosure of the evidence against him and if such adverse information and material had weighed on the mind of the authority and had been the dominant reason behind the order of termination, withholding of any such allegation or avoiding to disclose any reason for termination, in order to bypass the requirement of notice by opting for termination simpliciter was offensive to Art.10A of the Constitution and the option of termination simpliciter was available with the authority only when the termination according to the service record of the civil servant, was not based on any allegations of misconduct, inefficiency or corruption against a civil servant—While S.10(1)(i) of the Punjab Civil Servants Act, 1974 was unconstitutional in some situations, it was constitutionally permissible in others, and hence in such a situation, the Constitutionality of the said section could be saved if the same was read down, instead of being struck down—High Court, therefore, held that in the light of Art.10A of the Constitution read with Arts.4, 9, 14 & 25 of the Constitution, S.10(1)(i) of the Punjab Civil Servants Act, 1974 was read down, to the extent, that firstly in cases where termination of a probationer was on the grounds of misconduct, inefficiency, corruption, etc. prior notice was mandatory and was required to be issued to the probationer; and that secondly where the probationer had failed to meet the eligibility requirements of a departmental examination or in service training course, the probationer could be terminated without notice , but any such termination order must carry reasons for termination; and thirdly that; in case the probationer had passed the eligibility criteria and had been found liable for misconduct, inefficiency or corruption, the competent authority did not have a choice to opt for termination simpliciter by withholding the real reason for termination and must issue a reasoned termination order—Constitutional petitions were allowed, accordingly.
Citation Name : 2016 PLC(CS) 155 LAHORE-HIGH-COURT-LAHORE
Side Appellant : NADEEM ASGHAR NADEEM
Side Opponent : PROVINCE OF THE PUNJAB
Termination from service—Probationer—Requirement of notice prior to terminating the services of a probationer—Termination simplicter—Scope—Services of a probationer could be terminated without notice , in case of termination simpliciter but where there were allegations of misconduct or inefficiency levelled against the probationer, in such an eventuality, it was mandatory that the officer was put on notice and if there were allegations of inefficiency, misconduct or corruption, a probationer was required to be served with a notice , with the rationale being that any termination in the nature of dismissal or removal carried a stigma, hence the civil servant should be granted an opportunity to defend and wash away any slur and taint alleged against such a civil servant.
Citation Name : 2016 PLC(CS) 155 LAHORE-HIGH-COURT-LAHORE
Side Appellant : NADEEM ASGHAR NADEEM
Side Opponent : PROVINCE OF THE PUNJAB
Termination simpliciter—Concept—Concept of termination simpliciter as opposed to a termination carrying a stigma—“Termination simpliciter” meant termination without any ceremony or termination in a summary manner and such a termination from service was when a probationer failed to meet the eligibility requirements of the post set by the employer like a departmental examination or in service training or if the appointment is ad hoc and dependent on certain conditions or if the post itself is abolished—Such like termination was not punitive or penalizing in nature and more importantly, it did not cast any allegation or affect the professional reputation of the officer or the future prospects of employment of the probationer and in such cases, probationer therefore need not be put on notice if the termination is actually a discharge from service or was termination simpliciter.
Citation Name : 2016 PLC(CS) 67 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. ZAREENA ASHRAF
Side Opponent : D.C.O.
Appointment order, withdrawal of—Scope—Petitioner was appointed in Government Elementary School and she accepted the offer and joined the post and worked there about two and half months but said offer+ was withdrawn—Validity—Petitioner being higher in merit was appointed against the seat of Senior Elementary School Educator (Arabic Teacher) in BS-14—Employee joined her service and worked there till the order of appointment was withdrawn—Neither any notice was served to the petitioner nor she was offered one month salary—Petitioner worked there without any complaint and to the entire satisfaction of her superiors—Legal right had accrued in favour of the employee—No inquiry was conducted against the employee—No order of withdrawal of appointment letter of petitioner had been placed on record—Petitioner was not responsible for change of merit list but same was changed due to mistakes committed by the department—Petitioner could not be made to suffer for the fault—Department was responsible for the lapse—Employee was eligible to be appointed against the said post—Employee had not managed or manipulated the appointment letter issued in her favour—When petitioner had joined her duties, the withdrawal of appointment letter without any show cause notice or inquiry would be against the principles of natural justice which could not be appreciated—Employee who worked about three months with the department was not paid salary for the said period—Employee who was appointed against the seat where petitioner was working had already been transferred to another school and said seat was lying vacant—When the seat against which petitioner was appointed fell vacant she could have been adjusted against the said seat without disturbing any person—Impugned order for withdrawal of letter of appointment of employee was set aside—Department was directed to adjust the employee against the post where she was working prior to impugned order—Petitioner would also be entitled for the salary of the period she worked with the department—Constitutional petition was accepted accordingly.
Citation Name : 2015 SCMR 1418 SUPREME-COURT
Side Appellant : Mst. BASHARAT JEHAN
Side Opponent : DIRECTOR-GENERAL, FEDERAL GOVERNMENT EDUCATION, FGEI (C/Q) RAWALPINDI
R. 3(2)—Civil service—Initial appointment—Relaxation in age prescribed for initial appointment— Typographical error in advertisement for post qua upper age limit of applicant—Vested right of civil servant on issuance of appointment letter and joining of service—Scope— Appellant applied for the position of Assistant Librarian (BPS-9)—Besides other educational qualifications, upper age limit for the advertised post was mentioned as 35 years, which could only be relaxed in exceptional cases—Appellant, who was 37 years of age, qualified the written test and interview and was selected for the post on merits—Appellant was issued appointment letter and accordingly joined service—Along with her joining, appellant furnished certificate of age relaxation to the authorities—After joining the service, appellant was issued a show-cause notice and consequently removed from service on the ground of being over age at the time of initial appointment—Contentions of appellant were that she was 37 years of age at the time of applying for the post and was entitled for general relaxation of 5 years of age as per Government Policy, which was applicable on all the departments under the Federal Government[Federal Government notification/Office Memorandum No.F.9/2/9 R5 dated 28th November, 2000]; that another applicant, who was 39 years of age at the time of applying for the post, was issued appointment letter without any exception, therefore, present case was one of discrimination—Contentions on behalf of Federal Government were that originally age for the advertised position was 25 years, which was increased to 30 years as per the notification in question; that mentioning of 35 years as the upper age limit for the advertised post was a typo-error, as such appellant could not be extended further age relaxation—Validity—Appellant had not procured her appointment letter through dubious means, and she could not be attributed any wrong on her part—Government department could not be allowed to take benefit of its own oversight, lapse or ignorance of law (i.e. Office Memorandum No.F.9/2/9 R5 dated 28th November, 2000 regarding relaxation of general age]—If the notification/memorandum in question had gone unnotice d by the Government department, it was not the fault of appellant—Liability for wrongly mentioning the qualifying age in the advertisement as 35 years could not be attributed to the appellant, and no corrigendum was published in the newspapers to such an effect—Appellant had joined the service after appearing in the test and qualifying in the interview—For a period of seven months (i.e. from the last date for applying for the advertised post till date of issuance of appointment letter to appellant), it did not occur to the Government department that appellant was over aged by two years (37 years) as against the age of 35 years as advertised—In terms of Chapter-II of National Command Authority Rules, para 7(K) for initial appointment the age prescribed was “not less than 18 years or more than 35 years of age”—However it was specifically stipulated in the said Rule that the said age limit “may be relaxed in exceptional cases upto 45 years by the competent authority”—Said Rule was not considered by the Government department in the present case—Government department did not dispute that the appellant did not possess the required qualification for the relevant post and/or that she did not serve the department satisfactorily—Appellant had applied for the advertised post giving her full particulars, including her qualification and age—At the time of joining she submitted the age relaxation certificate—Even if it is presumed that the competent authority over-sighted her age, it would be deemed to have been relaxed in exercise of power vested in the authority—Under the facts and circumstances of the present case, a right had come to vest in the appellant on issuance of appointment letter and more so after joining the service—Another applicant, who was 39 years of age at the time of applying for the post in question, was appointed to the post and no exception to her being over-age was taken by the Government department—Appellant, in such circumstances, was justified to urge that she had been discriminated against—General benefit of age relaxation extended to the employees of the Federal Government across the board, and extended to all departments under the Federal government pursuant to any policy decision could not be denied on the assumption, that particular department was not bound by such decision as it had its own rules—Nothing was brought on record to show that such directive/policy decision expressed through memorandum/notification was not applicable to the Government department in question—Supreme Court directed that appellant shall be given joining within one month from date of present judgment; that her seniority would be counted from the date of her appointment letter, and that no back benefit will be extended to her for the period she remained out of office one month from the date of present order—Appeal was allowed accordingly.
Citation Name : 2015 SCMR 790 SUPREME-COURT
Side Appellant : PUNJAB EMPLOYEES’ SOCIAL SECURITY INSTITUTION, LAHORE
Side Opponent : M. H. CHALLENGE INDUSTRIES, SIALKOT
Ss. 1(3), 20(1) & 21—Social security contribution, payment of—Registered partnership firm—notice sent to registered partnership demanding production of record and payment of social security contribution—Legality—Contention on behalf of partnership firm that it was not registered with the Social Security Institution, hence it could not be coerced into making any contribution—Validity—Admittedly the partnership firm had been making payments of social security contribution for a considerably long time, therefore, they could not deny the payment of social security contribution subsequently, on the ground that they were making payments under coercion or misrepresentation of the Social Security Institution—Partnership firm in question was also debarred from taking the plea that it was not notified under the Provincial Employees’ Social Security Ordinance, 1965—Partnership firm failed to place any material on record to show that it was not making payment of the social security contribution wilfully—Appeal was allowed accordingly and the Provincial Social Security Institution was directed to proceed against the partnership firm in accordance with law.
Citation Name : 2015 PLC 226 SUPREME-COURT
Side Appellant : PUNJAB EMPLOYEES SOCIAL SECURITY INSTITUTION, LAHORE
Side Opponent : M. H. CHALLENGE INDUSTRIES, SIALKOT
Ss. 1(3), 20(1) & 21—Social security contribution, payment of—Registered partnership firm—notice sent to registered partnership demanding production of record and payment of social security contribution—Legality—Contention on behalf of partnership firm that it was not registered with the Social Security Institution, hence it could not be coerced into making any contribution—Validity—Admittedly the partnership firm had been making payments of social security contribution for a considerably long time, therefore, they could not deny the payment of social security contribution subsequently, on the ground that they were making payments under coercion or misrepresentation of the Social Security Institution—Partnership firm in question was also debarred from taking the plea that it was not notified under the Provincial Employees’ Social Security Ordinance, 1965—Partnership firm failed to place any material on record to show that it was not making payment of the social security contribution wilfully—Appeal was allowed accordingly and the Provincial Social Security Institution was directed to proceed against the partnership firm in accordance with law.
Citation Name : 2015 PLC(CS) 1519 SUPREME-COURT
Side Appellant : Mst. BASHARAT JEHAN
Side Opponent : DIRECTOR-GENERAL, FEDERAL GOVERNMENT EDUCATION, FGEI (C/Q) RAWALPINDI
R. 3(2)—National Command Authority Rules, Chap.II, para.7(k)—Civil service—Initial appointment—Relaxation in age prescribed for initial appointment— Typographical error in advertisement for post qua upper age limit of applicant—Vested right of civil servant on issuance of appointment letter and joining of service—Scope— Appellant applied for the position of Assistant Librarian (BPS-9)—Besides other educational qualifications, upper age limit for the advertised post was mentioned as 35 years, which could only be relaxed in exceptional cases—Appellant, who was 37 years of age, qualified the written test and interview and was selected for the post on merits—Appellant was issued appointment letter and accordingly joined service—Along with her joining, appellant furnished certificate of age relaxation to the authorities—After joining the service, appellant was issued a show-cause notice and consequently removed from service on the ground of being over age at the time of initial appointment—Contentions of appellant were that she was 37 years of age at the time of applying for the post and was entitled for general relaxation of 5 years of age as per Government Policy, which was applicable on all the departments under the Federal Government[Federal Government notification/Office Memorandum No.F.9/2/9 R5 dated 28th November, 2000; that another applicant, who was 39 years of age at the time of applying for the post, was issued appointment letter without any exception, therefore, present case was one of discrimination—Contentions on behalf of Federal Government were that originally age for the advertised position was 25 years, which was increased to 30 years as per the notification in question; that mentioning of 35 years as the upper age limit for the advertised post was a typo-error, as such appellant could not be extended further age relaxation—Validity—Appellant had not procured her appointment letter through dubious means, and she could not be attributed any wrong on her part—Government department could not be allowed to take benefit of its own oversight, lapse or ignorance of law (i.e. Office Memorandum No.F.9/2/9 R5 dated 28th November, 2000 regarding relaxation of general age]—If the notification/ memorandum in question had gone unnotice d by the Government department, it was not the fault of appellant—Liability for wrongly mentioning the qualifying age in the advertisement as 35 years could not be attributed to the appellant, and no corrigendum was published in the newspapers to such an effect—Appellant had joined the service after appearing in the test and qualifying in the interview—For a period of seven months (i.e. from the last date for applying for the advertised post till date of issuance of appointment letter to appellant), it did not occur to the Government department that appellant was over aged by two years (37 years) as against the age of 35 years as advertised—In terms of Chapter-II of National Command Authority Rules, para 7(K) for initial appointment the age prescribed was “not less than 18 years or more than 35 years of age”—However it was specifically stipulated in the said Rule that the said age limit “may be relaxed in exceptional cases upto 45 years by the competent authority”—Said Rule was not considered by the Government department in the present case—Government department did not dispute that the appellant did not possess the required qualification for the relevant post and/or that she did not serve the department satisfactorily—Appellant had applied for the advertised post giving her full particulars, including her qualification and age—At the time of joining she submitted the age relaxation certificate—Even if it is presumed that the competent authority over-sighted her age, it would be deemed to have been relaxed in exercise of power vested in the authority—Under the facts and circumstances of the present case, a right had come to vest in the appellant on issuance of appointment letter and more so after joining the service—Another applicant, who was 39 years of age at the time of applying for the post in question, was appointed to the post and no exception to her being over-age was taken by the Government department—Appellant, in such circumstances, was justified to urge that she had been discriminated against—General benefit of age relaxation extended to the employees of the Federal Government across the board, and extended to all departments under the Federal Government pursuant to any policy decision could not be denied on the assumption, that particular department was not bound by such decision as it had its own rules—Nothing was brought on record to show that such directive/policy decision expressed through memorandum/ notification was not applicable to the Government department in question—Supreme Court directed that appellant shall be given joining within one month from date of present judgment; that her seniority would be counted from the date of her appointment letter, and that no back benefit will be extended to her for the period she remained out of office one month from the date of present order—Appeal was allowed accordingly.
Citation Name : 2015 PLC(CS) 243 SUPREME-COURT
Side Appellant : QAISER ZAMAN
Side Opponent : FEDERAL BOARD OF REVENUE, ISLAMABAD
Resignation from Government service, process of—Delay by concerned officials in approving resignation—Resignation of civil servant not processed by concerned officials for 2-1/2 years and instead issuing him a show notice for absence from duty, and consequently dismissing him from service—Legality—Income tax officer (appellant) applied for leave to pursue further studies—Competent authority did not sanction the leave—Appellant tendered his resignation from service on 31-3-2006, which remained unprocessed—On 13-11-2008 a show -cause notice was issued to the appellant on the ground of his absence from duty under the provisions of Removal from Service (Special Powers) Ordinance, 2000—Appellant submitted his reply to the show-cause notice , but no response was received by him—On 17-1-2009 appellant received a notification entailing penalty of his dismissal from service—Departmental appeal filed by appellant against his dismissal from service was also dismissed as time barred—Federal Service Tribunal also dismissed appellant’s appeal as being time barred—Plea of department that resignation of appellant could not be processed in time as his file had been misplaced—Validity—Concerned officials under the law/rules/regulations were responsible for expediting the process of resignation of civil servants well in time—Department could not justify issuance of show-cause notice to the appellant after inordinate delay of 2-1/2 years—After tendering his resignation case of appellant was not processed for 2-1/2 years on the ground that his personal file went missing—Department instead of processing the case of resignation of appellant opted to proceed against him departmentally for absence of duty—Was not understandable as to how the department could sit over the resignation once it was tendered—In case the personal file of the appellant went missing the head of the department should have ordered enquiry and should have proceeded against the delinquent officers found responsible for misplacing the personal file of the appellant—Supreme Court directed Secretaries, Establishment Division and Cabinet Division to ensure that the resignation cases of civil servants should be processed immediately and the concerned civil servant should also be informed about its fate forthwith as per the rules; that delinquent officers/officials who caused delay in processing resignation cases should be made accountable and proceeded against departmentally—Appeal was allowed accordingly and orders passed by departmental authority and Federal Service Tribunal were set aside.
Citation Name : 2016 YLR 1845 LAHORE-HIGH-COURT-LAHORE
Side Appellant : The HEAD OF RETAIL FINANCE DIVISION, THE BANK OF PUNJAB
Side Opponent : MUSHTAQ AHMAD
Art. 199—Law Reforms Ordinance (XII of 1972), S. 3—Intra court appeal—Administration of justice—Appellant Bank was aggrieved of order passed by Single Judge of High Court whereby Constitutional petition filed by respondent was disposed of on the basis of undertaking given by Bank Manager—Validity—Appellant Bank was not given proper opportunity to contest constitutional petition nor report and para-wise comments were awaited—No proper hearing was given to appellant and simply on undertaking given by its Manager, the petition was disposed of—Manager of appellant Bank was not authorized by appellant to give the undertaking—Bank had produced official documents which reflected that show cause notice was issued regarding matter in hand to the Manager who in reply had sought unconditional apology for giving said undertaking while submitting that his appearance before Court was only in obedience of the court and nothing else—Division Bench of High Court, set aside the order in question and remanded the matter to Single Judge of High Court for decision afresh in accordance with law—Intra court appeal was allowed accordingly.
Citation Name : 2016 YLR 1441 LAHORE-HIGH-COURT-LAHORE
Side Appellant : PERVAIZ RASHEED
Side Opponent : EX-OFFICIO JUSTICE OF PEACE
Arts. 185(3) & 189—Order granting or refusing leave by Supreme Court—Binding force of—Order of issuing notice s to the Attorney General for Pakistan and Advocate General, in order to hear view point of Government and other adversary on the point agitated in the case, would not be sufficient to suggest those orders as ‘judgment’; because there was no final adjudication in that regard, and no question of law had yet been decided—Order granting leave or refusing the same, was not a “judgment” and as such was not binding.
Citation Name : 2016 PLC 52 LABOUR-APPELLANT-TRIBUNAL-SINDH
Side Appellant : WASEEM ANWAR UJAN
Side Opponent : KHUSHALI BANK LTD.
Ss. 34 & 48—Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.15(4)—Constitution of Pakistan, Art.11—Resignation without giving one month’s prior notice —Dismissal from service—Employee, who was appointed in the Bank as Customer Service (Trainee), tendered his resignation on the ground that he had been offered a better job—Employer Bank, instead of accepting resignation of the employee, dismissed him from service on the ground that he had resigned without giving one month’s prior notice —Employee while tendering his resignation, had disclosed the reason for resignation i.e. offer of a better job—Labour Court, while holding the employee to be a “workman”, upheld his dismissal for the same reason i.e. tendering resignation without one month’s prior notice —Validity—Orders of the Bank and the Labour Court were not sustainable, for the reasons; that employment contract did not provide consequence of not giving one month’s prior notice , condition of notice could not be treated as mandatory; that according to S.O.15(4) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, a workman could be dismissed only on proof of charge of misconduct, and want of one month’s prior notice , would not come within the purview of misconduct; that under Art.11 of the Constitution, forced labour was prohibited, and no person could be compelled to perform compulsory service unless required so by law—Refusal to accept resignation of the employee without any charge of misconduct against him, would amount to forcing him to do compulsory service—No law required the employee to do service of the Bank compulsorily—Employer Bank had not claimed that it had suffered any loss due to resignation of the employee without one month’s prior notice —At the time of tendering his resignation, the employee had no portfolio—Manager of the concerned branch of the Bank had also no objection on the resignation of employee and had recommended it for acceptance—Labour Court grossly erred in not accepting the grievance application of the employee—Order of the Labour Court was set aside, appeal filed by the employee and grievance application of the employee, were allowed; and order of the Bank dismissing the employee from service was converted into acceptance of his resignation, in circumstances.
Citation Name : 2016 PLC 42 LABOUR-APPELLANT-TRIBUNAL-SINDH
Side Appellant : Mrs. FARHANA
Side Opponent : SINDH SMALL INDUSTRIES CORPORATION
Ss. 34 & 48—Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12—Termination of service—Grievance application—Employee, a junior clerk, was terminated, and she on receiving one month pay in lieu of notice , she severed her relations with the employer corporation—Employee after about 10 years of her removal from service, filed grievance application before Labour Court, without filing application or showing any cause for condonation of the delay, in filing grievance application—Employee, had contended that an other employee, whose service was terminated on the same day by a separate, but similar order, having been directed by Labour Court to be reinstated, benefit of Labour Court judgment of that other employee should be given to her as well—Validity—Said other employee who was reinstated, was ten years senior in service to the employee and her rank was also higher—Order of the Labour Court was not “judgment in rem”, as it had neither decided any question of law, nor its decision was binding—Facts of the two cases being quite different, the ratio of case of other employee, could not be applied to case of employee.
Citation Name : 2016 CLD 1400 ENVIRONMENTAL-PROTECTION-TRIBUNAL-KARACHI
Side Appellant : ABDUL GHANI
Side Opponent : RAIWIND CHEMICAL (PVT.) LTD.
Ss. 21 & 26(3)(b)—Pakistan Environmental Protection Act (XXXIV of 1997), Ss. 6, 11 & 21(3)(b)—Criminal Procedure Code (V of 1898), Ss. 265-K, 200 & 156(3)—Constitution of Pakistan, Art. 176(2)—Environmental Protection Order—Power of court to acquit accused at any stage—Investigation into cognizable offences—Examination of complainant—Jurisdiction and powers of Environmental Tribunal—Respondents contended that the Tribunal had no jurisdiction to take cognizance on direct private complaint, as the complainants had not given a thirty days’ notice before filing of the complaint, and that the Tribunal could not be said to have taken cognizance of the case, as only notice , not summons, had been issued to them, and that under S. 200, Cr.P.C., statement of the complainant had to be recorded at once, whereas, the same had been recorded after eight months of the receipt of the complaint—Validity—If the Tribunal ordered for investigation under S. 156(3), Cr.P.C. or issued search warrants for the purpose of the investigation, the Tribunal could not be said to have taken cognizance of the offence—Issuance of search warrants for the purpose of investigation or directing the investigating agency to ascertain the truth of the complaint, could not by itself be regarded as an act of taking cognizance of the offence—Taking cognizance was not the same as issuance of process—Tribunal might be said to have taken cognizance of complaint if, after receiving the complaint from the agency or an aggrieved person, the Tribunal recorded the statement under S. 200, Cr.P.C., applied its mind to the facts in the statement and proceeded to order registration of the case against the accused—Tribunal, after the agency had submitted its report regarding non-compliance of the Environmental Protection Order by the accused persons, proceeded to take cognizance and ordered the registration of cases against them after recording statement of the complainant under S. 200, Cr.P.C.—Tribunal had only directed the complaint to the agency for the purpose of ascertaining the truth, and no summons had been issued on the complaint; thus, the Tribunal had adopted the proper course in the complaint by not taking cognizance at the earliest, before getting the enquiry/investigation conducted—Section 11 of Pakistan Environmental Protection Act, 1997 imposed two obligations on everyone: firstly, the National Quality Standards (NEQS) should not have been violated; and, secondly, the standards established under S. 6(1)(a) of Pakistan Environmental Protection Act, 1997 must have been maintained—Samples of waste water collected by the Agency exceeded the permissible limits of the NEQS in contravention of S. 11 of Pakistan Environmental Protection Act, 1997—Respondents had not complied with the Environmental Protection Order, even after many chances had been given to them for the compliance—Grounds for allowing the application under S. 265-K, Cr.P.C. did not exist, as the violation continued—Present matter required evidence; therefore, the application under S. 265-K, Cr.P.C. and application under S. 21(3)(b) of Pakistan Environmental Protection Act, 1997 and S. 26(3)(b) of Sindh Environmental Protection Act, 2014 read with Art. 175(2) of the Constitution were without merits—Application for withdrawal of the complaint was not maintainable, as the remaining four complainants had not joined in the application for withdrawal and present case was not limited to the complainants as the alleged violation of the NEQS continued to affect the environment and the public at large—Applications were dismissed in circumstances.
Citation Name : 2016 CLD 1814 SECURITIES-AND-EXCHANGE-COMMISSION-OF-PAKISTAN
Side Appellant : IMRAN GAFOOR, CHIEF EXECUTIVE SITARA SPINNING MILLS LIMITED
Side Opponent : BILAL RASUL, DIRECTOR (ENFORCEMENT) ADDITIONAL REGISTRAR OF COMPANIES, SECP
Ss. 242, 244 & 476—Non-forwarding of copy of balance-sheet to the Registrar of Companies—Improper issue, circulation or publishing of balance-sheet or profit and loss account—Director Enforcement of the Commission, while examining the annual audited accounts of the company, observed that Director’s report was not annexed with the account under S. 242 of the Companies Ordinance, 1984—Show-cause notice was issued to the Chief Executive Officer, Directors and Company Secretary under Ss. 242 & 244, read with S. 476 of the Companies Ordinance, 1984—Director Enforcement being dissatisfied with the response of the company, imposed a penalty of Rs.16,000 for violation of Ss.242 & 244 of the Companies Ordinance, 1984—Validity—Section 242 of the Companies Ordinance, 1984 mandated the filing of the accounts along with required documents and reports with the Registrar within thirty days from the date of the general meeting; and if the said provision was violated by any company, then it should be dealt through the penal provision in subsection (4) of the S. 242 of the Companies Ordinance, 1984—Section 244 of the Companies Ordinance, 1984, laid down the obligation of “issuing”, ‘circulating’ and ‘publishing’ of the accounts along with different documents and reports—Section 244 of the Companies Ordinance, 1984, also imposed certain penalty for violation of improper issue, circulation publishing—Provisions of S.242 and S.244 of the Companies Ordinance, 1984, were inter alia independent with respect to the filing, issue, circulation and publishing perspective—Non-filing of the document under S.242, could not be considered a violation of S.244 of the Companies Ordinance, 1984 on the basis that the said documents had not been filed with the Registrar, same could not be treated as “issued, circulated or published” to or for the Registrar—Conclusion that “Accounts of the company filed under S.242 of the Companies Ordinance, 1984, were deemed to have been issued, circulated and published”, could not be accepted as intended statutory interpretation of law—While deciding the issue related to S.242 of the Companies Ordinance, 1984, Director Enforcement had wrongly applied and interpreted S.244 as related provision of S.242 of the Companies Ordinance, 1984—Act of Director Enforcement, to issue show-cause notice under Ss.242 & 244 read with S.476 of the Companies Ordinance, 1984, was against the fundamental principles of justice and equity—Exercise of issuance of show-cause notice , was void ab initio; both could not be sustained—Impugned order was set aside being illegal and result of mis-interpretation of law—Case was remanded to the Director Enforcement, with direction to initiate fresh proceedings; and adjudicating the matter independently under S. 242 of the Companies Ordinance, 1984, if any default had been committed by the company in compliance of S.242 of the Companies Ordinance, 1984.
