W.P. No.8738/2009 Ashfaq Hussain Govt. of the Punjab, etc.

28.02.2011

Mr. Muhammad Umar Riaz, Advocate for the petitioner. Khawaja Salman Mahmood, Assistant Advocate General. Mr. Irshad Ali, Law Officer. The petitioner while working as Director of Agriculture (Economics & Marketing), Agricultural

Department made a request for reemployment after superannuation of the said post to the Chief Minister vide his application dated 24.10.2007. allowed vide notification dated The said request was 01.11.2007 and it was

directed that the petitioner be re-employed as Director of Agriculture (Economics & Marketing) Punjab, on contract, for a period of three years, in relaxation of re-employment Policy of Government of the Punjab, with effect from 10.04.2008. The said notification further stated that the

terms and conditions of his contractual re-employment shall be settled separately. Thereafter, after superannuation, the petitioner joined the said post on 10.04.2008 as is evident from the Charge Report of the said date. However, vide impugned notification dated 10.04.2008 the services of the

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petitioner were terminated with immediate effect holding the petitioner entitled to draw one months pay in lieu of notice. 2. Learned counsel for the petitioner contends that the

petitioner was allowed to work as Director Agricultural (Economic & Marketing) on the basis of notification dated 01.11.2007, however, terms and conditions were never settled and, therefore, he was never given the option that his service will be terminated against payment of one months pay in lieu of notice. The said condition has been wrongly applied to the case of the petitioner. 3. Learned counsel for the petitioner further submits that

the termination of the petitioner is in violation of Articles 4 and 10-A of the Constitution of Islamic Republic of Pakistan 1973 and in support of the same has placed reliance on Naubahar Ali v. Vice Chancellor and others (2010 PLC (C.S.)783), Muhammad Aslam v. Vice Chairman and others (2010 PLC (C.S.) 266), Muhammad Saeed and 2 others v. Executive District Officer (Agriculture), Khanewal and another (2010 PLC (C.S.) 961) and New Jubilee Insurance Company Ltd. Karachi v. National Bank of Pakistan, Karachi (PLD 1999 S.C. 1126). 4. Learned Law Officer frankly submitted that terms and

conditions of the service of the petitioner under the contract

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were not settled as provided under notification dated 01.11.2007. However, he contends that termination of the petitioner is on the basis of Policy dated 10.04.2008 which states that re-employment of the retired officers/officials after retirement to be terminated with immediate effect. The policy however, extends one months salary in lieu of the notice. 5. 6. Arguments heard. Record perused. Petitioner was granted contractual re-employment

vide notification dated 01.11.2007 by the Secretary, Agricultural Department which had to take effect from 10.4.2008. The said notification provides that the terms and conditions of the contractual re-employment of the petitioner shall be settled separately. This was never done and the petitioner took charge on 10.04.2008. On the same day impugned notification dated 10.04.2008 was issued by the Secretary, Agriculture Department and the services of the petitioner were terminated with immediate effect against one months pay in lieu of notice of one months period. 7. The impugned notification of termination of services

of the petitioner dated 10.04.2008 is a result of dictation under notification dated 10.04.2008 issued by the Services and General Administration Department, Government of the

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Punjab which states that the competent authority has desired that re-employment of the retired officers may be terminated with immediate effect. 8. The terms and conditions of the contractual

re-employment of the petitioner were never settled since notification dated 01.11.2007. Therefore, one months pay in lieu of notice was never a condition settled between the parties. In the absence of the same, the said clause could not be pulled out of the bag at the last minute and slapped on the petitioner, depriving him of his right to due process. 9. In the absence of a contract, the petitioner had a right

to be heard, before an adverse order terminating his service was passed. This principle of natural justice is in built in Articles 4, 9 and 10-A of the Constitution of Islamic Republic of Pakistan 1973 and, therefore, cannot be taken to be a cosmetic requirement. Rule of law and due process are fundamental to any civilized system of governance and more so in a democratic welfare state like Pakistan. Reliance is placed on Naubahar Ali v. Vice Chancellor and others (2010 PLC (C.S.)783), Muhammad Aslam v. Vice Chairman and others (2010 PLC (C.S.) 266), Muhammad Saeed and 2 others v. Executive District Officer (Agriculture), Khanewal and another (2010 PLC (C.S.) 961) and New Jubilee

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Insurance Company Ltd. Karachi v. National Bank of Pakistan, Karachi (PLD 1999 S.C. 1126). 10. No.4 Notifications dated 10.04.2008 issued by respondent and the Services & General Administration

Department furnishes no reason why services of reemployed officials be terminated with immediate effect. The requirement of furnishing reasons ensures transparency and accountability of public institutions and makes them stronger. Unreasoned orders generate corruption and

weaken institutions and slowly eat into the foundations of a healthy democracy. Government cannot make policy and

issue notifications which flout the fundamental rights of citizens. Every policy, every action, every step taken by the government must be well thought out and within the constitutional framework. The best way to achieve good governance by the Provincial Government and public institutions is to furnish reasons and pass speaking orders. This requirement now has a legislative cover under Section 24-A of the General Clauses Act, 1897. Reliance is placed on M/s Airport Support Service v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268), Liaqat Ali Memon and others v. Federation of Pakistan and others (PLD 1994 SC 556),

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Secretary to Government of N.W.F.P. and another v. Muhammad Nawaz and another (PLD 1996 SC 837), Rukhsar Ali and 11 others v. Government of N.W.F.P. through Secretary Education, Peshawar and 3 others (2003 PLC (C.S.) 1453), Pakistan International Airlines

Corporation through Chairman and others v. Shahzad Farooq Malik and another (2004 SCMR 158), and Chairman/Managing Director, Pakistan International

Airlines Corporation and another v. Nisar Ahmed Bhutto (2005 SCMR 57). 11. For the above reasons, the impugned notification/

order dated 10.04.2008 is set aside. Needless to say that respondent department is free to deal with the case of the petitioner in accordance with law and in accordance with principles highlighted in the above judgments. 12. For the above reasons, this petition is allowed and

notification terminating the services of the petitioner dated 10.04.2008 is set aside. (Syed Mansoor Ali Shah) Judge
M. Tahir*

APPROVED FOR REPORTING.