Present
Mr. Justice Gulzar Ahmed.
Mr. Justice Malik Muhammad Aqil Awan.
1. Mujahid Hussain Memon S/o
Hussain Baksh Memon, Muslim,
Adult R/o Fat No. D-16, Noman Garden
Main Abul Hassan Isphani Road,
Metroville III Karachi.
2. Shah Muhammad Banglani S/o
of Haji Shah Nawaz Khan, Muslim,
Adult R/o Flat No. D-16, Noman Garden
Main Abul Hassan Isphani Road,
Metroville III Karachi. - - - - - Petitioners.
Versus
1. Federation of Pakistan,
through Secretary, Ministry of
Petroleum & Gas, Islamabad.
2. Pakistan State Oil Company Limited(PSO),
through its Chairman
PSO House Clifton Karachi.
3. General Manager (Human Resources)
Pakistan State Oil Company Limited
PSO House Clifton Karachi. - - - - - Respondents.
Date of hearing: 11.03.2009.
Petitioners. Through Mr. Zameer Hussain Ghumro,
Advocate.
Respondent No.1. Through Mr. Ashiq Raza, D.A.G. Respondent No.2 & 3. Through Mr. Shahid Anwar Bajwa, Advocate.
MALIK M. AQIL AWAN, J- This petition involves identical questions of law as in C.P. No. D-1748 of 2006 which has been disposed of by us vide judgement dated 04.03.2009.
The Petitioner No.1 Mujahid Hussain Memon, was appointed/selected as Management Trainee in pursuance of Talent
Pool Scheme with effect from 06.05.1996 under appointment order dated 3rd April 1996 by Respondent No.2, whereas Petitioner No.2, Shah Muhammad Banglani was appointed/selected as Management Trainee in pursuance of the same scheme with effect from 4th September 1995 under appointment order dated 08.08.1995 by Respondent No.2. In clause-1 of the appointment orders of both the petitioners, it is stated that, “Kindly note that your employment may be terminated at any time without any notice, should your performance during training period be considered un-satisfactory by the Company.”
Respondent No.2 terminated such training assignment of the Petitioner No.1 vide order dated 29.8.1997 whereas the training assignment of the Petitioner No.2 was terminated vide order dated 27.08.1997.
Both the petitioners challenged their termination stated above in two separate appeals before the Federal Service Tribunal as Petitioner No.1 filed Service Appeal No. 2483(K)/97 and Petitioner No.2 filed Service Appeal No. 2522(K)/97. The appeal of Petitioner No.1 was clubbed with other identical appeals and was dismissed in limine vide order dated 23.12.1997 on technical ground that some of the appellants have filed the departmental appeals whereas some of them have not. Those who have filed departmental appeals have filed the appeal before the Service Tribunal before expiry of 90 days statutory period from the date of filing of the departmental appeals and such were treated as premature. It appears that Petitioner No.1 was satisfied with the order dated 23.12.1997 and did not challenge the same before Supreme Court under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973. The Service Appeal No 2522(K)/97 filed by Petitioner No. 2, was also dismissed by the Federal Service Tribunal vide its judgement dated 24.07.2000. The Federal Service Tribunal inter-alia held that assignment of Management Trainee did not mature into regular appointment. The assignment of Management Trainee was accepted by the petitioners with all the terms and conditions embodied in such letter of selection under his own signatures and termination has taken place in pursuance of such accepted terms and conditions. Since the impugned order of termination is passed in terms of the appointment letter by the competent authority, therefore, is a lawful order amounting to termination simplicitor, which do not require issuance of any show-cause-notice to the petitioners. The Petitioner No.2 also appears to have been satisfied with the said order inasmuch as he did not challenge the same before the Supreme Court.
It is case of both the petitioners that some of the employees/petitioner’s colleagues went in appeal before the Federal Service Tribunal, like Petitioner No.1 and Petitioner No.2 and on dismissal of their appeals by Federal Service Tribunal, they went in appeal by way of filing Special Leave to Appeal before Hon’ble Supreme Court. The Hon’ble Supreme Court in a case of Pakistan State Oil Company Limited v. Muhammad Tahir Khan and others, reported in PLD 2001 S.C 980 came to the conclusion that in view of termination of such a large number of employees, it is to be determined whether it is a dismissal in the garb of termination simplicitor and the exercise of authority/power to terminate the employees is malafide or not. The Hon’ble Supreme Court in the said case held that since such exercise to determine question of fact can not be undertaken in appellate jurisdiction therefore, remanded the matter to Service Tribunal to decide them accordingly.
That consequently all the matters of alike nature which were disposed of and remanded to the Service Tribunal were decided afresh and under different judgments appeals were allowed and the appellants were reinstated in service with back benefits. Such judgments were further challenged before the Hon’ble Supreme Court by Respondent No.2 but such appeals were dismissed under the judgment dated 17.3.2004 with observation that if Respondent No.2 wants to proceed against any of the employees then a meaningful show-cause-notice is to be issued against them and an opportunity of defence and personal hearing be provided to them in accordance with law. The petitioner No.1 & 2 were removed from service under order dated 29.8.1997 and 27.8.1997 respectively and the Federal Service Tribunal having dismissed their appeals on 23.12.1997 and 24.7.2000 respectively which orders were not challenged before the Supreme Court and have attained finality, have come up in this petition with the prayer that Respondent No.2 be directed to extend the benefit of judgment of Supreme Court mentioned supra and they may be reinstated in service accordingly.
We have heard Mr. Zamir Hussain Ghumro, learned counsel for the petitioners, Mr. Ashiq Raza learned DAG for Respondent No.1 and Mr. Shahid Anwar Bajwa, learned counsel for the Respondent No.2 and 3. The learned counsel for the petitioners has relied upon the case of Tarachand V. Karachi Water and Sewerage Board, reported in 2005 PLC (CS) 368. In this case relying upon the case of Hameed Akhtar Niazi, reported in 1996 SCMR 1185, the judgment in personam and judgment in rem were distinguished and it was held that rule of good governance demands that the benefit of the judgment of Supreme Court be extended to other civil servants who may not be party to the litigation instead of compelling them to approach the Tribunal or any other legal forum. He has further relied upon a case of Chairman Pakistan Railways v. Muhammad Latif, 1984 SCMR 286, to the effect that determination of rule of seniority by Punjab Service Tribunal in respect of certain civil servants, the benefit of such determination cannot be denied to a civil servant on ground that he was not a party to litigation before Tribunal or on ground that determination was declaratory of rule of seniority.
The point in issue is that whether the termination from service of the petitioners under the order dated 29.8.1997 and 27.8.1997 was legal or illegal, is a mix question of fact and law to be determined by the competent forum and in this case the same has been determined by the Federal Service Tribunal under judgment dated 23.12.1997 and 24.7.2000 respectively which have attained finality. Neither this judgment has been called in question by the petitioners in the above petition nor they have challenged their termination order before us. The judgment of the Supreme Court relied upon by the petitioner may not have the effect to set aside both the orders automatically without bringing the same in challenge in accordance with the prescribed procedure. Moreover, the judgment of Federal Service Tribunal being a appealable under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, making of a prayer before this Court, which by implication set aside such judgment of the Federal Service Tribunal, is not maintainable. It is further stated that what cannot be done directly it cannot be done indirectly. It has been held in number of cases that constitution petition before High Court against judgment of Service Tribunal is not maintainable even if limitation to file civil petition for leave to appeal under Article 212(3) expires.
Under such circumstances, the present petition is misconceived and not maintainable. Moreover admittedly petitioners were terminated from service on 29.8.1997 and 27.8.1997 respectively and their appeals before Federal Service Tribunal were dismissed on 23.12.1997 and 24.7.2000 respectively and the judgment relied upon was delivered by the Division Bench of Supreme Court in case of P.S.O. v. Muhammad Akram on 17.3.2004, whereas the present petition has been filed on 28.9.2006 without explaining laches on the part of petitioner. Therefore, this petition is barred by laches as well and is accordingly dismissed in limine with no order as to costs.
On 11.03.2009 after hearing the learned counsel for the parties, by a short order this petition was dismissed. Above are the reasons for the said short order.
J U D G E