Mst. Shehnaz Ashraf vs Govt. Of Pb. etc.

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Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR

Judicial Department

W. P. No. 4561 / 2019 / BWP

Mst. Shehnaz Ashraf Versus

Government of the Punjab and three others

JUDGMENT

Date of Hearing: 28.09.2021 Petitioner(s) By: Mr. Nadeem Iqbal Ch., Advocate Respondent(s) By: Syed Najaf Hussain Shah, Advocate ABID HUSSAIN CHATTHA, J: Through this constitutional Petition, the Petitioner has called in question the Order dated 08.05.2017 passed by the Punjab Danish Schools and Centers of Excellence Authority, Lahore (the “PDS & CEA”) regarding termination of her services and Order dated 04.04.2019 passed by the Secretary Schools, Education Department, Punjab, whereby, her representation against earlier termination Order dated 21.03.2017 was dismissed.

2.Brief facts of the case are that the Petitioner was appointed as Urdu Teacher at the Daanish School (Girls), Chishtian, District Bahawalnagar (the “School”) on 01.06.2015 on probation on contract basis for a period of one year extendable by another period of six months. Later on, she was assigned additional functions as Assistant House Mistress. She completed her contract terms alongwith extended term of six months. Her case was under process for extension but in the meanwhile an

incident of suicide attempt by a student in the School premises triggered several inquiries. Consequently, her extension was not made and her services were terminated on 21.03.2017. The Petitioner preferred a constitutional W.P. No. 2498 / 2017 / BWP which was decided vide consolidated Judgment dated 06.04.2017 passed in W. P. No. 2433 / 2017 and the case of the Petitioner was remitted to Respondent No. 3 for decision afresh after hearing the Petitioner in accordance with law. However, Respondent No. 3 dismissed the representation of the Petitioner vide impugned Order dated 08.05.2017. The Petitioner again assailed the said Order before this Court through constitutional Writ Petition No. 4181 / 2017 which was also disposed of on 08.10.2018 with a direction to Respondent No. 1 to treat the same as representation on behalf of the Petitioner and decide in accordance with law which was also dismissed by Respondent No. 1 vide impugned Order dated 04.04.2019. Consequently, the termination of the Petitioner was affirmed.

3.Learned counsel for the Petitioner submitted that the order passed by Respondent No. 1 is the repetition of Order passed by Respondent No. 3 which is not in accordance with law as the requirements of the law are that no one can be terminated on the charges of misconduct without holding regular inquiry. Proper right of defence has not been afforded to the Petitioner and the procedure adopted by Respondent No. 1 could not be equated to a regular inquiry. He placed reliance on cases titled, “Chief Election Commissioner of Pakistan and others v. Miss Nasreen Pervez” (2009 SCMR 329); “Government of Punjab through Secretary Schools Education Department, Lahore and others v. Tauqeer Mazhar Bukhari” (2008 SCMR 1362); “Muhammad Abdul Moied v. Government of Pakistan through Secretary Ministry of Housing and Works and others” (2010 PLC (C.S.) 1143); “Abdul Qayyum v. D.G., Project

Management Organization, JS HQ, Rawalpindi and 2 others” (2003 SCMR 1110); “The Secretary, Government of the Punjab, through Secretary, Health Department, Lahore and others v. Riaz ul Haq” (1997 SCMR 1552); and “Muhammad Naeem Akhtar v. Managing Director Water and Sanitation Agency LDA, Lahore and others” (2017 PLC (C.S.) 676). He further stated that the Petitioner should have been dealt with in accordance with the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 but the Respondents have summarily imposed the major punishment without conducting any regular inquiry against the Petitioner.

4.On the other hand, detailed report and parawise comments have been filed on behalf of the Respondents stating therein that on 16.02.2017, while the Petitioner was performing additional duties of Assistant House Mistress, a 2nd year girl student was reported to be slipped from the stairs of the hostel and suffered major injuries. But later on, keeping in view the contradictory statements / versions that the same was a suicidal attempt, a detailed inquiry was ordered to be conducted by the Board of Inquiry headed by the Principal Daanish School (Boys), Mianwali vide order dated 17.02.2017. On 18.02.2017, the Deputy Commissioner, Bahawalnagar also constituted a six members Committee to visit the site of incident and verify the actual position and directed the concerned staff members and three students to appear before him on 25.02.2017. Meanwhile, Respondents No. 1 to 3 received complaints that the Petitioner alongwith few staff members had started to pressurize the students and the staff of the School to prejudice the investigation. The Board of Inquiry conducted a detailed investigation in the matter and recorded statements and examination of 60 persons and after taking into consideration all the facts and evidence gathered / recorded, documents produced and providing all

concerned including the Petitioner with an opportunity of being heard, recommended disciplinary action against the Petitioner and other concerned. Keeping in view the seriousness of the matter, another Board of Inquiry was also constituted by the Chief Minister’s Office, Punjab vide letter dated 01.03.2017 headed by Chairman, CMIT in which Additional I.G. Special Branch, Punjab was also a member. The said Board also affirmed the findings of the earlier Board constituted on 17.02.2017. Accordingly, the Petitioner alongwith the other persons who were found involved in manipulating the said incident were proceeded against. However, it was clarified in the report and parawise comments that the contract of the Petitioner had expired on 30.11.2016 but the matter of her extension could not be decided due to the said incident, therefore, the Petitioner was allowed payment of salary till 21.03.2017 i.e. the period during which she remained working in the School and the contract of the Petitioner was never extended. The Petitioner challenged her termination through W. P. No. 2498 / 2017 / BWP which was accepted vide Judgment dated 06.04.2017 with a direction to Respondent No. 3 (the Manager (HR & Coord), Punjab Daanish Schools and Centers of Excellence, Lahore) to decide the matter afresh after affording opportunity of hearing to the Petitioner and giving sympathetic consideration. In this behalf, a Contempt Petition was also filed which was disposed of on 17.04.2017 in view of the statement given on behalf of the PDS & CEA, operating part whereof is reproduced as under:- “In compliance of the order dated 06.04.2017 of this Honourable Court, the termination order dated 21.03.2017 is treated as cancelled and the Petitioners are treated to be in service under their applicable contract for the remaining term of service. The Petitioners are to appear before the Manager HR/Admin of the PDS & CEA

at 2pm on Monday, the 24.03.2017 at the head office of the PDS & CEA in the light of the judgment dated

However, contract of the Petitioner had expired on 30.11.2016, therefore, she could not be allowed to rejoin in the light of the order dated 06.04.2017 and her contract was not extended in view of the fact that although she was aware of the true facts, she did not state the correct position and tried to manipulate the inquiry proceedings. The said decision of Respondent No. 3 was challenged through W. P. No. 4181 / 2017 / BWP which was disposed of vide order dated 08.10.2018 and the matter was referred to Respondent No. 1 (Secretary, School Education Department, Punjab, Lahore) with a direction to treat the same as representation of the Petitioner and decide in accordance with law. Respondent No. 1 after going through all the record and proceedings of the case and hearing the Petitioner and other concerned dismissed the representation vide order dated 04.04.2019, which order has been impugned through this Petition.

5.It was contended that the PDS & CEA did not have statutory Rules and relationship between the Petitioner and the School is that of a master and servant. It was further submitted that being a contractual employee the Petitioner can neither claim any right of regular appointment nor right of extension or renewal of her service contract. Rather, her services could be terminable on one month’s notice or payment of salary in lieu thereof as incorporated in the terms and conditions of the contract appointment letter dated 01.06.2015 issued in favour of the Petitioner which she accepted at the time of her employment. In the matters of contractual employment, writ jurisdiction cannot be invoked by the Petitioner as per dictum laid down by the Hon’ble Supreme Court of Pakistan in case titled, “Qazi Munir

Ahmad v. Rawalpindi Medical College & Allied Hospital” (2019 SCMR 648); and “Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs v. Muhammad Azam Chattha” (2013 SCMR 120). He maintained that the contract of the Petitioner expired on 31.11.2016, however, further extension in the contract was not granted by the competent authority. Her case for extension remained under process due to the incident referred above and eventually led to the issuance of impugned termination letters.

6.It is observed that the contractual employees are not vested with any right to permanent employment and are governed under the terms of the Contract. Reliance is placed on case titled, “Shahzad Gohar v. Government of Punjab and Aitcheson College through its Board of Governor” (2018 PLC (C.S.) Note-1). The plea of holding no regular inquiry has lost force since several independent inquiries were held in which the Petitioner was duly associated as listed in detail in the written comments. Even otherwise, the terms and conditions of the contract employment of the Petitioner recognized termination upon misconduct or upon one month’s notice even before the expiry of the period of contract. In this behalf, reliance is placed on cases titled, “Muhammad Mohsin Ismail v. Managing Director Punjab Daanish Schools and 2 others” (2018 PLC (C.S.) 722); “Government of Baluchistan, Department of Health through Secretary, Civil Secretariat, Quetta v. Dr. Zahida Kakar and 43 others” (2005 SCMR 642); and “Major (R) Nisar Ali v. Pakistan Atomic Energy Commission and other” (2004 PLC (C.S.) 758). Even otherwise, contractual employment is governed through relationship of master and servant and in such like cases, ordinarily constitutional jurisdiction vested in this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is not available. The remedy to approach Court

of competent jurisdiction against wrongful termination seeking damages or for breach of terms of the contract is always available to the Petitioner. Reliance in this behalf, is placed on cases titled, “Lt. Col. Rtd. Aamir Rauf v. Federation of Pakistan through Secretary M/o Defence and 3 others” (2011 PLC (C.S.) 654); and “Nadeem Ahmed v. Pakistan State Oil Company Limited and another” (2005 PLC (C.S.) 1447). In view of several inquiries listed in written comments, plea of not holding regular inquiry is untenable since even otherwise the contractual appointment was liable to termination on a simple one month’s notice. The Judgments relied upon by learned counsel for the Petitioner are clearly distinguishable and are not attracted to the facts and circumstances of this case.

7.In view of what has been discussed above, this Petition is not maintainable, hence the same is dismissed, accordingly.

(ABID HUSSAIN CHATTHA)

JUDGE

*WaqaR*