ISLAMABAD: No emplo­yer can terminate the services of its employees on mere verbal instructions without any written order containing explicit reasons or cause for termination, the Supreme Court has held.

Authored by Justice Mohammad Ali Mazhar, a verdict issued by the apex court emphasised that there was no provision under the Labour Laws or the Service Laws permitting the employer to terminate the services verbally without a written order containing “explicit reasons or cause of termination or for disciplinary proceedings on account of misconduct”.

The judgement explained that a separate procedure had been laid down for proper termination of services, which accentuated the issuance of show-cause notice, holding of inquiry unless dispensed with by the competent authority considering all attending circumstances of the case that too after personal hearing.

Justice Mazhar observed that termination of service by a verbal order was alien to labour and service laws and also against the principle of good governance, which was a process of gauging whether the government, its departments/institutions and authorities were conducting their affairs lawfully and performing their duties honestly, conscientiously and transparently including their process of decision making in accordance with rules and regulations.

Apex court upholds service tribunal’s decision against agriculture policy institute

The observation came on an appeal against the Sept 2, 2020 order of the Federal Service Tribunal (FST) that had directed the Agriculture Policy Institute (API) to reinstate Zulqarnain Ali as driver after setting aside ‘verbal termination order’.

The Supreme Court bench that heard the matter comprised Chief Justice of Pakistan Gulzar Ahmed, Justice Mazhar Alam Khan Miankhel and Justice Mohammad Ali Mazhar.

Initially, driver Zulqarnain Ali had been engaged on a daily wage basis in April 2011 for 89 days and the period was extended multiple times. Lastly, he was appointed on Jan 11, 2012 by the API chairman through an office order of the deputy director (admin) along with four other persons on a daily wage basis for a period of 89 days.

The judgement recalled that a May 31, 2012 minutes of the cabinet sub-committee convened for dealing with the cases for Regularisation of Contract and Daily Wages Employees performing their duties in the different ministries, divisions, attached departments, autonomous bodies and organisations in the establishment division and after due deliberation, the cabinet sub-committee decided and approved the regularization of their services.

Subsequently the services of 38 contract employees and 16 daily wage earners of the food security and research ministry, 275 daily wage earners of the National Agricultural Research Centre (NARC) and 77 daily wage workers of the Pakistan Agriculture Research Council were regularized, subject to availability of posts on non-development budget and fulfillment of recruitment criterion.

So far as the contract employees of API, the services of seven contractual employees were regularized including the driver. After his services were terminated, driver Zulqarnain approached the FST where it was revealed that his services were terminated through a verbal order in the month of July 2012.

The driver initially filed a departmental appeal on July 31, 2012 that was rejected by the API on Jan 4, 2019. As a last resort, the driver approached to the FST.

Justice Mazhar observed in his judgement that the verbal termination order was ‘illegal’, hence the FST rightly set aside the termination order with the directions to the petitioners to reinstate the driver with back benefits and also dealt with the intervening period aptly.

According to the judgement, the verbal termination order is against the principle of natural justice that turn of phrase was originated from the Roman word ‘Jus Naturale’, which means principles and moralities of natural law, justice, equity, and good conscience that, is fervently and exuberantly founded in the judicial conscience.

It is an elementary rule of law that before taking any adverse action, the affected party must be given a fair opportunity to respond and defend the action. This principle does not lay down any differentiation or inequality between a quasi-judicial function and or an administrative function/action for applying evenly and uniformly to secure justice and prevent miscarriage of justice, Justice Mazhar observed.

Before taking any punitive or adverse action, putting to end the services of any employee/workman or civil servant, the precept of fairness and reasonableness commands that an even-handed opportunity to put forth the defence should be afforded.

Due to negligent and unprofessional practice or conduct of issuing verbal termination orders of service, the action of employer is often defeated and non-suited in the court of law without touching the merits of the case despite having sometimes valid grounds for termination of service, the judgement said, adding that in order to avoid such anomalies and eventualities, even in the case of contractual or temporary engagements, the employees should be issued appointment letters in writing with the terms and conditions of engagement and in the case of termination, explicit reasons of termination should be assigned.

Published in Dawn, December 26th, 2021