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Official Citation: 1990 PLD 1090
Court / Jurisdiction: Sindh High Court
Year of Decision: 2007
Decision Date: 2007-03-12
Parties: MUHAMMAD DAWOOD and others vs FEDERATION OF Pakistan and others
This judicial decision was delivered by the Sindh High Court on 2007-03-12. The matter involves proceedings between MUHAMMAD DAWOOD and others and FEDERATION OF Pakistan and others, officially reported as 1990 PLD 1090. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as PLD 1990 SC 1090
Court Name: Sindh High Court Judge(s): Mushir Alam, Sarmad Jalal Osmany, Sabihuddin Ahmed Title: MUHAMMAD DAWOOD and others vs FEDERATION OF Pakistan and others Case No.: C.P. No,D-159 of 2006 Date of Judgment:2007-03-12 Reported As: 2007 PLC (C.S.) 1046 Result: Order accordingly
JUDGMENT
JUDGMENT ' SABIHUDDIN AHMED, C.J.--- All these petitions arise out of different orders passed by the Federal Service Tribunal holding that the appeals preferred by the petitioners before the Tribunal under section 2A of the Service Tribunals Act, 1974, or Removal from Service (Special Powers) Ordinance, 2000, (RSO) had abated pursuant to the judgment of the 9 Member Bench of the Honourable Supreme Court in Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602, wherein it was held as follows:-- "(108) The threadbare discussion on the subject persuades us to hold:--- (1) Section 2-A of the STA, 1973 is, partially, ultra vires of Articles 240 and 260 of the Constitution, to the extent of the, category of employees, whose terms and conditions of service have not been determined by the Federal Legislature and by a deeming clause they cannot be treated civil servants as defined under section 2(1)(b) of the CSA, 1973 and they are not engaged in the affairs of the Federation. (2) Section 2-A of the STA, 1973 cannot be enforced in the absence of amendment in the definition of the civil servant under section 2(1) (b) of the CSA, 1973. (3) The cases of the employees under section 2-A, STA, 1973, who do not fall within the definition of civil servant as defined in section 2(1)(b) of the CSA, shall have no remedy before the, Service Tribunal, functioning under Article 212 of the Constitution and they would be free to avail appropriate remedy. (109) Now the question is as to what would be the effect of this judgment on the cases pending before this Court and Federal Service Tribunal. In this behalf it may be noted that following the rule of past and closed transactions, laid down in the case of
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' Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445, it is directed as follows:-- (a) The cases which have been decided finally by this Court in exercise of jurisdiction under Article 212(3) of the Constitution shall not be opened and if any Review Petition, Misc. Application or Contempt Application, filed against the judgment is pending, it shall be heard independently and shall not be affected by the ratio of this judgment. (b) The proceedings instituted either by an employee or by the an employer, pending before this Court, against the judgment of the Service Tribunal, not covered by category (a) before this Court or the Service Tribunal shall stand abated, leaving the parties to avail remedy prevailing prior to promulgation of section 2-A of the STA, 1973. (c) The cases or proceedings which are not protected or covered by this judgment shall be deemed to have abated and the aggrieved person may approach the competent forums for redressal of their grievances within a period of 90 days and the bar of limitation provided by the respective laws, shall not operate against them till the expiry of stipulated period. (d) The cases in which the order of Service Tribunal has been implemented shall remain intact for a period of 90 days or till the filing of appropriate proceedings, whichever is earlier. (e) The Service Tribunal shall decide pending cases under section 2-A of the STA, 1973 in view of the above observations. However, if any of the cases is covered by clause 'c' (ibid), a period of 90 days shall be allowed to aggrieved party to approach the competent forum for the redressal of its grievance. 2. Pursuant to the aforesaid judgment of the Honourable Supreme Court the Federal Service Tribunal on different dates informed several employees of statutory or other State owned or State controlled corporations that appeals, or other proceedings pending before the Tribunal had abated. In some cases seeking execution of the final orders of the Tribunal the employees were also informed that their applications had abated and could not be acted upon. Consequently, a very large number of public corporations employees approached this Court in constitutional jurisdiction seeking multiple reliefs. While it is not possible or expedient to dilate upon the facts of each case separately it might be proper to classify them in following broad categories:-- (i) Where the petitioners have questioned the validity of the orders of abatement passed by the Service Tribunal. (ii) Where implementation of the final orders of the Service Tribunal passed prior to the pronouncement of the Supreme Court judgment has been sought. (iii) Where the petitioners have called in question orders passed in the exercise of powers under the Removal from Service (Special Powers) Ordinance, 2000 (R.S.O.). (iv) Where violation of statutory rules of service has been urged. (v) Where orders passed by the Management of public corporations have been assailed on grounds of mala fides, violation of principle of natural justice, etc. (vi) Where despite non-existent of statutory rule the petitioners have claimed violation of internal service regulations of the public corporations are alleged. (vii) Where breach of the terms of employment through contract has been complained of. (viii) Where abatement of proceedings before the Service Tribunal or absence of jurisdiction entertained in new matters has been acknowledged but the jurisdiction of this Court to grant redress under Article 199 of the Constitution has been stressed upon. 3. We have had the benefit of some very able arguments addressed by Dr. Farogh Naseem, Mr. Khalid Jawed Khan, Mr. Muhammad Aqil Awan, Chaudhry Rasheed Ahmed, Mr. Shabbir Ahmed Awam, Mr. Abdul Mujeeb Pirzada, Mr. Farooq H. Naek, Mr. Muhammad Nawaz Shaikh, on behalf of the petitioners and other learned counsel who basically adopted their contentions. On behalf of the respondents Mr. Shahid Anwar Bajwa, Mr. Akhtar Ali Mehmud, Deputy Attorney-.General and Mr. Anwar Mansoor Khan; Advocate-General ably addressed us in detail. We also had the occasion to
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seek the assistance of Mr. Khalid Anwar, Advocate to clarify the ramifications of section 2A of the Service Tribunals Act, which was enacted during his tenure as a Federal Law Minister and incidentally successfully led the arguments of its being declared ultra vires the Constitution before the Honourable Supreme Court in Mubeen-us-Salam's case. We must record our appreciation of invaluable assistance rendered at the Bar. 4. As regards the first category of cases, it is not disputed that the Honourable Supreme Court has in the above mentioned judgment in Muhammad Mubeen-us-Salam's case pronounced section 2A of the Service Tribunals Act to be partially ultra vires Articles 240 and 260 of the Constitution to the extent that those categories of employees whose terms and conditions of service have not been determined by the Federal Legislature cannot be treated as civil servants through a deeming clause and proceeded to hold in the operative part that proceedings before the Service Tribunal not protected by this judgment would be deemed to have abated Indeed some of the learned counsel appearing for the petitioners urged that in any event the Service Tribunal could not have passed omnibus order of abatement without giving the petitioners an opportunity of being heard. Frankly we are not impressed by this contention. It needs to be kept in view that such opportunity is claimed by the petitioners on the basis of principles of natural justice rather than any mandatory provision of law. In this context the law in Pakistan is well-settled as was held in Collector Sahiwal and others v. Muhammad Akhtar 1971 SCM R 681 that when notice is claimed on the basis of a mandatory statutory provision an order passed, without such notice is void. However when it is claimed on the principles of natural justice prejudice needs to be shown and the defect could always be cured through a subsequent hearing. In the instant case no question of prejudice could arise as the order of abatement is premised upon a declaration of law by the Honourable Supreme Court, which is binding upon all Courts and authorities in Pakistan under Article 189 of the Constitution. None of the petitioners has been able to show that his terms and conditions of service were determined by Federal law and, therefore, his appeal could not be deemed to have abated pursuant to the above judgment. We, therefore, find no force in this contention. 5. With respect to the second category it might suffice to say that the Honourable Supreme Court in para.109 of the judgment in Mubinus Salam's case has drawn a distinction between final order passed by the Supreme Court itself and those passed by Service Tribunals. In sub-para.(a) the final orders of the Supreme Court stand protected apparently on the doctrine of past and closed transaction. Nevertheless in sub-para.(d), Lordships have clearly observed that even orders of the Service Tribunal which have been fully implemented would remain in force only for a limited period of 90 days to enable the employees to seek remedies from other fo+ra. We fail to see that when their Lordships did not intend to afford complete protection even to orders which had been duly implemented by the employers on the doctrine of past and closed transaction how direction to enforce orders which have not yet been implemented could be given by this Court, which is bound by the law declared by the Honourable Supreme Court. Therefore, no directions sought in this respect could be granted. 6. With respect to the petitioners falling in the third category, however, it was argued that the Honourable Supreme Court had only held section 2A of the Service Tribunals Act to be partly invalid and only appeals under the aforesaid Act had abated. Nevertheless the provisions of the RSO were never examined or pronounced upon. It was argued that this Ordinance was a complete Code in itself overriding all existing laws in force. It conferred exceptional powers upon the Prime Minister or an officer or authority designated by him to take certain action against a person in corporation service irrespective of his contract of employment. Section 9 stipulated a representation against an order imposing penalty under section 3 and an appeal to the Service Tribunal could be preferred under section 10 against a final order passed on representation and against the original order imposing penalty if such representation was not decided within 60 days of its submission.
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7. We have carefully considered the above contention in the context of the findings of the Honourable Supreme Court recorded in paras.108 and .109. 8. There seems to be some force in the contention of the learned counsel for the petitioners that the terms and conditions of service of the petitioners insofar as penal action against them is concerned are governed by Federal Legislation and, therefore, the principles laid down in the above quoted sub-para.(1) are not applicable to them insofar as appeals questioning such penal actions are concerned. It also needs to be kept in view that the Honourable Supreme Court has declared section 2-A of the Service Tribunals Act only partially and not wholly invalid. A distinction, therefore, must be made between' corporation employees whose conditions of service are regulated by statute and those regulated by internal rules or individual contracts and the ouster of jurisdiction of Service Tribunals is applicable only in respect of the latter category. 9. Nevertheless though the argument appears attractive at first sight, we do not think that it conforms to the letter and spirit of the pronouncement of the Honourable Supreme Court upon a careful reading of the whole judgment. In the first place the Ordinance does not even declare corporation employees to be in the service of Pakistan through a legal fiction or for a limited purpose. It treats them as a category separate from civil servants though it confers certain upon the Government to take penal action against them. Indeed the Legislature has plenary powers to regulate employment with private entities to overriding contract of employment between employers and employees; the large body of labour laws can be cited as an example. Moreover, the petitioners could not be treated in the service of Pakistan in terms ot Article 240 of the Constitution inasmuch as appointments to and conditions of their service have not been determined by or under an Act of Parliament. At page 677 of the above judgment, their Lordships observed:-- ".... As in the case in hand, merely on the basis of a deeming clause, if a person is treated to be a civil servant, it has also to be examined whether remaining conditions, provided under the C.S.A. 1973 have been fulfilled, particularly, as to whether, while making appointments, provisions of section 5 of the C.S.A., 1973 have been complied with or not, according to which the appointments to an All Pakistan Service or to a civil service of the Federation or to a civil post in connection with the affairs of the Federation, including any civil post connected with the defence, shall be made in the prescribed manner by the President or by a person authorized by the President in that behalf. Inevitable corollary consequent upon this provision of law and the conclusion would be that those persons, who are working in the Government controlled Corporations etc. And have been appointed in a prescribed manner, would be deemed to be in the service of Pakistan and if their status is declared to be a civil servant, only then they would be entitled to enjoy the benefits of section 2-A of the S.T.A. 1973...." 10. In addition to the above, it needs to be kept in view that Article 212(1)(a) of the Constitution contemplates establishment of administrative Courts or Tribunals to exercise exclusive jurisdiction in matters relating to terms and conditions of persons who are or have been in the service of Pakistan. Since corporation employees have not been declared to he in the service of Pakistan under the R.S.O. Even through a legal fiction, we are of the view that section 10 of the ordinance is also ultra vires Article 212 of the Constitution. In this view of the mkter, we find it difficult to accept the contention of the learned counsel for the petitioners. 11. The ouster of jurisdiction of the Service Tribunal, including those under the R.S.O. Being complete, the remaining categories could be considered from the stand point of the jurisdiction of this Court. Mr. Khalid Jawed Khan one of the counsel for the petitioners, however, candidly conceded the above position in view of the pronouncement of the Honourable Supreme Court in Muhammad Mubeen-us-Salam's case. Nevertheless he argued with a great deal of emphasis that once the
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jurisdiction of the Service Tribunal stood ousted this Court in its jurisdiction under Article 199 of the Constitution could always afford redress to employees of statutory and non-statutory corporations where controlling interests were held by the Government. This plea was also adopted by a number of other counsel representing the petitioners as an alternative contention. It was stoutly contested by the learned counsel appearing on behalf of the respondents who mainly urged that:-- (a) such corporations could not be deemed to be performing functions in connection with the affairs of the Federation so as to be amenable to the jurisdiction of this Court under Article 199 of the Constitution; and (b) that the term of their employment being contractual the common law rule of master and servant squarely apply and the only remedy available to employees was to seek damages for breach of contract. 12. The weighty body of case-law mainly comprising precedence from our own Supreme Court was placed before us by learned counsel from either side and we are indeed grateful for their invaluable assistance. In the first instance the question of jurisdiction of this Court to issue directions or strike down decisions of corporations established either by statute or incorporated under the Companies Ordinance pursuant to an executive decision of the Government whereby it holds controlling shares of interest exists needs to be examined. Under Article 199 of the Constitution the jurisdiction of this Court in the relevant context to "persons performing functions in connection with the affairs of the Federation, a Province or a local authority". What needs to be examined is whether the Corporation in question as distinguished from their employees could be classified as such persons. 13. Before proceeding to discuss the contours of the above quoted constitutional provisions in the light of the law laid down by our own Supreme Court the scope of judicial review (earlier known as prerogative writs) has been expending from time to time. In R. v. Criminal Injuries Compensation Board (1967) 2 AER 770, Lord Parker, C.J. Observed:-- "At one time the writ only went to an inferior Court. Later its ambit was extended to statutory tribunals determining a lis inter partes. Later again it extended to cases where there was no lies in the strict sense of the word, but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that the body concerned was under a duty to act judicially and that it was performing a public duty. Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is from the agreement of the parties concerned. We haye as it seems to me, reached the position when the ambit of certiorari can be said to cover every case in which a body of persons of a public as opposed to a purely private or domestic character, has to determine matters affecting subject provided always that it has a duty to act judicially." 14. In the same case the Court asserted its supervisory jurisdiction in respect of a Board which had been appointed by the executive and performed functions under a non-statutory scheme. In Council of Civil Service Union v. Minister for the Civil Service (1984) 3 AER 395, the House of Lords asserted its jurisdiction over decisions taken pursuant to authority conferred by royal prerogative. Lord Diplock observed, "for a decision to be susceptible to judicial review the decision maker must be empowered by public law (and not merely, as in arbitration, by agreement between parties) to make decisions". This was further clarified by Lloyd L.J. In R v. Panel on Take-overs, (1987) 1 AER 564 in the following words:-- "If the body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may, as counsel for the applicants submitted, be sufficient to bring the body within the reach of judicial review. It may be said that to refer to 'public law' in this context is to beg the question. But I do not think it does. The essential distinction, which runs
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through all the cases to which we referred, is between a domestic or private tribunal, on the one hand and a body of persons who are under some public duty or the other." 15. It may also be added that in Britain the judicial review jurisdiction of the High Court is not confined to act of the Government or a body corporate created by statute. In R v. Criminal Injuries Compensation Board, Ex parte Lain (1967) 2 AER 770, an objection to the maintainability of the writ was repelled when the Board was only - created by the Secretary of State through an executive order and administered on behalf of the Government through monies granted by the parliament to the Crown. In R v. Panel on take-overs (1987) 1 AER 564, discussed above, the Panel was merely a self-regulating unincorporated association having no direct statutory or common law powers. Yet in view 'of the public nature of the functions it performed it was held to be subject to the High Court writ jurisdiction. All that needs to be seen is whether any public law functions are performed or ought to be performed. 16. In the U.S.A. The position appears to be even more explicit. A writ could lie even against a private person as long as he was performing an element of public functions. Way back in 1985 a writ was issued against Private Railways Companies practicing racial discrimination. Wayback in Plees v. Ferguson decided in 1895 (163 US) 537. Mr. Justice Harlan observed, "it is true that the real and personal property necessary to the establishment and management of the rail-road is vested in the corporation; but, it is in trust for the public". The position seems to be summed up by Justice Fazal Karim in Volume-II page 1011 of his masterly work "Judicial review of Public Action (6th edition) in the following words:- "When a burglar breaks into a house takes away property he has violated the search and seizure' clause of American Constitution as also the acts that placed restriction' on the taking of property; yet he is not subject .To judicial review for no State or governmental action is involved. But if the burglar has been engaged by the State police to seize evidence for use in a criminal case the burglar action will become State action." 17. Coming to the law in Pakistan it may be appropriate to highlight that under Article 199 of the Constitution any person "performing functions in connection with the affairs of the Federation, a Province or a local authority". Clause 5 of the said Article describes that the expression "person includes anybody politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government.." Obviously while the expression "body politic" could be referable to the Government itself. The inclusion of the expression "corporate" is referable only to corporate authorities created by the Government to perform certain functions of a public nature either by statute or otherwise. The position in this respect was appropriately (if we may say with respect) summed up by Anwarul Haq J., as he then was, in the well-known case of Salahuddin v. Frontier Sugar Mills PLD 1975 SC 244 at page 256 in the following words:-- "Now, what is meant by the phrase "performing functions in connection with the affairs of the Federation or a Province." It is clear that the reference is to governmental or State functions, involving, in one form or another, an element of exercise of public power. The functions may be the traditional, police functions of the State, involving the maintenance of law and order and other regulatory activities; or they may comprise functions pertaining to economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these functions would be performed by persons or agencies directly appointed, controlled and financed by the State, i,e, by the Federal Government or a Provincial Government. However, in recent years, there has been manifest a growing tendency on the part of Governments to create statutory corporations for undertaking many such functions, particularly in the industrial and commercial spheres, in the belief that free from the inhibiting effect of red-tapism, these semi-autonomous bodies may prove more effective, flexible and also profitable. Inevitably, Government retains effective control over their functioning by appointing the heads and other
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senior officer of these corporations, by regulating their composition and procedures by appropriate statutes, and finding funds for financing their activities. ' Examples of such statutory corporations are the National bank of Pakistan, the West Pakistan Water and Power Development Authority, the National Shipping Corporation, the Agricultural Development Bank of Pakistan, and the large number of Universities functioning under their respective statutes. On account of their common attributes as mentioned in the preceding paragraph, they have all been regarded as persons performing functions in connection with the affairs of the Federation or a Province." 18. Indeed superior Courts have been issuing orders and directions under Article 199 not merely to corporate entities created by statute but even those incorporated under the Companies Act or otherwise such as Pakistan Television Corporation, Sindh Industrial Trading Estate etc. We are, therefore, not at all impressed by the contention that Government controlled corporations do not fall within the ambit of Article 199 Of the Constitution. 19. It may now be pertinent to examine the question whether a petition would lie for enforcement of the terms and conditions of service of employees of such corporation and more particularly whether they could claim the relief of reinstatement rather than…
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