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Petitioner: ABDUL HAFEEZ ABBASI VS Respondent: MANAGING DIRECTOR, PAKISTAN INTERNATIONAL AIRLINES CORPORATION; KARACHI
2002 P L C (C
2002 P L C (C.S.) 1083
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza and Abdul Hameed Dogar, JJ
ABDUL HAFEEZ ABBASI and others
Versus
MANAGING DIRECTOR, PAKISTAN INTERNATIONAL AIRLINES CORPORATION; KARACHI and others
Civil Appeals Nos.2117 to 2134 of 2001 and 12 of 2002, decided on 12 February, 2002.
(On appeal from the judgments/orders dated 29‑5‑2001 and 26‑6‑2001 passed by Federal Service Tribunal, Karachi in Appeals Nos.928(K)/1998 to 936(K)/1998 and 1191(K)/1998)‑
(a) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑Ss.2‑A, 4, 5 & 6‑‑‑Constitution of Pakistan (1973), Art.212(3)---Supreme Court Rules, 1980, O.XIII, R.1‑‑‑Employees of Pakistan International Airlines Corporation‑‑‑Supreme Court granted leave to appeal to consider, whether the appeals filed by the employees before Service Tribunal were not competent for‑want of making departmental appeals; whether they were reinstated into service on correct premises, whether they were entitled to back benefits and that the Tribunal was not justified in law in treating the period of their termination as leave without pay‑‑‑Petitions tiled by the employer were barred by one day, wherein Supreme Court granted leave subject to determination of the question of limitation.
(b) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 2‑A‑‑‑Object and scope of S.2‑A, Service Tribunals Act, 1973‑‑ Section 2‑A of Service Tribunals Act, 1973 has extended a right to all the employees of the category falling within its ambit to have a forum of Federal Service Tribunal for redressal of their grievances expeditiously instead of approaching the Civil Courts‑‑‑Such employees have been treated/declared to be in the service of Pakistan only for said limited purpose, otherwise for all practical purposes, they cannot be treated in the service of Pakistan nor they enjoy rights/obligations available to a civil servant under Civil Servants Act, 1973.
(c) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Appeal‑‑‑Re instatement‑‑‑Back benefits‑‑‑Service Tribunal. ordered re‑instatement of appellants, but treated the period during which they remained out of job as leave without pay‑‑‑Validity‑‑‑Employee in order to become entitled to back benefits had to demonstrate before the original forum that during the pendency of appeal, he had not made any earnings by engaging himself into profit oriented activity either by accepting an employment or doing some business‑‑‑Such prayer necessarily had to be made in the pleadings‑‑ Appellants in the present case had, not mentioned in memo. of appeals filed before Service Tribunal about their engagement in commercial activities during the period, when they had remained out of job, thus, Service Tribunal had no jurisdiction to grant them back benefits‑‑ Assertions so made by the appellants before Supreme Court about non‑making of earnings during such period being a statement of fact could not be accepted on the plea that appeal was the continuation of original proceedings‑‑‑Supreme Court disposed of the appeals with observations that appellants could make a representation to Competent Authority for redressal of their grievance, and if such request was made, the same would be disposed of within specified time keeping in view the above principle.
(d) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑Ss. 2‑A, 4 & 6‑‑‑Constitution of Pakistan (1973). Art. 212(3)‑‑‑Appeal‑‑ Limitation‑‑‑Suit filed by the employees against order of termination of their service stood abated after insertion of S.2‑A in Service Tribunals Act. 1973‑‑‑Employees then filed appeals before Service Tribunal within 30 days of passing of abatement order, which were accepted‑‑ Contention of the employer was that said appeals were time‑barred as the employees should have approached Service Tribunal within 90 days from date of insertion of S.2‑A in Service Tribunals Act, 1973 i.e. 10‑6‑1997‑‑‑Validity‑‑‑Since the question of limitation had not been taken up before Service Tribunal, Supreme Court declined to entertain the same.
PLD 1981 SC 249 ref.
(e) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appeal‑‑‑Termination of service‑‑‑Service Tribunal ordered the re‑instatement of employees, but employer did not take them on duty thus, deprived them from salary for such period‑‑‑Validity‑‑‑Employer had an obligation to honour the Judgment of Service Tribunal and reinstate the employees or if employer had any reservation in not implementing the judgment, then a stay order should have been obtained from the Supreme Court‑‑‑Employer had not obtained any stay order, thus, judgment of Service Tribunal remained operative‑‑ Supreme Court directed that employees be reinstated with effect from the date of passing of judgment of Service Tribunal with all back benefits.
(f) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑Ss. 2‑A, 4 & 5‑‑‑Constitution of Pakistan (1973)‑‑‑Art. 212(3)‑‑ Employees of Pakistan International Airlines Corporation‑‑‑Master and servant, relationship of‑‑‑Termination of service without show‑cause notice‑‑ Service Tribunal ordered the re‑instatement of employees‑‑‑Contention of the Corporation was that services of the employees were governed by the principle of Master and Servant, thus, Service Tribunal had no jurisdiction to grant the relief of re‑instatement, but in such situation at the best, employees would have claimed damages ‑‑‑Supreme Court repelled the contention while holding that it was wrong to contend that on the theory of master and servant relationship, Service Tribunal had no jurisdiction to re‑instate an employee, whose services had been illegally terminated.
Sui Southern Gas Company v. Narain Das PLD 2001 SC 555 fol.
(g) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑Ss. 2‑A & 4‑‑‑Pakistan International Airlines Corporation Act (XIX of 1956), S.5(2)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Employees of Pakistan International Airlines Corporation‑‑‑Termination of service/retrenchment without show‑cause notice under the directives issued. by the Prime Minister Secretariat on 4‑3‑1997 requiring termination of all illegal appointments made during previous Government against merit/in violation of rules and regulations‑‑‑Service Tribunal ordered the reinstatement of employees‑‑‑Contention of the Corporation was that in case of simpliciter termination of services without any stigma, the employees could not have been re‑instated on mere violation of principles of natural justice‑‑ Validity‑‑‑Principle enshrined in maxim "Audi alteram partem" had to be applied in all judicial and non judicial proceedings notwithstanding the fact that right of hearing had not been expressly provided by the statute governing the proceedings‑‑‑Employer might terminate the service of its employee without show‑cause notice in the case of exigency of service‑‑ Corporation had terminated the services of the employees under the directives issued by the Prime Minister Secretariat under the heading "Retrenchment" ‑‑‑Recognised principle of retrenchment was not to remove all the employees from service except to a limited extent by following the principle last come first go‑‑‑Such directives could not be equated with an exigency of service to remove the employees from service‑‑‑Federal Government under S.5(2) of Pakistan International Airlines Corporation Act, 1956, might issue directives to the Corporation on matter of policy, which would be binding on the Corporation‑‑‑Office of Prime Minister alone did not constitute the Federal Government and thus, said directives were not strictly covered by S.5(2) of Pakistan International Airlines Corporation Act, 1956‑‑‑Employees had been made victim of the Prime Minister's directive alone‑‑‑Issuance of show cause notice in such circumstances, to the employees before terminating their services was incumbent upon the Corporation‑‑‑If the appointments of employees were presumed to be in violation of the Rules and Regulations and not on merits, even then they had acquired a right for having served the Corporation from 1995 onward during the course whereof, they had been confirmed, which would mean that they had attained status of permanent employee having a right to remain in service until their appointments had been proved to be contrary to Regulations of the Corporation‑‑‑Supreme Court dismissed the appeals m circumstances.
Mrs. Anisa Rehman v. PIAC and others 1994 SCMR 2232; 1998 SCMR 60; Civil Appeals Nos.366 of 2001 to 378 of 2001 and Pakistan International Airlines Corporation v. Nasir Jamal Malik and others 2001 SCMR 934 ref.
(h) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑Ss. 2‑A, 4 & 6‑‑‑Civil Servants Act (LXXI of 1973), Ss. 2 & 22(2)‑‑ Constitution of Pakistan (1973), Art. 212(3)‑‑‑Pakistan International Airlines Corporation Act (XIX of 1956), Ss. 29, 30 & 31‑‑‑Pakistan International Airlines Corporation Rules, 1985, R.22(e)‑‑‑Termination of service‑‑ Employees of Pakistan International Airlines Corporation challenged termination order by filing civil suits, which after insertion of S.2‑A in Service Tribunals Act, 1973, stood abated‑‑‑Employees then filed appeals before Service Tribunal, which were accepted‑‑‑Contention of the Corporation was that appeals filed by the employees before Service Tribunal were not competent without exhausting departmental remedy ‑‑‑Validity‑‑Civil servant under Civil Servants Act, 1973, by virtue of S.4 of Service Tribunals Act, 1973, was obliged to file departmental appeal under statutory rules meant for seeking departmental remedy before invoking the jurisdiction of Service Tribunal‑‑‑Where no such rules had been framed, then civil servant had to appeal to the next higher authority under S.22(2) of Civil Servants Act, 1973‑‑‑Employees were civil‑servants for the purposes of Civil Servants Act, 1973 under S.2(2) thereof ‑‑‑Neither there was any statutory rules nor forum created by a statute to entertain such appeals/revisions‑‑ Departmental Authorities did not enjoy statutory power to entertain departmental appeals filed by aggrieved employees being members of the Corporation, which was being run by the Board of Governors---Regulations framed by Board of Governors had not been authenticated by Federal Government‑‑‑Employees, in absence of statutory rules governing the affairs of their services could not be legally compelled to file appeals/review/representation to the Authority or next higher Authority before approaching the Service Tribunal for redressal of their grievance, but they could directly approach the Service Tribunal for having been treated civil servants for limited purpose i.e. to seek redressal of their grievance relating to terms and conditions of their services from Tribunal‑‑‑Departmental Authorities had contested the suit filed by the employees and had got knowledge about their grievance against the order of termination of their services, thus, alternatively plaints filed by them could be treated as departmental appeals without prejudice to the rule laid down by the Supreme Court in the case of Muhammad Mushtaq Akbar Abbasi v. House Building Finance Corporation and others (C.A. No.947 of 1999)‑‑‑Supreme Court dismissed the appeals in circumstances.
1992 SCMR 1789; 2002 SCMR 82; 1997 SCMR 197; Syed Aftab Ahmad and others v. K.E.S.C. and others 1999 SCMR 197 and Muhammad Mushtaq Akbar Abbasi v. House Building Finance Corporation and others C.A.No.947 of 1999 ref.
(i) Civil service‑‑‑
‑‑‑‑Reinstatement‑‑‑Entitlement to back benefits of service ‑‑‑Principle‑‑ Employee on the eve of his re‑instatement by a judicial forum or Departmental Authority can get back benefits, if he succeeds in establishing that he had not been making earnings during the period, when he remained out of job‑‑‑Employee has to demonstrate such facts before the original forum‑‑‑Such prayer necessarily has to be made in the pleadings‑‑‑If during such period, employee has accepted other employment or engaged in profitable business, then any amount earned by way of salary from employment or as profits of such business would have to be set of: against the salary due for two reasons, firstly, because a Government servant cannot without permission of Government serve any other master or engage in any other business and secondly, because on general principle too that a person cannot be allowed to reap a double advantage.
PLD 1981 SC 249; Pakistan through General Manager, P.W.R., Lahore v. Mrs. AN. Issacs PLD 1970 SC 415 and Qadeer Ahmad v. Punjab Labour Appellate Tribunal, Lahore and another PLD 1990 SC 787 fol.
(j) Civil service---
‑‑‑‑Retrenchment‑‑‑Recognised principle of retrenchment is not‑to remove all the employees from service except to a limited extent by following the principle last come first go.
(k) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Arts. 185 & 212(3)‑‑‑Plea/point/objection,/question not raised before lower Court/forum‑‑‑Effect‑‑‑Objection not raised before the forum, whose order had been assailed before Supreme Court, would not be entertained unless it had been shown that adjudication of such question was necessary as it involved question of public importance or decision of such point would go to the root of the case.
(l) Constitution of Pakistan (1973)‑‑‑
‑‑‑Arts. 185 & 212(3)‑‑‑Appeal to Supreme Court‑‑‑Question of limitation‑‑ Proper forum for raising such question‑‑‑Normally, question of limitation is considered a mixed question of fact and law, and is required to be decided at the first instance by the Court seized of the matter keeping in view the material available on record, because appreciation of facts is not undertaken by Supreme Court in exercise of its Constitutional jurisdiction.
(m) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 212(3)‑‑‑Appointments made by Departmental Authorities on the directives of the persons at the helm of affairs/governing the country‑‑ Subsequent termination of services on the ground that such appointments were contrary to law as well as prevailing Rules and Regulations ‑‑‑Effect‑‑ Besides proceeding in such situation against the beneficiaries of so‑called illegal appointments the officers responsible for implementing such illegal directives should also be held equally responsible and sever action should be taken against them, so that in future, it may serve as a deterrent for other like‑minded person.
Secretary to Government of N.‑W.F.P. 1996 SCMR 413; Civil Petition for Leave to Appeal No.1062 of 1998 and Sui Southern Gas Company v. Narain Das PLD 2001 SC 555 ref.
(n) Interpretation of statutes‑‑‑
Duty of Court‑‑‑Court/Tribunal seized of the matter was competent to Minterpret the law liberally with the object to extend its benefits largely to the aggrieved persons, provided such interpretation would not violate the spirit of law.
(o) Maxim‑‑‑
---- Audi alteram partem"‑‑‑Application‑‑‑Principle enshrined in maxim "Audi alteram partem" has to be applied in all judicial and non judicial proceedings notwithstanding the fact that right of hearing has not been expressly provided by the statute governing the proceedings.
Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Appellants (in C.As. Nos.2117 to 2125 of 2001).
Javed Iltaf, Advocate Supreme Court and Sh. Slahauddin, Advocate -on‑Record for Respondents (in C. As. Nos.2117 to 2125 of 2001.
Javed Iltaf, Advocate Supreme Court and Sh. Slahauddin, Advocate -on‑Record for Appellants (in C. As. Nos. 2126 to 2134 of 2001).
Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Respondents (in C. As. Nos.2117 to 2125 of 2001).
Javed Iltaf, Advocate Supreme Court and Sh. Slahauddin, Advocate -on‑Record for Appellants (in C.A. No. 12 of 2002).
Nemo for Respondent (in C. A. No. 12 of 2002).
Date of hearing: 12th February, 2002.
JUDGMENT
IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑‑These appeals have been filed by leave of the Court against the judgments dated 29‑5‑2001 and 26‑6‑2001 passed by Federal Service Tribunal, Karachi. Relevant para. from leave granting order is reproduced herein-below:‑‑
"7. After hearing Mr. Wasim Sajjad, learned Senior Advocate Supreme Court appearing in support of Civil Petitions Nos. 2140 to 2148 of 2001 and Mr. Javed Altaf, learned Advocate Supreme Court appearing on behalf of the petitioner PIA Corporation in Civil Petitions Nos.2210 to 2218 of 2001, we are inclined to grant leave to appeal to consider whether the appeals filed by the petitioners in the first set before the Tribunal were not competent for want of making departmental appeals and whether they were reinstated into service on correct premises. Leave to appeal is also granted to consider whether the petitioners in the first set are entitled to back benefits and that the Tribunal was not justified in law in treating the period of their termination as leave without pay. The petitions of the second set are barred by one day each, therefore, leave granted in this set shall be subject, to determination of the question of limitation."
2. Relevant facts of the case are that appellants Abdul Hafeez Abbasi and others Joined Pakistan International Airlines Corporation (hereinafter referred to as the "PIAC") as its employees indifferent cadres particulars of their services are reproduced herein-below:‑‑
Appeal Number
Appellant
Status and Date of Appointment
Date of Permanent Absorption
928(K)/98
Abdul Hafeez Abbasi
Works Officer8‑10‑1995
8‑10‑1995 vide letter dated 11‑1‑1996
929(x)/98
Zakir Hussain
Traffic Officer3‑5‑1995
3‑5‑1995 vide letter dated26‑11‑1995
930(x)/98
Ajeet Kumar
Engineer13‑8‑1995
13‑8‑1995
931(x)/98
Aneet Kumar
Personal Officer8‑4‑1996
8‑4‑1996 vide letter dated10‑10‑1996
932(x)/98
S. Fayaz Ali Shah
Law Officer7‑5‑1995
7‑5‑1995 vide letter dated14‑1‑1996
933(x)/98
Javed A. Pechuho
Traffic Officer29‑5‑1995
29‑5‑1995 vide letter dated 29‑11‑1995
934(x)/98
Riaz Ahmed Mangi
Traffic Officer1‑4‑1996
1‑4‑1996
935(x)/98
Shoaib Ahmed Dahri
Assistant Manager(Public Relations) 28‑5‑1995
28‑5‑1995 vide letter dated 9‑1‑1996 and confirmation vide letter. dated 15‑2‑1996
936(x)/98
Shah Nawaz Abbasi
Law Officer8‑10‑1995
8‑10‑1995 vide letter dated 20‑5‑1996
It so happened that services of above employees were terminated on 20‑3‑1997 by issuing separate letters to them Relevant para. therefrom is reproduced herein-below:-
"TERMINATION FROM SERVICES
On scrutiny, it has been found that your appointment as Works Officer in PIAC service is irregular. It was without inviting applications through advertisement, without competition on merits. Hence void ab initio., Therefore, your services are terminated forthwith without any stigma. Since your termination is simpliciter, you will be entitled to apply for a position as and, when vacancy is advertised on the basis of your qualification and merits.
You will be issued Service Certificate and paid your legal dues on submission of attached Clearance Certificate.
Please arrange to surrender/return the following PIA property/documents to the concerned section against acknowledgment:
1. PIA I. D. Card
2. Airport Entry Pass.
3. PIA Family Card(s)
4. PIA Passport, if any.
5. PIA Uniforms
6. PIA equipment, if any.
This has the approval of competent authority. "
3. Appellants Abdul Hafeez Abbasi and others challenged above order by filing civil suits before High Court of Sindh. The P.I.A.C. contended that during pendency of the suits Service Tribunals Act, 1973 was amended by adding section 2‑A, according to which the employees of P.I.A.C. were treated as civil servants for limited purpose. On promulgation of section 2‑A of the Act, P.I.A.C. (appellants) filed applications before the High Court, contending therein that the suits filed by the employees have abated. Such position taken up by employer was controverted by the employees. However, learned High Court vide judgment dated 20‑5‑1998 declared the suits of the employees as having abated. It may be noted that during pendency of suits before the High Court appellants Abdul Hafeez Abbasi and others continued as employees of the P:I.A.C. on account of interim stay issued in their favour by the Court and when in pursuance of order dated 20‑5‑1998 stay order operating in their favour was vacated, the P..I.A.C. on 21‑5‑1998 issued another order stating therein that as suits filed by them have abated, therefore, original order dated 20‑3‑1997 has become operative and taken effect. Relevant para. therefrom reads as under:
"4. In view of the order, dated 20th May, 1998 of the Hon'ble High Court the termination of your service vide our Letter No. GW 0397005, dated 20‑3‑1997, has become operative and taken effect. Accordingly, your name stands struck off from the Rolls of the Corporation, and consequently you stand released and relieved from duty with immediate effect. "
4. Appellants Abdul Hafeez Abbasi and others within 30 days from the date of passing of order dated 21‑5‑1998 passed by PIAC filed appeals before the Federal Service Tribunal on 21‑6‑1998:
5. Federal Service Tribunal appeals filed by the employees vide impugned judgment. Operative para. therefrom reads as under:
"In view of the above discussion, we are of the considered opinion that the respondents have terminated the appellants without justification, as such, we set aside both the termination orders dated 20‑3‑1997 and 21‑5‑1998 and direct that the appellants be reinstated forthwith in the same position from which they were terminated. The period which they remained out of job be treated as leave without pay."
6. Against impugned judgment Abdul Hafeez Abbasi and others filed petitions which have been converted into Appeals Nos. 2117 to 2125 of 2001 for the relief of back benefits and are being placed in Category "A" whereas PIAC also filed civil petitions which have been converted into Appeals Nos. 2126 to 2134 of 2001 and 12 of 2001 for setting aside impugned judgment and restoration of the termination order of the employees and are placed in Category "B" for proper reference hereinafter.
7. In our opinion it would be appropriate to take up cases of Category "B" for decision before the cases of Category "A".
8. Learned counsel for appellants contended that appeals filed by the employees were not competent before Federal Service Tribunal as they were filed without exhausting departmental remedy, as such were liable to be dismissed on this score alone. Reliance was placed by him on 1992 SCMR 1789 and 2002 SCMR 82.
9. Learned counsel for Abdul Hafeez Abbasi and others contended that as appellants are not civil servants for the purpose of Civil Servants Act, therefore, they had no statutory right to file departmental proceedings under statutory rules, therefore, in view of the judgment reported in 1997 SCMR 197 no departmental appeal /revision//review for making appeal before FST was competent, therefore, they rightly invoked the jurisdiction of Federal Service Tribunal without filing departmental appeal/representation against termination order of their services.
10. A cursory glance on the facts narrated hereinabove would reveal that appellants Abdul Hafeez Abbasi and others against the termination of their services filed civil suits in the High Court of Sindh. When the suits were pending section 2‑A was added in Service Tribunals Act, 1973. According to which the employees of the Corporation owned by the Government, acquired a right to agitate their grievance before the Service Tribunal being civil servants for limited purpose. 'Therefore, on promulgation of section 2‑A in Service Tribunals Act, PIAC itself filed application before trial Court/High Court of Sindh, contending that the suits filed by the employees have abated. Ultimately their such plea was accepted leaving the employees to avail remedy before the Service Tribunal. Now question is whether employees whose suits were abated were bound to follow, strictly procedure laid down under section 4 of the Services Tribunals Act, 1973. A perusal whereof would show that a civil servant under the Civil Servants Act is obliged to file appeal to the department under the Statutory Rules meant for seeking department remedy before invoking jurisdiction of the Service Tribunal, and if such rules have not been framed then he is obliged to appeal to the next higher authority of the department under section 22(2) of the Civil servants Act. But as far as employees of PIAC are concerned they are not civil servants for the purpose of Civil Servants Act under section 2(2) of the Act. Neither there is any statutory rules or forum created by a statute to entertain such appeals/revisions. In addition to it, as far as Departmental Authorities are concerned they also do not enjoy statutory powers to entertain departmental appeal filed by aggrieved employees being members of the Corporation, which is…
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