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Petitioner: MUNAWAR A. SHAIKH VS Respondent: FEDERATION OF PAKISTAN
1999 P L C (C
1999 P L C (C.S.) 1404
[Karachi High Court]
Before S. Saeed Ashhad and S. Ahmed Sarwana, JJ
MUNAWAR A. SHAIKH and 51 others
Versus
FEDERATION OF PAKISTAN and others
Constitutional Petitions Nos.D‑1688 and D‑1816 of 1997, decided on 22nd May, 1999.
(a) Service Tribunals Act (LXX of 1973)‑‑‑
---‑S. 4‑‑‑Service Tribunal being creation of Service Tribunals Act, had no authority to question legality, righteousness and vires of such statute which had created/established the same.
PLD 1993 SC 341; Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.W.F.P. and another PLD 1995 SC 66 and Humayun Saifullah Khan v. Federation of Pakistan PLD 1990 SG 599 ref.
(b) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑Ss. 2‑A, 3, 4 & 6‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212‑‑ Constitutional petition‑‑‑Termination of services‑‑‑Petitioners' contention was that they could invoke Constitutional jurisdiction of High Court as orders of their termination were illegal, mala fide being against rules governing their services and in violation of principles of natural justice‑‑ Validity‑‑‑Final order passed by Departmental Authority relating to terms and conditions of service of civil servant was to be challenged before Service Tribunal on all grounds including those involving allegations of mala fides, lack of jurisdiction, illegality, coram non judice being in violation of fundamental rules‑‑‑Order terminating services of petitioners, could validly be agitated before Service Tribunal in appeal‑‑‑Constitutional petition against termination orders was incompetent in circumstances.
Mrs. Anisa Rehman v. PIAC and others 1994 SCMR 2232; House Building Finance Corporation through Managing Director, Karachi and another v. Inayatullah Shaikh 1999 SCMR 311; Lt.‑Col. Shujauddin Ahmed v. Oil and. Gas Development Corporation 1971 SCMR 566; Chairman of East Pakistan Development Corporation v. Rustom Ali PLD 1966 SC 848; Lahore Central Cooperative Bank Limited v. Pir Saifullah Shah PLD 1959 SC (Pak.) 210; Zainul Abedin v. Multan Central Cooperative Bank Limited PLD 1966 SC 445; Shahid Khalil v. PIAC, Karachi 1971 SCMR 568; A. George v. Pakistan International Airlines Corporation PLD 1971 Lah. 748; R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146; Muhammad Yousuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224; Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194; Anwar Hussain v. Agricultural Development Bank of Pakistan and others 1992 SCMR 1112; Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531; Chairman, WAPDA and 2 others' v. Syed Jamil Ahmad. 1993 SCMR 346; Muhammad Umar Malik v. The Muslim Commercial Bank Ltd. through its President, Karachi and 2 others 1995 SCMR 453; Habib Bank Ltd. and others v. S. Ziaul Hasan Kazmi 1998 SCMR 60; United Bank Ltd. and others v. Ahsanl Akhtar and others 1998 SCMR 68; HBL v. S. Ziaul Hasan Kazmi 1998 SCMR 60; Government of Balochistan v. Azizullah Memon and 16 others PLD 1983 SC 341; Government of Sindh and others v. Sharaf Faridi and others PLD 1994 SC 105; Imran v. Presiding Officer, Punjab Special Court and others PLD 1996 Lah. 542; Al Jehad Trust and others v. Federation of Pakistan and others PLD 1996 SC 324; Mehram Ali and others v. Federation of Pakistan PLD 1998 SC 1445; Asadullah Rashid v. Haji Muneer and others 1998 SCMR 2129; Province of the Punjab v. Dr. S. Zafar Bukhari 1998 SCMR 2129 = 1997 PLC (C.S.) 1371; I.A. Sherwani v. Government of Pakistan and others 1991 SCMR 1041: Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539 and Muhammad Afzal v. Karachi Electric Supply Corporation 1999 SCMR 92 ref.
(c) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑Ss. 2‑A & 4‑‑‑Constitution of Pakistan (1973), Arts. 212 & 199‑‑ Establishment of Service Tribunals‑‑‑Object‑‑‑Service Tribunal had been established in accordance with requirement and provision made in Constitution of Pakistan, (1973)‑‑‑Object to establish Service Tribunals was to provide special forum to civil servants for rectification of the wrong done to them in connection with any of terms and conditions of their service‑‑ Taking away of right to invoke Constitutional jurisdiction under Art. 199 of the Constitution would not‑ result in injustice as alternate forum was as adequate, efficacious and judicious as the High Court‑‑‑Contention that by creation of Service Tribunals, Government had established a parallel judicial system in conflict with judicial system/Courts consisting of Supreme Court and High Court and such other Courts as could have been constituted was repelled‑‑‑Provision of S.2‑A, Service Tribunals Act, 1973 did not amount to denial of right to civil servants for access to justice‑‑‑Service Tribunal for its creation and existence had Constitutional backing and sanctity.
(d) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 25‑‑‑Equality of citizens‑‑‑Concept‑‑‑Meaning and scope‑‑‑Concept of equality of citizens as enunciated in Art. 25 of Constitution of Pakistan (1973), would not mean that all laws must apply to all subjects or that all subjects must have same rights and liabilities‑‑‑Concept of equality before law did not invoke the idea of absolute equality among human beings which was physically impossible‑‑‑Article 25 of Constitution of Pakistan (1973) guaranteed similarity of treatment and not identical treatment‑‑‑Equal protection of law would not mean that all laws must be uniform‑‑‑Article 25 did not envisage absolute equality or equal protection of law, but permitted a reasonable classification‑‑‑Classification made on basis of substantial difference with reference to objects or persons dealt with, was permissible and was not violative of principles of equal protection of law.
Brig. (Retd.) F.B. Ali v. The State PLD 1975 SC 506; Amir Ahmed v. Government of Pakistan PLD 1996 Kar. 27; Abdul Aziz v. The State PLD 1992 Kar. 378 and Shirin Muneer and others v. Government of Punjab and another PLD 1990 SC 295 ref.
(e) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 2‑A‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Employees of Corporations, Statutory Bodies and Authorities‑‑‑Status‑‑‑Provision of S.2 A, Service Tribunals Act, 1973 had not conferred status of civil servants on employees holding posts in Corporations, Statutory Bodies, Authorities or Companies, owned, managed, controlled and run by Federal Government and by virtue of S.2‑A they were to be deemed to be civil servants for limited purpose of conferring on them right to approach Service Tribunals by way of appeals for rectification and redressal of wrongs and grievances relating to their terms and conditions of service‑‑‑Such employees had neither been declared as civil servants for the purpose of Civil Servants Act, 1973 nor their conditions of service were required to be determined‑‑‑Such employees would continue to be governed by Service Rules/Regulations applicable to them during course of their service with such Authorities.
Syed Aftab Ahmed v. KESC and others 1999 SCMR 197; Faizullah Khan v. Government of Pakistan PLD 1974 SC 29; M. Yamin Qureshi v. Islamic Republic of
Pakistan PLD 1980 SC 22; Idrees Ahmed v. Hafiz Fida Ahmed Khan PLD 1985 SC 376; Abdul Wahab v. Government of Punjab PLD 1989 SC 508; Pakistan International Airlines v. F.M. Shamsi PLD 1990 SC 943; Pakistan International Airlines v. Nasim Malik PLD 1990 SC 951; Mushtaq Ahmed Mohal and others v. The Honourable Lahore High Court and others 1997 SCMR 1043 and Obaidullah and another v. Habibullah and others PLD 1997 SC 835 ref.
Abdul Mujeeb Pirzada for Petitioners.
Mubarak Hussain Siddiqui, Deputy Attorney‑General for Pakistan for Respondents Nos. 1 and 2
Raja Haq Nawaz Khan, Raja Qasir Nawaz and Muhammad Saleem Samo, Addl. A.G., Sindh for Respondents Nos. 3 and 4.
Dates of hearing: 24th September; 23rd December, 1998 and 9th March, 1999.
JUDGMENT
S. SAEED ASHHAD, J‑‑‑These two Constitutional petitions have been filed by 66 petitioners, 52 in C.P.No.D‑1688 of 1997 and 14 in C.P. No. 18‑16 of 1997.
Brief facts requisite for disposal of these two petitions are that all the aforesaid 66 petitioners were employees/management trainees of Pakistan State Oil Company Ltd. and their services/training assignments were terminated in August, 1997. The petitioners further stated that on the ground of parochial, ethnic and mala fide intention respondent No.l on the recommendation of respondent No.3 issued the orders of termination of services of the petitioners which the petitioners dubbed to be mala fide, coram non judice, ultra vires and without lawful authority. The petitioners further submitted that with a view to deny the petitioners to obtain fair justice from the normal Courts the respondents got amended the Service Tribunals Act by way of insertion of section 2‑A through Service Tribunals (Amendment) Act 1997, the contents of which are reproduced as under: ‑‑
"(2‑A) Service under certain corporations, etc. to be service of Pakistan. ‑‑‑Service under any authority, corporation, body or organization; established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government or in which the Federal Government has a controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purposes of this Act. "
As a result of section 2‑A the petitioners were to be deemed as civil servants for the purpose of the Service Tribunals Act and were deprived of their rights to approach this Court by invoking the Constitutional jurisdiction for the redress of their grievances relating to the terms and conditions of their services. It was further stated that in view of the above amendment this Court has refused to exercise jurisdiction in the petitions filed by the employees of corporation, bodies, authorities and/or companies owned, managed, run and/or controlled by the Federal Government in view of the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan and the only forum now available to the petitioners for redress of their grievances relating to the terms and conditions of service is the Services Tribunal from which they do not expect any justice in view of the fact that members of the Service Tribunal do not belong to the Judiciary and for their appointment and removal they are dependent on the Executive authority and discretion. The petitioners also submitted that section 3 of the Service Tribunals Act is in direct conflict with Articles 4, 8, 25, 175, 202 and 203 of the Constitution of Pakistan. That the provisions of sections 2‑A, 3 and 6 of the Service Tribunals Act are ultra vires of the Constitution of Pakistan and in this case a question of Public importance is involved as to the interpretation of the Constitution as fundamental rights under Articles 8, 10 and 25 of the Constitution of Islamic Republic of Pakistan have been violated by the Service Tribunals (Amendment) Act, 1997. Petitioners further submitted that termination of their services was on the ground of mala fide intention because the respondents wanted to appoint and provide employment to their relatives, friends and political supporters in place of the petitioners and that the validity of the termination order was also challenged on the ground that it was not signed by the competent Authority. The petitioners having no other remedy to challenge the illegal and mala fide termination of their services as well as to challenge the vires of sections 2‑A, 3 and 6 of the Service Tribunals Act, 1997 were compelled to invoke the Constitutional jurisdiction of this Court and filed the aforesaid petitions wherein they have sought the following prayers: ‑‑
(i) That the provision of section 2‑A, of the Service Tribunals (Amendment).Act be declared as ultra vires of the Constitution;
(ii) That sections 3 and 6 of the Service Tribunals Act be declared as ultra vires of Constitution in view of the judgment given by the Supreme Court in Azizullah Memons case reported in PLD 1993 SC 341;
(iii) That the respondents Nos.2 and 3 be directed to produce the termination orders in Court and those orders be declared as without lawful authority, and therefore, of no legal effect;
(iv) That the petitioners be allowed to continue to serve the company on the same terms and conditions on which the petitioners were working on the day of termination;
(v) That the respondents may be restrained from terminating the services of the petitioners, in future in an unlawful manner in violation of the principles of natural justice and due process of law;
(vi) That any other relief deemed fit and necessary in the circumstances of the case may also be granted; and
(vii) That the cost of the petition may also be awarded to the petitioners.
Respondents Nos.3 and 4 filed their parawise comments alongwith the affidavit of Mr. Syed Khalid Ishtiaq, Legal Executive of respondent No.3. In the parawise comments respondents 3 and 4 raised preliminary objections regarding maintainability of the aforesaid Constitutional petitions on the ground that they were barred by Article 21‑2 of the Constitution of Islamic Republic of Pakistan, 1973, in as much as the petitioners after amendment in Service Tribunals Act had acquired the status of civil servants for the purposes of Services Tribunals Act and were stopped from invoking the Constitutional jurisdiction of this Court for challenging any adverse order relating to the terms and conditions of their services. It was further submitted that the petitioners were inducted in the establishment of respondent No.3 as trainees on contractual basis and were not governed by statutory rules of service with the result that the relationship between respondent No.3 and the petitioners was that of master and servant and as such the Petitioners did not acquire any vested right to continue and/or to be confirmed. The allegation of parochial and ethnic basis and the statement that the petitioners were terminated as the respondents wanted to provide employment to their relatives, friends and political supporters in place of the petitioners was vehemently denied and it was stated that the petitioners were trusted and forced upon respondent No.3 on the ground of political influence in violation of transparency, eligibility, requirement and merits. The respondents further stated that it was absolutely contrary to the fact as per statements made in the petitions that the petitioners did not hand over the charge of their posts and after service of termination letters on the petitioners their services/trainings came to end and they ceased to be employees/trainees of respondent No.3. It has further submitted that the petitions filed are mala fide, misconceived and not maintainable in law in view of Article 212(2) of the Constitution of Islamic Republic of Pakistan and Sections 21(b), 42 and 56 of the Specific Relief Act. The maintainability of these petitions was also challenged on the ground that in a large number of cases decided by the Hon'ble Supreme Court and the High Courts in Pakistan holding that no Constitutional petition can be filed by an employee of Corporation, Statutory Body, Government owned and managed companies or semi‑Government organizations wherein statutory rules of service were not in force. The respondents, therefore, prayed, that the aforesaid petitions be dismissed as not maintainable.
On 24‑9‑1998 by consent of the learned counsel for the parties it was decided that both the aforesaid petitions would be finally heard and disposed of on merits if need be after admitting them to regular hearing. In consequence thereof, we have heard Mr. Abdul Mujeeb Pirzada, learned counsel for the petitioners and Mr. Raja Haq Nawaz Khan, learned counsel for the respondents Nos.3 and 4, Mr. Mubarak Hussain Siddiqui, learned D.A. ‑G., for respondents Nos. l and 2 and Mr. Muhammad Saleem Samoo, learned Additional Advocate‑General Sindh, who was present on Court notice, adopted the arguments advanced by Mr. Raja Haq Nawaz Khan, Advocate.
The maintainability of both the petitions was vehemently attacked by Mr. Raja Haq Nawaz Khan as well as Mr. Mubarak Hussain Siddiqui, D.A.‑G., on the ground that after insertion of section 2‑A, in the Service Tribunals Act by Amending Act of 1997 the petitioners have acquired the status of civil servants for the purposes of Service Tribunals Act and now the Service Tribunal has exclusive jurisdiction to entertain the appeals of the petitioners in respect of any wrong, adverse order or grievance of the petitioners relating to the terms and conditions of their service in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan and they are precluded from invoking the Constitutional jurisdiction of this Court for the purpose of redress of their grievance relating to the terms and conditions of their service.
Mr. Abdul Mujeeb Pirzada, learned counsel for the petitioners, refuted the objections raised by Mr. Raja Haq Nawaz Khan with regard to the maintainability of the petitions and submitted that the objections would have been valid and proper if the petitioners in the aforesaid two petitions had confined themselves to the question of legality and propriety of the orders of their termination of service, had prayed for setting aside the same and for their reinstatement in the service of respondent No.3 but the petitioners have also challenged the amendment made by Service Tribunals (Amendment) Act, 1997 whereby section 2‑A was incorporated in the Service Tribunal Act and the vires and legality of sections 2‑A, 3, 6, of the Service Tribunal Act which the petitioner could not have challenged before the service Tribunal by way of appeals as contemplated in the Service Tribunals Act. In this connection he submitted that it was a well‑established principle of law that the Tribunal had no authority to question the legality, righteousness and vires of the statute which created or established it as the Tribunal being a creature of such statute would have no authority to declare such statute as illegal, mala fide and ultra vires. In support of the above contention Mr. Abdul Mujeeb Pirzada relied upon the case of Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly N.W.F.P, and another (PLD 1995 SC 66) and it will be appropriate to reproduce the relevant portions from the aforecited Judgment as under: ‑‑
"Mr, Sharifuddin Pirzada also referred to a passage from a treatise, namely, 'Constitutional Law of Canada' by Peter W. Hogg, 3rd Edition (Student Edition), in which under the caption 'Administrative Tribunals with the power to decide questions of law', the author on the basis of two cases of the Supreme Court of Canada has observed that such Tribunals have the power to determine the constitutionality of a provision of a law while deciding matters brought before it. But, this observation cannot be pressed into service in order to contend that such a Tribunal can examine the vires of the provision of law under which it has been created."
"I may, point out that there is distinction between a provision of a statute, which creates a Special Tribunal and a provision of such statute which specifies disputes matters over which such a Special Tribunal will have jurisdiction. The Special Tribunal so created cannot decide that the provision under which it has been created is ultra vires the Constitution or that its appointment constitution is defective or invalid. But, It will have jurisdiction to decide the questions, whether it has jurisdiction over the matter brought before it in terms of the relevant provisions of the statutes or whether the parties against whom the case has been filed are amendable to its jurisdiction."
"However, one can urge that since clause (1) of Article 212 provides that, Notwithstanding anything herinbefore contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of (a) matters relating to the terms and conditions of persons (who are or have been) in the service of Pakistan, including disciplinary matters,' a Service Tribunal has jurisdiction to examine the question of vires of a law keeping in view the fact that under clause (3) of the above Article an appeal involving a substantial question of law of public importance against an order of a Service Tribunal lies to this Court with the leave. Even if I were to accept above contention, a Service Tribunal cannot examine the vires of the relevant provision of the statute under which it has been created. Additionally, it may be pointed out that clause (1) of Article 212 of the Constitution does not cover the Election Commission or the Chief Election Commissioner, nor there is any other corresponding provision in the Constitution excluding the jurisdiction of the Superior Courts in respect of the controversy in issue. In this view of the matter, a Service Tribunal cannot be equated either with the Election Commission or with the Chief Election Commissioner and, therefore, the cases relating to the service matters cannot be invoked in aid to contend that the Election Commission has the jurisdiction to examine the vires of section 8‑B of the Act."
Mr. Raja Haq Nawaz submitted that the petitioners for their above contention have relied on the minority view expressed by Ajmal Mian, J. (as the Hon'ble Chief Justice then was) in the case of Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.‑W.F.P. and another (ibid). He further submitted that the majority view expressed by seven Hon'ble Judges was that a forum/tribunal of limited jurisdiction would have the power to decide the objection relative to its jurisdiction to examine the vires of the enactment conferring jurisdiction on it. He further submitted that in view of the pronouncement made by the majority in aforecited case, the question of vires of section 3 of the Civil Servants Act can be raised and decided by the Service Tribunal. The issue in consideration before the Supreme Court an the afore‑cited case was whether the Election Commission was competent to examine the vires of section 8‑B of the Political Parties Act by reason of its conflict with different provisions of the Constitution and it was contended on behalf of appellant Sabir Shah that the Election Commission could not pronounce upon the validity of the very Act which had conferred jurisdiction on it to entertain and decide the references made under subsection (2) of section 8‑B. This question had arisen on the reference filed against the respondents before the Election Commissioner as envisaged by section 8‑B (3) of the Political Parties Act for their disqualification from membership of N.W.F.P. Assembly on the ground of defection. The Election Commission by majority decision relying on pronouncement made in the case of Humayun Saifullah Khan v. Federation of Pakistan (PLD 1990 SC 599) held that it had no jurisdiction to determine the vires of section 8‑B under which it was created and that the High Court was proper forum for that purpose. Sajjad Ali Shah, C.J. (as he then was) writing the judgment on behalf of the majority observed as under:‑‑
"For the facts and reasons stated above, we hold that section 8‑B of the Political Parties Act, 1962 is ultra vires to the Constitution to the extent of forums only, which are in conflict with Article 63 of our Constitution in which forum of Chief Election Commissioner is specifically provided, which is final as no other forum of appeal is provided therein. High Court is competent forum where vires of section 8‑B of Political Parties Act, 1962 can be challenged on other grounds. The Chief Election Commissioner is competent to hear references which can be disposed of by him on merits as previously the references were dismissed by him on the short ground of incompetency without going into the question of merits for the reasons that defection was not mentioned as a ground of disqualification in Article 63 of the Constitution."
From the above cited observation, it transpires that the finding of the Election Commission that it had no authority to examine and decide the issue/objection regarding its jurisdiction to decide the vires of section 8‑B(2) of the Political Parties Act which conferred upon it the power to disqualify a member of the Parliament on the ground of defection was not accepted by the Supreme Court and it was held that the Chief Election Commissioner was the competent Authority to hear and decide the said references, which were order to be disposed of by him on merits. It is pertinent to observe that Article 63 of the Constitution which provides for disqualification of…
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