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Petitioner: SUI SOUTHERN GAS COMPANY LTD. VS Respondent: ENGR. NARAINDAS
2001 P L C (C
2001 P L C (C. S) 743
Present: Irshad Hasan Khan, C.J.
Ch. Muhammad Arif and Deedar Hussain Shah, JJ
SUI SOUTHERN GAS COMPANY LTD.
versus
Engr. NARAINDAS and others
Civil Review Petitions Nos. 79 to 221 of 2001 in Civil Appeals Nos.96 to 238 of 2001, decided on 30th March, 2001.
(On review from the judgment of this Court dated 2-2-2001, passed in Civil Appeals Nos.96 of 2001 to 238 of 2001).
(a) Constitution of Pakistan (1973)---
----Art. 188---Supreme Court Rules, 1980, O. XXVI, R. 1- --Review of Supreme Court judgment---Scope---Review petition is sustainable where a glaring omission or patent mistake has crept in the judgment under review on account of judicial fallibility---Where error in any decision floats on the surface and/or is manifest on the face of the record, which is so material that had the same been noticed prior to the rendering thereof, the conclusion would have been different, petition for review would be maintainable.
(b) Service Tribunals Act (LXX of 1973)---
----S. 4---Constitution of Pakistan (1973), Art.199---Appeal---Scope-- Factum of the rules of service of appellant being statutory or non-statutory would not debar the Service Tribunal to enforce the same as that point would be relevant -in cases of exercise of writ jurisdiction because there the violation of statutory rules would be prerequisite for issuance of writ.
(c) Service Tribunals Act (LXX of 1973)--
----Ss. 2-A & 5---If the services of any person covered by S.2-A, Service Tribunals Act, 1973 were wrongly/illegally terminated, his grievance could be appropriately remedied by the appropriate Service Tribunal under S.5, Service Tribunals Act, 1973.
(d) Master and servant---
----Rule of---Concept---Rule of master and servant is a common law concept which falls in the realm of contract.
(e) Service Tribunals Act (LXX of 1973)---
----Ss. 4 & 5---Termination of service---Anneal---Jurisdiction of Service Tribunal--- Scope---Rule of master and servant being a common law concept which fell in the realm of contract, it was wrong to contend that on the theory of master and servant relationship the Service Tribunal was not authorised to reinstate an employee whose services had been illegally terminated.
(f) Civil service---
---- Termination of service---Employer, after having elected to apply the constraints of contract/temporary assignment against the employees, could not make a U-turn by placing reliance on the Service Rules of the establishment.
(g) Civil service--
---- Retrenchment---Scope---Termination of services of the employees was not only found wrongful/illegal but also discriminatory qua another particular section of the employees belonging to a particular region-- -Employer having also advertised vacancies in the Press, case of employer, therefore, was not that of retrenchment with the result that employer could ill-afford to rely on its alleged impecunious circumstances in that behalf.
(h) Constitution of Pakistan (1973)---
----Art. 188---Supreme Court Rules, 1980, O. XXVI, R. 1---Review of Supreme Court judgment---Scope---Petitioner for review could not be allowed to re-argue the case in the garb of review petition---Judgment sought to be reviewed did not call for review on any ground whatsoever-- Nothing had been overlooked by the Supreme Court nor the Court had failed to consider any important aspect of the matter while rendering the judgment under review---Review jurisdiction of Supreme Court could not be invoked as a matter of routine to re-hear a case which had already been decided.
(i) Supreme Court Rules, 1980---
----O. XXVI, R.7---Constitution of Pakistan (1973), Art.188 --- Review of Supreme Court judgment---Payment of cash security to the opposite-party-- Principles ---If a review is contested by the opposite-party and dismissed, the cash security of Rs.10,000 was to be paid to the opposite-party.
(j) Constitution of Pakistan (1973)---
----Art. 212---Termination of service---Supreme Court had ordered the employer to absorb the terminated employees in their respective disciplines on the same lines as had been done in another case decided by the Supreme Court reported as The Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176---Counsel of the employees stated before the Supreme Court that notwithstanding the clear directions made in the judgment by the Supreme Court, the employer had not absorbed the employees so far---Supreme Court directed the employer to ensure that the order passed by the Court was implemented in letter and spirit within one week from the date of receipt of copy of this judgment, failing which the employer would expose itself to punitive action in accordance with law.
The Managing Director, Sui. Southern Gas Co. Ltd. v. Saleem Mustafa_ Shaikh PLD 2001 SC 176; Lt.-Col. Farzand Ali v. Province of West Pakistan 1980 SCMR 909; Qadeer Ahmad v. Punjab Labour Appellate Tribunal, Lahore and another PLD 1990 SC 787; Chairman, WAPDA and 2 others v. Syed Jamil Ahmed 1993 SCMR 346; Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others 1991 SCMR 2087; Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531; Mrs. Anisa Rehman v: P.I.A.C. and another 1994 SCMR 2232; Zarghun Shah v. Surgeon-General and another 1997 PLC (C.S.) 4; Muhammad Ali v. Secretary, Ministry of Foreign Affairs, Islamabad and another 1997 PLC (C.S.) 6; The Secretary Government of the Punjab through Secretary, Health Department, Lahore and others v. Riaz-ul-Haq 1997 SCMR 1552; Obaidullah and another v. Habibullah and others PLD 1997 SC 835; Habib Bank Limited and others v. Syed Zia-ul-Hassan Kazmi 1998 SCMR 60; Agha Salim Khurshid and another v. Federation of Pakistan and others 1998 PLC (C.S.) 1345; United Bank Limited through President v. Shahmim Ahmed Khan and 41 others 1999 PLC (C.S.) 1032; Divisional Engineer Phones, Phones Division, Sukkur and another v. Muhammad Shahid and others 1999 PLC (C.S.) 1208; Inam Ali Bhutto and others v. Sui Southern Gas Company Limited and others 2000 PLC (C.S.) 459; United Bank Limited and others v. Ahsan Akhtar and others 1998 SCMR 68; Mrs. M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612; Abdul Jabbar v. Sui Southern Gas Company Ltd. C.Ps: Nos.391-K to 456-K of 1999; Muhammad Tariq Pirzada v. Federation of Pakistan 1999 SCMR 2189; Abdul Ghaffar-Abdul Rehman v. Asghar Ali PLD 1998 SC 363; Chandra Kumar v. Union of India (1997) 3 SCC 261; Gunton v. London Borough of Richmond upon Thames (1980) 3 All FLR 577; R v. Civil Service Appeal Board, Ex Parte Bruce (1988) 3 All ELR 686 ref.
Fakhruddin G. Ebrahim; Senior Advocate Supreme Court with Barrister Ch. M. Jamil, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.
Wasim Sajjad, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate- on-Record for Respondents.
Muhammad Akram Sh., Senior Advocate Supreme Court with M.A Zaidi, Advocate-on-Record for Respondents (in C.R.Ps. Nos.80 to 111 of 2001 and 136 to 174 of 2001).
Date of hearing: 29th March, 2001.
JUDGMENT
IRSHAD HASAN KHAN, C J.---Through this common judgment we intend to dispose of the above petitions seeking review of judgment dated 2-2-2001, passed by this Court in Civil Appeals Nos.96 of 2001 to 238 of 2001, whereby the appeals were allowed and the impugned judgments dated 23-9-2000, 11-2-2000 and 17-4-2000 were set aside with a direction to the petitioner-Company to absorb the respondents /employees in their respective disciplines on the same lines as has been done in the case of The Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176.
2. Mr. Fakhruddin G. Ehrahim, learned Senior Advocate Supreme Court appearing on behalf of the petitioner-Company submitted that in case of Saleem Mustata Sheikh and others (supra) this Court ordered their induction because his clients had not given any show-cause notices and this Court had held that issuance of such notices was a must before terminating the services of the appellants therein. According to him, what has beer, overlooked in the judgment under review is that in the present case shoe -cause notices were given and, therefore, the case of Saleem Mustafa Sheikh and others (supra) was not relevant to this controversy. The then learned counsel for the petitioner-Company had conceded to withdraw the discontinuation orders in Saleem Mustafa Sheikh's case (supra).
3. Mr. Fakhruddin G: Ebrahim further submitted that his main grievance was that the respondents approached this Court seeking reinstatement in service while they were neither civil servants nor their services were governed by statutory rules, therefore, this Court cannot pass any order for their reinstatement as the law applicable in the present case was that of master and servant. He argued that this aspect of the case has been lef! out of consideration in the judgment under review. He referred to Lt.-Col Farzand Ali v. Province of West Pakistan 1980 SCMR 909 wherein it was held ".. Secondly, this power cannot generally be exercised in a review petition, because as explained by Kaikaus, J., in Muhammad Amir Khan's case a review does not lie because a judgment is wrong but only because something obvious has, been overlooked, some important aspect of the matter has not been considered .... ", and contended that the present petitions are competent.
4. Mr. Fakhruddin G. Ebrahim also argued that if an employer, who is not governed by statutory rules, terminates the employment of an employee, even if that termination is wrongful, no relief could be provided by the Tribunal and at best it was a case for award of damages before the appropriate forum. The learned counsel referred to following case-law of this Court wherein it has been consistently held that an employee who is not governed by any statutory rules cannot be reinstated:
(1) Qadeer Ahmad v. Punjab Labour Appellate Tribunal, Lahore and another PLD 1990 SC 787;
(2) Chairman, WAPDA and 2 others v. Syed Jamil Ahmed 1993 SCMR 346;
(3) Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others 1991 SCMR 2087;
(4) Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531;
(5) Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232;
(6) Zarghun Shah v. Surgeon-General and another 1997 PLC (C.S.) 4;
(7) Muhammad Ali v. Secretary, Ministry of Foreign Affairs, Islamabad and another 1997 PLC (C.S.) 6;
(8) The Secretary, Government of the Punjab through Secretary, Health Department, Lahore and others v. Riaz-ul-Haq 1997 SCMR 1552;
(9) Obaidullah and another v. Habibullah and others PLD 1997 SC 835;
(10) Habib Bank Limited and others v. Syed Zia-ul-Hassan Kazmi 1998,SCMR 60;
(11) Agha Salim Khurshid and another v. Federation of Pakistan and others 1998 PLC (C.S.) 1345;
(12) United Bank Limited through President v. Shahmim Ahmed Khan and 41 others 1999 PLC (C.S.) 1032;
(13) Divisional Engineer Phones, Phones Division; Sukkur and another v. Muhammad Shahid and others 1999 PLC (C.S.) 1208;
(14) Inam Ali Bhutto and others v. Sui Southern Gas. Company Limited and others 2000 PLC (C.S.) 459;
(15) United Bank Limited and others v. Ahsan Akhtar and others 1998 SCMR 68.
5. The learned counsel contended that the petitioner-Company is governed by its own rules which stipulate termination of service by the Company after giving one month's notice in case of temporary employee and three months' notice in case of permanent employee. He contended that the judgment under review does not even advert to the above argument therefore, a case for review of the said judgment is made out.
6. Mr. Wasim Sajjad, learned Senior A.S.C. appearing on behalf of the respondents /employees, while rebutting the contention of Mr. Fakhruddin G. Ebrahim, regarding application of master and servant rule to their case, vehemently argued that in so far as the master and servant rule as well as the plea that a servant cannot be thrust upon an unwilling master are concerned, it 'is a common law concept which falls in the realm of contract. He contended that in view of newly-added section 2-A in the Service Tribunals Act, 1973 (hereinafter called the Act), it was wrong to say that if a servant was wrongfully terminated his only remedy was a suit for damages, in that, wherever a Statute intervenes in such a relationship, then, to the extent of that Statute, the Courts are obliged to follow the law, whatever that may be. He elaborated his standpoint by arguing that in these cases the Act was amended by inserting section 2-A and, for the purposes of the Act, the Service Tribunal, under section 5 thereof, " may on appeal, confirm, set aside, vary, of modify the order" passed by an employer, but no power has been given to the Service Tribunal in regard to award of damages with the result that the entire exercise in amending the Act would fall in the realm of futility and that section 5 ibid would have no meaning at all as the Tribunal cannot award damages under the said section. He further dilated on the point by contending that even in the realm of ordinary labourers it was, at one stage, a purely master and servant relationship. With the promulgation of Labour Laws, the Labour Courts were given the power to reinstate the employees. He submitted that even in the case of a servant of the Crown the 'master and servant relationship' was applicable with full force prior to the provision of Constitutional guarantees to the civil servants. He referred to Mrs. M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612 wherein it was observed as under:
"9. Then it was contended by- the learned A.S. C. for the appellants, that in case this Court holds that the Board was not a corporate body, the Islamabad Model Schools and Colleges (Services) Rules, 1984, framed by the Board, of which violation was alleged, had no statutory force and, therefore, could not have been relied upon by the Tribunal. We find that this point was not urged before the Tribunal. However, we may observe that even departmental instructions become enforceable in service matters if they have been continuously and consistently acted upon by the department concerned. The Board after having framed the above rules, cannot plead that it can violate the same with immunity. We may state that a violation of a non-statutory rule cannot be assailed through a Constitutional writ petition, but the Tribunal while exercising special jurisdiction in service matters may take cognizance of a breach of a non-statutory rule/instruction if the same has been continuously and consistently acted upon by the department concerned. In any case the Tribunal has not prohibited the Federation to apply, the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973; while re-considering the case of promotion in case the aforementioned rules framed by the Board are to be ignored on the ground, of not being statutory. "
Reliance was also placed on The Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Sheikh PLD 2001 SC 176.
7. He submitted that so far as the case of Abdul Jabbar v. Sui Southern Gas Company Ltd. (an unreported decision in C. Ps. Nos.391-K to 456-K of 1999, etc.) is concerned, the same has been, for the first time referred to in these review petitions and that even otherwise, the above case is distinguishable for the reason that the argument therein was that the employees were civil servants whereas in the case in hand, the question was whether or not the statutory rules could be enforced, to which this Court answered in the affirmative. He submitted that rule of master and servant was argued in the judgment under review, which was noticed and rejected by this Court, therefore, the same cannot be allowed to be raised in these proceedings.
Mr. Waseem Sajjad, learned Senior K.S.C. then took up the second contention of Mr. Fakhruddin G. Ebrahim regarding issuance of show-cause notices to the respondents/ employees and argued that show-cause notices were not issued. He, however, referred to paragraphs Nos. 13 and 14 of the judgment under review, wherein this question has been dealt with at length as follows:
13. Mr. Fakhruddin G. Ebrahim, learned counsel appearing on behalf of the respondent-Company supported the impugned judgment with the submission that there was nothing amiss in issuing of show-cause notices to the petitioners. According to him Rules 6.1, 6.2 and 21 of the Rules were meticulously followed and, in the absence of any material having been brought on the file by the petitioners before the Tribunal, mere allegations of mala fides remained insufficient for successfully challenging the orders passed by the respondent-Company in accordance with the mandate of the rules applicable in that regard. He also referred to Rule 6(2) of the Service Tribunals (Procedure) Rules, 1974 to contend that in the absence of any rule regarding the allegations levelled by the petitioners in their memos of appeal before the Tribunal, the same could not be considered as effective to support their pleas in that behalf. As regards the plea that the case of Saleem Mustafa Sheikh and others was applicable to the case of the petitioners as well, it was contended by Mr. Fakhruddin G. Ebrahim that Saleem Mustafa Sheikh was inducted into service after following the prescribed procedure in that regard commencing with advertisements in the Press. In the case of the petitioners, their induction into service did not come about after advertisements in the Press and that the show -cause notices were issued to them with reasons justifying termination of petitioners' services on, amongst others, the ground that the respondent-Company was contemplating re-organization of its service structure keeping in view the all important factor that it was running in deficit. He concluded his arguments by submitting that his clients are interested in obtaining maximum benefit from their employees and that putting all concerned to IBA Test in future is being resorted to ever since the year 1994.
14. While exercising their right of rebuttal Messrs Wasim Sajjad and M. Akram Sheikh argued that the respondent-Company is not going in deficit and that their clients could also be made to sit in the, IBA Test before considering them for absorption in the same manner as Saleem Mustafa Sheikh and others had been."
9. He next argued that reasons for absorption of the employees in Saleem Mustafa Sheikh (supra), which was followed in subsequent cases, were; firstly, that there were a large number of employees and discriminatory treatment was meted out to them and that it was not a case of retrenchment and secondly, that the employees were treated as temporary, employees but under Rules 6.1, 6.2 and 6.3 of the Executive Service Rules (hereinafter called the Rules) they had become permanent employees.
10. As to the application of Rule 21.1 of the Rules, Mr. Wasim Sajjad submitted that since the said rule is not directly in controversy in these proceedings, therefore, by considering the same at this stage the Court should not go outside the controversy between the parties.
11. He also referred to Muhammad Tariq Pirzada v. Federation of Pakistan 1999 SCMR 2189 and Abdul Ghaffar-Abdul Rehman v. Asghar Ali PLD 1998 SC 363- to contend that where Court has taken a conscious and deliberate decision on a point of fact or law, the same cannot be reviewed. He particularly, referred to paragraph No. 17 of the judgment in Abdul Ghaffar-Abdul Rehman (supra), wherein certain principles have been laid down with regard to review of a judgment, which read thus:
"(i) That every judgment pronounced by the Supreme Court is presumed to be a considered, solemn and final decision on all points arising out of the case;
(ii) that if the Court has taken a conscious and deliberate decision on a point of fact or law, a review petition will not lie;
(iii) that the fact the view canvassed in the review petition is more reasonable than the view found favour with the Court in the judgment/order of which review is sought, is not sufficient to sustain a review petition;
(iv) that simpliciter the factum that a material irregularity was committed would not be sufficient to review a judgment/order but if. the material irregularity was of such a nature, as to convert the process from being one in aid of justice to a process of injustice, a review petition would lie;
(v) that simpliciter the fact that the conclusion recorded in a judgment/order is wrong does not warrant review of the same but if the conclusion is wrong because something obvious has been overlooked by the Court or it has failed to consider some important aspect of the matter, a review petition would lie;
(vi) that if the error in the judgment/order is so manifest and is floating on the surface, which is so material that had the same been noticed prior to the rendering of the judgment, the conclusion would have been different, in such a case of review petition would lie;
(vii) that the power of review cannot be invoked as a routine matter to re hear a case which has already been decided nor change of a counsel would warrant sustaining of a review petition, but the same can be pressed into service where a glaring omission or patent mistake has crept in earlier by judicial fallibility;
(viii) that the Constitution does not place any restriction on the power of the Supreme Court to review its earlier decisions or even to depart from them nor the doctrine stare decisis will come in its way so long as review is warranted in view of the significant impact on the fundamental rights of citizens or in the interest of public good;
(ix) that the Court is competent to review its judgment/order suo motu without any formal application;
(x) that under the Supreme Court Rules, it sits in decisions and not as a whole. Each Bench whether small or large exercises the same powers vested in the Supreme Court and decisions rendered by the Benches irrespective of their size are decisions of the Court having the same binding nature."
12. He concluded his arguments by submitting that in case the review petitions are dismissed, the security deposited by the petitioner-Company may be directed to be paid to the respondents/employees under Order XXVI, Rule 7 of the Supreme Court Rules, 1980.
13. Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court appearing on behalf of the respondents in Civil Review Petitions Nos.80 to 111 and 136 to 174 of 2001, generally adopted the arguments advanced by Mr. Wasim Sajjad in support of the judgment under review. He added that in dispensing with the services of the respondents the petitioner Company did not choose to act under Rule 21.1 of the Rules, therefore, it cannot be allowed to press into service the above rule in these proceedings.
14. He argued that the show-cause notices were only issued to the employees under the mandate of this Court because earlier they had thrown them out. The termination was gone ahead in a discriminatory manner by targeting a particular section of employees belonging to a particular region and inducted during a particular regime.
15. He argued that on the one hand the petitioner-Company is saying that these employees were surplus and on the other they are advertising vacancies in the newspapers. The petitioner-Company is a money-making organization earning millions and millions of rupees.
16. Mr. Muhammad Akram Sheikh, concluded his arguments by referring to Chandra Kamar v. Union of India (1997) 3 SCC 261; Gunton v. London Borough of Richmond upon Thames (1980) 3 All ELR 577 and R v. Civil Service Appeal Board, Ex parte Bruce (1988) 3 All ELR 686 and contending that there is enough public law element in Government employment where the Court has unfettered powers to restore the employment of a servant. This Court need not go into master and servant rules where (i) it is public corporation and (ii) the employment is not governed by a contract simpliciter. He argued that here the employment is not governed by a contract. It is governed by non-statutory rules. The basic distinction is that the petitioner-Company is a public corporation and therefore the judgment under review does not qualify for being interfered with in these proceedings.
17. We have heard the learned counsel for the parties and perused the material available on record as well as the case-law cited by them. It is true that a review petition is sustainable where a glaring omission or patent mistake has crept in the judgment under review on account of judicial fallibility. It is true that where error in any decision floats on the surface and/or is manifest on the face of the record, which is so material that had the same been noticed prior to the rendering thereof, the conclusion would have been different. When faced with this, Mr. Fakhruddin G.…
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