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Petitioner: MUHAMMAD RASHID CHOUDHRY VS Respondent: CHAIRMAN, AKLASC, MUZAFFARABAD
1993 P L C (C
1993 P L C (C.S.) 1201
[Supreme Court (AJ&K)]
Present: Sardar Said Muhammad Khan, C.J., Sardar Muhammad Ashraf Khan and Basharat Ahmad Shaikh, JJ
MUHAMMAD RASHID CHOUDHRY
Versus
CHAIRMAN, AKLASC, MUZAFFARABAD and 5 others
Civil Appeal No. 78 of 1992, decided on 28th April, 1993.
(On appeal from the judgment of the High Court dated 1b‑7‑1992 in Writ Petition No. 151 of 1990).
(a) Azad Kashmir Logging and Saw Mills Corporation Ordinance, 1968‑‑‑
‑‑‑‑Ss.7 & 17‑‑‑Azad Kashmir Logging and Saw Mills Corporation Employees Service Rules, 1977, R.1‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44‑‑‑Constitutional jurisdiction‑‑‑Competency to invoke‑‑‑Entitlement of employee of Azad Kashmir Logging and Saw Mill Corporation to invoke Constitutional jurisdiction of High Court for redress of his grievance‑‑‑Employer Corporation was statutory Corporation, terms and conditions of employees whereof were governed by statutory rules viz. Azad Kashmir Logging and Saw Mills Corporation Employees' Service Rules, 1977‑ Services of employees of Corporation being governed by statutory rules, Constitutional jurisdiction of High Court could be invoked by its employees for redress of their grievance arising out of the order of competent authority of the Corporation in violation of any such rules.
Muhammad Shat v. Chairman, AK Logging and Saw Mills Corporation PLD 1985 SC (AJ&K) 119; Lahore Central Cooperative Bank Ltd. v. Saif Ullah Shah PLD 1959 SC (Pak.) 210; The State of Pakistan v. Mehrajuddin PLD 1959 SC (Pak.) 147 and Faiz Ahmed v. The Registrar, Cooperative Societies PLD 1962 SC 315 ref.
(b) Master and servant‑‑‑
‑‑‑‑Concept‑‑‑Concept of master and servant fast changing in view of rapid industrialisation.
Concept of master and servant was being consciously discarded in all spheres. Due to rapid industrialisation the modern trend was to provide safeguard to all kinds of employees and efforts were being made to cover more and more fields of employment by statutory provisions and thereby the relationship of master and servant was being eliminated even in industrial and commercial organisations. Numerous Labour laws which have been brought on the statute book during the last two or three decades illustrate the point. The modern trend is that citizens are to be governed by rule of law and not subjected to arbitrariness.
Raziuddin v. Chairman, Pakistan International Airlines PLD 1992 SC 531; Karachi Development Authority v. Wali Ahmad Khan 1991 SCMR 2434; Sindh Road Transport Corporation v. Muhammad Ali G. Khokhar 1990 SCMR 1404; The Principal. Cadet College, Kohat v. Muhammad Shoah Qureshi PLD 1984 SC 170; Lahore Central Cooperative Bank v. Pir Saif Ullah Shah PLD 1959 SC (Pak.) 210; The State of Pakistan v. Mehrajuddin PLD 1959 SC (Pak.) 147; Faiz Ahmed v. The Registrar, Cooperative Societies PLD 1962 SC 315; Pakistan v. Naseem Ahmad PLD 1961 SC 445; Muhammad Hayat v. West Pakistan Industrial Development Corporation 1977 SCMR 205; Chairman, East Pakistan Industrial Development Corporation v. Rustom Ali PLD 1966 SC 848; University of Dacca and another v. Zakir Ahmad PLD 1965 SC 90; R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146; Muhammad Afzal v. House Building Finance Corporation PLD 1976 Kar. 1121; Muhammad Aslam v. National Shipping Corporation PLD 1979 Kar. 246; Malik and Haq v. Muhammad Shamsul Islam Chowdhry PLD 1961 SC 531; Zainul Abidin v. Multan General Cooperative Bank Ltd. PLD 1966 SC 445 and Abdul Salam Mehta v. Chairman, Water and Power Development Authority 1970 SCMR 40 ref.
(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑
‑‑‑‑S. 44‑‑‑Constitutional jurisdiction‑‑‑Mode to exercise‑‑‑Constitutional petition has to be decided in the light of self‑contained Constitutional provision‑‑‑Courts are not bound to follow any concept which owed its origin to the English prerogative writs but had not been incorporated in the Constitution‑‑‑Where a person performing functions in connection with the affairs of the State had acted without lawful authority, High Court had the power to declare that act to be without lawful authority and of no legal effect.
(d) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑
‑‑‑‑Ss. 44(2) & 5‑‑‑Constitutional jurisdiction‑‑‑Grant of relief by High Court in its Constitutional jurisdiction‑‑‑Essentials‑‑‑High Court before making direction and declaration in its Constitutional jurisdiction would take into consideration the fact that Constitutional relief is discretionary and could only be issued on the application of an aggrieved party where there was no other adequate remedy provided by law against a person who was performing functions in connection with the affairs of Azad Jammu and Kashmir State or a Local Authority‑‑‑Salient features of Constitutional jurisdiction stated.
The following essential features are apparent from the wordings of sections 44(2) and 5, Azad Jammu and Kashmir Interim Constitution Act, 1974:
(1) The use of word "may" shows that it is a discretionary relief and even if the petitioner succeeds in making out a legal case the High Court may refuse to issue a writ if it is in the interest of justice to do so;
(2) Writ can only issue on the application of an aggrieved party;
(3) Writ can only issue if there is no other adequate remedy provided by law;
(4) Writ can only issue against a person who is performing functions in connection with the affairs of Azad Jammu and Kashmir/State or a local authority.
(5) A direction under sub‑clause (i) can only be issued to enforce a law;
(6) Declaration in sub‑clause (ii) can be issued if the person complained of had acted without lawful authority in which case his act would be declared as of no legal effect.
The word "person" has been explained in subsection (5). It includes the Government or any Corporation or Authority under the control of the Council or the Government and thus excludes a private Corporation. However, what is meant by "performing functions in connection with the affairs of Azad Jammu and Kashmir/State" has not been defined or explained in the Constitution Act.
Mrs. M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612 ref.
The University of Dacca v. Zakir Ahmed PLD 1965 SC 90; Rustam Ali v. Chairman, East Pakistan Industrial Development Corporation PLD 1964 Dacca 721; Chairman, East Pakistan Industrial Development Corporation v. Rustam Ali PLD 1966 SC 848; Iftikharul Haq v. The West Pakistan Water and Power Development Authority, Lahore PLD 1974 Lah. 82; Salahuddin v. Frontier Sugar Mills Ltd. PLD 1975 SC 244; Deputy Managing Director, National Bank of Pakistan v. Ataul Haq PLD 1965 SC 201; Wali Muhammad v. General Manager, WAPDA, Lahore PLD 1964 Pesh. 167; Muhammad Ashraf Pervaiz v. Agricultural Development Bank of Pakistan PLD 1973 Lah. 425; Abdur Razaq v. WAPDA PLD 1973 Lah. 188 and R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146 rel.
Per Basharat Ahmad Shaikh, J.; Sardar Said Muhammad Khan, CJ. (agreeing); Sardar Muhammad Ashraf Khan, J. (contra)‑‑‑
(e) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑
‑‑‑‑S. 44‑‑‑Azad Kashmir Logging and Saw Mills Corporation Employees Service Rules, 1977, Rr. 21, 22 & 23‑‑‑Constitutional jurisdiction‑‑‑Other adequate remedy‑‑‑Availability‑‑‑Right of appeal was available only against punishment, grievance or complaint but not against posting of respondents who were junior to appellant to higher post‑‑‑Plea that right of representation was available to appellant was not taken before High Court but was taken in appeal before the Supreme Court for the first time which being a new plea could not be allowed to be taken for the first time‑‑‑Even otherwise representation did not appear to be an adequate remedy‑‑‑No other adequate remedy being available to appellant, Constitutional petition filed by him for redress of his grievance was thus, competent.
Per Sardar Muhammad Ashraf Khan, J. (contra)‑‑‑
Per Basharat Ahmad Shaikh, J.; Sardar Said Muhammad Khan, CJ. (agreeing); Sardar Muhammad Ashraf Khan, J. (contra)‑‑‑
(f) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑
‑‑‑‑S. 44‑‑‑Constitutional jurisdiction‑‑‑Competency to invoke‑‑‑Petitioner whether an aggrieved person‑‑‑Appellant who was senior to respondents was working as Deputy Manager while respondents were enjoying the status and powers of Managers and such arrangement had been going on for more than two years‑‑‑Such arrangement was adverse to service rights of appellant which made him an aggrieved person within the meaning of S. 44, Azad Jammu and Kashmir Interim Constitution Act, 1974.
Majlis‑i‑Intizamia v. Secretary to Government. PLD 1975 SC 355; Maqsood Hussain v. Chairman, Municipal Committee, Mirpur 1992 CLC 2203; Mian Fazal Din v. Lahore Improvement Trust, Lahore PLD 1969 SC 223; Pervaiz Akhtar v. Municipal Committee, Mirpur 1993 CLC 426 and Muhammad Afzal v. Government of Pakistan 1987 SCMR 2078 ref.
Sardar Muhammad Ashraf Khan, J. (contra)‑‑‑
(g) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑
‑‑‑‑S. 42‑‑‑Law point could be raised in Supreme Court for the first time.
(h) Civil service‑‑‑
‑‑‑‑Promotion‑‑‑Prevalent practice of ordering civil servants to posts carrying higher grades should be brought to an end for some time senior persons were left to work in the same position while their juniors enjoyed higher status and enhanced powers without adjudication of their suitability for promotion by Promotion Board.
Mubasharul Haq v. Azad Government of Jammu and Kashmir 1991 PLC (C.S.) 426 rel.
(i) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑
‑‑‑‑S. 42‑‑‑Points of law of public importance‑‑‑Practice of Supreme Court is to decide such points even if relief could not be transposed in a concrete shape.
Government of the Punjab v. Dr. (Mrs.) Shamim Raza Bukhari PLD 1990 SC 731; Sardar Sikandar Hayat Khan v. Government of the Azad Jammu and Kashmir PLD 1978 SC (AJ&K) 12; Ghulam Mustafa Mughal and another v. Azad Government and others 1992 MLD 2083 and Amjad Hussain v. Ghulam Rasool Mir 1991 PCr.LJ 685 rel.
Per Basharat Ahmad Shaikh, J.; Sardar Said Muhammad Khan, CJ. (agreeing), Sardar Muhammad Ashraf Khan, J. (contra)‑‑‑
(j) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑
‑‑‑‑S. 42(13)(b)‑‑‑Appointment of respondents to higher posts was declared to be without lawful authority and of no legal effect on the ground that such respondents being junior to appellant could not hold higher posts in the same cadre than that held by the appellant.
(k) New plea‑‑‑
‑‑‑‑ New plea cannot be allowed to be taken for the first time before Supreme Court.
Ch. Muhammad Taj, Advocate for Appellant.
Raja Muhammad Hanif Khan, Advocate for Respondents.
Date of hearing: 21st February, 1993.
JUDGMENT
BASHARAT AHMAD SHAIKH, J.‑‑‑The facts giving rise to this appeal, by leave of the Court, are that the appellant herein filed a writ petition in the High Court challenging two orders passed by the Managing Director of the Azad Kashmir Logging and Saw Mills Corporation (hereinafter called "the Corporation") with the approval of the Chairman of the Corporation, on 7th of December, 1990 by which respondents Rashid Farooq Dar, Ch. Muhammad Yusuf and Raja Muhammad Asghar were purportedly transferred as Managers which posts carry higher grade. The grievance of the appellant, as disclosed in the writ petition, was that he was senior to the aforementioned respondents in grade and post but they had been posted against higher posts, which were in Grade‑19. It was contended that although the aforesaid respondents had been posted in their own pay and scale but since the posts were of higher grade the petitioner's rights were adversely effected thereby. The writ petition and another connected writ petition were dismissed by a learned Single Judge on 16th of July, 1992. Two reasons formed the basis of the order and we may reproduce what the learned Judge observed:
"(a) AKLASC is undoubtedly a Corporate Body having perpetual succession set‑up under the Azad Kashmir Logging and Saw Mills Corporation Ordinance, 1968. It stands even admitted by the position in para. 1 of their writ petitions. Since it is an admitted position that the AKLASC is a Corporation having its own rules and regulations, the question that now therefore needs resolution is whether its employees can be regarded as holder of a public office. On careful consideration the petitioners, in my view, are not entitled to claim as holder of the office of a public nature nor can they claim the status of a civil servant. Their relationship with the Corporation is to be regarded and governed entirely by law of master and servant. Constitutional safeguards available to the generality of the civil servants are not therefore available to them, and
(b) From the bare reading of these provisions it becomes clear that acts done or proceedings taken only by the persons performing functions in connection with the affairs of the State or a local authority which are done or taken without lawful authority can be declared as of no legal effect. In the instant case neither respondents namely: The Chairman, Managing Director and the General Manager, AKLASC, the functionaries of Corporation can be regarded as the persons performing functions in connection with the affairs of Azad Jammu and Kashmir Government nor could the petitioners, not being in the service of Azad Jammu and Kashmir Government, be regarded as civil servants with the Constitutional safeguard available to them."
The learned Judge in the High Court in reaching the conclusion as aforesaid also relied on a judgment of this Court Muhammad Shari v. Chairman, AK Logging and Saw Mills Corporation [PLD 1985 SC (AJ&K) 119]. It is a judgment by which petition for leave to appeal filed by an employee of the Corporation was dismissed on the ground that his relationship with the Corporation was entirely one of master and servant. It was further held that mandamus can only be issued to compel the restoration to an office which is of public nature. In this reliance was placed on Lahore Central Cooperative Bank Ltd. v. Sail Ullah Shah (PLD 1959 SC (Pak.) 210), The State of Pakistan v. Mehrajuddin (PLD 1959 SC (Pak.) 147) and Faiz Ahmed v. The Registrar, Cooperative Societies (PLD 1962 SC 315). The learned Judge in the High Court also held that the petitioner could, under rule 21 of the AKLASC Employees' Service Rules, 1977, file an appeal before the Board of the Corporation but he failed to avail that remedy and the writ petition was not maintainable on that score also.
The Azad Kashmir Logging and Saw Mill Corporation was set up by the Azad Kashmir Logging and Saw Mill Corporation Ordinance (IV of 1968). Section 3 of the Ordinance provides that the Government shall establish a Corporation. It shall be a body corporate. According to section 4 an amount of Rs.4 lacs (in the year 1968) was to be provided by the Government while Corporation's fund in future was to consist of grants and loans made by the Government and any other authority and other sum received by the Corporation. According to section 5, the Board of the Corporation was to be guided by such directions as the Government may give from time to time. The Chief Secretary of the Government was to be, the Chairman of the Board while Secretary to the Finance Department and the Chief Conservator of Forests, apart from two other persons nominated by the Government, were to be the members. According to section 10 the budget of the Corporation of the each year was to be submitted to the Advisor of the Government for approval. It is provided in section 11 that a report of the affairs of the Corporation was to be submitted to the Government every year. It was also found whenever required to submit any term or information of any kind which the Government may require. In accordance with section 12 the Auditor‑General was to audit the accounts of the Corporation. Section 16 lays down that loan raised by the Corporation with the sanction of the Government shall be liability of the Government. The Corporation has been authorised by section 17 to make rules and regulations but that can only be done with the approval of the Government.
It follows that Azad Kashmir Logging and Saw Mills Corporation is a statutory Corporation over which the Government keeps a control and thus persons function in connection with the affairs of the State/Azad Jammu and Kashmir within the meaning of section 44 of the Interim Constitution Act. Under section 7 of the Azad Kashmir Logging and Saw Mills Corporation Ordinance, 1968 the Board of the Corporation has been authorised to appoint for the Corporation officers, employees etc. and the Board has been given powers to prescribe the procedure for appointment as well as the terms and conditions of service of the officers and servants of the Corporation. The word "prescribed" has been defined in the Azad Kashmir Logging and Saw Mills Corporation Ordinance to mean "prescribed by the rules or regulations". Section 17 authorises the Corporation, with the approval of the Government, to make rules and regulations for carrying out the purposes of the Ordinance. Consequently the Azad Kashmir Logging and Saw Mills Corporation Employees Service Rules have been framed. The Corporation has also framed Conduct of Azad Kashmir Logging and Saw Mill Corporation Business Regulations in exercise of these powers. It is thus obvious not only that the Corporation is a statutory body but also that the relationship between the Corporation and its employees is duly regulated by statutory rules.
Ch. Muhammad Taj, the learned counsel for the appellant, challenged all the findings recorded in the judgment of the High Court. He vehemently submitted that the law of master and servant has no application where the terms of service of employees of a statutory Corporation controlled by the Government are governed by statutory rules. He submitted that the view taken by the learned Judge in chamber in Muhammad Shari's case was not correct view of law and needs to be reviewed. Ch. Muhammad Taj also contended that rule 21 of the Azad Kashmir Logging and Saw Mills Corporation Service Rules did not provide a remedy to an employee of the Corporation if his rights for promotion are violated. He contended that even otherwise it was not an adequate remedy. The submissions are opposed by Raja Muhammad Hanif Khan, the learned counsel who appeared for functionaries of the Corporation.
Both the learned counsel addressed detailed arguments in support of the contentions and also relied upon a good number of cases covering all the aspects of dispute between the parties.
Ch. Muhammad Taj has relied on five judgments of the Supreme Court of Pakistan in support of the proposition canvassed by him that if in a statutory Corporation the terms of service of its employees are regulated by statutory rules the law of master and servant does not apply to them and a writ petition is maintainable for enforcement of service rights including restoration to office. The first case is Raziuddin v. Chairman, Pakistan International Airlines (PLD 1992 SC 531). Pakistan International Airlines Corporation was set up under the Pakistan International Airlines Corporation Act, 1956. Some employees of the Corporation were removed from service in exercise of powers under section 10(2) of the aforesaid Act. They filed appeals before the Service Tribunal in terms of section 10(3) but the same were dismissed. They were granted leave to appeal. The appeals filed by them were dismissed on the ground that removal of service of the appellants had been ordered after fulfilling the requirements of section 10(2). The question whether, the employees of a Corporation are governed by the law of master and servant was also discussed and, after a review of case‑law, it was held that:‑‑
"6. The legal position obtaining in Pakistan as to the status of employees of the Corporations seems to be that the relationship between a Corporation and its employees is that of Master and Servant and that in case of wrongful dismissal of an employee of the Corporation, the remedy, is to claim damages and not the remedy of reinstatement. However, this rule is subject to a qualification, namely, if the relationship between a Corporation and its employees is regulated by statutory provisions and if there is any breach of such provisions, an employee of such a Corporation may maintain an action for reinstatement."
Applying this principle to the Pakistan International Airlines Corporation it was noted that section 30 of the Pakistan International Airlines Corporation Act conferred the power on the Pakistan International Airlines Corporation Board to make regulations with the previous sanction of the Central Government. There were certain regulations which were in force in respect of service rights of the employees and the same were pressed into service by the employees, but it was found that the regulations had been framed without previous sanction of the Government. Therefore, the learned Judges held that "in view of the matter the regulations cannot be treated as statutory rules of the nature which would bring the case of the Pakistan International Airlines Corporation within the above qualification as to entitle the employees of the Pakistan International Airlines Corporation to claim relief of reinstatement on the ground of breach of statutory provision".
Karachi Development Authority v. Wali Ahmad Khan (1991 SCMR 2434). It is a case in which an employee of the Karachi Development Authority was dismissed by the said Authority. A writ petition filed by the employee was accepted and he was ordered to be reinstated to service. The Supreme Court dismissed the appeal filed by the Karachi Development Authority. The points under consideration in the present appeal were raised and exhaustively discussed by the learned Judges of the Supreme Court and the following conclusion was recorded, in light of the case‑law cited before them:‑‑
"The review of the cases discussed above shows that the general rule is that the service of a person with a statutory Corporation is essentially based on contractual relationship and is therefore governed by the law of master and servant, which implies that the remedy for illegal termination of service resulting into the breach of contract of service, is to file a suit for damages but no suit for declaration is maintainable, for the simple reason that a service contract is not specifically enforcible, which will result in compelling an unwilling master to accept a person in his service against his will. The position so far as the Constitutional remedy under Article 199 of the Constitution is identical. However, in cases where the post held by the employee of a statutory Corporation is a public office, as defined hereinabove, then relief in the nature of quo warranto to remove a person who is unlawfully holding the post can be granted in Constitutional jurisdiction. The other exception to the aforesaid general rule is that if the freedom of contract is placed under statutory fetters, by reserving controlling power with the Government in the matter of framing of rules or regulations touching the terms and conditions of service of the employees of such a statutory body, in such a case the pleasure of the master is taken over by the statutory provisions and the case would stand outside the master and servant rule, so that Constitutional jurisdiction would be amenable to any violation of the statutory rules or regulations."
In Sindh Road Transport Corporation v. Muhammad Ali G. Khokhar (1990 SCMR 1404) it was held that there were no statutory rules in the field to govern matters relating to employment in the Road Transport Corporation, therefore, the High Court could not issue a writ. It was held that rules framed by the Corporation relating to employment of servants of the Corporation were in fact regulations for which the approval of the Government was not required. Therefore, the rules were non‑statutory in character.
In The Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi (PLD 1984 SC 170), after an exhaustive study of the case‑law on the subject the following conclusions were reached:‑‑
"It is, therefore, evident that where the conditions of service of an employee of a statutory body are governed by statutory rules, any action prejudicial taken against him in derogation or in violation of the said rules can be set aside by a writ petition. However, where his terms and conditions are not governed by statutory rules but only by regulations, instructions or directions, which the institution or body, in which he is employed, has issued for its internal use, any violation hereof will not, normally, be enforced through a writ petition:"
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