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Petitioner: IMRAN AHMED KHAN VS Respondent: PAKISTAN through Secret try, Ministry of Defence JUDGMENT
Court Name: Sindh High Court Judge(s): Mrs. Yasmeen Abbasey, Syed Mehmood Alam Rizvi Title:IMRAN AHMED KHAN vs PAKISTAN through Secret try, Ministry of Defence
JUDGMENT
Reported As: 2008 CLC 697 Result: Petition accepted Judgment JUDGMENT ' MRS. YASMIN ABBASEY, J.----Facts leading to this case are that the petitioner was inducted in PIAC as Director on 24-11-1994; confirmed on the post on 11-6-1995 w,e,f, 24-11-1994 up to 10-10-1997 he worked comfortably but all of a sudden on 10-10-1997 a show-cause notice was issued to him alleging his appointment, so also the qualifications required for the post, as result of political pressure. That he was already beyond the maximum age for induction of regular employee which is 40 years. Consequently, his services were terminated vide letter dated 3-12-2001 on the ground that his appointment was on the basis of directives issued by Prime Minister Secretariat and thus was in contravention of the principles laid down by the Honourable Supreme Court of Pakistan in Abdul Jabbar Memon's case, which provides that every vacancy shall be advertised and be filled on merit after consideration of eligibility by the properly constituted board. This termination order was challenged by the petitioner before the Federal Service Tribunal and vide judgment dated 23- 6-2003 he was reinstated in service. ' It is pertinent to note that during the pendency of case before the Federal Service Tribunal a letter was issued on 30-11-1999 by Arif Ali Khan Abbasi, the Managing Director expressing his sorrow to the issuance of the show-cause notice and in paras-4 and 5 of his letter it was stated that " in the light of the above it is in the fitness of the things that notice of removal from service issued to you be withdrawn which you deserve. It is hoped that you will contribute to the prosperity of this Corporation." Although the authenticity of letter dated 30-11-1999 was challenged by the respondent No,2's counsel in proceedings before the Federal Service Tribunal that as the said letter is not available on PIAC's record and by second letter issued on 26-6-2000 it was clarified by
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Assistant Manager, M.D. Secretary A.R. Bhutti that no such letter dated 30-11-1999 was ever issued or processed through the M.D. Secretary, hence it will be deemed to have no existence but these objections were turned down by the Federal Service. Tribunal that:- "It was on the basis of this Committee's report that Appellant's show-cause notice dated 10-10-1997 was withdrawn by the Managing Director vide . His letter dated 30-11-1999 also reproduced in earlier part of this judgment. Respondent's challenged the authenticity of this letter and stated that the same M.D. Few weeks later after the said letter held appointment of the appellant as irregular after another review. We have seen the signature of Mr. Arif Ali Khan Abbasi, the then M.D. Of PIAC on different papers produced by both parties in the appeal. We find that the signature of Mr. Abbasi on the letter whereby Appellant's show-cause notice was withdrawn is genuine." ' However by joining advice of PIAC dated 25-8-2003 in compliance of the judgment of Federal Service Tribunal, petitioner was taken on duty and was posted as Director Special Project vide Personnel Order No,031/September/2003 dated 18-9-2003. It appears and as has also been observed by Federal Service Tribunal that respondents were bent upon terminating the petitioner's services, therefore, again a termination letter was issued on 23-2-2004 with the plea that due to reorganization in the Corporation the post of Director Special Proiect stands abolished, therefore, petitioner being redundant in respondent No,2 Corporation was terminated with immediate effect. ' It is stated by learned counsel for the petitioner that before terminating his services on 23-2-2004 neither the petitioner was ever intimated about the decision of the Corporation nor any show- cause notice was issued to him. Being aggrieved with this termination letter, petitioner again approached to the Federal Service Tribunal in Appeal No,91(K)CE of 2004. That appeal was admitted on 26-2-2004 and order dated 23-2-2004 was suspended till the next date of hearing. Respondent No,2 organization was also restrained from passing any other adverse order against the petitioner. Respondent No,2 corporation assailed this order of Federal Service Tribunal dated 26-2-2004 before Honourable Supreme Court of Pakistan, which was dismissed with the observation that "as the Service Tribunal has not finally disposed of the matter, therefore, no case is made out for grant of stay order. However, appellant will be at liberty to approach Service Tribunal for early decision of the matter and if such application is filed before the Service Tribunal, it shall be decided within three weeks after filing of the same". ' Federal Service Tribunal finally disposed of the petition filed by the petitioner bearing No,91 of 2004 on 22-4-2004 again declaring the respondent No,2's order of termination dated 23-2-2004 as void ab initio, capricious and illegal being passed in total violation of principle of natural justice, rules and settled law enunciated by the Honourable Supreme Court in various rulings cited earlier in this order. Accordingly, respondents were directed to reinstate the petitioner in service w,e,f, the date of impugned order with full consequential financial and other service benefits. ' It is stated that due to continuous defiance of order of Federal Service Tribunal, maintained by the Honourable Supreme Court of Pakistan, petitioner is forced to file, this petition. In reply to it, respondent had challenged the very maintainability of this petition stating that as Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985 do not have statutory rules and regulations therefore, relationship in between petitioner and respondent is that of master and servant and in such event proper remedy for the petitioner due to alleged wrongful termination is to file a suit for damages and not reinstatement. Case of Pakistan Red Crescent Society and another v. Syed Nazir Gillani 2005 PLC (C.S.) 1264 has been cited, Wherein it is observed that:-- "It is well-settled by now that "where the Government while setting up a Corporation does not reserve to itself the power to regulate the terms of service of the Corporation's employees under the relevant statute and does not prescribe any condition, but leaves it to the discretion of the Corporation by empowering it to frame rules or regulations in respect thereof without the
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Government's intervention, then the Corporation will be the sole arbiter in the matter of prescribing the terms and conditions of its employees and will be competent to deal with them in accordance with the terms and conditions prescribed by it. In such a case neither a suit nor a writ petition for the relief of reinstatement will be competent and the remedy of an employee, for wrongful dismissal from or of termination of service will be a suit for damages as the principle of master and servant will be applicable." ' It is contended that in absence of any statutory rules of the corporation the petition filed under Article 199, invoking jurisdiction of High Court to adjudicate the terms of service and termination of petitioner does not come within its orbit. Employment of a corporation not governed by any statutory rules does not come within the scope of service of Pakistan as defined in section 2 (1) (b) of Civil Servants Act, 1973 which reads as under:-- "2(1)(b) "Civil servant" means a person who is a member of an All Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include:-- (i) a person who is on deputation to the Federation from any Province or other authority; (ii) a person who is employed on contract, or on work-charge basis, or who is paid from contingencies; or (iii) a person who is a "worker" or "workman" as defined in the Factories Act, 1934 (XXVI of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923). ' As per term "civil servant" defined in Act, 1973 means a person holding a civil post in connection with the affairs of the Federation as PIAC does not have any statutory rules, therefore, its employees do not fall with the definition of civil servant to approach this Court under Article 199 of the Constitution. ' Enlightening the scope and development of writ jurisdiction of High Court, it is debated that with the insertion of Article 223-A .Of Government of India (Amendment) Act 1954, High Court was empowered to issue writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them. This amendment was subsequently made a part of Constitution in 1978. These powers conferred on High Court to issue writ was made a part of Constitution of Pakistan in 1962 by virtue of Article 170 of Constitution of Pakistan. ' Discussing the modus operandi of issuing writ in fields provided for, it is argued that the term "service of Pakistan" in Article 260 of Constitution of Pakistan means any service, post or office in connection with the affairs of Federation. So is explained in Article 63 (k) of Constitution; that a person will be deemed to be a civil servant if he is in service of Pakistan; or of any statutory body or any body which is owned or controlled by Government. And as petitioner being employee of P.I.A. Was not a civil servant holding the office in connection with the affairs of Federation or of Province, so also P.I.A. Is not a body which, by virtue of Article 199 (5) of Constitution; can be called under the control of Federal of Provincial Government of Pakistan, therefore, this petition is not maintainable. Reliance was placed on the cases of (1) A. George v. Pakistan International Airlines Corporation PLD 1971 Lah. 748, (2) Pakistan International Airlines Corporation v. Nasir Jamal Malik and others 2001 SCMR 934, (3) Shahid Khalil v. Pakistan International Airlines Corporation, Karachi. 1971 SCMR 568, (4) Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531 and (5) The Secretary, East Pakistan Industrial, Development Corporation, Dacca v. Md. Serajul Haque 1970 SCMR 398. ' Moving to section 5 of PIAC Act, 1956, it is argued that it also designate the administration of corporation and its affairs with the Board of Directors having no statutory control of Federation, therefore, writ as asked for by the petitioner is not warranted under law. Mere authorizing power to Federal Government to issue direction to the corporation, does not make the authority to be an establishment being carried on by or under Federal or Provincial Government.
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' Same like issue came before a bench of three members of this Court and it was reported in National Shipping Corporation v. Sindh Labour Appellate Tribunal and 2 others 1975 PLC 1 that:-- "It is also significant to note that under subsection (3) of section 8 the Board is only to be guided by instructions from the Central Government and that too only on question of policy involving national interest. From these provisions it is obvious that the establishment of the petitioner Corporation is not being carried on under the authority of the Central Government but on its own authority notwithstanding the restrictions on its borrowing powers on the power vested in the Central Government under section 30 of the Ordinance for winding up. The least that the learned counsel had to show to us was that the petitioner corporation would have ceased to carry on its business in the absence of exercise of any authority by the Central 'Government. No doubt the Central Government has reserved for itself certain powers in the functioning of the Corporation but nonetheless the petitioner Corporation will continue to function under its own authority without the exercise of any authority by the Central Government. I am therefore, unable to agree with the learned Appellate Tribunal that the petitioner corporation is an establishment carried on under the authority of the Central Government." ' Case of Anoosha Shaigan v. Lahore University of Management Sciences PLD 2007 Lah. 568 has also been referred, wherein it has been observed that:-- "A "person" performing its functions in connection with the affairs of the Federation etc; the Federation etc. Should have a complete domination to do and undo whatever it decides in running the affairs of such a body and should have the exclusive, complete and final authority to take the vital policy decisions. Such control must be absolute, unfettered, unbridled and exclusive, besides, the State must also have the financial control of the Organization; the power of hiring and firing the employees thereof appointing and removing the management body meant for running the routine affairs of the Organization." ' In accordance with Honourable Supreme Court of Pakistan in Maqsood Ahmed Toor and 4 others v. Federation of Pakistan and others 2000 SCMR 928. ' Coming to the next aspect connected to it that P.I.A. Has no statutory rules and regulations of its own, therefore, too in absence of any rules and regulations relation in between parties is that of master and servant and on that account too this Court has no jurisdiction. ' With reference to the case of Lahore Development Authority and others v. Abdul Shafiq and others 1992 PLC 1214, it would be relevant to quote observations made in Karachi Development Authority and another v. Wali Ahmad Khan and others 1991 SCMR 2434 that:-- "The rule-making power for the purposes of giving effect to the provisions of the K.D.A. Order has been given to the Government under Article 14 thereof, whereas under Article 15 of the said Order, power has been vested in the K.D.A. To frame regulations, inter alia, in the matter of terms and conditions of service. This power is unbridled and unfettered by the statutory intervention of any outside authority. It is common ground that no rules have been framed by the Government under Article 14. Therefore in accordance with the dictum laid down in the case of Anwar Hussain PLD 1984 SC 194, as there is no clog on the freedom of the parties in the matter of terms of contract of service, ordinarily the rights of the employee will be governed by the law of master and servant." ' In the case of Iftikhar Mubeen Arshee v. Deputy Commissioner/ Chairman, Board of Governors, Kasur Public School, and others 2004 PLC (C.S.) 1232 it has been observed that "employee of a school not governed by any statutory rules of service, cannot enjoy the protection available to Government Servant." ' In reply to these legal questions, learned counsel for the petitioner has argued that by virtue of Chief Executive Order 6 of 2001 promulgated on 5-7-2001 services under Pakistan International Airlines Corporation were declared to be the services of Pakistan and every person holding a post under the corporation, not being a person who is on deputation to the Corporation, shall be
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deemed to be civil servant for the purpose of Service Tribunals Act, 1973. Therefore, petitioner in service of PIAC on 2-12-2001 will be deemed to be a civil servant. ' For proper adjudication of case in its true prescription it will be appropriate to reproduce section 2(a) of the Service Tribunal Act, 1973 as under:-- "2(a). "Civil Servants" means a person who is, or has been, a civil servant within the meaning of the Civil Servants Act, 1973 (LXXI of 1973)." and "2A. Service under certain corporation 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 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." ' Bare reading of the two provisions reflects the intention of legislator. As the intention of the legislator is manifested in the Statute itself. With the insertion of section 2-A in Service Tribunals Act, 1973 defining "civil servant" legislator by a subsequent amendment of Act, 1997 has added section 2A enlarging the area of "Civil Servant" to the employee of any authority, corporation, body or organization established by or under a Federal Law, or which is owned or controlled by Federal Government. ' Section 3 of PIAC, which bears the heading of "Establishment and Incorporation" enunciate the establishment of PIAC by Federal Government but still above referred sections cannot be taken in these terms. As when a statutory provision is open to more than one interpretation then the Court has to choose that interpretation which represents the true intention of legislator. According to Salmond:--- "The essence of the law lies in its spirit, not in its letters for the letter is significant only as being the external manifestation of the intention that underlies it." ' And that intention has been explained by Honourable Supreme Court of Pakistan in the case of United Bank Limited through President v. Shamim Ahmed Khan and 41 others PLD 1999 SC 990 that:- "The intention of the Legislature is quite manifest. The Legislature ,by introducing section 2-A, in the Act, only wanted to provide a right of appeal before the Service Tribunals to an aggrieved employee of a corporation, authority, body or organization established under a Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest. It is significant that while section 2-A, has been introduced 'in the Act which deals with the rights of appeal of civil servants, no corresponding amendment has been made in the Civil Servants Act, which determines the terms and conditions of service of civil servants. If the Legislature intended to confer on the employees of Corporation controlled by the Federal Government, the status of a civil servant, they could have provided so by introducing appropriate amendments in the relevant service laws governing the Federal Government employees." "We are, therefore, of the view that the declaration in section 2-A, of the Act to the effect that the service under an authority, corporation, body or organization established by or under a Federal Law or which is owned and controlled by the Federal Government or in which Federal Government has a controlling share or interest, shall be deemed to be in Service of Pakistan and the persons holding any post in such authority, corporation or body were deemed to be civil servants for the purpose of the Act, was meant only for the limited purpose of conferring a right on the aggrieved employees of such organization/ corporation to avail the remedy of appeal before the Service Tribunal." 'At the same time defining terms performing functions in connection with the affairs of the Federation or a Province, has been discussed by Honourable Supreme Court of Pakistan in the case of Salahuddin v. Frontier Sugar Mills PLD 1975 SC 244 that:-
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"Now, what is meant by the phrase "performing functions in connection with the affairs of the Federation or a Province." It is clear that the reference is to governmental or State functions, involving, in one form or another, an element of exercise of public power. The functions may be the traditional, police functions of the State, involving the maintenance of law and order and other regulatory activities; or they may comprise .Functions pertaining to economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these functions would be performed by persons or agencies directly appointed, controlled and financed by the State, i,e, by the Federal Government or a Provincial Government. However, in recent years, there has been manifest a growing tendency on the part of Governments to create statutory corporations for undertaking many such functions, particularly in the industrial and commercial spheres, in the belief that free from the inhibiting effect of red-tapism, these semi-autonomous bodies may prove more effective, flexible and also profitable. Inevitably, Government retains effective control over their functioning. By appointing the heads and other senior officer of these corporations, by regulating their composition and procedures by appropriate statutes, and finding funds for financing their activities." ' At the same time irrespective of fact that PIAC does not have statutory rules and regulations as observed in number of authorities referred by learned counsel for respondent, it cannot be ignored that in spite of holding that an employee of PIAC is not a civil servant in term of Muhammad Mubeen-us-Salam's case reported in PLD 2006 SC 602, his right of having a show-cause notice and hearing has been protected not only by a well known maxim of "Audi Alteram Partem" but as well by 'apex Courts in the cases of The Secretary, East Pakistan Industrial Development Corporation, Dacca v. Md. Serajul Hague (supra),Raziuddin v. Chairman, Pakistan International Airlines Corporation And 2 others (supra), Pakistan International Airlines Corporation v. Nasir Jamal Malik and others (supra) and Mrs. Anisa Rehman v. PIAC and another 1994 SCMR 2232. ' Whereas according to learned counsel for respondents, retrenchment is not a punishment and thus does not need any show-cause notice. In absence of statutory rules, as relationship in between petitioner and of respondent No,1 is that of master and servant therefore, on abolition of post due to reorganization of corporation, respondent No,2 is empowered to terminate his service. ' Article 3 of the very Chief Executive Order 6/2001 is very material in this reference, which speaks that if Corporation any time retires or removes service of any person,, he is entitled of having an opportunity of being heard. 'Part-II of Article 4 of this order further makes it clear that "any person aggrieved by an order made under Article 3 of this Order, may within 30 days of the order, prefer an appeal to the Service Tribunal established under the said Act and the provisions of this Act shall mutatis mutandis apply. Record is silent to the fact that this Chief Executive Order 6 of 2001 promulgated on 5-7-2001 was ever questioned and thus in terms of this Chief Executive Order issuance of show-cause notice is a mandatory requirement and it has been rightly observed in an unreported case of Honourable Supreme Court of Pakistan in Civil Petition No,1062 of 1998 that:-- "it is a well settled proposition of law that maxim of audi alteram partem is applicable to all judicial and non-judicial proceedings and has to be read into every statute, even if the right of hearing is not expressly provided therein." ' Conversely learned counsel for respondent has referred case of The Secretary, East Pakistan Industrial, Development Corporation, Dacca v. Md. Serajul Haque 1970 SCMR 398 observing that:-- "Moreover the terms and conditions of service of the respondents, it is admitted, were not governed by any statutory rules. The learned Judges were, therefore, right in holding that the guarantee under Article 177 of the Constitution of 1962 was not available to the respondents. Mr. S.M. Abbas, learned Advocate-on-Record, representing the respondents does not also contend that the provisions of the said Article were attracted in their cases. The only question, therefore, that calls for
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determination in these appeals is whether the respondents were entitled to an opportunity to show cause against the proposed termination of their services on the principle of natural justice. The order, dated the 2nd April 1964, terminating the services of the respondent Md. Serajul Haque was as follows:-- "The services of Md. Serajul Haque, Attendant, Accounts Department, E.P.I.D.C., Dacca is no longer required by the, Corporation. His services therefore, stand terminated with immediate effect. He is directed to collect his dues together with one month's pay in lieu of notice from the Accounts Department after depositing his liveries and other articles, if any, to the store and obtaining clearance certificates from the store-keeper. ' The order terminating the service of the other respondent. Md. Sekander Mia was exactly on the same terms. These orders do not all contain any charge or stigma against the respondents. By these orders, their services were simply terminated with an offer of one month's pay in lieu of notice on the sole ground that their services were no longer required…
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