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Petitioner: WALI MUHAMMAD VS Respondent: HONOURABLE CHIEF JUSTICE OF PAKISTAN ISLAMABAD
1994 P L C (C
1994 P L C (C.S.) 1717
[Federal Service Tribunal]
Present: Abdul Razzaq A. Thahim, Chairman, Muhammad Ismail and Noor Muhammad Magsi, Members
Kazi WALI MUHAMMAD
Versus
HONOURABLE CHIEF JUSTICE OF PAKISTAN, ISLAMABAD and another
Appeal No. 261(K) of 1993, decided on 10th July; 1994.
(a) Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982‑‑‑
‑‑‑‑Rr. 4 & 5‑‑‑Civil Servants Act (LXXI of .1973), Ss. 2(1)(b) & 26‑‑‑Service Tribunals Act (LXX of 1973), S. 4‑‑‑Constitution of Pakistan (1973), Arts. 208 & 260‑‑‑Employees of Supreme Court, whether civil servants within meaning of Civil Servants Act, 1973 and their entitlement to invoke jurisdiction of Service Tribunal for redress of their grievance‑‑‑Employees of Supreme Court are civil servants under Civil Servants Act, 1973‑‑‑Federal Service Tribunal has jurisdiction to take cognizance of their appeals under S. 4, Service Tribunals Act, 1973.
Abbas v. The Honourable Chief Justice through the Registrar, High Court of Sindh, Karachi and 2 others 1993 SCMR 715; Hadi Bux v. Government of Sindh and another PLD. 1994 SC 532; Government of the Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others PLD 1993 SC 375 and Inspector‑General of Police, Punjab, Lahore and others v. Mushtaq Ahmad Warraich and others PLD 1985 SC 159 ref.
(b) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 4‑‑‑Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982, Rr. 4 & 5‑‑‑Constitution of Pakistan (1973), Art. 212‑‑‑Employees of Supreme Court‑‑‑Forum for redress of such employees' grievance‑‑‑Employees of Supreme Court being civil servants were entitled to bring their grievance before Federal Service Tribunal, especially when there was no provision for appeal in the Rules (Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982 and Order of removal in question, had been passed by Chief Justice and review had also been dismissed by the Chief Justice himself, when under Art. 212 the Constitution, remedy to civil servant by way of appeal has been provided under S.4, Service Tribunals Act, 1973.
PLD 1985 FSC 365 rel.
Abbas v. The Honourable Chief Justice through the Registrar, High Court of Sindh, Karachi and 2 others 1993 SCMR 715; PLD 1993 SC 375 and Hadi Bux v. Government of Sindh and another PLD 1994 SC 532 ref
(c) Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982‑‑‑
‑‑‑‑R. 4‑‑‑Show‑cause notice to employee‑‑‑Validity‑‑‑Employee being an officer of BPS‑18, only Chief Justice was competent to issue show‑cause notice and 'initiate disciplinary proceedings against him‑‑‑Show‑cause notice was issued to such employee by the Registrar, Supreme Court who was incompetent Authority in respect of Officer of BPS‑18‑‑‑Notice in question also nowhere stated that Chief Justice had authorised the Registrar for issuing such show‑cause notice‑‑‑Show‑cause notice issued by the Registrar was thus, a nullity in the eyes of law‑‑‑Proceedings against employee having been initiated by an incompetent Authority were thus, without jurisdiction and all actions taken in pursuance of such notice had no legal force.
(d) Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982‑‑‑
‑‑‑‑Rr. 5 & 6‑‑‑Major penalty imposed upon employee by ordering his removal from service without holding regular enquiry against him by the Chief Justice‑‑‑Employee's review application was dismissed by Chief Justice himself (competent Authority) with one sentence without assigning any reason‑‑?Universally accepted principle of law that one could not be complainant and a Judge in his own cause was not adhered to in employee's case‑‑‑Employee's case involved disputed questions of fact, therefore, regular‑enquiry against him should have been conducted‑‑‑Where there were disputed facts, civil servant could not be denied a regular inquiry‑‑‑Order of removal from service passed against employee thus, suffered from legal infirmities and therefore, could not sustain‑‑‑Employee was ordered to be reinstated in service.
Aslam Warraich v. Secretary, Planning Division 1991 SCMR 2330 and Alamgir v. Divisional Forest Officer, Multan and others 1993 SCMR 603 ref.
Syed Fasahat Hussain Rizvi for Appellant.
Nemo for Respondents.
Date of hearing: 1st June, 1994.
JUDGMENT
ABDUL RAZZAQ A. THAHIM (CHAIRMAN)‑‑‑The facts of this appeal are that Mr. Kazi Wali Muhammad was appointed as Research and Reference Officer (BPS‑18) by direct recruitment on 26th July, 1984 in the Supreme Court of Pakistan. Certain adverse remarks were recorded in his ACR for the year ending 31st December, 1987 and the overall assessment was `Below Average' in the following columns:
PART IV: ?PROFICIENCY IN JOB'
3: Analytical ability.
4. Supervision and Guidance.
5. Quality of Work.
ASSESSMENT OF PERFORMANCE:
"He has yet to pick up what is required of him:"
The above remarks were conveyed to the appellant by the Registrar, vide D.O. Letter dated March 9, 1988. The appellant made a representation against these remarks on 26th March, 1988, which was not responded. In the meanwhile, disciplinary proceedings were. initiated against the appellant by serving on him show‑cause notice under rule 5 of the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, '1982, on June 21,1993 and it reads as under:‑‑
"Whereas you, Kazi Wali Muhammad, were appointed to officiate as Research and Reference Officer with effect from 26‑7‑1984;
And whereas since then your work and conduct have not been found up to the mark. You were posted with several Hon'ble Judges but your performance was never found satisfactory. Several times you were transferred from Karachi to Rawalpindi, Rawalpindi to Karachi, Rawalpindi to Lahore and Lahore to Karachi;
And whereas, adverse remarks were recorded in your reports, against which you made representations and were rejected after due consideration;
And whereas you were found guilty of preparing of forged bills in your TA. claim;
And whereas, you had been trying to go to some other departments and your 9 applications have so far been forwarded;
And whereas many times you proceeded on long leave;
And whereas since your posting in Karachi from April, 1991 you are doing practically no work there and dissatisfaction has been expressed about your work and conduct;
In view of your bad record of service, inefficiency and proved misconduct, it prima facie appear that you are not fit to be retained in this Court;
Notice is, therefore, hereby given to you under rule 5 of the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982 to show cause as to why you should not be removed from service immediately.
Your reply should reach the undersigned within seven days from the date of receipt of this notice."
The appellant submitted his reply dated 28th June, 1993 to the show‑cause notice and finally the competent authority, the Hon'ble Chief Justice of Pakistan, by order dated 1st September, 1993, removed him from service, under Rule 4 of the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982. The appellant made a review petition dated 8th September, 1993 to the Hon'ble Chief Justice, Supreme Court of Pakistan, under Rule 11 of the Rules but the same was dismissed by order dated 9‑11‑1993 which reads as under:
"Review is without merit. Dismissed."
The appellant filed appeal before the President of Pakistan on 7th November, 1993. He then preferred this appeal before this Tribunal under section 4 of the Service Tribunals Act, 1973 on 13‑12‑1993.
2. We have heard Mr. Syed Fasahat Hussain Rizvi, the learned counsel for the appellant. His contention was that this Tribunal has jurisdiction to entertain appeals against any order passed against the employees of the Supreme Court as a civil servant within the meaning of section 2(1)(6) of 'Civil Servants Act, 1973. It is argued that there is no provision of appeal in the Supreme Court Rules, therefore, employees have no other alternate remedy but to file appeals before this Tribunal. In support of his submissions, the learned counsel has referred to cases reported in 1993 SCMR 715 and PLD 1993 SC 375. It is also argued that the appellant being a civil servant within the meaning of section 2(1)(6) of the Civil Servants Act, 197'3, regular inquiry into the allegations against hum was mandatory which has not been done, therefore, the order is liable to be set aside.
3. Mr. Niaz Ahmed Khan, the learned Standing Counsel for the Government, who was incidentally present in other cases, was asked to assist us in this matter, otherwise there was no appearance from respondents. He submitted that the Supreme Court Rules of 1982 have been framed under Article 208 of the Constitution, with the approval of the President and the Supreme Court being an independent organisation, the Tribunal has no jurisdiction to entertain this appeal. In the comments, the Registrar of the Supreme Court has referred to a judgment of this Tribunal in Appeal No.107(R)/88 (Muhammad Matloob v. Registrar, Supreme Court of Pakistan, Rawalpindi) wherein it has been held that the employees of the Supreme Court are not civil servants within the meaning of Civil Servants Act, 1973, therefore, they cannot invoke the jurisdiction of this Tribunal. On merits, it has been stated that Kazi Wali Muhammad was removed from the service of Supreme Court in accordance with the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982, i.e. a show‑cause notice was given to him, and was also granted a lengthy personal hearing by the Hon'ble Chief Justice of Pakistan and a detailed order was recorded by his Lordship. On the review petition of the appellant, as provided in rule 11 of the Rules, the Hon'ble Chief Justice was pleased to pass the following order on 9‑11‑1993:
"Review is without merit. Dismissed."
4. Before we come to the merits of the case, we propose to deal with the legal objection about the jurisdiction of the Tribunal. For the sake of convenience, we would like to reproduce Article 208 of the Constitution hereunder:
"208. Officers and Servants of Court .‑‑‑The Supreme Court (and the Federal Shariat Court) with the approval of the President and a High Court, with the approval of the Governor concerned, may make rules providing for the appointment by the Court of officers and servants of the Court and for their terms and conditions of employment."
Under this Article, the superior Courts, i.e. the Supreme Court and the Federal Shariat Court, with the approval of the President and the High Courts with the approval of the Governors concerned, respectively, can make rules providing the terms and conditions of their employees. In pursuance of this Article, the superior Courts framed rules for their employees, with the approval of the President or the Governor, as the case was. The moot point before us is whether the rules framed under this Article regulating the terms and conditions of their employees, are amenable to jurisdiction of this Tribunal. It is relevant to mention here that under Article 212 of the Constitution, the civil servants as defined under section 2(1)(6) of the Civil Servants Act, 1973, have got the only remedy to come to the Service Tribunal against an order affecting their terms and condition of service, which also includes punishments imposed consequent to the departmental disciplinary proceedings taken against them. The first case relied upon by the appellant is that of Abbas v. The Honourable Chief Justice through the Registrar, High Court of Sindh, Karachi and 2 others (1993 SCMR 715). The appellant in this case challenged the order of the Honourable Chief Justice dated 29‑6‑1976 whereby he was reverted from the post of Superintendent to that of Assistant. The appellate authority, the Chief Justice, under Schedule‑II of the Rules nominated two Judges to examine the case. The Hon'ble Judges after considering the merits of the case came to the conclusion that injustice was done to appellant Abbas and strongly recommended that if it is possible his grievance may be redressed or in the alternate as and when question of next promotion arises, the case of the appellant be considered. The Hon'ble Chief Justice, Sindh High Court accepted the recommendations of two Hon'ble Judges to some extent and appellant was promoted as Officiating Superintendent in a leave vacancy and seniority was not allowed. However, the appellant was not satisfied and as such he approached the Sindh Service Tribunal on 28‑3‑1988 claiming seniority over one Mr. Sultan Nasir, Superintendent. The appeal was not entertained by the Sindh Service Tribunal on legal grounds. The appellant challenged the decision of the Tribunal before the Supreme Court by filing Civil Appeal No. 570‑K of 1990. Their Lordships of the Supreme Court in paragraphs 19 and 20 of the Judgment observed as under:‑‑
"19. In recording the finding that the order challenged by the appellant did not relate to the terms and conditions of service arising from the Act and the rules framed thereunder, section 26 of the Act was ignored. Section 26 of the Act reads as hereunder:‑‑
"26. Rules.‑‑(1) Government or any person authorised by it in this behalf, may make such rules as appear to be necessary or expedient for carrying out the purpose of this Act.
(2) Any rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act."
The Rules under which the orders were passed related to the terms and conditions of the service of the appellant. The High Court had a statutory authority to frame those rules. Article 241 of the Constitution also made a provision for continuance and applicability of such rules in the following words:‑‑
"241. Existing Rules, etc. to continue.‑‑‑Until the appropriate Legislature makes a law under Article 240, all rules ‑and orders in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution, continue in force and may be amended from time to time by the Federal Government or, as the case may be, the Provincial Government.
20. Reading section 26 of the Act and Article 241 of the Constitution together, the High Court Establishment Rules would be deemed to be rules framed under the Act and for that reason any violation of it justice able before the Service Tribunal."
Consequently the appeal was accepted and the order of the Sindh Service Tribunal declaring appeal to be incompetent was set aside and the case was remanded to the Tribunal having jurisdiction for decision on merits.
5. The other case relied upon by the appellant is that of Government of the Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others (Civil Appeal No. 78 of 1991) (PLD 1973 SC 375); Province of Balochistan v. Javed Iqbal, Registrar and 17 others (Civil Petition for Leave to Appeal No. 52 of 1992) and Government of N.‑W.F.P. v. Bashir Muhammad and 10 others (Civil Petition for Leave to Appeal No. 26‑P of 1992). The case is reported in PLD 1993 SC 375. The point for consideration in this case was whether the employees of the High Court s would fall in the definition of `Service of Pakistan' and the establishment of the High Court was entitled to Secretariat Allowance, and it was held that the employees of the High Courts are civil servants. Paragraph 13 of the judgment deals with the particular question and is reproduced below:‑‑
"13. In the Constitution of Pakistan, 1973 "service of Pakistan" has been defined in Article 260, as hereunder:‑‑
"Service of Pakistan means any service, post or office in connection with the affairs of the Federation or a Province, and including an All? Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act or Majlis‑e-?Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney‑General, Advocate‑General, Parliamentary Secretary or Chairman or Member of a Law Commission, Chairman or Member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Advisor to the Prime Minister, Special Assistant to the Chief Minister, Advisor to a Chief Minister or Member of a House or a Provincial Assembly.
This definition of "service of Pakistan" itself divides those included into it into two broad categories i.e., one of those employed in connection with the affairs of the Federation and the other of those employed in connection with the affairs of a Province. Applying this definition, the employees of the High Court establishment would fall within the definition of service of Pakistan and have been taken to be employed in connection with the affairs of a province."
Similar question of law also came up for adjudication before the Hon'ble Supreme Court in the case of Hadi Bux v. Government of Sindh and another (PLD 1994 SC 532). In this case appellant Mr. Hadi Bux was appointed as Additional Secretary in the Provincial Assembly of Sindh on the recommendations of the Selection Committee. On completion of probationary period, he was confirmed in that post but his services were terminated by the Speaker of the Assembly. He brought his grievance before the Sindh Service Tribunal but his appeal was dismissed on the ground that he was neither a member of the civil service of the Province nor he was holding any civil post in connection with the affairs of the Province, therefore, appeal before the Tribunal was not competent. The appellant filed Civil Appeal No. 50 of 1993 before the Supreme Court, decided on 22‑2‑1994. The Hon'ble Supreme Court after examining the provisions of the Constitution, the Sindh Civil Servants Act, 1973 and the Sindh Assembly Secretariat (Recruitment) Rules, 1974 and considering judgments reported in 1993 SCMR 715 (Abbas v. The Honourable Chief Justice through the Registrar, High Court of Sindh, Karachi and 2 others) and PLD 1993 SC 375 (Government of Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others), gave an authoritative judgment holding that the employees of the Provincial Assembly of Sindh are civil servants and amenable to jurisdiction of the Sindh Service Tribunal. The relevant paragraphs 5 to 9 are reproduced here in below in extenso:‑‑
"5. Before dealing with the above contentions, it maybe pertinent to refer to the relevant provisions of the Constitution. It may be observed that Article 127 of the Constitution inter alia provides that Articles 87 and 88 shall apply to and in relation to a Provincial Assembly or a committee or member thereof or the Provincial Government. It also provides that any reference in those provisions to Majlis‑e‑Shoora (Parliament), a House or the National Assembly shall be read as a reference to the Provincial Assembly. It may further be observed that clause (1) of Article 87 envisages that each House shall have a separate Secretariat but it has also proviso to the effect that both the Houses may have common posts. Whereas clause (2) of the above Article provides that the Parliament may by law regulate the recruitment and conditions of service of persons appointed to the Secretariat staff of either House. It may also be pointed out that clause (3) of the above Article empowers the Speaker or as the case may be the Chairman with the approval of the President, may make rules regulating the recruitment and conditions of service of persons appointed to the secretariat staff of the National Assembly or the Senate until provision is made by the Parliament under above clause (2) of Article 87."
6. In the present case, the Speaker of the Assembly in exercise of the power conferred by the above clause (3) of the Article 87 read with Article 127 of the Constitution framed Sindh Assembly Secretariat (Recruitment) Rules, 1974, hereinafter referred to as the Rules. The Rules provide as to the strength of the Secretariat Staff, method of recruitment which includes recruitment by promotion, recruitment by transfer and appointment by direct recruitment. The same also provide qualifications for appointment, appointing authority, probationary period etc. However, Rule 13 of the Rules provides as follows:‑‑
13. Matters not specifically provided for.‑‑‑In respect of all other matters including recruitment policy, eligibility for appointment to a post and the rank, status, seniority, prospects of promotion, privileges and the conduct and discipline of the employees for which no provision has been made in these rules the employees shall be governed by such rules and orders as are for the time being in force and applicable to the employees holding corresponding posts in the provincial secretariat subject to such modifications variations or exceptions, if any, not amounting to amendments, in such rules and orders as the Speaker from time to time by order specify'."
7. It may be appropriate at this juncture to refer to Article 240, the definition of the term "service of Pakistan" given in Article 260 of the Constitution and section 3 of the Sindh Civil Servants Act, which read as follows:‑‑
Section 240 of the Constitution:
"240. Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined:‑‑
(a) In the case of the services of the Federation, posts in connection with the affairs of the Federation and All‑Pakistan Services, by or under Act of Majlis‑e‑Shoora (Parliament); and
(b) In the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly."
Definition of "Service of Pakistan" given in Article 260:
"Service of Pakistan" means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All‑Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majlis?e‑Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney‑General, Advocate‑General, Parliamentary Secretary or Chairman or member of a Law Commission, Chairman or Member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Advisor to the Prime Minister, Special Assistant to a Chief Minister, Advisor to a Chief Minister or Member of a House or a Provincial Assembly."
Section 3 of the Sindh Civil Servants Act 1973:
"Terms and conditions.‑‑‑The terms and conditions of service of a civil servant shall be as provided in this act and the rules."
8. It may be noticed that under above Article 240, it has been provided that subject to Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined in case of the services of the Federation ‑and posts in connection with the affairs of the Federation and All‑Pakistan Services by or under the Act of the Parliament, whereas in the case of the services of a Province and posts in connection with the affairs of a Province by or under Act of the Provincial Assembly. It also provides that "service of Pakistan" includes post or office inter alia of a Provincial Assembly but does not include Speaker, Deputy Speaker etc.
It may be noticed that section 3 of the Sindh Civil Servants Act lays down that the terms and conditions of service of a civil servant shall be as provided in the said Act and the rules.
9. The reasoning which found favour with the Tribunal seems to be that since the recruitment of the appellant in service of the Assembly has not been made under any Act of the Assembly and as the terms and conditions of his service are not determined by the above Act or the rules framed thereunder as required under Article 240 of the Constitution, the appellant cannot be treated a member of a civil service of the Province or a person who holds a civil post in connection with the affairs of the Province. The above reasoning does not seem to be relevant for the purpose of present controversy. However, in our view, in order to determine, whether the Tribunal…
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