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Petitioner: Ch. MUHAMMAD ASLAM GHUMAN, ADVOCATE SUPREME COURT VS Respondent: FEDERATION OF PAKISTAN through Secretary, Cabinet Division, Government of Pakistan, IslamabadHonorable Justice Sardar Muhammad RazaAbdul Rahman Siddiqui,Hafiz S.A. Rehman and Sh. Rizwan Nawaz
2015 P L C (C.S.) 179
[Federal Shariat Court]
Before Sardar Muhammad Raza, C.J., Allama Dr. Fida Muhammad Khan, Sheikh Najam-ul-Hasan, Riaz Ahmed Khan and Zahoor Ahmed Shahwani, JJ
Ch. MUHAMMAD ASLAM GHUMAN, ADVOCATE SUPREME COURT
Versus
FEDERATION OF PAKISTAN through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 8 others
Shariat Petition No.3/I of 2011, decided on 17th November, 2014.
Securities and Exchange Commission of Pakistan Act (XLII of 1997)---
----S. 19(2)---Securities and Exchange Commission of Pakistan Service Rules, 2007, Ch.11, Cl. 3(1)---Constitution of Pakistan, Art.203-D---Shariat petition---Employee of the Securities and Exchange Commission of Pakistan ("Commission")---Notice for termination of service without assigning any reason---Repugnancy to Injunctions of Islam---Aajir and Ajeer', principle of---Scope---Petitioner contended that under S.19(2) of Securities and Exchange Commission of Pakistan Act, 1997, a Commissioner or Member of the Commission could not be removed without an inquiry, and reasonable opportunity of being heard, but under R.3(1) of Chap.11 of Securities and Exchange Commission of Pakistan Service Rules, 2007, services of employees of the Commission could be terminated by notice without assigning any reasons; that rights of Members or the Commissioners were discriminatory to the rights of general employees, thus said Rule was not only violative of the principles of audi-alteram partem but was based on the principle 'master and servant', which was a term derogatory to the principles laid down by Islam---Validity---Principle of "master and servant" was a condition of service which could also be termed as 'employer and employee' or in others words 'Aajir and Ajeer'---State could make laws in accordance with its needs defining the interaction between 'Aajir and Ajeer'; employer and employee' and 'master and servant'; whatever terminology the law may import---Rule 3(1) of Chap.11 of the Securities and Exchange Commission of Pakistan Service Rules, 2007, had already been declared as ultra vires the Constitution and inter-alia the Securities and Exchange Commission of Pakistan Act, 1997, by the Supreme Court in the case of Muhammad Ashraf Tiwana and others v. Pakistan and others (2013 SCMR 1159 at page 1172)---Said judgment of the Supreme Court, therefore, had removed the alleged discrepancy between S.19(2) of Securities and Exchange Commission of Pakistan Act, 1997 and R.3(1) of Chap.11 of the Securities and Exchange Commission of Pakistan Service Rules, 2007---Present Shariat petition had thus become infructuous---Section 19(2) of the Securities and Exchange Commission of Pakistan Act, 1997, however, contained nothing derogatory to the Injunctions of Islam because it expressly contained the provision of enquiry by impartial person or persons, before taking action against a Member or Commissioner---Shariat petition was dismissed accordingly.
Pakistan and others v. The Public at Large and others PLD 1987 SC 304 ref.
Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159 fol.
Abdul Rahman Siddiqui, Advocate for Petitioner.
Raja Ahsan Mehmood Satti, Advocate for Federal Government.
Mian Shujahat Shah, Asstt. A.-G. Khyber Pakhtunkhwa for Province of Khyber Pakhtunkhwa.
Barrister Qasim Ali Chohan, Asstt. A.-G., Punjab for Province of Punjab.
Farid Dogar, Asstt. A.-G. Balochistan for Province of Balochistan.
Hafiz S.A. Rehman and Sh. Rizwan Nawaz, Advocates for Respondent No.9.
Date of hearing: 17th November, 2014.
JUDGMENT
SARDAR MUHAMMAD RAZA, C.J.--- Ch. Muhammad Aslam Ghuman, through this Shariat Petition has called into question section 19(2) of the Securities and Exchange Commission of Pakistan, 1997 and Rule 3(1), Chapter 11 of Securities and Exchange Commission of Pakistan Service Regulation; as violative of the principle of audi-alteram partem and hence repugnant to the Injunctions of Islam.
2. For sake of convenience both the sections as well as the rule challenged are reproduced below:---
Securities and Exchange Commission of Pakistan Act, 1997:---
"19.--- (1) Subject to subsection (2), appointment of any Member or Commissioner may, at any time, be revoked and he may be removed from his office by order of the Federal Government if it is found that such person stands disqualified under section 18.
(2) Unless a disqualification referred to in section 18 arises from the judgment or order of a court or tribunal of competent jurisdiction under any relevant provision of applicable law, a Member or Commissioner shall not be removed or his appointment revoked without any enquiry by an impartial person or body of persons constituted in accordance with such procedure, as may be prescribed by rules made by the Federal Government, and such rules shall provide for a reasonable opportunity for him to be heard in his defence."
Rule 3(1) Chapter 11 of Securities and Exchange Commission of Pakistan Service Regulation:---
Notice for Termination of Service without assigning any reason.--- (1) After confirmation, the appointment/services can be terminated by either party without assigning any reason thereto as mentioned below:
(a) If an employee invokes the termination clause, he will have to tender one month's notice period or one month's gross salary in lieu of notice period:
The appointing authority may relax the condition of one month notice in special circumstances.
(b) If the Commission invokes the termination clause, it will have to tender three month's notice period or three months' gross salary in lieu of the notice period.
Provided further that no resignation shall become effective during the pendency of any disciplinary proceedings against the employee until and unless the same is approved by the Chairman"
3. Mr. Abdul Rahman Siddiqui, learned counsel for the petitioner, learned counsel on behalf of the Federal and Provincial Governments and Hafiz S.A. Rahman, learned counsel for Securities and Exchange Commission of Pakistan heard at length. It was reiterated by the learned counsel for the petitioner that the rights of Members or the Commissioners defined by section 19 of the Act are discriminatory to the rights of general employees as defined in rule 3 of the Regulation above. It was also asserted that rule 3 is based on the principle 'Master and Servant', which again is a term derogatory to the principles laid down by Islam.
4. So far as the principle of Master and Servant is concerned, no doubt it is frequently used in service matters and does involve legal connotations yet it is a condition of service which also can be termed as 'employer and employee' or in others words `Aajir and Ajeer'. This matter had come for consideration before the Shariat Appellate Bench of the Hon'ble Supreme Court in 'Pakistan and others v. The Public at Large and others (PLD 1987 SC 304), where at page 381 it was held by Muhammad Taqqi Usmani, J that;--
From the above observations it appears, that in given circumstances and the requirements of any particular time, the State can make laws in accordance with their needs defining the interaction between `Aajir and Ajeer'; Employer and Employee' and 'Master and Servant'; whatever terminology the law may import.
5. That being a mere academic discussion, the question before this Court stands already resolved by the august Supreme Court of Pakistan in "Muhammad Ashraf Tiwana and others v. Pakistan and others (2013 SCMR 1159 at page 1172), a verdict rendered after the institution of this petition, whereby rule 3(1) of Chapter 11 of the SECP Service Rules has already been declared as ultra vires the Constitution and inter-alia, the Act.
6. The above said judgment of the Hon'ble Supreme Court, therefore, has removed the alleged discrepancy between section 19(2) SECP Act, 1997 and rule 3(1) Chapter 11 of the Regulation above. So far as section 19(2) of the Act is concerned, it contains nothing derogatory to the injunctions of Islam because it expressly contains the provision of enquiry by impartial person or persons, before taking action against a member or commissioner.
7. Consequently we hold that for the reasons mentioned above, and the latest judgment of the Hon'ble Supreme Court of Pakistan, the instant Shariat Petition has become infructuous and is hereby dismissed accordingly.
MWA/23/FSC Petition dismissed.