Full Judgment Text & Judicial Ruling

2020 P L C (C.S.) 1449 [Sindh High Court] Before Aziz-ur-Rehman and Adnan-ul-Karim Memon, JJ MS. SHAMIM NAQVI Versus PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY, through Secretary and 4 others C.P. No.D-7319 of 2018, decided on 30th May, 2019. (a) Master and servant--- ----Contract employee---Absence from duty---Termination from service---Non-statutory rules of service---Effect---Contention of employee was that she had been dismissed from service without a regular inquiry---Validity---Petitioner was an employee of a statutory authority having non-statutory rules of service---Employee could not invoke the jurisdiction of Service Tribunal and only remedy for her was a civil suit before Civil Court---Disciplinary proceedings had been initiated against the petitioner and she had been dismissed from service---Disciplinary matters did fall within the expression "terms and conditions of service"---Service rules of employee were non-statutory which could not be thrashed out in constitutional jurisdiction of High Court---Contractual terms and conditions of service of employee were not enforceable through constitutional petition---Relationship of master and servant did exist between the employee and Employer Authority in the present case---Disciplinary proceedings had not been initiated against the petitioner under any statutory rules of service---No vested right of employee had been infringed in the present case---Employer-Authority had prerogative to place its employees in accordance with its service rules and regulations---Constitutional petition was dismissed, in circumstances.

Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046; Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159; Messrs Airport Support Service v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Lt. Col. Sayed Jawaid Ahmed v. Pakistan Defence Officers Housing Authority and others 2009 PLC (C.S.) 753 and Government of Pakistan v. Farheen Rashid 2011 SCMR 1 ref. Pakistan Defence Housing Authority v. Mrs. Itrat Sajjad Khan and others 2017 SCMR 2010 distinguished. Defence Housing Authority v. Lt. Col Syed Jawaid 2013 SCMR 1707; Muhammad Rafi and others v. Federation of Pakistan and others 2016 SCMR 2146; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Shafique Ahmed Khan and others v. NESCOM through Chairman Islamabad and others PLD 2016 SC 377; Muhammad Zaman and others v. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad 2017 SCMR 571; Muhammad Mobeen-ul-Islam v. Federation of Pakistan and others PLD 2006 SC 602; Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681; Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046; Principal Cadet College, Kohat and another v. Mohammad Shoab Qureshi PLD 1984 SC 170 and Syed Nazir Gillani v. Pakistan Red Crescent Society 2014 SCMR 982 rel. (b) Constitution of Pakistan--- ---Art. 199---Constitutional petition against employer, a statutory body, but having no statutory Rules was not maintainable. Ashraf Hussain Rizvi for Petitioner. Faizan Hussain Memon for Respondents Nos.1 to 4. Muhammad Nishat Warsi, D.A.G. Dates of hearing: 25th April, 8th, 14th, 22nd and 27th May, 2019. JUDGMENT ADNAN-UL-KARIM MEMON, J.----Through the instant Petition, the Petitioner has called in question her Termination from Service Letter dated 17.08.2018 issued by the Respondent-DHA ["Respondent-Authority"]. Per Petitioner, the same is issued without holding proper Regular Inquiry proceedings and lawful justification. 2. As per record, the Petitioner was initially appointed as Teacher in BPS-14 in the Respondent-Authority's Model High School for Boys and Girls, Khayaban-e-Hilal, Phase-VII, DHA Karachi on probation for a period of one year vide office Order dated 03.10.1993, however during her service tenure; she was proceeded under Section 3(a)(2)(c) Chapter IV of DHA Service Rules 2008 for her willful absence from duty without leave, with effect from 27th March, 2018 to 15th April, 2018 [20 days] and 16th April, 2018 to 29th April, 2018 [14 days]. As per record, Petitioner submitted her reply to the aforesaid charges on 23.7.2018, which was later on found unsatisfactory, resultantly her case was recommended for disciplinary action for overstaying leave from 27.03.2018 to 15.4.2018 vide letter dated 20.2.2018 and finally, her services were terminated vide Impugned Order dated 17.08.2018. Petitioner being aggrieved by and dissatisfied with the Termination Order dated 17.08.2018, filed the instant petition on 15.10.2018, on the ground that the Termination Order dated 17.08.2018 issued by the Respondent-Authority was in gross violation of various Articles of the Constitution of the Islamic Republic of Pakistan, 1973; that the Respondent-Authority had wrongly terminated her services under DHA Service Rules 2008; that such termination of the Petitioner from service was not permissible under DHA Service Rules, without holding an independent inquiry; that the action on the part of the Respondent-Authority was arbitrary and whimsical, which negates the Principle of Natural Justice and provisions of the Constitution, thus nullity in the eyes of law; that the Petitioner was being victimized by the officials of the Respondent-Authority on the purported ground of her willful absence from duty; that the Petitioner had been condemned unheard on the issue involved in the matter; that the Petitioner had pleaded her justification on the aforesaid charges before the Competent Authority of DHA but the Respondent-Authority terminated her service without reasonable cause; that she was at the verge of retirement, but her services in the meanwhile were terminated, which was unjustified action on the part of Respondent-Authority. She lastly prayed for allowing the instant Petition. 3. Conversely, Mr. Faizan Hussain Memon, learned counsel for the Respondent-Authority has raised the question of maintainability of the instant Petition and argued that the Respondent-Authority has not acted malafidely nor violated any provisions of law or prescribed service Rules in discharging their duties; that the Petitioner was given full opportunity to plead her case; that the aforesaid assertion of the Petitioner is misleading in order to achieve her favorable result from this Court, which disentitles her to the relief claimed for. Per learned Counsel the plea of the Petitioner that she was not heard and no Inquiry was conducted is against the facts available on record. He further stated that the Respondent-Authority has not violated any Provision of law as demonstrated by the Petitioner, therefore, the Petitioner is not entitled to be reinstated in service and she was dismissed from service vide Impugned order dated 17.08.2018, after complying all requisite formalities as provided under DHA Service Rules-2008, which are non-statutory in its nature; that after providing ample opportunities to the Petitioner to defend her case, but to no avail, the Counsel concluded on the aforesaid points. In support of his contention, he heavily relied upon the comments filed on behalf the Respondent-Authority and documents attached therewith. 4. Further, on the point of maintainability, he argued that the Respondent-Authority is Body Corporate, which is controlled and regulated by the President's Order No.7 of 1980, having no statutory Rules of service. He further argued that by virtue of non-statutory rules of the Respondent Authority, employment of the Petitioner with the answering Respondent-Authority was purely contractual; hence, the Petitioner was governed by the principle of `Master and Servant`; that no action and/or inaction on the part of the Respondent-Authority impugned in this Petition has been taken in disregard of any of the procedural requirements and there is no violation of principle of Natural Justice; therefore, the Constitutional Jurisdiction of this Court under Article 199 of the Constitution, 1973 cannot be invoked and as such the interference by invoking writ jurisdiction of this Court cannot be asked for as prayed by the Petitioner. Learned counsel for the Respondent-Authority in support of his contention has relied upon the case of Pakistan Defence Housing Authority v. Mrs. Itrat Sajjad Khan and others [2017 SCMR 2010] and unreported Judgment dated 13.5.2019 passed in the cases of Major Retd. Syed Muhammad Tanveer Abbas v. Federation of Pakistan through its Secretary, Ministry of Interior and others and connected Appeal (in Civil Appeals Nos.26-K and 27-K of 2018) and prayed for dismissal of the captioned petition. 5. On the other hand, Mr. Ashraf Hussain Rizvi, learned Counsel for the Petitioner, strongly refuted the claim of the Respondent-Authority and argued that, first of all the instant petition is maintainable on the premise that the present Petition relates to the service of the Petitioner, who admittedly, is not a Civil Servant as defined under Section 2(1)(b) of Civil Servants Act, 1973, but an employee of a Statutory Authority, thus cannot invoke the jurisdiction of the Service Tribunal, the only remedy if any, lies by way of filling the Constitutional Petition, in view of the decision rendered by Full Bench of this Court in Muhammad Dawood and others v. Federation of Pakistan and others [2007 PLC (C.S.) 1046], The Honorable Supreme Court in the case of Defence Housing Authority v. Lt. Col Syed Jawaid [2013 SCMR 1707] and Muhammad Rafi and others v. Federation of Pakistan and others [2016 SCMR 2146]. He next argued that the employees of a Statutory Authorities, who were proceeded under Disciplinary Rules, can invoke the jurisdiction of this Court under Article 199 of the Constitution. In support of his contention, he heavily relied upon the decision given by the Hon'ble Supreme Court in the case of DHA (supra) and argued that the right of Appeal is a substantive right as provided under the law and it was a statutory intervention, thus Constitutional Petition filed by the Petitioner, seeking enforcement of her fundamental right is maintainable. He next added that under the aforesaid statutory intervention, Petitioner had to be dealt with under the said law and not under their disciplinary service Rules of the Respondent-Authority. He is supported by the decisions of the Honorable Supreme Court in the case of Muhammad Ashraf Tiwana and others v. Pakistan and others [2013 SCMR 1159], Messrs Airport Support Service v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others [1998 SCMR 2268]. He lastly prayed for allowing the instant Petition. 6. At this juncture, we asked from the learned counsel for the Petitioner, as to how he maintains the instant petition, in view of the latest decision rendered by the Hon'ble Supreme Court in an unreported case of Major Retd. Syed Muhammad Tanveer Abbas and other connected appeals v. Federation of Pakistan through its Secretary, Ministry of Interior and others (in Civil Appeals Nos.26-K and 27-K of 2018) as cited supra, whereby the Appeals of the employees of the NADRA were dismissed by the Hon'ble Supreme Court vide Judgment dated 13.5.2019 on the premise that they have no statutory rules of service, therefore, Constitutional Petition under Article 199 of the Constitution is not maintainable. In reply, he relied upon the decision of this Court in the case of Lt. Col. Sayed Jawaid Ahmed v. Pakistan Defence Officers Housing Authority and others [2009 PLC (C.S.) 753], and sought time to go through the aforesaid decision rendered by the Honorable Supreme Court and prepare his brief to assist this Court on the issue of maintainability of the instant Petition. 7. Today, the learned Counsel argued that the Petitioner is a regular employee and not contractual employee of DHA, therefore, the aforesaid decision is distinguishable from the facts obtaining in the present petition; that the present matter may be decided on the basis of Judgment passed by the Hon'ble Supreme Court in the case of Pakistan Defense Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others [2017 SCMR 2010]. He next argued that the impugned termination order is in gross violation of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. Further that the action on the part of Respondent-Authority was arbitrary and capricious thus untenable in law; that the Honorable Supreme Court in the case of Mrs. Itrat Sajjad Khan's supra declared Rule 8(b)(1) of the Service Rules for the Employees of the Pakistan Defence Officers Housing Authority-2008, which provides dispensation of service of an employee by giving him/her one month's notice or one month's pay in lieu thereof, as ultra vires of the constitution and law. Learned counsel while relying upon the case of Mrs. Itrat Sajjad Khan supra has also contended that the Honorable Supreme Court in the said case directed the reinstatement of the employee of DHA, who was terminated in violation of principles of natural justice. He further argued that the case of the present Petitioner and Mrs. Itrat Sajjad Khan supra are on the same footings, hence the Petitioner is entitled to be reinstated in the service. Lastly, learned counsel for the Petitioner argued that, the petitioner challenged the termination of her service on the ground that it was arbitrary and had been made without giving any reason; that Section 24-A of the General Clauses Act, 1897, obliges every person exercising powers conferred by a statute, to act "reasonably, fairly, justly and for the advancement of the purpose of the enactment." It also stipulates that the person making any order under the power conferred by any enactment shall, so far as necessary or appropriate, "give reasons for making the order". Therefore, an unreasoned order of termination (without cause) is violative of section 24-A of the General Clauses Act. In support of his contention, he relied upon the decision of the Honorable Supreme Court in the case of Government of Pakistan v. Farheen Rashid (2011 SCMR 1). He next submitted that there is no other efficacious and adequate remedy available with the Petitioner but to invoke the Constitutional Jurisdiction of this Court for the relief(s) as prayed in the Memo. of Petition. 8. Mr. Muhammad Nishat Warsi, learned DAG has argued that the instant petition is not maintainable and further stated that the case law cited by the learned counsel for the Petitioner are distinguishable from the facts of this case, therefore, the Petitioner cannot claim similar treatment in this regard, whereas enforcement of non-statutory rules of service of statutory authority are altogether different and the same cannot be enforced through Constitutional Petition. He added that rule of `Master and Servant` is attracted in the present case. He invited our attention to the various decisions of this Court on the aforesaid proposition, whereby the Petitions were dismissed; therefore, no interference in the present matter is required by this Court. He lastly prayed for dismissal of the instant Petition. 9. We have heard the learned counsel for the parties on the question of maintainability of the instant petition and perused the material available on record and case law cited at the bar. 10. The issue of maintainability of the captioned Constitutional Petition has been raised, in view of the latest verdicts by the Honorable Supreme Court of Pakistan in an unreported case of Major Retd. Syed Muhammad Tanveer Abbas and other connected Appeals v. Federation of Pakistan through its Secretary, Ministry of Interior and others (in Civil Appeals Nos.26-K and 27-K of 2018) and reported case of Pakistan Defence Housing Authority v. Mrs. Itrat Sajjad Khan and others (2017 SCMR 2010), as such we would confine our self to that issue only and refrain ourselves to dilate upon the merits of the case, if we find the instant matter is not maintainable under the law. 11. Upon perusal of the pleadings and arguments extended thereon by the learned Counsel for both the parties, an important question of law requires our determination, whether the Respondent-Authority is a statutory authority, having non- statutory rules of service; hence the service matter of DHA is to be governed by the Principle of 'Master' and 'Servant'? 12. To appreciate the controversy in its proper perspective, we think it appropriate to have a glance on various Judgments rendered by the Honorable Supreme Court on the aforesaid proposition. 13. First decision of a five Member Bench of the Honorable Supreme Court in the case of Pakistan Defence Officers' Housing Authority v. Lt. Col. Syed Jawaid Ahmed [2013 SCMR 1707] after examining the statute through which the Respondent-Authority and other statutory bodies were established and functioning, in Para-27 of its judgment held them to be statutory bodies performing some of the functions of the Federation/State and, therefore, "person" within the meaning of Article 199(1)(a)(ii) read with Article 199(5) of the Constitution and if their actions or orders are violative of the statute creating those bodies or of rules/regulations framed under a statute, the same could be interfered with by the High Court under Article 199 of the Constitution. 14. References are being made to the other decisions rendered by the Honorable Supreme Court in cases of Ramna Pipe and General Mills (Pvt.) Ltd. v. Sui Northern Gas Pipe Lines (Pvt.) [2004 SCMR 1274], Abdul Wahab and others v. HBL and others [2013 SCMR 1383], Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed and other connected appeals [2013 SCMR 1707], Khawaja Muhammad Asif v. Federation of Pakistan [PLD 2014 SC 206], Pir Imran Sajid and others v. Managing Director/General Manager Telephone Industries of Pakistan and others [2015 SCMR 1257], Pakistan Telecommunication Employees Trust v. Muhammad Arif and others [2015 SCMR 1472], Shafique Ahmed Khan and others v. NESCOM through Chairman Islamabad and others [PLD 2016 SC 377], P.T.C.L. and others v. Masood Ahmed Bhatti and others [2016 SCMR 1362], Muhammad Rafi and others v. Federation of Pakistan and others [2016 SCMR 2146], Muhammad Zaman and others v. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad [2017 SCMR 571], Pakistan Defence Housing Authority v. Mrs. Itrat Sajjad Khan and others [2017 SCMR 2010], Messrs State Oil Company Limited v. Bakht Siddique and others [2018 SCMR 1181], Airline Pilots Association and others v. Pakistan International Airline Corporation and others [2019 SCMR 278]. For the reasons given in the aforesaid Judgments, in our view, there can hardly be any doubt that Respondent-Authority is also a "person" within the meaning of Article 199(1) (a) (ii) read with clause (5) thereof. 15. Having dilated upon on the aforesaid proposition, the instant Petition relates to the service of the Petitioner, whereby Respondent Authority vide order dated 17.08.2018 dispensed with her service, on the allegations of willful absence from duty and during the inquiry proceedings, she was found guilty of the charges of unsatisfactory, negligent performance, which she is asking for setting aside, through the instant Petition. Petitioner, who admittedly, is not a Civil Servant as defined under Section 2(1)(b) of Civil Servants Act, 1973, but an employee of a statutory authority, having non-statutory rules of service, thus cannot invoke the jurisdiction of the Service Tribunal, the only remedy if any, lies by way of Civil Suit before the Civil Court pursuant to the Judgments rendered in the cases of Muhammad Mobeen-ul-Islam v. Federation of Pakistan and others [PLD 2006 SC 602] and Muhammad Idrees v. Agricultural Development Bank of Pakistan and others [PLD 2007 SC 681]. However, the Full Bench of this Court in case of Muhammad Dawood and others v. Federation of Pakistan and others [2007 PLC (C.S.) 1046] found a way out for only the employees of a Statutory Corporation, Authorities, Bodies, etc. who were proceeded under Removal from Service Ordinance, 2000 to invoke jurisdiction of this Court under Article 199 of the Constitution. 16. Progressing on the aforesaid proposition put forwarded by the learned Counsel, we have to see as to whether there is any violation of Statutory Law, compelling the Petitioner to invoke the Constitutional Jurisdiction of this Court? 17. The record reveals that disciplinary proceedings were initiated against her and finally culminated in the dismissal from service vide order dated 17.08.2018. In our view, the disciplinary matters fall within the expression "Terms and Conditions of Service" and admittedly, the same are non-statutory rules of service, which is an internal matter of service of the Respondent-Authority, which in our view cannot be thrashed out in a Writ Petition. 18. The learned counsel for the Petitioner while arguing the case has heavily relied upon Pakistan Defence Officers Housing Authority and others v. Lt. Col. Syed Javaid Ahmed (2013 SCMR 1707) to stress that in view of the Judgment of the Honorable Supreme Court, regardless whether rules are not approved by the Government, if the authority is Government owned organization and violation of statute, it can be enforced through Constitutional jurisdiction and rule of `Master and Servant` has been diluted. We have carefully gone through the aforesaid judgment of the Honorable Supreme Court, the ratio decidendi in this judgment is, where employees of Government owned and statutory organization are removed from service under Removal from Service (Special Power) Ordinance, 2000, the Constitutional Petition will be maintainable. 19. For the aforesaid reasons, we are of the view that the relationship of 'Master and Servant' exist between the Petitioner and the Respondent-Authority, hence, her grievance pertains to the terms and conditions of service which cannot be enforced through a Writ. As to the Service Rules, these are non-statutory and mere instructions for internal control and management of the employees of the Respondent-Company. Guidance could be taken from the Hon'ble apex Court's judgment enunciating the test of Statutory Rules and non-Statutory Rules [Shafique Ahmed Khan and others v. NESCOM through Chairman Islamabad and others (PLD 2016 SC 377) and Muhammad Zaman and others v. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad (2017 SCMR 571). 20. Applying the aforesaid principles of law to the case of the Petitioner, we feel no hesitation in drawing inference that the Respondent-Authority is statutory entity and Petitioner is not governed under statutory rules of service, hence contractual terms and conditions of service are not enforceable through Constitutional Petition. The case of Petitioner is neither covered under enforcement of terms of RSO-2000 nor is violation of rule of natural justice attracted in absence of infringement or any vested rights of the Petitioner or any disciplinary proceedings undertaken against her under any statutory rules of service. These service rules are non-statutory, therefore, for all intent and purpose, these are contractual terms for internal use, hence, the law laid down by the Honorable Supreme Court in Pakistan Defence Officers Housing Authority Case (supra), does not support the case of the Petitioner as there has been no violation of statutory rules of service. 21. We, thus, are of the view that it is for the Respondent-Authority to place its employees in accordance with its Service Rules and Regulations, which is an internal matter of the Respondent-authority, thus does not need any Constitutional interference, at this juncture. Our view is supported by the latest decision announced on 13.5.2019 by the Honorable Supreme Court in an unreported case of Maj. (R) Syed Muhammad Tanveer Abbas and other connected Appeals (Civil Appeals Nos.26-K and 27-K of 2018). The Honorable Supreme Court, in the aforesaid Appeals has provided guiding principles on the issue of statutory and non-statutory rules of service (NADRA) and its enforcement, contractual service of employees (NADRA) and their remedy and finally the issue of maintainability of Constitutional Petition in like matters. 22. To understand the term statutory and non-statutory Rules, we seek guidance from the decision rendered by the Honorable Supreme Court in the case of the Principal Cadet College, Kohat and another v. Mohammad Shoab Qureshi (PLD 1984 SC 170). The Honorable Supreme Court has held that unless rules of service of a statutory body are made or approved by the Government, such rules could not be regarded as statutory but mere instructions for guidance. However, in the case of Shafique Ahmed Khan v. NESCOM through Chairman, Islamabad (PLD 2016 SC 377) as well as in the case of Muhammad Zaman and others v. Government of…

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