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Petitioner: RAZIUDDIN, SHAHABUDDIN HAIDER, AHMAD NASEEM VS Respondent: CHAIRMAN, PAKISTAN JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Saleem Akhter, Ajmal Mian Title:RAZIUDDIN, SHAHABUDDIN HAIDER, AHMAD NASEEM vs CHAIRMAN, PAKISTAN
JUDGMENT
Reported As: PLD 1992 Supreme Court 531 Result: Appeals dismissed Judgment JUDGMENT AJMAL MIAN, J:--The above appeals are with the leave of this Court, since common question of law is involved, we propose to dispose of the same by this common judgment. The above appeals are directed against the judgments of the Federal Service Tribunal, Islamabad, hereinafter referred to as the Tribunal, dated 19-2-1991, 21-2-1991 and 30-6-1991, passed in Appeal Nos.13(K)/89, 33(K) 89 and 28(K)/89 respectively filed by the appellants against the orders of their removal from service under section 10(2) of the Pakistan International Airlines Corporation Act, :1956 hereinafter referred to as the Act, dismissing the same. Leave to Appeal was granted to consider the questions whether the P.IA.C. Was obliged to disclose the grounds to the Appellants in order to enable them to satisfy the Management of PIAC that the action of removal of service was not warranted and whether the Tribunal overlooked the above important aspect. 2.Brief facts are that Appellant Raziuddin in Civil Appeal No. 154-K of 1991 was working as a Cargo Assistant whereas Appellant Shahabuddin Haider in Civil Appeal No. 155-K of 1991 was working as an Assistant Manager and one Nafisuddin Oureshi was working as a Cargo Officer. It seems that all of them were served with a Show-Cause Notice under section 10(2) of the Act stating therein that the competent authority being satisfied that reasonable grounds exist for removing/retiring them from the service of the Corporation, it proposes to remove them from the service of the
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Corporation after giving them an opportunity of being heard in person and payment of wages for the period of 90 days. They were informed that in accordance with the provision of section 10 of the Act read with Regulation 88 of the P.I.A.C. Employees (Services and Discipline) Regulations, 1985, hereinafter referred to as the Regulations, they were offered personal hearing by the competent authority i.e. The Managing Director, P.IA.C., at the time and date specified therein. It appears that the above Appellants and said Nafisuddin Qureshi availed the above personal hearing and appeared before the competent authority. They were asked as to why they sent back a detained cargo without ensuring the payment of the customs duty etc. After the above hearing, the above Appellants and said Nafisuddin Qureshi received orders of their removal from service in terms of section 10(2) of the Act without assigning any reason. All of them filed service appeals before the Tribunal in terms of subsection (3) of section 10 of the Act, which were dismissed. Thereupon, they filed petitions for leave to appeal. In the petitions for leave to appeal filed by Raziuddin and Shahabuddin Haider, leave was granted on 9-9-1991 to consider the above questions. However, when the petition for leave to appeal filed by Nafisuddin Qureshi came up for hearing on 27-11-1991, the Respondents were also represented, the same was declined after hearing the parties. Appellant, Ahmad Naseem, in Civil Appeal No. 243-K of 1991 was working at the relevant time with P.IA.C. As a Loader in the Traffic Department. He was served with a Show-Cause Notice dated 8-10- 1988, under section 10 of the Act in identical language of the notices which were served inter alia on the other Appellants. He was also given personal hearing in terms of section 10 of the Act read with Regulation 88 of the Regulations. He was informed that he had removed a brief-case from the container carrying the baggage of the passengers for Karachi and manoeuvred its shifting to the container carrying the baggage to the Aircraft destined for Multan which belonged to a passenger, Yousuf Shahid, who happened to be a Gunman of the then Prime Minister and which contained a Revolver which was stolen. After the hearing, the above Appellant received an order dated 22-11- 1988, passed under section 10(2) of the Act, removing the said Appellant from service. Upon receipt of the above order, the Appellant filed the aforesaid service Appeal which was declined on merits as well as on the ground that it was barred by time. After that the Appellant filed the petition for leave to appeal which was granted on 26-11-1991 on the basis of the leave granted in the other above two appeals. 3.In support of the above appeals, Mr. Niaz Ahmad Khan, learned Counsel for the Appellants has vehemently urged as follows:-- (1) that the Appellants were not provided meaningful/fair hearing in terms of section 10(2) of the Act and, therefore, the orders of removal were vitiated. (2) that section 10(2) is violative of the Fundamental Rights guaranteed by the Constitution as well as of the Islamic concept of justice. On the other hand, Mr. Muzaffarul Haque, learned Counsel appearing for the Respondents has submitted as under:- (1) that the Appellants were given a reasonable opportunity of personal hearing in terms of section 10(2) of the Act, , (2) that the Tribunal could not have declared section 10(2) as being violative of the Fundamental Rights guaranteed by the Constitution and of Islamic concept of justice; and. (3) that the above section 10(2) of the Act is not in fact violative of any provision of the Constitution or of Islamic concept of justice. 4.Before touching upon the above contentions, it may be pertinent to observe that the view of this Court consistently had been that in a case of a Corporation the relationship between the Corporation and its employees was of that Master and Servant. In this behalf, it may be pertinent to refer to the case of Lt. Col. Shujauddin Ahamd v. Oil & Gas Development Corporation 1971 SCMR 566, in which Hamoodur Rahman, CJ, after referring earlier judgments of this Court in the case of
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Chairman of East Pakistan Development Corporation v. Rustam Ali PLD 1966 SC 848, the case of Lahore Central Cooperative Bank Limited v. Pir Saifullah Shah PLD 1959 SC (Pak.) 210, and the case of Zainul Abedin v. Multan Central Co-operative Bank Limited PLD 1966 SC 445, reiterated the above proposition of law in the following terms, though it was urged that the Oil and Gas Development Corporation was in all respects a Government Department, the Government had contributed the entire capital of the Corporation, had appointed all its Directors and could remove them at its discretion:- "We are unable to agree with this contention. The provisions of the statutes, under which the respondent-Corporation, the East Pakistan Industrial Development Corporation and other statutory bodies had been created in Pakistan, are not radically different. There too the Government holds the bulk of the shares, appoints a Managing Director and Chairman of the Board, audits the accounts of the statutory Corporation through its own appointed Auditors and has the power to direct those Corporations to carry out its. Instructions. The consistent view of this Court therefore has been that the employees of such statutory Corporations do not acquire the status of Government servants nor are the guarantees given by the Constitution applicable in their case. The High Court was, therefore, in our view, right in vacating the order of interim injunction, for according to the law of Master and Servant, a contract of service cannot be specifically enforced. It follows, therefore, that no temporary injunction can either be granted in such case. This petition is, accordingly dismissed." The same view was taken in the case of Shahid Khalil v. P.IA.C., Karachi 1971 SCMR 568, the case of A. George v. Pakistan International Airlines Corporation PLD- 1971 Lahore 748, R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146 and the case of Mohammad Yousuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224, wherein the above principle was reiterated with reference to the PIAC. As follows: "At this juncture, the learned counsel wanted to refer to a publication known as the "Service Code" published by the P.I.A. But the status and position of that Code was analytically gone in A. George v. Pakistan International Airlines Corporation (2), (Muhammad Akram and Muhammad Afzal Cheema, JJ) and it was concluded that its provisions were not immutable and they were in the nature of mere instructions issued by the P.IA. For the guidance of its officers for their internal use and were altogether directory. Learned counsel was unable to point out any fallacy in the aforesaid view and in that state of law, in the absence of any statutory rules, the Courts below were justified in holding that this was a case which was governed by the simple theory of Master and Servant and a suit of the present kind in the aforesaid context was not maintainable." 5.However, it may further be observed that the above rule of Master and Servant was departed in the cases where the relationship between a Corporation and its employees was regulated by statutory provisions and the violation of such provision was complained of. In the case of Evacuee Trust Property Board and another v. Muhammad Nawaz 1983 SCMR 1275, this Court while declining a petition for leave to appeal has held that "where statutory rules governed the service conditions of an employee, then the pleasure of the Master stands surrendered to the extent the matter is covered by the relevant rules." The above view was reiterated in the cases of Anwar Hussain v. Agricultural Development Bank of Pakistan and of the Principal, Cadet College, Kohat and another v. Mohammad Shoab Qureshi PLD 1984 SC 194 and 170 respectively wherein the following observations were made:- "Anwar Hussain v. Agricultural Development Bank of Pakistan. The test of the employer/employee relation is the right of the employer to exercise control of the details and method of performing the work. It follows that if the relationship is the result of a contract freely entered into by the contracting parties then the principle of
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Master and Servant will apply. The principle, however, will not apply if some law or statutory rule intervenes and places fetters upon the freedom of the parties in the matter of the terms of the contract. It is on this principle that a civil servant for whom there are constitutional safeguards, is not governed by the principle of Master and Servant; for he is possessed of a legal character for the enforcement of which he can bring an action. Even where the employee is not a civil servant but there are statutory safeguards governing his relationship with the employer and placing restrictions on the freedom of the parties to act, the general law of Master and Servant will not apply. In such cases the employer would be bound to follow the procedure provided for in the statute or the statutory rules before terminating the service of the employee and in the absence of conformity to such procedure, the termination of service would not be clothed with validity and the employee will be. Entitled to an action for his reinstatement:" ---Principal Cadet Collage Kohat and another v. Mohammad Shoab Qureshi:- 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 thereof will not, normally, be enforced through a writ petition." . The above view has been consistently followed by this. Court. In this regard, reference may be made to the following cases:- (1) Nisar Ahmad v. The Director, Chiltan Ghee Mills 1987 SCMR 1836. (2) National Bank of Pakistan v. Manzoorul Hasan 1989 SCMR 832. (3) Sindh Road Transport Corporation through , its Chairman v. Muhammad Ali G. Khokhar 1990 SCMR 1404. (4) Karachi Development Authority and another v Wali Ahmad Khan and others 1991 SCMR 2434. Reference may also be made to an unreported judgment dated 6-5-1991 in the case of Anwar Huasain v. Agricultural Development Bank of Pakistan and others (Civil Appeal No. 922-K of 1990); Zafar Hussain Mirza, J. reaffirmed Ahe above view as follows:- "Apparently, subject to what has been already discussed above with regard to the discretionary powers of the Bank to refuse withdrawal of resignation, even if the resignation had been accepted against the provisions of the instructions, the denial of the Bank to take the appellant in its service amounts to the termination of his service, which power is clearly vested in the Bank. (See Agricultural Development Bank of Pakistan and 2 others v. Muhammad Sharif 1988 SCMR 597). Therefore unless something by way of a guarantee of tenure of service is provided by the statute or the Regulations framed thereunder or mala fides is alleged, no employee can maintain a suit for reinstatement in service without showing the violation of such statute or Regulations." 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. In the present case, the P.IA,C. Has the Regulations which have been framed by the Board of Directors of the P.I.A.C., pursuant to the power contained in section 30 of the Act. However, there is nothing on record to indicate that the above regulations have been framed with the previous sanction of the Central Government or that they were gazetted and laid before the National Assembly in terms of section 31 of the Act. In this view of the matter, the Regulations cannot be
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treated as statutory rules of the nature which would bring the case of the P.IA.C. Within the above qualification as to entitle the employees of the P.IA.C. To claim relief of reinstatement on the ground of breach of the statutory provisions. In the case in hand as stated hereinabove the action has been taken against the Appellants under the provision of section 10(2) of the Act which reads as follows: (2) "Notwithstanding anything contained in subsection (1) or any law, settlement or award for the time being in force, or any rules or regulations framed under this Act, or any rules, regulations, orders or instructions issued by the Corporation, or in the terms and conditions of service of any person employed by, or serving under the Corporation, the Corporation may at any time retire or remove from its service any person without assigning any reason, after giving him an opportunity of being heard and not less than ninety days' notice or pay for the period by which such notice falls short of ninety days; and subject to subsection (3), no such order of retirement or removal shall be called in question before any Court or tribunal or other authority." A perusal of the above subsection indicates that notwithstanding anything contained in subsection (1) of above section 10, any settlement or award for the time being in force or any rules or regulations framed under the Act or any rules, regulations, orders or instructions issued by the Corporation, or in the terms and conditions of service of any person employed by, under the Corporation, the Corporation may at any time retire or remove from its service any person without assigning any reason after giving him an opportunity of being heard and not less than ninety days notice or pay for the period by which such notice falls short of ninety days and subject to subsection (3) which provides an appeal before the Service Tribunal. It further provides that no order of retirement or removal shall be called in question before any Court or Tribunal or other authority subject to the appeal before the Service Tribunal under subsection (3). 7.Adverting to Mr. Niaz Ahmad Khan's above first submission-- "that the appellants were not provided meaningful fair hearing in terms of section 10(2) of the Act and, therefore, the orders of removal were vitiated," it may be observed that in support of his above submission, he has referred to treatises, on Principles of Administrative Law by M.P. Jain and S.N. Jain and the Administrative Law by I.P. Massey. He has particularly relied upon the following passages from the above treatises:- "The general principle is that an adjudicatory body is to decide the matter on the basis of materials placed before it in the course of proceedings. It cannot take extraneous matters into consideration; it cannot base its decision on any material unless the person against whom it is sought to be utilised has been given an opportunity to rebut or explain the same. If the adjudicator is going to rely on any material, evidence or document for basing his decision against the individual, then the same must be placed before him for his comments and rebuttal. It is regarded as a fundamental principle of natural justice that no materials should be relied on against a party without giving him an opportunity of explaining the same. The right to know the materials on which the authority is going to take a decision is a part of the right to defend oneself. The principle can be seen operating in serveral judicial pronouncements where non-disclosure of the evidence to the affected party has been held to be fatal to the hearing proceedings." "In England the history of the application of the principles of natural justice up to mid-1960s reveals two opposite viewpoints. According to one point of view, in the absence of any statutory requirement of hearing, a hearing will be employed by the Courts whenever any decision affects the rights of the subjects. This aspect is clearly reflected in Cooper v. Wandsworth Board of Works. In this case the Metropolis Management Act, 1855 provided that a person who intends to build a house should give seven days' notice to the District Board, failing which the Board could demolish the house. Cooper built the house without giving required notice and consequently his house was demolished without giving any hearing. The Court held that Cooper could maintain an action for
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trespass because no valid decision could be reached in breach of the principles of natural justice. This principle of applying the rules of natural justice by implication has been followed in a multitude of cases dealing with (i) interference with property rights, (ii) deprivation of membership of professional or other non-statutory bodies, (iii) dismissal from office, (iv) imposition of penalties, and (v) deprivation of advantages. The other viewpoint was based on a restrictive attitude towards certiorari and prohibition which were generally used to compel the observance of the principles of natural justice in situations where there was no express statutory requirement for hearing. The holders of this view advocated `freedom of action' for the administration. Therefore, in Franklin v. Minister of Town and Country Planning when the House of Lords had to consider whether the Minister was subject to rules of natural justice in designating the site of a new township it decided that the Minister was acting executively and not judicially, hence not subject to the rules of natural justice. Following the same line of reasoning the Privy Council held in Nakudha. Ali v. Fayaratne that in the absence of any express statutory requirement for hearing, the rules of natural justice are not attracted even when the power to cancel a licence. Is coupled with the fact that `reasonable grounds' must exist for the exercise of power. Fortunately, in 1963,, the Cooper's fromulation was reasserted in Ridge v. Baldwin. The appellant in this case was the Chief Constable of Brighton, England who had been dismissed from service by the Area Watch Committee in exercise of its powers under the Municipal Corporation Act, 1882, on the ground of negligence in the discharge of duties. The Act did not require any hearing before dismissal. A declaratory judgment was sought on the ground of the violation of the rules of natural justice. The declaration was refused both by the Court of first instance and the Court of Appeal on the strength of Nakudha Ali's holding. However, by a majority of four to one, the House of Lords deqided that there is no point in labelling functions as quasijudicial and administrative because even the administrative or executive functions are subject to the rules of natural justice. Ridge's case brought new liberality in approach to the question of the application of the rules of natural justice and judicial review. Formerly the presumption had been that there was no obligation to give hearing unless the statute expressly provided for it; now the presumption is that there is always such an obligation unless the statute clearly excludes it, notwithstanding the vesting of a power in subjective terms." He has also referred to the case of Pakistan and others v. Public-at Large and others, reported in PLD 1987 SC 304, wherein the learned Judges of the Shariat Appellant Bench of this Court have separately dealt with the question of principle of natural justice while considering the vires of section 13 of the Civil Servants Act, 1973, and of the corresponding provisions of the other statutes mentioned therein. Niaz Ahmad Khan has referred to the opinion of Muhammad Afzal Zullah, J., (as his Lordship then was) acting as the Chairman and of Nasim Hasan Shah and Pir Muhammad Karam Shah, JJ., wherein it has been pointed out that Islam. Enjoins that before a person is condemned, he has to be given a fair opportunity of being heard. 8. There cannot be any cavil with the proposition of the law propounded by the authors of the above treatises and the ratio of the above judgment of the Shariat Appellant Bench of this Court. In the present case." subsection (2) of section 10 of the Act itself contemplates providing of an opportunity of being heard before taking action under the above provision. The question therefore, arises what type of hearing is envisaged by the above provision. According to Mr. Niaz Ahmad Khan, the appellants should have been given in writing the charge in order to enable them to meet the same and to have meaningful hearing before the competent authority. The appellant Raziuddin and Shahabuddin Haider in their memos of appeals before the Tribunal have admitted the factum that they were told as to the reason why proposed action under section 10(2) of the Act was contemplated. Suffice to reproduce the following extract from the memo of appeal of Raziuddin before the Tribunal:-
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"Besides, the Managing Director and others enquired _ from the appellant as to why a detained cargo was sent back. This the appellant took as a charge and made every effort to satisfy the Managing Director and other officers that the cargo was not detained as required under Customs Act, Manual, Instructions and practice consistently being followed in respect of detention of any goods by Customs:" Whereas the Appellant Ahmad Naseem was proceeded with along with Aijaz Ahmad and Zahid Akhtar, other Loaders, under the provisions of Pakistan Penal Code as an F.I.R. For the theft of Revolver was lodged at the Airport police station by the P.I.A. Vigilance. They were arrested and were released by an order dated 8-11-1987, as it was stated that they were no longer or any more required by the police of Airport Police Station. However, at the same time action was taken under section 10(2). Keeping in view the above background, it cannot be urged by the appellant Ahmad Naseem that he had no knowledge as to the reason while action was contemplated against him under section 10(2) or that he was not told about the above reason. 9.In our view, section 10(2) of the Act does not envisage framing of a fromal charge of misconduct or service of the same on an affected person or holding of a full dress enquiry as the order of retirement or removal under the above provision is to be passed without assigning any reason which means that it is simpliciter order of retirement or removal without attaching any stigma. However, in order to make hearing meaningful in terms of above provision of the Act, the affected person should be told the reason, which prompted the…
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