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Official Citation: 2014 PLC(CS) 203
Court / Jurisdiction: LAHORE-HIGH-COURT-LAHORE
Parties: KHALID HABIB vs PAKISTAN TELECOMMUNICATION CORPORATION LTD.Honorable Justice Muhammad Khalid Mehmood KhanHafiz Tariq Naseem,Mirza Aamir Baig
This judicial decision was delivered by the LAHORE-HIGH-COURT-LAHORE. The matter involves proceedings between KHALID HABIB and PAKISTAN TELECOMMUNICATION CORPORATION LTD.Honorable Justice Muhammad Khalid Mehmood KhanHafiz Tariq Naseem,Mirza Aamir Baig, officially reported as 2014 PLC(CS) 203. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
2014 P L C (C.S.) 203
[Lahore High Court]
Before Muhammad Khalid Mehmood Khan, J
KHALID HABIB
Versus
PAKISTAN TELECOMMUNICATION CORPORATION LTD. and others
Writ Petition No.27001 of 2011, decided on 18th December, 2012.
(a) Constitution of Pakistan---
----Art. 199(1)(a)(i)--- Constitutional petition--- Maintainability---Territorial jurisdiction---Order passed by a person performing in connection with the affairs of Federation---Order was passed by the Prime Minister at Islamabad---Constitutional petition was filed before Lahore High Court---Validity---Prime Minister of Pakistan was a representative of all federating units of Pakistan and was the chief executive of the government and as such he was a person undoubtedly who was performing functions in connection with the affairs of Federation---Prime Minister was deemed to be functioning in the entire Pakistan and as such there was no doubt that impugned order could be assailed successfully before the Lahore High Court.
Messrs Al-Iblagh Limited Lahore v. The Copyright Board, Karachi and others 1985 SCMR 758; Salahuddin and 3 others v. Frontier Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others PLD 1975 SC 244; Mst. Shahida Maqsood v. President of Pakistan and another 2005 SCMR 1746; Dr. Zahoor Ahmed Shah v. Pakistan Medical and Dental Council through Secretary and another 2005 MLD 718; Dr. Qaiser Rashid v. Federal Secretary, Ministry of Foreign Affairs, Government of Pakistan, Islamabad PLD 2006 Lah. 789; Amin Textile Mills (Pvt.) Ltd. v. Islamic Republic of Pakistan and 3 others 1998 SCMR 2389; Sh. Abdul Sattar Lasi v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and 6 others 2006 CLD 18; Superintendent of Police Head Quarter Lahore and 2 others v. Muhammad Latif PLD 1988 SC 387; Muhammad Idrees v. Government of Pakistan through Secretary, Establishment Division, Islamabad and 5 others 1998 PLC (C.S.) 239; Trading Corporation of Pakistan (Private) Limited v. Pakistan Agro Forestry Corporation (Private) Limited and another 2000 SCMR 1703 and LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others 2009 CLD 1498 rel.
Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997 SC 334; Danish Kaneria v. Pakistan and others 2012 CLC 389; Mrs. Rohi Chaudhry and 2 others v. Federation of Pakistan through Secretary Finance, Ministry of Finance, Islamabad and 3 others 2010 PTD 1233; Messrs Ibrahim Fibres Ltd. through Secretary/Director Finance v. Federation of Pakistan through Secretary/Revenue Division and 3 others PLD 2009 Kar. 154; Mayzone Pak. International v. Additional Secretary, Government of Pakistan 2002 CLC 388 and Mohtarma Benazir Bhutto and another v. Federation of Pakistan and 2 others PLD 1999 Kar. 39 distinguished.
Muhammad Mubeen us Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Allama Iqbal Open University v. Tuffail Hashmi 2010 SCMR 1484; Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997 SC 334; Alamgir v. Divisional Forest Officer, Multan and others 1993 SCMR 603; Muhammad Amjad v. The Chief Engineer, WAPDA and another 1998 PSC 337; LPG Association of Pakistan through Chairman v., Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others 2009 CLD 1498 and Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary, Ministry of Information Technology and Telecommunication and others 2012 SCMR 152 ref.
(b) Islamabad High Court Act (XVII of 2010)---
----S. 4---Constitution of Pakistan, Art.199-Constitutional petition---Concurrent jurisdiction of Islamabad High Court and Lahore High Court in respect of capital territory---Islamabad High Court has the absolute jurisdiction in respect of Islamabad capital territory in original appellants, revisional and other jurisdiction as under the constitution or the laws in force immediately before the commencement of the Islamabad High Court Act, 2010---Islamabad High Court enjoys the jurisdiction in respect of capital territory which was earlier enjoyed by the Lahore High Court---Inspite of the promulgation of Islamabad High Court Act, 2010 the Lahore High Court has the jurisdiction over Islamabad capital territory---Lahore High Court and Islamabad High Court therefore, enjoy concurrent jurisdiction on Islamabad capital territory.
Hafiz Tariq Naseem for Petitioner.
Mirza Aamir Baig for Respondents.
Date of hearing: 18th October, 2012.
JUDGMENT
MUHAMMAD KHALID MEHMOOD KHAN, J.--- Through this constitutional petition, petitioner has assailed the order dated 24-3-2005 passed by Ministry of Information Technology (IT and Telecom Division), Government of Pakistan whereby the Prime Minister of Pakistan has dismissed the petitioner's services from 17-3-2003; petitioner joined Telephone and Telegraph Department, Government of Pakistan in June 1969 as Assistant Divisional Engineer and finally promoted as Member of Pakistan Telecommunication Limited Board on 1-12-2000. On 21-6-2001 petitioner was made OSD on the basis of certain allegations pertaining to year 1995-96 when petitioner was posted as Chief Engineer (M&O). The National Accountability Bureau (NAB) ultimately on 28-8-2002 arrested the petitioner and after 45-days confinement petitioner entered into plea-bargain with the NAB and respondents issued a show-cause notice to petitioner on 23-6-2004 under the Removal from Service (Special Powers) Ordinance, 2000. Petitioner submitted reply to the show-cause-notice but vide impugned Notification dated 24-3-2005 petitioner's services were dispensed with and he was dismissed from service. As the order of dismissal was passed under RSO, 2000; petitioner filed representation/review; the respondents have failed to decide the petitioner's representation/review, the petitioner then filed appeal before the Federal Service Tribunal Lahore; during the pendency of said appeal, petitioner's appeal was abated in terms of judgment of the Hon'ble Supreme Court of Pakistan reported as Muhammad Mubeen us Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 SC 602); however, on clarification the petitioner's appeal was restored and the petitioner again approached the Federal Service Tribunal but during the pendency of said appeal the Hon'ble Supreme Court of Pakistan announced the judgment reported as Allama Iqbal Open University v. Tuffail Hashmi (2010 SCMR 1484) and the employees of Pakistan Telecommunication Corporation Limited (PTCL) were declared not the civil servants. The petitioner's appeal was ultimately disposed off on the point of jurisdiction. Petitioner aggrieved of said judgment dated 12-5-2011 filed C.P.L.A. No.1128-L of 2011 before the Hon'ble Supreme Court of Pakistan which is pending disposal but the Hon'ble Supreme Court of Pakistan in Masood Ahmad Bhatti and others v. Federation of Pakistan (Civil Appeals Nos.239 to 241 of 2011) pronounced judgment whereby the petitioner being the employee of Telephone and Telegraph Department became entitled for bringing his grievance, through constitutional petition.
2. Notices were issued to respondents, they filed report and parawise comments; the respondents had taken the defence that the petition is not maintainable as the petitioner's appeal is pending disposal before the Hon'ble Supreme Court of Pakistan. The petitioner has not approached the Court with clean hands; the petitioner has no cause of action. On merits, the respondents contended that the petitioner has entered into plea bargain with the National Accountability Authority; he has admitted his guilt; petitioner thus is a convicted employee and as such he is not entitled for any relief. The maintainability of petition has primarily been challenged on the ground of territorial jurisdiction of Lahore High Court.
3. Learned counsel for petitioner submits that the impugned order is not sustainable in the eye of law as it has been passed with retrospective effect against the settled principle of law that no executive order can be passed with retrospective effect. He further submits that the impugned notification is violative of principle of natural justice; the petitioner was not given opportunity of personal hearing by the competent authority and as such petitioner has been condemned unheard. The petitioner's review petition under section 9 of RSO, 2000 was not decided nor any decision was conveyed to petitioner which is against the provision of Clause 24-A of General Clauses Act. Learned counsel further submits that this Court has the jurisdiction to entertain and decide the petition as the order of termination has been conveyed to petitioner at Lahore.
Hafiz Tariq Naseem Advocate learned counsel for petitioner has relied on Messrs Al-Iblagh Limited Lahore v. The Copyright Board, Karachi and others (1985 SCMR 758), Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others (PLD 1997 SC 334), Alamgir v. Divisional Forest Officer, Multan and others (1993 SCMR 603), Muhammad Amjad v. The Chief Engineer, WAPDA and another (1998 PSC 337), LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 other (2009 CLD 1498) and Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary, Ministry of Information Technology and Telecommunication and others (2012 SCMR 152).
4. Learned counsel for respondents submits that the constitution petition is not maintainable before Lahore High Court, Lahore as the impugned order has been passed by the Prime Minister at Islamabad. He further submits that the petitioner's appeal is pending disposal before the Hon'ble Supreme Court of Pakistan and as such this petition is not maintainable. Learned counsel further submits that petitioner is a convicted employee as he has entered into plea-bargain with the NAB and as such his services were rightly terminated by the respondents from the date when he entered into plea-bargain with the NAB. Learned counsel has relied on Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others (PLD 1997 SC 334), Danish Kaneria v. Pakistan and others (2012 CLC 389), Mrs. Rohi Chaudhry and 2 others v. Federation of Pakistan through Secretary Finance, Ministry of Finance, Islamabad and 3 others (2010 PTD 1233), Messrs Ibrahim Fibres Ltd. through Secretary/Director Finance v. Federation of Pakistan through Secretary/Revenue Division and 3 others (PLD 2009 Karachi 154), Mayzone Pak. International v. Additional Secretary, Government of Pakistan (2002 CLC 388) and Mohtarma Benazir Bhutto and another v. Federation of Pakistan and 2 others (PLD 1999 Karachi 39).
5. Heard, record perused. With the consent of parties, the petition is being decided as pacca case.
6. The respondents have not denied the fact of petitioner being the employee of Telephone and Telegraph Department. The Hon'ble Supreme Court of Pakistan in Masood Ahmad Bhatti's case (supra) has decided the issue regarding application of statutory rules on the employee of Telephone and Telegraph Department and as such as per respondents admission the judgment of Masood Ahmad Bhatti's case (supra) is applicable on the petitioner's case and the petition is maintainable on this count.
7. The main question which requires consideration is the maintainability of petition before this Court on the ground of territorial jurisdiction of Lahore High Court. The argument of learned counsel for respondents is that the impugned order has been passed by the Prime Minister of Pakistan at Islamabad. and as such Islamabad High Court has the exclusive jurisdiction to hear the petitioner's constitutional petition, if any. The learned counsel has relied on a judgments referred above and submits that the impugned action has taken place within the territorial limits of Islamabad High Court and as such Islamabad High Court alone has the jurisdiction to entertain the petitioner's writ petition. The petitioner is attacking the order of termination which has been passed at Islamabad and the dominant object and primary grievance of petitioner has arisen at Islamabad.
8. The argument of learned counsel for petitioner is that the Prime Minister is acting in the affairs of Federation and as such under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 Lahore High Court Lahore enjoys the concurrent jurisdiction to entertain and decide the petition. The impugned order affects the petitioner at Lahore and also served at Lahore and as such cause of action has arisen in favour of petitioner at Lahore within the territorial jurisdiction of Lahore High Court Lahore. Learned counsel for petitioner has relied on a judgment of Messrs Al-Iblagh Limited Lahore v. The Copyright Board, Karachi and others (1985 SCMR 758) and argued that as per the ratio of dictum laid down by the Hon'ble Supreme Court of Pakistan, the constitutional petition is maintainable, before the Lahore High Court Lahore.
9. The main thrust of argument of learned counsel for respondents is on Sandalbar Enterprises' case (supra) and contended that the Hon'ble Supreme Court of Pakistan has held that the court, while entertaining the petition has to see what is dominant object of filing of writ petition and the dominant object in the present case is the setting aside of order dated 24-3-2005 passed by the Prime Minister of Pakistan at Islamabad.
10. For appreciating the argument of learned counsel for parties, the relevant portion of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 and Section 4 of Islamabad High Court Act, 2010 is reproduced hereunder:---
"Article 199 Jurisdiction of High Court.
199.(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,---
(a) on the application of any aggrieved party, make an order---
(i) directing a person, performing, within the territorial jurisdiction of the Court; functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or ."
Section 4 of Islamabad High Court Act, 2010:
"4. Jurisdiction.--- Islamabad High Court shall have, in respect of the Islamabad Capital Territory, original, appellate, revisional and other jurisdiction, as under the Constitution or the laws in force immediately before the commencement of this Act is exercisable in respect of the said territory by the Lahore High Court:
Provided that Islamabad High Court shall have original jurisdiction in suits and proceedings having pecuniary value of ten million rupees or more."
11. Article 199 of the Constitution referred to above provides that the High Court can issue writs of prohibition, mandamus and certiorari against a person who is: (i) performing functions; or has (ii) done an act or; (iii) has taken proceedings (iv) within the territorial jurisdiction of this Court; in connection with the affairs of the (v) Federation; (vi) Province or; (vii) local authority.
12. The question arose the person against whom an order is sought under Article 199 of the Constitution is a person whether performing function in the affairs of Federation has done any act or initiated any proceeding against the aggrieved person within the territorial jurisdiction of the High Court. The words used in Article 199(a)(i) of the Constitution are "functions in connection with the affairs of the "Federation" or a "Province" or a "local authority". In the present case, the issue is whether the Prime Minister is a person functioning in connection with the affairs of Federation or not. The question of performing function in connection with the affairs of Federation, Province or local authority was examined by the Hon'ble Supreme Court of Pakistan in Salahuddin and 3 others v. Frontier Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others (PLD 1975 SC 244), the Hon'ble Supreme Court of Pakistan has held as under:---
"The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving same exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of the Government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, including a body politic or a body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not."
13. The first judgment relied upon by both the parties is case of Sandalbar Enterprises (supra), the Hon'ble Supreme Court of Pakistan in this case has dilated upon the rule of dominant object and held as under:---
"We may observe that it has become a common practice to file a writ petition either at Peshawar, or Lahore, or Rawalpindi or Multan etc., to challenge the order of assessment passed at Karachi by adding a ground for impugning the Notification under which a particular levy is imposed. This practice is to be depreciated. The Court is to see, what is the dominate object of filing of the writ petition. In the present case, the dominant object was not to pay the regulatory duty assessed by a Customs official at Karachi."
14. In the above said judgment their lordships although have distinguished Messrs Al-Iblagh Ltd.'s case (supra) on its own facts and ruled that as per facts of the case dominant object was not to pay the regulatory duty assessed by a Custom Official at Karachi but have not revisited the major reasoning of the judgment which reads as below:---
"The rules laid down in the said case would, we think be applicable also in the circumstances of this case. The Central Government has set up a Copyright Board for the whole of Pakistan and it performs functions in relation to the affairs of the Federation in all the Provinces. Hence, any order passed by it or proceedings taken by it in relation to any person in, any of the four Provinces of Pakistan would give the High Court of the Province in whose territory the order would affect such a person, jurisdiction to hear the case."
15. The Hon'ble Supreme Court of Pakistan in Mst. Shahida Maqsood v. President of Pakistan and another (2005 SCMR 1746) ruled as under:---
"Learned counsel for the petitioner vehemently urged that case of the petitioner would fall under Article 199(1)(a) of the Constitution and not under sub-clause (ii) of the above said Article. Essentially, the learned counsel contended that the question of territorial jurisdiction raised by the High Court was completely irrelevant as the President of Pakistan performs his functions in connection with the affairs of the Federation' throughout the country and every High Court is competent to issue a, direction as contemplated by Article 199 of the Constitution."
16. Thus considering the above, the Hon'ble Supreme Court of Pakistan in this case concluded "we do not find any flaw in the judgment of the High Court, which is not open to any exception".
17. In Dr. Zahoor Ahmed Shah v. Pakistan Medical and Dental Council through Secretary and another (2005 MLD 718), it has been held that "the Court was to see what was the dominant object of filing of the constitutional petition" and in the instant case, dominant object is registration of the petitioner's qualification with the Medical and Dental Council; the office of the Council is located at Islamabad, therefore, in the circumstances, the jurisdiction was held not possessed by the Quetta High Court where it was filed. More or less, same is the ratio of the judgment reported as Dr. Qaiser Rashid v. Federal Secretary, Ministry of Foreign Affairs, Government of Pakistan, Islamabad (PLD 2006 Lahore 789).
18. In Amin Textile Mills (Pvt.) Ltd. v. Islamic Republic of Pakistan and 3 others (1998 SCMR 2389) it was held:----
"The matter essentially relates to the demand of the Bank in respect of a loan and other facilities taken by the petitioner at Karachi from the Bank and, as observed, the dues of the Bank are payable at Karachi and even; according to the petitioner, the agreement dated 6-6-1994 with the Bank was executed at Karachi and payments are being made in instalments to the Bank. In filing the writ petition the dominant object was to avoid the demand of the Bank and, in the facts and circumstances Lahore High Court had no territorial jurisdiction in the matter."
19. Messrs Al-Iblagh Ltd.'s case (supra) the Hon'ble Supreme Court of Pakistan opined as under (at pages 758 and 762):---
"While dealing with a somewhat similar situation, this Court was called upon to examine the terms of Article 98 of the 1962 Constitution (which are similar in Commissioner, Pakistan and other's case PLD 1968 SC 387. In this case the East Pakistan High Court had held that the said High Court could not exercise jurisdiction with regard to the decisions of the Election Commission of Pakistan as the said body was not located in nor performed its function in the Province of the East Pakistan and, therefore, East Pakistan High Court was precluded on account of territorial limitations, from exercising jurisdiction in connection with orders passed by it. While rejecting this contention it was observed by this Court that:---
The plain, meaning of the words.--- "a person performing in the Province functions in connection with the affairs of the Centre" excludes territorial limitations, such as, that the person or authority to whom the High Court is empowered to issue writs must be amenable to its jurisdiction either by residence or location within those territories." (underling is ours)
It explained that:
'The Central Ministries as well as many Departments of the Central Government as located in Islamabad or at Rawalpindi. Nevertheless they perform functions in both the Provinces in connection with the affairs of the Centre, such as, Defence of Pakistan, External Affairs, Insurance, Copyright, Patent, Design...." (underlining is ours) and found that the orders made or proceedings taken by the said Departments in connection with the affairs of the Central Government but having effect on parties in East Pakistan would be subject to the writ jurisdiction, of the High Court of that Province.
The rules laid down in the said case would, we think, be applicable also in the circumstances of this case. The Central Government has set up a Copyright Board for the whole of Pakistan and it performs functions in relation to the affairs of the Federation in all the Provinces. Hence, any order passed by it or proceedings taken by it in relation to any person in any of the four Provinces of Pakistan would give the High Court of the Province, in whose territory the order would affect such a person, jurisdiction to hear the case.
The learned Deputy Attorney-General Mr. Munir A. Sheikh who appeared on behalf of the respondent-Copyright Board, supported this interpretation of the constitutional provision in question and submitted that the writ petition filed by the appellant before the Lahore High Court should not have been dismissed for lack of jurisdiction by the said High Court, as it also had jurisdiction to entertain it, concurrently with the, Sindh High Court.
We agree and are of the opinion that both the Lahore High Court as well as the Sindh High Court had concurrent jurisdiction in the matter and both the Courts could have entertained a writ petition against the impugned orders in the circumstances of this case. We, therefore, hold that the Lahore High Court has illegally refused to exercise jurisdiction in this case. The case will, therefore, go back to the Lahore High Court for decision of the writ petition filed by the appellant before it for decision on merits, in accordance with law."
20. In Sh. Abdul Sattar Lasi v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs,. Islamabad and 6 others (2006 CLD 18), the petitioner challenged the sale of mortgage properties under section 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 the Division Bench of Quetta High Court has held:---
"8. So far as the territorial jurisdiction of this Court in the matter is concerned, it may be observed that under Article 199 of the Constitution of…
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