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Petitioner: IMDAD MAGSI VS Respondent: KARACHI WATER AND SEWERAGE BOARD
2002 P L C (C
2002 P L C (C.S.) 1361
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ
IMDAD MAGSI and others
versus
KARACHI WATER AND SEWERAGE BOARD and others
Civil Appeals Nos. 1232 to 1235 of 2000, decided on 14th May, 2002.
(On appeal from the judgment of the High Court of Sindh, dated 4‑6‑1999 passed in C.P. No. D‑1151 of 1998).
(a) Karachi Water and Sewerage Board Employees (Probation, Confirmation) Rules, 1987‑‑‑
‑‑‑‑Rr.4(a) & 6(b)(c)‑‑‑Karachi Water and Sewerage Board Employees (General Conditions of Services) Rules, 1987, R.78(1)(2)(3)‑‑‑Karachi Water and Sewerage Board Resolution No.1 of 1991, dated 15‑6‑1991‑‑‑Sindh Service Tribunals Act (XV of 1973), S.2‑A‑‑‑Constitution of Pakistan (1973), Arts. 199, 212 & 185(3)‑‑‑Retrenchment of the employees of Karachi Water and Sewerage Board before the completion of probation period‑‑‑Chief Minister of the Province ordered reinstatement of such employees‑‑ Validity‑‑‑Constitutional petition before High Court for implementation of the orders of the Chief Minister‑‑‑Maintainability‑‑‑Applicability of S.2‑A, Sindh Service Tribunals Act, 1973‑‑‑Scope‑‑‑Leave to appeal was granted by the Supreme Court to consider the points to the effect as to whether writ of mandamus or writ of certiorari could be issued by the High Court to get the order of Chief Minister implemented who himself was Chief Executive of the Province but his orders were not complied with by the Karachi Water and Sewerage Board; whether employees of Karachi Water and Sewerage Board whose services were terminated could be reinstated by the Chief Minister on his own by taking suo motu action and by ignoring the prescribed procedure as enumerated in S.143, Sindh Local Government Ordinance, 1979; whether the downsizing/retrenchment policy had been implemented with the prior approval of Government of Sindh which resulted in an en bloc termination of the employees of the Board; and whether the controversy related to the terms and conditions of service and fell within the jurisdictional domain of Sindh Service Tribunal in view of S.2‑A of the Sindh Service Tribunals Act, 1973.
(b) Karachi Water and Sewerage Board Act (X of 1996)‑‑‑
‑‑‑‑Ss. 4 & 6(2)‑‑‑Retrenchment of employees of the Karachi Water and Sewerage Board during their probationary period‑‑‑Order of reinstatement of such employees by the Chief Minister of the Province‑‑‑Vice‑Chairman of the Board who was member of the Provincial Assembly, intervened in the matter of reinstatement of such employees and did not allow the functionaries of the Board to comply with or implement the orders of the Provincial Government or the Chief Minister‑‑‑Chairman of the Board being unable to perform functions as envisaged by S.6(2) of the Karachi Water and Sewerage Board Act, 1996, orders or directions issued on the matter by the Vice- Chairman were without lawful authority and of no legal effect and also lacked bona fides and suffered from not only lack of power but also malice‑‑‑Vice‑Chairman, while issuing the directions for not implementing the orders of the Chief Minister/Provincial Government, used the name of the Chairman as if he was directed by the Chairman of the Board to issue the orders in question, which again was contrary to the order of the Appellate Authority Le the i Provincial Government.
(c) Karachi Water and Sewerage Board Employees (Probation, Confirmation and Seniority) Rules, 1987‑‑
‑‑‑‑Rr. 3, 4, 5, 6 & 7‑‑‑Termination of services of probationers‑‑ Procedure‑‑‑Extension of period of probation‑‑‑Principles‑‑‑Initial period of probation, in the present case was extended for another period of one year and employees continued as such till 1997‑‑‑If no order had been made by the date on which the maximum additional period of probation expired, the employee's probationary period would be deemed to have been terminated with effect from the date on which the period of probation was last extended or deemed to have been so extended‑‑‑When the probationary period of the employees had not been extended for another period of one year, the period of probation would have stood extended by force of R.6(1)(b) of the Rules, for another period of two years‑‑‑Period of probation of employees having been terminated in the year, 1997 they were eligible for confirmation against the posts, held by them by virtue of R.7 of Rules‑‑‑ If employee who had become eligible by force of the said Rules for confirmation but no order was passed by the Authority concerned, he could not be treated a probationer, for the probation period by operation of the said Rules, stood terminated‑‑‑Such an employee would be deemed to have been confirmed.
(d) Karachi Water and Sewerage Board Act (X of 199)‑‑‑
‑‑‑‑S.13‑‑‑Retrenchment of employees of the Board‑‑ Appeal ‑‑‑Maintain ability‑‑‑Appeal under S.13, Karachi Water and Sewerage Board Act, 1996 against the decision of the Board would be heard and disposed of in such a manner as may be prescribed ‑‑‑Decision of retrenchment of its employees by the Board treating them as probationers was appealable before the Provincial Government and the Chief Minister being the Chief Executive of the province was competent and vested with the power to set aside the same to which no exception could betaken.
(e) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Arts. 199‑‑‑Karachi Water and Sewerage Board Act (X of 1996), S.13‑‑ Constitutional jurisdiction of High Court under Art. 199 of the Constitution‑ Scope‑‑‑Constitutional petitions were filed by the retrenched employees of Karachi Water and Sewerage Board seeking direction in the nature of mandamus for implementation of the order of the Chief Minister/Provincial Government passed in their appeals wherein they were ordered to be reinstated‑‑‑Maintainability‑‑‑Constitutional petitions were filed by the employees who were the beneficiaries of the order passed by the Provincial Government/Chief Minister in their appeals which were not allowed to be implemented by the Vice‑Chairman of the Board which was absolutely without lawful authority‑‑‑High Court, therefore, was under the law obliged to declare toe act of Vice‑Chairman as without lawful authority and direct the Board to give effect to the orders of the Chief Minister as it was not a case of enforcement, of any of the terms and conditions of the employees, they having already been reinstated by the Chief Minister in appeal‑‑‑View of the High Core that the employees should have approached the Service Tribunal against the order passed in appeal was not sustainable.
(f) Civil Services---
‑‑‑‑Probation‑‑‑Non‑extension of period of probation‑‑‑Effect‑‑‑If no order had been made by the date on which the maximum additional period of probation expired, the employee's probationary period would be deemed to have been terminated with effect from the date on which the period of probation was last extended or deemed to have been so extended.
Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Abdul Qadir Khan, Advocate Supreme Court and Mehr Khan Malik, Advocate‑on -Record for Appellants (in C.As. Nos. 1232 and 1235 of 2000).
Appellant in erson (in C.A. No. 1233 of 2000).
M. Bilal, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑ Record for Appellants (in C.A. No. 1234 of 2000).
Fazal‑e‑Ghani Khan, Advocate Supreme Court, M.S. Khattak, Advocate‑on‑Record and Raja Abdul Ghafoor, Advocate‑on‑Record for Respondents.
Date of hearing: 14th May, 2002.
JUDGMENT
MUNIR A. SHEIKH, J.‑‑‑By this common judgment, we propose to decide Civil (Appeals Nos. 1232 to 1235 of 2000 involving identical questions of law and facts.
2. These appeals by leave of the Court are directed against the judgment dated 4‑6‑1999 of the High Court of Sindh, Karachi passed in Constitutional petitions tiled by the appellants seeking writ of mandamus to get compliance of the order dated 13‑7‑1998 of the Chief Minister/Government of Sindh.
3. The facts forming the background of these appeals shortly stated are that the appellants were employed by the respondents‑Board in different scales against different posts in the year 1994. They were to remain on probation for an initial period of two years. Before the expiry of the said period of two years, probation period was extended for another period of one year which expired in the year 1997. Before the expiry of the said lastly extended period, the same was neither further extended nor any decision made or opinion recorded that their services were not satisfactory. The respondents‑Board according to its learned counsel in order to give effect to a policy decision made by the Federal and Provincial Governments to down size the establishment of the Board made a decision to terminate the services of the employees of the Board by way of retrenchment. In pursuance of the said decision, a number of posts were abolished and the services of the appellants terminated through order dated 11‑7‑1998 issued by the Managing Director ‑respondents‑Board by way of retrenchment purporting to be under rules 4(a) and 6(b)(c) of KW&SB Employees (Probation, Confirmation and Seniority) Rules, 1987 read with rule, 78(1)(2) and (3) of KW&SB Employees (General Conditions of Services) Rules, ‑1987 and KW&SB Resolution No. l dated 15‑6‑1991, Item 14(iii) of Delegation of Power in the following terms:‑‑
"Being a probation your services are hereby dispensed with, with immediate effect on LIFO basis as the post held by you stands abolished. However, benefits of eight months running basic pay are allowed service rendered (maximum 40 months basic pay).
You are, therefore, required to hand over complete charge immediately to the next senior employee of your cadre and obtain Clearance Certificate from your Office Incharge for the clearance of dues.
This issue with the approval of Chairman, KW&SB."
4. Since the services of a large number of employees were terminated which created commotion, for a large number of families were adversely affected on account of rendering them jobless, therefore, they made representation on 13‑7‑1998 against the said
order a copy of which was sent to the Government of Sindh i.e. the Chief Minister on 13‑7‑1998. The Chief Minister on the same date i.e., 13‑7‑1998 accepted the said representation in the following terms:‑‑
"C.C.'Directives Additional Personal Officer, Most urgent To Chief Minister, Sindh.
No. PA/AS(IMP‑II) CMS/98 Karachi, dated 13th July, 1998
To
The Managing Director, Karachi Water and Sewerage Board, Karachi.
Subject: RETRENCHMENT IN KARACHI WATER AND SEWERAGE BOARD
I am directed to state that the process of retrenchment of KW&SB employees is reportedly going on since last few days and there are reports that services of bulk of employees have been dispensed with.
2. The Honourable Chief Minister Sindh has viewed the above exercise with concern particularly when there is serious problem of un employment and has further been pleased to desire that all recent orders (dated 11‑7‑1998 or so) of the retrenchment should be withdrawn immediately and that no further retrenchment be carried but without his prior approval.
3. Accordingly I am to advise you for taking further necessary action in the matter under intimation to this Secretariat on urgent basis.
(Sd.) Soomro Muhammad Ibrahim, Addl. Secretary (IMP‑II)
Cc to:--- The Secretary to Government of Sindh, Local Government, Karachi."
5. The Managing Director of the respondents‑Board on the same date directed the Deputy Managing Director of the' Board to withdraw the letters of termination and stop the process of Manpower Reforms for the time being to implement the orders of the Provincial Government/Chief Minister.
6. On 14‑7‑1998, Mr. Haroon Siddiqui, who was MPA/Vice- Chairman KW&SB wrote a letter to Deputy Managing Director to the following effect:
"Reference: No. MD/DW/Geti‑13/98/267, dated July 13, 1998.
The matter has been brought to the notice of the Chairman KW&SB who is likely to discuss the same with the Chief Minister, Sindh in person. Until modify orders are received from the Chairman KW&SB, you are hereby directed to refrain to intervene in this matter."
7. The Managing Director of KW&SB in' furtherance of order of the Chief Minister on 18‑7‑1998 passed another order on the direction of the Chairman that all actions including' processing of bills etc., Manpower Reforms should be stopped forthwith till further orders. The attention behind passing this order was that the, case should not be further processed for making payment of dues to the appellants under the Manpower Scheme of retrenchment, for in the order of termination, it was provided that they were to be given benefit of eight months running basic pay up to maximum forty months basic pay. This order was wrongly interpreted by MPA/Vice‑Chairman, KW&SB as if payment of salary to the appellants on reinstatement had been stopped, who again intervened and issued direction to the Deputy ‑Managing Director that no bill for payment of salary of the reinstated employees under the order of Chief Minister should be prepared.
The order issued by the Vice‑Chairman reads as under:‑‑
"Reference: ‑‑No.KW&SB/Gen/98/1144 dated July 18, 1998
As per orders of the Chairman, KW&SB communicated by the Managing Director, KW&SB vide letter under reference, you are hereby directed to stop process of preparing salary bills of the incumbents whose services have been dispensed with. Compliance be reported immediately to the undersigned."
8. It is manifest from this order that he purported to have issued the same under the directions or orders of the Chairman. On 20‑7‑1998, a direction was issued by the Chief Minister to the Managing Director, KW&SB, Karachi to terminate the probation period of all those employees who had satisfactorily completed the same and consequently they may be confirmed forthwith but Mr. Haroon Siddiqui, MPA/Vice‑Chairman again intervened and issued the following directions:‑‑
"PLEASE NOTE AND COMPLY
Recently terminated employees who were all on probation according to the Managing Director KW&SB stand terminated in view, of the above directives of the Government. Please take necessar3 action accordingly."
9. On 1‑8‑1998, the Chief Minister again issued order that all the employees who had been reinstated earlier should be paid their salaries for full month of July, 1998 and that they would also continue on the roll of KW&SB under his advice. It was further directed that compliance of the above instructions be ensured in letter and spirit.
10. Feeling aggrieved by the intervention of the Vice‑Chairman who was not allowing the implementation of the orders of the Provincial Government or the Chief Minister, the appellants tiled Constitutional petitions with the following prayers:‑‑
PRAYER
In view of the above, it is most respectfully prayed that this Honourable Court may be pleased to:
(I) declare that the orders of the Vice‑Chairman are wholly without lawful jurisdiction and authority and hence null and void and of no legal effect or consequence;
(II) Grant mandatory injunction directing the Board to release the salary of the petitioners and to abide by the orders dated 1‑8‑1998 and 10‑8‑1998 of the Chief Minister, Sindh.
(III) Grant any other order/relief this Honourable Court deems appropriate in the circumstances of the case alongwith special costs. "
11. The Constitutional petitions appear to have been contested mainly on the ground that the questions raised by the appellants in those petitions related to their terms and conditions of service and by virtue of section 2‑A of the Service Tribunals Act, 1973, they as employees of the. Board were deemed to be civil servants, therefore, the Constitutional petitions were not maintainable on account of bar under Article 212 of the Constitution and their remedy, if any, was to approach the Service Tribunal by tiling an appeal. It was also defended on the ground that no writ in the nature of mandamus could be issued for mere compliance of an order passed by the public functionaries. The Division Bench of the Sindh High Court through judgment dated.4‑6‑1999 disposed of the said Constitutional petitions in the following terms:‑‑
"In the peculiar circumstances of this case where the Chief Minister of the Province has already provided relief to the petitioners, the case‑law cited by learned counsel for the petitioners is not of much help to their case. If the petitioners have a grievance in respect of violation of terms and conditions of service, the proper forum under the law to approach would be the Service Tribunal and if they have been rescued, as alleged, by the Chief Minister and Government of the Province; there remains no grievance to be redressed by the Court. It would be for the Chief Executive himself to get his official orders implemented. The petitions are without merits and are accordingly dismissed."
12. These appeals by leave of the Court are directed against this judgment of the Division Bench of the Sindh High Court‑Karachi. Leave was granted to consider the following points:‑‑
"(i) Whether writ of mandamus or writ of certiorari could be issued by the High Court to get the orders of Chief Minister implemented who himself is Executive Chief of the Province but his orders were not complied with by the Karachi Water and Sewerage Board?
(ii) Whether the employees of Karachi Water and Sewerage Board whose services were terminated could be reinstated by Chief Minister at his own by taking suo motu action and by ignoring the prescribed procedure as enumerated in section 143 (sic) of the Sindh Local Government (Amendment) Ordinance, 1983?
(iii) Whether the downsizing/retrenchment policy has been implemented with the prior approval of Government of Sindh which resulted in an en bloc termination of the employees of Karachi Water and Sewerage Board?
(iv) Whether the controversy relates to the terms and conditions of service and falls within the jurisdictional domain of Sindh Service Tribunal in view of the provisions as contained in section 2‑A of the Sindh Service Tribunals Act, 1973?"
13. Mr. Abdul. Hafeez Pirzada, learned counsel for the appellants in support of these appeals raised the following contentions:‑‑
(a) That Karachi Water and Sewerage Board has been created and constituted under Karachi Water and Sewerage Board Act, 1996 and its employees i.e., the present appellants are governed in all the matters inclusive of their service by the provisions of the said Act and the rules and regulations framed thereunder;
(b) that the Provincial Government under section 13 of the said Act is vested with the power of hearing appeals against the decision of the Board or the Chairman of the Board;
(c) that the employees of the Board in' respect of any decision made in connection or relating to their terms and conditions of service could file appeal before the Provincial Government against the decision of the Board and in case the said appeal is accepted and the decision of the Board reversed, the functionaries of the Board were under legal obligations to implement the said decision;
(d) that in the present case, the appeals presented by the present appellants/employees of the Board against the decision of the Board of retrenchment by way of Manpower Reforms and termination of their services through order dated 11‑7‑1998 in pursuance thereof were accepted and they stood reinstated, therefore, it was a case of implementation of the decision of the Provincial Government by the Board, as such, they were not required to approach the Service Tribunal as their grievance stood redressed by the appellate authority at the departmental level within the provisions of the Act;
(e) that Vice‑Chairman of the Board in the presence of Chairman was not vested with any authority or power to interfere and intervene in the matter and direct the Managing Director or other functionaries of the Board not to give effect or implement the decision of the Provincial Government/Chief Minister passed in appeal of the appellants of their reinstatement in service and payment of salary, therefore, his aforementioned orders issued from time to time were without lawful authority and of no legal effect but the learned Division Bench of the High Court declined to interfere on the assumption as if no prayer or writ in the nature of mandamus could be issued for implementation of the order of the Provincial Government by the Board which assumption had resulted not only in miscarriage of justice but also failure to exercise jurisdiction vested in the High Court in the matter;
(f) that the appellants were mala tide shown and treated as still probationers in order to terminate their services though they having successfully completed their initial period of probation of two years and even the extended period of one year after which they could not be treated as probationers, therefore, they had become permanent employees to which effect order was also passed by the Provincial Government or the Chief Minister for their confirmation though under the relevant rules and regulations, they shall be deemed to have stood confirmed with the termination of period of probation to which effect, the case was also referred to the Law Ministry of Sindh Government for opinion which opined that the appellant stood confirmed and were no longer on probation.
14. We have been taken through different provisions of the Act by Mr.Abdul Hafeez Pirzada, Senior Advocate Supreme Court in his endeavour to elaborate the abovementioned contentions raised by him and also the Karachi Water and Sewerage Board. Employees (Probation, Confirmation and Seniority) Rules, 1987 by which the appellants were governed in the matter of probation, seniority and confirmation and find considerable force in these contentions. The. Karachi Water and Sewerage Board was established under section 3 of the Act which provides that it shall be a body corporate, having perpetual succession and common seal with power subject to the provisions of this Act to acquire and hold property, both movable and immovable, and may by the said name sue and be sued. Under section 5 of the Act, the Provincial Government is vested with the power to appoint a Managing Director who was designated as the Chief Executive of the Board who, as such, could exercise all powers as Chief Executive of the Board in respect of all the employees of the Board subject to the' orders of the Chairman of the Board. Section 4 of the Act provides that the Board shall consist of a Chairman and a Vice‑Chairman appointed by the Government and the other members mentioned in the said section. Mr. Haroon Siddiqui. MPA was appointed as Vice‑Chairman of the Board by the Provincial Government who could function only as provided in section 6(2) of the Act which reads as under:‑‑
"6(2). When the Chairman by reasons of absence from Pakistan o, any other cause, is unable to exercise his powers and perform his functions, the Vice‑Chairman shall unless. Government may by notification entrust the duties of the Chairman to some other person, exercise powers and perform functions of the Chairman,"
15. Except this provision of the Act, there is no other provisions conferring any power or the authority on the Vice‑Chairman to perform any function or issue any direction in respect of any matter. It is not disputed by the learned counsel for the respondents that at the relevant tune when the Vice‑Chairman/PMA intervened in the matter and did not allow the functionaries of the Board to comply with or implement the orders of the Provincial Government or the Chief Minister the Chairman of the Board was unable to perform functions as envisaged by this provision of the Act. therefore the orders or directions issued in the matter by him as noted above were without lawful authority and of no legal effect and also lacked bona fides and suffered from not only lack of power but also malice. He while issuing those directions used the name of the Chairman repeatedly as if he was directed by the Chairman of the Board to issue those directions which were contrary to the order of the Appellate Authority i.e., the Provincial Government.
16. Learned counsel for the respondents could not point out from the record that any such direction was issued by the Chairman to the Vice -Chairman. As observed above, the Chief Executive of the Board was Managing Director and Managing Director immediately took steps after receipt of the order dated 13‑7‑1998 to implement the same and issued direction for not preparing any bill under the Man-powers Reforms for payment of any dues to the appellants‑employees whose services were terminated by way of retrenchment therefore, the Vice- Chairman had no legal justification to interfere and intervene in the matter.
17. Since in the orders of termination of service, the appellants were shown and described as…
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