Full Judgment Text & Judicial Ruling

2015 P L C (C.S.) 596

[Sindh High Court]

Before Nisar Muhammad Shaikh and Syed Saeeduddin Nasir, JJ

AKHLAQUE HUSSAIN MEMON and others

versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman and others

Constitutional Petitions Nos.D-1045 and 1139 of 2014, decided on 9th September, 2014.

Constitution of Pakistan---

----Arts. 199, 4 & 10-A---General Clauses Act (X of 1897), S.21---Constitutional petition---Maintainability---Civil service---Promotion---Withdrawal of notification of promotion---Vested right---Accrual of---Violation of principles of natural justice---Principle of master and servant---Applicability---Promotions of the petitioners were withdrawn after conducting departmental proceedings at the back of the petitioners without assigning any reason and issuing show-cause notices---Contention of the petitioners was that as the order of their promotion had been acted upon, therefore, the same could not be rescinded or recalled on the touchstone of principle of locus poenitentiae---Plea of the authorities was that Electric Supply Company being a separate entity had no statutory rules and the rules adopted by the Company had been borrowed from WAPDA, thus, constitutional petition was not maintainable---Validity---Constitutional petitions were maintainable under Art.199 of the Constitution for the reasons, inter alia, that the petitioners had been condemned unheard and there was no alternate, efficacious and speedy remedy available to them to enforce their rights---Affected persons were not made a party to the inquiry proceedings, which took place surreptitiously in a clandestine manner at the back of the petitioners and without giving them show cause notices, petitioners were served with the orders of demotions without affording them an opportunity of being heard---Despite the fact that petitioners were not governed by any statutory rules and that statutory intervention of Removal from Service (Special Powers) Ordinance, 2000 was also not there due to repeal of the same, nevertheless, petitioners were still entitled to invoke constitutional jurisdiction of High Court under Art.199 of the Constitution in order to enforce their Fundamental Rights under Arts.4 & 10-A of the Constitution---Inquiry proceedings were initiated at the behest of some obscure and illegal source, which was bereft of any legal or moral authority and was arbitrary, capricious, void ab initio, mala fide, tainted with malice, coram non judice and of no legal effect, therefore, were liable to be set aside---Constitutional petitions were allowed in circumstances.

Mubeen-Ul-Islam's case PLD 2006 SC 602; 2010 SCMR 487; Pakistan Steel v. Muhammad Aslam Chaudhry 2013 SCMR 375; 2013 PLC (C.S.) 229; Anisa Rehman v. PIAC 1994 SCMR 2232; Pakistan International Airlines (PIAC) v. Nasir Jamal Malik 2001 SCMR 934; Federation of Pakistan v. Noor Jamal 2004 SCMR 294; Federation of Pakistan v. Abdul Basit 2012 SCMR 1229; Mansab Ali v. Amir PLD 1971 SC 124; Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046; Mumtaz Hussain Bhutta v. Government of Pakistan 2014 PLC (C.S.) 229; Tahir Abbas v. FESCO 2011 PLC (C.S.) 354; Deedar Hussain Jakhrani and others v. Federation of Pakistan through Secretary Establishment and others 2011 PLC (C.S.) 203; 2001 SCMR 934; Karachi Development Authority v. Wali Ahmed Khan 1991 SCMR 2434; Walayat Ali Mir v. Pakistan International Airlines Corporation through its Chairman 1995 SCMR 650; House Building Finance Corporation through Managing Director, Karachi and another v. Inayatullah Shaikh 1999 SCMR 311; Muhammad Asif v. Federation of Pakistan 2013 SCMR 1205; Zahir Jan v Province 2003 SCMR 681; Pakistan International Airlines Corporation v. Shaista Naheed 2004 SCMR 316; Munsif Shah v. PEPCO 2013 PLC (C.S) 223; Habibullah Energy Limited v. WAPDA PLD 2014 SC 47; Ghazanfar Ali Khan v. F.O.P. PLD 2014 Lah. 375; Abdullah Ismail v. Sindh Industrial Trading Estate Ltd. 1997 CLC 783 and Pakistan v. Muhammad Himayatullah PLD 969 SC 407 ref.

Pakistan Defence Officers' Housing Authority v. Jawaid Ahmed 2013 SCMR 1707; Muhammad Nadeem Arif v. Inspector-General of Police 2011 SCMR 408 and Hyderabad Electric Supply Co.'s case 2010 PSC 1392 rel.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 789 and Executive District Officer (Education) v. Muhammad Younas 2007 SCMR 1835 distinguished.

Barrister Zamir Ghumro and Shahab Usto for Petitioners.

Zahoor Ahmed Baloch, D.A.-G. for Respondents.

Syed Jawaid I. Bukhari for PEPCO.

Muhammad Arshad S. Pathan for HESCO.

Dates of hearing: 11th, 12th and 18th August, 2014.

JUDGMENT

SYED SAEEDUDDIN NASIR, J.--- By this common judgment, we intend to dispose of aforementioned two constitutional petitions; inasmuch as, the points of law involved in both these matters are similar and the facts are also almost identical.

2. Facts of the case, in brief, are that the petitioners are graduate engineers (B.E. Electrical) and have more than 12 years' service at their credit in BS-16. The petitioners were considered and promoted as Graduate Engineers BS-17 in the light of decision of the Board of Directors, in its 83rd meeting held on 29-6-2012 and pursuant to recommendations of promotion board as well as approval of CEO HESCO vide office order dated 11-10-2013. Therefore, it can easily be said that the petitioners were found eligible for promotion and were promoted after fulfilling all legal formalities. The petitioners were performing their duties as Junior Engineers (BS-17), in HESCO since 11-10-2013 and were receiving their salaries and other benefits as admissible under the rules, however, vide Office Order dated 27-5-2014, the validity of which has been impugned by way of this petition by the petitioners, the promotion order of the petitioners dated 11-10-2013 was cancelled and the petitioners were reverted to the post of LS-1 (BE holders). It is next stated in the petitions that upon investigation, it transpired from the impugned order that the same had been issued in pursuance of the recommendation of an Enquiry Committee, the proceedings of which were initiated and made behind the back of the petitioners and the petitioners were never made a party to any enquiry proceedings, nor they were informed about the allegations being enquired into by the Enquiry Committee. Thereafter, the impugned order was also issued without first providing an opportunity of hearing to the petitioners to defend themselves at the enquiry proceeding. The petitioners were never issued any show-cause notice by the respondents and, according to the petitioners, they were condemned unheard.

3. Messrs Barrister Zamir Ghumro, the learned counsel for the petitioners in Constitutional Petition No.D-1045 of 2014 submitted that for the manifest reason, the impugned order is not sustainable under the law and has been issued in sheer defiance of principle of natural justice and in violation of settled principles of law. The petitioners are shocked and stunned by issuance of the impugned order dated 27-5-2014, whereby the promotions made in favour of the petitioners have been withdrawn. They further submitted that the impugned order does not mention any reason whatsoever for taking such an action against the petitioners; the impugned order has been issued in hast and suffers from serious illegal infirmities; inasmuch as, the settled principle of natural justice has been deliberately disregarded; the impugned order has been issued without considering that the earlier Notification pertaining to the promotions of the petitioners, which had been acted upon as petitioners started receiving their respective remunerations and benefits of BPS-17. Furthermore, the impugned order was issued without considering the vested rights which have been accrued in favour of the petitioners and cannot be destroyed without giving ample opportunity of hearing to the petitioners of being heard. Learned counsel for the petitioners next argued that the impugned order dated 27-5-2014 has been issued in violation of section 21 of the General Clauses Act, 1897 and is ultra vires, illegal and unlawful; that under the doctrine of locus Poenitentiae, as enshrined in section 21 of General Clauses Act, 1897, a decision can be withdrawn but only as long as decisive steps have not been taken and vested rights have not been created. In the present case, decisive steps have been taken, when the petitioners were remunerated in BPS-17 for approximately 8 months and consequently vested rights were created. It was, therefore, not available to the departmental authority to withdraw such a vested right without even issuing a notice to the petitioners. For the sake of convenience section 21 of General Clauses Act, 1897 is reproduced as under:---

"21. Power to make, to include power to add to, amend, vary or rescind orders, rules or bye-laws. Whereby by any [Central Act] or Regulation, a power to 11[issue notification], order, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any 12[notifications], orders, rules or bye-laws so issued]."

4. Learned counsel for the petitioners next argued that valuable rights created in favour of the petitioners have been revoked by the impugned action without giving the petitioners an opportunity of hearing; unless excluded by law, the rules of natural justice require that an order passed by a competent authority conferring rights on third party cannot be recalled without serving a show-cause notice, granting hearing and giving valid grounds for the decision taken, otherwise, not only would vested rights be subject to whim and fancies but the sanctity and force of the order of the competent authority would also vitiate; section 21 of the General Clauses Act, 1897 postulates that an authority which passes an order is competent to vary, rescind or cancel the order passed by the authority but such power is not absolutely as the same is subject to certain limitations. When the order sought to be varied or cancel is communicated to other party, a valuable right accrues to the party and the issuing authority becomes functus officio to vary, rescind and/or cancel its earlier order. Learned counsel further argued that no adverse order can be passed against a person without affording the other person a chance of hearing. In the present case, the impugned order not only violates the principle of natural justice, but is also in contravention of Articles 4, 9, 14 and 18 of the Constitution of Islamic Republic of Pakistan, 1973. It is well-settled law that no one should be condemned unheard and the impugned order adverse to the interest of the person has been passed behind his back and without providing him an opportunity of hearing. Article 4 of the Constitution provides a due process and mandates that everyone is to be treated in accordance with law. Administrative discretion, which is structurally unfettered and discriminatory cannot be said to have been exercised in accordance with law and, therefore, fails to pass the test of due process under Article 4 of the Constitution. Learned counsel submitted that the reversion is a penalty and the same cannot be imposed except in disciplinary matters that too strictly in accordance with law and after conducting regular enquiry and after making the person party to such enquiry proceedings, which are going to ultimately affect adversely such person; the impugned order has been issued in violation of certain principles of law and natural justice i.e. audi alterm partem, therefore the learned counsel for the petitioners submit that the impugned order dated 27-5-2014 should be declared as ultra vires, illegal, unlawful, without jurisdiction and of no legal effect.

5. Controverting the argument of the learned counsel for the petitioners. Mr. Muhammad Arshad S. Pathan, the learned counsel for respondents Nos.2 and 3 has vehemently argued that the respondent No.2 HESCO being a separate sanctity having no statutory rules and under the Notification of PEPCO, the rules have been borrowed from the WAPDA, therefore, the petitions merit no consideration and are liable to be dismissed on that score alone; the petitions are not maintainable, as the HESCO, which is working under the management of PEPCO as per the orders issued by the Government of Pakistan, Ministry of Water and Power, which has been reproduced by PEPCO in their office orders dated 17-10-2007 and 20-10-2007; the formation of DISCOs, which has been made under the management of PEPCO and having no statutory rules except by office order dated 8-1-2008, issued by PEPCO wherein it has been made clear that the companies will continue to be governed for all intents and purposes by rules and orders enforced in WAPDA and such arrangement shall be valid until such time, as the companies notify their own Service Rules and Regulations. This clearly proves that HESCO having no statutory rules, its actions are not amenable to writ jurisdiction of this Court. In this regard, learned counsel for respondents Nos.2 and 3 has placed his reliance on the case of Mubeen-Ul-Islam reported in PLD 2006 Supreme Court 602 and subsequent decision by the apex Court reported in 2013 SCMR 1707, wherein, according to him, the honourable Supreme Court of Pakistan held that "where condition of service of employee of a statutory body are not regulated by rules/regulations framed under the statutes but only rules or instructions issued for its internal use, in violation thereof cannot normally be issued for writ jurisdiction" and in the present case admittedly HESCO having no statutory rules, as has been admitted by the petitioners in their petitions, makes the petitions not maintainable. He further contends that maintainability in the present case before travelling towards merits is the sole consideration and should be taken up first by this Court; besides, that the petitioners have failed to point out any illegality in the order or the observations of the enquiry, held/conducted in full-fledged manner by the PEPCO authorities through their superior officers and the petitioners have failed to challenge the same, as they did not question the same anywhere, pursuance to which order dated 27-5-2014 has been issued in pure compliance thereof. He further argued that as far as the merits of the petitions is concerned, besides the maintainability of the same, the order in respect of the promotions of LS-I to SDO were illegally got issued/obtained by playing fraud and misrepresentation as there was no post available against promotion quota for UTS (upper technical subordinate) Graduate Engineers and the Board of Directors of HESCO in its 83rd meeting never approved 10 available seats of direct appointment/direct induction quota to 5% promotion quota reserved for UTS Graduate. He next argued that there are number of BE Pass employees inducted LS-I and for that 5% promotion quota is fixed, which is also reflected in the order dated 11-10-2013, which has been withdrawn by the authority, as being illegal and unlawful vide order dated 27-5-2014, which was based upon the report of the high level enquiry committee regarding the illegality and irregularity committed by the individual for the reasons best known to them. He also argued that as soon as the promotion orders of the petitioner were issued and came to the knowledge of the Union and general public, a lot of complains were made from all corners and such enquiry was conducted by the PEPCO, and such fact also came to the knowledge of M.D. PEPCO and being the top man in the hierarchy of PEPCO, PEPCO authorities have taken serious action whereby the then Admn. and HR Director HESCO has initially been suspended and was ordered to report to Head Office PEPCO and disciplinary proceedings are under process against the HESCO officials; the office order dated 11-10-2013, wherein it has been mentioned that the decision of Board of Directors in its 83rd meeting agenda No.3 and on the recommendation of Promotion Board as well as approval of Chief Executive HESCO Hyderabad on 11-10-2013 basing upon which the order dated 11-10-2013 was issued, it is relevant to mention that in the minutes of 83rd meeting, which is annexed with the instant petition at page-43, agenda No.3 is titled as "conversion of 10 posts of Matriculation Quota of Upper Technical Subordinate to Graduate Quota for accommodation of qualified UTS as Junior Engineer in HESCO recommended by HR Committee". In furtherance of the Above, agenda No.3 (available at page-43), further reveals that the then Admn & HR Director briefed that they had 37 vacant posts of Junior Engineers to fill in these posts the policy says that ratio 70:30 is adopted. The 70 posts required to fill in from direct quota and 30 through promotion. The promotion quota is further distributed as under:---

"(i)

Upper Technical Subordinate (LS-I/ SSO-I).

BE

5%

(ii)

Upper Technical Subordinate (LS-I/ SSO-I).

B.Tech

5%

(iii)

Upper Technical Subordinate (LS-I/ SSO-I)

Diploma holders

12.5%

(iv)

Upper Technical Subordinate (LS-I/ SSO-I)

Matriculation

7.5%

Learned counsel for respondents Nos.2 and 3 also argued that perusal of the above clearly reveals that the quota detailed above, is to be observed, but in the present case the then Admn and HR Director failed to explain and place the correct figure. He further argued that even approval of agenda No.3 of 83rd Board of Directors' meeting wherein the conversion of 10 posts of Matriculate quota has been recommended, is to be taken into consideration according to the aforesaid chart, but not even single post was available for promotion in matriculation quota, but the office order dated 11-10-2013, which got issued by the petitioners in collusion with the then Admn and HR Director, was illegal unlawful and without any lawful authority and for the time being cannot be enforced; that the provision of section 21 of General Clauses Act, 1897 cannot be applied in respect of the illegal and void orders, which are by no means sustainable under the law. The allegation regarding withdrawal of the order by the HESCO alone also lost its force; inasmuch as, said order is based upon hi-fi enquiry conducted by the PEPCO Authority and in compliance thereof the Enquiry Committee not only suggested to withdraw the said order but also suggested penal action against the officials involved, as such the allegation levelled against the officials of HESCO presently working has no force. He submitted that the enquiry in the above matter has been conducted on the basis of complaints of the Chairman, Labour Union (CBA) and MD PEPCO, who came to know about the illegal and unauthorized promotions and the outcome of the enquiry and consequent withdrawal of promotion order has already been acted upon. In support of his contentions, learned counsel for the respondents Nos.2 and 3, relied upon PLD 2009 SC 789, 2010 SCMR 487, 2013 SCMR 1707, 2007 SCMR 1835, 2013 SCMR 375, 2013 PLC (C.S.) 229 and 2011 SCMR 408.

6. In Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 789), the Judges of the Superior Courts, who were appointed as Judges/Chief Justices of the High Courts between 3-11-2007 to 22-3-2009, were removed from their offices and were declared as unconstitutional, void ab initio and of no legal effect; inasmuch as, Mr. Justice Abdul Hameed Dogar was declared as was never a Constitutional Chief Justice of Pakistan, therefore, appointments of all Judges of the Supreme Court of Pakistan, Chief Justices of the High Courts and Judges of the High Courts, made in consultation with him were also declared as unconstitutional, void ab initio. In this case the Honourable Supreme Court had denied the hearing in the interest of natural justice and observed that the determination of the principle of Audi Alterm Partem could not be pressed into service, which otherwise was not universally recognized due to certain limitations and further observed that issuance of show-cause notices was not a principle of universal limitation.

7. The learned counsel for respondents Nos.2 and 3 has made an effort to equate the facts and circumstances of this case to the case in hand and has submitted that the petitioners did not have a right to be heard before passing of the impugned order and that demotion of the petitioners to their previous rank/grade has not effected their eligibility, integrity, entitlement, qualification and their removal to the previous rank/grade, from which they were promoted did not amount to a stigma. In our view, this judgment was passed in peculiar circumstances and cannot at all be applied to the facts and circumstances of the present case and, therefore lends no support to the contention of learned counsel

8. The next case relied upon by learned counsel for the respondents Nos.2 and 3 is Pakistan Defence Officers' Housing Authority v. Jawaid Ahmed (2013 SCMR 1707). The relevant portion of this judgment is reproduced as under:---

"50(ii). Where conditions of service of employees of a statutory body are not regulated by Rules/Regulations framed under the Statute but only Rules or Instructions issued for its internal use, any violation thereof cannot normally be enforced through writ jurisdiction and they would be governed by the principle of 'Master and Servant'."

Therefore, the learned counsel asserts that relationship of the petitioners and the respondents Nos.2 and 3 is one that of 'Master and Servant' and since the rules and instructions issued for the internal use of respondent No.2, any violation thereof cannot be enforced through writ jurisdiction and, therefore, the present constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is not maintainable. Interestingly, the same judgment has been relied upon by Mr. Zamir Ghumro, the learned counsel for the petitioners. He while arguing his case on the point of maintainability of instant petition, has referred to the aforesaid judgment, the relevant partition of which is as under:---

"59. For what has been discussed above, the cases of this Court reported as (Pakistan International Airlines Corporation PLD 2010 SC 676, Executive Council Allama Iqbal Open University 2010 SCMR 1484 and Hyderabad Electric Supply Co. 2010 PSC 1392 Supra), we observe with respect, did not declare or enunciate any principle of law but were rendered in their own peculiar facts and circumstances and may not be treated as precedent on the issue we are seized of, because:---

(i) The issue before this court in Executive Council Allama Iqbal Open University supra was only whether the Service Tribunal had jurisdiction to hear the appeal in view of the law laid down in Mubeen-us-Salam's case supra and whether the writ jurisdiction under Article 199 of the Constitution could be invoked in the event of violation of Ordinance, 2000.

(ii) In all the above cases, the point that irrespective of the Rules/Regulations being non-statutory the promulgation of Ordinance, 2000 was a statutory intervention and any violation thereof would be amenable to writ jurisdiction was not considered. In Hyderabad Electric Supply Co. 2010 PSC 1392 Supra, there was no allegation that there was any violation of any provision of the Ordinance, 2000 and enforcement of Service Rules was sought which were found to be non-statutory.

(iii) Neither the mandate of Articles 4 and 10A of the Constitution nor the law laid down in Civil Aviation Authority through Director-General v. Javed Ahmed (2009 SCMR 956) and Azizullah Memon v Province of Sindh (2007 SCMR 229) was considered in those cases."

9. The next case relied upon by learned counsel for the respondents Nos.2 and 3 is Executive District Officer (Education) v. Muhammad Younas (2007 SCMR 1835) wherein it was held that "Principle of locus poenitentiae would not be attracted to an order of appointment secured by fraud and misrepresentation." This case-law has been relied upon by learned counsel for the respondents Nos.2 and 3 in the backdrop of his arguments that the promotion orders of the petitioners were obtained by playing fraud and misrepresentation. This case also does not lie support to the arguments of learned counsel for respondents Nos.2 and 3; inasmuch as it cannot be unilaterally decided by the respondents Nos.2 and 3 as to whether or not any fraud or misrepresentation was played by the petitioners for their promotions without affording an opportunity of being heard. The factum of fraud and misrepresentation can only be established after holding a free and fair enquiry, to which the present petitioners should have been a party and should have been allowed to defend themselves under due process of law, which admittedly has not been done in the present, therefore, the case-law cited by learned…

Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.

Related Legal Research & Directories

• Browse all judgments from Sindh High Court
• Search Pakistani statutes: Constitution of Pakistan 1973, PPC, CrPC, CPC & Family Laws
• Analyze this case with Al Wakeelo AI Legal Assistant