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Petitioner: NAZRUL HASSAN SIDDIQUI and others VS Respondent: FEDERATION OF PAKISTAN and JUDGMENT
Court Name: Sindh High Court Judge(s): Sayed Saeed Ashhad, S. A. Sarwana Title:NAZRUL HASSAN SIDDIQUI and others vs FEDERATION OF PAKISTAN and
JUDGMENT
Reported As: 1999 YLR 1984 Result: Petitions dismissed Judgment JUDGMENT ' S. SAEED ASHHAD; J.---In the aforesaid two Constitutional petitions the petitioners have sought the following identical reliefs:-- (a)Declare that section 11(4)(5) and (8) of the impugned amendment Act being ex facie discriminatory is void. (b)That all orders taken in pursuance of the policies of removal be declared as without lawful authority as such void. (c) That the petitioners should be given an opportunity to opt for the golden handshake scheme at will or in the alternative be paid the amount they would, have received . At the age of superannuation. (d) That the President of Habib Bank Limited be restrained- from formulating further such policies to render thousands jobless and induct in the Bank personnel from outside at outlandish salary package. (e)Any further relief's that be permissible in circumstances of the case. ' The brief facts requisite for the disposal of the aforesaid Constitutional petitions are that the petitioners were in the service of M/s. Habib Bank Limited since a, long time. The services of the petitioners were terminated with effect from 23-8-1997. On the ground that either they had completed 25 years of service or were 55 years of age, It was further submitted by the petitioners that M/s. Habib Bank Limited was a private Bank owned by. Habib Group which was nationalised in 1974 under Banking Nationalization Act, 1974 (hereinafter, referred to as the Act of 1974) which' postulated under section 9 a Banking Council by the name of Pakistan Banking Council with the
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functions to formulate policy guidelines for Banks laying down performance criteria for Banks; and taking steps ensuring' their observance. The general provisions relating to' the management and working of the Banks were contained in section 11 of the 1974 whereby nationalized Bank was to have an Executive Board headed by a Chairman, having amongst others function of superintendence of all the affairs and business of the Bank. It was further averred on behalf the petitioners that the Chairman of the Executive Board acted as a Check on the exercise of powers by the President and the Executive Board which did not have unfettered powers to make decisions relating to the management of the Bank and further that the President could not 'take a policy decision without the approval, of the Executive Board nor the Executive Board-had the power to take any action in the form of a policy decision without the approval of the Pakistan {{BLUR PAGE}} Banking Conric,i1.44oglewprm:;itityofri; Aymedli Oiatr,the-;;Vg. I !Virg Pcs0 (J.k1134,414,,Wilci Ack. ,if,9)917id reinafter reftwes,1 Nips ,the AmenklingiAgt., 01 1997/. b3l. changes were;inol:Ppi,fift ;44g iltqc,i1411ff519,7,4(i whereby ;Pakiskan,(104iiikjgg tcpAIN w47. dimoived anti :g9pPlat s1tPFYisiggnot4114ci rfr.Csi ly)titiortndi {{BLUR PAGE}} management of the affairs and business of the Bank including overall policy making/ decision was vested in the Executive Board headed by the President as its Chief Executive. The petitioners further averred that all the powers hereto before vesting and exercisable by the Pakistan Banking Council'' -. Were vested in the Executive Board headed by a Chairman and in his absence the President, including making of the policies relating to the appointments and removal of officers and employees. The petitioners submitted that section 11(5)(iii) of the Amending Act of 1997 conferred 'arbitrary powers on the Executive Board of hiring and firing officers and employees in accordance with a policy decision laying the criteria or classification of the officers/employees to be removed arbitrarily and in exercise of unbridled powers. It is the case of the petitioners that after conferment of powers on the Executive Board and in the absence of a Chairman having been appointed or elected as per section 11(7) of the Amending Act of 1997 to Head the Executive. Board, the management of Habib Bank Limited issued three policies under the garb of downsizing the bank as a result of which a number of officers/ employees who were 58 years of age or above were torced to go on leave handing over the charge to their immediate juniors and 1078 employees/officers who had either completed 25 years of service or had attained the age of 55 years were retired on 23-8-1997. It was further submitted that by such arbitrary decision of the management of Habib Bank the affected officers/employees were deprived of five years' salaries together with the benefits and perquisites attached to their salaries as well as the pension and other retirement benefits to which they would have been entitled to after putting in further five years 'of service. The further grievance of the petitioners is that the object of the policies formulated by the management of Habib Bank was to get rid of the officers/employees who had been appointed in the Bank prior to its nationalization in 1974; that on retirement of above 1078 officers/employees, every zone was without a Zonal Chief and almost every important branch was without a manager. This was also stated to be against the policy which is usually followed in cases of genuine downsizing or retrenchment according to which the meritorious and experienced officers/employees are retained and the principles of first come first go which is to be adopted in such situation was grossly violated. The petitioners submitted 'that the aforesaid decisions were mala fide, in excess of jurisdiction and with ulterior motives which was evident from the fact that three of the officers terminated in pursuance of the aforesaid decisions were re-employed. The petitioners further submitted that action of management of Habib Bank was violative of Article 8 of
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the Constitution of Pakistan, was violative of principle of natural justice as no show-cause notices were issued to the petitioners/terminated, officers before sending them on leave .And/or terminating them which was also violative of the law laid down by the Federal Shariat Court and the Supreme Court of Pakistan, that the criteria for terminating officers/employees who had completed 25 years of service or had attained 55 years of age was without any rational and was arbitrary, that the Executive Board of Habib Bank did not pass or endorse the above orders, that they were violative of Articles 9 and 18 of the Constitution of Pakistan as they deprived the petitioners of their means of sustenance, that the impugned orders were discriminatory and arbitrary and as such violative of Article 25 of the Constitution of Pakistan inasmuch as the management of Habib Batik Limited had removed most experienced staff without consideration of the meritorious services rendered by them. As the petitioners failed to obtain any positive response or justice from any other quarter they approached this Court by means of the aforesaid Constitutional petitions praying for the reliefs herein above mentioned ' We have heard the arguments of Ms. Tehnyat Farooq, Advocate for the petitioners, Mr. Nairn-ur- Rehman, the learned Dy. A.-G., and Mr. Makhdoom All Khan, Advocate for respondents Nos.2 and 3, have perused the Material on record, the provisions of the relevant laws applicable to the facts and circumstances of the two petitions and the .Case-law relied upon by the aforesaid learned counsel in support of their respective arguments, Mr. Naim-ur-Rehman, adopted the arguments advanced by Mr. Makhdoom Ali Khan. ' Mr. Makhdoom All Khan, learned counsel for respondents Nos.2 and 3 raised a preliminary objection with regard to the maintainability of the aforesaid two petitions On the ground that after the addition/incorporation of section 2-A in the Service Tribunals Act by the Service Tribunals (Amendment) Act of 1997 effective from 10-6-1997, the petitioners have become civil servants for the purpose of Civil Servants Act and are required to invoke the jurisdiction of the Service Tribunal in respect of any grievance or violation relating to the terms and conditions of their service. He further submitted that admittedly petitioners have been terminated/removed/retired from the service of M/s. Habib Bank Limited and the issue of termination/retirement/removal fell within the purview of the terms and conditions of services of the petitioners and by virtue of provisions of Article 212(a) of the Constitution of Pakistan, the petitioners were not entitled to invoke the Constitutional utrisdiction of this Court for redress of their grievances. In support of his above contention Mr. Makhdoom Ali Khan has referred us to the following authorities:- (1) United Bank Limited and others v. Ahsan Akhter and others, reported in 1998 SCMR 68. In this case the Supreme Court while considering the question of maintainability of a' Writ Petition by an employee of a Bank for wrongful termination of service observed that in the absence of any provision of statute or statutory rules, the relationship between a corporation and its employee was that of a master and Servant and the appropriate remedy available to the terminated employee would be that of a suit for damages. The Hon'ble Supreme Court vehemently rejected the contention raised on behalf of the United Bank Limited employees that the rule of master and servant was no longer applicable after the judgment of the Supreme Court in the case of Mrs. Anisa Rehman v. PIAC and others reported in 1994 SCMR 2232. The observations made by the Supreme Court in this case clearly lead to an inference that an employee of a corporation would not be entitled to invoke Constitutional jurisdiction of this Court in respect of any grievance relating to the terms and conditions of his service. (2) Ghulam Mustafa Khairati y. Federation of Pakistan, reported in 1998 PLC (C.S.) 1078. In this case the Supreme Court was pleased to hold that after the amendment in the Service Tribunals Act, 1973 by the Amendment Act XVII of 1997 that section 2-A incorporated in Service Tribunals Act had retrospective effect and an employee of a Bank after the aforesaid amendment could approach
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the Service Tribunal alone for redress of his grievance relating to termination of service. The Supreme Court further held that the High Court was justified in disposing of the Appeal with the direction that the petitioner should approach Service Tribunal. The Supreme Court in deciding the aforesaid case relied on the pronouncement made in the case of . Muhammad Afzal v. KESC, Civil Appeal No, 1513 of 1998. (3) S. Aftab Ahmed v. Karachi Electric Supply Corporation, C.P. NO.1305-K of 1997,, decided on 16-4- 1998. This petition along with several other petitions filed by the employees of M.'s. Pakistan International Airlines, Pakistan State. Oil, Habib Bank Limited, Pakistan Steel, Agricultural Development Bank of Pakistan and others were dismissed. The brief facts of this case are that the petitioners Aftab Ahmed and several other employees of the aforesaid corporation/Banks filed - appeals before the Service Tribunal after abatement of their Constitutional petitions pending in the High Court on account of the incorporation of section 2-A in the Service Tribunals Act The Service Tribunal &missed the appeals on the, ground that the" cause of action , to the petitioners/appellants had accrued prior to the amendment and they could not approach the Service Tribunal for any wrongful -act or grievance prior to the aforesaid amendment. The petitioners filed the an evade Constitutional petitions in the Supreme Court - against the order of the Service Tribunal and;, the Supreme Court by its aforesaid judgment observed that the Service Tribunal was not justified in dismissing the appeals of the petitioners as they having been declared civil servants by the newly -incorporated section 2-A, their remedy for any wrongful act or grievance relating to the terms and conditions of their service lay before the Service Tribunal and not the High Court. The Hon'ble Supreme Court directed. The Service Tribunal to dispose of the appeals filed by the petitioners on merits. The pronouncement made by the Hon'ble Supreme Court in the aforesaid cases leave no room for doubt that an employee of a corporation,, a company owned by the Federal Government or a nationalized Bank is to be treated as a civil servant with regard to the forum to which he has to approach for redress of his grievances relating to the terms and conditions of his service and that such forum is the Service Tribunal and a Constitutional petition challenging the wrongful dismissal/ termination or any other illegal action of the employer relative to the terms and conditions would not authorise him to invoke the Constitutional jurisdiction of this Court. ' Ms. 'Tahnyat, learned counsel appearing for the petitioners did not controvert the arguments of Mr. Makhdoorn Ali Khan, relating to the status of the petitioners and conceded that after -2 addition/insertion of section 2-A in the Service Tribunals Act, the petitioners have acquired the status of civil servants for the purposes of Civil Servants Act. She also conceded that the issues and the questions raised or agitated by them in this petition fall within the terms and conditions of their service and normally the petitioners would have to approach the Service Tribunal for the redress of their grievance relating to arbitrary, mala fide, and illegal retirement/termination/removal from the service of M/s. Habib Bank Limited. She, however, submitted that the petitioners in addition to have challenged or questioned the policy decisions framed by the management of Habib Bank Limited and the orders in pursuance thereto retiring/removing/ terminating the petitioners from the service of Habib Bank Limited have above challenged the conferment of excessive and unlimited power on the. Executive Board and its President by the amended section 11(5)(iii) of the Act of 1974. It was submitted by her that amendments brought in the Act of 4-974 by the Amending Act, of '1991, ;unfettered, unlimited and excessive powers have been conferred on the Executive Board and the President of the Banks for formulation of the policies relating to the management, governance and running of the business of the Bank as well as the appointments and removal of the officers/employees which the Legislature had not intended to confer on the executive Board and the President in promulgating the Act of 1974, which is evident from the fact that a body by the' name of Pakistan Banking Council was established with a view to frame the policies far the
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management, governance and running of the business of the Banks including the policies for appointments and removal of the officers/employees so that uniform policy was in existence for all the nationalized banks and further that the Executive Board and its President was kept within limits and not allowed to frame arbitrary, mala fide, and illegal policies. She further submitted that the object of filing of this petition was to challenge the vires and the legality of section 11(4)(5) and (8) of the Amending. Act, 1997.And that challenge-to any provision of a statute can. Only be made 'by invoking Constitutional jurisdiction of this Court. She further submitted that the challenge to the legitimacy or the vires of a statute or any provision of a statute cannot be made in, an appeal before the Service Tribunal as the Service Tribunal is a Tribunal of limited jurisdiction having been constituted by the Service Tribunals Act, 1973 with specified and restricted powers and jurisdiction as enumerated in the Service Tribunals Act, and would not have the power or the authority to decide the questions relating to the mala fides, legality and vires of a statute. Finally, she submitted that the Service Tribunal being a Tribunal/Forum of limited jurisdiction {{BLURE PAGE}} wattld'ltbt!''be :ConitJetetit ; e6m4i6vergy 'With -teg4d Ittie ma a' fides, fanitIV I ries 76f Vie Ad' which,"-) -egtiferred Ititifettered ' Unlimited IpoWerS-"Ori- Board of the Nationalked Banks:rarid'the !Pditioner had Other IreinedY Mailable ib:ihein but to;file the aforesaid Constitutional' petitions'. {{BLURE PAGE}} ' Mr. Makhdoom Ali Khan, learned counsel for respondents Nos.2 and 3 in reply to the arguments raised by Ms. Tahnyat Farooq submitted that the arguments advanced by her did not merit consideration inasmuch as if the same were to be accepted then every civil servant would by pas the Service Tribunal and would approach this Court by invoking the Constitutional jurisdiction merely by challenging the provision of any statute having any relevance to, their services and raising false and frivolous grounds of mala fides, illegality .And unconstitutionality of the provisions of such statute in a petition for challenging his removal/dismissal/termination/retirement or any other issue relating to, the terms and conditions of his service. He further submitted that in such 'circumstances in the garb of challenging the legality, constitutionality and vires of a statute, the civil servants would start invoking the jurisdiction of this Court bypassing the normal remedy available to them. Which would amount to circumventing the law and rendering the provisions of the Service Tribunals Act as redundant and surplus. He further submitted that the concensus of opinion of the Supreme Court and High Courts in Pakistan is that even a Tribunal/Forum of limited jurisdiction owing its creation and exercising powers conferred on it by a statute an go into the questions of the mala tides, legality and vires of a statute. Notwithstanding the fact that the petitioners have challenged the legality and vires of the Amending Act of 1997, these Constitution petitions are misconceived, not maintainable and are liable to be dismissed. In support of his contention that the Service Tribunal has the jurisdiction to entertain and determine the question whether the amendment Act of 1997 was promulgated with mala fide intention and was illegal as it conferred unfettered, unlimited and arbitrary powers, he relied upon the following cases:-- (1) Sayed Sagheet Ahmed Naqvi v. Province of Sindh and another (1996 SCMR 1165); (2) I.A. Sherwani and others v. Government of Pakistan and others (1991 SCMR 1041); (3) Humayoon Saifullah Khan v. Federation of Pakistan and others (PLD 1990 SC 599; (4) Ekhan Ahmed Khurram v. Government of Pakistan and others (PLD 1980 SC 153; (5) Abdul Bari v. Government of Pakistan and 2 others (PLD 1930 Karachi 290); (6) lqan Ahmed Khurram v. Government of Pakistan and others (PLD 1979 Karachi 610); (7) Fazel Ellahi Aijaz v. Government of Punjab and others (PLD 1977 Lahore
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549); (8) Muhammad Hashim Khan and others v. Province of Balochistan and others (PLD 1976 Quetta 59). ' Ms. Tahnyat Farooq in support of her contention submitted that the Service Tribunal would have no jurisdiction to entertain and determine the controversy with regard to the legality, mala tides and vires of the Amending Act, 1997 conferring unfettered and unbriddled powers on the Executive Board and the President of the Banks to frame arbitrary and discriminatory policies relating to the terms and conditions of service of the officers/employees of the Banks. She further submitted that these petitions were proper and maintainable and relied on the case of Pir Sabir Shah v. Shad Muhammad. Khan and another (PLD 1995 SC 66) in support of her contention that the Service Tribunal could not exercise jurisdiction to examine and decide the issue relating to legality, mala fides and vires of a Statute. ' Examining the cases relied upon by Mr. Makhdoom Ali Khan it is to be observed that in the first case of Sayed Sagheer Ahmed Naqvi (1996 SCMR 1165), the Supreme Court observed that the jurisdiction of the Service Tribunal, extended not only to examine and determine the merit of the claim both on the legal as well as on the factual ground but even the Constitutional issues could be taken' before the Service Tribunal and dealt with in exercise of its exclusive jurisdiction. A similar observation was made by the Supreme Court in the case of I.A. Sherwani v. Government of Pakistan (1991 SCMR 1041) and it was further observed that a civil servant could not bypass Service Tribunal by adding the ground of violation on the fundamental rights and the Service; Tribunal would have jurisdiction in a case which is founded on the terms and condition of the service even if it involved the question of violation of the fundamental rights. ' In the case of Humayoon Saifullah v. Federation of Pakistan (PLD 1990 SC 599) similar observation was made and the Supreme Court, declaring that a civil servant could not bypass the jurisdiction of Service Tribunal by adding the ground of violation of fundamental rights and reiterated that the Service Tribunal would have jurisdiction in case which is founded on the terms and conditions of the service even if it involve( the question of violation of the fundamental rights. It may also be pointed out that tilt Supreme Court in this case expressed the view that even when the case involved vie of a. Particular service rule or a notification his remedy, if any, was by invoking the jurisdiction of Service Tribunal. In the case of Ion Ahmed Khurram v. Government of Pakistan and others (PLD 1980 SC 153), the Supreme Court after taking into consideration the views expressed by the Sindh High Court, the Lahore High Court and the Balochistan High Court in the case of Nan Ahmed Khurram v. Government of Pakistan and others (PLD 1979 Karachi 610); Fazel Ellahi Aijaz v. Government of Punjab and another (PLD 1977 Lahore 549) and Muhammad Hashim Khan v. Government of Balochistan and others (PLD 1976 Quetta 59), expressed views asunder:-- ' In resolving the first controversy the High Court relied on the case of Muhammad Hashim Khan v. Government of Balochistan and others, and Fazal Ellahi Aijaz v. Government of Punjab and others, held that the Service Tribunal was competent to examine the vires of the rules and determine its validity as by Article 212 of the 1973 Constitution and section 4 of the Service Tribunals Act 1973, it has been given, exclusive jurisdiction to do so " ' A Full Bench of this Court in the case of Abdul Bari v. Government of Pakistan and others, reported in PLD 1981 Karachi 290 relying- on the case of Yamin Qureshi, reported in PLD 1980 SC 22, made the following observations:-- "Such being the scope of the powers of the Service Tribunal we have no manner of doubt that all the grounds of attack urged before the Tribunal including the grounds of mala tides, ultra vires and coram non judice are within the jurisdiction of the Service Tribunal to determine and, therefore, it follows that the High Court will have no jurisdiction to grant relief on those grounds in respect of orders appealable before the Service Tribunal."
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The aforesaid observations made by the Full Bench of this Court in the case of Abdul Bari were fully endorsed by the Hon'ble Supreme Court while deciding the case of Asadullah Rashid v. Haji Muhammad Muneer and others, reported in 1998 SCMR 2129 and it will be appropriate to ,reproduce the relevant portion from the said judgment as under:- "Constitutional petition under Article 199 of the Constitution is not maintainable by a civil servant in relation to any matter connected with the terms and conditions of service in respect whereof the Service Tribunal has jurisdiction. In view of Article 212 of the Constitution of Pakistan. Orders, even if mala tide, ultra vires or coram non judice, fell within the ambit of Service Tribunal and jurisdiction of Civil Courts including High Court is ipso facto ousted as result of barring provision of Article 212 of the Constitution." ' From a perusal of the case of Pir Sabir Shah v. Shad Muhammad Khan, reported in PLD 1995 Supreme Court 66 relied upon by Ms. Tahnyat Farooq it is to be observed that the pronouncement made therein relative to the jurisdiction of a Tribunal to examine the legality, vires and mala tides of a Statute does not help the cause of the petitioners. On page 141 Ajmal Mian, J. (now the Honourable Chief Justice of the Supreme Court) writing the judgment on - behalf of minority made certain observations which in our opinion will be useful in deciding the controversy in issue and the same are reproduced as under:-- ' I may point out that there is distinction between a provision of a statute, which creates a Special Tribunal and a provision of such statute which specifies disputes/ matters over which such a Special Tribunal will have jurisdiction. The Special Tribunal .So created cannot decide that the Provision under which it has been created' is ultra vires the…
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