Full Judgment Text & Judicial Ruling

2015 P L C (C.S.) 1056

[Sindh High Court]

Before Nadeem Akhtar and Muhammad Iqbal Kalhoro, JJ

Mrs. ITRAT SAJJAD KHAN

versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence and 3 others

Constitutional Petition No.D-3796 of 2012, decided on 10th December, 2014.

(a) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Preamble---Constitution of Pakistan, Art. 199---Constitutional petition---Civil service---Non-statutory rules of service---Dispensing with service of petitioner without holding a formal enquiry---Scope---Action taken against the petitioner employee of a statutory corporation was tainted with malice and same had militated against the natural norms of justice--- High Court could assume jurisdiction notwithstanding employee's status as the one governed by non-statutory rules of service in the corporation created by statute---Petitioner had been awarded various certificates of appreciations---Dismissal of petitioner was not simpliciter---Petitioner had been removed from service without holding a formal inquiry against her which could not be considered in accord with the norms of natural justice---Petitioner was public servant within the meaning of S.21 of Pakistan Penal Code, 1860---While dispensing with the service of petitioner Authority had not followed the provisions of Removal from Service (Special Powers) Ordinance, 2000---Impugned letter was declared to be of no legal effect and Authority was directed to restore the petitioner with immediate effect to her original position---Authority could hold inquiry in accordance with law---Constitutional petition was accepted in circumstances.

Khalid Siddique v. Secretary, Excise and Taxation Department, Punjab and others 2002 SCMR 690; Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707 and Abdul Wahab and others v. HBL and others 2013 SCMR 1383 ref.

Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707 and Peerano Khan and another v. The State 2014 YLR 1331 rel.

(b) Constitution of Pakistan---

---Art. 199--- Constitutional petition--- Scope--- If any statutory corporation/organization had passed order or acted in a way that same was in violation of rules and regulations construed under the statute creating that body, then same could be intervened by the High Court while exercising constitutional jurisdiction.

Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707 rel.

(c) Constitution of Pakistan---

----Art. 199(i)(a)(ii)(5)---"Person"---If an organization or corporation was established through statute and it had performed some of the functions which the State did then same would be construed as "person".

Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707 rel.

Syed Shafqat Ali Shah Masomi for Petitioner.

Ainuddin Khan, Dy.A.-G. for Respondent No.1.

Asim Iqbal for Respondent No.2.

Nemo for Respondents Nos.3 and 4.

Date of hearing: 18th November, 2014.

JUDGMENT

MUHAMMAD IQBAL KALHORO, J.--- The petitioner has called into question through the instant petition a letter No.DHA/DE-PF/267, dated 11th September 2012 (for short, the impugned letter) dispensing with her services as Asstt. Professor issued by the respondent No.4/Additional Director (HR&A) the Pakistan Defense Officers Housing Authority.

2. The case of the petitioner is that she was appointed as a Lecturer on probation at DHA Degree College for Women in BS-17 on 1st March, 1999. Her appointment was confirmed vide letter dated 5th December, 2000 and then in the year 2009 she was promoted to BS-18. Due to her outstanding performance, various letters of appreciation and monetary rewards were showered upon her. After appointment of Colonel (Retd.) Tahir Aziz as Additional Director of Colleges, the atmosphere in the college for female teachers became undesirable due to his degrading, intimidating and hostile treatment meted out to them. In the wake of above, the petitioner filed a complaint under the Protection against Harassment of Women at the Workplace Act, 2010, through her counsel, pursuant to which to enquire into the allegations of the petitioner a committee was constituted, but she got awed to know that the said committee was headed by Brigadier (Retd.) Shahid Saleem Lone against whom a complaint had already been filed. The petitioner through her counsel took exception to his appointment as Chairman of the Enquiry Committee but to no avail. Instead she was served with the impugned letter on 12th September, 2012 and was instructed verbally by the then Acting Principal not to attend the College thenceforth. With these facts, the petitioner has prayed as under:---

(a) Declare that the impugned letter No.DHA/DE-PF/267 dated 11th September, 2012 illegal, mala fide, contrary to law, unjustified, and without any lawful authority or jurisdiction whatsoever.

(b) Declare that the impugned letter No.DHA/DE-PF/267 dated 11th September, 2012 is null, void ab initio having no sanctity either in law or in equity.

(c) Direct the respondents to restore the original position of the petitioner as on 10th September, 2012 with full back-benefits, concessions, perks and privileges.

(d) Direct the respondent No.2 to re-constitute a fresh inquiry committee under section 3 of the Protection against Harassment of Women at Workplace Act, 2010 comprising reputable, unbiased and upright persons having sound character.

(e) Restrain the defendants from appointing any other person to the vacant employment position of the petitioner, namely Assistant Professor/Lecturer BS-18 in Pakistan Studies and Social Studies till the pendency of this Constitutional Petition.

(f) Grant any other relief(s) which this Hon'ble Court may deem just and proper in the circumstances of the case.

(g) Grant costs of the petition.

3. Respondent No.2 filed the reply raising preliminary legal objections to the effect that the petitioner had no vested right to file the petition as there were no statutory rules of service governing the relationship between the petitioner and respondent No.2. The principle of master and servant was applicable in the present case; therefore, this Court had no jurisdiction to entertain the petition under Article 199 of the Constitution of Islamic Republic of Pakistan. The employee /the petitioner had no legal right to force the employer to withdraw the dismissal order and the only remedy available to her in such a situation was to file a suit for damages against the respondent No.2. The controversy between the parties revolved around the disputed questions of fact which could not be adjudged upon in the present petition. On facts, the respondent No.2 denied the case of the petitioner excepting the issuance of the impugned letter to her. Further, it was stated that Colonel (Retd.) Tahir Aziz received several complaints of the petitioner, regarding her failure to attend training workshop, late arrival, early departure etc. from Additional Principal of College; resultantly she was repeatedly issued warnings to strictly follow the discipline of the College. The respondent No.2 in the objections also defended the appointment of Mr. Shahid Saleem in the Enquiry Committee by claiming that it was in accordance with the provisions of the relevant law. The petitioner was asked to appear before the Committee through letters dated 24-7-2010, 25-7-2010 and 27-7-2010, but she deliberately avoided to show up. In addition, she was given a fair chance to express her grievances but she did not avail it nor she could mend her working habits, hence, finally after completing all formalities contemplated under the Service Rules, she was issued the impugned letter, whereby her services were dispensed with.

4. Mr. Syed Shafqat Ali Shah Masomi, learned counsel for the petitioner, during his arguments, contended that the respondent No.2 removed the petitioner from service without holding a formal enquiry against her, so much so she was not even given a notice or afforded an opportunity of hearing to defend herself. He further argued that since respondent No.2 before dispensing with the services of the petitioner did not comply with Rule 6, Chapter-V of Rules of Conduct and Discipline, the removal of the petitioner was illegal, mala fide and arbitrary and against natural norms of justice. According to him the petitioner was made victim for raising voice against Colonel (Retd.) Tahir Aziz, who had created unconducive atmosphere particularly for female teaching staff of the College to work in, and instead of redressing her grievance, she was unceremoniously removed from the service despite earning distinction in her career. Lastly he in support of his arguments relied upon an unreported decision of this Court in the case of Lt. Col. Syed Jawaid Ahmed (Retired) v. Pakistan Defence Officers' Housing Society, Karachi (C.P. No.D-1933 of 2008), in addition to the case of Khalid Siddique v. Secretary, Excise and Taxation Department, Punjab and others (2002 SCMR 690) and Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707).

5. Learned counsel for respondent No.2, Mr. Asim Iqbal submitted that service of the petitioner was neither regulated by any law nor the same was governed by any statutory rules hence the petition under Article 199 of the Constitution was not maintainable. Per learned counsel, this was the case where the principle of master and servant was involved and the only remedy available to the petitioner, therefore, would be to file a suit for damages against the respondent, if she felt aggrieved by the impugned letter. He further argued that since the petitioner was terminated simpliciter without affixing any stigma upon her, the petition for reinstatement in the service filed by her before this Court was not maintainable. He in support of his arguments relied upon an unreported decision of this Court in the case of Ejaz Alam v. Director Personnel and Administration and others (C.P. No.D-3688 of 2011) and on the verdict of the Hon'ble Supreme Court of Pakistan in the case of Abdul Wahab and others v. HBL and others (2013 SCMR 1383).

6. We have heard the learned counsel for the parties and with their assistance have perused the material available on the record including the case-law relied upon by them.

7. As regards the maintainability of the petition in the context of the proposition that a petition under Article 199 of the Constitution would not lie against an organization or corporation which does not have statutory rules of service regulating its employees, we, while taking guidance from the case of Pakistan Defence Housing Authority quoted supra (2013 SCMR 1707), are of the view that if an organization or corporation is established through the statutes and it performs some of the functions which the State does, for instance creating jobs for the people through the exercise of the public power, the same would be construed as "persons" within the scope of Article 199 (i)(a)(ii) and (5) of the Constitution. While dealing with the public, if such body (corporation/organization) passes orders or acts in a way that is in violation of the Rules and Regulation constructed under the statute creating that body, the same could be intervened by the High Court under Article 199 of the Constitution. A reading of the case titled Lt. Col. Syed Jawaid Ahmed, quoted supra, further strengthens this view. The said case was moved almost on analogous facts and circumstances, which are cited in the present petition. Accordingly the petitioner while working as Vice Principal in Defence Authority SKBZ College was terminated from his service by Pakistan Defence Officer Housing Authority (the respondent No.2), without holding an enquiry against him and without having a recourse to the provision of REMOVAL FROM SERVICE (SPECIAL POWERS) ORDINANCE, 2000 (hereinafter referred as "the Ordinance 2000"). In the course of examining the question qua maintainability of the petition raised in the similar context and all but on the same ground pressed by the respondent No.2 here, this Court observed as under:---

17. With regard to the maintainability of this petition, under Article 199 of the Constitution, 1973, there is little doubt, as earlier rulings of this Court have shown, that such a petition does lie against the respondents. Reliance is placed on the case of Mustafa Lakhani v. Pakistan Defence Officers Housing Authority (PLD 2005 Karachi 188) and Mustafa Lakhani v. Pakistan Defence Officers Housing Authority (2008 SCMR 611). Furthermore, according to the Court's record two further writ petitions against the respondent bearing Constitutional Petition No.D-2057 of 2006 and Constitutional Petition No.D-464 of 2008, under Article 199 of the Constitution, 1973 have already been admitted by this Court for regular hearing.

18. With regard to the Service Rules, 1992 of respondent No.1, these are non-statutory and according to Muhammad Dawood's case (ibid) there (sic) implementation is subject to challenge before this Court under Article 199 of the Constitution, 1973, especially as regards the question of natural justice and right to be heard. Reliance is placed at paragraphs 29(i)(ii)(iii) and 30(iii) of Muhammad Dawood's case (supra), which are reproduced herein below:---

"29. From the above somewhat detailed discussion, we have arrived at the following conclusions:---

(i) "Irrespective of an employee of a State controlled corporation not being a civil servant the corporation themselves continue to remain amenable to the jurisdiction of this Court under Article 199 of the Constitution.

(ii) The rule of master and servant is inapplicable to cases where there is violation of statutory provisions or of any other law.

(iii) The expression 'violation of law' would not be confined merely to violation of any specific provision of a statute but the expression 'law', as observed by Hamoodur Rehman, J, (as his lordship then was) in Government of West Pakistan v. Begum Aga Abdul Karim Sorish (PLD 1969 SC 14 @ 31) and ought to be considered in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior courts. It means according to the accepted norms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may, instance, includes the principles of natural justice, the public duty to act fairly and honestly and absence of mala fides in fact and law. In all such cases the Court would be competent to grant relief of reinstatement.

30. As a consequence:---

(i) ..

(ii) ..

(iii) Where there is violation of law as explained hereinabove is alleged and within the parameters of the exercise of constitutional jurisdiction of the Courts this Court would be competent to entertain petitions and grant appropriate relief within the parameters of its jurisdiction under Article 199 of the Constitution.

19. We do not consider it necessary to delve into the question as to whether or not Service Rules, 1992 of the respondent No.1 have been framed by the competent authority. This is because the essence of the case revolves around the termination of the petitioner without him being afforded an opportunity of defending allegations against him which can be adequately dealt with without entering into a detailed and time consuming discussion about the legality of various rules.

20. As the Respondent is a statutory body and falls within the purview of Article 199 of the Constitution of Islamic Republic of Pakistan 1973, we, therefore, consider that the employees of respondent No.1 (including the petitioner) are brought within the ambit of Ordinance, 2000.

21. This would be in consonance with the respondents own past actions since in Constitutional Petition No.D-2057 of 2006 and Constitutional Petition No.D-464 of 2008, alluded to above, the respondent had sought to terminate the service of the respective petitioners based on Ordinance 2000.

And while disposing of the above petition the order of dismissal was declared to be of no legal effect in the following words. "Accordingly, we hold that the impugned order is of no legal effect and direct the respondents, if they so chose, to hold inquiry against the petitioner with regard to the allegations levelled in the minutes against him by adopting all codal formalities under the Ordinance, 2000."

8. The judgment of this Court referred above was challenged in Civil Appeal No.39 of 2010, which came to be considered by the honorable Supreme Court along with several other appeals filed on the questions involving the same law points. The Hon'ble apex Court in its monumental judgment in the supra case reported in 2013 SCMR 1707 has eruditely dealt with the principle of Master and Servant and has deeply examined the right of an employee in a corporation whose service is regulated by non-statutory rules. In Para No. 18 the Hon'ble Supreme Court has framed a question of law that "Whether the appellants are persons discharging functions in connection with affairs of Federation or a Province within meaning of clause (5) of Article 199 of the constitution and amenable to writ jurisdiction of the High Court?" and proceeded to give a brief overview of the law, structure and functions of the statutory bodies/corporations/authorities in Para No.19, which are Pakistan Steel Mills, Port Qasim Authority, S.M.E. Bank, and Defence Housing Authority, Karachi. Regarding Defence Housing Authority, Karachi (the respondent No.2), it reads as under:---

(iv) The Defence Housing Authority Karachi was established under the Pakistan Defence Officers Housing Authority Order, 1980 (promulgated on 9th of August, 1980). The management and authority vests in the Governing Body which comprises of the Secretary-General, Ministry of Defence, Government of Pakistan, who would be its Chairman and the other members/officers include (a) Vice Chiefs of Staff of the three Services or one Principal Staff Officer from each of the three Services to be nominated by the respective Chiefs of Staff; (b) the President; (c) the Director, Military Lands and Cantonments; and (d) the Administrator [(Section 5(1)]. For day to day working, an Executive Board of the Authority comprises of Corps Commander who would be its President and other members include: (a) a serving Naval Officer not below the rank of a Commodore posted at Karachi, to be nominated by the Chief of the Naval Staff; (b) a serving Air Force officer not below the rank of an Air Commodore posted at Karachi, to be nominated by the Chief of the Air Staff; (c) a serving Army Officer not below the rank of a Brigadier posted at Karachi, to be nominated by the Chief of the Army Staff; (d) the Administrator; and (c) co-opted members, to be appointed by the Executive Board for a period not exceeding two years at a time, provided that such co-opted members shall not have any right of vote [(section 5(2)]. The Executive Board of the Authority has the power to acquire land under the law, undertake any work in pursuance of any scheme or project; no master plan, planning or development scheme can be prepared by any local body or agency for the specified area without prior consultation with, and approval of, the Executive Board (section 9). The Authority through the Executive Board has the power to raise funds for the purpose of its working capital in a manner the Board may think proper, through loans or levy of any charges which may be prescribed by it under the Rules (section 10). The Administrator functions in accordance with the policy laid down by the Governing Body (section 11). All schemes/projects/works carried out by the Authority are deemed under the law to be schemes for public purposes (section 12). The employees of the Authority are deemed to be public servants within the meaning of section 21 of the Pakistan Penal Code (section 16). The Governing Body has the power to make Rules by notification in the official Gazette for carrying out the purposes of the Order/Statute (section 22). The Executive Board has the power to make Regulations not inconsistent with the provisions of the Order and the rules as it may consider necessary or expedient for the administration and management of the affairs of the Authority (section 23).

9. In Para No.20, the functions of the Federation or a Province in the context of a modern welfare State have been explained that in the contemporary age the role of the State and its various institutions has increased tremendously. The State's power to perform various functions of creating jobs, issuing licenses, fixing quotas, granting mining rights or lease of estate, signing contracts and providing variety of utility services to the people are sometimes implemented through the companies established by the statutes. Such functions so performed have the elements of public authority and while defining "the public authority", it has been stated that it is a body that has to perform public and statutory duties to carry out its transactions for the benefit of the public and not for private gain or profit. However, it is not stopped from making a profit for the public benefit. The said Para deserves to be reproduced, as it is relevant with the point being dealt with by us:---

20. While dilating on this question whether the appellants' organization are "persons" within the meanings of Article 199 (1)(a)(ii) read with Article 199(5) of the Constitution, the expanded functions of the Federation or a Province in contemporary age have to be kept in view. An important dimension of the modern welfare State is that the role of the State and its various institutions has increased manifold. The government is regulator and dispenser of special services. It has the power to create jobs, issue licenses, fix quotas, grant mining right or lease of estate, sign contracts and provide variety of utility services to the people. Such entrepreneurial activities at times are carried out through companies created under the Statute or under the Companies Ordinance. The functions these companies institutions perform have elements of public authority. A public authority is a body which has public or statutory duties to perform and which performs those duties and carries out its transactions for the benefit of the public and not for private gain or profit. Such an authority, however, is not precluded from making a profit for the public benefit. The Courts have generally applied what has been classified as a "function test" to consider whether a statutory body is a `person' within the meaning of Article 199 of the Constitution. In Salahuddin v. Frontier Sugar Mills and Distillery Ltd. (PLD 1975 SC 244), the Court laid down similar test to assess whether a body or authority is a person within the meaning of Article 199 of the Constitution and observed:---

"The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of 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 body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not."

10. The Hon'ble apex Court in the light of the statutes that created the above respective authorities/bodies and keeping in view the functions they perform has held and declared in Para No.27 that these are the statutory bodies which perform some of the functions of the Federation/State and through the exercise of public power these authorities create public employments. Therefore, these bodies are construed to be persons within the meaning of Article 199 (1)(a)(ii) read with Article 199(5) of the Constitution. It has been further held that in case their actions or/and orders passed are in violation of the statutes establishing those bodies or of rules/regulations framed under the statutes the same could be intervened by the High Court under Article 199 of the Constitution.

11. The Hon'ble Supreme Court while embarking upon a comparative study of the constitutional law on the issues involved has also referred to the several case-law in the succeeding Paras, where despite the non-statutory regulations governing the employees in a corporation, they were given relief, for the action of authority was held to be tainted with malice.

41. In Karachi Development Authority v. Wali Ahmed Khan (1991 SCMR 2434), this Court did not interfere in the judgment of the High Court under Article 199 of the Constitution…

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