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Petitioner: SHAHID MEHMOOD USMANI VS Respondent: HOUSE BUILDING FINANCE CORPIJRATION through Managing DirectorHonorable Justice Shahid Anwar BajwaMuhammad Aqil Awan,Asim Iqbal, Niaz Ahmed Khan
2010 P L C (C
2010 P L C (C.S.) 1360
[Karachi High Court]
Before Gulzar Ahmad and Shahid Anwar Bajwa, JJ
SHAHID MEHMOOD USMANI
Versus
HOUSE BUILDING FINANCE CORPIJRATION through Managing Director and others
Constitutional Petitions Nos.D-2705 of 2009, D-1768, D-1771, D-1871, D-1872, D-1894 to D-1897, D-2018, D-2031, D-1918, D-405 of 2006, D-563, D-574, D-795, D-871, D-1320, D-1331, D-1643, D-1648, D-1951 and D-2464 of 2007, decided on 3rd June, 2010.
(a) Interpretation of statutes---
----Statutory rules---Scope---Parliament in any Act itself confers authority upon government or another body, with or without condition to make rules and regulations---Such rules and regulations are called statutory rules, which have the same force as that of statute---As statutory rules derive their power from statute and if any provision in statutory rules is inconsistent with any provision of the Act itself, it would be ultra wires-Subject to such conditions, statutory rules have the same force as that of Act itself.
(b) Removal from Service (Special Powers) Ordinance (XVII of 2000)---
----Ss. 10 & 14-B---Constitution of Pakistan (1973), Art.199---Constitutional petition--Maintainability---Removal from service---Remedy---Non-statutory rules---Petitioners were employees of different corporations owned or controlled by government and were removed from service under the provisions of Removal from Service (Special Powers) Ordinance, 2000---Petitioner approached Service Tribunal by filing appeals under S.10 of Removal from Service (Special Powers) Ordinance, 2000, but their appeals abated after pronouncement of judgment by Supreme Court in case titled Muhammad Mubeen-us-Slam v. Federation of Pakistan and others reported as PLD 2006 SC 602--Authorities raised objection to maintainability of petition on the ground of rules being non-statutory---Validity---When Parliament decided to regulate any aspect of employment of employee of a Corporation owned or controlled by government, the Parliament might decide to do the same on its own (through an Act) or to grant power of legislation to a State authority or Board of Directors with or without such conditions as the Parliament might choose---First was the case where Parliament could regulate terms ad conditions through statute and second was the case where Parliament chose to regulate terms and conditions of employment through statutory rules---Both, one directly and other by virtue of legislating fiat, regulated employment related matters---High Court observed that it was strange to argue that if Parliament had chosen to regulate through statutory regulation---High Court, in exercise of its constitutional jurisdiction, could step in but if Parliament chose to regulate employment or any aspect of it through a statute itself, High Court would have no jurisdiction to scrutinize such action of administrative authority---If any employee of a State owned/ controlled organization was proceeded against under the provisions of Removal from Service (Special Powers) Ordinance, 2000, and no other remedy was available to him (as remedy was available to workmen under S.41 of Industrial Relations Act, 2001), such employee would be entitled to maintain a constitutional petition under Art 199 of the-Constitution---Petition was maintainable in circumstances.
Muhammad Mubeen-us-Slam v. Federation of Pakistan and other PLD 2006 SC 602; Pakistan International Airlines Corporation v. Tanweer-ur-Rehman, Civil Appeal No.172-K of 2009; Executive Council, Allama Iqbal Open University, Islamabad, through Chairman and another v. Dr. M. Tufail Hashmi C.P. No.1863 of 2009; Muhammad Idrees's case PLD 2007 SC 681; Humayun Akhtar and Others v. WAPDA House, Lahore and Others, SBLR 2008 Tr. 133; Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046; House Building Finance Corporation, through Managing Director Karachi and another v. Inayatullah Shaikh, 1999 SCMR 311; Civil Aviation Authority, through its Director General v. Javed Ahmed and another 2009 SCMR 956; Pakistan through Secretary, Ministry of Defence v. General Public PLD 1989 SC 6; New Jubilee Insurance Company Ltd., Karachi v. National Bank of Pakistan, Karachi, PLD 1999 SC 1126; Munir Ahmed Shaikh v. Federation of Pakistan, through Secretary Establishment Division and another 2002 PLC (C.S.) 394; Malik Taj Muhammad and others v. Secretary Minister of Interior, Government of Pakistan, Islamabad and others, 2009 PSC 1072; Pakistan Telecommunication Company Ltd. v. Muhammad Zahid 2010 SCMR 253; Muhammad Rehan Butt and others v-. PIAC and others 2008 PLC (C.S.) 734; Mehram Ali and others v. Federation Pakistan and others PLD 1998 SC 145; Government of Balochistan, through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Muree Brewery Co. Ltd.' v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others, PLD 1972 SC 279; The Secretary Irrigation Department, Sindh, Karachi v. Nasir Khan and others 1985 PLC 1060 and Government of Sindh through Mechanical Engineer v. Muhammad Husshin and others 1992 PLC 31 ref.
Muhammad Aqil Awan, Mughees Ahmed Samdani (on his own behalf as well as holding brief for Ch. Muhammad Ashraf Khan), Aziz -ur-Rehman Akhund, Shaukat Ali Shaikh, Noor Muhammad and Irfan Mir Halepota for Petitioner.
Petitioners in Person (in C. Ps. Nos.1871 and 1872 of 2006).
Asim Iqbal, Niaz Ahmed Khan, Sanaullah Noor Ghori, Khalid Imran, Asghar Aloi, Muhammad Junaid Farooqui, Masood Ahmed Khan, Adnan Karim, Additional Advocate-General and Ms. Cookie Rawat, Standing Counsel, for Respondents.
Khalid Jawaid Khan Amicus Curiae.
Dates of hearing: 14th and 24th May, 2010.
JUDGMENT
SHAHID ANWAR BAJWA, J.--- The petitioners in all these petitions are employees of various organizations which are admittedly under the control of the Federal Government. These organizations include House Building Finance Corporation, Port Qasim Authority, Pakistan Steel Mills Corporation (Pvt.) Ltd., S.M.E. Bank, Employees Old Age Benefits Institution, Pakistan International Airlines Corporation, Sui Southern Gas Company Ltd. and Sheikh Zayed Islamic Centre. Petitioners/employees in these petitions were proceeded against under the provision of the Removal from Service (Special Powers) Ordinance, 2000 (hereinafter called the RSO). Some of them initially approached Federal Service Tribunal and after judgment in the case of Muhammad Mubeen-us-Slam v. Federation of Pakistan and other PLD 2006 SC 602 their appeals before Federal Service Tribunal were abated while the petitioners in other petitions directly approached this Court. In the case of Pakistan International Airlines Corporation v. Tanweer-ur-Rehman, Civil Appeal No.172-K of 2009, decided by the Supreme Court of Pakistan on 12-3-2010, the honourable Supreme Court in respect of such like organizations firstly held that these organizations are persons within contemplation of Article 199(5) of the Constitution of the Islamic Republic of Pakistan and secondly, the Supreme Court went on to hold that if the organization does not have statutory rules of service the employees of such organizations, in the absence of statutory rules of service cannot approach High Court in its Constitutional jurisdiction. The observations of the Hon'ble Supreme Court were in the following words:--
"(19) However, this question needs no further discussion in view of the fact that we are not of the opinion that if a corporation is discharging its functions in connection with the affairs of the Federation, the aggrieved person can approach the High Court by invoking its constitutional jurisdiction, as observed hereinabove. But as far as the cases of the employees, regarding their individual grievances, are concerned, they are to be decided on their own merits namely that if any adverse action has been taken by the employer in violation of the statutory rules, only then such action should be amenable to the writ jurisdiction. However, if such action has no backing of the statutory rules, then the principle of Master and Servant would be applicable and such employees have to seek remedy permissible before the court of competent jurisdiction.
(25) Thus, in view of discussion made hereinabove, we are persuaded to hold that although the appellant-Corporation is performing functions in connection with the affairs of the Federation but since the services of the respondent employees arc governed by the contract executed between both the parties, as is evident from the facts narrated hereinabove, and not by the statutory rules framed under Section 30 of the Act, 1956 with the prior approval of the Federal Government, therefore, they will be governed by the principle of Master and Servant."
2. As stated above, petitioners/employees were proceeded against under the provisions of the RSO and question arose whether if the action is taken under the provisions of the Removal from Service (Special Powers) Ordinance, 2000 the employees of such an organization which does not have statutory rules can maintain Constitutional Petition under Article 199 of the Constitution.
3. Mr. M.M. Aqil Awan, learned counsel for some of the petitioners who led arguments on behalf of the employees extensively referred to the case of Executive Council, Allama Iqbal Open University, Islamabad, through its Chairman and another v. Dr. M. Tufail Hashmi (C.P. No.1863 of 2009) decided by the Hon'ble Supreme Court of Pakistan on 13-4-2010 and submitted that the judgment in Tufail Hashmi's case (supra) was in line with the judgment of the Supreme Court in Muhammad Mubeen-us-Slam's case (supra) and judgment of the Supreme Court in Muhammad Idrees's case PLD 2007 SC 681. He submitted that in Humayun Akhtar and others v. WAPDA House, Lahore and others SBLR 2008 Tr. 133, the Federal Service Tribunal took the view that notwithstanding declaration of Section 2A of the Service Tribunals Act, as partially ultra vires of the Constitution since appeal is provided under Section 10 of the RSO before the Federal Service Tribunal, such employees of such organizations as are proceeded against under the RSO are entitled to maintain appeals before the Federal Service Tribunal. Learned counsel submitted that this judgment of the Service Tribunal was contrary to the judgment of this High Court in Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046. He submitted that the judgment in Tufail Hashmi's case (supra) was in respect of matters which had arisen out of judgments passed by the Federal Service Tribunal and therefore, question before the Supreme Court was whether appeals before Federal Service Tribunal under Section 10 of the RSO were maintainable or not and the question whether the writ petition by such an employee would be maintainable or not was not under consideration of the honourable Supreme Court in the case of Tufail Hashmi (supra). Learned counsel in this regard referred to paras 4, 9 and 10 of judgment of the Supreme Court in Tufail Hashmi's case and submitted that precise question being considered in the present case by this Court was not under consideration in the Tufail Hashmi's case (supra). Learned counsel relied upon House Building Finance Corporation, through Managing Director Karachi and -another v. Inayatullah Shaikh, 1999 SCMR 311 to contend that writ petition would be maintainable before this Court. Learned counsel submitted that the essence of constitutional jurisdiction is to see whether a statute or statutory provisions has been properly followed or not and since disciplinary actions against the petitioners were governed by a statute i.e. Removal From Service (Special Powers) Ordinance, 2000, this court has jurisdiction to scrutinize whether the action taken by the employer is in accordance with the provisions of the statute in question or not. Learned counsel also relied upon Civil Aviation Authority, through its Director-General v. Javed Ahmed and another 2009 SCMR 956.
4. Messrs Mughees Ahmed Samdani (on his own behalf as well as holding brief for Ch. Muhammad Ashraf Khan), Aziz-ur-Rehman Akhund, Shaukat Ali Shaikh Advocates and Noor Muhammad, who appeared in person adopted arguments of Mr. M.M. Aqil Awan. Mr. Jaffar Hussain, while he adopted the arguments of Mr. Aqil Awan, submitted that no Court has so far declared section 14-B of the RSO ultra vires of any provision of the Constitution and effect of provisions of Section 14-B has not been considered by any Court so far. Mr. Jaffar Hussain further submitted that it can never be intention of either the Legislature or the Constitution of the Islamic Republic of Pakistan to leave any person remediless. He relied upon Pakistan through Secretary, Ministry of Defence v. General Public PLD 1989 SC 6 and New Jubilee Insurance Company Ltd., Karachi v. National Bank of Pakistan, Karachi, PLD 1999 SC 1126.
5. For the respondents Mr. Asim Iqbal, submitted that Dawood's case (supra) has been impliedly overruled by Tanweer -ur-Rehman's case and by Tufail Hashmi's case (supra) and law has now been well-settled by the Supreme Court that no statutory rules, no writ.
6. Messrs Khalid Imran, Niaz Ahmed, Masood Ahmed Khan, Junaid Farooqui, Asghar Ali Khan and Sanaullah Noor Ghori adopted arguments of Mr. Asim Iqbal. Mr. Sanaullah Noor Ghori further relied upon Munir Ahmed Shaikh v. Federation of Pakistan, through Secretary Establishment Division and another 2002 PLC (C.S.) 394 and Malik Taj Muhammad and others v: Secretary Minister of Interior, Government of Pakistan, Islamabad and others 2009 PSC 1072. Ms. Cookie Rawat, learned Standing Counsel also adopted arguments of Mr. Asim Iqbal. Mr. Khalid Jawaid who was requested to act as amicus curie, submitted that RSO dealt with disciplinary proceedings and violation of law does not completely shutout the remedy of constitutional jurisdiction.
7. We have considered the submissions made by the learned counsel and have also gone through the extensive case-law cited at the Bar.
8. Since very heavy reliance was placed by the learned counsel for the employer organizations on Tufail Hashmi's case (supra), it may be referred to. There were a number of petitions before honourable Supreme Court which were decided in this case. All these petitions arose out of judgments of Federal Service Tribunal. In Para-2 the Supreme Court noticed that in some cases the petitioners were employees who had been proceeded against under the RSO and major punishments had been inflicted upon them and their appeals were dismissed on merits by the Service Tribunal while other petitions had been filed by employer whose employees' appeals had been accepted by the Service Tribunal. In Para.4 the Supreme Court noticed contention of employer Organizations that where there were no statutory rules the Service Tribunal did not have jurisdiction to entertain the appeals. In Para-5 Supreme Court re-produced provisions of section 10 of the RSO as well as provisions contained in Article 212 of the Constitution. Supreme Court referred to its judgment in Muhammad Mubeen-us-Salam's case (supra) as well as in the case of Muhammad Idrees (supra). Thereafter Supreme Court referred to the case of Pakistan Telecommunication Company Ltd. v. Muhammad Zahid 2010 SCMR 253 and Tanweer-ur-Rehman's case (supra). Thereafter in Para-9 the Supreme Court observed as under:--
"The principle perceived from the above judgments is that the employees of those organizations, which are discharging functions in connection with the affairs of Federation can approach the learned High Court under Article 199 of the Constitution but subject to the condition if their services are protected under the statutory rules."
9. Thereafter the Supreme Court finally held as under:--
"Now coming towards the definition of a person in `corporation service' or a person in 'government service', as defined in section 2(c) and (d) of the RSO; 2000. Such persons can be subjected to the RSO, 2000 but keeping in view the definition of the 'civil servant' under the Civil Servant Act, 1973 as well as the dictum laid down in Muhammad Mubeen-us-Slam's case (ibid), only those employees can approach the Service Tribunal, who fall within the definition of 'civil servant', holding posts in connection with the affairs of the Federation. As far as the remaining categories of employees, including the contractual ones, are concerned, if they are aggrieved of any adverse action, the Service Tribunal is not the appropriate forum for redressal of their grievance, in view of above conclusion, because it is a forum constituted under Article 212 of the Constitution for the redressal of grievance of those employees, whose terms and conditions are settled under Article 212(1)(a) of the Constitution. Similarly, any action taken against such persons shall not be questionable before the Service Tribunal as it is not meant to provide a forum to the employees, whose services are governed by non-statutory rules or who do not fall within the definition of a person in 'government service' as defined in Section 2(d) of the RSO, 2000. Admittedly, in the present case the employees of AIOU, SME Bank and Pakistan Steel Mill, who approached the Service Tribunal for redressal of their grievance, were not enjoying the protection of statutory rules, therefore, the Service Tribunal had no jurisdiction to adjudicate upon such matters and they will be governed by the principle of Master and Servant."
10. A perusal of the above paras indicates that the reason which prevailed with the Supreme Court for holding the appeals before the Federal Service Tribunal not maintainable was that Service Tribunal is not a forum created by the Constitution for the purpose of resolving grievance of persons whose employment is not governed by any statutory rules. This was essentially the same reason for which section 2-A was declared ultra vices in the first place. Section 10 of the Removal from Service (Special Powers) Ordinance, 2000 is in the following words:
"10. "Appeal.---Notwithstanding anything contained in any other law for the time being in force, any person aggrieved by any final order under section 9 may, within thirty days of the order, prefer an appeal to the Federal Service Tribunal established under the Service Tribunals Act, 1973 (LXX of 1973)."
11. In the case of Muhammad Dawood (supra) Mr. Justice Sabihuddin Ahmed, C.J., (as his late lordship then was) while writing for a full bench of this Court observed as under:---
"(10) In addition to the above, it needs to be kept in view that Article 212(1)(a) of the Constitution contemplates establishment of administrative courts or tribunals to exercise exclusive jurisdiction in matters relating to terms and conditions of persons who are or have been in the service of Pakistan. Since corporation employees have not been declared to be in the service of Pakistan under the RSO even through a legal fiction, we are of the view that section 10 of the Ordinance is also ultra vires Article 212 of the Constitution. In this view of the matter, we find it difficult to accept the contention of the learned Counsel for the Petitioners."
12. Earlier a two Members Bench of Federal Service Tribunal in the case of Muhammad Rehan Butt and others v. PIAC and others 2008 PLC (C.S.) 734 reached the same conclusion with some what different words:
"(11) So far as the appeal under section 10 of the Removal from Service (Special Powers) Ordinance, 2000 is concerned, such appeals had also been filed by Appellants/petitioners in their capacity as civil servants under Section 2A of the Service Tribunals Act, 1973, but their such position having been done away with, they cannot approach the Service Tribunal for remedy as under Article 212 the Service Tribunal has exclusive jurisdiction in respect of the terms and conditions of civil servants only as defined under Section 2(1)(b) of the Civil Servants Act, 1973. The learned counsel for the respondents has rightly stated that the door of the tribunal closed by the honourable Supreme Court under the constitutional provisions of Articles 240 and 260, cannot be re-opened by a subordinate legislation like Removal from Service (Special Powers) Ordinance, 2000."
13. It is certainly rather amusing that inspite of these two judgments which had been reported when arguments were heard in Humayun Akhtar's case that the Federal Service Tribunal held appeal under section 10 to be maintainable and that too for the following reasons:
"(19) The jurisdiction of this Tribunal shall however, continue to be available to a person aggrieved of an order under the Removal from Service (Special Powers) Ordinance, 2000 as provided under sections 10 and 11 (ibid). The person for this is not far to seek as the RSO 2000 does not use the term "civil servant" but only refers to a person in Government Service or a person in corporation service and allows any such persons if aggrieved of an order under the said Ordinance, to approach this Tribunal in accordance with law."
14. We have no doubt in our mind that the Tribunal was not properly assisted in Hunmayun's. Federal Service Tribunal is a creation under Article 212 of the Constitution of the Islamic Republic of Pakistan and it can adjudicate grievances of persons relating to their terms and conditions of service, including disciplinary matters who are or have been "in the service of Pakistan" and entrustment of any matter to the Federal Service Tribunal in respect of any issue other than the terms and conditions of service of any person who is or has been in the service of Pakistan would be violation of Article 175 of the Constitution of the Islamic Republic of Pakistan because whereas it is the mandate of the Constitution (and there are number of judgments of the Hon'ble Supreme Court in this regard including the case of Mehram Ali and others v. Federation Pakistan and others PLD 1998 SC 145 and Government of Balochistan, through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341, that supervision over the subordinate judiciary must be, entrusted to the High Court and all appointments, in such judiciary must be with the consultation of the Chief Justice of the concerned High Court and since appointments in Service Tribunals are made by the executive without such consultation. (Most of the time most of the members of the Tribunal are drawn from the executive: retired I.-G. Police, retired Secretaries and Additional Secretaries of the Government, retired Deputy Auditor General and even retired Additional Director FIA have been at various times nominated as members of Federal Service Tribunal) it is 'a forum outside hierarchy of Courts and beyond the pale of supervision of High Courts and therefore entrusting to it any jurisdiction outside the confines of Article 212 of the Constitution would be ultra vires. It is for that reason also that section 10 RSO is ultra vires of the Constitution.
15. Mr. Aqil Awan referred to Inayatullah Shaikh's case (supra). It was a case of an employee of House Building Finance Corporation. Service of an employee was terminated by giving him three months notice under Regulation 11 of House Building Finance Corporation Regulation, which provided for a power with the employer to terminate employment by giving three months notice. The Supreme Court observed that the appellant before it failed to produce any order of the Managing Director whereby the service of the appellant were ordered to be terminated. The case therefore does not appear to be of any relevance to the issue involved in the present matter. Mr. Aqil Awan, also referred to the case of Javed Ahmed (supra). The respondent was an employee of Civil Aviation Authority and his service was terminated under the provisions contained in the RSO. Such order was challenged by him before the Federal Service Tribunal and the appeal was abated after judgment in Muhammad Mubeen-us-Salam's case was announced. Javed Ahmed filed constitutional petition in this Court and petition of Javed Ahmed was allowed. The matter went to the Supreme Court and the Supreme Court observed as under:---
"The learned High Court was fully empowered to consider whether the actions complained of is in accordance with the Removal from Service (Special Powers) Ordinance, 2000. Therefore, the violation of law falls within the parameters of the constitutional jurisdiction and the petition was properly entertainable regarding punishment of compulsory retirement to Javed Ahmed. The right of individual by change of law cannot be closed as past transaction and the constitutional petition remains alive to agitate the rights guaranteed under the Constitution. The departmental action on the statement of allegations contained 23 allegations which include additional allegations, was passed on malice and pre-determined desire to get right of Javed Ahmed. After…
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