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Petitioner: MUSHTAQ HUSSAIN QAZI VS Respondent: FEDERATION OF PAKISTAN
2001 P L C (C
2001 P L C (C.S.) 223
[Karachi High Court]
Before Sarmad Jalal Osmany, J
MUSHTAQ HUSSAIN QAZI and others
versus
FEDERATION OF PAKISTAN through Secretary, Establishment Division, Islamabad and others
Suits Nos. 765, 783 and 779 of 2000, decided on 4th October, 2000.
(a) Civil Servants Act (LXXI of 1973)--- ,
----S. 2(i)---Service Tribunals Act (LXX of 1973), S. 2-A---Proceedings against civil servant under wrong provision of law---Effect---Civil servant would not cease to be a civil servant and he would continue to be a civil servant for all purposes unless it had been established otherwise---Just because civil servant had been proceeded against under a wrong provision of law, would not affect his status as a civil servant.
Registrar of Supreme Court v. Wali Muhammad 1997 SCMR 141 and Muhammad Abdul Olla v. Pakistan 1989 CLC 1146 distinguished.
(b) Interpretation of statutes--
----Applicability of statute by implication---Validity---Statute could not be applied to a particular class of persons merely by implication---Statute either would apply to a particular class of person or would not.
Union Bank Ltd. v. Federation of Pakistan 1998 PTD (Trib.) 2116 and Shanti Prasad v. Bachchi Devi AIR 1948 Oudh 349 ref.
(c) Service Tribunals Act (LXX of 1973)---
----S. 4(i), proviso (b)---Service Tribunal, jurisdiction of---Officer on Special Duty (O. S. D.)---Nature---Post of O.S.D. is not post at all and is usually reserved for those officers who are not desirable for any number of reasons-- Such post denotes that the officer is not fit to be given any position of responsibility which concerns his fitness for occupying the same-- Jurisdiction of Service Tribunal under SA(i), proviso (b) of Service Tribunals Act, 1973, is not attracted and the matter is justiciable before the ordinary Courts of law including High Court.
Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Muhammad Raees (Azam) v. Government of Balochistan 1995 PLC (C.S.) 151; Afzal Muhammad Farooq v. Secretary, Establishment Division 1998 PLC (C.S.) 1175; Dr. Amanul Haq v. Government of Punjab 2000 PLC (C.S.) 123 and Ahmed Salman Waris v. Nadeem Akhtar PLD 1997 SC 382 and Dr. Moula Bux v. Government of Sindh 2000 PLC (C.S.) 905 ref.
(d) Service Tribunals Act (LXX of 1973)---
----S.4(i), proviso (b)---Constitution of Pakistan (1973), Art. 212---Officer on Special Duty (O.S.D.)---Jurisdiction of High Court---Civil servant was posted as O. S.D,.---Validity---Where fitness/suitability of civil servant was in issue, High Court had jurisdiction to the exclusion of Service Tribunal.
----Concept---Term "proceedings" means a prescribed course of action for enforcing a legal right and necessarily embraces requisite steps by which judicial action is invoked---Proceedings includes every step taken towards the further progress of a cause in Court or before Tribunal where the same may be pending---Proceedings is the step towards the objective to be achieved and the same commences with the first step by which the machinery of law is put into motion in order to take cognizance of the case-- Proceedings is a comprehensive expression and. includes all possible steps in the action under the law, 'from its commencement to the execution of judgment.
Karim Bibi v. Hussain Bukhsh PLD 1984 SC 344 ref.
(f) Words and phrases---
----"Pending"---Meaning---"Pending" means nothing more than undecided or awaiting decision or settlement---Action in law is considered pending from the time of its commencement of proceedings till final judgment.
Fajar Ali v. Jamila PLD 1969 Lah. 545 ref.
(g) Removal from Service (Special Powers) Ordinance (XVII of 2000)---
----S. 13---Government Servants (Efficiency and Discipline) Rules, 1973, R.2---Civil servant was made Officer on Special Duty (O.S.D.) under the provisions of S.13 of Removal from Service (Special Powers) Ordinance, 2000---Contention by the civil servant was that since he was already under suspension under the provisions of Government Servants (Efficiency and Discipline) Rules, 1973, therefore, he could not be made O.S.D. under the provision of S.13 of Removal from Service (Special Powers) Ordinance, 2000---Validity---Departmental proceedings were pending when the civil servant was made O.S.D.---Case of the civil servant, under the provisions of S.13 of Removal from Service (Special Powers) Ordinance, 2000 was subject to the provisions of Government Servants (Efficiency and Discipline) Rules, 1973---Notices by which the civil servant was made O.S.D. were nullity in law since they were issued under the new Ordinance and the same were set aside in circumstances.
Shafique Ahmed Butt v. Punjab Labour Appellate Tribunal 1983 CLC 1352; Rashid Akhtar Nadvi v. Haji Irshad Ahmed Lodhi PLD 1965 Lah. 192; Muhammad Raees (Azam) v. Government of Baluchistan 1995 PLC (C.S.) 151; Afzal Muhammad Farooq v. Secretary, Establishment Division 1998 PLC (C.S.) 1175; Dr. Amanul Haq v. Government of Punjab 2000 PLC (C.S.) 123; Ahmed Salman Waris v. Nadeem Akhtar PLD 1997 SC 382; Syed Anjum Zafar and others v. Syed Abbas Ali Shah and others 2000 SCMR 59; Shanti Prasad v. Bachichi Devi AIR 1948 Oudh 349; Sukhlal Mondal v. Krishna Biswas and others AIR 1982 Cal. 207; Muhammad Arshad Kalim v. Chairman Town Committee 1991 PLC (C.S.) 80; Ali Ahmed Bugti v. Federation of Pakistan 2000 PLC (C.S.) 184; Syed Saghir A. Naqvi v. Province of Sindh 1996 SCMR 1165; Khadim Hussain v. Chief Engineer, Irrigation, Lahore 1981 PLC (C.S.) 826; Khurshid Ahmed Niazi v. D.C. Dera Ghazi Khan 1883 PLC (C.S.) 46; Allauddin v. Chief Commissioner and another PLD 1959 (W.P.) Kar. 282; Bashir Engineering Industries Ltd. v. MCB 1998 CLC 2065; Zarina Begum v. I.-G. Police, Punjab PLD 2000 Lah, 65; Mansab Ali v. Amir Ali PLD 1971 SC 124; Imran v. Presiding Officer Punjab Special Court No. VI, Multan and 2 others PLD 1996 Lah 542 and Philips- Electrical Industries of Pakistan Limited v. Pakistan and others 2000 YLR 2724 ref.
(h) Civil service--
---- Post of Officer on Special Duty (O.S.D.)---Nature---Post of O.S.D. is not a benison post as O.S.D. is deprived of his right to function as a civil servant without any cause or reason assigned for the same---Such civil servant not only suffers professionally but also on a personal level as the post usually has a stigma attached to it implying undesirability for any number of reasons with consequent social and personal disadvantages and dilemmas---Where Government is of the view that a particular officer is guilty of any misconduct, such officer should be proceeded against immediately under the rules and his case be finalized rather than making him O.S.D. or suspending him indefinitely.
Dr. Moula Bux v. Government of Sindh 2000 PLC (C.S.) 905; Syed Ajmal Hussain Bokhari v. Commissioner, Rawlapindi 1997 PLC (C.S.) 754 and Shahnawaz Marri v. Government of Balochistan 2000 PLC (C:S.) 533 ref.
Khaiid Jawaid Khan for Plaintiffs.
Naeem-ur-Rehman, Dy. A.-G. for Defendant No. l
Khalid Dogar for Defendants Nos.2 and 3.
Dates of hearing: 19th, 21st, 22nd, 26th June, 4th, 11th 15th, 18th, 25th and 29th September, 2000.
JUDGMENT
All these three matters raise common issues of law regarding the Original Civil Jurisdiction of this Court amongst other issues and hence I propose to dispose of the same by this common order.
The brief facts of the matters are that the plaintiffs in Suit No.783 of 2000 are officers of the Customs Department, Ministry of Finance. Government of Pakistan, -whereas the plaintiffs in Suits Nos. 779 of 2000 and 765 of 2000 are officers of the Income Tax Department, Ministry of Finance, Government of Pakistan. During the years 1998-99, the plaintiff Nos. l to 6 in Suit No.783 of 2000 were made Officers on Special Duty without any cause of reason and similarly plaintiffs Nos.7 and 9 being non- gazetted officers were also placed in their respective Regional Officers without assioning any work to them which virtually amounted to making them Officers on Special Duty as well. Thereafter no action was taken against the plaintiffs in Suit No.783 of.2000 till the change of Government in October, 1999 when on May 27, 2000 the impugned Ordinance viz Removal from Services (Special Powers) Ordinance, 2000, (hereinafter Ordinance) came into effect. Then on May 28,2000 a number of officers including plaintiffs were placed under suspension for a period of six months. The plaintiffs have therefore, challenged the promulgation of the Ordinance as well as the Notification placing the plaintiffs under suspension on various legal grounds and prayed that the Ordinance be declared not to apply to the plaintiffs since they were made OSDs prior to its promulgation and also that the Notifications whereby the plaintiffs were suspended be delcared as mala fide, illegal etc.
The plaintiff in Suit No.779 of 2000 was suspended in 1997 and thereafter served with a charge-sheet under the Government Servants (E&D Rules, 1973), as a result of which he was found guilty of the charges levelled against him. Consequently a show-cause notice was issued to the plaintiff on 27-9-1997 calling upon him to show cause as to why the major penalty of dismissal from service should not be imposed upon him. The plaintiff accordingly replied to the show-cause notice and after a proper hearing the minor penalty of withholding three annual increments for a period of two years under the E&D Rules, 1973 was imposed upon him against which the plaintiff filed an appeal before the Federal Service Tribunal which is still pending. However, vide Notification dated 22-4-1998, the plaintiff was reinstated in service but yet again he was made an OSD vide Notification dated 7-9-1998 against which he filed Constitutional Petition No.1528 of 1998 before this Court which was ultimately dismissed on 14-6-1999 on the grounds, that disputed questions of fact cannot be made the subject-matter of inquiry in Writ Jurisdiction under Article 199 of the Constitution. Then after the change of Government in October, 1999, vide Ordinance 2000 the plaintiff was suspended by Notification dated 27-5-2000 and hence the suit praying for the same reliefs as in Suit No. 783 of 2000.
In Suit No.765 of 2000 the facts are more or less similar as in Suit No.729 of 2000 and hence need not be repeated.
When all these matters came up for hearing before me, I had asked the learned counsel for the plaintiff to satisfy me as to how the suits were maintainable in view of the bar contained in Article 212 of the Constitution whereby only the Service Tribunal has been given exclusive jurisdiction where grievances relating to the terms and conditions of civil servants can be entertained. Consequently thereafter learned counsel as well as the learned D.A.-G. Mr. Naeem-ur-Rehman have addressed this Court on the point of maintainability. Learned counsel as well as the learned D.A.-G. also agreed to the suggestion that as only legal issues were involved there would be no need to lead any evidence, moreso, since none of the documents filed with the pleadings were disputed by either side: Thus, by consent, the following issues were framed by this Court:--
(1) Whether the suits are maintainable?
(2) What should the order be?
As regards the maintainability of the suits Mr. Khalid Jawaid Khan, learned counsel for the plaintiffs has submitted that in the first instance vide section 13 of the Ordinance all pending proceedings against civil servants shall continue to be covered by the old law viz. Government Servants (E&D Rules, 1973). Thus as per learned counsel since the plaintiffs were suspended under the Ordinance whereas they continued to be governed by the old law viz. E&D Rules, the order of suspension is patently unlawful and consequently this Court could interfere in the matter viz. assume jurisdiction. Elucidating this argument learned counsel has submitted that for the purposes of the new Ordinance the plaintiffs could not be termed civil servants as they continued to be governed by the old rules and consequently they could not approach the Service Tribunal since they were not civil servants as such under the new Ordinance. As to the meaning of the term "pending proceedings" appearing in section 13 of the Ordinance, he has submitted that as per well settled law, proceedings are initiated when accusation is made followed by suspension as per Rule 5 of the E&D Rules. In the present case the plaintiffs were accused of corruption and then made OSDs which is tantamount to suspension, hence their cases would be covered by the Rules made under the Civil Servants Act, 1973 viz E&D Rules. In support of this proposition .learned counsel has relied upon Karim Bibi v. Hussain Bukhsh (PLD 1984 SC 344), Shafique Ahmed Butt v. Punjab Labour Appellate Tribunal (1983 CLC 1352), Rashid Akhtar Nadvi v. Haji Irshad Ahmed Lodhi (PLD 1965 Lah. 192) and Fajar Ali-v. Mst. Jamila (PLD 1969 Lah.
Learned counsel has further submitted that the definition of a civil servant is given under section 2 (1)(b) of the Civil Servants Act which has been adopted in section 2(a) of the Service Tribunals Act. He has maintained that in fact the Constitution itself recognizes various categories of persons who are either civil servants or in the Service of Pakistan and has referred to Articles 240 and 260 thereof which provide for persons who are in the service of Pakistan and define service of Pakistan itself respectively. In this connection he has referred to Registrar of Supreme Court v. Wali Muhammad (1997 SCMR 141) and Muhammad Abdul Olla v. Pakistan (1989 CLC 1146). Father learned counsel has submitted that there cannot be any applicability by implication. A Statute either has to apply to a. particular class of persons or events or otherwise and there could not also be any piece meal application. Thus as per learned counsel as the Ordinance only applies to those civil servants who are proceeded under the same and not to those whose cases are pending under the E&D Rules, therefore, two classes of civil servants have been created and consequently, the Service Tribunal would have jurisdiction for each particular class of civil servant depending upon whether or not the proceedings against him were initiated under the Ordinance or were pending before the promulgation of the Ordinance under the E&D Rules. Accordingly, as the plaintiffs belonged to the excluded class under the Old E&D Rules, their appeals could not be heard by the Tribunal under the Ordinance whereby they were suspended. In support of this proposition learned counsel has relied upon Union Bank Ltd. v. Federation of Pakistan 1998 PTD (Trib.) 2116 and Shanti Prasad v. Bachchi Devi (AIR 1948 Oudh 349).
Learned counsel has also relied upon other cases whereby it has been held that in certain eventualities and circumstances the Service Tribunal would not have jurisdiction viz. in cases of the promotion of a civil servant, his fitness to occupy a particular post etc. Such cases are Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994. SC 539), Muhammad Raees (Azam) v. Government of Balochistan (1995 PLC (C.S.) 151), Afzal Muhammad Farooq v. Secretary, Establishment Division (1998 PLC (C.S.) 1175), Dr. Amanul Haq v. Government of Punjab (2000 PLC (C.S.) 123) and Ahmed Salman Waris v. Nadeem Akhtar (PLD 1997 SC 382).
Accordingly, learned counsel has argued that the post of an OSD is not recognized as such by any provision of law or Statutory Rules thereunder. In fact it is normally reserved for civil servants who are undesirable for any number of reasons but against whom the Government either does not want to take any disciplinary action or cannot do so for lack of proof and- consequently such persons are kept in a state of suspended animation or limbo which is tantamount to declaring them as being unfit for any post so to speak. As a result, per learned counsel, since such circumstances would concern the fitness of a civil servant (plaintiffs) to occupy a particular post, the jurisdiction of the Service Tribunal would be excluded as per well-settled law and this Court would to that extent be clothed with the same. Learned counsel has particularly relied upon Dr. Moula Bux v. Government of Sindh (2000 PLC (C.S.) 905) in support of this proposition.
For all the foregoing reasons learned counsel's submission is that as the plaintiffs could not be termed "civil servants" as such, thus the Service Tribunal would not have any jurisdiction and this Court should entertain the suits. Alternatively, it is his contention that since the fitness of the plaintiffs to occupy a particular position is in issue, the suits are also maintainable.
The next plea of learned counsel's argument is that since no appeal is provided to the Service Tribunal for orders under section 4 of the Ordinance, which caters to interim orders, and an appeal lies only under section 9 against a final order therefore, again to this extent this Court could assume jurisdiction. In this regard learned counsel has further submitted that an appeal is a creature of statute and cannot be implied. Thus if a particular law provides- for an appeal under a particular section it cannot be said that appeals can also be filed under another section of that very law. In this connection learned counsel has referred to Syed Anjum Zafar and others v. Syed Abbas Ali Shah and others (2000 SCMR 59) and Shanti Prasad v. Bechchi Devi (AIR 1948 Oudh 349).
Learned counsel has also relied upon the following cases whereby the superior Courts have allowed the challenge to interim orders. Sukhlal Mandal v. Krishna Biswas and others (AIR 1982 Cal. 207), Muhammad Arshad Kalim v. Chairman, Town Committee (1991 PLC (C.S.) 80) and Ali Ahmed Bugti v. Federation of Pakistan (2000 PLC (C.S.) 184).
Extending this line of argument learned counsel further submitted that there are two types of interim orders viz. active and passive. In the former case jurisdiction would be barred whereas the Courts could interfere in the latter case. According to learned counsel the circumstances as disclosed in the plaints would adequately establish that the impugned suspension orders are passive in nature and hence this Court could entertain the aboverflentioned suits. Passivity per learned counsel would mean where suspension orders have been passed and no further steps taken to finalize the case as the facts of the present matters would denote. In this connection learned counsel has reiterate4 his earlier submission that in fact the plaintiffs having remained O.S.Ds. for a prolonged time would be tantamount to suspension under the E&D Rules and thus there would be a case of passive suspension. In support of this argument learned counsel has relied upon Syed Saghir A. Naqvi v. Province of Sindh (1996 SCMR 1165), Khadim Hussain v. Chief Engineer Irrigation, Lahore (1981 PLC (C.S.) 826, Khurshid Ahmed Niazi v. D.C. Dera Ghazi Khan (1983 PLC. (C.S.) 46 and Allauddin v. Chief Commissioner and another (PLD 1959 (W.P.) Karachi 282).
He has also submitted in this connection that as per section 11 of the Ordinance, the provision thereof would override all other laws including the Civil Servants Act, 1973 and the Service Tribunals Act. Thus per learned counsel, though ordinarily, viz. under the old E&D Rules, the plaintiffs could approach the Service Tribunal against a suspension order, they are specifically barred from doing so under the Ordinance.
On the merits of the case learned counsel has submitted that as the interim " order is patently mala fide the superior Courts would always interfere. In this regard he has submitted that in paragraph 35 of the plaint in Suit No.765 of 2000 details are given of the persons who were made OSDs alongwith the plaintiff in said suit but they were not suspended under the Ordinance, which would thus amount to discrimination and consequently in violation of the plaintiff's fundamental rights. He has also referred to the notification dated July 1, 2000 issued by defendant No.2 whereby certain officers who were made O.S.Ds' alongwith the plaintiffs have been given lucrative posts. Similarly learned counsel has submitted that the mala fides of the impugned suspension orders is manifest from the fact of the promulgation of the Ordinance on 27-5-2000 and issuance of such orders on 28-5-2000 which shows that there had been no application of mind at all by the concerned authorities. In this connection learned counsel has relied upon Bashir Engineering Industries Ltd., v. MCB (1998 CLC 2065), Mst. Zarina Begum v. I.-G. Police, Punjab (PLD 2000 Lah. 65) and Mansab Ali v. Amir Ali (PLD 1971 SC 124). Learned counsel has again reiterated that the impugned suspension notice is manifestly against the provisions of the Ordinance itself as section 13 clearly provides that pending cases would be proceeded in accordance with the old Service Rules. Consequently as per learned counsel where such a glaring error is apparent on the face of the impugned notice, it would be just and proper for this Court to take corrective measures rather than force the plaintiff to resort to departmental remedies and thereafter to the hierarchy of Appellate Forums viz. the Tribunal and Supreme Court. He has also reiterated his earlier argument that in law there is no post of an OSD and accordingly the plaintiff's appointment as such is in flagrant violation of the law. He has therefore prayed that the impugned suspension notices be declared as of no legal effect and so also the plaintiffs postings as OSD and they be given appointments commensurate with their experience, length of service and abilities for this relief he has relied upon Syed Ajmal Hussain Bokhari v. Commissioner, Rawalpindi (1997 PLC (C.S.) 754), Shahnawaz Marri v. Government of Balochistan (:000 PLC (C.S.) 533) and Maula Bux v. Government of Sindh (supra).
Finally learned counsel has submitted that the Service Tribunal itself is not an independent judicial forum and has not been properly constituted since, the Chairman and the members are appointees of the Federal Government and can be removed by it. In this regard he has referred to Imran v. Presiding Officer Punjab Special Court No. VI, Multan and 2 others (PLD 1996 Lah 542) and Philips Electrical Industries of Pakistan Limited v. Pakistan and others (2000 YLR 274) in the latter of which case recommendations were made by a Division Bench of this Court regarding the composition and the functioning of the Service Tribunal. .
Mr. Naeem-ur-Rehman, the learned Dy. A.-G. has not controverted the facts of the case. He has also very candidly stated that in the circumstances of the case, when admittedly, the plaintiffs were made OSD's as long ago as in 1998, and they were not given any assignment as such, this amounted to suspension with the consequent result that the plaintiff's suspention under the Ordinance would not be correct in view of section 13 thereof, Mr. Khalid Dogar appearing for defendants Nos.2 and 3 has adopted the arguments of Mr. Naeem-ur-Rehman.
I have heard learned counsel as well as the learned D.A.-G. and my conclusions are as follows:--
Issue No. l
As regards the jurisdiction of this Court vis-a-vis the Service Tribunal, it would be useful to reproduce the observation of the Hon'ble Supreme Court in Dr. Ahmed Salman Waris v. Nadeem Akhtar and others (supra) which lays down the parameters of the same. "In order to make a matter exclusively cognizable by a Tribunal under the Act, and to create an ouster of jurisdiction of all other Courts and.Tribunals under Article 212 of the Constitution. It must be shown that the matter is agitated by a civil servant as defined under the Act, it has arisen from a final order of a departmental authority whether original or appellate, it concerns the terms and conditions -of the aggrieved civil servant and that it is not covered by the exceptions mentioned in proviso (b) (i) and (ii) of section 4 of the Act. If any of the conditions mentioned above are not existent in a case then, the bar contained in Article 212 of the Constitution will not be operative"
Learned counsel's first argument is that the Ordinance has vide section 13 thereof, created two types of civil servants viz. those whose cases were pending under the old E&D Rules and those who were proceeded against under the Ordinance. Hence the plaintiffs whose cases were pending under the E&D Rules could not file any appeal against their suspension under the Ordinance as they ceased to be civil servants as such for the purposes of the New Ordinance. In this regard it would be seen that section 2(i) of the Civil Servants Act, 1973 defines a civil servant to mean a person who is a member of an All-Pakistan Service or of a Civil Service of the Federation, or who holds a civil post in connection with the affairs of the Federation including any such post connected with defence " Section 2 (a) of the Service Tribunals Act, 1973 adopts…
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