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Petitioner: Nadeem Ahmed VS Respondent: Federation of Pakistan & 04 others
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman, Adnan-ul-Karim Memon Title: Nadeem Ahmed vs Federation of Pakistan & 04 others Case No.: C.P No.D-1016 of 2013 Date of Judgment:2019-05-21 Reported As: 2019 SHC 162 Result: petition dismissed
Judgment ADNAN-UL-KARIM MEMON-J: Basically , the Petitioner seeks disposal of the instant Petition, with the prayer to set aside the disciplinary proceedings initiated against him by the Pakistan State Oil Company Limited ["Respondent-Company "], on account of Misconduct which finally culminated in his dismissal from service on 05.7.2013. 2. We asked from the learned Counsel to satisfy this Court with regard to maintain ability of the instant Petition on the premise that Respondent-Company is a non-statutory company , having no statutory rules of service; hence the service matter of Petitioner is to be governed by the principle of `Master` & `Servant`. 3. Mr. Abdul Salam Memon, learned counsel for the petitioner , in reply to the query , has submitted that this Petition is maintainable under the law and invited our attention to the decision rendered by this Court in the case of Bakht Siddique and 61 others vs. Federation of Pakistan and others [2017 PLC (C.S) 1192]. In the said decision the Bench has observed that Pakistan State Oil Company Limited is a `person` within the meaning of Article 199(1) (a) (ii), read with clause (5) of the Constitution, hence, Petition against Respondent-Company is maintainable. 4. There is no cavil to the aforesaid proposition set forth by this court affirmed by the Honorable Supreme Court in Civil Petitions No.409-K to 414-K of 2017 [2018 SCMR 1181]. However, we may observe that in the aforesaid matter; the issue of Regularization of service of the employees of Respondent-Company was involved. In our view, the regularization of the employees is not part of the terms and conditions of service of the employees for which there has to be some statutory rules but it depends upon the length of service of the said employee. The question involved in the present proceedings however is altogether different as discussed supra. 5. Learned Counsel attempted to convince us that during pendency of this petition, the Petitioner was dismissed from service without providing ample opportunity of hearing to him, therefore, he wants that at least directions may be issued to the Respondent-Company to conduct a fresh inquiry into the allegations of his Misconduct; that the Respondent-Company had transgressed the basic spirit of law, while exercising the powers not vested in them and
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this court is empowered under the Constitutional jurisdiction to protect the rights of any individual regarding fair trial as guaranteed under Articles 4, 10-A, 11 of the Constitution as well as Section 24-A of the General Clauses Act, 1897; that the penalty of dismissal from service imposed upon the Petitioner was unjustified; that under the similar circumstances this Court has allowed petition against Respondent-Company; that Respondent-Company is a public utility company providing basic amenities to the public at large, therefore, was a body Corporate performing functions in connection with the affairs of the State and therefore, amenable to the Constitutional jurisdiction of this Court; that the disciplinary proceedings merged into dismissal from service of the petitioner can be called in question under Article 199 of the Constitution; that when any action of the public functionaries is based on malafide, coram-non-judice or without jurisdiction the same could be assailed through a Constitutional Petition by an aggrieved person; that the fundamental right of the petitioner as guaranteed by Article 10-A of the Constitution had been violated and he had been dismissed from service without resorting with the principles of due process of law, and this court can take cognizance under the Constitution; that the larger Bench of the Hon? ble Supreme Court has already held that the Constitutional Petition is maintainable against Pakistan State Oil Company Limited; that the concept of Master and Servant cannot be stretched to confer unbridled powers to the Respondent-company so as to act whimsically, capriciously or in violation of the principles of natural justice and well settled norms of law and justice; that there is/was much difference between the word `Misconduct` and `Negligence` and, therefore, the Petitioner should not have been dismissed from service on the purported ground of `Misconduct`, therefore, the impugned orders are liable to be set aside. He lastly prayed for allowing the instant petition. The learned Counsel, in support of above contention, has also placed reliance in the cases of MAZHAR ILYAS NAGI and others v. GOVERNOR, STATE BANK OF PAKIST AN and others [2018 PLC (C.S.) 99], Messrs.' STATE OIL COMP ANY LIMITED---Petitioner v . BAKHT SIDDIQUE and others-- Respondents [2018 SCMR 1181], TAHIR MAHMUD v. QASIM M. NIAZI and others [2014 PLC (C.S.) 1199], KAMRAN AHMAD v. WATER AND POWE R DEVELOPMENT AUTHORITY through Chairman and 3 others [2014 PLC (C.S.) 332], AEROTRON (PRIV ATE) LIMITED through Managing Director and 2 others---Petitioners v. FEDERA TION OF PAKIST AN through Principal Secretary to the Prime Minister (Chief Executive) and 9 others---- Respondents [2014 CLD 1185],FEDERAL GOVERNMENT M/o DEFENCE, RAWALPINDI---Appellant v. Lt. Col. MUNIR AHMED GILL---Respondent [2014 SCMR 1530 ], AHMAD HASSAN BUCHA v. CHAIRMAN, NADRA and others [2015 PLC (C.S.) 381], PAKIST AN DEFENCE OFFICERS' HOUS ING AUTHORITY and others---Appellants v. Lt. Col. Syed JAWAID AHMED-- Respondent and other connected appeal s [2013 SCMR 1707 ], RIFF AT HASSAN and 9 others v. FEDERA TION OF PAKIST AN through Chairman, Feder al Board of Revenue/Secretary, Revenue Division and another [2011 PLC (C.S.) 562],MEHTAB AHMED v. CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, KARACHI and 2 others [2010 PLC (C.S.) 876], TANVEER-UR-REHMAN v. PAKISTAN INTERNATIONAL AIRLINE CORPORATION [2009 PLC (C.S.) 28], Dr. MALLICK MAROOF IMAM v. FEDERATION OF PAKISTAN through Secretary, Establishment Division, Islamabad and 7 others [2008 PLC (C.S.) 671], MUHAMMAD DAWOOD and others v. FEDERATION OF Pakistan and others [2007 PLC (C.S.) 1046 ] and ABDUL HAMEED and others v. MEMBER (REVENUE), BOARD OF REVENUE and others [2005 PLC (C.S) 1367 ]. 6. The learned Counsel for the Petitioner has briefed us that the Petitioner was initially appointed in the year 1989 and subsequently , he was reinstated in service in the year 1993. However , in the year 1997 his services were again terminated on the ground of Political affiliations, but later on he was again reinstated, in the light of Sacked Employees (Reinstatement) Ordinance, 2009 ("Ordinance, 2009" ). Learned Counsel has drawn our attention to the charge sheet dated 01.11.2012, whereby Respondent-Company served him with the allegations of un- authorized absence from duty and insub ordination / failure to obey the legitimate instructions of the Company . Petitioner was further charge sheeted vide letter dated 22.02.2013 with the accusation that he disobeyed the legitimate instructions of the Company and remained on unauthorized leave. The aforesaid charge sheet was followed by another charge sheet dated 06.3.2013 with the allegations that his performance was unsatisfactory / negligent, he caused damage to the property of the Company and his activities had caused disrepute to the credibility of the Company . Petitioner replied to the aforesaid charge sheets with vehemence and denied the
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allegations leveled against him, with the plea that, he applied for leave without pay vide email dated 20.12.201 1, his request was processed and approved in December 2011 by the then Managing Director of the Respondent- Company , subsequently his remaining leave was cancelled in July 2012, without intimation, on the accusation of involvement in the Import of Base Oil Tender Inquiry . Learned counsel in support of his contention, relied upon the Statement dated 11.3.2015, filed on behalf of the Petitioner (available at page 191 of the court file) and denied the allegations of his involvement in the Import of Base Oil Tender Inquiry . Petitioner , in his abortive attempt justified his absence in the enquiry proceedings on the medical grounds by relying upon the medical certificates. Petitioner being aggrieved by and dissatisfied with the initiation of the aforesaid Inquiry proceedings against him filed the instant Petition on 1 1.3.2013, through his Attorney . 7. Learned Counsel for the Petitioner has drawn our attention to the order dated 13.3.2013 passed by this Court, whereby Respondent-Company was directed not to take any coercive action against the Petitioner till the next date of hearing. He further invited our attention to the order dated 31.10.2018, whereby the Dismissal from service? order dated 05.7.2013 issued by Respondent-Company was kept in abeyance. At this stage, we asked from the learned counsel that when his services were reinstated and all disciplinary proceedings were merged into reinstatement order, then what remains for him to agitate now. He replied that the Respondent-Company reinstated the service of the Petitioner and he was taken back on duty from the date of his joining, in compliance with the interim order dated 31.10.2018 passed by this Court and the matter is yet to be decided by this court on merits. He finally prayed that this Petition may be disposed of with the directions to the Respondent-Company to provide a fair hearing to the Petitioner on the aforesaid charges, in the light of Article 10- A of the Constitution. 8. Conversely , Mr. Muhammad Humayun, learned Counsel representing Pakistan State Oil Company Limited, has raised the question of maintainability of the instant Petition, on the grounds that the Respondent-Company is not established under the Statutes, but incorporated as a Company under the Companies Ordinance, 1984, having non-statutory Rules of service and is being managed by the Human Resource Manual; that service matters of the employees of Respondent-Company are governed under the rule of `Master` & `Servant`, thus no writ lies against Respondent-Company . Learned Counsel referred to the comments filed on behalf of the Respondent-Company and further argued that the Authorities of the answering Respondent-Company have not acted malafidely nor violated any provisions of law or service Rules in discharging their duties; that the Petitioner had earlier been served with Show Cause Notices, thereafter , he was served with three Charge Sheets on account of `Misconduct`, thereafter he was issued notices to appear before the Inquiry Officer, but the Petitioner miserably failed to appear before the Inquiry Officer, thus, all procedures were adopted. Consequently , the Petitioner was dismissed from service by the Competent Authority of the Respondent-Company , vide letter of dismissal dated on 5.7.2013. He lastly prayed for dismissal of the instant Petition. In support of his contention, he relied upon the case of DIG NH &NP Karachi v. Ghulam Mustafa Mahar another (2019 SCMR 95) and other unreported order dated 13.8.2018 passed by the Hon?ble Supreme Court passed in Civil Petition No.603-K/2018, and argued that the service matter of the employees of the Respondent-Com pany ought to be decided in accordance with the law laid down in the case of PAKIST AN INTERNA TIONAL AIRLINE CORPORA TION AND OTHERS VS. TANWEER-UR-REHMAN AND OTHERS (PLD 2010 SC 676). For convenience sake, an excerpt of the order dated 13.8.2018 is reproduced as under:- "Mr. Shahid Anwar Bajwa, learned ASC for the petitioners submits that since the dismissal of the respondent has been upheld by the judgment impugned herein however , through the same, petition filed by the respondent has been held to be maintainable which is contrary to law. He however submits that he will be satisfied if it is observed by this Court that the judgment impugned shall not be treated as a precedent and the question of maintainability of the petition regarding the service matter of the employees of the petitioner-company shall be decided in accordance with the law laid down in the case of Pakistan International Airline Corporation and others vs. Tanweer-UR-Rehman and others (PLD 2010 Supreme Court 676). The request being reasonable is granted. The petition is disposed of accordingly .
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9. Mr. Muhammad Nishat Warsi, learned DAG, representing Respondent No.1 has adopted the arguments of learned counsel for the Respondent-Company and further stated that the case law cited by the learned counsel for the petitioner are distinguishable from the facts of this case and argued that regularization of service is not part of the terms and conditions of service, therefore, the Petitioner cannot claim similar treatment in this regard, whereas enforcement of non-statutory rules of service of non-statutory company are altogether different and the same cannot be enforced through Constitutional Petition. He added that rule of Master and Servant is attracted in the present case. He invited our attention to the various decisions of this Court on the aforesaid proposition, whereby the Petitions were dismissed; therefore, no interference in the present matter is required by this Court. He lastly prayed for dismissal of the instant Petition. 10. The learned counsel for the Petitioner , in exercising of his right of rebuttal has emphasized that it would be unfair if the Petitioner is shorn off his right of hearing, and would be violative of his fundamental right to a "fair trial and due process" as ordained in Article 10-A of the Constitution; thus, the Petitioner can invoke Constitutional jurisdiction of this Court under Article 199 of the Constitution to seek enforcement of his right guaranteed under Article 4 of the Constitution, which inter alia mandates that every citizen shall be dealt with in accordance with law . 11. We have heard the learned Counsel for the parties at length, so also perused the entire material available on record and the decisions relied upon by the learned Counsel. 12. Firstly with regard to the question of maintainability , references are being made to the decisions rendered by the Honorable Supreme Court in cases of Ramna Pipe and General Mills (Pvt.) Ltd. v. Sui Northern Gas Pipe Lines (Pvt.) (2004 SCMR 1274 ), Abdul Wahab and others Vs. HBL and others (2013 SCMR 1383 ), Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed and other connected appeals [2013 SCMR 1707 ], Khawaja Muhammad Asif v. Federation of Pakistan (PLD 2014 SC 206), Pir Imran Sajid and others Vs. Managing Director/General Manager Telephone Industries of Pakistan and others (2015 SCMR 1257 ), Pakistan Telecommunication Employees Trust vs. Muhammad Arif and others [2015 SCMR 1472 ], Shafique Ahmed Khan and others versus NESCOM through Chairman Islamabad and others (PLD 2016 SC 377),P.T.C.L. and others vs. Masood Ahmed Bhatti and others [2016 SCMR 1362 ], Muhammad Rafi and others Vs. Federation of Pakistan and others (2016 SCMR 2146 ), Muhammad Zaman etc. versus Government of Pakistan through Secretary , Finance Division (Regulation Wing), Islamabad (2017 SCMR 571) Pakistan Defence Housing Authority Vs. Mrs. Itrat Sajjad Khan and others (2017 SCMR 2010 ), Messrs State Oil Company Limited v. Bakht Siddique and others [2018 SCMR 1181], Airline Pilots Association and others Vs. Pakistan International Airline Corporation and others [2019 SCMR 278]. For the reasons given in the aforesaid judgments, in our view, there can hardly be any doubt that Respondent-Company is also a "person" within the meaning of Article 199(1) (a) (ii) read with clause (5) thereof. 13. Now, the question raised by the learned counsel for the Respondents that the Respondent-Company is not established under the Statutes, but incorporated as a Company under the Companies Ordinance, 1984, as such no writ can be issued. Since important question of law is involved in the present proceedings, therefore, we have to see whether the test laid down by the Honourable Supreme Court in the case of Pakistan Defence Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707), is applicable in the present case. The Honourable Supreme Court while discussing status and the functions of various Government Owned Entities/Authorities/Companies held that these are statutory bodies, performing some of the functions which are the functions of the Federation/State and through the exercise of public power , these bodies create public employments. These bodies are therefore "persons" within the meaning of Article 199(1) (a) (ii) read with Article 199(5) of the Constitution. If their actions or orders passed are violative of the Statute creating those bodies or of Rules/Regulations framed under the Statute, the same could be interfered with by the High Court under Article 199 of the Constitution. 14. The aforementioned test is applicable on Respondent-Company , which mostly follow the policies laid down by the Government of Pakistan regarding supply of petroleum products, being a Public Sector Company . Therefore, we have no hesitation to hold that the Respondent-Company is a body corporate performing functions in
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connection with the affairs of the State, which establishes the control of Government over the affairs of the Respondent-Company too, making the Company amenable to judicial review under Constitutional jurisdiction. 15. A reference has been given by the learned counsel for the Respondent-Company to the case of Abdul Wahab and others v. HBL and others (2013 SCMR 1383 ), where he attempted to demonstrate that the Respondent- Company is not "person" as defined under Article 199(5) of the Constitution. In this context, the Honorable Supreme Court has held that two factors are most relevant i.e. the extent of financial interest of the State/Federation in an institution and the dominance in the controlling affairs thereof. In the case of Salahuddin v. Frontier Sugar Mills and Distillery Ltd. (PLD 1975 SC 244), the Honorable Supreme Court laid down similar test to assess whether a body or authority is a person within a meaning of Article 199 of the Constitution and held that 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. The aforesaid view was further affirmed in Aitcheson College, Lahore through Principal v. Muhammad Zubair (PLD 2002 SC 326), by the Honorable Supreme Court. 16. Thus, in view of the above discussion, we do not find any substance in the claim of the learned counsel for Respondent-Company that the jurisdiction to this Court is barred on the ground that the Respondent-Company is not a "person" as discussed above. 17. Much emphasis has been laid on the case of Pakistan International Airlines v. Tanweer -ur-Rehman (PLD 2010 SC 676), by the learned Counsel for the Respondent-Company that the question of maintainability of the petition regarding the service matter of the employees of the Respondent-Company shall be decided in accordance with the aforesaid law laid down by the Honorable Supreme Court. 18. To appreciate the contention of the learned Counsel as stated above. The Honorable Supreme Court in the aforesaid matter has held at paragraph No. 25 that although the appellant-Corporation? is performing functions in connection with the affairs of the Federation but since the services of the respondent-employees are 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?. 19. The learned five Member Bench of the Honorable Supreme Court in the case of Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed and other connected appeals (2013 SCMR 1707 ) has answered the question raised by the learned Counsel for the Respondent-compa ny at paragraph No. 59, which needs no further discussion on our part. An excerpt of the same is reproduced as under:- "59. For what has been discussed above, the cases of this Court reported as (Pakistan International Airlines Corporation PLD 2010 SC 676, Executive Council Allama Iqbal Open University 2010 SCMR 1484 and Hyderabad Electric Supply Co. 2010 PSC 1392 Supra), we observe with respect, did not declare or enunciate any principle of law but were rendered in their own peculiar facts and circumstances and may not be treated as precedent on the issue we are seized of, because:-- (i) The issue before this Court in Executive Council Allama Iqbal Open University supra was only whether the Service Tribunal had jurisdiction to hear the appeal in view of the law laid down in Mubeen-us-Salam's case supra and whether the writ jurisdiction under Article 199 of the Constitution could be invoked in the event of violation of Ordinance, 2000. (ii) In all the above cases, the point that irrespective of the Rules/Regulations being non-statutory the promulgation of Ordinance 2000 was a statutory intervention and any violation thereof would be amenable to writ jurisdiction was not considered. In Hyderabad Electric Supply Co. 2010 PSC 1392 Supra, there was no allegation that there was any violation of any provision of the Ordinance 2000 and enforcement of Service Rules was sought which were found to be non-statutory. (iii) Neither the mandate of Articles 4 and 10A of the Constitution nor the law laid down in Civil Aviation Authority through Director-General v. Javed Ahmad (2009 SCMR 956) and Azizullah Memon v. Province of Sindh (2007 SCMR 229 ) was considered in those cases .(Emphasis Added)
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20. The learned three Member Bench of the Honorable Supreme Court, in the latest verdict in the case of Messrs.' STATE OIL COMPANY LIMITED---Petitioner v. BAKHT SIDDIQUE and others-- Respondents [2018 SCMR 1181], has clarified the issue of maintainability of the Petition against the Respondent-Company and therefore, we are fortified in our view that the instant Constitutional Petition is maintainable against the Respondent-Company. 21. Having decided on the maintainability, the instant Petition relates to the service of the Petitioner, whereby Respondent-company vide order dated 05.07.2013 dispensed with his service, during the pendency of the instant Petition on the allegations of involvement in the import of base oil tender inquiry and during the inquiry proceedings, he was found guilty of the charges of unsatisfactory, negligent performance, intentional damage to company property and activities bringing disrepute to the company, which he is asking for setting aside, through the instant Petition. Petitioner, who admittedly, is not a Civil Servant as defined under Section 2(1)(b) of Civil Servants Act, 1973, but an employee of a non-statutory Company, having non-statutory rules of service, thus cannot invoke the jurisdiction of Service Tribunal, the only remedy if any, lies by way of Civil Suit before the Civil Court pursuant to the Judgments rendered in the cases of Muhammad Mobeen-ul-Islam Vs. Federation of Pakistan and others (PLD 2006 SC 602) and Muhammad Idrees Vs. Agricultural Development Bank of Pakistan and others (PLD 2007 SC 681). However, the Full Bench of this Court in MUHAMMAD DAWOOD and others v. FEDERATION OF PAKISTAN and others [2007 PLC (C.S.) 1046] found a way out for only the employees of a Statutory Corporation, Authorities, Bodies, etc. who were proceeded under Removal from Service Ordinance, 2000 to invoke jurisdiction of this Court under Article 199 of the Constitution. 22. Progressing on the aforesaid proposition put forwarded by the learned Counse l, we have to see as to whether there is any violation of Statutory Law, compelling the Petitioner to invoke the Constitutional Jurisdiction of this Court? 23. The record reveals that the contractual services of the Petitioner were terminated, but upon promulgation of the "Ordinance, 2009", the Petitioner was reinstated in service in the year 2009. And thereafter disciplinary proceedings were initiated against him and finally culminated in the dismissal from service vide order dated 05.7.2013. In our view, the disciplinary matters fall within the expression "Terms and Conditions of Service" and admittedly , the same are non-statutory rules of service, which is an internal matter of service of the Respondent- company , which in our view cannot be thrashed out in a W rit Petition. 24. Since the Petitioner is governed as per the terms of his contract appointment letter and terms and conditions of service attached thereto, therefore,…
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