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Petitioner: ABDUL HAFEEZ ABBASI and others VS Respondent: MANAGING DIRECTOR, PAKISTAN INTERNATIONAL JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Iftikhar Muhammad Chaudhry, Abdul Hameed Dogar, Hamid Ali Mirza Title:ABDUL HAFEEZ ABBASI and others vs MANAGING DIRECTOR, PAKISTAN INTERNATIONAL
JUDGMENT
Reported As: 2002 SCMR 1034 Result: Order accordingly Judgment JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, J.---These appeals have been filed by leave of the Court against the judgments dated 29-5-2001 and 26-6-2001 passed by Federal Service Tribunal, Karachi. Relevant para. From leave granting order is reproduced hereinbelow:-- "7. After hearing Mr. Wasim Sajjad, learned Senior Advocate Supreme Court appearing in support of Civil Petitions Nos. 2140 to 2148 of 2001 and. Mr. Javed Altaf, learned Advocate Supreme Court appearing on behalf of the petitioner PIA Corporation in Civil Petitions Nos.2210 to 2218 of 2001, we are inclined to grant leave to appeal to consider whether the appeals filed by the petitioners in the first set before the Tribunal were not competent for want of making departmental appeals and whether they were reinstated into service on correct premises. Leave to appeal is also granted to consider whether the petitioners in the first set are entitled to back benefits and that the Tribunal was not justified in law in treating the period of their termination as leave without pay. The petitions of the second set are barred by one day each, therefore, leave granted in this set shall be subject to determination of the question of limitation." 2. Relevant facts of the case are that appellants Abdul. Hafeez Abbasi and others joined Pakistan International Airlines Corporation (herenafter referred to as the "PIAC") as its employees in different cadres. Particulars of their services are reproduced hereinbelow:-- Appeal Number Appellant Status and Date of Appointment Date of Permanent Absorption 928(K) 98 Abdul Hafeez Abbasi Work Officer 8-10-1995 8-10-1995 vide letter dated 11-1-1996 929 (K) 98 Zakir Hussain Traffic Officer 3-5-1995 3-5-1995 vide letter dated 26-11-1995 903 (K) 98 Ajeet Kumar Engineer 13-8-1995 13-8-1995 932 (K) 98 S.Fayaz Ali Shah Law Officer 7-5-1995 7-5-1995 vide letter dated 14-1-1996 933 (K) 98 Javed A. Pechuho Traffic Officer 7-5-1995 7-5-1995 vide letter date 14-1-1996 934 (K) 98 Riaz Ahmed Mangi Traffic Officer 1-4-1996 1-4-1996
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935 (K) 98 Shoaib Ahmed Dahri Assistant Manager (Public Relations) 28-5-199528-5-1995 vide letter dated 9-1-1996 and confirmation vide letter dated 15-2-1996 936 (K) 98 Shah Nawaz 8-10-1995 Law Officer 8-10-1995 8-10-1995 vide letter dated 20-5-1996 It so happened that services of above employees were terminated on 20-3-1997 by issuing separate letters to them. Relevant para. Therefrom is reproduced hereinbelow:- "TERMINATION FROM SERVICES On scrutiny, it has been found that your appointment as Works Officer in PIAC service is irregular. It was without inviting applications through advertisement, without competition on merits. Hence void ab initio. Therefore, your services are terminated forthwith without any stigma. Since your termination is simpliciter, you will be entitled to apply for a position as and when vacancy is advertised on the basis of your qualification and merits. You will be issued Service Certificate and paid your legal dues on submission of attached Clearance Certificate. Please arrange to surrender/return the following PIA property/documents to the concerned section against acknowledgerment: 1. PIA I.D. Card 2. Airport Entry Pass. 3. PIA Family Card(s) 4. PIA Passport, if any 5. PIA Uniforms 6. PIA equipment, if any . This has the approval of competent authority ." 3. Appellants Abdul Hafeez Abbasi and others challenged above order by filing civil suits before High Court of Sindh. The P.I.A.C. Contended that during pendency of the suits Service. Tribunals Act, 1973 was amended by adding section 2-A, according to which the employees of P.I.A.C. Were treated as civil servants for limited purpose. On promulgation of section 2-A of the Act, P.I.A.C. (appellants) filed applications before the High Court, contending therein that the suits filed by the employees have abated. Such position taken up by employer was controverted by the employees. However, learned High Court vide judgment dated 20-5-1998 declared the suits of the employees as having abated. It may be noted that during pendency of suits before the High Court appellants Abdul Hafeez Abbasi and others continued as employees of the P.I.A.C. On account of interim stay issued in their favour by the Court and when in pursuance of order dated 20-5-1998 stay order operating in their favour was vacated, the P.I.A.C. On 21-5-1998 issued another order stating therein that as suits filed by them have abated, therefore, original order dated 20-3-1997 has become operative and taken effect. Relevant para. Therefrom reads as under: "4. In view of the order, dated 20th May, 1998 of the Hon'ble High Court the termination of your service vide our Letter No, GW 0397005, dated 20-3-1997, has become operative and taken effect. Accordingly, your name stands struck off from the Rolls of the Corporation, and consequently you stand released and relieved from duty with immediate effect." 4. Appellants Abdul Hafeez Abbasi and others within 30 days from the date of passing of order dated 21-5- 1998 passed by PIAC filed appeals before the Federal Service Tribunal on 21-6-1998. 5. Federal Service Tribunal appeals filed by the employees vide impugned judgment. Operative para. Therefrom reads as under: "In view of the above discussion, we are of the considered opinion that the respondents have terminated the appellants without justification, as such, we set aside both the termination orders dated 20-3-1997 and 21-5- 1998 and direct that the appellants be reinstated forthwith in the same position from which they were terminated. The period which they remained out of job be treated as leave without pay." 6. Against impugned judgment Abdul Hafeez Abbasi and others filed petitions which have been converted into Appeals Nos. 2117 to 2125 of 2001 for the relief of back benefits and are being placed in Category "A" where PIAC also filed civil petitions which have been converted into Appeals Nos. 2126 to 2134 of 2001 and 12 of 2001 for setting aside impugned judgment and restoration of the termination order of the employees and are placed in Category "B" for proper reference hereinafter. 7. In our opinion it would be appropriate to take up cases of Category "B" for decision before the cases of Category "A". 8. Learned counsel for appellants contended that appeals filed by the employees were not competent before Federal Service Tribunal as they were filed without exhausting departmental remedy, as such were
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liable to be dismissed on this score alone. Reliance was placed by him on 1992 SCM R 1789 and 2002 SCM R 82. 9. Learned counsel for Abdul Hafeez Abbasi and others contended that as appellants are not civil servants for the purpose of Civil Servants Act, therefore, they had no statutory right to file departmental proceedings under statutory rules, therefore, in view of the judgment reported in 1997 SCMR 197 no departmental appeal/revision/review for making appeal before FST was competent, therefore, they rightly invoked the jurisdiction of Federal Service Tribunal without filing departmental appeal/representation against termination order of their services. 10. A cursory glance on the facts narrated hereinabove would reveal that appellants Abdul Hafeez Abbasi and others against the termination of their services filed civil suits in the High Court of Sindh. When the suits were pending section 2-A was added in Service Tribunals Act, 1973. According to which the employees of the Corporation owned by the Government, acquired a right to agitate their grievance before the Service Tribunal being civil servants for limited purpose. Therefore, on promulgation of section 2-A in Service Tribunals Act, PIAC itself filed application before trial Court/High Court of Sindh, contending that the suits filed by the employees have abated. Ultimately their such plea was accepted leaving the employees to avail remedy before the Service Tribunal. Now question is whether employees whose suits were abated were bound to follow, strictly procedure laid down under section 4 of the Services Tribunals Act, 1973. A perusal whereof would show that a civil servant under the Civil Servants Act is obliged to file appeal to the department under the Statutory Rules meant for seeking department remedy before invoking jurisdiction of the Service Tribunal, and if such rules have not been framed then he is obliged to appeal to the next higher authority of the department under section 22(2) of the Civil servants Act. But as far as employees of PIAC are concerned they are not civil servants for the purpose of Civil Servants Act under section 2(2) of the Act. Neither there is any statutory rules or forum created by a statute to entertain such appeals/revisions. In addition to it, as far as Departmental Authorities are concerned they also do not enjoy statutory powers to entertain departmental appeal filed by aggrieved employees being members of the Corporation, which is being run by the Board of Governors, and if the Board of Governors have framed any regulations in this behalf those have not been authenticated by the Federal Government, therefore, in absence of statutory rules employees of PIAC are not obliged to file departmental appeals before approaching Service Tribunal for redressal of their grievance as it has been held by this Court in the case of Syed Aftab Ahmad and others v. K.E.S.C and others (1999 SCM R 197) relevant para. Therefrom reads as under: "5. Reverting to the last ground found favour with the Tribunal, namely, that some of the petitioners had approached the Service Tribunal without filing an appeal or representation or before expiry of 90 days from the date of filing of an appeal or representation, it may be stated that in the absence of any statutory provision or any statutory rule providing a right of appeal or right of filing a representation, the requirement of filing such an appeal or representation provided in section 4 of the Act will not be applicable. The Service Tribunal was supposed to examine this question on the basis of the law or the relevant rules applicable to the employees concerned. Secondly, some of the above petitions have arisen out of Constitutional petitions which were filed in the High Court and which were treated as abated under section 6 of the Act and, therefore, the question of filing departmental appeals/representations in such cases would not arise. In any case, this question is to be examined by the Service Tribunal afresh. We would, therefore, convert civil petitions arisen from the judgments of Service Tribunal into appeals and would set aside the judgments of the Service Tribunal and would remand the cases to it to decide the matters on merits in the light of the observations contained herein. As regards civil petitions in which the High Court has declined Constitutional petitions on the ground that the petitoners should have approached the Service Tribunal, We would uphold the order of the High Court with the observation that in case the petitioners file applications for condonation of delay till the filing of appeals the same may be considered sympathetically and the petitioners may not be knocked out on technical ground." It may be noted in Gulbat Khan v. Water and Power Development Authority through its Chairman, Lahore and another (1992 SCM R 1789) it was observed that if any appeal, application for review or representation to a departmental authority is provided from the order passed against a civil servant availing of such remedy by him is the condition precedent for filing an appeal before the Tribunal. Such appeal, application for review or representation as the case may be was instituted before the Departmental Authorities. In this very
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judgment it was also observed that where no right of appeal of representation or review is provided under section 22 of the Civil Servants Act, 1973, the aggrieved person can make a representation to the forum next above the authority which made the order. It is to be noted that appellant Gulbat Khan being an employee of WAPDA was removed from service in pursuance of show-cause notice issued to him calling upon to explain as to why the penalty imposed upon him be not enhanced to commensurate with the nature of the charges proved against him. He challenged removal order before Federal Service Tribunal after observing formalities of filing departmental appeal and waiting for its decision for 90 days. The Federal Service Tribunal dismissed the appeal being barred by time without going into the merits of the case by expressing opinion that as no appeal before the departmental authority was provided against the order made under rule 12; meaning thereby the time consumed in pursuing that remedy could not be excluded in computing the period of limitation for filing the appeal under section 4 of the Service Tribunals Act. This Court, however, held that "if any appeal, application for review or representation to a departmental authority is provided from the order passed against the civil servant, availing of such remedy by him is the condition precedent for filing an appeal before the Tribunal. Such appeal has to be filed, as laid down under section 4, after expiry of 90 days from the date on which the appeal, application for review or representation, as the case may be, was instituted before the departmental authorities". It would be noteworthy that under section 17 (1-B) of the Pakistan Water and Power Development Authority Act (XXXI of 1958) the service under the Authority has been declared to be Service of Pakistan and every person holding the post under the authority not being a person on deputation shall be deemed to be civil servant for the purpose of Service Tribunals Act, 1973. Admittedly the WAPDA Authority has got its statutory rules like Efficiency and Discipline Rules etc. To deal with the affairs of its employees and under said. Rules statutory forums have been provided to redress grievance of the employees departmentally but PIAC have got no statutory rules or statutory forum to redress grievance of its employees against departmental actions, therefore, they are not supposed strictly to follow the provisions of section 4 of Service Tribunals Act, 1973 particularly in respect of filing departmental statutory appeals and its decision/disposal within 90 days. In the second judgment relied upon by the learned counsel for the respondent in the case of Engineer Narain Dass and another v Federation of Pakistan and others (2002 SCM R 82) a Full Bench of this Court disposed of the question of filing of 'departmental appeals before the next higher authouities by placing reliance on Gulbat Khan's case (ibid). In our opinion the case of Gulbat Khan is distinguishable on facts qua the employees of PVC for the reasons noted above. At this juncture it is pertinent to point out that the employees of the Authority, body or organization established under a Federal Law or is owned or controlled by the Federal Government or in which the Federal Government has controlling share or interest have been treated/declared to be in the service of Pakistan only for the limited purposes under section 2-A of the Service Tribunals Act, 1973 namely that every such person shall be deemed to be civil servant for the purpose of the Act, otherwise for all practical purposes employees of such organizations cannot be treated in the service of Pakistan nor they enjoy rights/obligations available to a civil servant under Civil Servants Act, 1973. Admittedly when a civil servant having protection of statutory rules and regulations intends to approach the Service Tribunal he is required to prefer departmental appeal under section 4 but when an employee like members of PIAC who have no statutory rules for controlling the affairs of their services they would not be obliged to approach the departmental authority for the redressal of their grievance, therefore, such employees legally cannot be compelled to do so and they can directly approach the Service Tribunal for the redressal of their grievance because they have been treated civil servants for limited purpose i.e, to seek redressal of their grievance relating to terms and conditions of their services from the Service Tribunal. It is also to be borne in mind that the Court/Tribunal seized with the matter is competent to interpret the law liberally with the object to extend its benefits largely to the aggrieved persons provided such interpretation has not violated the spirit of the law. Moreover it seems that section 2-A of Service Tribunals Act, 1973 after its promulgation has extended right to all the employees of the category falling within its ambit to have forum of Federal Service Tribunal for redressal of their grievances expeditiously instead of approaching the Civil Courts. Thus while reiterating the conclusions drawn hereinabove, it is held that the employees of PIAC or employees of such other organizations which have no statutory rules governing the affairs of their services of their employees, can without filing departmental appeals, review or representation to the next higher
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authorities can directly approach the Federal Service Tribunal. As a result of above discussion we are of the opinion that judgments in the Gulbat Khan and Engineer Narain Das and others (ibid) are distinguishable on facts as well as on law. 11. In addition to above conclusion with reference to the facts of instant case without fear of doubt we can say that in the instant case the Departmental Authorities of PIAC had knowledge that employees Abdul Hafeez Abbasi and others have expressed their grievance against the order of H - termination of their services because they contested the suit filed by them, therefore, alternatively plaints filed by them in the High Court can be treated as a departmental appeal without prejudice to the rule laid down hereinabove in view of unreported judgment of this Court in the Muhammad Mushtaq Akbar Abbasi v. House Building Finance Corporation and others (C.A.947 of 1999) wherein memo. of writ petition filed by the petitioner was treated to be a departmental appeal because the Managing Director had opposed the writ petition. It was further observed that such plea could only be raised by a person who has filed a suit or writ petition but in absence of such version on behalf of employee his appeal before Service Tribunal can be treated to be competent even without availing departmental remedy of filing appeal, representation or review because the organization against whose order the employee is aggrieved had got no statutory rules for filing appeal or statutory forum for its disposal. 12. Learned counsel for PIAC next contended that the employees Abdul Hafeez Abbasi and others have not been re-instated in service on the correct principle of law because relationship between them and PIAC is governed by the principle of Master and Servant and if such employees have been removed from service they are estopped to seek relief of reinstatement except praying for compensationin terms of money on account of damages sustained by them due to their removal from service. He further stated that Service Tribunal granted the relief of reinstatement to employees Abdul Hafeez Abbasi and others for violation of principles of natural justice as enshrined in the maxim audi alteram partem which has been recognized by this Court in the case of Mrs. Anisa Rehman v. PIAC and others (1994 SCM R 2232). According to him the principle laid down in Mrs. Anisa Rehman case has been clarified by the Hon'ble author Judge (as he then was) himself in another judgment reported in 1998 SCMR. 60. Therefore, according to him merely for violation of principle of natural justice the employees Abdul Hafeez Abbasi and others could have not been re-instated because when there is a simpliciter termination of service it carries no stigma with it, as such the employee cannot claim right of hearing or a right of issuing show-cause notice to him before taking action. He further stated that the competent authority always enjoy powers to dispense with the service of an employee without issuing show-cause notice to him. Reliance in this behalf was placed by him on the judgment announced by this Court in Civil Appeals Nos.366 of 2001 to 378 of 2001 etc. 13. Learned counsel appearing for employees Abdul Hafeez Abbasi and others contended that now position of law has been settled namely No adverse order can be passed against an employee even if relationship between him and his employer are governed by the principle of master and servant as it has been held by this Court in the case of Pakistan International Airlines Corporation v. Nasir Jamal Malik and others (2001 SCM R 934). He further contended that in the judgment being relied upon by the learned counsel in (Civil Appeals Nos.366 of 2001 to 378 of 2001 etc.) a Full Bench of this Court has observed that only in the cases of exigencies of service non-issuing of show-cause notice would not be fatal. 14. In view of the controversy under consideration we would like to observe that notwithstanding the fact that the principle of natural justice has been applied for limited purpose in Mrs. Anisa Rehman's case (ibid) as it was clarified subsequently in Habib Bank Limited judgment (ibid) but we are of the firm view that the principle enshrined in maxim audi alteram partem has to applied in all judicial and non-judicial proceedings notwithstanding the fact that right of hearing has not been expressly provided by the statute governing the proceedings. In this behalf in the case of Nasir Jamal Malik after having surveyed number of judgments on the subject it was concluded as follows: "We have considered the arguments, so advanced by both the sides in this behalf. It may be noted that in the judicial history of our country as well as in those countries where identical/corresponding system of administration of justice is invogue the principle enshrined in the maxim audi alteram parterm has been made applicable expressly or impliedly in every instrument governing the proceedings whichmay be statutory or otherwise and if its absence is conspicuous by not making it a part of the instrument governing
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the proceedings. Though the principle of audi alteram partem is not universally accepted principle but emphasis on its application has always been made on those proceedings where adverse action is being contemplated to be taken against the person/persons who have at least a right to defend such action or during course of time they have acquired a right to negate allegations on basis of which an action adversely affecting their interest is being taken. To strengthen the arguments reference may be made to Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (PLD 1959 SC (Pak.) 45, (ii) Messrs Faridsons Limited, Karachi and another v. Government of Pakistan and another (PLD 1961 SC 537), (iii) Abdur Rehman v. Collector and Deputy Commissioner, Bhawalnagar and others (PLD 1964 SC461), (iv) Abul A'la Maudoodi v. Government of West Pakistan (PLD 1964 SC 673), (v) University of Dacca v. Zakir Ahmed (PLD 1965 SC 90), (vi) Muhammad Yahat v. Province of West Pakistan (PLD 1964 SC 321), (vii) Messrs Eastend Exports, Karachi v. The Chief Controller of Imports and Exports, Rawalpindi and another (PLD 1965 SC 605), (viii) Pakistan and others v. Public At Large and others (PLD 1987 SC 304), (ix) Khaliluz Zaman v. Supreme Appellate Court, Lahore and 4 others (PLD 1994 SC 885}, (x) Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, NA. 158, Naushero Feroze and others (1994 SCM R 1299) and (xi) Faqir Ullah v. Khalil-uz-Zaman and others (1999 SCM R 2203). It may be noted that in the case of University of Dacca (ibid) question of consideration before this Court was as to whether the principle of Natural justice (audi alteram partem) in the cases of expulsion of student, by University Authorities, for alleged indiscipline, misconduct and rowdyism is applicable. In this context it was held that in all proceedings by whomsoever held, whether judicial or administrative, the principle of natural justice have to be observed if the proceedings might result in consequences affecting the person or property or other right of the parties concerned". This rule applies even though there may be no positive words in the statute of legal document whereby their powers is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness. As far as services of respondents are concerned though the principle of master and servant…
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