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Petitioner: Dr. ASADULLAH KHAN TAREEN VS Respondent: GOVERNMENT OF BALOCHISTAN HEALTH DEPARTMENTHonorable Justice Muhammad Noor Meskanzai and Muhammad Hashim Khan KakarTahir Ali Baloch,Shai Haq Baloch
2016 P L C (C.S.) 195
[Balochistan High Court]
Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J
Dr. ASADULLAH KHAN TAREEN
Versus
GOVERNMENT OF BALOCHISTAN HEALTH DEPARTMENT and another
Constitutional Petition No.1023 of 2014, decided on 16th March, 2015.
(a) Constitution of Pakistan---
----Part VII, Chap. 3 (Arts.192 to 203_risdiction---Scope---High Court is the apex Court of a province but is creature of Constitution---High Court is vested with that jurisdiction which has been conferred on it by Constitution or under any law for the time being in force.
Shaheen Akhtar v. Government of Punjab 1998 PLC (C.S.) 70 rel.
(b) Jurisdiction---
----Determination---Mandatory for Court to decide at first instance question of its jurisdiction---Without deciding question of jurisdiction, proceedings on merits may ultimately prove a futile exercise.
Registrar High Court of Balochistan, Quetta v. Mazar Khan 2014 PLC (C.S.) 1275 rel.
(c) Balochistan Service Tribunals Act (V of 1974)---
----Ss. 4 & 5(2)---Constitution of Pakistan, Arts.199 & 212(1)---Constitutional petition---Maintainability---Judgment of Service Tribunal---Implementation---Petitioner, civil servant wanted to implement judgment passed by Service Tribunal---Validity---Service Tribunal was a civil court for the purpose of deciding any appeal regarding terms and conditions of a civil servant---Service Tribunal had all powers of civil court including those required to implement its orders as provided under the provisions of Civil Procedure Code, 1908---In case of disobedience of orders of Service Tribunal, the same could be enforced under applicable provisions of Civil Procedure Code, 1908---Underlying object of incorporation of Art.212 in the Constitution and establishment of Service Tribunal by legislation was to provide efficacious, expeditious and inexpensive remedy to civil servants for redressal of their grievances arising out of violation of terms and conditions of their service---Establishment of Service Tribunal aimed at prevention of intrusions into or inroad on terms and conditions of civil servants by departmental authorities---Unlike Constitutional jurisdiction of High Court under Art.199 of the Constitution confined to question of law without venturing upon resolution of factual controversies, it was within the jurisdiction of Service Tribunal and it was its obligation to decide all questions of law and fact sought to be raised by petitioner---High Court declined to issue direction for implementation of judgment/orders passed by Service Tribunal purportedly in favour of petitioner---Petition was dismissed in circumstances.
Niaz Muhammad Khoso v. Government of Balochistan 2012 PLC (C.S) 106; Black's Law Dictionary (Eighth Edition p.881); Ghulam Murtaza v. The State PLD 2009 Lah. 362; Dossani Travel Shop (Pvt.) Ltd. v. Messrs Travels Shop (Pvt.) Ltd. PLD 2014 SC 1; Secretary, Ministry of Education, Government of Pakistan, Islamabad v. Muhammad Azam Ch. 2009 SCMR 194 + 2009 PLC (C.S.) 539; 2010 SCMR 1301=2011 PLC (C.S.) 1130 and PLD 2010 Federal Statute 684 ref.
Ahmad Nawaz Khan v. Senior Accounts Officer (Admn.), Pakistan Railways, Lahore 1989 PLC (C.S.) 398; Asma Hafeez v. City Police Officer, Gujranwala 2012 PLC (C.S.) 1025; Ch. Sadiq Ali (Retd.) Assistant Engineer/S.D.O., P.W.D. v. The Chief Secretary, Azad Jammu and Kashmir Government PLD 1996 SC (AJ&K) 29; Zahooruddin Sheikh v. Pakistan Atomic Energy Commission through Chairman, Islamabad 2007 PLC (C.S.) 959; Sh. Riaz-ul-Haq v. Federation of Pakistan through Ministry of Law PLD 2013 SC 501; Imran Raza Zaidi v. Government of Punjab 1996 SCMR 645; Tariq Transport Company v. The Sargodha-Bhera Bus Service PLD 1958 SC 437; Muhammad Hashim Khan v. Province of Balochistan PLD 1976 Quetta 59; Iftikhar Ahmad v. Muslim Commercial Bank Ltd. PLD 1984 Lah. 69; Mehram Ali and others v. Federation of Pakistan PLD 1998 SC 1445 and Messrs Ranyal Textiles v. Sindh Labour Court PLD 2010 Kar. 27 rel.
(d) Balochistan Service Tribunals Act (V of 1974)---
----S. 4---Appeal to Service Tribunal---Limitation---Scope---Strict application of law of limitation in service matters has logic behind it that public interest requires that there should be an end to litigation---Law of limitation provides element of certainty in conduct of human affairs and statutes of limitation and prescription are statutes of peace and repose---Law of limitation does not support sluggish person, who sleeps over his rights and that law would lull a person who slept over his right and Courts must not exercise their inherent power in favour of such a person--- Limitation creates right in favour of other party that cannot be taken away by condonation of delay.
Cap. (R) Mukhtiar Ahmed Shaikh v. Federation of Pakistan through Secretary Ministry of Law, Islamabad PLD 2014 FSC 23 rel.
(e) Constitution of Pakistan---
----S. 212---Civil service---Matter relating to terms and conditions of service and disciplinary matters---Jurisdiction of Courts---Scope---Any matter pertaining to terms and conditions of service of civil servant or disciplinary matter cannot be entertained by any Court including High Court.
(f) Balochistan Service Tribunals Act (V of 1974)---
----Ss. 4 & 5---Judgment of Service Tribunal---Implementation-- Principle-- Government is not under obligation to straightaway implement judgment of Service Tribunal but it must act promptly and invoke appellate jurisdiction of Supreme Court, if so advised---If operation of judgment of Service Tribunal is not suspended by Supreme Court, mere grant of leave to appeal cannot defeat implementation process of judgment/order passed by Service Tribunal.
Chairman/Managing Director P.I.A.C. v. Nisar Ahmed Bhutto 2005 SCMR 57; Abdul Hafeez Abbasi v. Managing Director, Pakistan International Airlines Corporation, Karachi 2002 PLC (C.S.) 1083 Masood Ahmed Changwani v. Secretary, Establishment Division, Islamabad 1999 PLC (C.S.) 443; Azkar Ahmed v. Secretary, Ministry of Information and Technology (IT and Telecom Division), Islamabad 2012 PLC (C.S.) 1101 and Muhammad Ayub Rizvi v. Education Secretary 1982 PLC (C.S.) 242 rel.
(g) Interpretation of Constitution---
----Trichotomy of power, principle of---Applicability---Principle of trichotomy of power is one of the foundational values of Constitution where-under all three organs of State, namely the legislature, the executive and the judiciary are required to perform their functions and exercise their power within their allotted sphere---Such organs are exclusive in themselves with regard to respective domain or jurisdiction and cannot make inroad or transgress spheres of each other.
(h) Constitution of Pakistan---
----Part VII (Arts.175 to 212-B)---Judiciary---Duties and functions---Constitution makes it the exclusive power / responsibility of judiciary to ensure sustenance of system of 'separation of power' based on checks and balances---Such is a legal obligation assigned to Judiciary and it is called upon to enforce Constitution and safeguard Fundamental Rights and freedom of individuals.
(i) Constitution of Pakistan---
----Arts. 4 & 5(2)---Rights of individuals and obedience of Constitution---Scope---Executive authorities, by virtue of Arts.4 & 5(2) of the Constitution, are bound to obey the command of Constitution and to act in accordance with law and decide issues after application of mind with reasons as per settled law.
Federation of Pakistan through Secretary, Establishment Division v. Tariq Pirzada 1999 SCMR 2744 and Ch. Zahur Ilahi v. Zulfikar Ali Bhutto PLD 1975 SC 383 rel.
Tahir Ali Baloch for Petitioner.
Shai Haq Baloch, Astt. A.-G. for Respondents.
Mazhar Ilyas Nagi, Amicus Curiae.
Date of hearing: 26th February, 2015.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J.--- The instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution") carries the following prayer:
"It is, therefore, respectfully prayed that this Hon'ble Court may kindly be pleased to declare the action of respondent No.1 of not implementing the judgment dated 07-09-2012 passed by Service Tribunal Balochistan, Quetta in S.A. No.71 of 2011, to be illegal and contemptuous, consequently the respondent No.1 may be prosecuted for the same and this respondent may be directed to implement the judgment dated 7-9-2012 passed by Service Tribunal Balochistan, Quetta in S.A No.71 of 2011 in letter and spirit, with any other relief and cost of the proceeding, in the interest of justice."
2. The petitioner through this petition has sought direction to respondents for implementation of the judgment dated 7th September, 2012 passed by the Balochistan Service Tribunal ("the Tribunal") in Service Appeal No.71 of 2011. The apparent discernable question, which requires adjudication in this petition, seems to be trivial, insignificant and small one regarding implementation the order of the Tribunal, but, in fact, this petition has raised several important questions of law of great importance, which we proposed to deal with in this judgment.
3. Keeping in view the importance of the matter, we requested Mr. Mazhar Ilyas Nagi, a distinguished senior advocate, to assist this Court as Amicus Curiae.
4. This is a classic example, which abundantly portrays how a Professor/civil servant has been made victim of the circumstances by the respondents, while abusing the judicial system.
5. Mr. Tahir Ali Baloch, learned counsel for the petitioner, submitted that the petitioner, after having succeeded before the Tribunal, has a vested right to be dealt with in accordance with law, as envisaged in Article 4 of the Constitution. He further submitted that the petitioner cannot be left at the mercy of the departmental authorities, who were under constitutional, legal and moral obligation to implement the judgment and orders passed by the Tribunal. He further added that it is a case of hardship, as the petitioner is going to retire from service within a couple of months.
6. On the contrary, Mr. Shai Haq Baloch, learned Assistant Advocate General, while controverting the contention raised on behalf of the petitioner, raised objection regarding the maintainability of the instant petition.
7. Mr. Ilyas Nagi, learned Amicus Curiae, submitted that since the Tribunal's order has become final, as such, it is the constitutional, legal and moral duty of the respondents to implement the same in letter and spirit, and in failure, this Court will perfectly be justified in issuing a writ of mandamus to the respondents to comply with the Tribunal's order. He further added that, in principle, such kind of petitions should not be encouraged, because this Court cannot be converted as an executing Court for implementation of orders of the Service Tribunal. Mr. Mazhar Ilyas Nagi, learned Amicus Curiae, also informed us that the Federal Service Tribunal and Service Tribunals, functioning in the Provinces of Punjab, Khyber Pakhtunkhwa and Sindh, have already been empowered to execute its judgments/orders by making necessary amendments in the relevant laws.
8. Mr. Tahir Ali Baloch, learned counsel for the petitioner, when confronted with the question of maintainability of the instant petition, in view of the judgment passed by a division bench of this Court in the case of "Niaz Muhammad Khoso v. Government of Balochistan", (2012 PLC (C.S) 106), he contended that the Tribunal is not vested with any efficacious jurisdiction/power to execute its own judgment/order, therefore, the petitioner is left with no alternate, efficacious and speedy remedy but to approach this Court. He further submitted that the choice of forum for redress of grievance in view of cumbersome technicalities under such circumstances is not less than searching for a needle in a bundle of hay. While concluding his arguments, he further added that the petitioner has rightly invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution and in the cases of administrative tyranny, High Court must intervene and compel the administration to carry out its constitutional and legal obligations.
9. Before dilating upon the rival contentions of the parties, it would be appropriate to take up the question of maintainability of the instant petition under Article 199 of the Constitution. There can be no cavil to the fundamental cardinal principle of administration of justice "let justice be done though heaven should fall", but learned counsel for the petitioner has not succeeded in satisfying us as to how this constitutional petition is maintainable and how we can depart from the principle laid down by a division bench of this Court in the case of Niaz Muhammad Khoso (supra). Learned counsel has requested for issuance of directions to respondents to implement the judgment/orders passed by the Tribunal merely on the ground that injustice had been done to the petitioner without any substantial ground and that grievance of aggrieved party should be redressed without driving a needy litigant from pillar to post. We are not impressed with the arguments advanced by the learned counsel. It must not be lost sight of that High Court is the apex court in a province but it is the creature of the Constitution and it is vested with that jurisdiction which has been conferred on it by the Constitution or under any law for the time being in force. In this regard reference can be made to the case of "Shaheen Akhtar v. Government of Punjab", [1998 PLC (C.S.) 70], wherein the Hon'ble Lahore High Court observed as under:
"This is so because the power conferred upon this Court under Article 199 of the Constitution is the power of judicial review; that power is a great weapon in the hands of Judges but "the Judges must observe the Constitutional limits set by our parliamentary system on their exercise of this beneficial power", namely, the separation of powers between the Parliament, the Executive and the Courts."
10. Arguments advanced by the learned counsel are in the nature of misconception of principles of dispensation of justice in view of scheme of our Constitution and other relevant laws. As per dictionary meaning given in Black's Law Dictionary (Eighth Edition p.881) "Justice" means---
"The fair and proper administration of law."
It seems that learned counsel for the petitioner is emphasizing on the "Popular justice" that according to Black's Law Dictionary (Eighth Edition p.881) means---
"Demotic justice, which is usu. considered less than fully fair and proper even though it satisfies prevailing public opinion in a particular case. Cf. social justice. "Nothing is more treacherous than popular justice in many of its manifestations, subject as it is passion, to fallacy, and to the inability to grasp general notions or to distinguish the essential from the inessential." [Carleton K Allen, Law in the Making 387 (7th ed. 1964)."
11. This is the duty of the Court seized with the matter to apply the correct law in order to meet the ends of justice. Administration of justice, according to law, cannot be left to the whims of litigants and their counsel. Concept of "justice according to law" came under consideration before the Hon'ble Lahore High Court in the case of "Ghulam Murtaza v. The State", (PLD 2009 Lahore 362), wherein it was observed that:
The quintessence of the Civilization's evolution and growth in the legal field is a progression from dispensation of justice according to the principle of "justice, equity and good conscience" to "justice according to the law". The rationale or raison d'etre for this momentum, quite easy to discern and comprehend, is that justice ought not to be administered according to the whims, caprice or subjective standards of an individual Judge but it should be dispensed according to some codified or stipulated standards so as to render the outcome consistent and reasonably predictable. Predictability of judicial response to an action or inaction of a person is important because, by and large, people living in a community adapt or mould their conduct keeping in view the law of the land and a probable judicial reaction to their actions or inactions. Essence, therefore, is that, proverbially speaking, justice should not vary with the size of the Chancellor's foot but a person inviting a legal intervention into his conduct should be able to appreciate in advance as to how he is likely to be treated by a Judge dealing with application of the relevant law to that person's conduct. Uniformity and standardization of judicial response to similar legal situations cannot, thus, be overemphasized."
12. Yet in another case of "Dossani Travel Shop (Pvt.) Ltd. v. Messrs Travels Shop (Pvt.) Ltd., (PLD 2014 SC 1), Hon'ble Supreme Court explained the expression "justice under law" and "justice in its generic sense" in the following words:
We judges are mere mortals but the functions we perform have divine attributes. By the nature of our calling, we dispense justice under the law and provide relief. However, "justice" in its generic sense is a relative concept and unless regulated by law, the dispensation, notwithstanding the noble intent would be rather subjective."
13. We seized of the similar matter pertaining to jurisdiction of High Court in such like matters in a recent case of "Registrar High Court of Balochistan, Quetta v. Mazar Khan", [2014 PLC (C.S.) 1275], wherein after examining various provisions of the Constitution and relevant law, we arrived at a conclusion that it was mandatory for the Court to decide at first instance question of its jurisdiction and without deciding question of jurisdiction, the proceedings on merits may ultimately prove a futile exercise. In this case, by extensive survey of case-law, we were fortified in our view that jurisdiction of all other Courts including that of High Courts under Article 199 of the Constitution was ousted to the extent jurisdiction vested in Service Tribunals under Article 212 of the Constitution. It was further held in this case that the jurisdiction of the Tribunal will extend even to cases involving vires of a particular service rule or a notification; orders, even if mala fide, ultra vires or coram non judice, fell within the ambit of Service Tribunal and jurisdiction of Civil Courts including High Court was ipso facto ousted as a result of barring provisions of Article 212 of the Constitution and that even Constitutional issues could be taken before Service Tribunal and dealt with in exercise of its exclusive jurisdiction.
14. Coming to the next question, as to whether the Service Tribunal has been clothed with the power to implement its orders/judgments? We affirm the view taken by a division bench of this Court in the case of Niaz Muhammad (supra) and reiterate that when section 5 of the Balochistan Service Tribunal Act 1974 ("the Act of 1974") conferred jurisdiction upon a tribunal to decide an appeal, it also conferred the power to ensure that the decision was complied with. It is by now settled that if the Tribunal's order has become final, then it is the duty of the respondents to implement the same and in case of failure, this Court will be perfectly justified in issuing a writ of mandamus to the respondents to comply with the Tribunal's order. However, in principal, we feel, we should not encourage filing of writ petitions of this kind, because we cannot convert the High Court as an Executing Court for implementation of orders of the Tribunal. Further, the very purpose of the constitution of the Tribunal will be defeated, if the Tribunal cannot enforce their orders and on account of the same parties are compelled to approach the High Court leading to multiplicity of litigation. Keeping these in mind, we proceed to consider the powers of the Tribunal under the Act of 1974, to enforce its own orders and if the Tribunal is short of powers, to consider whether this Court can confer authority on it to function effectively under the Act of 1974. In our view, Tribunal itself has to evolve a mechanism for implementation of its orders, otherwise the High Courts will be flooded with writ petitions filed for enforcing orders of the Tribunal. Obviously, neither the Parliament, nor the Government desires the High Courts to be converted as executing courts for enforcement of Tribunal's orders. Besides saving the High Courts, we also have to keep in mind the interest of the litigants, who, after getting favourable orders from the Tribunals, should not be dragged to the High Courts for enforcing Tribunal's orders and if done the undesirable consequences will be that fruits of litigation will be eaten up in unnecessary further litigation in the High Courts. It may be noted that the Tribunal is clothed with the powers to enforce its orders within the purview of section 5(2) of the Act of 1974, which reads as under:
"5. Power of Tribunals.--- (1) A Tribunal may, on appeal confirm, set-aside, vary or modify, the order appealed against.
(2) A Tribunal shall, for the purpose of deciding any appeal, be deemed to be a civil court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908), including the powers of ---
(a) enforcing the attendance of any person and examining him on oath;
(b) compelling the production of documents;
(c) Issuing commission for the examination of witnesses and documents.
(3) No court-fee shall be payable for preferring an appeal, to, or filing, exhibiting or recording any document in, or obtaining any document from, a tribunal."
15. A minute perusal of above provision of law leads us to conclude that since the Tribunal is a Civil Court for the purpose of deciding any appeal regarding the terms and conditions of a Civil Servant, therefore, it has all the powers of a Civil Court including those required to implement its orders as provided under the provisions of the Code of Civil Procedure 1908 ("C.P.C."). In case of the disobedience of its orders, the same can be enforced under the applicable provisions of the Code.
16. It is worth mentioning that the Service Tribunals are given exhaustive and exclusive jurisdiction to decide all service matters pertaining to serving, retired and dead civil personnel represented by legal heirs claiming under them. It may be observed that there is nothing to indicate in the Act of 1974 as to how and who should execute the orders of the Tribunal. In our view, in the absence of any other authority prescribed under the Act of 1974 and the rules for execution of the orders of the Tribunal, the authority to execute order of the Tribunal is the Tribunal itself. The Service Tribunal being a Civil Court within the meaning of section 5(2) of the Act of 1974 has very wide powers to pass any order regarding the terms and conditions of a Civil Servant and may give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice.
17. Admittedly, refusal to enforce the Tribunal's orders could be brought within the scope of interruption or disturbance of the proceedings of the Tribunal, because execution of orders of the Tribunal being the duty of the Tribunal under section 5(2) of the Act of 1974 the proceedings of the Tribunal continue until the orders are executed and implemented. Non-implementation of the orders of the Tribunal, that has become final, is certainly an obstruction or interference with the course justice, and so much so is a criminal contempt, for which the Tribunal should be clothed with the powers to initiate prosecution proceedings against the contemnor. By holding this view, we are fortified by the dictum laid down in the case of "Ahmad Nawaz Khan v. Senior Accounts Officer (Admn.), Pakistan Railways, Lahore" (1989 PLC (C.S.) 398), wherein it was observed that:
"From these provisions it is abundantly clear that the Tribunal shall be deemed to be a Civil Court for the purpose of deciding an appeal and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908. Certain powers have specifically been mentioned, but they do not derogate anything from the generality of the provisions immediately preceding in the enacting part of subsection; which are clearly suggestive of the fact that the Tribunal's powers for deciding an appeal are commensurate with the Civil Court's powers for decision of matters before it. The proceedings on application for execution or implementation of the Tribunal's orders are undoubtedly one of the steps in the proceedings of the main appeal. Therefore, what follows is that the Tribunal has got the same powers as are vested in the Civil Court under the Code of Civil Procedure, not only for the purpose of deciding an appeal, but also for the consequential purpose of deciding the petition for implementation of its…
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