Case Summary & Legal Holding

This judicial decision was delivered by the Supreme Court of Pakistan on 1994-12-31. The matter involves proceedings between CHAIRMAN, PAKISTAN BROADCASTING CORPORATION, ISLAMABAD and NASIR JUDGMENT, officially reported as 1995 SCMR 1593. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.

Full Judgment Text & Judicial Ruling

Court Name: Supreme Court of Pakistan Judge(s): Mir Hazar Khan Khoso, Saleem Akhter, Zia Mahmood Mirza Title:CHAIRMAN, PAKISTAN BROADCASTING CORPORATION, ISLAMABAD vs NASIR

JUDGMENT

Reported As: 1995 SCMR 1593 Result: Order accordingly Judgment JUDGMENT SALEEM AKHTAR, J.---This appeal with the leave of the Court challenges the judgment of the Federal Service Tribunal dated 3-5-1992 by which the appeal of respondent No,1 was allowed and order of his compulsory retirement from service was set aside. 2. Respondent No,1 was appointed in the cadre of Assistant Regional Director, Radio Pakistan after his selection by the Federal Public Service Commission and he joined the department on 16-1-1951. He was confirmed as Assistant Regional Director from the same date. He was promoted as Regional Director Radio Pakistan on 9-12-1965 and further earned another promotion as Deputy Director-General on 28-5-1971. On creation of Pakistan Broadcasting Corporation, an autonomous body under Ordinance No, (LXVI of 1972) the service of respondent No,1 was transferred to the Corporation. The above Ordinance was later replaced by an Act in 1973. Respondent No,1 continued in the service of the Corporation in different capacities. After promulgation of Martial Law in July 1977, an Inquiry Commission was constituted to inquire into the alleged illegalities and irregularities of the Corporation. The Commission recommended removal of number of high officials of Pakistan Broadcasting Corporation. The case of respondent No,1 is, that because he was associated with the above Commission he was harassed and victimized in several ways. The Chairman of the Corporation removed him from the post of Controller (Administration) on 6-2-1978 and directed him to report to the Azad Kashmir Regional Director, Programes. On the intervention of C.M.L.A. Secretariat this order was cancelled but the Chairman did not obey it and shifted him to another post i,e. (Audience Research) a newly created post in the Programme Department. Respondent No,1 did not join and remained on medical leave. At the same time the Director-General abolished

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the post of Controller (Administration) and instead created a new post of Controller (Administration or Personnel) and person junior to him was appointed against that post. In order to counter his harassm ent caused to him by the high-ups in Pakistan Broadcasting Corporation, respondent No,1 filed Writ Petition No,5223 of 1978 in the Lahore High Court challenging the aforestated order/action and also the orders by which he was ordered to vacate the house. He alleged mala fide against the Minister for Information and Broadcasting, the Chairman of the Corporation Mr. Q.A. Saeed, Acting Director-General and Mr. AA. Hanfi. The petition was accepted by the Lahore High Court on 26-6-1979 and the adverse orders were declared as without lawful authority. The above order of Lahore High Court was challenged both, by the Corporation as well as by the Federal Government in an Intra-Court Appeals Nos.192/1979 and 210/1979 before the Lahore High Court. While the above Intra Court Appeals filed by the Corporation and the Federal Government were pending, respondent No,1 was compulsorily retired from service on completion of 25 years of service, on 27-12-1981, by the Chairman, Pakistan Broadcasting Corporation. Respondent No,1 challenged the order of his "compulsory retirement from service before the Lahore High Court in Writ Petition No,59-S/82 which was heard alongwith the Intra-Court Appeals filed by Pakistan Broadcasting Corporation (P.B.C.) and the Federal Government against the decision of the learned Single Judge in Writ Petition No,5223/1978. All the three cases were heard together but were disposed of on 21-12-1983 by separate judgments. The writ petition filed by respondent No,1 against his compulsory retirement from service was dismissed and as a result thereof the two Intra-Court Appeals filed by P.B.C. And Federal Government against the decision in Writ Petition No,5523 of 1978 were dismissed as infructuous. However in No,192/1979 it was observed that the allegations of mala fides were rightly made against Mr. QA. Saeed Director-General and do not apply to other appellants including the Chairman. Respondent No,1 preferred an appeal (CA. No,106/1984) before the Supreme Court against the decision of the Lahore High Court dismissing his petition in which he had challenged the order of his compulsory retirement. He also filed C.A. No,775/1984 challenging the remarks that mala fides alleged by respondent No,1 stood proved only in respect of QA. Saeed the Director-General and not the Chairman. In this appeal (CA. No,775/1984) respondent No,4 filed cross-objections praying that the findings of mala fides recorded in the impugned judgment of the High Court be set aside. This Court by judgment dated 24-10-1988 set aside the judgment of the Lahore High Court holding that the appellant was a civil servant and, therefore, his remedy lay before the Service Tribunal. It was observed as follows:-- "The High Court was in error to hold that he was an employee of the Corporation and the order retiring him from service on completion of 25 yearsservice for pension was a valid order having been passed by the Chairman who was the competent authority under the Regulation. The High Court, accordingly, has no jurisdiction to decide the question of the legality of his retirement and should have left it to the consideration of the Federal Service Tribunal. The order is, therefore, without jurisdiction and is set aside. In that view of the matter, the judgment of the High Court in Writ Petition No,59-S of 1982 and in I.C.A No,192 of 1979 were without jurisdiction, and are set aside. The cross-objections, however, succeed and are allowed." Respondent No,1 preferred review application before this Court which was dismissed and, therefore, he preferred a service appeal addressed to the President of Pakistan on 5-4-1990 to which he received a reply dated 10-6-1990 that no further action was required in the matter in view of the decision of the Supreme Court. He, then, preferred an appeal before the Service Tribunal which has been accepted by the impugned judgment and the order of his compulsory retirement from service has been set aside. The Service Tribunal took the view that this Court vide order dated 24- 10-1988 passed in Civil Appeal No,106/1984 declared the status of respondent No,1 as that of a civil servant and as such the Chairman of P.B.C. Was not competent to pass order retiring him from the service.

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3 Leave was granted to consider whether respondent No,1 being employee of Pakistan Broadcasting Corporation was subject to regulations of the Corporation and the Chairman, Pakistan Broadcasting Corporation has the jurisdiction to pass order of compulsory retirement. 4. Mr. K.M.A. Samdani, learned Sr. A.S.C. For the appellant contended that the Chairman, Pakistan Broadcasting Corporation had the jurisdiction to pass order of retirement of respondent No,1 deriving his authority from the Service Regulation of P.B.C. The learned counsel contended that assuming for the sake of argument, that he may not have had the de jure jurisdiction to pass such order the fact remains that the de facto doctrine shall be applicable as for a long period he has acted as a Chairman, exercising powers under the rules in respect of all the employees without any objection. The learned counsel referred to Lt.-Col Farzand Ali and others v. Province of West Pakistan (PLD 1970 Supreme Court 98). In this case several appeals were decided but the main point which came up for consideration was on the challenge made by number of persons who were retired from service under Article 178 (4) (b) of the Constitution of Pakistan, 1962. Their retirement was assailed on the ground that power assumed by the Government for retiring them was not lawfully acquired because the amendments to the Constitution were not made by the requiste majority of 2/3rd of the total number of members of the National Assembly as required by Article 209 of the Constitution. It was contended that although the amendments were passed by majority of 113 votes, 34 members who voted in favour of the amendments were disqualified to be members under Article 103 of the Constitution as it stood at that time These contentions were repelled on the basis of de facto doctrine as well as on the ground that such collateral attack upon their right to participate in the proceedings in the House in respect of impugned amendment in the Constitution could not be allowed. It was further held that "as they participated in the proceedings bona fide in assertion of a claim of right and as such, the legislative measures passed by the Assembly with their participation were protected by sub-clause (d) of clause (1) of Article 110 of the 1962 Constitution". As regards the principle that the acts of de facto members cannot be invalidated and should be treated as being equivalent to or as good as the acts of de jure members, reference was made to Edwin Scadding v. Louis Lorant (10 ER 164) Toronto R.Co. And City of Toronto (46 DLR 547) and Colley on Constitutional Limitations, Eighth Edition, Volume 2, page 1357. At page No,1355, officer de facto was defined as "one who by some colour of right is in possession of an office and for the time being performs its duties with public acquiescence, though having no right in fact". Reliance was also placed by Hamoodur Rahman, J. On Jurisdiction and Illegality by Ammon Rubinstein. While holding that the right to participate in the proceedings, could not be challenged collaterally it was observed as follows:-- "To do so collaterally in proceedings to serious inconvenience to the public and those individuals whose interests may have been affected by the legislative measures enacted in the meantime. This de facto doctrine is a doctrine of necessity to bring about regularity and prevent confusion in the conduct of public business and promote security of private rights." 5. The learned counsel has also referred to Abdul Salam Qureshi and another v. Judge, Special Court of Banking for Sindh and another (PLD 1984 Karachi 462). In this case the appointment of a person who was not holding a post of District Judge on the date when the Special Banking Court consisting of him constituted under section 5 of the Banking Companies (Recovery of Loans) Ordinance, 1979 was challenged. Section 5 (2) of the Ordinance provided that Special Court shall consist of a person who is a District Judge. While challenging the appointment it was contended that the said officer should not have been a District Judge but should have actually held that post of District Judge on the date of establishment of the Special Court. Naimuddin, J. (as he then was) relying on various judgments of the American Courts, and the Supreme Court of India and our Courts held that "the orders, judgments and decrees passed by the said officers were saved by de facto doctrine which gives validity to acts of Judges de facto whatever defects there were in the

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illegality of their appointment". The same view was followed in Atlas Autos Limited and others v. National Industrial Relations Commission, Islamabad and others (PLD 1990 Karachi 362). 6. The de facto doctrine is well recognised in our jurisprudence as is obvious from the observations made in Farzand Ali's case and in subsequent judgments of various superior Courts. This doctrine is intended to avoid confusion which may be created by acts of officers and persons not legally entitled to perform such duties and have in fact continue to do so without any objection. The present case is however distinguishable. Respondent No,1 has not challenged the appointment of appellant No,1 as Chairman of Pakistan Broadcasting Corporation. He has objected to the authority and jurisdiction of appellant No,1 to pass order of his retirement in terms of the provisions of law under which he had been appointed. He has not pressed any ground which warrant issue of a wirt of quo warranto or disqualify him from holding the post of Chairman. A distinction has to be drawn where appointment of an officer is challenged on ground of any disqualification in holding that post and in case where without objecting to his entitlement to hold that post, challenge has been made on the ground that he has no jurisdiction to pass the impugned order. In all the cases referred above, the appointment of an officer of election of a member was challenged as void ab initio. This is not the case here. In our view in the facts and circumstances of the case the de facto doctrine cannot be pressed in service to validate an.Illegal orders passed without jurisdiction by a competently appointed officer. 7. Mr. Samdani contended that respondent No,1 is not a member of information service and, therefore, the view taken by this Court in earlier proceedings that he was not in the service of Corporation in terms of section 12 of Pakistan Broadcasting Corporation Act, 1973 (hereinafter referred to as the Act) is based on misconception of facts. On our query made to respondent No,1 he stated that he was not a member of the Information Service but he is a Civil Servant and has challenged his compulsory retirement even on other valid grounds. 8. We have examined the Resolution of Government of Pakistan Ministry of Information and Broadcasting published in Extraordinary Gazette of Pakistan Notification No,2 (1) 61-C1 dated 24-1- 1964 by which "Central Information Servicewas constituted and have noticed that the appellant was not included in the list of officers constituting the Central Information Service. In our view it seems that it was due to some erroneous impression that respondent No,1 was treated to be a member of the Information Service. He had been working in the Ministry of Information and Broadcasting but was not a member of the Information Service. Before his transfer to the Corporation respondent No,1 was in the service of Pakistan. Under section 12 (1) of the Act, he was transferred to the Corporation but he did not cease to be a member of Service of Pakistan. He was a civil servant and after transfer continued to be so. If the intention of the Legislature had been that on transfer he ceased to be in the service of Pakistan, the same would have been provided as in the case of optees of the Information Service of Pakistan in terms of section 12 (3) of the Act. The learned counsel for the appellants has referred to Ordinance XVII/93, XLVII/93, XXVI/93, XXVI/94, LVI/94 and XCl/94 to show that by amending section 12 with retrospective effect all persons transferred to the Corporation under section 12 (1) have "ceased to be civil servant in the Service of Pakistan". Amendments were made in section 12 with a view to overcome the observations of the Supreme Court. It has been contended by respondent No,1 that the President could not have promulgated the same Ordinance after Ordinance XVII of 1993 stood repealed under Article 89 of the Constitution. He has placed reliance on Collector of Customs v. New Electronics (PLD 1994. SC 363). According to the learned Deputy Attorney-General during the period from 24-8-1993 to 15-11- 1994 five Ordinance, viz. (i) Ordinance XVII/93 The Pakistan Broadcasting Corporation (Amendment) Ordinance, 1993.

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(ii)Ordinance XLVII/93The Pakistan Broadcasting Corporation (Second Amendment) Ordinance, 1993. (iii)Ordinance XXVI/94The Pakistan Broadcasting Corporation (Amendment) Ordinance, 1994. (iv)Ordinance LVI/94 The Pakistan Broadcasting Corporation (Second Amendment) Ordinance, 1994. (v)Ordinance XXl/94 The Pakistan Broadcasting Corporation (Third Amendment) Ordinance, 1994. were promulgated on 24-8-1993, 15-12-1993, 5-4-1994, 4-8-1994 and 15-11-1994 respectively. He has further stated that the first four Ordinances were laid before the National Assembly on 11-11-1993, 22-12-1993, 20-4-1994 and 22-8-1994 while the last Ordinance was laid before the Senate on 26-12- 1994. The Standing Committee submitted its report in respect of Ordinance XVII/93 and Ordinance XLVII/93 on 4-9-1994 but on the same date they were withdrawn. The Standing Committee submitted its report in respect of Ordinance XXVI/94 on 15-8-1994 and according to the Deputy Attorney-General it was passed by the National Assembly on 22-8-1994. No further information is available about it. A bill after it is passed by the House in which it originated has to be transmitted to the other House and if the Bill is passed without amendment it is presented to the President for assent (Article 70 (1). 9. Beyond the aforestated contention and the information no further arguments were addressed. In these circumstances in our view as the appeal can effectively be decided on other points we need not dilate further on this question. It may however be clarified that in view of the definition of Service of Pakistan in the Constitution and the term 'civil servantin the Service Tribunals Act, 1973, for the purposes of invoking the jurisdiction of the Federal Service Tribunal, respondent No,1 is a civil servant. In Hadi Bux v. Government of Sindh and others (PLD 1994 SC 532) while considering the definition and meaning of term "Service of Pakistan" in Article 260 of the Constitution and term "civil servant" as used in section 2 (a) of the Sindh Service Tribunals Act, 1973, which is identical to the definition provided by section 2 (b) of the Civil Servants Act, 1973 and adopted by section 2 (a) of the Service Tribunals Act 1973, following observation was made:-- "According to the above definition, a person who is or has been a member of the Civil Service of the Province or holds or has held a civil post in connection with the affairs of the Province and for the purpose of any proceeding under the Act includes a person who is or has been dismissed, discharged, removed or retired from such service or post as a consequence of the order of the departmental authority but it does not include the persons mentioned in sub-clauses (i) to (iii)." After referring to Begum Tahira Fazal Ahmed v. Home Secretary, Government of West-Pakistan (PLD 1966 Lahore 446) it was observed:-- "It cannot be denied that the appellant was holding a civil post and as the meaning of the word 'Governmentincludes legislative functions, the appellant was holding civil post in connection with the affairs of the Province." 10. The legal position of the employees of the Corporation is not different. The Corporation was established by the Pakistan Broadcasting Corporation Act, 1973 (Act XXXII of 1973). Section 4 constitutes a Board of Directors consisting of Chairman of the Board and not more than seven other Directors, all of whom are to be appointed by the Federal Government and hold office during the pleasure of the Government. Section 10 (1) enumerates the functions of the Corporation while subsection (2) provides that "in the discharge of its functions the Corporation shall be guided on questions of policy by the instructions, if any, given to it from time to time by the Federal Government which shall be the sole Judge as to whether a question is a question of policy." The Federal Government has full control of Corporation's 'finances and it can be wound up only by an order of the Federal Government.

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The Corporation is under Government control which appoints the Chairman and the Directors, No share has been offered to the public nor any director represents the listners or the public. The Government has monopoly over broadcasting and the listners have no right to make their choice. Such a Government controlled and regimented Corporation playing an important role in the media of information is like a department of the Government. The Ministry of Information and Broadcasting is an important Ministry playing effective role in connection with the affairs of the Federation. Therefore respondent No,1 holding a civil post will be covered by the definition of "civil servant" as defined in section 2 (a) of the Service Tribunals Act, 1973. Thus the Federal Service Tribunal had the jurisdiction to entertain and decide the appeal. We may however observe that although respondent No,1 is a civil servant for purposes of invoking the jurisdiction of the Tribunal, in view of section 12 (1) of the Act the Chairman was competent to pass the impugned order of retirement. 11. Respondent No,1 has challenged the order of compulsory retirement on the ground of mala fides. The Tribunal upholding the plea of respondent No,1 that the order of retirement was passed mala fide observed:- "It cannot be denied that the appellant was not liked by the high-ups in the Corporation and he had become an undesirable person for them and it seems that the order of his compulsory retirement from service was made in order to get rid of him. Of course, his allegation of mala fides were examined by the High Court and it was held that they could be directed only against Mr. Q.A. Saeed, ex-Director-General. In any case, the order of retirement of the appellant from service was not made in public interest, but it was an action in reaction to the situation created by the appellant's association in the inquiry conducted by the Martial Law Inquiry Commission." 12. The learned counsel contended that the Tribunal was not justified in accepting the plea of mala fides alleged by respondent No,1. It was further contended that the appellants cross-objection praying for setting aside the finding of mala fide recorded in the judgment of the High Court having been allowed, the Tribunal could not reopen it in appeal filed by respondent No,1. The finding of mala fides was in respect of order of transfer which was challenged in the petition and was subject-matter of C.A.No,775/84 in which cross-objection was filed by the appellant. This Court set aside the judgment of the High Court in Writ Petition No,59-S of 1982 and I.C.A. No,192/1979 as the High Court did not have jurisdiction in the matter being Ousted under Article 212 of the Constitution. The cross-objection was also allowed for this reason. However in Review petition filed by respondent No,1 this Court clarified while dismissing it as follows:-- "No case for review is made out as the fact remains that mala fides attributed were against a particular officer who had not passed the impugned order." In the petition filed by respondent No,1 he had enumerated the instances of mala fides against the appellant which the Tribunal has accepted as quoted above. We do not find any valid reason to interfere with this finding of fact. 13. Respondent No,1 further contended that as the provisions providing for compulsory retirement violate. Islamic Injunctions and the principles of natural justice, the order of compulsory retirement is, illegal and void. Regulation 3 of the Pakistan Broadcasting Corporation Employees (Retirement from Service) Regulations, 1980 reads as follows:-- "3. Retirement.--(1) An employee shall retire from service-- (i) on such date after he has completed twenty-five years of service qualifying for pension, gratuity or other retirement benefits as the competent authority may, in the public interest, direct; or (ii) where no direction is given under clause (1), on the completion of the sixtieth year of his age: (2) An employee may, at any time after he has completed twenty-five years of service qualifying for pension, gratuity or other retirement benefits, apply for retirement from service by giving not less than three monthsnotice of his intention to retire."

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14. Respondent No,1 has relied on Pakistan and others v, Public-at-Large and others (PLD 1987 SC 304) (Shariat Appellate Bench), in which the provisions of section 13, clauses (1) and (2) of Civil Servants Act, 1973 and similar provisions in other Provincial Civil Servants Acts providing for compulsory retirement on completion of 25 years of service were held to be repugnant to the injunctions of Islam in so for as they do not provide for due notice for action proposed to be taken and opportunity of showing cause against such action. This judgment had allowed the competent authorities a period of six months from 11-3-1987 to amend the law observing that the amendment should be made to bring them in conformity with the Injunctions of Islam failing which they shall cease to have legal effect. The question of compulsory retirement with reference to the Injunctions of Islam was considered by this Court and following observation was made by Muhammad Afzal Zullah, CJ. "The retirement is admittedly premature. Thus, it is deprivation of right to continue up to age of sixty which the other civil servants even placed in the same categories, not to talk of the civil servant in general, do not suffer. Right to work in this context is very valuable, which is denied. This denial is more…

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