IN THE HIGH COURT OF SINDH, KARACHI
Constitutional Petition No.D-798 of 2007
Present:
Mr. Justice Gulzar Ahmed.
Mr. Justice Malik Muhammad Aqil Awan.
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Date of Hearing |
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11.03.2009 |
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Petitioner |
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Manzoor Ahmed Shaikh through Barrister Zamir Hussain Ghumro.
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Respondent No.1 |
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Federation of Pakistan through Mr. Ashiq Raza, Deputy Attorney General.
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Respondents 2&3 |
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Pakistan State Oil Company Limited through Mr. Ghulam Murtaza, Advocate holding brief for Mr. Muhammad Humayon, Advocate.
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MALIK MUHAMMAD AQIL AWAN, J : The petitioner was appointed/selected as Trainee Engineer in pursuance of Talent Pool Scheme with effect from 20.08.1995 under the order dated 31.07.1995 by the respondent No.2.
2. Under the appointment order dated 31.07.1995 in clause-1, it is stated “Kindly note that your employment may be terminated at any time without any notice, should your performance during training period be considered un-satisfactory by the Company.”
3. Respondent No.2 terminated such training assignment vide order dated 28.08.1997 which order was challenged by the petitioner through Departmental Appeal dated 18.09.1997.
4. Learned counsel for the petitioner made statement before us that present petition is identical to that of C.P. No.D-743 of 2007, but on perusal of the record and particularly from Para 4 of the memo of petition we find that the same is distinguishable inasmuch as in this case no appeal before the Federal Service Tribunal was filed by the petitioner against the order of termination, therefore, question of abatement of appeal does not arise. To appreciate the effect of this misleading statement, contents of Para 4 of the petition are reproduced herein below: -
“That the Petitioner preferred departmental appeal against his termination but the same was not replied by the department despite many reminders and consequently the petitioner filed Appeal before Federal Service Tribunal which was pending adjudication when the Honorable Supreme Court declared section 2A of the Services Tribunal Act 1973 partially ultra vires of the constitution and the Federal Service Tribunal returned the Appeal of the petitioner with the direction that the petitioner can seek remedy from appropriate legal forum.”
5. Had there been an appeal filed by the petitioner before the Federal Service Tribunal, copy of the same would have been annexed with the memo of petition or in case of order of the abatement such order passed by the Federal Service Tribunal would have been available on the record of the case because the period of 90 days to challenge the termination order would commence from the date of abatement, but very conveniently only copy of the departmental appeal dated 18.09.1997 is annexed with the memo of petition. It is very unfortunate that in the comments filed on behalf of the respondent No.2 signed by their Manager Legal Affairs and Attorney, without properly examining the record, in Para-vii, it has been stated “It is an admitted position that the petitioner’s appeal under Section 4 of the Services Tribunal Act before the Federal Service Tribunal was abated after declaration by Hon’ble Supreme Court of Pakistan that Section 2-A of the Services Tribunal Act 1973 was partially ultra virus the Articles 240 and 260 of the Constitution.”
6. In order to further clarify this aspect of filing of appeal in the Federal Service Tribunal and it being abated, while we had reserved the judgment, petitioner counsel was asked to provide copy of appeal and the order passed by the Tribunal. The copies have not been provided despite passage of almost two weeks.
7. That with this standard of assistance rendered by both the parties to the Court, we have to decide the matter in accordance with the pleadings of the parties and the annexures/documents filed in support of this case. We are mindful of the fact that ordinarily averments in the pleadings are supported with relevant and necessary documents, therefore, we proceed on the premises that in this case after filing of departmental appeal against the termination order dated 28.08.1997, the petitioner remains contented with filing of departmental appeal and he did not challenge the said order in any other competent forum of law.
8. That after the narration of above facts, the position which emerged out of the same is that services of the petitioners were terminated on 28.08.1997, he filed departmental appeal against the same on 18.09.1997, and thereafter, for the first time, he has filed the present petition on 28.09.2006 in which he has not challenged the legality of the termination order and his prayer is confined only to the extent that reinstatement of the petitioner in service with full financial back benefits, be ordered.
9. That right after filing of the departmental appeal dated 18.09.1997 and sending reminder letters by the petitioner requesting for decision of his departmental appeal and the last reminder placed on record is dated 19.10.2000, no persuasion appears to have been made by the petitioner with intent to challenge termination order before any competent Court of law. Even if, we extend benefits of condonation to the petitioner with effect from 18.09.1997 i.e. date of filing of the departmental appeal, to 19.10.2000 i.e. date of last reminder with the request to decide his departmental appeal, even then, there is no explanation for not challenging the termination order before the competent forum to seek redressal of his grievance. The effect of the same is that this petition having been filed on 28.09.2006 is suffering from serious unexplained laches and as such, not maintainable.
10. That the next obstacle in the way of petitioner on account of his omission to challenge his termination from service before any competent forum of law at the relevant time, is that he acquiesced and such acquiescence would estop him to agitate the same matter after such a long time in extraordinary Constitutional jurisdiction of the High Court.
11. That another aspect of the matter is that at the relevant time when order of termination was passed, the jurisdiction to adjudicate the legality of such order was vested in the Federal Service Tribunal and Section 4 of the Services Tribunal Act, 1973 provided complete procedure to file an appeal against the order of termination of service. Under such procedure the petitioner was supposed to file departmental appeal within 30 days from the date of order of termination of service i.e. 28.08.1997 which he had filed on 18.09.1997. The departmental appeal having been filed in time, the petitioner was supposed to wait for 90 days from the date of filing of departmental appeal i.e. 18.09.1997 and on the date 90th day, when expired he could have challenged the termination order within 30 days by way of filing an appeal before the Federal Service Tribunal. He did not file any such appeal as it appears from his reminder dated 19.10.2000 and was merely pursuing the Departmental Appellate Authority to decide this departmental appeal. In the meanwhile, Section 2-A of the Services Tribunal Act, 1973, was declared ultra vires of Articles 240 and 260 of the Constitution of Islamic Republic of Pakistan, as decided by the Hon’ble Supreme Court of Pakistan in the case of Mubeen-us-Salam reported in P.L.D 2006 SC 602. In this view of the matter, the termination of service of the petitioner under the order dated 28.08.1997 passed by the respondent No.2 had become past and close transaction, which cannot be reopened at this stage on any equitable principle of law.
12. On this score, the petitioner is not entitled to any equitable relief in Extraordinary Constitutional jurisdiction of High Court.
13. That the arguments of the learned counsel for petitioner that the petitioner may be reinstated in service by extending the benefit of the Judgment of Hon’ble Supreme Court in the case of P.S.O. Vs Muhammad Akram and others decided on 17.03.2004 and further based his arguments on the Judgment of Hon’ble Supreme Court of Pakistan in the case of Tara Chand Vs Karachi Water and Sewerage Board reported in 2005 PLC (CS) 368. In this case relying upon the case of Hameed Akhtar Niazi reported in 1996 SCMR 1185, the Judgment in personam and Judgment in rem were distinguished and it was held that the rule of good governance demands that the benefit of the judgment of Supreme Court be extended to other civil servants, who may not be party to the litigation instead of compelling them to approach the Tribunal or any other legal forum.
14. That this submission of the learned counsel for petitioner is also suffering from serious misconception. We have already held in C.P. No.D-743/2007 and C.P. No.D-1748/2006 that question of legality or illegality of termination order is a mix question of fact and law to be determined by the competent forum when the same is challenged before such forum in the prescribed manner. Since we have come across number of petitions making the same relief of reinstatement on the same ground, therefore, to remove such misconception in the mind of the learned Members of the BAR we deem it necessary to highlight the distinction of the application of Judgment of Supreme Court on different cases. For instance, 30 employees are removed from services by the competent authority under one composite order containing one and the same reason and out of those 30 employees only five of them challenged such order before a competent forum of law where their appeals are allowed and they are reinstated in service. Such matter is taken by the aggrieved party before the Supreme Court of Pakistan, where the reinstatement is upheld by passing Judgment either at leave granting stage or at the stage of appeal. The question is whether remaining 25 employees, who have not challenged their termination, would stand reinstated automatically in view of the Judgment of Hon’ble Supreme Court of Pakistan, the answer is not, for the reason that under the Judgment of Supreme Court or Judgment which have been upheld by the Hon’ble Supreme Court, while adjudicating upon the rights of employees to serve and in the wake of same legality of the termination, the inter-see right of the parties are adjudicated upon and decided, and as such, character of the said Judgment would be that of Judgment in personam which only binds the parties, such judgement falls within the ambit of Article 56 of Qanoon-e-Shahadat Order, 1984. The distinction of the judgements falling within the purview of Article 56 and 55 were interpreted in the case of Muhammad Sohail v. Government of N.W.F.P. reported in 1996 SCMR 218 relevant pages 229 and 230.
“ We are of the view that the judgement rendered by the Service Tribunal in the appeal filed by Mubarik Ali and which was upheld by this Court by refusing leave to appeal is not a judgement of the nature covered by the above four types of jurisdiction referred to in Article 55 of (Qanoon-e-Shahadat), but it falls in the categories of judgements refereed to in Article 56 of the order. In other words, it is relevant for the controversy in issue but is not conclusive proof against the appellants as to what it states.
There is no doubt that the law declared by this Court is binding on all the Courts in Pakistan but simplicitor this fact will not attract the application of the principle of judgement in rem. It was open to the Service Tribunal in the present case to have taken the same view which it had taken earlier if no distinction could have been pointed out by the appellants, but the appellants could not have been non-suited on the ground that the earlier judgement constituted judgement in rem as to bind the appellants to whom cause of action accrued after the circulation of above seniority list on 29.11.1992.”
15. The second case in the line is that of M. A. Rashid Rana v. Secretary Home, Government of Punjab, 1996 SCMR 1145:
“ Judgement of Punjab Service Tribunal determining interse rights of the parties before Punjab Service Tribunal was judgement in personame and same being not in rem would not apply to persons who were not party in the proceedings before Punjab Service Tribunal.”
16. The third case in the line is Zulfiqur-ul-Hussain v. Oil & Gas Development Corporation, 2003 P.L.C. (CS) 368 relevant page 375, B Para 13.
“ Contention that if any relief is given to the present appellants, that will affect about 300 employees of the respondent Corporation and would thus upset its entire administrative set up. The plea is not sustainable, in that, the order proposed to be passed in these proceedings will be confined to the cases of appellants alone and not other employees who failed to approach the Tribunal for redressal of their grievance. Clearly, the cases of such employees would be hit by the doctrine of past and close transaction.”
17. It is only the Judgment in rem whereof benefit can be extended to the parties, who have not litigated, if their case is covered under the principle of law declared under the said Judgment. For instance, there is a question before the Hon’ble Supreme Court of Pakistan regarding determination of seniority of civil servants that whether they would take the seniority from the date of their regular appointment or from the date they joined the post. Hon’ble Supreme Court after interpreting the different and relevant provisions of law, which are applicable on the subject, came to the conclusion that the seniority of the civil servants would be reckoned from the date of regular appointment. In such a case, the Hon’ble Supreme Court has deiced the question of law and to that extent character of the Judgment is that of Judgment in rem and such principle may be applied by the Administrative Department on those civil servants, who may not be party before the Supreme Court in order to determine their seniority. But so far, the question of assignment of seniority between the contesting parties on the basis of such principle is concerned, amounts to deciding seniority rights of the parties and would be relevant and binding only on such parties and to that extent the character of the judgement would be in personame. In former case, on the behest of Tara Chand or Hameed Akhtar Niazi’s case mentioned supra, benefit can be sought, by those employees who were not party to litigation but the question of law declared by Supreme Court is applicable on their case. Whereas in the present case, the Judgment relied upon by the petitioner and available on record in case of P.S.O. Vs Muhammad Akram and others, being Judgment in personam, the benefit of the same cannot be claimed by the petitioner unless the termination was challenged in the prescribed manner at the relevant time before the competent forum of law.
18. With the above clarifications, we have no other option but to dismiss this petition in limine, with no order as to costs.
19. On 11.03.2009 after hearing the learned counsel for the parties, by a short order this petition was dismissed. Above are the reasons for the said short order.
JUDGE
JUDGE