Present
Mr. Justice Gulzar Ahmed.
Mr. Justice Malik Muhammad Aqil Awan.
1. Zulfiaqar Ali Rajpur S/o Wali Muhammad,
Muslim, Adult.
2. Allah Bux son of Mir Muhammad, Muslim, Adult.
3. Azizullah S/o Karim Dad, Muslim, Adult:
Cooperative Housing Society,
Ajmeer Pride, Gulstan-e-Johar,
Karachi. - - - - Petitioners.
Versus
1. Federation of Pakistan,
Through Secretary,
Ministry of Petroleum & Nature Resources,
Pakistan Secretariat,
Islamabad.
2. Sui Southern Gas Company Limited,
Near Civil Center, Gulshan-e-Iqbal, Karachi,
through its Managing Director. - - - - Respondents.
Date of hearing: 09.04.2009.
Petitioners. Through Mr. Mansoorul Haq Solangi, Advocate.
J U D G E M E N T
MALIK MUHAMMAD AQIL AWAN, J- The three petitioners who claim to have been appointed/employed as Meter Readers by Respondent No.2 under order dated 28.08.1995. However out of three only one petitioner has filed on record his appointment order.
2. The petitioners claimed that they have been reinstated on account of status-quo order passed by Hon’ble Supreme Court of Pakistan in CPLA No.1397/2007 and in pursuance of the same they were allowed to submit their joining report, without passing any formal order of appointment after their first termination of service, the date of which is not specified in the memo of petition.
3. That the petitioners have not bothered to file termination order passed by Respondent No.2 against them therefore, we do not know as to on what date termination of service took place for the first time.
4. That the petitioners have claimed in Para-4 of their petition that Respondent No.2 again terminated their services but without specifying the date of such termination nor the copy of such termination order is annexed with the petition.
5. Petitioners have filed this petition on 02.10.2007 with the prayer that they may be reinstated with back benefits in view of the judgement dated 04.09.2007 passed by Hon’ble Supreme Court of Pakistan in which, of course they were not party.
6. We have perused the record of the case and do not find the copy of judgement dated 04.09.2007 as stated in clause (b) of the prayer clause, available on record. However, the main prayer of the petitioners is that on the basis of said judgement they may be reinstated in service and placed reliance upon the case of Hameed Akhtar Niazi V. Secretary Establishment Division, reported in 1996 SCMR 1185. The second case relied upon on the same point is that of Tara Chand v. Karachi Water and Sewerage Board Karachi & others, reported in 2005 SCMR 499. We also find another case given in the list of books i.e. Director, Social Welfare N.W.F.P., Peshawar V. Saadullah Khan, reported in 1996 SCMR 1350. This judgment of Saadullah Khan is absolutely irrelevant as it has no relevancy to the question involved in the case in hand for the simple reason that in case of Saadullah Khan Supreme Court observed that if the competent authority makes irregular appointment thereby violating the rules by itself, cannot turn round to say that such appointment being irregular is hereby terminated. In the case of Saadullah Khan, the N.W.F.P. Service Tribunal Peshawar had reinstated the civil servant and Supreme Court had refused the leave on the petition filed by the department. Similarly another judgment of Supreme Court in case of House Building Finance Corporation v. Inayatullah Shaikh, is cited which is reported in 1999 SCMR 311. It will not be out of place to mention that one of us Malik Muhammad Aqil, J, had appeared in that case on behalf of respondents. This case has arisen out of the judgment passed by Sindh High Court, Circuit Bench Hyderabad, wherein order of termination of service of respondent was set-aside on the ground that order was passed by incompetent authority. On appeal filed by the House Building Finance Corporation, Supreme Court held that if under the service rules employer has the power to terminate the services of employees, termination of service in pursuance thereof is legal and cannot be objected to, but the appeal was dismissed thereby upholding the findings of High Court to the effect that order of termination from service was passed by incompetent authority. We see another case of Atta Muhammad Qureshi v. Settlement Commissioner Lahore, reported in P.L.D. 1971 S.C. page 61, which is a case pertaining to evacuee property thereby determining the entitlement of the rival claimants over the property in question. Therefore, this case has also no application on the subject matter of the present petition.
7. Learned counsel has also included amongst a list of books, case of Muhammad Dawood and others v. Federation of Pakistan, reported in SBLR 2007 (Sindh) 495 in which one of us Malik Muhammad Aqil Awan, J, had assisted the Court on behalf of some litigants. In this case Section 10 of the Removal from Service (Special Powers) Ordinance, 2000 was declared ultra-vires of Article 240 and 260 and the full bench in Para 29 and 30 of the judgement drawn conclusion out of which none is relevant to the proposition involved in case of petitioners. The next irrelevant case cited by the learned counsel for the petitioners is that of Pakistan International Airlines Corporation (PIAC) v. Nasir Jamal Malik, reported in 2001 SCMR page 934. In this case Federal Service Tribunal had reinstated the respondent on the ground that his termination was in violation of principles of natural justice and against that order P.I.A. went in appeal, which was dismissed by the Hon’ble Supreme Court. Again an irrelevant case is cited before us. The last case cited by the learned counsel purported to be in support of his contention is Pakistan & others v. Public at Large reported in P.L.D. 1987 S.C. page 304, in which Supreme Appellate Shariat Bench had dismissed appeal against the judgement of Federal Shariat Court upholding the view taken therein to the extent that Section 13 of the Civil Servants Act authorizing competent authority to retire civil servant prematurely without any reason and without hearing effectee civil servant is declared ultra-vires of injunction of Islam.
8. That except case of Hameed Akhtar Niazi and Tara Chand mentioned supra, none of the cases cited by the learned counsel for petitioners has any relevance with the proposition involved in this case. We strongly deprecate the practice on the part of members of the Bar to cite irrelevant cases before the Court without reading the same and without realizing as to whether they are relevant or not. Such practice contributes to nothing except burdening the Court with undesirable work of going through those judgments which has no relevancy on one hand and secondly, the mere purpose of citing the same on the part of counsel is to please the innocent litigants in order to show as to how much labour he has put in to plead the case of that litigant. To our view to cite a judgement before the Court which is overruled by the superior Courts or to cite a case law before the Court which is absolutely irrelevant to the point involved in the case amounts to professional misconduct on the part of counsels and we would like to put the learned members of the Bar on guard to be careful in future for resorting to such practice. If such practice is repeated again before us, we will refer the case to the concerned disciplinary committee of Sindh Bar Council for taking disciplinary action for professional misconduct on the part of such advocates. It became more necessary for doing so because Supreme Court of Pakistan in number of cases has held that if a judgement of a superior Court is cited before the subordinate Court, it is the duty of the subordinate Court to follow the ratio of such judgement if it is found relevant to the facts in a particular case. According to the Hon’ble Supreme Court, such practice would create consistency in the judicial decisions, which is more desirable for evenhanded dispensation of justice. It has further been held that non-consideration of the judgement of superior Court by the subordinate Court, on the part of Judge hearing the case amounts to misconduct on his part, making him liable to disciplinary action. In this view of the matter, we have to take into consideration the corresponding duty cast upon the members of the Bar to cite most relevant cases and in good faith with the intention to assist the Court for resolving the controversy between the parties. The professional ethics do not permit any advocate to cite irrelevant precedent on one hand unnecessarily over burdening the Court with undesirable work and on the other hand, if such judgments are not followed or distinguished or merely neglected, then to impress upon the client that in such case appeal has to be filed as the case law cited by him before the Court is not properly appreciated. Obviously such practice cannot be treated to have been carried out in good faith and what is not done in good faith, definitely amounts to misconduct.
9. That in the case of Farhat Azeem v. Waheed Rasul, reported in PLD 2000 S.C.18, Supreme Court held “ The subordinate judiciary should always give its utmost respect, regard and consideration to the judgments, decrees, directions and orders of the Supreme Court, for, it is necessary apart from the binding nature of the same for maintaining discipline in all ranks of the judiciary. When Supreme Court itself gives due consideration to the earlier decisions rendered by it, it is not understood as to why the subordinate judiciary in Pakistan should turn a deaf ear to the judgments, award, findings or observations of the Supreme Court. The Courts and authorities subordinate to the Supreme Court are under legal obligation to follow the law laid down by it, and if they consider that the case law cited before them is not relevant or applicable to the facts and circumstances of the case they are dealing with, then they should distinguish it with reasons showing application of mind by them. The exercise would enable the party citing the case law to understand as to why the precedents relied upon by it were not followed.” Similarly in the case of Mirza Muhammad Iqbal v. The State, reported in N.L.R. 1999 Criminal page 161, R.167 para-9, it has been held by the Single Bench of the Lahore High Court “ The law declared by the Supreme Court of Pakistan in Abdul Latif’s case is applicable in all these cases. It is admitted by the learned counsel and the Advocate General, Punjab, that the Single Bench judgement of this Court (noted above) do not notice the above Supreme Court judgement and, therefore, are per-incuriam.” This means that failure to consider the judgment of Supreme Court which is relevant and applicable over the facts of the case makes the judgement passed by any competent Court as per-incuriam.
10. In the case of Director Housing, A.G’s Branch, Rawalpindi v. M/s. Makhdum Consultants Engineers and Architects, reported in 1997 SCMR 988, R.999 G wherein Supreme Court held that “The cases referred by the learned Judge in Chamber proceeded on the basis of their peculiar facts. Therefore, as earlier pointed out by us, the observations made in those cases must be understood and interpreted with reference to the facts of those cases and it was not a correct approach to apply those observations as a generalized principle of law applicable to all similar cases”.
11. The upshot of above discussion is that judges are duty bound to consider the facts of judgments/precedents cited before them as a matter of assistance rendered by the learned members of the Bar for resolving the controversy and in no circumstances should ignore the same. Similarly a duty is cast upon the learned members of the Bar to cite the case law which is relevant on the point in issue and may provide some assistance to the Court to reach just conclusion/decision. When a counsel knowingly cites a case/precedent before a Court which is absolutely irrelevant to the point in issue, he merely plays with the gallery in order to please his client and such type of conduct of the counsel amounts to misconduct as we have stated above.”
12. Reverting back to the point in issue as to whether petitioners can be reinstated into service by extending them the benefit of judgement of Supreme Court dated 04.09.2007 which is not before us having not been filed with the petition nor cited before us, on the behest of proposition laid down in the case of Hameed Akhtar Niazi and Tara Chand mentioned supra, suffice it to say that we have already decided this proposition in C.P. No. D-1748 of 2006 and C.P. No. D-1841 of 2008 and the detailed reasons have been recorded by us in our judgement passed in C.P. No. D-798/2007.
13. That in case C.P. No. D-798/2007 Manzoor Ahmed Shaikh v. Federation of Pakistan, we have dealt with the proposition involved in this petition, from Para- 13 of the said judgement and concluded it in Para 17, therefore, to the satisfaction of the petitioners, we would reproduce the same reasoning in this judgement as well. Such reasoning from Para 13 to 17 is being reproduced in extenso:
“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.”
14. Apart from the fact the petitioners have no case on merits, it may be noted that petitioners have purposely did not file the order of termination in order to misguide the Court on the point of laches. Neither the date of first termination is mentioned nor the date of second termination is mentioned in the petition nor the said orders are filed along with the memo of petition. What name should be given to this conduct of the petitioners or their counsel? We assume that the appointment and termination have taken place in the late 90’s whereas petition for the relief of reinstatement is filed on 02.10.2007 with no explanation of such serious laches. Not only this there is no averment in the petition that the petitioners had ever challenged their termination in any competent Court of law including Labour Court or Federal Services Tribunal, this means that they had acquiesced in their termination of service and on account of such acquiescence they are estopped from challenging their termination of service at such a belated stage therefore this petition suffers from serious unexplained laches as well as acquiescence and is not maintainable.
15. That another aspect of the matter is that at the relevant time when their services were terminated, Section 2A of the Service Tribunal Act, 1973 was intact and they were free to seek their remedy from Federal Service Tribunal as many of their colleagues had sought such remedy successfully. Subsequently under the judgment of Mubeen-us-Salam’s case reported in P.L.D. 2006 S.C 602, Section 2A was partly declared ultra-vires of Article 240 and 260 of the Constitution and since admittedly Respondent No.2 had no statutory rules of service to regulate the services of their employees therefore, the door of Federal Service Tribunal stands closed on the employees of Respondent No.2 for seeking remedy in their service grievances. Therefore, termination of service of the petitioners having taken place long before, had became past and closed transaction and on no equitable principle of law can be reopened at this belated stage. After reaching such conclusion we have no other option but to dismiss this petition in limine.
The petition stands dismissed in limine.
J U D G E
J U D G E