' KHALID ALI Z. QAZI J.--- As all the three petitions raise common questions of law and facts and also since all the three petitions were heard together, they are being disposed of through this consolidated judgment.
2. The brief facts giving rise to the present petitions are that all the three petitioners at material times were employees of the PIAC. The petitioners in C.Ps. Nos. D-1570 and D-1571 of 2007 were prematurely retired by the PIAC through two separate orders, both of which are dated 13-9-2005 and are identically worded. In the said two orders the petitioners have been given lump sum pay from the date of retirement till the date of their prospective superannuation upon attaining the age of 60 years. The petitioner in C.P. No,D-1572 of 2007 has been prematurely retired vide order dated 9-8-2005. It seems that the petitioners in C.Ps. Nos.D-1570 and 1571 of 2007 have been retired in view of a mandatory retirement scheme dated 28-9-2005 contained in Circular No,50 of 2005 of the PIAC (Human Resources Division) whereas the petitioner in C.P. No,D-1572 of 2007 has been retired on account of restructuring.
3. All the three petitioners assailed their premature retirement orders before the Federal Service Tribunal (hereafter. "the FST") through separate appeals. Upon the verdict of the apex Court in the case of Muhammad Mubeenus Salam v. FOP PLD 2006 SC 602 section 2-A of the Service Tribunals Act, 1973 was partially declared to be ultra vires the Constitution in consequence whereof all the petitioners' appeals in the FST stood abated.
4. The petitioner in C.P. No,D-1570 had earlier filed C.P. No,D-1874 of 2006 on 25-9-2006 before this Court challenging the order of the Assistant Registrar of the FST, dated 30-6-2006 whereby the appeals of the petitioner i,e, No,536 of 2005 before the FST was construed to have been abated.
5. It seems that during the pendency of C.P. No,D-1874 of 2006 the petitioner also filed No,D-1570 of 2007 challenging the compulsory premature retirement. However, on 20-2-2008 C.P. No,D-1874 of 2006 was withdrawn on the stance of the petitioner that he was no longer interested in pursuing the said case i,e, C.P. No,D-1874 of 2006.
6. Mr. Abdul Mujeeb Pirzada, the learned counsel for the petitioners, has assailed the impugned orders of premature retirement on the following grounds:---
(i) the impugned orders of retirement are in breach of natural justice since no opportunity to show- cause was given. In this respect the learned counsel has placed reliance upon Sardar Muhammad Yasin Khan v. Azad Jammu and Kashmir Government PLD 1979 AJ&K 1, Jumma Khan v. Province of Sindh PLD 1981 Karachi 311, Messrs Cap Gas (Pvt.) Ltd. v. Ministry of Petroleum 1991 MLD 2493, International Cargo Handling Co (Pvt.) Ltd v. Port Qasim Authority PLD 1992 Karachi 65, Anisa Rehman v. PIAC 1994 SCMR 2232 and PIAC v. Nasir Jamal Malik 2001 SCMR 934;
(ii) in terms of Chief Executive's Order No,6 of 2001 PLD 2002 Central Statutes 66 the requirement to dispense services can only occasion after issuance of a show-cause notice. The principle of natural justice having been embedded in the statute itself, any deviation therefrom is not subsequently curable. Reliance in this regard is placed on Collector Sahiwal v. Muhammad Akhtar 1971 SCMR 681. In this respect reliance is placed on Collector v. Muhammad Akhter 1971 SCMR 681;
(iii) the petitioners have an unblemished record and without any misconduct having been committed by the said petitioners, they cannot be relieved from service. As such the impugned orders of retirement are extraneous to the PIAC Service Rules, according to which a person can only be relieved from service before superannuation on the charge of misconduct, which is not the case here;
(iv) the impugned orders are without jurisdiction since there is nothing in the PIAC Act, 1956 which allows the delegation of powers to any one for the purposes of retirement or dismissal from service;
(v) neither the Board nor the Chairman or CEO or Managing Director of the PIAC had any power under the law to dispense with the services of the petitioners.
7. In response Mr. Shahid Anwar Bajwa, the learned counsel for the respondents, has raised the following objections:--
(i) the relationship of the petitioners with the PIAC is that of "Master and Servant" and since no statutory rules of service are available. Hence the present petitions are not maintainable;
(ii) the petitions suffer from laches and are time-barred having not been filed within the time limit prescribed by the Supreme Court in Muhammad Mubeenus Salam v. FOP, PLD 2006 SC 602;
(iii) the dispensation of services of all the petitioners have not been unfair since all the petitioners have been given lump sum payment of their entire salary from the date of compulsory retirement till the date of superannuation i,e, attainment of 60 years;
(iv) the impugned orders have been passed lawfully as both the Board of Directors so also the Chairman and Managing Director of the PIAC were fully empowered to pass the impugned orders;
(v) the impugned orders have been passed in view of the financial crunch faced by the PIAC for which PIAC alone is the best Judge.
8. We have considered the rival contentions of parties, perused the record and the law on the subject.
9. The preliminary objection of the respondents that the relationship of the petitioners with the PIAC being of "Master and Servant", hence the present petitions are not maintainable, is without any substance. In C.Ps. Nos.D-2042, 2043 and 2044 of 2007 a Division Bench of this Court comprising Aziz Ullah Memon ACJ, as he then was, and myself (i,e, Justice Khalid Ali Z. Qazi J.) has found the petitions against the PIAC to be maintainable. Authoring the latter judgment one of us i,e, Khalid Ali Z. Qazi, J. In para. 16 repelled the same preliminary objection, which is being raised here, in the following terms:--- "16. In light of the above, the preliminary objection raised by the respondent is hereby rejected and the petition is found to be maintainable. In order to clarify the legal position it may be stated that a petition under Article 199 of the Constitution or a civil suit under section 9 of the C.P.C. Would lie for declaration, injunction or directions even if service rules are not statutory provided that:--
(a) the employer is an entity which is controlled or the majority of which is owned by the government;
(b) the action complained of is in violation of law or other standards found in public/administrative law which have been dilated in Shahid Mahmood v. KESC 1997 CLC 1936 and Muhammad Dawood v. FOP 2007 PLC (C.S.) 1046. It may also be stated that the categories found in public/administrative law cannot be treated as static since "as an ideation judicial review has always been a dynamic concept and, to quote F.W. Maitland, 'each generation has enormous power to shape its own laws', its progressive growth with passage of time would bring into its fold newer subjects and enrich its armoury with bolder concepts." (see Messrs Presson Manufacturing Ltd. v. Secretary Ministry of Petroleum 1995 MLD 15 and Qlandro v. The State 1997 MLD 1632);
(c) where an employee only complains of breach of contract and cannot establish violation of law or the standards found in public or administrative law, the remedy available for the employee is an action for damages;
(d) apart from maintaining an action for declaration/injunction/ directions in the category mentioned in sub-para. (b) above, the employer (sic. Should be read as "employee") in addition or in the alternative will also have the right to persue the claim for damages, in the context of the particular case."
' In light of above, the preliminary objection with regards the maintainability of the three petitions, is hereby rejected.
10. Having perused the various judgments relied upon by Mr. Mujeeb Prizada we are in no two minds so as to observe that dismissals, terminations, compulsory retirements or dispensations from service without complying with the principles of natural justice are illegal. The cases of Anisa Rehman v. PIAC 1994 SCMR 2232, Nadeem Ahmed v. PIAC 1998 PLC 19, Shahid v. PIAC 1998 PLC (C.S.)
773 and Muhammad Dawood v. FOP 2007 PLC (C.S.) 1046 (Sindh), provided a complete answer in this regard. Also retrenchments are to be pursued according to the principle of "last in first out" which has been clearly established in the case of Abdul Hafeez Abbasi v. MD, PIAC 2002 SCMR 1034.
Thus, where it is established that retrenchment is arbitrary or in violation of the principle of "last in first out" the Court has ample powers of judicial review to correct the mischief.
11. In the context of PIAC the requirement of adhering to the principles of natural justice has been statutorily provided under Article 3 of the Chief Executive's Order No,6 of 2001. The judgment of the apex Court in Collector v. Muhammad Akhter 1971 SCMR 681 would be fully applicable to the employees of the PIAC since the defect in complying with the requirements of natural justice embedded in the statute would not be curable.
12. The petitioners in C.P. No,D-1570 of 2007 will attain the age of 60 years on 6-5-2010 and technically speaking an order of reinstatement (subject to what has been discussed below) can be granted. The petitioner in C.P. No,D-1571 of 2007 attained the age of 60 years on 19-4-2008, while the petitioner in C.P. No,D-1572 of 2007 reached the age of 60 years on 31-12-2007. Thus as far as the latter two petitioners are concerned no reinstatement can be ordered. However, again technically speaking, (subject to what has been discussed below) the said petitioners may not be rendered without a remedy. In the case of Walayat Ali Mir v. PIAC 1995 SCMR 650 by the time the Supreme Court declared the impugned order to be illegal, the appellant had already superannuated. The Supreme Court was pleased to observe that although they could not reinstate the appellant, the respondents were directed to pay to the appellant all the benefits that the appellant would have been entitled to and which have accrued to him if he had been promoted.
This means that any employee who may have been terminated or his services dispensed with unlawfully would be entitled to all the back benefits such as pay and salary including various escalations of salary, perks and benefits which the employee would have received had he been in the employment. This of course is subject to the rider that the employee is not in gainful employment elsewhere, for which the burden will be on the employer and not the employee to show that the employee was so employed elsewhere. Also there can be a situation where up till the point of superannuation (i,e, attainment of 60 years) the employee may not have found alternate work/employment, and subsequently he may have secured gainful employment after attaining 60 years in such cases. Again the employee will be given the benefit by way of payment of salary, perks at the escalated rates (mentioned above) up till the age of 60 years for the simple reason that till the attainment of 60 years he was unemployed. Any subsequent employment after attaining the age of 60 years would really make no difference.
13. Mr. Prizada has vehemently relied upon a recent judgment of the Supreme Court in Shahid Hayat v. FOP Civil Appeal No,558 of 2008 dated 12-6-2008 (2009 SCMR 546) wherein a Full Bench of the Supreme Court (comprising 3 Judges) was pleased to direct the respondents to allow the petitioner (and other policemen similarly placed) to serve for a period of two years and 3 months, despite their superannuation, since according to the Honourable Supreme Court the police officers were wrongly implicated in criminal cases, which resulted in their suspensions and which prevented them from actively serving in the police department without any fault on their part.
According to Mr. Prizada this is a precedent whereby even the present petitioners who may have superannuated during the pendency of the petitions could be allowed to serve for the period for which they were prevented from working. We are mindful of the fact that even obiter observations of the Honourable Supreme Court are binding upon the High Courts see M. Ismail and Sons v.
Trans-Oceanic Steamship Co. Ltd. PLD 1966 Dacca 296. However, we have been able to lay our hands on the judgment reported as Pir Baksh v. The Chairman, Allotment Committee PLD 1987 SC 145 wherein a Full Bench of the Supreme Court (comprising 4 learned Judges) was pleased to observe that the doctrine of stare decisis was flexible in application and rigid adherence thereto was excepted. It was further observed that the Courts were not the slaves of precedents. The Supreme Court was further of the view that what is binding upon is the ratio decidendi or the rule of law for which the case is actually the authority. The case of Irshad Ahmad Shaikh v. The State 2000 SCMR 814 provides another illuminating discourse on the subject. In this the Supreme Court hold that every case is an authority to the extent the same decides legal controversy involved therein. It was further observed in this case that the declaration of law has to be confined to the four corners of the dispute agitated before the Court. We may further, at this juncture, reproduce with great benefit an excerpt from "Jurisprudence" by R.W.M Dias, 5th Edition, 1985, London Butterworth, page 141, which reads as follows:-- "5. Certain types of cases do not deserve to be authorities. On type, already alluded to, is that in which there is no discoverable ratio decidendi. Others are cases turning purely on facts (foot note reveals Simpson v. Peat (1952)2 QB 24 at 28, and R. v. Young (1953)1 All ER 21), those involving the exercise of discretion (foot note reveals Bragg v. Crosville Motor Services Limited (1953)1 All ER 613 at 615) and those which judges themselves do not think worthy of being precedents (foot note reveals R. v. Stokesley ex parte Bartram (1956)1 All ER 563 at 565)".
The above would confirm that a judgment is not a binding authority and the same cannot be construed as "law declared" under Article 189 of the Constitution if no ratio decidendi is discoverable, the case particularly turns on facts and also that the matter is a result of exercise of discretion by the Court. The judgment in the Shahid Hayat case (cited supra) does not lay down any ratio decidendi, the same really turns upon its own peculiar facts and the directions given therein are a result of exercise of discretion. On the contrary, the judgment of the Supreme Court in the Walayat Ali Mir v. PIAC 1995 SCMR 650 (cited supra) lays down a radio decidendi that if an eoployee superannuates during the pendency of the litigation, the Court cannot, as a matter of general principle or right, issue reinstatement orders. The exceptions are not being mooted herein.
14. Having laid down the legal matrix of merits as above, what has to be explored is whether in the present facts and circumstances of the case the petitioners are entitled to any relief. The judgment of the Supreme Court in the case of Muhammad Mubeen-us-Salam v. FOP PLD 2006 SC 602 was announced on 27-6-2006. From the latter date a period of 90 days was given to the affected persons to file appropriate proceedings before the competent forum. The relevant part of the judgment in Muhammad Mubeen-us-Salam prescribing the said period of 90 days is para.109 which is reproduced herein below for the sake of convenience:-- "109. Now the question is as to what would be the- effect of this judgment on the cases pending before this Court and Federal Service Tribunal. In this behalf it may be noted that following the rule of past and closed transactions, laid down in the case of Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445, it is directed as follows:--
(a) The cases which have been decided finally by this Court in exercise of jurisdiction under Article 212(3) of the Constitution shall not be opened and if any Review Petition, Miscellaneous or Contempt Application, filed against the judgment is pending, it shall be heard independently and shall not be affected by the ratio of this judgment.
(b) The proceedings instituted either by an employee or by an employer, pending before this Court, against the judgment of the Service Tribunal, not covered by category (a) before this Court or the Service Tribunal shall stand abated, leaving the parties to avail remedy prevailing prior to promulgation of section 2-A of the STA, 1973.
(c) The cases or proceedings which are not protected or covered by this judgment shall be deemed to have abated and the aggrieved person may approach the competent forums for redressal of their grievances within a period of 90 days and the bar of limitation provided by the respective laws, shall not operate against them till the expiry of stipulated period.
(d) The cases in which the order of Service Tribunal has been implemented shall remain intact for a period of 90 days or till the filing of appropriate proceedings, whichever is earlier.
(e) The Service Tribunal shall decide pending cases under section 2-A of the STA, 1973 in view of the above observations. However, if any of the cases is covered by clause (c) (ibid), a period of 90 days shall be allowed to aggrieved party to approach the competent forum for the redressal of its grievance."
' The above excerpt from the Muhammad Mubeen-us-Salam's case gave rise to certain interpretational difficulties. It was-argued by one quarter that an order authored by the Service Tribunal, even if stayed or suspended by the Supreme Court, did not automatically abate in view of the Muhammad Mubeen-us-Salam's judgment i,e, Muhammad Mubeen-us-Salam's judgment did not automatically set aside any judgment of the Tribunal. This meant that the order of the Tribunal was to be implemented unless and until it was challenged by the aggrieved party within a period of 90 days before the High Court. The alternative interpretation of para.109 of the Muhammad Mubeen-us-Salam's case was that the order of the Tribunal in view of the Muhammad Mubeen- us-Salam's judgment stood automatically abated and any beneficiary of the order of the Tribunal had to apply afresh to the High Court within a period of 90 days. At first the former interpretation was adopted by a full bench of the Supreme Court in State Life Insurance Corporation v. Raz Muhammad Shanwari 2007 SCMR 1400, wherein it was observed that despite a stay having been granted by the Supreme Court, the order of the Tribunal was to be implemented by the High Court in case the person aggrieved by the order of the Tribunal did not file proceedings before the competent forum as per the Muhammad Mubeen-us-Salam's case. Upon such interpretation a full bench comprising 9 learned Judges was constituted in the apex Court. The judgment of the full bench comprising 9 Judges is reported as Muhammad Idrees v. Agricultural Development Bank of Pakistan PLD 2007 SC 681 wherein the judgment in the case of State Life Insurance Corporation v.
Raz Muhammad Shanwari 2007 SCMR 1400 was overruled. In other words, the alternate interpretation, underscored above, was upheld i,e, that the order of the Tribunal automatically stood abated and the aggrieved party had to prefer proceedings within 90 days before the High Court. It was clearly observed that the proceedings initiated before the Service Tribunal from the very inception stood abated.
15. The discussion as above would lead to the principle that from 90 days of the announcement of the judgment in the case of Muhammad Mubeen-us-Salam which was announced on 27-6-2006, the person aggrieved against the original adverse order passed by the employer had to approach the High Court irrespective of the facts:--
(i) as to whether the Service Tribunal may have allowed the service appeal, provided a further appeal/petition was pending before the Supreme Court; or
(ii) the appeal before the Service Tribunal was pending.
16. The period of 90 days, as correctly pointed out by Mr. Shahid Anwar Bajwa, expired on 25-9- 2006. While the first petition C.P. No,D-1874 of 2006 of the petitioner in C.P. No,D-1570 of 2007 was filed within time on 25-9-2006, the same only called into question the order of the Assistant Registrar of the Federal Service Tribunal, dated 30-6-2006, whereby Service Appeal No,536 of 2005 before the Service Tribunal was ordered to be abated. The latter petition did not call into question the compulsory/premature retirement which has been assailed in C.P. No,D-1570 of 2007. In any event, C.P. No,D-1874 of 2006 having been withdrawn by the petitioner on 20-2-2008, the question whether in the latter petition the petitioner claimed any relief, against compulsory retirement is now only academic in nature. This really means that all the three petitions having been filed "beyond the period of 90 days prescribed by the apex Court in the Muhammad Mubeen-us- Salam's case are time barred. They may alternatively also be construed as barred by law. The term "law" does not only mean statutory law but the same also envisages case law or the principles enunciated by the Courts of law see Shahid Mahmood v. K.E.S.C. 1997 CLC 1936. We are aware that no time limit is prescribed for filing of constitutional petitions and generally speaking a constitutional petition would not be hit by any time limit. However, constitutional petitions under Article 199 of the Constitution may well be hit by delay and laches. But in the peculiar circumstances of the case the time frame having been prescribed by apex Court, the same is binding on all Courts and authorities below under Article 189 of the Constitution. There is nothing in the judgment in the Muhammad' Mubeen-us-Salam's case or even in the subsequent Muhammad Idrees's case to lend support to the fact that the 90 days' time prescribed in the Muhammad Mubeenus-Salam's case is only directory and not mandatory in nature. Even otherwise, the petitioners have not filed any application for condonation nor have they explained the delay as to what prevented them from filing of the petitions within the time allotted by the apex Court in the Muhammad Mubeen-us-Salam's case.
17. Mr. Mujeeb Pirzada's contention that the impugned orders are void being in violation of the principles of natural justice and hence no time limit is attached to any assailing them, cannot be sustained. The Supreme Court in the Muhammad Mubeen-us-Salam's case has not stated that orders passed in breach of natural justice could be attacked even beyond the prescribed period of 90 days. Even otherwise we have been able to place our hands on Muhammad Raz Khan v.
Government of N.-W.F.P. PLD 1997 SC 397 wherein it was held that even for void orders the limitation period starts from the date of knowledge. In the present petitions, it is not the case of the petitioners that they were not in the knowledge of the impugned orders.
18. The upshot of the above discussion is that the petitions are dismissed as barred by the time limit prescribed in the Muhammad Mubeen-us-Salam's case. In the peculiar facts of the case there shall be no order as to costs.