Muhammad Ali Mazhar, J. According the compendium of facts, the Civil Appeal No. 795-L/12 & 123- L/13 are directed against the judgment dated 16.12.2011, rendered by the learned Lahore High Court in W.P. No.3812/2005 (impugned judgment in CA.No.795-L/12) and the judgment dated 13.06.2012 in W.P. No.29117/2011 (impugned judgment in CA No.123-L/13), whereby, the learned High Court in its Writ Jurisdiction issued directions to the Punjab Provincial Cooperative Bank, Limited ("appellant") to decide the pending departmental appeals of the respondent employees. In contrast, the Civil Petition No.2508-L/2017 for leave to appeal is directed against the impugned judgment dated 26.09.2017, rendered by the Lahore High Court in W.P. No.16193/2011, whereby, the writ petition was dismissed by the same High Court on the ground that the Punjab Provincial Cooperative Bank, Ltd ("Bank") has no statutory rules of service, therefore, the writ petition could not be maintained against the Bank.
2. In fact, the core issue raised in Civil Appeal No. 795-L/12 & 123- L/13 is germane to the jurisdiction of the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"), i.e. whether in absence of statutory rules of service, the employees of the Bank could approach the High Court for redress of the grievance and whether the High Court could entertain the writ petitions and pass any order beyond its jurisdictional domain. In order to get to the bottom of the controversy, the leave to appeal was granted in Civil Appeal No.795-L/12 on 18.12.2012 and in Civil Appeal No.123-L/2013 on 01.02.2013, to consider whether the service rules of the appellant are non-statutory and whether in such circumstances the High Court could have assumed jurisdiction.
3. The learned counsel for the appellant argued that the Bank has no statutory rules of service.
However, the Board of Directors, for their internal working and usage, framed the Staff Service Rules, 2010. Nevertheless, the relationship between the appellant's Bank and its employees is that of master and servant, without any skepticism. He further argued that bearing in mind the various dictums laid down by this Court, it is clear beyond any shadow of doubt that in absence of statutory rules of service, a writ petition in the High Court is not maintainable, rather, the aggrieved employees may avail the remedy before a civil court of ordinary jurisdiction. The learned counsel also invited our attention to the copy of an unreported order passed by this Court in Civil Petition No.1952-L/2012, wherein it was categorically held that the service of the appellant's Bank is being regulated by non-statutory rules. The learned counsel also waived notice on behalf of the Bank in the connected Civil Petition No. No.2508-L of 2017, filed against the judgment dated 26.09.2017 passed by the Lahore High Court in W.P. No.16193/2011, and argued that the learned High Court in this case rightly dismissed the petition due to non-availability of statutory rules of service of the Bank.
4. The learned counsel for the respondents argued in two Civil Appeals that since the Co-operative Societies Rules, 1927, were framed under the Co-operative Societies Act, 1925, therefore, the Bank does have statutory rules of service. When we called upon the learned counsel to demonstrate the relevant provisions, which are precisely connected to emphasize that the Bank has statutory rules of service, neither the learned counsel could cite any provision of law or rules, nor could he articulate any convincing argument to corroborate that the service rules of the Bank are statutory and hence the writ petition was maintainable. However, he only referred to Section 71 of the Co- operative Societies Act, 1925, in which the Government may frame the rules, but no rules were framed, rather the learned counsel did not deny that the Board of Directors has framed the Staff Service Rules, 2010, which seemingly cannot be equated with the statutory rules of service framed pursuant to the provisions of any statute.
5. The learned counsel for the petitioner in Civil Petition No.2508 L/2017 for Leave to Appeal, though did not controvert that the Bank has no statutory rules of service, but insisted that the High Court in two other cases issued directions to decide the pending appeals, so in this case also, instead of outright dismissal of the writ petition, the same directions could have been issued to the Bank to decide the pending appeal pursuant to the Staff Service Rules, 2010.
6. Heard the arguments. It is quite visible that the Punjab Cooperative Bank Limited Staff Service Rules (2010) ("Rules") were framed in exercise of the powers conferred upon the Board of Directors by means of Bye-Law 37(2) (zm) of the Punjab Provincial Cooperative Bank Limited Bye-Laws, 2010.
The Administrator of the Bank framed the said Service Rules in supersession of the Punjab Provincial Cooperative Bank Limited (Staff) Service Rules, 1986, to define, govern, administer, and regulate the services of the employees of the Bank. Though these rules are meant for internal consumption, but it is lucidly specified in Rule 2, that the relationship between the Bank and its employees shall be that of a master and servant. The survey of its corporate structure or substratum of the Bank unambiguously connotes that the terms and conditions of the employees are not governed by any statutory rules of service but they are governed and regulated under the relationship of a "master and servant".
7. In fact, the gist of allegations against the aforesaid employees is as under: -
1. Ghulam Mustafa (C.A.795-L of 2019). He was responsible for the discrepancies under the head Bill for collection of different B.Cs with bogus & forged endorsement/seals/stamps and crediting into the Current Account No.556, opened in the name of Khan Muhammad Khan, Filed Clerk of Zakat & Usher, District Bahawal Nagar with mala fide intention.
2. Iftikhar Ahmad (Civil Appeal No.123-L of 2012). He extended loan facility on the basis of fake & forged revenue documents.
3. Barkat Ali (C.P.2508-L of 2017). Three Dairy Project Finance facilities were made available with his connivance against fake/bogus security documents in violation of Head Office Instructions, breach of trust & discipline, sustaining financial loss to the bank.
8. The term 'jurisdiction' in the legal parlance means the command conferred to the Courts by the law and the Constitution to adjudicate matters between the parties. To deal with the species of litigation, some Courts and Tribunals are vested in exclusive jurisdiction for taking cognizance of matters which the other courts cannot assume and exercise under the rigidity or stringency of exclusive jurisdiction. In the case of M.S . Ahlawat v. State of Haryana & another (AIR 2000 SC 168), the Court held that to perpetuate an error is no virtue but to correct it is a compulsion of judicial conscience. The jurisdiction cannot be conferred by consent, nor can it be fettered unless there is a choice between more than one places in terms of jurisdiction [Ref: Jameel Qadir and versus Government of Balochistan, (2023 SCMR 1919)].
9. Time and again, this Court laid down in various dictums that in absence of statutory rules of service, the aggrieved employee cannot invoke the writ jurisdiction of the High Court. In the case of PIAC v. Tanweer-ur-Rehman (PLD 2010 SC 676), it was held by this Court that due to non-statutory rules of service, the constitution petition under Article 199 does not lie in the High Court. Whereas in another judgment rendered by this Court in the case of PIAC v. Syed Suleman Alam Rizvi (2015 SCMR 1545), while referring to the case of Tanweer-ur-Rehman (supra), Abdul Wahab v. HBL (2013 SCMR 1383), Pakistan Defence Officers' Housing Authority v. Lt.Col. Syed Jawaid Ahmed (2013 SCMR 1707) and Syed Nazir Gilani v. Pakistan Red Crescent Society (2014 SCMR 982), reaffirmed that no writ petition lies in the High Court in the matters where the terms and conditions of service are not governed by statutory rules. In view of the well-settled exposition of law, we feel no hesitation in our mind to hold that Writ Petitions in the Lahore High Court filed by the employees were not maintainable owing to the relationship of master and servant and the absenteeism of the statutory rules of service.
10. The exactitudes of Article 189 of the Constitution command that any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan. Reference to the case of Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another (PLD 2010 SC 483) is worth mentioning in which it was concluded by this Court that where the Supreme Court deliberately, and with the intention of settling the law, pronounces upon a question of law, such pronouncement is the law declared by the Supreme Court within the meaning of Article 189 and is binding on all the Courts of Pakistan. It was further held that even an obiter dictum enjoys a highly respected position as if "it contains a definite expression of the court's view on a legal principle or the meaning of law".
11. The doctrine of Stare Decisis, which is a Latin term, connotes "let the decision stand" or "to stand by things decided". Similarly, the Latin maxim Stare decisis et non quieta movere means "to stand by things decided and not to disturb settled points". This represents an elementary canon of law that Courts and judges should honor the decisions of prior cases on the subject matter which maintains harmony, uniformity and renders the task of interpretation more practicable and reasonable while adhering to it for resolving a lis based on analogous facts. The doctrine of stare decisis is to be adhered to as long as an authoritative pronouncement holds the field, until and unless the dictates of compelling circumstances fortified by rationale justify the exigency of a fresh look for judicial review. The doctrine of binding precedent has the excellence of fostering firmness, uniformity, and also supports the development of law. In the case of Pir Bakhsh thr. L.R.s and others v. The Chairman, Allotment Committee and others (PLD 1987 SC 145), this Court elaborated the policy of the Courts to stand by the ratio decidendi, that is the rule of law and not to disturb a settled point. This policy of the courts is conveniently termed as the doctrine of stare decisis. The rationale behind this policy is the need to promote certainty, stability, and predictability of the law [Ref: Federation of Pakistan versus Fazal-e-Subhan & others (PLD 2024 SC 515)]
12. Though the writ petition under Article 199 of the Constitution was not maintainable keeping in mind the doctrine of stare decisis and the doctrine of binding precedents under Article 189 of the Constitution, but if we simply look into the gist of impugned orders in the two petitions, the learned High Court issued directions to the bank to expeditiously decide the pending appeals of the employees. According to Rule 40 of the non-statutory Staff Service Rules, 2010, of the Bank, a right of Appeal and Review has been conferred to the employees if they consider that any order passed by any superior authority injuriously affects their interest. By virtue of this provision in the Rules, the employees can file appeal to such authority as the Board of Directors may from time to time prescribe and if any order is passed by the Board of Directors, the employee may submit a review petition to the Board of Directors. For ease of convenience, the relevant provision is reproduced as under: - "APPEAL/REVIEW
40. Appeal / Review. (1) An employee, if considers that any order passed by any superior authority injuriously affects his interest, shall have a right of appeal/review to such authority as the Board of Directors may from time to time prescribe: Provided that where the order has been passed by the Board of Directors, the accused may submit a review petition to the Board of Directors who may decide itself or through an authority or a sub- committee designated for the purpose on its behalf.
(2) An appeal or review under this Rule shall be made in the form of a petition, in writing, and shall set forth concisely the grounds of objection to the impugned order in a proper and temperate language.
(3) All petitions under this Rule shall be sent within a period of thirty days from the date of communication of the order directly to the Human Resources Division of the Bank, which shall forward it to the appellate authority with its comments and record of the case.
Provided that review petition shall not be addressed personally to Board of Directors and any such action shall be deemed a breach of discipline.
Trivial appeals, appeals on matter which do not affect an employee personally and appeals which merely repeat an appeal which has been already rejected shall not be answered".
13. We confronted the learned counsel for the Bank that if the rules of service are non-statutory and framed by the Bank for internal use and consumption by conferring a right of appeal to an aggrieved employee, then why were the appeals not decided expeditiously. At first glance, it is an essential principle of the "Doctrine of Indoor Management" that the management and the Board of Directors, corporate bodies, and/or corporations, in any event, should adhere to and implement their own service rules, no matter if the service rules are non-statutory and framed for internal use only; but for all practical purposes, the appeals must have been decided within a reasonable period of time. Once a right of appeal is provided in the staff rules to an employee to challenge any adverse action against him, then noncompliance of a provision of appeal makes it unserviceable and redundant and amounts to the denial of authority under which mandate the staff rules were framed for the benefit and convenience of the employees. Taking into consideration the sanctity of a departmental appeal in the aforesaid rules, the learned counsel for the Bank and Mr. Muhammad Raheel, Deputy Head (HR), both candidly conceded before us that the pending appeals of the aforementioned employees will be decided by the competent authority of the Bank in accordance with Rule 40 of the Staff Service Rules, 2010, within a period of one month after providing ample opportunity of hearing, and speaking orders will be passed. In case they are found aggrieved, they may avail an appropriate remedy in accordance with the law which is, of course, a civil suit and not the writ petition.
14. Last but not the least, despite such settled exposition of law, every now and then, employees file writ petitions against any adverse actions against them beyond the backing of statutory rules of service and the employer, i.e. the statutory corporations or institutions which have no statutory rules of service, vigorously come up with the same plea every time and, ultimately, the writ petitions are dismissed and the employees are directed to seek appropriate remedy. At every such occasion, much effort and time of the Court is consumed to recapitulate the settled exposition of law. Obviously, under the relationship of master and servant, the only available or applicable remedy is the filing of a civil suit in the civil court against actions detrimental to the interest of any such employee.
15. At this juncture, it is pertinent to highlight a glimpse of history which comes to mind, i.e. when Section 2A was inserted in the Federal Service Tribunal Act, 1973 on 10.06.1997 (Amending Act No.XVII of 1997), by means of which service under any authority, corporation, body or organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest, was declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization was deemed to be a civil servant. Along the lines of the aforementioned inserted provision, this Court in the case of Farasat Hussain and others versus Pakistan National Shipping Corporation through Chairman and others (2004 SCMR 1874) held in paragraph 17 of the judgment that the judicial consensus seems to be that an employee of any corporation, irrespective of the fact whether it has got statutory rules or not, can approach the Service Tribunal for redressal of his grievances pursuant to the provisions as contained in section 2A of the Act; the relationship of 'master and servant' pressed time and again does not confer unbridled or unfettered powers to act whimsically or capriciously in violation of the principle of natural justice and the well-settled norms of justice. The judgment rendered in the case of Sui Southern Gas Company v. Narain Das (PLD 2001 SC 555) was also referred to in which this Court ruled in favour of the argument that the application of the master and servant rule is a common law concept which falls in the realm of contract law. Clearly, in view of the insertion of section 2A in the Act, if the services of any person covered by the said enactment were wrongly or illegally terminated, his grievance could be appropriately remedied by the appropriate Service Tribunal.
16. However, it is a ground reality that the vires of Section 2A, inserted in the Federal Service Tribunal Act, 1973 ("STA"), were challenged in this Court which was dealt with in the case of Muhammad Mubeen-us-Salam and others Vs Federation of Pakistan (PLD 2006 SC 602). After threadbare discussion, Section 2A of the STA was partially declared ultra vires of Articles 240 and 260 of the Constitution to the extent of the category of employees whose terms and conditions of service have not been determined by the Federal Legislature, and by a deeming clause they could not be treated as civil servants, as defined under Section 2(1)(b) of the Civil Servants Act, 1973 ("CSA"), or not be engaged in the affairs of the Federation. It was further held that Section 2A of the STA could not be enforced in the absence of an amendment in the definition of a Civil Servant under Section 2(1)(b) of the CSA. In addition thereto, it was further held that the cases of the employees under Section 2A, STA 1973, who do not fall within the definition of civil servants as defined in Section 2(1)
(b) of the CSA 1973, shall have no remedy before the Service Tribunal, functioning under Article 212 of the Constitution and they would be free to avail appropriate remedy and the proceedings instituted either by an employee or by an employer, pending before this Court, against the judgment of the Service Tribunal, not covered were abated, leaving the parties to avail remedy prevailing prior to the promulgation of Section 2A of the STA. The same principle was reiterated and followed in the case of Muhammad Idrees versus Agricultural Development Bank of Pakistan (PLD 2007 SC 681).
17. The Master and Servant laws were designed to regulate relations between employers and employees during the 18th and 19th centuries. The United Kingdom Act, 1823, described its purpose as to better regulate servants, labourers, and the working class. This particular Act greatly influenced industrial relations and employment law in the United States, Australia (1845 Act), Canada (1847 Act), New Zealand (1856 Act), and South Africa (1856 Act). These Acts were generally regarded as heavily biased towards employers, designed to discipline the employees, and repress the combination of workers in trade unions. The law required obedience and loyalty from servants to their contracted employer with infringements of the contract punishable before a court of law often with a jail sentence of hard labour. It was used against workers organising for better conditions from its inception until well after the first United Kingdom Trade Union Act, 1871 was implemented which secured the legal status of trade unions. Until then, a trade union could be regarded as illegal because of being in restraint of trade. An unfair dismissal in the United Kingdom is the part of the UK labour law that requires fair, just, and reasonable treatment by employers in cases where a person's job could be terminated. The Employment Rights Act, 1996, regulates this by saying that employees are entitled to a fair reason before being dismissed, based on their capability to do the job, their conduct, whether their position is economically redundant, on grounds of a statute, or some other substantial reason. Any dismissal by an employer becomes automatically unfair when based on discrimination, a right protected under the Equality Act, regardless of the employee's tenure. Even the creator and inventor of this phrase "master and servant" have changed the niceties and minutiae of this colonial tenet and precept and they brought some amendments to ventilate the ordeals and miseries of their employees/servants and part with various harsh and punitive provisions [Ref: Sadiq Amin Rahman Vs Pakistan International Airlines Corporation through Managing Director and 3 others (2016 PLC 335)].
18. Instead of espousing a rigid and inflexible application of this phrase, there is an acute need of expansion and development of some law and reforms in this sphere. The relationship of master and servant cannot be construed as so sagacious that the master i.e. the management of a statutory corporation or the corporation and/or company under the control of government having no statutory rules of service or the private sector may exercise the powers at their own aspiration and discretion in contravention or infringement of fundamental rights envisioned under the Constitution. Under Article 3 of our Constitution, it is the responsibility of the State to ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle, from each according to his ability to each according to his work; and under Article 11, there is no concept of slavery, and the same is considered non-existent and forbidden and no law permits or facilitates its introduction into Pakistan in any form; while under Article 38 (Principles of Policy) it is the responsibility of the State to ensure equitable and just rights between employer and employees and provide for all citizens, within the available resources of the country, facilities of work and adequate livelihood with reasonable rest and leisure. Therefore, in all fairness, even under the relationship of master and servant, fundamental rights should be respected and followed, as the same are an integral part of due process [Ref: President, Zarai Taraqiati Bank Limited, Head Office, Islamabad Vs Kishwar Khan and others (2022 SCMR 1598)].
19. The honorable Supreme Court in the case of Ikram Bari versus National Bank of Pakistan (2005 SCMR 100) held that an Islamic welfare state is under the obligation to establish a society which is free from exploitation wherein social and economic justice is guaranteed to its citizens. The Objectives Resolution, by virtue of Article 2A of the Constitution, has been made a substantive part of the Constitution which unequivocally enjoins that in Pakistan the principles of equity, and social and economic justice as enunciated by Islam would be fully observed which would be guaranteed as fundamental rights.
20. Now we want to advert to the forms of remedies available to the different class or classes of employees to challenge adversarial or departmental actions including dismissal and termination of service in the different laws of our country. A civil servant, if found aggrieved of any adverse action, obviously, can approach the Service Tribunal after filing departmental appeal/representation according to the relevant Civil Servant and Service Tribunal Acts. In tandem, if the employee is not a civil servant but is covered and regulated under the statutory rules of service, then of course, he may file a constitution petition in the High Court under Article 199 of the Constitution and challenge the violation of service rules or any other departmental action adverse to his interest. In juxtaposition, an employee of industrial and commercial establishment, if he is a worker/workman, he may approach the concerned labour courts and/or the National Industrial Relations Commission (NIRC) under the relevant Industrial Relation Laws, but the category of employees who are excluded from the purview and definition of worker or workman cannot approach the labour courts or the NIRC, and in case of any injustice, inequality, discrimination or any adverse action against any such employee who is neither covered under the definition of civil servants, nor is regarded as worker or workman, and nor his employment is covered or regulated by statutory rules of service, has the only remedy to approach the civil court and file a civil suit in terms of Section 9 of the Code of Civil Procedure, 1908, for seeking relief, under the relationship of master and servant. However, it is also a ground reality that under the rigors and exactitudes of lengthy and intricate procedures, several years are consumed till an ultimate decision of the civil suit is reached.
21. Judicial reforms backup and reinforce the administration of justice, which is indispensable for safeguarding, preserving, and maintaining the rule of law as well as encouraging timely delivery of justice. In our view, it is somewhat expedient and pragmatic to plan some special legislation (not in the fashion of Section 2A, inserted in the STA without amending the definition of civil servants in the Civil Servant Act 1973) to cope with the situation, deal with this grey area, and get rid of this archaic principle by establishing a special tribunal/court under a special law to approach the cases of the employees under the relationship of master and servant, which would not only uphold the basic human values which are vital to our social and economic lives but would virtually be a milestone by the government in safeguarding the fundamental rights of an extremely large category of employees who are deprived of expeditious access to justice as a consequence of no backing of statutory rules of service in various statutory organizations, corporations, autonomous bodies and, in particular, the persons employed in private, industrial and commercial establishments who are excluded from the definition of worker or workman under the labour laws due to the nature of their job. According to the master's mindset, the employee can be dismissed or terminated outrightly with good, bad, or no reason at all, without providing any opportunity of fair hearing on the justification of having no statutory flavor to regulate such employment. On account of no expeditious remedy or forum to challenge the adverse actions, such employees have to file civil suits and wait for a number of years for their decision, but if they are allowed a fast-track remedy under some legislation ensuring that some lawful justification for termination of contracts of employment is provided, and if such legislation also creates some rights and obligations for employers and employees with the formation of special courts or tribunals, then their cases will also be decided on a speedy pace, just as the cases of civil servants and workman/workers are decided by the Service Tribunal, NIRC, and labour courts within lesser time than the time normally consumed in civil courts. If any such tribunal or special court is constituted under some special law, it will not only ensure checks and balances but ardently and fervently ease and alleviate the sufferings of the aforesaid category of employees who presently have to go through the miseries and turmoil of the rigors and rigidities of procedure, and the backlog of cases, for a long time.
22. As a result of above discussion, the aforesaid cases are disposed of in the following terms:
1. Civil Appeals No. 795-L/12 & 123-L/13 are allowed. As a consequence thereof, the impugned judgment passed by the learned High Court on 16.12.2011 in W.P. No.3812/2005 and the impugned judgment dated 13.06.2012 in W.P. No.29117/2011 are set aside and writ petitions are dismissed.
2. The Civil Petition No.2508-L/2017 is dismissed and the impugned judgment dated 26.09.2017, passed by learned High Court in W.P. No.16193/2011 is maintained.
3. According to the undertaking, given by the learned counsel for the Bank and Mr. Muhammad Raheel, Deputy Head (HR) PPCBL, the pending departmental appeals of employees will be decided by the competent authority after providing ample opportunity of hearing and speaking order shall be passed in accordance with Rule 40 of the Staff Service Rules, 2010, within a period of one month after receipt of the copy of this judgment.
N.B. Copy of this judgment may be transmitted to the learned Attorney General for Pakistan, Secretary Law, Advocate General of all provinces, Advocate General ICT, and provincial Law Secretaries, inviting their attention to paragraphs 17 to 21 of this judgment and so that they may prompt their respective legislatures to contemplate some judicial reforms in the area identified in this judgment.