1. ' WAJIHUDDIN AHMED, CJ.---The petitioners in these two petitions hold various offices in the Karachi Water and Sewerage Board (KW&SB). Thus the petitioners in Constitutional Petition No, D-2383 of 1996 are Assistant Engineers, Assistant Accounts Officers, Divisional Accountants and Assistant Directors in the KW & SB, whereas the petitioners in the connected Petition No,D-2384 of 1996 are Assistant Executive Engineers, Deputy Directors and Assistant Programming Officers in the same Board. The petitioners in the two petitions have claimed that they are regular and confirmed appointees. The majority of the petitioners maintains that the jobs held by such majority are under the guaranteed rural quota, attracting constitutional guarantees. Respondent No,2, the Managing Director of the KW&SB, is stated to have announced that the Board was going to retrench and lay off the petitioners and other employees, totaling about 2,700 persons, at the behest of and under a directive of the World Bank to bring about man-power reforms and downsizing of the staff, purportedly, to economies on expenditure. The impending action was termed by the Managing Director as the Golden Hand-shake which, in fact, was nothing but an "iron glove punch", all such allegedly coming about without affording any opportunity of hearing and in violation of the principles of natural justice. The action is claimed to be discriminatory because retrenchment and laying off the officers from the upper cadre of the service is being studiously avoided which service involving exorbitant salaries and fringe benefits, if duly targeted, could avowedly have resulted in cutting down of the expenditure for improving the state of the economy, a purpose which could hardly be achieved by targeting those at the lower echelons. It is added that the respondent No,2 is extending probationary periods of the petitioners (even though regular and confirmed?) without any justification and in abuse of powers, contravening rule 6 of the KW&SB Employees (PCS) Rules, 1987. The Constitutional remedy is said to have been adopted because there is no other efficacious remedy. Declarations are sought that the impugned threatened action is illegal, arbitrary, discriminatory and without lawful authority. Orders of restraint are solicited as to the issuing and implementation of orders of retrenchment and laying off.
2. ' Brig. Mansoor Ahmed, the incumbent of the office of the Managing Director, KW & SB, has submitted a counter-affidavit. He claims the petition to be non-maintainable and inter alia premature. It is stated that the petitioners are probationers, as defined in the KW&SB Employees (Promotion, Confirmation and Seniority) Rules, 1987 and the Board has due powers to retrench/terminate its employees under the KW & SB (General Conditions of Service) Rules, 1987. It is urged that the petitioners had already approached the National Industrial Relations Commission
(NIRC) under section 22A(8)(g) of the Industrial Relations Ordinance, 1969, obtaining prohibitory orders on 1-12-1996 which were continuing. Such fact is claimed to have been suppressed in the memos. Of the petitions. It is then pleaded that because the petitioners have claimed themselves to be workmen the rule of "last in first out" would apply to them under Standing Orders 13 and 14 of the Standing Orders Ordinance, 1968, as also pursuant to the General Conditions of Service Rules, which prescribe mandatory adherence to that principle in the case of retrenchment of surplus/redundant staff. Denial is recorded that the exercise is arbitrary or capricious. The Golden Handshake Scheme is claimed to be based on humanitarian considerations, without any potential of victimization. The larger interests of the institution are pleaded in support of a generalized exercise.
3. ' In the affidavit in rejoinder the various pleas are repudiated and retracted.
4. ' During the course of proceedings, the respondent No,2 submitted an undertaking on 22-9-1997, which, in extenso, is reproduced below:- UNDERTAKING ' It is respectfully submitted by and on behalf of the Respondents that they are not contemplating to take any action contrary to the law and Rules applicable to the Board and/or its employees or which may be selective and discriminatory in nature.
5. ' In the event of any downsizing in manpower of the Board the principle of ' last in first out', shall be observed strictly and the manpower on downsizing shall be paid all their legal dues."
6. ' On conclusion of the arguments we had called upon the parties to submit written notes of arguments, which have been exchanged between them and filed. Several judgments have been cited at the bar, which may be taken note of here:
(1) Rasheed Ahmed v. State, PLD 1972 SC 27, is a case where sanction to prosecute was accorded by a totally, irrelevant person, viz. The Executive Officer, Wah Cantonment and it was found that if a mandatory condition for the exercise of jurisdiction before a Court, Tribunal or authority is not fulfilled, the entire proceedings, which follow, become illegal and suffer from want of jurisdiction.
7. Besides, any orders passed in continuation df these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction. Apparently, what is being claimed before us is that the on-going exercise at the level of the KW&SB, being bad for want of due authority, the petitioners are within their rights to approach this Court because every subsequent act based on the same would be equally unlawful.
(2) Maqbool Ahmed v. Settlement Commissioner, 1986 CLC 2419, is a Lahore judgment and postulates that even where a notice is served and no adverse order is passed, the petitioner is entitled to challenge the threatened action on grounds of illegality and want of jurisdiction and proceedings initiated in the Constitutional jurisdiction are maintainable.
(3) Pakistan v. Public at Large, PLD 1987 SC 303, where several provisions pertaining to service laws were found to be repugnant to the injunctions of Islam in so far as such did not provide for due notice for the proposed action to be taken.
(4) Anisa Rahman v. PIAC, 1994 SCMR 4432, where the apex Court found that reversion of the petitioner from Group 7 to Group 6 was violative of the safeguards in the maxim "audi alteram partem". In consequence, the appeal before the Supreme Court was allowed, though the PIAC was permitted a fresh action after according due hearing to the petitioner-appellant.
(5) Sherin Dokhat v. Pakistan, 1995 PLC (C.S.) 251, a case where a Division Bench of this Court found Regulation 25(2) of the Pakistan International Airlines Corporation Employees, (Service and Discipline) Regulations, 1985, to be violative of Articles 25 and 27 of the Constitution inasmuch as it provided a discriminatory yardstick of providing for retirement of female cabin crew upon attaining the age of 45 years, something which did not extend to the male members of the cabin crew.
(6) In Chairman, Pakistan Broadcasting Corporation v. Naseer Ahmed 1995 SCMR 1593, it was found that employees of the Broadcasting Corporation were civil servants but the order of the Federal Service Tribunal reinstating the respondent in service could not be disturbed as allegations of mala fides against the higher officials of the Corporation were lawfully accepted through the impugned order of the Tribunal.
8. ' There can be little cavil with the law above propounded, even though the principles, in cases falling under Article 212 of the Constitution, may appropriately be dealt with in the jurisdiction of a Service Tribunal. In point are Several other decisions, which clarify the situation, if clarification is at all needed. Inter alia, the following may be noted:-
(i) I.A. Sherwani v. Government of Pakistan, 1991 SCMR 1041, lays down that a civil servant cannot by pass the jurisdiction of the Service Tribunal by adding the ground of violation of the fundamental rights and the Tribunal would have jurisdiction in a case which is founded on the terms and conditions of service even if it involves the question of violation of fundamental rights.
(ii) In Sharafatullah v. Federation of Pakistan, 1995 CLC 1790, a Quetta Division Bench, examining the implications in the maxim, "audi alter am partum" referred to the doctrine of "expressed facet cascara taciturn", postulating that when a deed or statute contains express covenants, or specific mention of things and contingencies, no implication of any covenant or contingency on the same subject- matter can be raised. The conclusion drawn in the precedent case, therefore, was that rights of the parties to an agreement were to be governed under the express clauses of such agreement according to which the petitioners were not entitled to a right of hearing before disconnection of telephones and, thus, there was no scope for opportunity of hearing before such disconnections.
(iii) Secretary, Government of Punjab v. Riazul Hassan, 1997 SCMR 1552 is a case where Ajmal Mian, Actg. CJ., as he then was, speaking for the Court, drew a distinction between terminations of civil servants, employed on temporary basis, services liable to be discontinued on 30 days' notice or pay in lieu thereof from either side and terminations of like employees on grounds of misconduct.
9. The conclusion drawn was that if a person was employed on contract and the terms of employment provided the manner of termination, services could be terminated in terms of such contract. However, even such an employee, if postulated to be terminated on grounds of misconduct, due hearing and inquiry were invocable.
(iv) Habib Bank Limited v. Ziaul Hassan Kazmi, 1998 SCMR 60 and Unted Bank Limited v. Ehsan Akhtar, 1998 SCMR 68 cover more or less the same grounds, namely, the limitations of the Constitutional jurisdiction of the superior Courts in staying an order of suspension of a corporate employee. It was found that such orders of suspension could not be routinely stayed. Anisa Rahman's case (supra) was adverted to and it was pointed out that all that the same laid down was that "a corporation cannot demote its employee to a lower grade without hearing him/her before passing demotion order. It has not dealt with the question of termination of services or suspension order". It was reiterated that an employee of a corporation, in the absence of violation of law or any statutory rules, could not press into service Constitutional or civil jurisdictions for seeking relief of reinstatement in service, the remedy for wrongful dismissal being a claim for damages. Such arises because relationship between a corporation and its employees was that of master and servant. However, where the termination of an employee of a corporation was in violation of a provision in the applicable statute or statutory rules the employee would be entitled to file a Constitutional petition for reinstatement.
10. Viewed in the above perspective it is not unlikely that the petitioners were contract employees whose services were contractually controlled. If, therefore, a process of retrenchment of a just, fair and lawful nature was on, Constitutional remedies would hardly be in place. Indeed in Habib Bank Limited v. Ziaul Hassan Kazmi (supra) the apex Court, while suspending the High Court interlocutory orders, made it clear that "it would be open to the bank to offer to the respondents the above Golden Hand Shake Package, who would be free to accept the same".
11. ' There is yet another and to our minds a more crucial aspect to these matters. A Sindh Amendment, vis., The Sindh Service Tribunals (Amendment) Act, 1994, operates to insert clause
(aa) after clause (a) in section 2 of the Sindh Service Tribunals Act, which defines that "corporation means a corporation or institution set up or established by a provincial enactment". Next, sections 3-E and 3-F after section 3-D in the parent statute have been added, which run thus: 3-E Employee of a Corporation be deemed Civil Servant.---Notwithstanding anything contained in any Law, service of Corporation is hereby declared to be the service of the Province and every person holding a post in the Corporation, not being a person who is on deputation to the Corporation shall, for the purposes of this Act, be deemed to be a civil servant."
12. 3-F Abatement of pending cases of an employee of the Corporation.---All suits, appeals or applications relating to the terms and conditions of service of a person holding a post in a Corporation pending in any Court immediately before the commencement of the Sindh Service Tribunals (Amendment) Act, 1994, shall abate: ' Provided that a party to such suit, appeal .Application may within ninety days of the commencement of the Amending Act prefer an appeal to the Tribunal established under section 3."
13. ' The consequences of the reproduced insertions are that corporation employees, as defined, have since attained the status of civil servants. No distinction except for deputationists, has been made between the various categories of such employees, as are contemplated by section 2(1) of the Sindh Civil Servants Act, clearly implying that all categories of corporation employees have attained the status of civil servants and are to be dealt with as such. (See C.P. 110 of 1997 D.O. 2-12- 1997). A civil servant under section 4 of the Service Tribunals Act in a dispute, which has nexus with his terms and conditions of service, ending with a final order, can approach the Service Tribunal alone for redress. Such is the effect of the various statutory promulgations, which have followed upon Article 212 of the Constitution, that Article itself spelling out exclusiveness of jurisdiction of the Tribunal. The Supreme Court even in relation to interlocutory orders, which may ultimately lead to such a final order, has lately, in Habib Bank Limited v. Ziaul Hassan Kazmi (supra), reiterated the rule laid down in the unreported case of Federation of Pakistan v. Mazhar Ali, decided on 16-6-1987, where it was said: "The only objection in the context could be that an appeal to the Service Tribunal is competent only against final order and such a regulatory periodic order as of suspension does not qualify as final order and hence is not amenable to the jurisdiction of the Service Tribunal. Where the scheme of a law provides appeal only against the final order, the legislative intent is manifestly one of shutting out all challenges to interlocutory, interim or procedural orders, which do and could end up in an appealable final order. To hold that all such interim, procedural and interlocutory orders could, on account of such exclusion, be brought before superior Courts under Article 199 of the Constitution would not only amount to deflecting the legislative intent, but seriously impede the passing of the final order itself. An expression of such a legislative intent is found in section 9 of West Pakistan Waqf Properties Ordinance, 1961 (denial of interim relief in pending proceedings) and section 15 of the West Pakistan Urban Rent Restriction Ordinance (limitations regarding appeal to orders passed under specified sections). In two cases that came to this Court under the former law, Syed Muhammad Ali Shah Bokhari v. Chief Administrator (1972 SCMR 297), Mumtaz Hussain alias Bhutta v. Chief Administrator of Auqaf (1976 SCMR 450), an effort to seek redress in Constitutional jurisdiction was disallowed. In the present case the bar of Article 212 of the Constitution read with section 3 of the Service Tribunals Act excluded the jurisdiction of the High Court under Article 199 of the Constitution.
14. ' The other limitation on the jurisdiction under Article 199, of the Constitution is want of 'other adequate remedy'. It is clear that an order of suspension is interim in character, regulatory in effect and directed towards smooth and expenditious completion of an enquiry at the end of which the order of suspension is substituted by another/a final order with which it merges. In respect of such a final order it is impossible to hold that there is no other adequate remedy provided by law. On that view of the matter also the civil servant should be left to face the inquiry and to let it proceed to a conclusion.
15. ' We find on a survey of the facts and law that the Constitutional petition filed by the respondent against his suspension and the show-cause notice was not maintainable. Accepting the appeal we set aside the judgment of the High Court and recall the writ that issued. No order as to costs."
16. ' Inter alia, a Division Bench of this Court, to which one of us was a party, had taken the same view in Asif Ali Khosa v. Government of Sindh, (1997 PLC (C.S.) 776).
17. ' The position of the petitioners, however, can arguably pose a still greater problem. The petitioners, at this stage, are not challenging any orders whatsoever. They merely question possible retrenchment pursuant to a Golden Hand-shake Scheme, which itself, apparently, is in a state of articulation. The Scheme in the offing is claimed to be mala fide and discriminatory. While such pre-emptive actions, pertaining to those who are deemed to be civil servants, should be hit by the above rule in the unreported Supreme Court case treated also in the Full Bench reference of Abdul Bari v. Government of Pakistan (PLD 1981 Kar. 290), decided in this jurisdiction, a more compelling aspect of the case is that, at this stage, none has been retrenched and none has been discriminated against. In line with the dicta under discussion the Civil Servants involved in these proceedings should allow the exercise to continue and may raise objections relevant thereto at the administrative level yet awaiting the ultimate, which, if adverse to them, would give rise to final orders that, in course of time, can be questioned before the Service Tribunal.
18. ' We would here also profitably reproduce the observations of this Court in Nazeer Ahmed Shaikh v.
19. Government of Sindh and another (Const. Petition No, D-123/1997, etc.):- "Even otherwise, the petitioners being civil servants, if and when a reversion comes about, their remedy lies before the Service Tribunal but for that there has to be a final order. The petitioners, apparently, are disinclined to suffer such an order. It is now settled-law that where a tribunal of exclusive jurisdiction is mandated by and created under the Constitution itself, there can be no piecemeal administration of the remedy to an aggrieved person. See: Arif Ali Khoja v. Government of Sindh (C.P. No, D-38 of 1997, disposed of on 18-3-1997). The affectess must wait for appropriate orders, which would give rise to the invocation of the jurisdiction of such an exclusive tribunal.
20. Intermediate resorts to other form is clearly barred. That is, precisely, the predicament of the petitioners here but then the petitioners, in the Constitutional background, must have their remedy under the special law or none at all. See; Asghar A. Naqvi v. Province of Sindh, (1996 SCMR 1165)."
21. The rule where Fundamental Rights are allegedly impugned in Service disputes, is no different.
22. There is no bar for a service tribunal to enforce or give effect to Fundamental Rights. Indeed Fundamental Rights are all pervasive and so basic that no institution of the State can by-pass the same or let alone disregard them.
23. ' In context it must not be ignored that Article 212 has operated to create an independent and exclusive jurisdiction in service matters. Article 199 is itself subject to the Constitution and the powers thereunder are discretionary. In such cases, even where the orders impugned are coram non judice, void or without jurisdiction and the Constitutional jurisdiction can be extended, it is, apart from extremely pressing cases of injustice, a better use of the discretion not to exercise it. See Dr. Shakeel Ahmad v. Federation of Pakistan (1995 PLC (C.S.$ 1221) and 1226).
24. ' Notwithstanding the foregoing, we would here like to reiterate, what was stated by another Division Bench of this Court in Syed Nadeem Arif and others v. Federation of Pakistan and others, (Constitutional Petition No, D-2203 of 1996, etc.). The following passages may be recalled:- .. Even so, wherever exceptions are made, other than for justifiable reasons and wherever pick and choose takes place for extraneous considerations, such would always remain facts to be pleaded and proved at an appropriate level and if an adverse finding is recorded, necessary measures of redress can be set afoot. These matters, however, involving as they do, factual inquiries cannot routinely be dealt with in the exercise of Constitutional jurisdiction of this Court and the remedy, if one commends itself, lies elsewhere, as will be reflected below." .. Still to take away jobs from people secure in their employments remains a painful exercise. It must be transparent and towards advancement of public policy. Some cannot be deprived to benefit others except in due course of law and in public interest. The moment these principles are eschewed the exercise becomes suspect and opens up for judicial scrutiny though only at the competent level (CS)."
25. Having said as much we would dismiss these Constitutional petitions but leave the petitioners to pursue appropriate remedies as and when occasion for the same arises. No order as to costs.