Civil Miscellaneous Appeal No. 6358 of 1997.
' This is a suit for declaration and permanent injunction brought by ten employees of Pakistan State Oil directed against their termination from employment for a declaration that their termination is arbitrary, mala fide, void ab initio and without lawful authority; that they continue to be in employment of defendant No. 2 and that defendant No.1 i.e. Federation of Pakistan cannot direct defendant No. 2 to terminate their services. A prayer for permanent injunction seeking a restraint order against defendants from taking any adverse and prejudicial action against the plaintiffs on the basis of termination letters referred to above is also made.
2. Essentially case of the plaintiffs is that plaintiffs Nos. 1 to 3 and 7 are employed as mechanical and civil engineers. They were inducted in service in the year 1990 after due advertisement, interview and selection process by defendant No.
2. Sometimes in 1990-91 the said plaintiffs along with hundreds of other employees were rendered jobless allegedly for political reasons. In 1993 they were restored to their employment in pursuance of a decision by the Federal Cabinet. Thereafter, with different intervals plaintiffs were confirmed in employment of defendant No. 2 and fresh employment was made in March, 1994 on the terms and conditions governing payment of salary, allowances, gratuity, transfer, retirement, termination and dismissal. While their term of retirement was fixed at the age of 60 years, one of the terms and conditions stipulated that their services could be terminated by the company without assigning any reason whatsoever on one month's notice in writing or salary in lieu thereof with full benefits.
For reasons of any omission or commission on their part or conduct/behaviour unbecoming of their position and status in the company and/or for reasons of any misconduct they would be liable td dismissal from service without any notice as above but they shall be entitled to an opportunity of submitting a written explanation and an opportunity of personal interview when considered necessary. During the year 1995-96 plaintiffs Nos. 5 to 8 were interviewed and selected as Management Trainees and on satisfactory completion of training their services were regularised. It is grievance of the plaintiffs that defendant No. 2 is a company incorporated under the Companies Ordinance, 1984 but with the change of Government defendant No.1 directed the termination of services of thousands of employees illegally. Thereafter, defendant No.1 on 19th September, 1997 issued impugned letters of termination to them without giving any show-cause notice and without disclosing any legitimate reason for termination of employment.
3. Along with the plaint plaintiffs filed the aforesaid C.M.A. Under the provisions of Order XXXIX, Rules 1 and 2, C.P.C. Seeking interim injunction against the defendants, their agents, etc., from taking any adverse and prejudicial action on the basis of termination letters. A notice was issued to defendants to which a counter-affidavit was tiled by defendant No.2 through its Legal Executive raising several questions of fact and law disputing the maintainability of the suit as well as denying the jurisdiction of this Court to entertain the present suit. Main emphasis of this defendant is on the bar of jurisdiction by reason of Article 212 of the Constitution for the reason that the Service Tribunals Act, 1973 stands amended by Amendment Act No.XVII of 1997 (hereinafter referred to as the said Act) whereby any employee of statutory corporation or company aggrieved by an order in respect of his terms and conditions of employment can seek remedy before the Federal Service Tribunal and that in view of section 6 of the said Act the present proceedings stand abated.
4. On facts it is urged that the relationship between parties is strictly governed by the agreements Annexures ' A-1 to A-15'. Induction of the plaintiffs as trainees was merely on contractual basis, as such the relationship between the parties was not on a better pedestal than that of a master and servant. Thus they have no vested right to continue in employment of this defendant. It is averred that the plaintiffs procured the status of trainees by exerting political influence during the previous regime. All of them procured training contract through back door and caused heavy financial burden on the defendant company, besides creating indiscipline. It is asserted that defendant No,2 was compelled and pressurized to take the plaintiffs as trainees violation of principles of transparency, eligibility, requirement and merit inasmuch as there was neither any requirement nor was any advertisement given by the company. In terms of contract of employment their services could be terminated without assigning any reason on one month's notice or salary in lieu thereof. Their services were terminated simplicitor after payment of one month's salary together with other benefits and that they have no legal right to question the termination orders. It is agitated that in any event no order of injunction can be passed in favour of the plaintiffs as the same would amount to grant of main prayer in the suit without trial and in any event after having been relieved of their respective jobs a new situation cannot be created when the impugned orders have been acted upon.
5. No affidavit in rejoinder was filed to the counter affidavit. After hearing arguments of the counsel for parties order on the above Civil Miscellaneous Application was reserved but in the meanwhile Suits Nos.1355 and 1357 of 1997 were filed by other employees of P.S.O. In which interim relief was granted and operation of termination orders was suspended. The Civil Miscellaneous Applications in the above said suits were contested and arguments advanced on behalf of the plaintiffs whereas arguments on behalf of the defendant company were deferred from time to time on account of non-availability of their counsel, therefore, the order on this Civil Miscellaneous Application could not be dictated and announced in order to avoid any conflict of decision keeping in line with the principle of consistency. Faced with this situation plaintiffs moved C.M.A. 274 of 1998 under sections 94 and 151 read with Order XXXIX, Rules 1 and 2, C.P.C. Seeking suspension of the termination letters pending announcement of orders in this suit. Pursuant to a notice of this C.M.A.
Defendant No,2 filed a counter-affidavit seriously resisting the prayer for suspension of the termination orders.
6. Learned counsel for the plaintiffs advanced his arguments on the merits of the case mainly that there are no statutory rules of service in the defendant company; that the plaintiffs were employed for unlimited duration with the age of retirement at 60 years; that the plaintiffs' services having been terminated for reasons disclosed in the counter-affidavit, this is not a case of termination simpliciter; that even otherwise the termination without assigning any reason would mean the presence of valid and cogent reasons for termination which reasons may, however, be not communicated to the employees. Conversely Raja Haq Nawaz, learned counsel for defendants mainly dealt with the bar of jurisdiction in the wake of Amendment Act XVII of 1997 inserting section 2-A in the Service Tribunals Act, 1973, which reads as under:-- "2-A. Services under certain corporations, etc. To be service of Pakistan.---Service under any authority, corporation, body or organisation established by or under a Federal Law or which is owned or controlled by the Federal Government or has a controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purpose of this Act."
7. The contention is that in view of the fact that plaintiffs' employment has been declared to be service of Pakistan within the meaning of Article 260 of the Constitution and every person holding a post under an authority, corporation, body or organization established by or under a Federal Law shall be deemed to be a civil servant for the purposes of Service Tribunals Act, jurisdiction of this Court is completely barred by the provisions of Article 212 of the Constitution, which reads as under:-- "212. (1) Not withstanding anything hereinbefore contained, the appropriate Legislature may by Act (provide for the establishment of) one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--
(a) matters relating to the terms and conditions of persons (who are or have been) in the service of Pakistan, including disciplinary matters;
(b) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal other than an appeal pending before the Supreme Court shall abate on such establishment: ' Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act or a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Majlis-e-Shoora (Parliament) by law extends the provisions of such a Court or Tribunal.
(3) An appeal to the Supreme Court from a judgment, decree. Order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal."
8. It has been urged with vehemence that since Federal Service Tribunal established under clause
(1) of Article 212 of the Constitution has exclusive jurisdiction to deal with the grievance of plaintiffs relating to the enforcement of their terms and conditions of employment no other Court including the High Court can entertain any proceedings in respect of any matter to which the jurisdiction of the Federal Service Tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court shall abate.
9. On behalf of the plaintiffs reliance is placed on the definition of civil servant as defined in section 2(1)(b) of Civil Servants Act, 1973, which has been incorporated in section 2(a) of the Service Tribunals Act, 1973. Definition of civil servant as referred, to above reads as under:- "(b) 'Civil servant' means a person who is a member of an All-Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include--
(i) a person who is on deputation to the Federation from any Province or other authority;
(ii) a person who is employed on contract, or on work charged basis or who is paid from contingencies; or
(iii) a person who is a ' worker or ' workman' as defined in the ' Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923)."
10. Emphasis of the plaintiffs' counsel is on clause (ii) of the above section which excludes a person who is employed on contract or on work-charged basis or who is paid from contingencies, with further averment that plaintiffs being contractual employees of the defendant company they fall beyond the scope and purview of "civil servant" within the meaning of recently inserted section 2-A in the Act. Section 2 of the Act categorically lays down that the definitions given in this section are applicable only when there is nothing repugnant in the subject or context with the necessary corollary that persons covered by section 2-A are not to be treated as civil servant on account of the definition contained in section 2(a) but owing to special dispensation made by section 2-A to the effect that every person holding a post under such authority or corporation shall be deemed to be a civil servant for the purpose of the Act. To my mind, the category of employees falling within the ambit of newly inserted section 2-A is in addition to the class of employees already defined as civil servant. In order to claim the benefit of exclusion clause referred to above the plaintiffs are required firstly to show that they are members of an All Pakistan Service, in civil service of the Federation or holders of a civil post in connection with the affairs of the Federation being employed on contractual basis and thus excluded from the definition of civil servant as above. It is nobody's case that the plaintiffs were employed as such. By invoking the exclusion clause (ii) in the above said definition we would be importing the provisions of section 2(1)(b) of the Civil Servants. Act in the category of civil servants covered by newly inserted section 2-A, which would be contrary to the settled principles of interpretation. By the Amendment Act, in fact, a new class of persons in Service of Pakistan has come into being and all such employees holding any post in any authority, body, corporation or organization treated as civil servant by fiction of law. There is thus no escape from the conclusion that both the provisions can co-exist independently of each other without committing any violence on the definition of civil servant as it already stood. In my view both the provisions can be legitimately harmonized by assigning true meaning to them in their respective context.
11. Contention that the plaintiffs by fiction of law treated to be civil servants for the limited purpose of section 2-A of the Service Tribunals Act and not under the Civil Servants Act their grievance would fall beyond the jurisdiction of Federal Service Tribunal, therefore, cannot be accepted. Once it is held that the plaintiffs fall within the category of civil servants this Court would not be entitled to entertain their suit or to pass any order or injunction with respect to the enforcement of their terms and conditions. Remedy if any, lay somewhere else which may be invoked, if so desired.
12. In Abdul Bari v. Government of Pakistan and 2 others (PLD 1981 Karachi 290) a Full Bench of this Court dealing with the question of jurisdiction held as under: "7. It will be observed that Article 212 of the Constitution opens with the non-obstante clause contained in the words ' Notwithstanding anything hereinbefore contained'. We agree with the submission of the learned Deputy Attorney-General that the effect of this clause is to curtail and oust the jurisdiction conferred on the High Court under Article 199. It goes without saying that the source of power of judicial review vesting in the High Court is not inherent in the Court as distinct from the 'judicial power' as elucidated in the case of State v. Ziaur Rehman, but the power is conferred by Article 199 of the Constitution with all its limitations. Article 175 of the Constitution makes it abundantly clear that 'no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.' Article 199 qualifies the power conferred thereunder on a High Court with the words 'subject to the Constitution'. It cannot, therefore, be urged that the High Court has inherent power of judicially reviewing the action of the Executive, the Legislature, the Courts or Tribunals, but exercises such jurisdiction in the field of judicial review as has been expressly conferred upon it by Article 199. Consequently if by any provision of the Constitution any fetters are placed upon the jurisdiction of this Court in the exercise of power under Article 199, this Court cannot overreach these limitations by any other consideration. In the case of Mujeebullah Eijaz, referred to above, the Full Bench of the Quetta High Court at page 62 of the report expressed that view. In a D.B. Case of the Lahore High Court Muhammad Aslam Bajwa v.
Federation of Pakistan, the same view as taken earlier while considering the ouster clause under Article 212 and the question was whether petitions under Article 199 pending before the High Court in relation to matters within the jurisdiction of the Service Tribunal had abated or not. The Supreme Court in the case of M. Yameen Qureshi v. Islamic Republic of Pakistan approved the view held by the Lahore High Court in the aforesaid case in regard to the jurisdiction of the Service Tribunal to entertain appeal under section 6 of the Service Tribunals Act, 1973 on the abatement of petitions pending before the High Court in respect of such matters. In view of all the aforesaid judicial pronouncements it seems clear to us that an order of retirement in the public interest in respect of a civil servant after completion of 25 years' service qualifying for pension or other retirement benefits being appealable under section 4 of the Service Tribunals Act, 1973, the jurisdiction of this Court stands ousted by virtue of the bar contained in Article 212 of the Constitution."
13. In para. 8 of the report at page 301 the Full Bench expressed its view as under:-- "The ouster contemplated under that Article is of the Constitutional nature and, therefore, of necessity curtails the jurisdiction of the High Court totally in respect of the subject-matter committed to the Service Tribunals. The second important reason is that the plain reading of the provisions of clause (2) of Article 212 leaves no manlier of doubt that these provisions did not envisage concurrent juisdiction of the Civil Courts and the Tribunal in regard to any matter on any ground in respect of the terms and conditions of service. The situation contemplated in the said provisions is that the jurisdiction conferred on the Service Tribunals and the jurisdiction vested in the Civil Courts in' respect of the terms and conditions of service of civil servants is mutually exclusive, so that the field covered by the jurisdiction of the Service Tribunal is totally outside the jurisdiction of the Civil Courts including the High Court. That orders which are mala fide, ultra vires or coram non judice are within the ambit of the Service Tribunal has been held in several cases."
14. Broadly speaking employment under any organization is contractual in nature prescribing the terms and conditions of employment and it would be illogical to say that employment under an organization being a tenure employment is excluded from the definition of civil servant and thus the lis would fall beyond the jurisdiction of the Service Tribunal. It may be so in the case of a civil servant employed in connection with the affairs of the Federation or a Province but not in the case of a statutory corporation established, controlled or managed by Government. If the plaintiffs were not employed in connection with the affairs of the Federation it cannot be urged that their employment being contractual in nature, their case is excluded from the jurisdiction of the Service Tribunal established under the provisions of Article 212 of the Constitution. Following cases were cited on behalf of the plaintiffs:--
(1) Ghulam Sarwar v. Pakistan (PLD 1962 SC 142).
(2) Sindh Employees Social Security v. Adamjee Cotton ,Mills (PLD 1975 SC 32).
(3) Muhammad v. Federation of Pakistan (1970 SCMR 190).
(4) Mudasar Ahmed v. Government of Pakistan (1991 PLC (C.S.) 1047).
(5) Muhammad Aleem v. Government of Pakistan (1992 PLC (C.S.) 558).
(6) Imran Raza Zaidi v. Government of Punjab (1996 SCMR 645).
(7) Registrar, Supreme Court of Pakistan v. Qazi Wali Muhammad (1997 SCMR 141).
(8) Secretary to Government of Punjab v. Riazul Haq (1997 PLC (C.S.) 873).
(9) Atiqa Odho v. R. Lintas (PLD 1997 Karachi 57).
(10) Leave granting order in Civil Petition for Leave to Appeal No, 110K of 1997, Muhammad Tariq v.
P.I.A. (1998 SCMR 429 = 1998 PLC (C.S.) 334.
(11) Leave granting order in Civil Petitions Nos. 46 to 56-K of 1998
(12) Leave granting order in Civil Petitions Nos. 195-L of 1998 to 209-L of 1998 and others.
(13) Anisa Rehman v. P.I.A. And others (1994 SCMR 2232).
(14) A Single Bench decision in Writ Petition No, 317 of 1997 (Lahore).
15. On the other hand, defendant has cited the following cases in support of its case:--
(1) Order passed on injunction application in Suits Nos.241 of 1997 and 243 of 1997 by Mushtaq A.
Memon, J.
(1-A) Order passed in Suit No, 383 of 1997 by Mushtaq A.. Memon, J.
(2) Order dated 15-8-1997 passed in C.P. No, D-530 of 1997 Nazeer Ahmed v. Pakistan State Oil.
(3) Order dated 17-9-1997 passed in C.P. No, D-1770 of 1996 Saeed Akhtar and others v. Karachi Shipyard Engineering Works and others (SHC).
(4) Order dated 28-5-1997 passed inm C.P. No, D-1110 of 1997 Syed Ghulam Akbar Shah v. P.I.A. And others (Sindh High Court) and in C.P. Nos. 1117, 1126 to 1132 of 1997.
(5) Order in C.P.No,D-596 of 1997 Tahir Mehmood Chaudhary and another v. P.I.A. And others (Sindh High Court).
(6) Mehreen Zaibun Nisa v. Land Commissioner (PLD 1975 SC 397).
(7) Abdul Bari v. Government of Pakistan (PLD 1981 Karachi 290).
(8) Chairman, P.I.A.C. v. Naseem Malik (PLD 1990 SC 951).
(9) Ali Khan Subhan Poto v. Federation of Pakistan. (1997 SCMR 1590).
(10) WAPDA v. Alchtar Khalid (1980 SCMR 443).
(11) WAPDA v. Muhammad Ashraf Naeem (1997 SCMR 1128).
(12) Asif Ali Khoja v. Government of Pakistan (1997 PLC (C.S.) 776).
(13) Civil Petition No, 1842-L of 1996.
(14) Islamic Republic of Pakistan v. Muhammad Zaman Khan (1997 SCMR 1508).
16. I have had an occasion to cursorily go through most of the judgments cited at the bar but except the unreported orders in Suits Nos.241/1997, 243/1997, 383/1997 by Mushtaq A. Memon, J., judgments in Civil Petitions Nos.D-1770 of 1996, D-596 of 1996 and 597 of 1996, in which the view taken was that in cases relating to employment in an organization established by the Federal Government or under a Federation law, such employees shall be deemed to be civil servants and their cases amenable to exclusive jurisdiction of the Federal Service Tribunal, in none of the cases there is any discussion on the point of law involved in this suit i,e, section 2-A Service Tribunals Act.
Most of the cases decided and cited at the bar relate to civil servants employed in connection with Federation or a Province and first two cases namely, Ghulam Sarwar and Muhammad involve interpretation of section 240(3) of Government of India Act, 1935, which provided statutory protection of employment of a Constitutional nature. Reference to Qazi Wali Muhammad's case is completely out of place. In the said case the Supreme Court expressed the view that service of Pakistan contemplated in Article 260 of the Constitution and "civil servant" defined in section 2(1)
(b) of Civil Servants Act, 1973, are not synonymous. Qazi Wali Muhammad though held to be in service of Pakistan could not be classed as civil servant whereas the Service Tribunal has been conferred with exclusive jurisdiction only in respect of the disputes relating to terms and conditions of service of a civil servant. The cases relating to WAPDA employees are not relevant for the reason that these do not deal with the question of contractual employees. The plaintiffs' employment, however, has not only been declared to be service of Pakistan but also being holders of posts under the defendant company, they are deemed to be civil servants for the purposes of the Act.
There is, thus, a clear and strong intendment in favor of the view that their grievance with regard to enforcement of terms and conditions of employment would fall within the exclusive jurisdiction of the Service Tribunal and their suit is barred by law. Refer Islamic Republic of Pakistan v. Muhammad Zaman Khan (1997 SCMR 1514).
17. In this view of the matter, I do not feel inclined to discuss all the precedent cases cited at the Bar raising the questions of violation of principle of natural justice, relationship of master and servant or contravention of maxim audi alteram partem. Since the jurisdiction of this Court is expressly barred by Constitutional provisions, it can hardly be said that the plaintiffs have a strong prima facie case or that this Court is competent to suspend the orders of their termination. For these reasons there is no merit in the Civil Miscellaneous Application which is accordingly dismissed alongwith Civil Miscellaneous Application No, 278 of 1998.