MUHAMMAD RAZA KHAN (MEMBER).--This judgment will dispose of the connected Appeals Nos.362(K) of 1998 to 465(K) of 1998 and 243(K) of 1997, as identical questions of law and facts are involved in these appeals.
2. In 104 cases, the appellants had joined K.E.S.C. as a result of the advertisement in the press followed by their applications and finally the appointment letters dated 13-12-1995 whereas the appellant of Appeal No,243(K) of 1997 got the appointment vide order dated 17-12-1995 after having gone through the process of applications, test and interview. In all the appointment orders there was a provision of period of probation for three months, and vide orders issued in April, 1996, the appellants were confirmed against their posts w,e,f, March, 1996. They were performing their functions diligently when almost one year after their confirmation there was press statement regarding reduction of strength in the K.E.S.C. so the appellants approached the High Court.
Meanwhile the department issued termination letter on 5-3-1997 to all the appellants allegedly without any show-cause notice, opportunity of personal hearing and without intimation of any reason and ground for the termination of their services. On the following day i,e, 6-3-1997 another letter was issued intimating the re-organization of the Corporation and retrenchment on account of financial losses and on the principle of "last in first out". The appellants did not get final relief from the High Court and they approached the Supreme Court of Pakistan where their petitions were rejected and they were advised to approach this Tribunal. In compliance with this judgment of the Supreme Court dated 1-4-1998, the present appeals have been filed on 2-5-1998 by 104 appellants.
The other Appeal No,243(K) of 1997 was filed in this Tribunal on 11-8-1997 after the abatement of his petition by the Labour Court. However, in view of the earlier order of this Tribunal, the appeal was dismissed in limine and the petitioner approached the Supreme Court from where the case has been remanded for its hearing for deciding these cases on merits.
3. The respondent's department contested the appeals and written objections were filed. We have listened to the arguments on behalf of the parties.
4. Learned counsel for the appellants argued that the appellants were holding confirmed posts in the service of K.E.S.C. and they were not to be picked up discriminately for the harshest action of termination of services without any fault on the part of the appellants or without affording the opportunity of showing cause prior to the termination of their services. It was also argued that the reasoning or re-organization and retrenchment on account of financial loss was an afterthought as the same was not included in the original order passed on 5-3-1997. It was added that there was no process of curtailing the financial losses nor there was any resolution by the Board authorizing the action against the workers. It was also stated that the reason was a vague one and there was no indication or the proof of employees if certain categories considered to be surplus. It was also urged that the action against 1% of the total number of employees and that too of the minimum cost according to their emoluments could not help in recovery of financial losses or in improving the financial condition of the Corporation. The learned counsel also dilated upon the principle of retrenchment of the junior most employees by stating that the seniority list was not available. However, in accordance with the personal information of some of the appellants certain juniors have still been retained in service while a lot of others are being appointed against the same assignments which were held by the appellants. Hence it was concluded that the entire action was tainted with mala fide, violation of the principle of natural justice as well as based on discrimination and other motives.
5. The learned counsel for the respondent department made very elaborate and efficient presentation of cause of the department raising the issue of multiplicity of actions by the appellants, limitation, application of the Labour Laws, principle of retrenchment in view of financial losses, the background of the amendment in the Service Tribunals Act and the concept of show- cause notice and personal hearing under the Labour Laws.
6. The learned counsel is of the view that the appellants had approached the Labour Courts and the High Court in civil suits claiming that they were not the civil servant. He argued that in view of the proposed amendment in the Service Tribunals Act, the appellants withdrew their cases on 29- 5-1997 on the ground that they will approach the appropriate forum. However, these appellants allegedly did not approach this Tribunal and have gone straightaway to the Supreme Court whereas their Writ Petition Nos.S-192 of 1997 was still pending before the Sindh High Court, wherein it has been claimed that they were not civil servants. Hence the learned counsel for the appellants was of the view that the appellants have themselves denied status of civil servant to them and they have adopted other course simultaneously and this could amount to multiplicity of proceeding and parallel litigation which is to be avoided in view of the directions of the Supreme Court as contained in 1986 SCM R 1799 and 1966 PLC 268. In reply to these arguments the learned counsel for the appellant argued that in view of the ambiguity of jurisdiction the appellants approached various fora, prior and after the amendment, and as a corollary of such efforts the Constitutional petition has also been filed in the High Court of Sindh. He added that the High Court was closed and due to vacation the said petition could not be withdrawn. However, the appellants were ready to make a commitment that they would withdraw those proceedings just after the vacation.
7. We have considered these points and we are of the opinion that multiplicity of proceedings and parallel litigation cannot be encouraged, but only when there is the established position with regard to jurisdiction of a particular forum or the jurisdiction of one or more fora. However, in cases of ambiguity this principle cannot practically be applied. During the last one year there had been a lot of confusion with regard to jurisdiction of various Courts and Tribunals particularly the effect of the amendment incorporated in Service Tribunals Act with regard to its scope retrospectivity procedure to be followed in future and the forum competent to take cognizance of certain matters.
As stated in the objects and reasons there was ambiguity with regard to the appropriate forum and that ambiguity was increased transitionally by amendment of the Act in June, 1997. Various institutions, like the Civil Courts, the High Courts, Labour Courts the Labour Appellate Tribunals, the N.I.R.C. and the Service Tribunals were the places where the cases of the aggrieved functionaries of the autonomous bodies were being shuttled. However, the controversy has been resolved by the Supreme Court and it has been finally held that every person within the service of the Corporation was to be treated as civil servant in view of the said amendment and that the Service Tribunal was the only forum having jurisdiction to take cognizance of the personnel grievances of such functionaries. Hence in view of the prevailing confusion, if an aggrieved person has adopted multiple courses, he cannot be penalised because an aggrieved person makes several types of efforts for the redress or his cause. However, the resolution of the issue by the final verdict of the Supreme Court only the solitary institution shall have the exclusive jurisdiction to adjudicate upon the matter.
8. With regard to the withdrawal of other matters and the direction to the appellants to rely on a single forum only, as stated by the learned counsel for the respondents, we have to hold that in cases of parallel jurisdiction vested in more than one forum, the aggrieved person can be given an option but in view of the exclusive jurisdiction vested in a particular forum, the parallel remedy elsewhere will be a process in the wrong forum for which the parties may seek legal remedy with regard to their useless engagement in the wrong fora, but the institution having jurisdiction to entertain the matter cannot refuse to exercise jurisdiction only on the ground that a person has already adopted another remedy from a forum lacking jurisdiction in the matter. Since it is not a case of exercise of parallel jurisdiction but the one of exercise of exclusive jurisdiction, therefore, this Tribunal will decide the matters on merits irrespective of the fact whether any other remedy has been availed simultaneously by the aggrieved persons. Hence we are of the considered opinion that there is no bar to seek remedy from a competent forum during the pendency of the case elsewhere. It may also be mentioned here that in Appeal No,243(K) of 1997 appellant has approached this Tribunal when the proceedings were abated from the Labour Court and on dismissal of the appeal in limine he approached the Supreme Court and the case has been remanded. Hence the argument of multiplicity of litigation is not concerned in the said appeal.
9. On the point of limitation learned counsel for the respondent had argued that the impugned order was dated 5-3-1997 and the present appeal has been filed on 2-5-1997. Learned counsel for the respondents further pointed out that the delay has not been caused by the ignorance of the appellant about the forum because the appellants had made a statement in the last week of May, 1997 while withdrawing the civil suit from the Sindh High Court that they will seek their remedy from the Labour Court or other forum which means that the appellants have knowledge about the conferment of jurisdiction on the Tribunal even prior to the amendment b6cause of the proceedings with the Parliament and thus he argued that the appellants should have approached the Tribunal just on the incorporation of amendment or immediately thereafter. He stressed that the appellants have avoided the jurisdiction of the Tribunal for almost 10 months and they have specifically stated themselves be not civil servants and now they were estopped to claim otherwise to file the belated appeals beyond the prescribed period.
10. With regard to estoppel, we are of the opinion that the legal status conferred on a person cannot be denied merely by making a statement otherwise and this is in consonance with the legal dictum that explicit provision of law cannot be deleted by consent of the parties or statement of any one of them contrary to the statutory provisions. The legal status of the appellants being a civil servant will continue to exist despite their statement to the contrary, as there could be no estoppel against the clear provisions of lack the laws.
11. With regard to the limitation we may also hold that as stated in the preceding paragraph that due to ambiguity with regard to exercise of jurisdiction there were conflicting judgments and the aggrieved persons logically approached various quarters for the redress of their problems. The matter was finally set at rest by judgment dated 1-4-1998 and from that date the appeals are within time before this Tribunal, even if they had not approached the Tribunal prior to approaching the Supreme Court. It may also be reiterated that these arguments of the learned counsel for respondents are not applicable in the case of Appeal No,243(K) of 1997.
12. At this point we may also hold that the application for condonation of delay has been filed by the appellants in accordance with the direction of the Supreme Court and in view of the special circumstances prevailing for almost 9 months prior to 1-4-1998 there is sufficient reason to condone the delay and the principles laid down in 1983 SCM R 663 and 1987 SCMR 196 are not applicable in the circumstances of these appeals. Hence the application is accepted and the delay is condoned.
13. The learned counsel for the respondent department had also resisted the appeals on the ground that the contentions of lack of show-cause notice and personal hearing as contained in memorandum of appeals were interpreted differently under the Labour Laws. He argued that show-cause notice and personal hearing are adopted where disciplinary proceedings are initiated against the employees with the status of workman, and since the penalty was not being imposed on the appellants rather their services were being dispensed with only as a matter of financial re- organization and without any stigma, therefore, he was of the view that show-cause notice and personal hearing was not required at all.
14. The Honourable Supreme Court has held in a number of celebrated judgments like that of Anees-ur-Rehman and the one reported in 1990 SCMR 2330 that principles of natural justice are to be read as part and parcel of every statute and no action can be taken against any citizen without affording him an opportunity of showing cause about the proposed action so being taken. The appellants are admittedly in the confirmed service of the respondent's department after having successfully completed their period of probation and without any background or any rhyme or reason the services of such employees cannot be dispensed with merely by termination letter like the one issued on 5-3-1997. Show-cause notice and personal hearing are not the terminology of Labour Laws only but even in the service laws applicable to the civil servant a show-cause notice and personal hearing is also provided and particularly in the sister organization of K.E.S.C. i,e, in WAPDA, the WAPDA Employees (Efficiency and Discipline) Rules provide for the procedure of charge-sheet, inquiry and show-cause notice and/or personal hearing. But even in WAPDA Act a special section was included in the form of section 17(1-A) whereby the service of any employee can be dispensed with on administrative or financial ground without any stigma and not as a penalty but the said section 17(1-A) also provides for the show-cause notice. The Federal Shariat Court had considered the Islamic aspect of the principles of natural justice and it was held by the said Court that the principle that nobody should be condemned unheard was purely an Islamic concept and no action can be taken in accordance with the Islamic Shariah without intimating the cause and ground of such action in advance. This view of the Honourable Federal Shariah Court was upheld and implemented by the Supreme Court as referred to hereinabove. Hence we have to hold that the terminology like show-cause notice and personal hearing may be a step in the disciplinary proceedings against a workman but there is no doubt about it that no action can be taken against a workman or even a petty contractor or even a passer-by without intimating him in advance the reasons for taking action and providing him opportunity of explaining his view-point.
In these appeals the show-cause notice was not issued, personal hearing was not afforded. The appellants being the confirmed employees of the Corporation wake up one unfortunate morning to receive the termination order like the bolt from the blue and the reasons therefor were communicated the next day. This amounted to putting a cart before the horse. Instead of intimating the reasons to the affected persons in advance and asking them to explain their view- point action has been taken and the reasons were to follow the next day.
15. During the arguments a controversy had developed whether the appellants were the jtinior most, or whether some of the juniors were still retained in service and whether seniority position was known to the appellants. The learned counsel/for the respondents took the plea that it was for the appellants to have known their seniority position or at least to be aware of who had been appointed after them and that it was imperative for the appellants to have disclosed the names of the persons junior to them who had been retained in service or that for them the principles of retrenchment were not strictly applied. Since order of termination has already been passed, how the appellants can simply raise allegations in the memo. of appeal. Had there been a show-cause notice with sufficient opportunity of proper reply the appellants could definitely have given the details so required. Similarly had a chance of hearing been provided to them, they could have certainly explained the causes for the losses and the effective remedy to cover up the deficiency.
This has further supported the need for issuance of show-cause notice in such an eventuality. The most severe action has been taken against the appellants and that too without the slightest indication of asking for the explanation or intimating the causes leading to such an action. Thus, the impugned order suffers from irreparable illegality and the same cannot be upheld under any law or norms of a civilized society.
16. The learned counsel for the respondent's department had also argued that the appellants have sought their remedies before the High Court and the N.I.R.C. as well as the Labouar Court contending therein that the Federal Government does not have any controlling share in the K.E.S.C., and therefore, it was not an autonomous body of the Federal Government and thus the amendment contained in the section of the Service Tribunals Act was not applicable and that the appellants were not civil servants. After the hearing was closed the learned counsel for the respondents produced certain documents along with an affidavit that the Government has only 0.03% share in the Corporation whereby he wanted to assert that the Corporation was not controlled by the Federal Government. On the question about the establishment of the K.E.S.0 the learned counsel for the respondents explained that it was not established by any Act of Parliament rather it was incorporated as a Company under the Companies Laws. We have gone through documents. However, we are of the view that many autonomous bodies or statutory Corporations were established by the Federal Government or controlled by the Federal Government fall within the definition whose employees have been declared to be in the service of Pakistan and as such are civil servant for the Service Tribunals Act by the amendment in June, 1997. The Company was definitely not established by the Federal Government and if the Audit reports are examined the Federal Government has no controlling share in the Corporation, but there is no denial that this Corporation was one of the taken over institutions in 1972 and thereafter it has neither been denationalized nor privatized. The administrative control is more effective than the financial controlling share. We can take judicial notice of the fact that the senior officers of the Corporation are appointed by the Federal Government and almost all the administrative measures are implemented only with the approval of the Federal Government, thus, it is not the issue of having controlling share in the financial resources but it is the administrative control also whereby status other employees can be determined.
17. The learned counsel for the appellant had supplied the annual reporters accounts for the years 1995-96 and 1996-97 indicating figures of losses from 468 million in 1996 to 6779 million in 1997.
Thus, learned counsel for the respondents tried to justify that due to exorbitant losses there was no alternative but to retrench the surplus employees to reduce the losses. He referred to a lote of precedents wherein it has been held that a Company or a Corporation can take action of retrenchment in case of financial stringencies. It was also argued that like a prudent businessman the Company also the authority to foresee the losses and to take action so as to avoid them. There can be no denial of the fact that not only the institutions of commercial nature but even the public service departments are also authorized by the law to declare some of the staff surplus and to decrease the strength of staff under the principle of retrenchment as no Court or Tribunal can deny the right of an Organization to evercome its financial position and no law can arbitrarily perpetuate the financial losses of a particular organization. However, the bona fides in the proposed actions and the requirement of transpiracy can be examined. The reports certainly indicate the unbelievable losses and the increase of losses from millions to billions and increase by twenty times during one year but the question would raise whether the retrenchment of a small number of junior-most employees would reduce the losses convert the financial status of the Company to a profit earning one. Whether any scheme was ever prepared or processed and approved by the Company and the Board of Directors to take certain measures to reduce the financial burdens.
Whether there was any study indicating the over-staffing at the lowest level because by the number of reports it has been stated in so many words that most of the Corporations have become white elephants and running a continuous deficit for being heavy.. A large number of officers with a lot of perks normally exist at top of Board or Corporation doing no profitable business and instead of decreasing their number the junior most employees are retrenched to deceive those who matter. No such scheme or programme appears to have been prepared or approved and that is why that the impugned order was issued on 5-3-1996. It did not contain the reasons therefor. The reasons were conveyed next day on 6-3-1996. In the supplementary affidavit an effort has been made to explain the proposed steps for reducing the financial losses but the question will be repeated whether any positive action has been taken in any of such directions except the removal of certain low-paid employees. Thus, without going into further details we may observe that the respondents would be justified to retrench a number of their employees subject to the condition of a detailed scheme, show-cause notice and transparency, in the entire process. A clear cut policy to reduce a prescribed percentage of employees of each category along with seniority lists may be prepared and then the retrenchment will be justified if the action is taken from top to bottom without notice and transparently.
18. Learned counsel for the appellant had produced certain documents during the final arguments indicating that the appointments were still being made in the categories where the appellants were working previously to show that the action against the appellants was not for financial strains rather it was discriminative and vindictive one. Learned counsel for the respondents has supplied a supplementary affidavit categorically denying any appointments in such categories and simultaneously admitting that certain appointments have been made on consolation basis to Accommodate the children of deceased employees who were victim of terrorism. This affidavit cannot help rather it amounts to an effort to justify that the legal heirs of the "victims of terrorism" are being compensated at the cost of victims of "forced starvation". If a particular category is to be downsized it has to be brought to a particular number straightaway without any subsequent addition thereto. Particularly in Appeal No, 243(K) of 1997, the appellant has produced a list of employees 'consisting of almost nine pages indicating that action had been proposed against scores of employees including the appellant whereby the names of the employees were enlisted in view of their serial number of the list by the Prime Minister Secretariat and the application number forwarded by the said Secretariat, and the name of the said appellant was also added thereto without any indication of the last serial number of the list or the application number from the Prime Minister Secretariat in this behalf and it was also stated that in the Labour Court the respondent department has taken a stand that action was taken against some of the said petitioners on the ground that their appointments was being reviewed as they were not made on the basis of merits rather the appointments were made on political recommendations. It was argued on his behalf that the respondent department shall be estopped to take a contradictory stand that the action was taken merely due to financial strain.
19. Without commenting on the controversy it is sufficient to hold that the action was taken against the appellants without providing them the opportunity to show cause and, thus, they were condemned unheard. They have certainly become civil servant in view of the amendment in the Service Tribunals Act and the cases of such employees are to be adjudicated upon on merits rather than strictly on technicalities of limitation etc. The department will certainly be justified to reduce the strength of its staff subject to the condition that clear unambiguous and transparent policy is announced pertaining to all the categories and keeping in view the principles of natural justice, junior most employees can thereafter be retrenched with no further additions. In this view of the matter we accept these appeals, set aside the impugned orders and direct that the appellants may be restored to their position prior to the impugned orders and intervening period may be treated to be the leave of any kind due. No order as to costs. Parties be informed.