JUSTICE (RTD.) ABDUL HAFEEZ CHEEMA, CHAIRMAN.- This judgment shall govern Appeals Nos. 803/97, 899/97, 900/97, 901/97, 902/97, 903/97, 904/97, 905/97, 906/97, 907/97, 908/97, 909/97, 910/97, 911/97, 912/97, 913/97, 914/97, 915/97, 916/97. 918/97,. 919/97, 921/97. 922/97, 923/97, 925/97, 927/97, 928/97, 971/97, 972/97, 973/97. 974/97, 978/97 and 979/97 filed by the former employees of Government Mental Hospital', Appeals Nos. 237/97, 964/97, 976/97, 982/97, 983/97, 984/97, 985/97, 986/97, 987/97, 988/97, 989/97, 990/97, 991/97, 992/97, 993/97, 994/97. 995/97, 996/97. 997/97, 998/97. 999/97, 1000/97, 1001/97. 1002/97, 1003/97, 1004/97. 1005/97, 1006/97, 1007/97 and 1008/97, filed by former employees of the Service Hospital, Appeals Nos. 1568/97. 1818/96, 1697/96, 932/96, 1662/96, 1684/96, 1685/.96, 1696/96. 65/97. 66/97, 860/97, 861/97, 862/97, 863/97, 864/97, 866/97, 867/97, 868/97, 869/97, 870/97, 871/97, 872/97, 873/97, 929/97, 930/97. 931/97, 932/97, 933/97, 934/97, 935/97, 892/97, 980/97, 1094/97, 1095/97. 1302/97, 1425/97, 1426/97, 1427/97, 1529/97, 1428/97, 2267/97 2291/97. 2294/97 and 3677/97 filed by the former employees of Mayo Hospital, Appeals Nos. 875/97, 877/97, 882/97, 886/97, 888/97, 950/97, 951/97, 952/97, 956/97, 957/97, 958/97, 959/97, 965/97, 967/97 and 968/97 filed by former employees of Lady Wellington Hospital, Lahore.
2. The facts of all the appeals are strikingly identical, as such, it appears convenient as well as appropriate to dispose them of by means of single judgment.
3. The facts of these cases briefly are that Rana Muhammad Ilysa, Chairman, Para-Medical Staff Association, Mental Hospital, Lahore served a notice on Medical Superintendent, Government Mental Hospital, Lahore that from 5.12.1992, the staff of the hospital will observe strike in support of their demands. Only to days later, the Pakistan Para-Medical Staff Association, Government Hospitals, Lahore issued a Pamphlet with certain demands. The authorities found that the demands were illegitimate and illegal and the Association had no right to disturb the peace of the hospital and to abandon their duties of looking after the poor and mentally retarted patients in the hospital.
The appellants were required to attend to their duties but on account of their defiant and contumacious attitude, 6 employees of the hospital were proceeded against under Efficiency and Discipline Rules and were ultimately suspended.
4. On 2.1.1993, the Association of the Government Mental Hospital, Lahore called upon the employees of all the hospitals to abandon their duties in the hospital and go on strike in favour of their following demands:- "
1. That the suspension orders of the employees of the hospital be withdrawn;
2. That the Medical Superintendent of Mental Hospital, Lahore be transferred immediately; and
3. That those employees who were transferred as a sequel to the strike may be restored to their original positions and the employees of the hospital should not be victimized for joining strike."
In view of this case, the appellants from the Mental Hospital', who included sweepers, Wardboys and other similarly staff went on strike and the miseries of the patients in the hospital increased to an unimaginable extent. This was followed by the paramedics of the other hospitals. As a result of the strike, a few casualties had reportedly taken place in the Mayo Hospital and in some other hospitals in the Province. As a result of this strike, there were concerted stoppage of work of the employees with a view to ensuring acceptance of their demands. The hospital administration stood paralized, hence the competent authority issued a notice on 7.1.1993 in daily "Nawa-i-Waqt" to all the para-medical staff in the Punjab calling upon them to immediately attend to their duties to mitigate the sufferings of the unattended patients in various hospitals of the Province. They were also warned that in ease they failed to do so, the law shall take its on course and disciplinary action shall follow. When these warnings failed to have any effect on the strikers, another warning was issued through daily "Pakistan", "Khabrain", "Mashraq" and almost through all the National Dailies on 10.1.1993 calling upon the strikers to immediately report for duty otherwise proceedings under Rule 9(3) of the Efficiency and Discipline Rules, 1975 shall be. Initiated against them.
5. Even after this warning and notice, the appellants did not return to their duties and the competent authority was obliged to proceed against them under the aforesaid provisions of law and after taking all necessary steps envisaged by law issued their, dismissal orders. As a result of these proceedings, some employees of the Mental Hospital were dismissed on 11.1.1993 whereas the others on 12.1.1993 and 13.1.1993. The other appellants hailing from Mayo Hospital, General Hospital and other hospitals were similarly proceeded against on the basis, of proclamation issued in the National Dailies and their termination orders were passed from 11.1.1993 to 4.2.1993.
6. The appellants filed appeals against their dismissal orders before the departmental .Authorities somewhere in January/February, 1993 which were all dismissed vide orders of varying dates in 1993. Failing to get relief from the department, the appellants from Mental Hospital filed these appeals in this Tribunal on 2.1.1997 while the other appellants filed their appeals somewhere in 1996 and few others in the year 1997.
7. It is- submitted by the learned counsel for the appellants that the appellants had gone on strike legitimately in prosecution of their demands and it was not within the mandate of the competent authority to have dismissed them in a summary way. Although, rule 9(3) of the Efficiency and Discipline Rules envisaged not very elaborative procedure, nevertheless, it is fundamental principle of law that none should be condemned unheard. In this case, all the appellants had been dismissed without ascertaining as to whether they were at fault or not, The orders passed by the authorities were arbitrary, whimsical and mala fide.
8. The learned District Attorney, however, pointed out that before proceeding further, it would be apt to determine whether the appeals were in time. He invited out attention to the orders of dismissal passed against the appellants on 11.1.1993 to 4.2.1993 and claimed that examined in the light of provisions of Section 21 of the Punjab Civil Servants Act, 1975, -all the appeals were hopelessly time-barred.
9. The learned counsel for the appellants referred us to the order passed by the High Court in Writ Petition No. 19111 of 1996 which shortly reads:- "Learned counsel for the petitioners says that much time has been consumed in filing the departmental proceedings and inquiry by the Committee and before this Court and the service appeals which if now filed by the employees of the said para-medical staff may not be treated as barred by time. The contention appears to be reasonable, therefore, the departmental representations of the members of the said para paramedical staff regarding their removal shall be deemed to have been rejected today with the disposal of this Writ Petition and they may file appeals before the Service Tribunal within limitation prescribed under the law from today".
According to him, although the appeals are clearly time-barred, nevertheless, this order of the High Court has covered/condoned the delay.
10. We have heard the learned counsel for the parties at length and are afraid to observe that nothing solid could .Be put up by the learned counsel for the appellants to. Establish that the appeals were in time. The fact of-the matter is that the appellants were dismissed in January/February, 1993 and they were bound in law to approach the departmental authorities in the first instance for redressal of their grievances within a month under Section 4 of the Punjab service Tribunal's Act, 1975. Failing there they had to come in appeal within a month on the expiry of a period of 90 days after filing their representations. The appeals having been filed in 1996/97 were barred by almost four years. The appellants have been so casual and careless rather reckless that they have not minded even to file applications for condonation of delay.
11. As for the order of the High Court referred to above, we have given our serious thought to this point, it is conceded by Mian Muhammad Nawaz, learned counsel for the appellants from Mental Hospital. Lahore and few others, that Article 212(3) clearly bars the jurisdiction of the High Court in matters relating to the terms and conditions of a civil servant. As such the very order was without jurisdiction and could not have extended limitation in the way it has been done.
12. It has been held by the Supreme Court, times without number, that in mailers relating to terms and conditions of service, the jurisdiction of High court is clearly barred by Article 212(3) of the Constitution of Islamic Republic of Pakistan. The order passed by the High Court in such matters has been held to be without jurisdiction, it would be very apt here to make a reference to the PLD 1997 SC page 351 wherein their Lordships of the Supreme Court held while making reference to Muhammad Anees v. Abdul Haseeb (PLD 1994 SC page 539) that the above matters (service matters) pre-eminently fall under the exclusive jurisdiction ol the Tribunal and therefore, the High Court had wrongly assumed the jurisdiction in such a case which did not vest in it.
13. In this Constitutional Petition (Writ Petition No. 61/85), Dr. Zafar Bukhari felt aggrieved of an amendment made in the Punjab Health Department (Medical) and Dental Posts) Service Rules, 1979 issued vide Notification No. SO(R-III) 1-6/81, dated 17.10.1981, in so far as it prescribed the date of appointment as Associate Professor as before 25th of November, 1977 as the qualifying date for appointment to the post of Professor in the educational cadre of the medical colleges.
14. The respondents in the writ petition contested the writ, inter alia, on the ground that writ was not maintainable as the question raised primarily pertained to terms and conditions of service of a civil servant as such jurisdiction of High Court stood ousted and barred by Article 212 of the Constitution of Islamic Republic, of Pakistan.
15. Notwithstanding this objections the petition was allowed vide judgment dated 29.4.1989. The appellant-Government of the Punjab filed intra-Court appeal against the judgment but the same was got dismissed as withdrawn on the ground that the petition for leave is to be filed in the Supreme Court. This petition was filed but the Supreme Court refused to grant the leave.
Consequently, the contempt proceedings were initiated against the Government, the validity of which was ultimately challenged by the Government before the Supreme Court. The judgment passed by the High Court being without jurisdiction was ignored and it was held by the Supreme Court that the Government had not committed any contempt because the High Court's order was without jurisdiction. It was held:- "The judgment of the Supreme Court in the case of Dr. Sh. Muzaffar Iqbal, appears not to have been brought to the notice of the learned Judge of the High Court. Had it been noticed the declaration made and the direction issued would not have been made and issued for the reason that the Jaw declared by the Supreme Court by virtue of Article 189 of the Constitution of Islamic Republic of Pakistan is binding on all Courts and authorities in Pakistan: The judgment dated 29.4.1989 passed by the Lahore High Court in Writ Petition No. 61/1985 in view of the dictum laid down to the contrary by the Supreme Court is a judgment per incuriam".
Again at page 365 it was said:- "This brings us to the question of implementation of the judgment dated 29.4.1989 of the High Court which judgment as held above is a judgment per incuriam' which was sought to be enforced by initiating contempt proceedings. The question is whether/indictment for disobedience to a judgment per incuriam can be obtained or in other words can a person be found guilty of disobedience of an order which is nullity in the eyes of law. On this question cases cited in Halsbury's Laws of England 4th Edition, Volume-9, para 5 are "R. v. Hollis 1819, 2-Stark.536; R. v. Soper 1825, 3 B & C 857", wherein it was held that "a person cannot be found guilty of disobedience to an order of justices if the order was made in a matter in which they had no jurisdiction."
16. It was urged by' the learned counsel, for the appellants that the appellants had been trying their level best to get their grievances redressed from all possible sources and had approached the politicians and even the then Chief Minister who had assured them that they will be re-instated to service rather in certain s had also been passed but the same, somehow or the other, could not be implemented, the delay therefore, in filing of the appeals was condonable.
17. The order of the High Court as admitted by the learned counsel for the appellants himself was without jurisdiction, hence such instructions/directions had no legal sanctity. The appeals were therefore, obviously barred by almost four years. It is now a settled proposition of law that each day of the delay is required to be explained by a suitor/appellant. In service matters, the Hon'ble Supreme Court has been rather very clear and strict. In a case, even a day's delay was not condoned. Reference in this behalf may be made to 1990 SCMR page 1519.
18. Moreover, if one goes through the entire record with little care and attention, one finds that the appellants have been rather very callous. The trouble started when the employees of the Government Mental Hospital went on strike where mentally retarted poor patients are kept and are undoubtedly at the mercy of the para-medical staff. Most of them belonged to lower middle class families because it is a common observance that the mentally retarted children of the rich are either kept in their on homes, sent abroad or otherwise attended to properly by the wealthy parents.
19. Their demands were improper and could not have been met the way they were put. As a result of their brutality some deaths were also reportedly occurred in other hospitals. If such lawlessness would have been allowed to gain currency, no government institution or any hospital would have properly functioned. They were dismissed as back as 1993 and much water had flown down the bridge and we are informed by the learned District Attorney that the vacancies caused by their ouster have since long been filled.
20. As for the procedure adopted in this case, the government have been rather very cautious and careful. Rule 9(3) of the Efficiency and Discipline Rules, 1975 shortly reads:- "9 (3): Notwithstanding the other provisions of these rules where the Government or Authority is satisfied that one or more civil servants, individually or collectively, have taken part in agitational and subversive activities, resorted to strike, abandoned their official duty or incited others to do so, the Government or the Authority may after serving upon them a notice through a publication in a daily newspaper or in any other manner, asking them to resume duty, and on their failure or refusal to resume their duty impose upon the defaulting civil servant the penalty of dismissal or removal from service without following the procedure as laid down in rules 5, 6, 7 and 8 ibid".
This sub-rale was added by means of No. SOR-I(S&GAD)I-55/81(P), dated 3.1.1986 and the rule making authority had intended to make it applicable notwithstanding the provisions contained elsewhere in the rules. This, therefore, was an over-riding provision and meant to cover an extraordinary situation like the one the hospital authorities were confronted with in this case.
21. It is said that extraordinary maladies call for extra ordinary remedies. If unscrupulous official, by their illegal acts of omission or commission had exposed the lives of helpless patients to grave hazards, the penalty awarded to them appears quite commensurate to their guilt. If they had abandoned their duties on account of complaints against the administration, what wrong had been committed by the innocent patients who, as observed earlier, mainly belonged to poor Or lower middle class families and were deprived of parental care and attention and were left absolutely at the mercy of such a cruel staff. The Hospital administration obviously did not lose anything while the main sufferers were the patients. Without realising the laweful results, the appellants from Mental Hospital went on strike and incited others to follow the suite. As pointed out earlier, some casualties had also taken place on account of the highly irresponsible and defiant attitude of the strikes. It therefore, appears to us that the authorities have rightly proceeded against the strikers who had absolutely no justification to play with the health and lives of the innocent patients. If their grievances were genuine they could have sought the redressal of these grievances by resorting to other lawful means i.e. Taking their cases to the Courts of law or approaching the higher authorities in a decent and in a civilized way. In fact there appears to be increasing truth in the assertions made by the respondents that in order to cover-up their on mis- deeds and bunglings, the employees of the hospitals started the agitation for which there was no warrant in law.
22. It is note-worthy that besides issuing notices through press which were in accordance with the requirements of the rules, respondents had also issued individual notices in some cases.
23. The record shows that notices were also issued under the Punjab Essential Services (Maintenance) Act, 1958 (Act No. XXXIV of 1958). According to Section 3 Of the Act; it shall apply to all employments under the Government or any agency set up by it or a local authority or any service relating to transport or civil defence. It is obvious that the appellants were all in the employment of Punjab Government; as such, the Act was applicable to them. Section 5 of the Act ibid declares the following as offences under the Act:- "5. Any person engaged in any employment or class of employment to which this Act applies-
(a) Disobeys any lawful order given in the course of such employment, or attempts to persuade any person to disobey any such order or
(b) without reasonable excuse abandons such employment or absents himself from work, or
(c) departs from any area specified in an order under sub-section (1) of Section 4 without the consent of the Government or the authority making that order, and any employer of a person engaged in an employment or class of employment to which the Act applies who without reasonable excuse-
(1) discontinues the employment of such person; or
(2) by closing an establishment in which such person is engaged, causes the discontinuance of his employment, or
(3) discontinues or causes the discontinuance of an essential service." is guilty of an offence under this Act. "
24. According to section 7 of the Act, any person found guilty of an offence under this Act shall be punishable with imprisonment for a term which may extend to one year and shall also be liable to fine. These provisions show that the appellants being Government employees were bound under the provision of this Act to attend to their duties in pursuance of directions of their superiors and since they failed to do so, they were liable to be prosecuted under Section 5 read with Section 7 of the Act. The department appears to have been rather lenient with them that they proceeded against them under Efficiency and Discipline Rules only and had not launched prosecution against them.
25. It is contended on behalf of some of the appellants that they have procured certificates from some of the officials of the hospital to show that they had not joined the strike and were present in the office. Procurement of such certificates is something common in our country. That will render no help to them on account of the peculiar situation obtaining in this case. Had they been marked present or shown their presence to the competent authority on that very day, that would have carried some weight. Subsequent procurement of any certificate that they were present on that date after much water had flown down the bridge carried little or no meaning. They therefore, cannot derive any benefit out of such certificates.
26. As referred to earlier, F.I.R. No. 115/93 was registered at P.S. Gawalmandi under Sections 302/34, PPC against as may as 132 strikers on account of the alleged deaths of some patients which were direct result and consequence of the strike. It has been emphatically claimed that the strikers had employed all illegal means to obstruct the supply of food and other essential articles to the helpless patients and had employed coercive measures and also violence at a number of places.
It would be quite relevant to make a reference to para 103 of the Mental Manual 1912 which provides:- "Nothing will excuse any harsh treatment of or cruelty to a patient. Any attendant found guilty of such conduct will be instantly dismissed or, at the discretion of the Superintendent, prosecuted".
27. There seems to be no infirmity in the order passed by the competent authority, as such we find no:justification, whatsoever, for interference with their lawful orders.
28. The behaviour of the appellants was not merely against all canons of civility required of an hospital employee but inhuman and tantamounted to a blackmail. They have failed to make out any case for their re-instatement.
29. The appeals are devoid of any merit and are hereby dismissed.