MUNIR A. SHEIKH, J.---By this common judgment, we propose to decide Civil Appeals Nos.1232 to 1235 of 2000 involving indentical questions of law and facts.
2. These appeals by leave of the Court are directed against the judgment dated 4-6-1999 of the High Court of Sindh, Karachi passed in Constitutional petitions filed by the appellants seeking writ of mandamus to get compliance of the order dated 13-7-1998 of the Chief Minister/Government of Sindh.
3. The facts forming the background of these appeals shortly stated are that the appellants were employed by the respondents-Board in different scales against different posts in the year 1994.
They were to remain on probation for an initial period of two years. Before the expiry of the said period of two years, probation period was extended for another period of one year which expired in the year 1997. Before the expiry of the said lastly extended period, the same was neither further extended nor any decision made or opinion recorded that their services were not satisfactory. The respondents-Board according to its learned counsel in order to give effect to a policy decision made by the Federal and Provincial Governments to down-size the establishment of the Board made a decision to terminate the services of the employees of the Board by way of retrenchment.
In pursuance of the said decision, a number of posts were abolished and the services of the appellants terminated through order dated 11-7-1998 issued by the Managing Director- respondents-Board by way of retrenchment purporting to be under rules 4(a) and 6(b)(c) of KW&SB Employees (Probation, Confirmation and Seniority) Rules, 1987 read with rule 78(1)(2) and
(3) of KW&SB Employees (General Conditions of Services) Rules, 1987 and KW&SB Resolution No,1 dated 15-6-1991, Item 14(iii) of Delegation of Power in the following terms:- "Being a probation your services are hereby dispensed with, with immediate effect on LIFO basis as the post held by you stands abolished. However, benefits of eight months running basic pay are allowed service rendered (maximum 40 months basic pay). You are, therefore, required to hand over complete charge immediately to the next senior employee of your cadre and obtain Clearance Certificate from your Office Incharge for the clearance of dues. This issue with the approval of Chairman, KW&SB."
4. Since the services of a large number of employees were terminated which created commotion, for a large number of families were adversely affected on account of rendering them jobless, therefore, they made representation on 13-7-1998 against the said order a copy of which was sent to the Government of Sindh i,e, the Chief Minister on 13-7-1998. The Chief Minister on the same date i,e,, 13-7-1998 accepted the said representation in the following terms:-- "C.C. Directives Additional Personal Officer, Most urgent. To Chief Minister, Sindh.
No. PA/AS(IMP-II) CMS/98 Karachi, dated 13th July, 1998 To, The Managing Director, Karachi Water and Sewerage Board, Karachi. Subject: RETRENCHMENT IN KARACHI WATER AND SEWERAGE BOARD I am directed to state that the process of retrenchment of KW&SB employees is reportedly going on since last few days and there are reports that services of bulk of employees have been dispensed with.
2. The Honourable Chief Minister Sindh has viewed the above exercise with concern particularly when there is serious problem of unemployment and has further been pleased to desire that all recent orders (dated 11-7-1998 or so) of the retrenchment should be withdrwan immediately and that no further retrenchment be carried out without his prior approval.
3. Accordingly I am to advise you for taking further necessary action in the matter under intimation to this Secretariat on urgent basis.
(Sd.)
Soomro Muhammad Ibrahim, Addl. Secretary (IMP-II) Cc to:-- The Secretary to Government of Sindh, Local Government, Karachi."
5. The Managing Director of the respondents-Board on the same date directed the Deputy Managing Director of the Board to withdraw the letters of termination and stop the process of Manpower Reforms for the time being to implement the orders of the Provincial Government/Chief Minister.
6. On 14-7-1998, Mr. Haroon Siddiqui, who was MPA/Vice Chairman KW&SB wrote a letter to Deputy Managing Director to the following effect:-- "Reference: No, MD/DW/Gen-13/98/267, dated July 13, 1998. The matter has been brought to the notice of the Chairman KW&SB who is likely to discuss the same with the Chief Minister, Sindh in person. Until modify orders are received from the Chairman KW&SB, you are hereby directed to refrain to intervene' in this matter."
7. The Managing Director of KW&SB in furtherance of order of the Chief Minister on 18-7-1998 passed another order on the direction of the Chairman that all actions including processing of bills etc., concerning Manpower Reforms should be stopped forthwith till further orders. The attention behind passing this order was that the case should not be further processed for making payment of dues to the appellants under the Manpower Scheme of retrenchment, for in the order of termination, it was provided that they were to be given benefit of eight months running basic pay up to maximum forty months basic pay. This order was wrongly interpreted by MPA/Vice- Chairman, KW&SB as if payment of salary to the appellants on reinstatement had been stopped, who again intervened and issued direction to the Deputy Managing Director that no bill for payment of salary of the reinstated employees under the order of Chief Minister should be prepared. The order issued by the Vice-Chairman reads as under:- "Reference:--No .KW&SB/Gen/98/1144 dated July 18, 1998 As per orders of the Chairman, KW&SB communicated by the Managing Director, KW&SB vide letter under reference, you are hereby directed tp stop process of preparing salary bills of the incumbents whose services have been dispensed with. Compliance be reported immediately to the undersigned."
8. It is manifest from this order that he purported to have issued the same under the directions or orders of the Chairman. On 20-7-1998, a direction was issued by the Chief Minister to the Managing Director, KW&SB, Karachi to terminate the probation period of all those employees who had satisfactorily completed the same and consequently they may be confirmed forthwith but Mr. Haroon Siddiqui, MPA/Vice-Chairman, again intervened and issued the following directions:- "PLEASE NOTE AND COMPLY Recently terminated employees who were all on probation according to the Managing Director KW&SB stand terminated in view of the above directives of the Government. Please take necessary action accordingly."
9. On 1-8-1998, the Chief Minister again issued order that all the employees who had been reinstated earlier should be paid their salaries for full month of July, 1998 and that they would also continue on the roll of KW&SB under his advice. It was further directed that compliance of the above instructions be ensured in letter and spirit.
10. Feeling aggrieved by the intervention of the Vice-Chairman who was not allowing the implementation of the orders of the Provincial Government or the Chief Minister, the appellants filed Constitutional petitions with the following prayers:-- PRAYER In view of the above, it is most respectfully prayed that this Honourable Court may be pleased to:
(I) declare that the orders of the Vice-Chairman are wholly without lawful jurisdiction and authority and hence null and void and of no legal effect or consequence;
(II) Grant mandatory injunction directing the Board to release the salary of the petitioners and to abide by the orders dated 1-8-1998 and 10-8-1998 of the Chief Minister, Sindh.
(III) Grant any other order/relief this Honourable Court deems appropriate in the circumstances of the case alongwith special costs."
11. The Constitutional petitions appear to have been contested mainly on the ground that the questions raised by the appellants in those petitions related to their terms and conditions of service and by virtue of section 2-A of the Service Tribunals Act, 1973, they as employees of the Board were deemed to be civil servants, therefore, the Constitutional petitions were not maintainable on account of bar under Article 212 of the Constitution and their remedy, if any, was to approach the Service Tribunal by filing an appeal, It was also defended on the ground that no writ in the nature of mandamus could be issued for mere compliance of an order passed by the public functionaries. The Division Bench of the Sindh High Court through judgment dated 4-6-1999 disposed of the said Constitutional petitions in the following terms:-- "In the peculiar circumstances of this case, where the Chief Minister of the Province has already provided relief to the petitioners, the case-law cited by learned counsel for the petitioners is not of much help to their case. If the petitioners have a grievance in respect of violation of terms and conditions of service, the proper forum under the law to approach would be the Service Tribunal and if they have been rescued, as alleged, by the Chief Minister and Government of the Province, there remains no grievance to be redressed by the Court. It would be for the Chief Executive himself to get his official orders implemented. The petitions are without merits and are accordingly dismissed."
12. These appeals by leave of the Court are directed against this judgment of the Division Bench of the Sindh High Court-Karachi. Leave was granted to consider the following points:-- "(i) Whether writ of mandamus or writ of certiorari could be issued by the High Court to get the orders of Chief Minister implemented who himself is Executive Chief of the Province but his orders were not complied with by the Karachi Water and Sewerage Board?
(ii) Whether the employees of Karachi Water and Sewerage Board whose services were terminated could be reinstated by Chief Minister at his own by taking suo motu action and by ignoring the prescribed procedure as enumerated in section 143 (sic) of the Sindh Local Government (Amendment) Ordinance, 1983?
(iii) Whether the downsizing/retrenchment policy has been implemented with the prior approval of Government of Sindh which resulted in an en bloc termination of the employees of Karachi Water and Sewerage Board?
(iv) Whether the controversy relates to the terms and conditions of service and falls within the jurisdictional domain of Sindh Service Tribunal in view of the provisions as contained in section 2-A of the Sindh Service Tribunals Act, 1973?"
13. Mr. Abdul Hafeez Pirzada, learned counsel for the appellants in support of these appeals raised the following contentions:-
(a) That Karachi Water and Sewerage Board has been created and constituted under Karachi Water and Sewerage Board Act, 1996 and its employees i,e,, the present appellants are governed in all the matters inclusive of their service by the provisions of, the said Act and the rules and regulations framed thereunder;
(b) that the Provincial Government under section 13 of the said Act is vested with the power of hearing appeals against the decision of the Board or the Chairman of the Board;
(c) that the employees of the Board in respect of any decision made in connection or relating to their terms and conditions of service could file appeal before the Provincial Government against the decision of the Board and in case they said appeal is accepted and the decision of the Board reversed, the functionaries of the Board were under legal obligations to implement the said decision;
(d) that in the present case, the appeals presented by the present appellants/employees of the Board against the decision of the Board of retrenchment by way of Manpower Reforms and termination of their services through order dated 11-7-1998 in pursuance thereof were accepted and they stood reinstated, therefore, it was a case of implementation of the decision of the Provincial Government by the Board, as such, they were not required to approach the Service Tribunal as their grievance stood redressed by the appellate authority at the departmental level within the provisions of the Act;
(e) that Vice-Chairman of the Board in the presence of Chairman was not vested with any authority or power to interfere and intervene in the matter and direct the Managing Director or other functionaries of the Board not to give effect or implement the decision of the Provincial Government/Chief Minister passed in appeal of the appellants of their reinstatement in service and payment of salary, therefore, his aforementioned orders issued from time to time were without lawful authority and of no legal effect but the learned Division Bench of the High. Court declined to interfere on the assumption as if no prayer or writ in the nature of mandamus could be issued for implementation of the order of the Provincial Government by the Board which assumption had resulted not only in miscarriage of justice but also failure to exercise jurisdiction vested in the High Court in the matter;
(f) that the appellants were mala tide shown and treated as still probationers in order to terminate their services though they having successfully completed their initial period of probation of two years and even the extended period of one year after which they could not be treated as probationers, therefore, they had become permanent employees to which effect order was also passed by the Provincial Government or the Chief Minister for their confirmation though under the relevant rules and regulations, they shall be deemed to have stood confirmed with the termination of period of probation to which effect, the case was also referred to the Law Ministry of Sindh Government for opinion which opined that the appellant stood confirmed and were no longer on probation.
14. We have been taken through different provisions of the Act by Mr.Abdul Hafeez Pirzada, Senior Advocate Supreme Court in his endeavour to elaborate the abovementioned contentions raised by him and also the Karachi Water and Sewerage Board. Employees (Probation, Confirmation and Seniority) Rules, 1987 by which the appellants were governed in the matter of probation, seniority and confirmation and find considerable force in these contentions. The Karachi Water and Sewerage Board was established under section 3 of the Act which provides that it shall be a body corporate, having perpetual succession and common seal with power subject to the provisions of this Act to acquire and hold property, both movable and immovable, and may by the said name sue and be sued. Under section 5 of the Act, the Provincial Government is vested with the power to appoint a Managing Director who was designated as the Chief Executive of the Board who, as such, could exercise all powers as Chief Executive of the Board in respect of all the employees of the Board subject to the orders of the Chairman of the Board. Section 4 of the Act provides that the Board shall consist of a Chairman and a Vice-Chairman appointed by the Government and the other members mentioned in the said section. Mr. Haroon Siddiqui, MPA was appointed as Vice- Chairman of the Board by the Provincial Government who could function only as provided in section 6(2) of the Act which reads as under:-- "6(2). When the Chairman by reasons of absence from Pakistan or any other cause, is unable to exercise his powers and perform his functions, the Vice-Chairman shall unless, Government may by notification entrust the duties of the Chairman to some other person, exercise powers and perform functions of the Chairman."
15. Except this provision of the Act, there is no other provisions conferring any power or the authority on the Vice-Chairman to perform any function or issue any direction in respect of any matter. It is not disputed by the learned counsel for the respondents that at the relevant time when the Vice- Chairman/PMA intervened in the matter and did not allow the functionaries of the Board to comply with or implement the orders of the Provincial Government or the Chief Minister, the Chairman of the Board was unable to perform functions as envisaged by this provision of the Act, therefore, the orders or directions issued in the matter by him as noted above were without lawful authority and of no legal effect and also lacked bona fides and suffered from not only lack of power but also malice. He while issuing those directions used the name of the Chairman repeatedly as if he was directed by the Chairman of the Board to issue those directions which were contrary to the order of the Appellate Authority i,e,, the Provincial Government.
16. Learned counsel for the respondents could not point out from the record that any such direction was issued by the Chairman to the Vice-Chairman. As observed above, the Chief Executive of the Board was Managing Director and Managing Director immediately took steps after receipt of the order dated 13-7-1998 to implement the same and issued direction for not preparing any bill under the Manpower Reforms for payment of any dues to the appellants-employees whose services were terminated by way of retrenchment, therefore, the Vice-Chairman had no legal justification to interfere and intervene in the matter.
17. Since in the orders of termination of service, the appellants were shown and described as probationers, therefore, a question also arose whether they could be treated as probationers, therefore, it is in this manner that the question had arisen for determination whether they could legally be treated as probationers. According to rule 3 of the Karachi Water and Sewerage Board Employees (Probation, Confirmation and Seniority) Rules, 1987, a person appointed to a post by initial appointment was to remain on probation for two years. There is no dispute that the appellants were appointed against different posts held by them by initial appointment, therefore, by force of this rule, they were on probation for initial period of two years. Under sub-rule (2) of this rule, it was open to the appointing authority for the reasons to be recorded in writing to curtail the period of probation. It was not the case of the respondents Board as it was not argued by its learned counsel before us that initial period of two years of the appellants was reduced by the appointing authority. Rule 4 of the said Rules provides that if the work and conduct of an employee during the period of probation had been found unsatisfactory, the appointing authority may, notwithstanding that the period of probation has not expired, dispense with his services without notice in case he had been appointed by initial appointment and in case he was appointed otherwise, revert him to his former post and in case there was no such post; dispense with his services.
18. Learned counsel for the respondents admitted that no such order was passed before the expiry of initial period of two years of probation of the appellants under this rule. Then comes rule 5 which provides that on completion of period of probation, if the work or conduct of an employee, was found unsatisfactory, the appointing authority could dispense with his services without notice if he was appointed through initial appointment and in other cases, revert him to his former post or extend the period of probation by an additional period of not more than one year at a time and not more than two years in all. It was not denied that initial period of probation of the appellants was extended for another period of one year and they continued as such till 1997. Rule 6(1)(c) of the said. Rules provides that if no order has been made by the date on which the maximum additional period of probation expires, the employee's probationary period shall be deemed to have been terminated with effect from the date on which the period of probation was last extended or deemed to have been, so extended. In case, the probationary period of the appellants had not been extended for another period of one year, the period of probation would have stood extended by force of rule 6(1) of the said Rules for another period of two years.
19. In view of these rules, the period of probation of the appellants terminated in the year 1997, therefore, they were eligible for confirmation against the posts held by them by virtue of rule 7 of the said rules. If an employee who had become eligible by force of the said rule for confirmation but no order is passed by the authority concerned, he could not be treated a probationer, for the probation period by operation of the abovementioned rule stood terminated, therefore, the matter was referred to the Law Ministry of the Province which gave an opinion that in such a case, such an employee would be deemed to have been confirmed. Apart from this, on acceptance of appeal by the Chief Minister/Provincial Government of Sindh against the order dated 11-7-1998 of the Board in which the appellants were described as probationers through order dated 13-7-1998 they stood confirmed as such, and subsequently an order was also issued that they should be deemed to have been confirmed, as such, there was no room left for raising any argument that at any point of time, they were probationers before order dated 11-7-1998 was issued.
20. We have also noticed that order dated 13-7-1998 was passed by the Chief Minister/Provincial Government in a petition/appeal moved by the appellants in the form of notice issued to the Board a copy of which was sent to the Provincial Government/Chief Minister. Section 13 of the Act provides that appeal under the said section against the decision of the Board shall be heard and disposed of in such manner as may be prescribed. Learned counsel for the respondents has not been able to point out that there was any provision or rule prescribing the manner to dispose of the appeal contrary to the manner in which these appeals were decided. Even otherwise, if these appeals had been decided contrary to the procedure prescribed in the Rules or the Act, the Board as juristic person should have sought remedy against the decision of the Chief Minister/Provincial Government passed in appeals which it failed to do, therefore, no objection at this stage by way of defence can be raised that the appeals were not decided in accordance with the procedure prescribed under the rules.
21. Learned counsel for the respondents attempted to argue that the decision of retrenchment in the form of Manpower Reforms was taken by the Board in accordance with the policy of the Federal Government and the Provincial Government to downsize the establishment of the Board, therefore; no interference should have been made.
22. Be that as it may, the decision of retrenchment was a decision of the Board treating the appellants as probationers which too was appealable under section 13 of the Act before the Provincial Government and the Chief Minister being the Chief Executive of the Province was competent and vested with the power to set aside the same to which no exception can be taken. It will, however, be open to the Board to take fresh decision which would also be open to appeal under section 13 (ibid) which if made shall be decided on its own merits.
23. The approach of the learned Judges of the High Court that in such a case, no direction could be issued for implementation of the orders of the Chief Minister/Provincial Government by way of direction in the nature of mandmus is not tenable. It was not the Chief Minister who had approached the High Court complaining that his orders were not being implemented in which case, the High Court might have justification to decline interference, for the Provincial Government/Chief Minister had itself his own machinery to get his orders implemented. The Constitutional petitions were filed by the appellants/employees who were the beneficiaries of the orders passed by the Provincial Government/Chief Minister in their appeals which were not allowed to be implemented by the Vice-Chairman which was absolutely without lawful authority, therefore, the High Court was under the law obliged to declare the act of the Vice-Chairman without lawful authority and direct the Board to give effect to the orders of the Chief Minister.
24. The argument of learned counsel for the appellants that it was not a case of enforcement of any of the terms and conditions of the appellants, for they had already been reinstated by the Chief Minister in appeal by order dated 13-8-1997 has force, therefore, the view of the High Court that they should approach the Service Tribunal in the matter is not sustainable. If the Board had any grievance against, the said order passed in appeal, as observed earlier, it should have sought remedy against it in accordance with law which it failed to do, as such it attained finality.
25. For the foregoing reasons, these appeals are accepted, judgment dated 4-6-1999 of the Sindh High Court is set aside and the intervention of the Vice-Chairman aforementioned and the directions issued by him are hereby declared to be without lawful authority and quashed and it is hereby declared that the appellants stood reinstated in service by order dated 13-7-1998 of the Chief Minister passed in appeal as permanent employees of the Board and the respondents are directed to treat them accordingly, subject to the observation that it will not debar the Board to take fresh decision of retrenchment if it so likes in accordance with law and it will also be open to the appellants to seek remedy against the same in accordance with law as observed above.
26. By our short order dated 14-5-2002, the appeals were accepted and the above are the reasons for the said order.
27. There will be, however, no order as to costs.