1. ' Through this common judgment I intend to dispose of Election Petition Nos.3 of 2003 and 4 of 2003 as in both the petitions identical question of fact and law is involved.
2. Respondent Muhammad Naseem Taryali is a sitting Member of the Provincial Assembly of Balochistan. He was elected as such from Constituency No,PB-12 Killa Abdullah-II in the general election held on 10-10-2002 and partly on 18-11-2002. It would not be irrelevant to mention here that polling in respect of fourteen polling stations were re-held on 18-11-2002 in consequence of the judgment of the High Court of Balochistan rendered in Constitutional Petition No,540 of 2002.
2. According to the consolidated statement the candidates contesting election from the constituency secured following votes:-- S. No. Names of the contesting candidates Number of valid votes polled
1. Amir Jan Kakar 1562
2. Dr. Wali Jan 3
3. Abdul Ghaffar Khan 21
4. Abdul Qadoos Popalzai 89
5. Ghulam Sarwar Khan 8493
6. Muhammad Usman Achakzai 11
7. Muhammad Naseem 9693
8. Moulvi Abdullah 3953
3. The election of respondent Muhammad Naseem has been questioned by the petitioners on the ground that he was not qualified from being elected as a member as he had been in the service of Sui Southern Gas Company (SSGC), a body controlled and owned by the Federal Government at the time of filing nomination papers and contesting election. According to the petitioners the respondent Muhammad Naseem was appointed as Management Trainee in the year 1995 and he continued as such till 7-12-1998 when his services were terminated alongwith 125 other employees.
3. The respondent challenged his termination order before the Federal Service Tribunal which accepted the appeal and the service of the respondent was restored vide judgment dated 13-10- 2000. The order of the Federal Service Tribunal was further challenged by the respondent before Honourable Supreme Court by filing petition for leave to appeal which was eventually accepted on 28-3-2001 and after converting the petition into appeal and by allowing the same, the judgment of the Tribunal was set aside with the direction to the company to absorb the respondent (who was petitioner before the Honourable Apex Court) in his discipline on the same line as has been done in the cases of Saleem Mustafa Sheikh and others and Engineer Narain Das and others.
4. ' The respondent Muhammad Naseem filed written statement on 11-4-2003 contesting the petition on legal as well as factual grounds. He denied to be in services of the Company. According to respondent his job was only a training assignment which was terminated with effect from 7-12- 1998.
5. ' Out of the pleadings of the parties the following issues were framed:--
(1) Whether the petition is not maintainable-in view of P/L/O 'A' of the written statement filed by the respondent No,1?
(2) Whether the respondent No,1 was employee of SSGC at the time of filing nomination paper, if so, to what effect?
6. (30 Whether SSGC is a statutory body controlled or owned by the Government or Government has controlling share or interest in it?
(4) Whether the petitioner is entitled for relief claimed for?
(5) Relief?
7. ' The petitioners produced three witnesses besides recording the statement of Ghulam Sarwar petitioner who appeared for himself and as attorney in Petition No,4 of 2003. The respondent Muhammad Naseem did not produce any witness and only got recorded his statement.
8. ' The petitioners produced following documents through the witnesses : --
(i) Exh.P./1 Statement of account bearing No,1685-3 maintained by the respondent Muhammad Naseem with U.B.L.
(ii) Exh.P.2 Letter dated 30-12-2002 wherein Company asked the respondent to deposit Rs,3,42,349.
(iii) Exh.P.3. The letter of the respondent Muhammad Naseem whereby he tendered resignation.
9. This letter was received by the Company on 26-11-2002.
(iv) Exh.P.4. Appointment letter, dated 3-10-1995 whereby the respondent was offered assignment of management trainee.
(v) Exh.P.5. Letter dated 7-12-1998 whereby the training assignment of the respondent was terminated.
(vi) Exh.P.6. Letter dated 8-11-1995.
(vii) Exh.P.7. Appointment letter, already produced as Exh.P.4.
(viii) Exh.P.8. Appointment letter, dated 3-10-1995 showing appointment of Muhammad Naseem as management trainee.
(ix) Exh.P.9. Approval of the Minister for appointment of the respondent in relaxation of rules.
(x) Exh.P.10. Letter dated 25-3-2003 issued by SSGC stating therein that the training of the respondent stands terminated with effect from 7-12-1998.
(xi) Exh.P.11 to Exh.P.41. Pertaining to the account of respondent maintained by him in U.B.L. And showing the deposit and withdrawal of amount from the said account. It also shows that the amount of stipend was being deposited in the account by the company.
(xii) Exh.P.42. Judgment of Honourable Supreme Court delivered on 28-3-2001.
(xiii) Exh.P.43. Documents pertaining to C.P. No,1962 of 1997 filed by the respondents and others in Sindh High Court.
(xiv) Exh.P.44. Judgment of Federal Service Tribunal dated 13-10-2000 setting aside the termination order, dated 7-12-1998.
(xv) Exh.P.46. Election Schedule.
10. ' I have heard the learned counsel for the parties in the light of evidence led by the parties and relevant provisions of law. Learned counsel for the petitioners contended that the respondent Muhammad Naseem was appointed as Management Trainee by the Sui Southern Gas Company Limited (SSGC) vide appointment letter dated 3-10-1995 (Exh.P.4) and he worked in the said Company till 7-12-1998 when his services were terminated vide letter Exh.P.5. Against termination of his service the respondent filed Service Appeal No,844/R of 1999 before the Federal Service Tribunal, which was allowed on 13-10-2000 and the services of the respondent were restored vide judgment Exh.P.44. Thereafter respondent filed a petition for leave to appeal before Honourable Supreme Court having number Civil Petition No,465 of 2001. The Honourable Apex Court after converting the same into appeal allowed the same and the Company was directed to absorb the respondent in his discipline on the same line as has been done in the cases of Saleem Mustafa Sheikh and others and Engineer Narain Das and others. This judgment (Exh.P.42) was delivered by the august Court on 28-3-2001 and the respondent became regular employees of the Company and continued as such till the date when he tendered his resignation vide letter, dated 9-11-2002 (Exh.P.3). He further contended that from the above referred documents it has been proved on record that on the date of filing nomination papers which was from 19-8-2002 to 20-8-2002 and on the day of elections which were held on 10-10-2002 and re-held in fourteen polling stations of the Constituency PB-12 Killa Abdullah-11 on the order of High Court of .Balochistan on 18-11-2002, the respondent was serving in SSGC, as such; was disqualified from being elected and from being a Member of.
11. Provincial Assembly within the provisions of section 99(2)(e) of the Representation of the Peoples Act, 1976 read with Article 8-D(2)(e) of General Election Order, 2002. According to learned counsel the SSGC is a company or body owned and controlled by the Government. The learned counsel urged with vehemence that the tendering of resignation by the respondent after being declared returned candidate and the acceptance of the same by the SSGC with retrospective effect would be of no consequence as the respondent was disqualified on the date of submission of nomination papers, particularly when the letter Exh.P.10 was issued by the Company on 25-3-2003 after filing of the election petition and the respondent manoeuvered the same in order to frustrate the proceedings pending before this Tribunal, whereby his election as Member of Provincial Assembly was under challenge. He further contended that the SSGC company has no jurisdiction to accept the resignation with retrospective effect in view of the settled law. In support of his contention the learned counsel referred to judgments, reported in 1986 MLD 2001, PLD 1992 (Journal) 118, 1993 MLD 1911, 1997 MLD 612, PLD 1997 Pesh. 137, 1986 MLD 2001, PLD 1996 SC 717, PLD 1975 Lah. 2176 (sic), PLD 1980 Lah. 311 and 1996 SCMR 1455.
12. ' Conversely; the learned counsel for the respondent Muhammad Naseem referring to the issues framed in the matter contended that he was not pressing the Issue No,1 and Issue No,3 framed on the basis of objection and averments contained in the written statement. He conceded that the Sui Southern Gas Company Limited was a body owned and controlled by the Federal Government.
13. Arguing on the Issue No,2 "whether the respondent Muhammad Naseem was employee of SSGC at the time of filing of nomination papers, the learned counsel contended that the respondent was in fact not employed in the SSGC but his assignment was only as management trainee, which was terminated in the year 1998 and despite order of Service Tribunal and Honourable Supreme Court he was never reinstated or absorbed as directed by the Supreme Court. According to the learned counsel, after passing of judgment by the Honourable Supreme Court a number of review applications were filed which remained pending and were decided recently. The learned counsel was of the view that the decision of the Honourable Supreme Court holding that the service appeal filed by the respondent against his termination order was maintainable, was for the limited purpose of section 2-A of the Service Tribunals Act, 1973 conferring jurisdiction on the Tribunal in respect of employees of the corporation etc., but it does not mean that the respondent was in service of the Company as provided under section 99(2)(e) of the Representation of the People Act, 1976. The respondent was a trainee at a lower status than of a probation, as such he could not be held to be in service of the Company. Elaborating his arguments in this respect the learned counsel referred to the appointment letter and contended that the respondent was being paid only "Stipend" which could not be termed as Salary". The learned counsel in support of his arguments heavily relied upon the judgments reported in PLJ 2000 SC 321 (sic) and PLD 2003 SC 74.
14. ' After abandoning Issues Nos.l and 3, the only question left for determination before this Tribunal is as to whether the respondent was in the service of SSGC or not within the meaning of clause (e) of subsection (2) of section 99 of the Representation of People Act, 1976 read with Article 8-D(2)(e) of General Election Order, 2002. The word "Service" has not been defined in the Act or Order. The term "service" has been discussed in 79 CJS p.1139 as under:-- Service or services. The word 'service' has a multiplicity and a variety of meanings and different significations. It is not a simple word with the simple meaning, leaving no room for construction, but rather it is broad term of description, which varies in meaning according to the sense in which it is used and the context in which it is found, and the sense in which it is used must be determined from the context. Thus, the Courts have found it impracticable to attempt a definition by which to test very case that may arise.
15. As a noun. As lexically defined, the word 'service' means the act of serving, the act or instance of helping or benefiting; the act of helping another; the deed of one who serves.
16. ' The word 'service' is further defined as meaning aid or assistance rendered; a benefit, advantage, or obligation conferred; that which promotes interest or happiness; useful office; avail. ' 'service' indicates a master-servant relationship, or it implies a submission to the will of another as to direction and control, and when employed to indicate these concepts it is defined as meaning the performance of labour for the benefit of another or at another's command; labour performed in the interest under the direction of others; any work done for the benefit of another; employment in the interest of a person or of a cause.
17. ' The word 'service' is also defined as meaning the being employed to serve another; the position of a servant; the state of being a servant; the occupation, condition, or status of a servant; the work of a servant; the work of a slave, hired man, or employee; the attendance of any inferior, hired helper, slave, etc. ' The term "salary" has been dealt with at p.553 of Corpus Juris Secundem Vol. 77 as under:-- "Salary. The word 'salary' is defined as meaning fixed compensation regularly paid, as by the year, quarter, month, or week; fixed compensation for regular work, or for continuous services over a period of time; periodic compensation for services; compensation for services rendered; per annum compensation of men in official and in some other positions, situations, or stations; legal compensation.
18. ' `salary' is also defined as meaning stipulated periodic recompense; recompense or consideration paid, or stipulated to be paid, to a person at regular intervals for services, usually a fixed sum to be paid by the year, half-year, or quarter; reward or consideration paid, or agreed to be paid, to a person at regular intervals, by the year, month, or week for services; reward or recompense for services rendered or performed; reward or compensation of services rendered or performed.
19. ' The word 'Stipend' is defined in Corpus Juris Secondem Vol. 82 at p.1069 as under:-- "Stipend.. A salary; settled pay; fixed or regular payment, Offering made to clergyman.
20. Stipend. The non 'stipend' has no legal significance, and its meaning is usually governed by the context and such other factors as shed light on the question. Where the context shows that it refers to something given as compensation for services, it means wages, salary, or the equivalent thereof, especially, salary to a clergyman, teacher, or public official, or pay of a soldier.
21. ' `Stipend' is also defined as meaning money payment; and it may mean alms, or pension or allowance.
22. ' As a noun, 'stipend' has been held synonymous with 'salary'.
23. ' As a verb, the word 'stipend' is defined as meaning to pay by settled stipend or wages; put upon or provide with a stipend.
24. ' Likewise the word "salary" and "Stipend" have been defined in Black's Law Dictionary as under:-- Salary. A reward or recompense for services performed. In a more limited sense, a fixed periodical compensation paid for services rendered. A stated compensation paid periodically as by the year, month, or other fixed period, in contrast to wages which are normally based on an hourly rate.
25. Stipend. A salary; settled pay; fixed or, regular payment.
26. ' Offering made to clergyman.
27. ' In order to find out the real import and meaning of the expression "service" one has to look into the scheme of the Act, 1976 and Order, 2002 and the purpose sought to be achieved by excluding the persons in service of any statutory body or any other body owned and controlled by the Government from being elected as a Member of National or Provincial Assembly. It appears as held in number of cases that if such persons were to participate in election process, the Assemblies would loose their independence, objectivity, capacity to E execute the duties and functions entrusted to them by the Constitution. In other words the idea is to keep the democratic process free from and independent of the executive control and influence as otherwise the executive through introduction, in the election institutions of its officers over which it can wield influence or control, will be able to check the freedom and independence of elected institutions. At the same time, inclusion of these officers in the Assembly is likely to result in lessening the control and superintendence of the executive depriving it of its authority which it must hold over its officers and servant in the public interest and for the smooth running of its function. Now according to the definition described above "service" means being employed to serve F another, the state of being a servant, the work of a slave, hired man or employee. To my mind the word "service" used in section 99(2)(e) and Article 8-D(2)(e), if we see the same in the light of import and scheme of the Act and Ordear as discussed above, means employment with the "body". Any person who has been employed by the body or company in its organization on certain terms and conditions would be deemed to be serving the company or body and the Act or Order does not differentiate between a temporary or permanent employee of the said organization and any person who is employee at the relevant time would be in the services of the company. The respondent No,1 was appointed as Management Trainee vide letter Exh.p.4 dated 3-10-1995. The words "offer you a training assignment for our temporary requirement of Sui Southern Gas Company Rehabilitation Expansion Program" referred in the said letter are very significant. Its mean the services of the respondent No,1 were required for the benefit of the company in order to meet the requirement of its expansion program and in lieu of such services he was offered a fixed amount in shape of stipend and according to the definition reproduced above "Stipend" is synonymous with salary, which has been defined in Black's Law Dictionary as reward or recompense for services performed. Thus, I find no force in the contentions of the learned counsel for the respondent No,1 that 'stipend" could not be taken as "salary" and hold that the appellant was receiving salary in lieu of services rendered by him to the Company and was in services of the Company.
28. ' The second question which is to be decided is whether at the time of filing of nomination papers and contesting elections the respondent No,1 was in service of the company or not as according to learned counsel after termination of the respondent vide letter, dated 7-12-1998, the respondent was never reinstated or absorbed in the Company despite clear direction of the Federal Service Tribunal and Honourable Supreme Court of Pakistan. I am afraid that the arguments of the learned counsel in this regard run contrary to the stand taken by the respondent in his statement given before this Tribunal on oath. The respondent No,1 when examined on oath, has categorically stated, "the termination was challenged by all the affected persons before the Federal Service Tribunal and in consequence of, order passed by the Federal Service Tribunal, our training assignment was restored". It may be mentioned here that the respondent No,1 has not stated in his statement as to on which date his assignment was restored, but the perusal of order of Service Tribunal shows that the same was passed on 13-10-2000, which means soon after the passing of the said order the respondent was reinstated on his job and this fact is also borne out from the "statements of account" according to which the Company was remitting salary in the account of the respondent and he was withdrawing the same on different occasions through cheques. The resignation (Exh.P.3) also shows that till the date of resignation the respondent No,1 was in the employment of the Company. Although; the date on which this letter was sent by the respondent is not ascertainable from the contents of the letter but the number and date mentioned on receipt stamp show that the same was received by the Company on 26-11-2002. According to the contents of Exh.P.3 the respondent No,1 requested for acceptance of his resignation with immediate effect, which means on the date when the resignation was tendered he was serving in the Company. The contents of Exh.P.3 further reveals that the respondent was absorbed in his discipline. The respondent No,1 also admitted the above facts in his statement saying "after implementation of the judgment of Honourable Supreme Court regarding absorption, I could not continue, as such; I resigned".
29. ' Furthermore, after the judgment of the Honourable Supreme Court delivered on 28-3-2001 directing the Company to absorb the respondent, he would be deemed to be a regular employee of the Company in the eye of law, although according to the respondent the order of the Honourable apex Court was not implemented and he was constrained to file Constitutional petition before the Sindh High Court for implementation of the judgment of Supreme Court. Mere -fact the judgment of Honourable Supreme Court was not enforced, makes no difference because as a result of it he became entitled to receive the benefits of a regular employee and pursuant to that he had actually been absorbed.
30. ' From the above discussion it could be safely concluded that the respondent No,1 was in the service of the Company on the date of filing of nomination papers as well as on 10th October, 2002, when general elections were held in the country.
31. ' The next question which needs to be resolved is what would be the effect of acceptance of resignation retrospectively. The respondent has taken stand that his resignation was accepted with effect from 7-12-1998 and he had also repaid the amount of stipend received by him from the Company. In this regard reliance has been placed on letter of the company Exh.P.10, reproduced hereinbelow:-- ' "Ref. No . GM(HR)TA-2551/2003 25th March, 2003 ' Mr. Muhammad Naseem son of Abdul Star, Mula Slam Road, Pashtoonabad, Quetta.
32. ' Dear Sir, ' This is further to our letter dated 7th December, 1998, regarding termination of your Training Assignment.
33. ' On your request dated 25th March, 2003, we hereby confirm that your Training stands terminated with effect from 7-12-1998 and after that SSGCL has no concern with you.
34. ' Yours faithfully ' For Sui Southern Gas Company Ltd. (Sd.) Syed Hassan Nawab Senior General Manager, (Management Services)."
35. It is evident from the above reproduced contents that in fact resign of the respondent was not accepted with retrospective effect, but his services as management trainee were terminated with effect from 7-12-1998.
36. ' It may be seen that this letter was issued on 25-3-2003 after the filing of the election petition, while tendering resignation vide letter Exh.P.3 the respondent No,1 requested for acceptance of the resignation with immediate effect. In response whereof on 30-12-2002 the Company vide letter Exh.P.2 informed the respondent that he was liable to pay Rs,3,06,847 on account of amount paid inadvertently by the Company for the period from 1-4-1998 to 27-3-2001 and Rs,35,502 recoverable against notice period of three months. It also shows that till 30-12-2002 resignation was not accepted by the company. The learned counsel argued that the company has authority to accept the resignation with retrospective effect. Be that as it may, the fact remains that on the day of filing of nomination papers and contesting election the respondent No,1 was disqualified from being elected or becoming Member of Parliament or Provincial Assembly as on the said dates he was in the service of the company controlled and owned by the Government. Coming to this conclusion, I am also fortified by the observations of the Honourable Supreme Court made in the judgment reported in 1984 SCMR 1578 reproduced hereinbelow:--- ' "Before us the main contention urged on petitioner's behalf was that since according to his service record the petitioner had been removed from service W.e.f, 29-7-1981 (i.e, from a date prior to the election day) his disqualification therefore, stood removed retrospectively and as such his election was valid. This contention is wholly misconceived and overlooks the fact that on the day of election, i.e, on 28-9-1983, no order of his dismissal or removal had yet been passed by the Government.
37. Obviously, therefore, on that date he was in Government service. The result is that irrespective of the fact as to whether or not the Government was legally empowered to remove him from service with retrospective, effect, he was disqualified from contesting election on the date when it is actually held. As such his election was rightly held by the Election Tribunal to be void."
38. The petitioner in Election Petition No,3 of 2003 also claims to be declared as returned candidate, if the election of respondent No, I is declared void, having secured next highest votes in the election.
39. The law is very settled on the issue. The candidate who has secured second highest votes could be declared successful in place of returned candidate provided that the disqualification is so notorious, that can be presumed to have been known to the voters, who had cast their votes in his favour, in such event the doctrine of "thrown away votes" would be attracted and it would be presumed that voters had deliberately thrown away their votes. But the factum of notoriety must be founded on some positive and definite fact existing and established at the time of casting votes. In the judgment reported in PLD 2003 SC 268 the Honourable apex Court while dealing with the proposition observed as under:-- ' "S. 14--- Disqualification of candidate---Notoriety of disqualification of the returned candidate at the time of polling must be established on record through positive evidence-: Where the factum of disqualification was not notorious at the time of polling, the votes secured by the successful candidate could not be thrown away and the candidate securing next highest votes could not be declared elected."
40. ' In another judgment reported in PLD 1986 SC 698 the Honourable Supreme Court held as under:- ' "This Court has, in a series of cases, consistently held that where an Election Tribunal finds that a candidate who secured a majority of votes was disqualified, but the fact of his disqualification was not notorious at the time of polling so that voters could have taken notice of this disqualification; the votes secured by such a candidate cannot simply be thrown away so that the candidate securing the next highest number of votes declared elected in his place. According to the decision of this Court in such a situation the election as a whole must be set aside and a re-election ordered. See Rashid Ahmad Rahmani v. .Mirza Barkat Ali and others PLD 1968 SC 301, Lal Muhammad v. Muhammad Usman and others 1975 SCMR 409 and Syed Saeed Hassan v. Pyar Ali and others PLD 1976 SC 6. The dictum in these cases is fully attracted in the facts and circumstances of this case and therefore, the Tribunal was wrong in basing itself on clause (c) of subsection (1) of section 67 ' The result is that this appeal succeeds to the extent that the decision of the Judge/Election Tribunal that the appellant was disqualified from contesting the election under section 10(2)(8) is correct and the declaration to the effect that this election is void, is upheld. However, the other part of the declaration of the Tribunal that respondent No,1 stands duly elected in place of the appellant is found to be erroneous and is, therefore, set aside."
41. ' Likewise in the judgment reported in 1975 SCMR 409 it was laid down:-- ' "Declaration of candidate getting next highest number of votes as elected---Disqualification of successful candidate not notorious---Votes polled in favour of successful candidate---Not to be thrown away by giving seat to candidate with next highest number of votes."
42. ' In the instant case there is no evidence or material on record {{PAGE CUT}} from which it could be safely inferred th respondent was so notorious, that it was I of the Constituency. The fact that even about such disqualification of the respoi any objection in this regard at the tir disqualification of the respondent No,1 the doctrine of "thrown away votes" and the IA-cannot be declared to be elected in place of respondent secured second highest votes. Upshot of the above discussion is that the respondent Muhammad Naseem was disqualified to contest election at the time of filing nomination papers being in service of Sui Southern Gas Company - a Corporate Body owned and controlled by the Federal Government. Consequently, the petitions are accepted and the election with regard to constituency PB-12 Killa Abdullah-II as whole is declared void. The seat thus having become vacant should be filled in through bye-election. Parties are left to bear their own costs keeping in view the technical nature of the case. S. . {{PAGE CUT}}