PLJ 2012 SC 174
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ., Amir Hani Muslim & Ghulam Rabbani, JJ.
Syed TAHIR ABBAS SHAH--Petitioner
versus
OGDCL through M.D. Head Office, Islamabad and another--Respondents
C.P. No. 904 of 2011, decided on 19.8.2011.
(On appeal from the judgment dated 19.4.2011 in W.P. No. 3792/2010 passed by the Islamabad High Court, Islamabad).
Constitution of Pakistan, 1973--
----Arts. 199 & 185(3)--Redressal of grievances remedy of filing of constitutional petition before High Court was available--Jurisdiction of Service Tribunal--Petition filed u/Art. 199 of Constitution was dismissed for want of jurisdiction with observation that remedy was available before FST--Challenge to--Leave to appeal--Validity--Observation made in the instant judgment was also based on earlier decided case argument so raised for respondent was not sustainable--Conclusion drawn by High Court directing petitioner to seek remedy before service tribunal was not sustainable--Case was remanded back to Islamabad High Court for decision on merits in accordance with law. [Pp. 175 & 178] A & B
PLD 2007 SC 681, 2007 PLC CS 1332, PLD 2006 SC 602, 2010 SCMR 1484, PLD 2010 SC 676 & PLD 2011 SC 132, rel.
Mr. Abdul Rehman Siddiqui, ASC and Mr. Arshad Ali Chaudhry, AOR for Petitioner.
Mr. Khalil-ur-Rehman Abbasi, ASC and Mr. M.S. Khattak, AOR for Respondents.
Date of hearing: 19.8.2011.
Judgment
Iftikhar Muhammad Chaudhry, CJ.--Petitioner has sought leave to appeal against the judgment dated 19.4.2011 passed by the Islamabad High Court, Islamabad, whereby his petition instituted under Article 199 of the Constitution has been dismissed for want of jurisdiction with the observation that remedy is available to the petitioner before the Federal Service Tribunal. Foundation laid for this argument is based on the judgment of this Court in the case of Muhammad Idrees v. Agricultural Development Bank of Pakistan others (PLD 2007 SC 681) (2007 PLC (CS) 1332). It is to be noted that cited judgment was handed down after the judgment of this Court in case of Muhammad Mubeen-us-Salam v. Federation of Pakistan through Secretary, Ministry of Defence & others (PLD 2006 SC 602). Both these judgments relate to interpretation of Section 2-A of the Service Tribunals Act, 1973 according to which the employees of a Corporation were deemed to be civil servants, however, while interpreting Section 2-A of the Service Tribunals Act, 1973 it was declared that the persons who were governed by statutory rules they could approach the Service Tribunal. Subsequently, Section 2-A was repealed. In the meanwhile in respect of the employees of Corporation this Court in the case of Executive Council Allama Iqbal Open University v. M. Tufail Hashmi (2010 SCMR 1484) settled down that now the employees who are governed by the statutory rules shall have remedy before the High Court, if they are not falling within the definition of civil servants in terms of the Civil Servants Act, 1973. It may be noted that prior to it, same view was adopted in Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman & others (PLD 2010 SC 676) relevant para wherefrom is reproduced hereinbelow:
"19. However, this question needs no further discussion in view of the fact that we are not of the opinion that if a corporation is discharging its functions in connection with the affairs of the Federation, the aggrieved persons can approach the High Court by invoking its constitutional jurisdiction, as observed hereinabove. But as far as the cases of the employees, regarding their individual grievances, are concerned, they are to be decided on their own merits namely that if any adverse action has been taken by the employer in violation of the statutory rules, only then such action should be amenable to the writ jurisdiction. However, if such action has no backing of the statutory rules, then the principle of Master and Servant would be applicable and such employees have to seek remedy permissible before the Court of competent jurisdiction."
In the case of Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir and others (PLD 2011 SC 132) it was declared as under:
"24. However, this Court, in the case of Principal Cadet Collage Kohat v. Muhammad Shoaib Qureshi (PLD 1984 SC 170), while dealing with the question, as to whether in absence of any breach of statutory provision the employees of a corporation can maintain an action for reinstatement, held that where the conditions of service of an employee of a statutory body were governed by statutory rules, any action prejudicial taken against him in derogation or in violation of the said rules could be set aside by a writ petition; however, where his terms and conditions were not governed by statutory rules but only by regulations, instructions or directions, which the institution or body, in which he was employed, had issued for its internal use, any violation thereof would not, normally, be enforced through a writ petition. Recently, this Court in Tanweer-ur-Rehman's case (supra), while dealing with the issue of invoking of jurisdiction of the High Court under Article 199 of the Constitution by the employees of the PIAC, held that although the appellant-Corporation was performing functions in connection with the affairs of the Federation, but since the services of the respondent-employees were governed by the contracts executed by them with the employer, and not by the statutory rules framed under Section 30 of the Pakistan International Airlines Corporation Act, 1956 with the prior approval of the Federal Government, therefore, they would be governed by the principle of `Master and Servant'. On the question whether in absence of any breach of statutory provision, the employees of appellant-Corporation could maintain an action for reinstatement etc., it was observed that the said question needed no further discussion in view of the fact that this Court was not of the opinion that if a Corporation was performing its functions in connection with the affairs of the Federation, the aggrieved persons could approach the High Court by invoking its constitutional jurisdiction. But as far as the cases of the employees regarding their individual grievances were concerned, it was held that they were to be decided on their own merits, namely, if any adverse action was taken by the employer in violation of the statutory rules, only then such action would be amenable to the writ jurisdiction. Therefore, in absence of statutory rules, the principle of `Master and Servant' would be applicable and such employees would be entitled to seek remedy permissible before the Court of competent jurisdiction. Similarly, in M. Tufail Hashmi (supra), after discussing the aforesaid two judgments in detail, it was held that the employees of those organizations, which were performing functions in connection with the affairs of Federation, were eligible to approach the High Court under Article 199 of the Constitution if their services were governed by statutory rules. It was further held that since the employees of AIOU, SME Bank and Pakistan Steel Mills, who approached the Service Tribunal for redressal of their grievances, were not enjoying the protection of statutory rules, therefore, the Service Tribunal had no jurisdiction to adjudicate upon such matters and they would be governed by the principle of `Master and Servant'.
Now in respect of the case of the employees of the OGDC vis-a-vis availability of forum to them for redressal of their grievance, this Court in the case of M.D., O.G.D.C.L & another v. Saleem Ataf & others (CP Nos. 22405/2010, etc.) has observed that as they are governed by the statutory rules, therefore, for redressal of their grievances remedy of filing of Constitutional Petition before the High Court is available to them and Service Tribunal has no jurisdiction. Following para from the said judgment for the sake of convenience is reproduced, hereinbelow:
"Thus according to the law, as it stands, the remedy of the employees of O.G.D.C.L. for the redressal of their grievances is by filing of Constitutional Petitions before the High Court. The Service Tribunal had, therefore, no jurisdiction to entertain the appeals filed by them. Consequently, Civil Petitions No. 2405, 2409 and 2410 of 2010 are converted into appeals and allowed. The impugned judgment of the Tribunal is set aside on the ground that the appeals before it were not maintainable. The said appeals therefore stand dismissed. The respondents are at liberty to take recourse to the remedy available to them under the law. Accordingly, Civil Petitions No. 2617 and 2618 of 2010 are dismissed."
Learned counsel for the respondents, however, stated that in the case of CPLA No. 2422 of 2010 (Ahmad Hussain v. The Oil and Gas Development Company, Islamabad, etc.) this Court has held that remedy of the employees of the OGDCL is before the Service Tribunal. This judgment was announced on 25.7.2011 and unfortunately proper assistance was not provided as the cases of Muhammad Idrees (supra), Muhammad Mubeen-us-Salam (supra), Pakistan International Airlines (supra), Allama Iqbal Open University (supra) and the M.D. O.G.D.C.L. (supra) were not cited. Beside it learned Bench seized of the matter has not determined the jurisdiction and on setting-aside the adverse order challenged before it passed by the Service Tribunal, has remanded the case to the same forum. The settled principles of law and the ratio-decidendi in the case of OGDCL and others ibid, shall prevail coupled with the observation made in the instant judgment which is also based on the earlier decided cases noted hereinbefore, therefore, argument so raised by the learned counsel for the respondents is not sustainable. Thus, for the foregoing reasons we are of the opinion that conclusion drawn by the learned High Court directing the petitioner to seek remedy before the Service Tribunal is not sustainable. As a consequence whereof the impugned judgment is set-aside, the case is remanded back to the Islamabad High Court for decision on merits in accordance with law. Petition is converted into appeal and allowed leaving the parties to bear their own costs.
(R.A.) Case remanded
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ., Amir Hani Muslim & Ghulam Rabbani, JJ.
Syed TAHIR ABBAS SHAH--Petitioner
versus
OGDCL through M.D. Head Office, Islamabad and another--Respondents
C.P. No. 904 of 2011, decided on 19.8.2011.
(On appeal from the judgment dated 19.4.2011 in W.P. No. 3792/2010 passed by the Islamabad High Court, Islamabad).
Constitution of Pakistan, 1973--
----Arts. 199 & 185(3)--Redressal of grievances remedy of filing of constitutional petition before High Court was available--Jurisdiction of Service Tribunal--Petition filed u/Art. 199 of Constitution was dismissed for want of jurisdiction with observation that remedy was available before FST--Challenge to--Leave to appeal--Validity--Observation made in the instant judgment was also based on earlier decided case argument so raised for respondent was not sustainable--Conclusion drawn by High Court directing petitioner to seek remedy before service tribunal was not sustainable--Case was remanded back to Islamabad High Court for decision on merits in accordance with law. [Pp. 175 & 178] A & B
PLD 2007 SC 681, 2007 PLC CS 1332, PLD 2006 SC 602, 2010 SCMR 1484, PLD 2010 SC 676 & PLD 2011 SC 132, rel.
Mr. Abdul Rehman Siddiqui, ASC and Mr. Arshad Ali Chaudhry, AOR for Petitioner.
Mr. Khalil-ur-Rehman Abbasi, ASC and Mr. M.S. Khattak, AOR for Respondents.
Date of hearing: 19.8.2011.
Judgment
Iftikhar Muhammad Chaudhry, CJ.--Petitioner has sought leave to appeal against the judgment dated 19.4.2011 passed by the Islamabad High Court, Islamabad, whereby his petition instituted under Article 199 of the Constitution has been dismissed for want of jurisdiction with the observation that remedy is available to the petitioner before the Federal Service Tribunal. Foundation laid for this argument is based on the judgment of this Court in the case of Muhammad Idrees v. Agricultural Development Bank of Pakistan others (PLD 2007 SC 681) (2007 PLC (CS) 1332). It is to be noted that cited judgment was handed down after the judgment of this Court in case of Muhammad Mubeen-us-Salam v. Federation of Pakistan through Secretary, Ministry of Defence & others (PLD 2006 SC 602). Both these judgments relate to interpretation of Section 2-A of the Service Tribunals Act, 1973 according to which the employees of a Corporation were deemed to be civil servants, however, while interpreting Section 2-A of the Service Tribunals Act, 1973 it was declared that the persons who were governed by statutory rules they could approach the Service Tribunal. Subsequently, Section 2-A was repealed. In the meanwhile in respect of the employees of Corporation this Court in the case of Executive Council Allama Iqbal Open University v. M. Tufail Hashmi (2010 SCMR 1484) settled down that now the employees who are governed by the statutory rules shall have remedy before the High Court, if they are not falling within the definition of civil servants in terms of the Civil Servants Act, 1973. It may be noted that prior to it, same view was adopted in Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman & others (PLD 2010 SC 676) relevant para wherefrom is reproduced hereinbelow:
"19. However, this question needs no further discussion in view of the fact that we are not of the opinion that if a corporation is discharging its functions in connection with the affairs of the Federation, the aggrieved persons can approach the High Court by invoking its constitutional jurisdiction, as observed hereinabove. But as far as the cases of the employees, regarding their individual grievances, are concerned, they are to be decided on their own merits namely that if any adverse action has been taken by the employer in violation of the statutory rules, only then such action should be amenable to the writ jurisdiction. However, if such action has no backing of the statutory rules, then the principle of Master and Servant would be applicable and such employees have to seek remedy permissible before the Court of competent jurisdiction."
In the case of Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir and others (PLD 2011 SC 132) it was declared as under:
"24. However, this Court, in the case of Principal Cadet Collage Kohat v. Muhammad Shoaib Qureshi (PLD 1984 SC 170), while dealing with the question, as to whether in absence of any breach of statutory provision the employees of a corporation can maintain an action for reinstatement, held that where the conditions of service of an employee of a statutory body were governed by statutory rules, any action prejudicial taken against him in derogation or in violation of the said rules could be set aside by a writ petition; however, where his terms and conditions were not governed by statutory rules but only by regulations, instructions or directions, which the institution or body, in which he was employed, had issued for its internal use, any violation thereof would not, normally, be enforced through a writ petition. Recently, this Court in Tanweer-ur-Rehman's case (supra), while dealing with the issue of invoking of jurisdiction of the High Court under Article 199 of the Constitution by the employees of the PIAC, held that although the appellant-Corporation was performing functions in connection with the affairs of the Federation, but since the services of the respondent-employees were governed by the contracts executed by them with the employer, and not by the statutory rules framed under Section 30 of the Pakistan International Airlines Corporation Act, 1956 with the prior approval of the Federal Government, therefore, they would be governed by the principle of `Master and Servant'. On the question whether in absence of any breach of statutory provision, the employees of appellant-Corporation could maintain an action for reinstatement etc., it was observed that the said question needed no further discussion in view of the fact that this Court was not of the opinion that if a Corporation was performing its functions in connection with the affairs of the Federation, the aggrieved persons could approach the High Court by invoking its constitutional jurisdiction. But as far as the cases of the employees regarding their individual grievances were concerned, it was held that they were to be decided on their own merits, namely, if any adverse action was taken by the employer in violation of the statutory rules, only then such action would be amenable to the writ jurisdiction. Therefore, in absence of statutory rules, the principle of `Master and Servant' would be applicable and such employees would be entitled to seek remedy permissible before the Court of competent jurisdiction. Similarly, in M. Tufail Hashmi (supra), after discussing the aforesaid two judgments in detail, it was held that the employees of those organizations, which were performing functions in connection with the affairs of Federation, were eligible to approach the High Court under Article 199 of the Constitution if their services were governed by statutory rules. It was further held that since the employees of AIOU, SME Bank and Pakistan Steel Mills, who approached the Service Tribunal for redressal of their grievances, were not enjoying the protection of statutory rules, therefore, the Service Tribunal had no jurisdiction to adjudicate upon such matters and they would be governed by the principle of `Master and Servant'.
Now in respect of the case of the employees of the OGDC vis-a-vis availability of forum to them for redressal of their grievance, this Court in the case of M.D., O.G.D.C.L & another v. Saleem Ataf & others (CP Nos. 22405/2010, etc.) has observed that as they are governed by the statutory rules, therefore, for redressal of their grievances remedy of filing of Constitutional Petition before the High Court is available to them and Service Tribunal has no jurisdiction. Following para from the said judgment for the sake of convenience is reproduced, hereinbelow:
"Thus according to the law, as it stands, the remedy of the employees of O.G.D.C.L. for the redressal of their grievances is by filing of Constitutional Petitions before the High Court. The Service Tribunal had, therefore, no jurisdiction to entertain the appeals filed by them. Consequently, Civil Petitions No. 2405, 2409 and 2410 of 2010 are converted into appeals and allowed. The impugned judgment of the Tribunal is set aside on the ground that the appeals before it were not maintainable. The said appeals therefore stand dismissed. The respondents are at liberty to take recourse to the remedy available to them under the law. Accordingly, Civil Petitions No. 2617 and 2618 of 2010 are dismissed."
Learned counsel for the respondents, however, stated that in the case of CPLA No. 2422 of 2010 (Ahmad Hussain v. The Oil and Gas Development Company, Islamabad, etc.) this Court has held that remedy of the employees of the OGDCL is before the Service Tribunal. This judgment was announced on 25.7.2011 and unfortunately proper assistance was not provided as the cases of Muhammad Idrees (supra), Muhammad Mubeen-us-Salam (supra), Pakistan International Airlines (supra), Allama Iqbal Open University (supra) and the M.D. O.G.D.C.L. (supra) were not cited. Beside it learned Bench seized of the matter has not determined the jurisdiction and on setting-aside the adverse order challenged before it passed by the Service Tribunal, has remanded the case to the same forum. The settled principles of law and the ratio-decidendi in the case of OGDCL and others ibid, shall prevail coupled with the observation made in the instant judgment which is also based on the earlier decided cases noted hereinbefore, therefore, argument so raised by the learned counsel for the respondents is not sustainable. Thus, for the foregoing reasons we are of the opinion that conclusion drawn by the learned High Court directing the petitioner to seek remedy before the Service Tribunal is not sustainable. As a consequence whereof the impugned judgment is set-aside, the case is remanded back to the Islamabad High Court for decision on merits in accordance with law. Petition is converted into appeal and allowed leaving the parties to bear their own costs.
(R.A.) Case remanded
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