PLJ 2015 Islamabad
ABDUL
QAYYUM--Petitioner
versus
W.P. No.
1975 of 2012, decided on 27.2.2015.
----Duty of care is legal duty--By now it is well settled law that
there is a general duty of care between certain relationships i.e. employers
and employees, teachers and students, lawyers and clients, motorists and road
users, doctors and patients. [P.
207] A
----Power of chairman to make appointment--Disciplinary
action--Such statutory obligation includes an implied duty of resolving
grievances and disputes arising from determined term and conditions fairly,
justly and in a manner so as to ensure inexpensive and expeditious justice. [P. 208] B
----Duty of care owed by employer towards an
employee--Applicability in Pakistan--Validity--It is a clear duty of the
employer to ensure the safety and welfare of its employees--It is mandatory for
the employers to take all reasonable steps for keeping employees protected
against any foreseeable risk or harm--Such duty of care essentially includes
safeguarding rights of employees relating to their terms and conditions of
service. [P. 208] C
----Arts. 9 & 199--Constitutional petition--Employer
is in breach of duty of care it was to employees--Mechanisms for redressing
disputes--It is not simply a question of breach of such duty, but omission
gives rise to a flagrant violation and denial of right of access to justice,
which has been held to be inextricably intertwined with fundamental rights
guaranteed under Constitution, particularly right to life under Art. 9 of Constitution. [P.
209] D
----Art. 199--Constitutional Petition--Jurisdiction
of High Court--Expensive nature of powers and jurisdiction--Rights of employees
in case of failure to perform--Question of--Whether resorting to extraordinary
jurisdiction of High Court is an effective and inexpensive course for employees
for determination of rights relating to terms and conditions of
service--Jurisdiction, inter alia,
cannot be exercised to resolve disputed questions of fact, while policy matters
and enforcement of contractual terms and rights are outside its scope--It is an
extraordinary jurisdiction to be exercised in grave cases, High Court
structures its discretion in taking up petitions for hearing, by giving
priority to cases requiring urgent attention--Employees of organizations
controlled by respective Governments would be resorting to invoking extraordinary
constitutional jurisdiction under Art. 199 in such a large number, nor could
they have contemplated that in breach of duty of care and in violation of
fundamental rights, employers, whether Federal Government or respective
statutory organizations controlled by it, would deny to its employees an
adequate remedy in law.
[Pp. 209 & 2010] E & F
----Art.
199--Constitutional petition--Adequate remedy--Impartial and effective for
redressing disputes--Terms and conditions of service--Jurisdiction--Notwithstanding
extraordinary nature of jurisdiction under Art. 199, employees, having no other
adequate remedy and, therefore, compelled to invoke jurisdiction of High Court
are faced with insurmountable trappings inherent in High Court jurisdiction.
[P. 210] G
----Arts. 9, 10-A, 25 & 199--Employees in lower grade--Not
possible to approach High Court--Miscarriage of justice--Extraordinary
jurisdiction of High Court under Art. 199 of Constitution is obviously neither
an adequate remedy, nor a forum for providing inexpensive and expeditious
justice in case of employees for determination of their rights arising from and
out of terms and conditions of service. [P.
210] H
----Scope of--Right of access to justice in context of these
employees and effect of its denial--It is settled law that right of access to
justice is fundamental to, and an integral part of rule of law. [P. 212] I & J
----Inviolable right--Law relating to right of access to justice
is unequivocally well settled--It is an inviolable right inextricably linked,
or in other words an integral part of right to life guaranteed under Art. 9 of Constitution. [Pp.
214 & 215] K
----Art.
199--Capital Development Authority Ordinance, 1960, S. 4--Constitutional petition--Employees
of CDA--Terms and conditions of services--Not civil servants--Employees who are
neither civil servant nor amenable to jurisdiction of FST no adequate remedy
and were compelled to invoke extraordinary jurisdiction of High Court--Validity--Ensuring
right of access to justice through an independent and impartial tribunal for
determination or enforcement of rights relating to or emanating from terms and
conditions of service of such persons employed in organizations controlled by state
and governments, is a mandatory obligation and onerous duty imposed under
Constitution and law--Tribunal having judicial powers is breach of duty of care
of employer towards being exposed to claims of damages for breach of duty of
care, both Federal Government and respective entities providing a forum or tribunal
having judicial powers is employees and a violation of their fundamental
rights--High Court had directed Federal Government, including all organizations
and entities, to satisfy High Court as to why an order may not be passed
directing them for taking appropriate measures in providing independent,
impartial and inexpensive forums/tribunals to their respective employees--If
management had provided an effective, independent and impartial dispute
resolution mechanism earlier, there would have been no need for such a large
number of its employees to have approached High Court by invoking jurisdiction under Art. 199 of Constitution--Volume
of grievance petitions invoking jurisdiction of High Court under Art. 199 of
Constitution speaks volumes for depriving bonafide aggrieved employees of
an effective forum to redress their grievances--When organization fails to
provide inexpensive, independent, and effective forums for dispute resolution,
it gives rise to feelings of distrust and frustration amongst employees--It is
prime duty of employer to provide its employees an inexpensive and effective
forum to resolve their disputes--Decision of CDA to establish and provide for
an independent, inexpensive and impartial forum to its employees for redressing
of grievances relating to their terms and conditions of service is indeed a
step in right direction, for which credit goes to present management.
[Pp. 216, 217 & 218] L, M, N, O,
P & Q
M/s.
Muhammad Ramzan Khan, Abdul Rahim
Bhatti, Muhammad Umair Baloch, Abdus Salam Qureshi, Muhammad Shoaib Shaheen, Sana Ullah Zahid, Ch. Tanweer Akhtar, Zill-e-Huma, Malik Umer,
Syed Kazim, Muhammad Fareed Ch, Ch. Abdul Ghafoor Qamar, Farzana Sultana Baig, Ch. Fayyaz Ahmed Pandana, Mohtisim Sattar Ch., Ahmed Nawaz Bhatti, Ch. Saghir Ahmad, Tariq Mehmood, G. Farooq Awan, Khawar Amir Bukhari, Saeed Yousaf Khan, Ch. Asghar, Tariq Mahmood, Muhammad Shabbir Ahmed Nasir, G.M. Chaudhry, Ahmad Awais, Misbah Ullah
Khan, Kashifa Awan,
Muhammad Shabbir Ahmed, Riaz
Hanif Rahi, Hafiz Arfat Ahmad Ch, Amir Abdullah Abbasi,
Syed Atif Hussain Naqvi, Riasat Ali Azad, Ali Murad Baloch, Raja Tariq Mehmood, Niaz Ullah Khan Niazi and Akhtar Hussan Awan, Advocates for Petitioners
in their respective petitions.
Ch. Haseeb, M. Khalid Zaman,
Mrs. Misbah Gulnar Sharif,
Muhammad Nazir Jawad, Kashifa Niaz Awan,
Ch. Abdul Khaliq Thind,
Muhammad Anwar Dar, Hifz-ur-Rehman, Advocates for
Respondents in their respective petitions.
Raja Amir Abbas, Standing Counsel.
Mr. Maroof
Afzal, Chairman of the CDA.
Date of hearing: 27.2.2015.
Order
Through this consolidated judgment the instant writ petition
along with the petitions listed in Schedule-A hereto, are being disposed of.
2. The petitioners, in
all the listed petitions, are employees of the Capital Development Authority
(hereinafter referred to as the “C.D.A”). The grievances of the petitioners
relate to the terms and conditions of their service. They are not civil
servants and, therefore, not amenable to the jurisdiction, of the Federal
Service Tribunal. They fall within the category of employees, who are employed
in an organization controlled by the Federal Government. They are entitled to
invoke the extraordinary constitutional jurisdiction of a High Court under
Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973
(hereinafter referred to as the “Constitution”) as they fall in one of the
categories declared in “Pakistan Defence Officers Housing Authority and others versus Lt Col
Syed Jawaid Ahmed and
others”, 2013 SCMR 1707, to be amenable. Most of the petitions are pending
in this Court since years, but could not be taken up for various reasons. The
dominant factors for the delay in deciding the petitions are the phenomenal
increase in litigation by employees of various organizations controlled by the
Federal Government, failure on the part of the respondents to file comments
within a reasonable time and above all, priority given to other cases requiring
urgent attention while exercising the extraordinary jurisdiction by this Court.
The increase in litigation by employees of various organizations has inevitably
clogged the Courts, causing delays in dispensation of justice, not only for the
employees but for other bona fide litigants as well. Both the State and
the respective organizations/employers have failed to provide effective,
inexpensive and impartial forums for this category of employees to redress their
grievances. The employees, who are neither civil servants nor amenable to the
jurisdiction of the Federal Service Tribunal are, therefore, left with no
adequate remedy and are compelled to invoke the extraordinary jurisdiction of
the High Courts, provided they are able to satisfy the test laid down for
maintainability of their petitions.
3. This exodus of
petitions instituted on a daily basis and thousands of other similar petitions
related to service matters that are already pending, is indeed a poor reflection
on the management of the respective organizations. Satisfaction of the
employees and resolving their grievances without the need for them to approach
the Courts manifests good governance and an efficient and caring employer. It
is axiomatic that disputes or conflicts between employees and employers arise
in every organization, but if left unresolved, the fundamental rights of the
employees as well as the general public are violated. Unresolved disputes give
rise to resentment, frustration and stress amongst the employees on the one hand, and consequently adversely affects the productivity
and performance of state owned and controlled organizations on the other.
Nevertheless, the most important consequence of depriving the employees of an
effective and inexpensive forum for determination of their rights, arising out
of the terms and conditions of service, is denial of the right to access to
justice. We, therefore, need to examine, whether the employers owe a duty
towards the employees in providing an effective and inexpensive forum or
Tribunal, and if there is such a duty then its effect on the rights of the
employees in case of failure to perform the same. It is also important to
examine whether resorting to the extraordinary jurisdiction of this Court under
Article 199 of the Constitution is an effective and inexpensive course for the
employees for determination of their rights relating to the terms and
conditions of service. In the event that there is a duty imposed on the
employer and the extraordinary jurisdiction of this Court is not an adequate
remedy for the employees, then what is the obligation of the State or the
respective organizations?
4. At the very outset,
it is perunent to examine the nature of relationship
of an employer with its employee and whether the former owes a duty of care?
The law regarding the definition of a duty of care has made significant
progress since the time of Lord Atkin's formulation
of the 'neighbour principle' in the celebrated
judgment of the House of Lords in “Donoghue versus Stevenson” (1932) A.C 562 to the 'Anns test in “Anns versus London Borough of Merton” (1977) 2 ALL ER
492, and ultimately the law based on the statement of Lord Bridge's speech in “Caparo Industries
PLC versus Dickman and others”, (1990) 1 ALL ER
568. The current law is based on a threefold test, firstly, whether the harm
was reasonably foreseeable, secondly, whether there exists a relationship of
proximity and lastly, whether it would be just, fair and reasonable in the
circumstances for a duty of care to be imposed. The satisfaction of this three
stage test determines if there is a duty of care between the parties. This duty
of care is a legal duty. By now it is well settled law that there is a general
duty of care between certain relationships i,e employers and employees, teachers and students,
lawyers and clients, motorists and road users, doctors and patients etc. As far
as duty of care in the case of an employer and employee relationship is
concerned, reference may be made to the judgments of the House of Lords in “Fairchild etc versus Glenhaven
Funeral Services Ltd and others”, (2002) 3 ALL ER 305, and “John Edward Walker versus Northumberland
County Council” (1994) EWHC QB 2. The concept of duty of care belongs to
the realm of the law of tort, which is also recognized by our Courts. The
Supreme Court has consistently observed and desired the need for promoting the
law of tort and reference in this regard may be made to “Punjab Road Transport Corporation vs. Zahida
Afzal etc”, 2006 SCMR 207 & “Islamic Republic of Pakistan Pakistan
5. There is also an
implied statutory duty of care under the legislative enactment creating an
organization such as the Capital Development Authority. CDA is established under
Section 4 of the Capital Development Authority Ordinance, 1960 (hereinafter
referred to as the “Ordinance”). The constitution of the Board is provided
under Section 6. Section 37 confers the power on the Authority to appoint such
officers, servants, experts or consultants as it may consider necessary for the
performance of its functions 'on such terms and conditions as it may deem fit'.
The power of the Chairman to make such appointments is provided under Section 37(2).
Section 38 further confers the power on the Authority to lay down procedure for
the appointment of its officers and servants, and the terms and conditions of
their service. The Authority is competent to take disciplinary action against
them. The legislature obviously intended that the terms and conditions once
determined pursuant to Section 37 or the procedure laid down under Section 38
shall be upheld and strictly followed. This statutory obligation includes an
implied duty of resolving the grievances and disputes arising from the determined
term and conditions fairly, justly and in a manner so as to ensure inexpensive
and expeditious justice. It is for this reason that the legislature has vested
the authority and power to make rules and regulations under Sections 50 and 51
respectively. Thus there is a statutory duty as well to ensure a mechanism for
terminating disputes and grievances.
6. The duty of care owed
by an employer towards an employee is, therefore, recognized and applicable in Pakistan
7. The jurisdiction of
this Court under Article 199 of the Constitution is of extraordinary nature.
The Constitution has conferred the power on the High Courts for enforcement of
fundamental rights. The power includes issuance of orders, directions or writs
of five kinds, namely habeas corpus, mandamus, certiorari, prohibition and quo warranto. The jurisdiction being discretionary and extraordinary, is exercised in grave cases rather than in
routine. Despite the expansive nature of the powers and jurisdiction, it does
not enable a High Court to act as an appellate forum. There are also various
trappings or limitations required to be satisfied before jurisdiction will be
assumed by a High Court. The jurisdiction, inter
alia, cannot be exercised to resolve disputed questions of fact, while
policy matters and enforcement of contractual terms and rights are outside its
scope. As it is an extraordinary jurisdiction to be exercised in grave cases,
the High Court structures its discretion in taking up petitions for hearing, by
giving priority to cases requiring urgent attention. Interpretation of the
Constitution, incarcerated petitioners seeking bail, family disputes involving
custody of children, missing citizens, human rights and civil liberty
violations, excesses of public functionaries, public interest litigation, are
some of the areas considered and treated as of higher priority than the
individual grievances of employees relating to their service matters. This
neither being an ordinary appellate jurisdiction nor exclusive forum for
redressing grievances of the employees, inevitably causes delays in the
adjudication of their petitions. The framers of the Constitution had surely not
imagined that employees of organizations controlled by respective Governments
would be resorting to invoking the extraordinary constitutional jurisdiction
under Article 199 in such a large number, nor could they have contemplated that
in breach of the duty of care and in violation of fundamental rights, the
employers, whether the Federal Government or the respective statutory
organizations controlled by it, would deny to its employees an adequate remedy
in law. A remedy is obviously adequate if it is inexpensive, independent,
impartial and effective for redressing disputes and grievances relating to
terms and conditions of service. Notwithstanding the extraordinary nature of
jurisdiction under Article 199, the employees, having no other adequate remedy
and, therefore, compelled to invoke the jurisdiction of a High Court are faced
with the insurmountable trappings inherent in this jurisdiction. Many are left
without a remedy because their grievances involve disputed questions of fact or
enforcement of contractual terms. Most employees, particularly in the lower
grades, with their meager salaries, find it virtually impossible to approach
the High Court and as a result retire without a remedy, thereby suffering grave
miscarriages of justice. Those who are fortunate to bear the high cost of
litigation and are able to overcome the limitations and trappings of Article
199, are faced with enduring a long wait while the Courts struggle to find time
to properly hear and decide their petitions, which rank low on the priority
list. A favorable verdict is also of no avail, as the organizations invariably
drag the employees to a higher judicial forum. Even the fortunate employees who
are able to approach a High Court, ultimately become victims of miscarriages of
justice, finding it difficult to outweigh the strength of the employers in
pursuing litigation. Undoubtedly this tantamounts
to a denial of access to justice. The fundamental rights of the
employees guaranteed under the Constitution, particularly Articles 9, 10-A and
25 are violated. In the circumstances, the extraordinary jurisdiction of this
Court under Article 199 of the Constitution is obviously neither an adequate
remedy, nor a forum for providing inexpensive and expeditious justice in the
case of the employees for determination of their rights arising from and out of
the terms and conditions of service.
8. Next, what then is the effect, and whether the Federal Government or
statutory entities controlled by it have any obligation under the Constitution
or law to provide the employees with a forum for providing inexpensive and
expeditious justice?
9. The failure on the
part of the employer to provide an effective forum, ensuring inexpensive and
expeditious justice to the employees, is indeed a denial of the right of access
to justice. The said right being inextricably linked, results in violation of
the fundamental rights of the employees guaranteed under the Constitution,
particularly under Articles 9, 10-A and 25. The helplessness of the employee
and denial of access to justice becomes a form of forced labour,
besides compromising the inviolability of dignity of the employee, guaranteed
under Article 14 of the Constitution. An employee without a remedy in the 21st
century is obviously a modern slave, as he/she is forced to live with the
injustice of being deprived of a choice on account of lack of resources,
unequal bargaining power qua the
employer and the compulsion to provide for the livelihood of the family. Such a
shackled employee is virtually forced to accept this fate. This is a form of
exploitation, which the State is under a constitutional command to eliminate
pursuant to Article 3 of the Constitution. It also assumes a form of forced labour and slavery forbidden under Article 11 of the
Constitution. Such treatment of an employee is a clear violation of the
responsibilities and duties imposed on the State, each of its organ and
authority, and of each person performing functions on behalf of an organ or
authority of the State. Constitutional obligations and duties are, inter alia, imposed under Chapter 2 of the
Constitution. The Principles of Policy in the said chapter are binding, inter alia, when read with Article 5,
which declares obedience to the Constitution as an inviolable obligation.
Article 37 makes it mandatory for the State, under clause (d) to ensure
inexpensive and expeditious justice; under clause (e) to make provisions for
securing just and humane conditions of work. Likewise Article 38 makes it an
obligation to secure the well being by ensuring 'equitable adjustment of rights
between employers and employees'. A combined and dynamic reading of the
provisions of the Constitution unambiguously shows that the State, its organs
and functionaries, besides owing duty of care towards the employees, have a
constitutional obligation to provide them with an independent and impartial
exclusive forum for inexpensive and expeditious justice. Leaving an employee
without an adequate remedy is a denial of justice and a flagrant violation of
the constitutional commands imposing mandatory obligations. It has already been
held that compelling the employees to invoke the extraordinary jurisdiction of
this Court under Article 199 of the Constitution, which is not an ordinary
appellate forum and as a corollary not an adequate remedy, particularly when
the number of individual grievances relating to terms and conditions is as
large as is the case in every High Court.
10. It is now pertinent
to examine the scope of the right of access to justice in the context of these
employees and the effect of its denial. It is settled law that the right of
access to justice is fundamental to, and an integral part of the rule of law.
There is a chain of judgments of the Supreme Court lucidly expounding the scope
and significance of this valuable right. In “Al-Jehad Trust & others vs. Federation of Pakistan and
others”, PLD 1996 SC 324, recording his own reasons, Justice Ajmal Mian, as he then was,
affirmed with approval a passage from the celebrated judgment of the High Court
of Sindh, authored by the then Justice Saleem Akhtar in “Sharaf Faridi and others versus The Federation and others”,
PLD 1989 Karachi 404. This passage was later reaffirmed in “Sh. Riaz-ul-Haq
and another vs. Federation of Pakistan
“In Sharaf Faridi v. Islamic
Republic of Pakistan (PLD 1989 Karachi 404) after referring to Ms. Benazir Bhutto's case (supra) it was
observed as under:--
The right of 'access to justice to
all' is a well-recognized inviolable right enshrined in Article 9 of the
Constitution. This right is equally found in the doctrine of 'due process of
law'. The right of access to justice includes the right to be treated according
to law, the right to have a fair and proper trail and a right to have an
impartial Court or Tribunal. This conclusion finds support from the observation
of Willoughby in Constitution of United States
(1) He
shall have due notice of proceedings which affect his rights.
(2) He
shall be given reasonable opportunity to defend.
(3) That
the Tribunal or Court before which his rights are adjudicated is so constituted
as to give reasonable 'assurance of his honesty and impartiality, and.
(4) That it is a Court of competent
jurisdiction.
It therefore follows
that in terms of Article 9 of the Constitution a person is entitled to have an
impartial Court and tribunal. Unless an impartial and independent Court is
established the right to have a fair trial according to law cannot be achieved.
Therefore justice can only be done if there is an independent judiciary which
should be separate from executive and not at its mercy or dependent on it.”
11. It was held in “Khan Asfandyar Wali and others vs Federation of
Pakistan and others”, PLD 2001 SC 607, that denial of access to justice to
a person for grievances to be redressed is a violation of Article 4 of the
Constitution, which envisages the right of access to justice to all and the
same being equally founded in the doctrine of due process of law.
12. The Supreme Court
emphasized the importance of effectual adjudication and inexpensive access to
justice as an inherent part of the fundamental rights of a person in “Rauf B. Kadri vs State Bank of Pakistan
13. The law in the
context of right of access to justice and observations made in “Government of Baluchistan through
Additional Chief Secretary vs. Azizullah Memon and 16 others”, PLD 1993 SC 341, were followed
and affirmed in “Watan
Party and others vs. Federation of Pakistan and others”, PLD 2012 SC 292. as follows:--
“The crux of the above
judgments persuades us to hold that right of due process, inter alia, envisages the right to have a fair and proper trial and
right to have impartial Court or tribunal. The phrase/expression in the
principle highlighted therefrom are
referable to the basic judicial function, which
necessarily are known to judicial minded persons. For the safe administration
of justice we may observe that the principle discussed in both the judgments
can only be adhered to strictly by the forums manned by the persons responsible
to deliver judicial findings subject to following principle of natural justice.”
A full Court judgment in “Suo Moto Case No. 4 of 2010”, PLD 2012 SC 553, declared
as follows:--
“The principle of
right to `fair trial' has been acknowledged and recognized by our Courts since
long and is by now well entrenched in our jurisprudence. The right to a `fair
trial' undoubtedly means a right to a proper hearing by an unbiased competent forum.
The latter component of a `fair trial' is based on the age-old maxim “Nemo debet esse judex
in propria sua causa” that “no man can be a judge in his own cause”.
This principle has been further expounded to mean that a Judge must not hear a
case in which he has personal interest, whether or not his decision is
influenced by his interest, for “justice should not only be done but be seen to
have been done.”
14. While examining the vires of the
Contempt of Court Act, 2012, the august Supreme Court in “Baz Muhammad Kakar
and others vs Federation of Pakistan and others,”
PLD 2012 SC 923, reaffirmed and followed the exposition of law and principles
enunciated in its earlier pronouncements, declaring the right of access to
justice as a well recognized inviolable right enshrined in Article 9 of the
Constitution and equally found in the doctrine of due process of law. It was
further reiterated that this right includes the right to be treated according
to law, the right to have a fair and proper trial and a right to have an
impartial Court or Tribunal. The said principles were earlier declared in yet
another judgment i.e “Muhammad Nadeein Arif
and others vs. Inspector General of Police, Punjab, Lahore
15. The last in the
chain of judgments relating to the scope of right of access to justice, already
referred to above, is “Sh. Riaz-ul-Haq and another vs. Federation of Pakistan and
others,” PLD 2013 SC 501. The Supreme Court was examining the provisions of
respective statutes establishing the Federal and Provincial Service Tribunals.
Referring to civil servants it has been held that:--
“Admittedly, civil
servants being citizens of Pakistan
It was further held that:
It is to be noted that
the right of “access to justice to all” is a well recognized inviolable right
enshrined in Article 9 of the Constitution and is equally found in the doctrine
of “due process of law”. It includes the right to be treated according to law,
the right to have a fair and proper trial and a right to have an impartial Court
or tribunal. “
16. Perusal of the above
case law reveals that the law relating to the right of access to justice is
unequivocally well settled. It is an inviolable right inextricably linked, or
in other words an integral part of the right to life guaranteed under Article 9
of the Constitution, and after the eighteenth amendment Article 10-A as well,
guaranteeing a fair trial and due process. The said right also includes within
its fold yet another integral and valuable right, to have inexpensive and
expeditious justice through an impartial Court or Tribunal. The tribunal may
not necessarily be a Court in the strict sense of law. However, it ought to be
a competent forum having judicial power and to act in a manner in which a
judicial forum is expected to act, as has been held by the Supreme Court in the
case of Sh Riaz ul Haq (supra) and the
guidelines have also been laid down for such a forum. It must have the power
and capacity to determine and terminate a dispute. The exercise of power
conferred under the Constitution or the law to give 'binding and authoritative’
decisions, and after hearing the parties, to ascertain and investigate facts
based on appreciation of evidence. Impartiality and independence are pre
requisites for such a Tribunal or forum.
17. In the case of the
present petitioners and employees of several other State/Government controlled
corporations and organizations, no Tribunal or forum has been provided which
meets the above mentioned tests laid down to satisfy the threshold of the right
of access to justice, nor is invoking the extraordinary jurisdiction of this
Court under Article 199 of the Constitution an adequate and proper remedy for the
enforcement of their rights resting on the terms and conditions of service.
Individual grievances invariably include disputed questions of fact or
enforcement of contractual terms, leaving most of the petitioners without a
remedy, while many others, due to meager resources, are dissuaded from
approaching this Court. The unmistakable and manifest conclusion is that the
employees suffer grave injustice and the right of access to justice is denied
to them.
18. It is also pertinent
to emphasize that by keeping the employees without a remedy, or refusal to
determine their rights in an inexpensive, expeditious manner through
independent and impartial tribunals/forums, the employer, in addition to other
rights as explained above, also violates the principles of legitimate
expectation, both procedural as well as substantive. The constitutional
obligations and duties imposed on the State and the entities controlled by it,
are explicit and manifest representations made to the employees that they shall
be dealt with in accordance with law and the terms and conditions of service
shall be protected and upheld. At the time of seeking employment with a
State/Government controlled entity, there also exists an unequivocal
representation that disputes and grievances shall be terminated on the
touchstone of providing inexpensive and expeditious justice.
The Principles of Policy enshrined in Chapter 2 of the Constitution and the
commitments and policy statements made and expressed by public sector
organizations from time to time gives rise to legitimate expectations on part
of the employees.
19. For what has been
discussed above, it is held that providing inexpensive and expeditious justice,
safeguarding and ensuring the right of access to justice through an independent
and impartial Tribunal for the determination or enforcement of rights relating
to or emanating from terms and conditions of service of such persons employed
in organizations controlled by the State and Governments, is a mandatory
obligation and onerous duty imposed under the Constitution and the law. Failure
in providing a forum or Tribunal having judicial powers is breach of the duty
of care of the employer towards the employees and a violation of their
Fundamental Rights. Besides being exposed to claims of damages for the breach
of duty of care, both the Federal Government and the respective entities
controlled by it, may be liable for exemplary special costs for forcing its
employees to invoke the extraordinary jurisdiction of this Court under Article
199 of the Constitution, which has been held to be an inadequate remedy for the
employees in the case of their individual grievances relating to terms and
conditions of service.
20. It was in this
background that this Court had directed the Federal Government, including all
organizations and entities, to satisfy this Court as to why an order may not be
passed directing them for taking appropriate measures in providing independent,
impartial and inexpensive forums/tribunals to their respective employees, while
making interim arrangements for having the pending cases decided by an
independent forum/commission. The Secretary, Establishment had appeared on
behalf of the Federal Government. All the organizations/ entities, including
the Federal Government, agree in principle that there is a constitutional
obligation to provide the employees with inexpensive and expeditious justice
through independent, effective and judicial tribunals/forums. They have sought
time and undertaken to make appropriate arrangements, while arranging interim
forums.
21. The Capital
Development Authority vide order dated 16.02.2015 was also directed as
above. It was noted in the order that the extent of litigation either reflected
an indifferent attitude of the management towards its employees, or the absence
of an effective independent and impartial forum/mechanism for resolving the
disputes and grievances of the employees.
22. In compliance with
this Court's order dated 23-02-2015, Mr. Maroof Afzal, Chairman of C.D.A, appeared in person and has stated
that pursuant to this Courts order and its constitutional and statutory
obligations, C.D.A has decided to appoint Justice (Retd)
Maulvi Anwarul Haq, Hon'ble retired judge of the
High Court and former Attorney General of Pakistan, as a forum for deciding the
grievances of the employees relating to their terms and conditions of service.
23. The learned counsels
for the petitioners and CDA submitted that CDA is one of such organization
which has taken the initiative and the lead in introducing an independent
effective and impartial forum for resolving the disputes and grievances of its
employees relating to their terms and conditions of service. The learned
counsels submitted that it is expected that such a forum would effectively
resolve the disputes and provide for the employees an inexpensive and effective
forum. The learned counsels appearing for CDA assured this Court that the
management of C.D.A is conscious of the need to address the grievances of its
employees in an effective manner.
24. The learned counsels
appearing for the petitioners have raised some concerns regarding the
implementation of the decisions of such a forum. While consenting on behalf of
the petitioners to refer their petitions to the forum established by CDA, they
have however suggested that in order to ensure the effectiveness of this forum
it may be made binding on CDA to accept and implement the decisions, including
any interim order passed by such forum. They have stressed that as it is a new
initiative, therefore, the right of an employee to assail the order passed by
the forum may be reserved before this Court.
25. This Court records
its appreciation for the initiative taken by the Chairman and the Board of
C.D.A to provide for an effective, independent and impartial dispute resolution
forum for the redressing of the grievances of its employees relating to their
terms and conditions of service. C.D.A, in taking this lead, has indeed
demonstrated that it owns its employees and is alive to resolving their
problems. If the management had provided an effective, independent and
impartial dispute resolution mechanism earlier, there
would have been no need for such a large number of its employees to have
approached this Court by invoking the jurisdiction under Article 199 of the
Constitution. It certainly becomes a matter of concern when the employees of
organizations controlled by the Government raise their grievances in such a
large number. It undeniably manifests a grave wrong in the system, creating an
impression that the employees are not being heard and have been left without a
remedy. The volume of grievance petitions invoking the jurisdiction of this
Court under Article 199 of the Constitution speaks volumes for depriving bona fide aggrieved employees of an
effective forum to redress their grievances. When the organization fails to
provide inexpensive, independent, and effective forums for dispute resolution,
it gives rise to feelings of distrust and frustration amongst the employees.
This in itself becomes a question of judicial review for the Court, as on the
one hand it reflects the denial of the fundamental right of access to justice
in the case of the employees, and on the other the standard of governance
within the respective organization. The present petitioners appear to be an
example of employees deprived of effective and inexpensive forums, or a dispute
resolution mechanism to redress their grievances. Most of the employees can
hardly afford to litigate within their meager means and may retire in pursuit
of justice. Many may ultimately be declared to have been wronged, but by then
it may be too late as 'justice delayed is justice denied'. The fault, I regret
to say, is inevitably on account of the indifference of the Employers. It is
the prime duty of the Employer to provide its employees an inexpensive and
effective forum to resolve their disputes. The decision of CDA to establish and
provide for an independent, inexpensive and impartial forum to its employees
for the redressing of grievances relating to their terms and conditions of
service is indeed a step in the right direction, for which the credit goes to
the present management.
26. In the light of the
above, and as a consent order, the petitions are disposed of in the following
terms:
(i) The CDA shall issue the notification of
Mr. Justice (Retd) Maulvi Anwarul Haq, for appointing him
as forum to give binding determination of disputes relating to the terms and
conditions of service of employees of CDA and full fill all codal
formalities and requirements of law within three weeks from the date of
receiving this order.
(ii) The instant petition and all other
petitions listed in the Schedule attached with this order shall be deemed to be
pending before Mr. Justice (Retd) Maulvi
Anwarul Haq, and shall be
placed before him by the CDA within one week from the date of issuance of the
notification. Any grievance of employees other than the petitioners, if not
resolved through other means, shall also be, referred to this forum directly
without the need for the employee to invoke the jurisdiction of this Court.
(iii) CDA having established the forum and the
employees having given their consent, shall respect the orders passed by the
forum, whether interim or final, and, therefore, implement
the orders without delay.
(iv) Any delay in implementing the orders,
whether interim or final, shall be deemed as violation of this order and,
therefore, the person causing any impediment or delay in implementing the
orders, whether interim or final, shall be proceeded against under the Contempt
of Court Ordinance, 2003.
(v) CDA shall take all measures to facilitate
the forum established with consent of the parties so that disputes are decided
within a reasonable time and on the touchstone of ensuring the Constitutional
obligation of providing 'inexpensive and expeditious' justice.
(vi) This Court expects that all the petitions
transmitted to CDA for being placed before the Hon'ble
Mr. Justice (Retd) Maulvi Anwarul Haq, shall be decided
expeditiously preferably within six months.
(vii) Any petitioner or CDA aggrieved by a decision
passed by the forum shall be at liberty to approach this Court and this order
shall not be a bar to the maintainability of the petition under Article 199 of
the Constitution. However, the CDA shall implement the order before invoking
the jurisdiction of this Court as the forum has been established with consent.
(viii) The interim orders passed in the petitions
listed in the schedule attached with this order shall continue unless the same
have been altered, modified or in any other manner changed by the forum
established and headed by Mr. Justice (Retd) Maulvi Anwarul Haq.
(ix) The above is an interim arrangement which
shall continue till a permanent appellate forum has been established either by
CDA or the Federal Government by taking measures for providing such a forum
through legislation.
(x) CDA and Justice (Retd)
Maulvi Anwar ul Haq shall settle the fee and terms and conditions with
mutual consent. CDA shall facilitate the forum so that the grievances are
decided within the stipulated time.
(xi) The Federal Government shall, in compliance
with the obligations under the Constitution, take necessary steps/
measures for ensuring 'inexpensive and
expeditious justice' to the employees who fall in the categories amenable to the
jurisdiction of this Court under Article 199 of the Constitution, as identified
by the august Supreme Court in “Pakistan Defence Officer” Housing Authority and others versus Lt.
Col Syed Jawaid Ahmed and
others”, 2013 SCMR 1707, inter alia,
by proposing to the Parliament legislative enactment for establishing an
appropriate appellate forum. The Federal Government shall comply with this
direction preferably within 60 days.
27. For what has been
stated above, all the petitions are disposed of in the terms mentioned in
Paragraph No. 26 above.
28.
The office is directed to send a copy this judgment through special
messenger to the Secretary, Establishment, Government of Pakistan for
compliance with Para 26 (xi) above. In case
the Federal Government or Capital Development Authority has any difficulty in
implementing the direction, it shall be at liberty to approach this Court.
However, this Court expects that the Federal Government shall proceed and
fulfill its Constitutional obligations and comply with the above .directions. A
report in this regard shall be submitted by the Secretary, Establishment
Division, to the Registrar of this Court within 65 days from the receipt of
this order.
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