Service Regulation cannot be termed as "Statutory Rules" determining the terms and conditions of service of employees of PIAC

PLJ 2011 Peshawar 182 (DB)

Present: Syed Sajjad Hassan Shah and Yahya Afridi, JJ.

ZAFAR IQBAL--Petitioner

versus

PAKISTAN INTERNATIONAL AIRLINE through General Manager, (Personnel) PIA Karachi and 4 others--Respondents

W.P. No. 341 of 2007, decided on 29.9.2010.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional jurisdiction--Relief which was not prayed in writ petition could not be sought--Validity--Judicial pronouncements had settled the matter and now constitutional Courts exercising jurisdiction u/Art. 199 of Constitution may, if the facts of the case warrant, mould a relief sought or grant a relief not expressly prayed in the petitioner.  [P. 185] A

PLD 1975 SC 244 & 1999 SCMR 709, rel.

Pakistan International Airlines Corporation Act, 1956--

----Ss. 29, 30 & 31--PIAC Employees (Service and Discipline) (XIX of 1956) Regulation, 1985--Constitution of Pakistan, 1973, Art. 199--Constitutional jurisdiction--PIAC is a statutory Corporation--Federal Govt. has complete control over the running the affairs of PIAC--Employees (Service and Discipline) Regulation, 1985, however have neither been notified with approval of federal government no placed before parliament as required u/Ss. 29, 30 & 31 of Act--Service Regulation cannot be termed as "Statutory Rules" determining the terms and conditions of service of employees of PIAC.  [P. 185] B

Pakistan International Airlines Corporation Act, 1956--

----Ss. 29, 30 & 31--Constitution of Pakistan, 1973, Art. 199--Status of an employee in a statutory organization--No statutory service rules--Question of--Whether petitioner can seek his reinstatement when his services in PIAC were not governed by Statutory Rules--Validity--In absence of statutory service rules, relationship between statutory corporation and its employees was that of "Master" and Servant".         [P. 186] C

1994 SCMR 2234, fol.

Qazi Jawad Ihsanullah Qureshi, Advocate for Petitioner.

Mr. Abdul Zakir Tareen, Advocate for Respondents.

Date of hearing: 30.8.2010.

Judgment

Yahya Afridi, J.--Zafar Iqbal, a security guard in Pakistan International Airline Corporation ("PIAC"), was dismissed from service vide dismissal order dated 11.8.2000 and he has, through the instant constitutional petition, sought the following relief from this Court:--

(i)         Issue a direction in the form of mandamus to the respondents for the implementation of the judgment dated 2.9.2005 of the Federal Service Tribunal to the effect that the petitioner be reinstated in his services with all back benefits; and

(ii)        Award special compensatory cost of this writ petition in favour of the petitioner as it is the respondents Pig Headedness that has forced the petitioner to knock the doors of this august Court.

(iii)       In any other relief considered just and appropriate in the circumstances of the case".

2.  The brief facts leading to the present petition are that the petitioner, while serving in PIAC at Peshawar Airport was charged in a criminal case. The said case was tried and the present petitioner was convicted and sentenced to one and a half years imprisonment vide judgment dated 4.10.2000. The petitioner, being aggrieved thereof, impugned the same before, the appellate Court, which too upheld the judgment of the trial Court vide its judgment dated 19.9.2001.

The conviction of the present petitioner led PIAC to dismiss the present petitioner from service vide order dated 11.8.2000. The reasons stated in the said dismissal order were that:--

(i)         Reference judgment dated 4.10.2000 of the Hon'ble Special Judge (Central) Customs Taxation and Anti-smuggling. N.W.F.P. Peshawar.

(ii)        Your involvement in the attempt of smuggled precious antiques from Peshawar Airport to foreign country stands proved vide order afore referred judgment. You have been convicted vide said judgment and sentenced to one and a half years and fine of Rs. 20,000/- have been awarded to you. In case of default of payment of fine you will suffer two months SI for each offence.

(iii)       The conviction in the criminal case has rendered you liable for dismissal and consequently the management has decided to dismiss you from the services of the corporation with immediate effect."

In the meantime, the present petitioner aggrieved of the judgment of the trial Court and the appellate Court, impugned the same in W.P. No. 504/2002, which was finally accepted by judgment of this Court dated 2.7.2003 and the petitioner was acquitted from the said criminal case. PIAC impugned the said decision before the august Supreme Court, which was vide order dated 16.2.2005 withdrawn.

The petitioner after being acquitted by this Court, instituted a departmental representation dated 21.7.2003, seeking his reinstatement in service. The respondent dismissed the said departmental representation being time barred vide order dated 6.10.2003.

Feeling aggrieved, the petitioner impugned the same in appeal before the Federal Services Tribunal, which was finally accepted vide order dated 2.9.2005. Accordingly, PIAC was directed to reinstate the petitioner with all back benefits. PIAC in turn impugned the said decision before the august Supreme Court of Pakistan, which was finally, through a consolidated judgment in Mobinul Islam's case (PLD 2006 SC 602) declared to have abated. Hence, the present petition for the relief already stated hereinabove.

3.  The learned counsel for the petitioner argued that the reason for the petitioner's dismissal from service was his conviction in a criminal case and on his acquittal by a competent Court of law, he ought to be reinstated; that in view of Sections 29, 30 and 31 of Act No. XIX of 1956, it was the negligence of the PIAC to have not placed the service regulation before the Parliament and thus the premium for such lapse should not be given to PIAC; that equity demanded the petitioner be dealt with in accordance with law; that what the petitioner demanded was not "compensation" but "restitution"; that what he was deprived off in equity and not what he had lost, was what he wanted back; and finally, that the learned counsel stated that even if this Court came to the conclusion that there was no statutory rules governing the terms and conditions of service of the present petitioner, still a show cause notice was a mandatory requirement prior to dismissal of the petitioner from his service.

4.  The learned counsel for the PIAC. on the other hand contended that the prayer being sought during the argument were not specifically stated or sought in the writ petition; that the present petition was not maintainable as there were no statutory rules governing the term of service of the petitioner and thus the rule of "master and servant" would apply and no reinstatement of a "servant" on an unwilling "master" could be allowed.

5.  The Valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.

6.  We would like to first address the objection raised by the learned counsel for the respondents that the petitioner could not seek a fresh relief, which were not specifically prayed in the writ petition. In this regard, the judicial pronouncements have settled the matter and now constitutional Courts exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution") may, if the facts of the case warrant, mould a relief sought or grant a relief not expressly prayed in the petition. In this regard reliance is placed on Salahuddin Versus M/s. Frontier Sugar Mills & Distilleries Ltd. (PLD 1975 Supreme Court 244) and Collector of Customs, Excise & Sales Tax Versus M/s. Flycraft Paper Mills (Pvt) Ltd. (1999 SCMR 709).

7.  Now to the merits of the present case. PIAC is a statutory Corporation created through Act No. XIX of 1956 ("Act") and under the provisions thereof, it is a body corporate having perpetual succession, a common seal having the power to acquire property, to carry on its prescribed functions and could sue or be sued in its own name. Furthermore, under the Act, Federal Government has complete control over the running the affairs of the PIAC.

Admittedly, PIAC has framed Employees (Service and Discipline) Regulation, 1985 ("Service Regulation"), however, the same have neither been notified with the approval of the federal government nor placed before the parliament as required under Sections 29, 30 and 31  of  the  Act.  Thus Service Regulation can not be termed as "Statutory Rules" determining the terms and conditions of service of the employees of PIAC.

8.  The real issue for determination in the present case; whether the present petitioner can seek his reinstatement, when his services in PIAC were not governed by the Statutory Rules.

9.  In this regard, we would seek guidance for the authoritative judgments rendered by the august Supreme Court, wherein the status of employees of PIAC and their legal rights qua reinstatement after their dismissal of service have been discussed and determined.

We would first take the case of Mrs. Aneesa Rehman Vs. PIAC (1994 SCMR 2232). In this case the august Supreme Court discussed the status of an employee in a statutory organization, which did not have any statutory service rules. The august Supreme Court very clearly held that in absence of statutory service rules, the relationship between the statutory corporation and its employees was that of "master" and "servant". Having said that the august Supreme Court dilated upon the various judgments of superior Courts and Pakistan and India jurisdiction and finally came to a considered view. whereby it held that:

"From the above stated cases, it is evident that there is judicial consensus that the maxim audi alteram partem is applicable to judicial as well as to non-judicial proceedings. The above maxim will be read into as a part of every statute if right of hearing has not been expressly provided therein........"

In this view of the matter there has been violation of the principle of natural justice. The above violation can be equated with the violation of a provision of law pressing into service constitutional jurisdiction under Article 199 of the Constitution, which the High Court failed to exercise. The fact that there are no statutory service rules in Respondent No. 1 Corporation and its relationship with its employee is of that master and servant will not negate the application of the above maxim audi alteram partem. The above view, which we are inclined to take is in consonance with the Islamic injunction as highlighted in the case of Pakistan and others Vs. Public at large (supra) wherein it has been held that before an order of retirement in respect of a civil servant or an employee of a statutory corporation can be passed, he is inclined to be heard ......."

(Emphasis provided).

Then in Nighat Yasmin Vs. PIAC (2004 SCMR 1820), the august Supreme Court has while dilating upon the Service Rules and the rights of employees in PIAC has held that:

"It may be pertinent to observe that the PIAC Regulations are not statutory in nature yet once these have been framed by the Board of Directors of the Corporation these are binding for all intents and purposes on the respondent-Corporation who cannot arbitrary deviate from such instructions and unilaterally violate the Regulations which are in the nature of a contract, binding on all the parties."

In another case titled Arshad Jamal Vs. N.W.F.P. Forest Development Corporation (2004 PLC (CS) 802) the august Supreme Court relying on PIAC Vs. Nasir Jamal Malik (2001 SCMR 934) and Hafeez Abbasi Vs. Managing Director PIAC (2002 SCMR 1034) held that;

"where removal order of such an employee of Corporation even in the absence of statutory rules is made on particular grounds which are in the nature of charges, the employee has a vested right of hearing before any order adverse to his interest was passed by virtue of principle of audi alteram partem which was the least requirement."

In PIAC Vs. Samina Masood (PLD 2005 SC 381) the august Supreme Court while determining the status of employees of PIAC held that:

"When once an existing terms and conditions are violated by the department, it can be challenged before the tribunal on numerous grounds available exclusive of the vires of such terms and conditions. In the present case, no terms and conditions already existing are violated by the department and thus the resort could only be had to the High Court under Article 199 of the Constitution, especially, when the terms and conditions is challenged on the single ground of being ultra vires of the constitution.........

"We are, therefore, of the considered view that when a civil servant challenges the vires of law or rule being ultra vires the Constitution without the same having been violated by the departmental authority, the remedy lies before the High Court under Article 199 of the Constitution and not before the Service Tribunal."

In the aforesaid judgment, though the issue of there being no statutory rules governing the terms and conditions of service of employees of PIAC was not discussed, the august Supreme Court dealt with discrimination being faced by the air-hostesses as compared to other male-stewards in the Cabin Crew of PIAC. The august Supreme Court dispelling all objections regarding maintainability of a writ petition under Article 199 of the Constitution maintained the orders of the Sindh High Court and the Lahore High Court, whereby Regulation 25 of Service Regulation was declared illegal and the air-hostesses were reinstated in service.

In a more recent judgment rendered by the august Supreme Court in PIAC Vs. Tanweer-ur-Rehman (PLD 2010 SC 676) a more conservative view has been taken. The august Supreme Court through a single judgment decided petitions of three groups of PIAC employees. The first group of cases related to promotion, as juniors employees were promoted and thus their grievance was challenged in constitutional jurisdiction of the High Court under Article 199. The second group related to the service of an Air-hostess, who was aggrieved of her not being regularized. And the third group of cases related to employees. who before attaining the age of superannuation, were pre-maturely or compulsorily retired from service. They had duly assailed the said action of PIAC before the Federal Services Tribunal under Section 2-A of Services Tribunals Act, 1973 but in view of Muhammad Mobinul Islam's case the said appeals were abated. In consequence thereof, the said employees had invoked the constitutional jurisdiction of the High Court under Article 199 of the Constitution, challenging the said pre-mature retirement from service. The august Supreme Court after thoroughly canvassing the provision of the Act, concluded that:

"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 function in connection with the affairs of the Federation, the aggrieved person cannot approached 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 only that if any adverse action has been taken by the employer in violation of the statutory rules only then such action could be amiable 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."

The august Supreme Court also discussed the law laid down in Aneesa Rehman's case and observed that "right to hearing" in the said case related to an issue of demotion in service and not removal from service. In addition, the judgment further cited Justice Khurshid Anwar Bhinder Vs. Federation of Pakistan (PLD 2010 Supreme Court 483) wherein while dealing with the right of hearing had observed that;

"principle of audi alteram partem at the same time cold not be treated to be of universal nature because before invoking/ applying the said principle one had to specify that a person against whom action was contemplated to be taken prima facie had vested right to defend the action and in those case where the claimant had no basis or entitlement in their favour he would not be entitled to protection of the principle of natural justice."

Accordingly, the august Supreme Court dismissed the contentions of the employees who had sought constitutional jurisdiction to seek their reinstatement of service in PIAC. The august Supreme Court very clearly laid down that there were no statutory rules governing the terms and conditions of the employees of the PIAC and thus their relationship was to governed by the principle of "master and servant". Hence, there could be no question of any reinstatement in service.

10.  On reviewing the various judgments pronounced by the august Supreme Court of Pakistan, this Court has noticed that after the decisions rendered in Muhammad Mobinul Islam's case (PLD 2006 SC 702) and Muhammad Iddrees's case (PLD 2007 SC 681) there is stark shift against entertaining grievances of employees of PIAC for their reinstatements.

However, it would be fair to state that in regard to employees of other Statutory Organization, the august Supreme Court has approved cognizance of constitutional jurisdiction by the High Court in cases where there was a breach of fundamental rights of the Employees. The case in point being, Pakistan Telecommunication Vs. Muhammad Zahid (2010 SCMR 253). The issue in the said case related to certain private telephone exchange operators, who were working in the International Gateway Exchange with the Pakistan Telecommunication Company Ltd. ("PTCL"). The objection raised was that PTCL being not owned or controlled by the Federal Government could not be dragged into litigation being a "private person". It was also urged that the said operators were employees of the Telecom Foundation, which was a charitable organization established under Charitable Act, 1890. The august Supreme Court concluded that:

"Telecommunication undisputedly is the subject pertain to one of the important affairs of the Federation dischargeable now through the PTCL, hence such entity involved in the same exercise of sovereign power, essentially falls within the context of `person' as defined in clause 5 of Article 199 of the Constitution, therefore, for the above reasons the grievance of the private respondent was amiable to the writ jurisdiction of the High Court ...... Undisputedly, the crux of the case of the private respondent has been that they are being discriminated as against the other operators performing service permanently with the PTCL or having been regularized in due course as operators in   the  International   Gateway  Exchange   performing  similar  functions in the exchange apparently amounts to have been grossly violated as against the guaranteed rights under Articles 2-A, 4 and 25 of the Constitution by depriving them of their emoluments besides other service benefits......The impugned judgment is unexceptional irrespective of the status of the private respondents to be that of a worker of a civil servant or the contract employees having no nexus to the maintainability of the writ petition on the ground of discrimination meted out to them".

11.  We note that both the judgments of the august Supreme Court in Pakistan Telecommunication Vs. Muhammad Zahid and PIAC Vs. Tanweer Rehman cases have been decided by Full Bench of august Supreme Court comprising of Hon'ble Judges and in fact the author of the latter was a member of the each Bench, which had decided the former case. Furthermore, the latter case deals directly into respondent organization, PIAC.

Faced with these peculiar circumstances, we are under command of Article 189 of the Constitution to follow the "ratio decidenti" of the judgment rendered by the August Supreme Court in PIAC Vs. Tanweer Rehman's case.

12.  For the reasons stated hereinabove, this Court does not consider it appropriate to issue any writ, much less as prayed for in the writ petition itself. Accordingly, the present petition is dismissed.

(R.A.)  Petition dismissed.