THE HIGH COURT OF SINDH, KARACHI
Constitution Petition No.D-5349 of 2013
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Date Order with Signature(s) of Judge(s)
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Present:
Muhammad Ali Mazhar, J.
Abdul MaalikGaddi, J.
Petitioner : GhulamRasool son of Muhammad Iqbal.
Respondent No.1 : Federation of Pakistan through Secretary Ministry of Defense.
Respondent No.2 : Pakistan Defense Officers Housing Authority (P.D.O.H.A)
Respondent No.3 : Director Personal & Administration (P.D.O.H.A)
Respondent No.4 : President Executive Board P.D.O.H.A
Date of hearing : 21.10.2016
Mr. Muhammad Arshad Khan Tanoli Advocate for the Petitioner.
Malik NaeemIqbal&Mr. Faizan Memon, Advocates for Respondents No.2 to 4.
ShaikhLiaquatHussain, Standing Counsel.
JUDGMENT
Abdul MaalikGaddi, J.–Through instant constitution petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has sought following relief(s):-
a) To set aside and quash the impugned order dated 18.09.2013 and reinstate the petitioner into service with all consequential back benefits.
b) To strike down the impugned order dated 18.09.2013, is unlawful, void ab-initio, non existent and same may also be declared violative of law, malafide and not binding upon them.
c) To restrain the respondents from actualizing/acting upon the impugned order dated 18.09.2013 on petitioner till the disposal of this petition.
d) To direct the respondent No.2 to ensure not to act upon its letter dated 12.12.2013 for vacating the official married accommodation from petitioner till the disposal of this petition.
2. The brief facts leading to filing of instant constitution petition are that the petitioner was entered into service of respondent No.2 as Helper (BPS-02) on 26.10.1993, and thereafter, his service was confirmed vide order dated 05.05.1994. It is averred that during the course of service,the petitioner had served with respondent No.2 with honestly and the entire satisfaction of his superior as such, he was awarded further promotion as L.D.C (BPS-05) under order dated 14.04.1996.It is also averred that on 06.08.2013, he alongwith his family went to celebrate Eid to his native place i.e. District Chakwal, Punjab but unfortunately, he became seriously ill there and he was suffered from hypertension, Human body plasma deficiency problems and Dengue fever with allied complications, therefore, after diagnosing the same his physician advised him for medical prescription and complete bed rest for ten days and this fact was immediately informed to his field Inspector Nasir on phone, who had accordingly forwarded such information to duty officer Shahnawaz.It is further averred that after his recovery of health, he joined his duties on 26.08.2013, when he was served with show cause notice dated 26.08.2013 on the allegation of his absence from duty with effect from 05th to 25th August, 2013 (twenty one days) without any intimation or approval of leave, he replied the same alongwith his Medical Certificates but despite of submitting his explanation alongwith Medical Certificates, explanation was not accepted, however, he was also served “Recordable Warning” dated 03.09.2013 and thereafter, without holding any inquiry, his service was dispensed with on 18.09.2013 under Chapter III,Rule 8(b)(1) of Pakistan Defence Officers Housing Authority Service Rules, 2008 with immediate effect. He filed an appeal before the President Executive Board DHA, Karachi, but no decision had been taken in appeal, hence, this petition.
3. The respondents No.2 to 4 have filed counter affidavit,wherein they have denied the claims of the petitioner by stating that the terms and conditions of the service of the petitioner are not protected by statutory rules as such, the relationship between the petitioner and respondent No.2 is of Master and Servant, therefore, the petitioner could not seek reinstatement in these proceedings. It is also the case of the respondents that the petitioner was issued notice on account of absence without leave dated 21.08.2013 followed by Show Cause Notice dated 26.08.2013. According to the respondents, it is not disputed that pursuance of Show Cause Notice, the petitioner was issued Recordable Warning on 03.09.2013 and thereafter, the services of the petitioner were dispensed with on 18.09.2013 under Chapter III, Rule 8(b)(1) of Pakistan Defence Officers Housing Authority Service Rules, 2008 after observing all legal and codal formalities. However, the petitioner filed the appeal before the President Executive Board DHA Karachi under some misconceived notion, which does not create any obligation upon the respondents to respond. According to the respondents that the employees of the respondents can avail the remedy of appeal, if any, disciplinary proceedings are initiated and the same culminates in any minor or major penalty. In the instant case, since no disciplinary proceedings were conducted, therefore, no appeal could have been filed. Lastly, they have prayed for dismissal of instant petition.
4. Learned counsel for the petitioner during the course of his arguments has reiterated the facts and grounds of the petition and has contended thatthe petition is maintainable as the petitioner was confirmed employee of the respondents and after confirmation, the respondents promoted him as LDC (BPS-05). During the course of his arguments, he draws our attention towards various Sections/Rules of thePakistan Defence Officers Housing Authority Service Rules, 2008, and was of the view that the respondent No.2 is statutory body governed by its Statutes. The Hon’ble Supreme Court of Pakistan in its pronouncement reported as2013 SCMR 1707has also determined the status of DHA at the touch stone of Article 199(1)(a)(ii) read with 199(5) of the Constitution and this body terms it as ``person`` amenable to writ jurisdiction and thereafter, deduced the principles of law at page 1742 in para 50 of the said Judgment and its clauses (i)(iii) and (iv) of para 50 are relevant for the purpose of determining the maintainability of the petition. Per learned counsel, the Hon’ble Supreme Court in its another recent Judgment passed in case of Civil Aviation Authority has further interpreted the scope of para 50 of the above Judgment and in its para 8 has extended the writ jurisdiction of this Court to those public authority their rules are non-statutory and violative thereof can be pressed into service in writ jurisdiction of this Court. Per learned counsel, on 26.08.2013 a Show Cause Notice was issued to the petitioner with the allegations that he remained absent from duty with effect from 05.08.2013 to 25.08.2013 without any intimation. He further argued that despite of submitting explanation alongwith Medical Certificate, explanation was not accepted and without holding any inquiry, service of the petitioner was dispensed with under Chapter III, Rule 8(b)(1) of Pakistan Defence Officers Housing Authority Service Rules, 2008, with immediate effect, whereas, according to him, clause (b)(1) authorizes dispensation of services under notice clause, which is commonly known as termination simplicitor, whereas, this notice clause is invoked in the cases where professionals and skill full technical personnel are hired and if either side employee or employer in case of anticipating better future prospective, can terminate their contract of employment of either party on one month notice or one month pay in lieu thereof, but in the instant case, such clause is misused and invoked as LDC of Grade-5, in whimsical manner. Per learned counsel, the respondents though invoked the notice clause even than neither petitioner was given one month notice or one month pay in lieu thereof, no personal opportunity ofhearing was also given to the petitioner to defend his case and the impugned order has been passed malafidely just to deprive the petitioner from his service, therefore, the impugned order is liable to be set-aside and the petitioner be reinstated into the service with full back benefits. In support of his contention, he has placed reliance upon the case laws, which is reproduced as follows:-
(i) Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others reported as 2015 SCMR 1257;
(ii) Warid Telecom (Pvt.) Limited and 4 others v. Pakistan Telecommunication Authority through Chairman reported as 2015 SCMR 338;
(iii) Pakistan Defence Officers’ Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed reported as 2013 SCMR 1707;
(iv) ZaraiTaraqiati Bank Limited v. Said Rehman and others reported as 2013 SCMR 642;
(v) Muhammad Ashraf Tiwana v. Pakistan and others reported as 2013 SCMR 1159;
(vi) Administrator/Pakistan Defence Officers Housing Authority Karachi v. Ghulam Mustafa Khan and another reported as 2011 SCMR 480;
(vii) Arshad Jamal v. N.W.F.P Forest Development Corporation and others reported as 2004 SCMR 468;
(viii) Federal Government Employees’ Housing Foundation through Director General, Islamabad and another v. Muhammad AkramAlizai, Deputy Controller, PBC, Islamabad reported as PLD 2002 Supreme Court 1079;
(ix) Messrs Pakistan State Oil Co. Ltd. v. Muhammad Tahir Khan and others reported as PLD 2001 Supreme Court 980;
(x) Mrs. AnisaRehman v. P.I.A.C. and another reported as 1994 SCMR 2232;
(xi) Karachi Development Authority and another v. Wali Ahmed Khan and others reported as 1991 SCMR 2434.
5. Conversely, learned counsel for respondents No.2 to 4 though not disputed the facts of the case buthas contended that since DHA does not have any Statutory Rule of Service as such, the relationship between the petitioner and DHA is of Master and Servant and the petitioner can only seek damages against wrongful action, if any. According to him, a bare perusal of impugned order dated 18.09.2013 reflects that the same has been issued in exercise of power conferred by Chapter III, Rule 8(b)(1) of Service Rules, 2008, wherein Administrator of DHA is empowered to dispensed with services of an employee on one month notice or one month pay in lieu of notice. He further submits that service of DHA is not pensionable service and is contractual in nature, particularly, in absence of Statutory Rules of Service. The employee as well as employer, both are at liberty to part their ways by giving one month notice or one month salary in lieu of notice. Per learned counsel, the impugned order has been passed on account of remaining absent of the petitioner from his duty without intimation with effect from 05.08.2013 to 25.08.2013, after adopting all legal formalities. Per learned counsel, while passing the impugned order, no illegality or irregularity has been committed by the respondents, therefore, this petition is liable to be dismissed. In support of his arguments, he placed reliance upon the case laws, which is reproduced as follows:-
(i) Syed NazirGillani v. Pakistan Red Crescent Society and another reported as 2014 SCMR 982;
(ii) Abdul Wahab and others v. HBL and others reported as 2013 SCMR 1383;
6. Learned Standing Counsel has adopted the arguments of learned counsel for respondents No.2 to 4.
7. We have heard the learned counsel for the parties at a considerable length and have perused the record.
8. It would not be out of place to highlight that under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, any person who is performing functions in connection with the affairs of the Federation, a province or a local authority may approach this Court for redressal of his grievances. Sub-clause (5)of the said Article describes that the expression ``person`` includes anybody politic or corporate, any authority of or under the control of the Federal Government or the Provincial Government. The inclusion of the expression (corporate) is referable only to corporate authority created by the Government to perform certain functions of a public nature either by statute or otherwise. The point in this regard has been aptly elaborated by the Apex Court in the case of Salahuddinand 2 others v. Frontier Sugar Mills reported as PLD 1975 SC 244at page 256 in the following words:-
“Now what is meant by the phrase “performing functions in connection with the affairs of the Federation or a Province.” It is clear that the reference is to governmental or state functions, involving, in one form or another, an element of exercise of public power. The functions may be the traditional police functions of the State, involving the maintenance of law and order and other regulatory activities; or they may comprise functions pertaining to economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these functions would be performed by persons or agencies directly appointed, controlled and financed by the State, i.e. by the Federal Government or a Provincial Government. However, in recent years, there has been manifest a growing tendency on the part of Governments to create statutory corporations for undertaking many such functions, particularly in the industrial and commercial spheres, in the belief that free from the inhibiting effect of red-tapism, these semi-autonomous bodies may prove more effective, flexible and also profitable. Inevitably, Government retains effective control over their functioning by appointing the heads and other senior officers of these corporations, by regulating their composition and procedures by appropriate statutes, and by finding funds for financing their activities.
Examples of such statutory corporations are the National Bank of Pakistan, the West Pakistan Water and Power Development Authority, the National Shipping Corporation, the Agricultural Development Bank of Pakistan, and the large number of Universities functioning under their respective statutes. On account of their common attributes, as mentioned in the preceding paragraph, they have all been regarded as persons performing functions in connection with the affairs of the Federation or a Province.”
After going through the above paragraph, it is obvious that the directions can be issued under Article 199 of the Constitution, 1973 to not merely to corporate entities created by statutes but even to those, which are incorporated under the statutes or otherwise. We are, therefore, not at all overwhelmed by the arguments raised on behalf of the respondents that the Pakistan Defence Officer Housing Authority being a non-government entity do not fall within the ambit of Article 199 of the Constitution, 1973. It may now be significant to dilate upon the issue of resorting to filing of instant petition by the petitioner for enforcement of the terms and conditions of his service as employee of DHA and more particularly, whether he could claim relief of restoration into service.In this context, the Hon’ble Supreme Court in various cases has held that distinction ought to be maintained between cases, where terms and conditions of employment have been protected or governed by the statute or statutory rules and those, where they were determined by regulation framed by the corporate entities. It was held that the formal category of the cases, the relief of reinstatement could be obtained but in the latter the only remedy available to an aggrieved employee was to seek damages for breach of agreement,obviously this distinction was founded upon the hypothesis that in-house regulations could only be treated as implied terms of a contract of employment. In case of Raziuddinv. Chairman Pakistan International Airlines Corporation and 2 others reported as PLD 1992 SC 531, the Hon’ble Supreme Court outlined the legal position as follows:-
“6.The legal position obtaining in Pakistan as to the status of employees of the Corporations seems to be that the relationship between a Corporation and its employees is that of Master and Servant and that in case of wrongful dismissal of an employee of the Corporation, the remedy, is to claim damages and not the remedy of reinstatement. However, this rule is subject to a qualification, namely, if the relationship between a Corporation and its employees is regulated by statutory provisions and if there is any breach of such provisions, an employee of such a Corporation may maintain an action for reinstatement.”
Similar line of action has been adopted by the Hon’ble Apex Court in the cases reported as (1)Muhammad Yousuf Shah v. PIA (PLD 1981 SC 224), (2)Principal Cadet College Kohat v. Muhammad ShoaibQureshi (PLD 1984 SC 170), (3)Anwar Hussain v. Agricultural Development Bank of Pakistan (PLD 1984 SC 194) and (4)Pakistan Defence Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed [(2013 SCMR 1707) relevant para 50]. For the sake of convenience, it would be expedient to reproduce para 50 of DHA case, which reads as under:-
“50. The principles of law which can be deduced from the foregoing survey of the precedent case-law can be summarized as under:-
(i) Violation of Service Rules or Regulations framed by the Statutory bodies under the powers derived from Statutes in absence of any adequate or efficacious remedy can be enforced through writ jurisdiction.
(ii) Where conditions of service of employees of a statutory body are not regulated by Rules/Regulations framed under the Statute but only Rules or Instructions issued for its internal use, any violation thereof cannot normally be enforced through writ jurisdiction and they would be governed by the principle of ‘Master and Servant’.
(iii) In all the public employments created by the Statutory bodies and governed by the Statutory Rules/Regulations and unless those appointments are purely contractual, the principles of natural justice cannot be dispensed with in disciplinary proceedings.
(iv) Where the action of a statutory authority in a service matter is in disregard of the procedural requirements and is violative of the principles of natural justice, it can be interfered with in writ jurisdiction.
(v) That the Removal from Service (Special Powers) Ordinance, 2000 has an overriding effect and after its promulgation (27th of May, 2000), all the disciplinary proceedings which had been initiated under the said Ordinance and any order passed or action taken in disregard to the said law would be amenable to writ jurisdiction of the High Court under Article 199 of the Constitution.”
9. The Hon’ble Supreme Court of Pakistan in its another Judgment passed in the case of Civil Aviation Authority in Civil Appeal Nos.185-K and 186-K of 2015, has further interpreted the scope of para 50of the above said reported Judgment and its para 8 has extended the writ jurisdiction of this Court to those public authority their Rules are non-statutory and violation thereof can be pressed into service in writ jurisdiction. For the sake convenience, it would be advantageous to reproduce as follows:-
“8. We, therefore, are of the considered view that issue in hand is fully covered by para 50 of the judgment referred to hereinabove, which provides that an aggrieved person can invoke the constitutional jurisdiction of the High Court against public authority if he satisfies that the act of the authority is violative of the service Regulations even if they are non-statutory.”
10. In the instant case, the petitioner was appointed as Helper (BPS-02) on 26.10.1993 on the basis of probation period for six (06) months and his terms of services were regulated by the Pakistan Defence Officer Housing Authority Rules (Employment Policy and Procedure). On successful completion of probation period, the services of the petitioner were confirmed on 05.05.1994 and thereafter, he was promoted on 14.04.1996 as LDC (BPS-05).Nevertheless, on account of remaining absent for twenty (20) days from the duties allegedly, owing to ill health, the petitioner was served with Explanation,which ended-up in Recordable Warning dated 03.09.2013 and the petitioner was continued to perform his duty till 18.09.2013, when he was informed vide order dated 18.09.2013 about dispensing with his services by invoking Rule 8(b)(1) of the Pakistan Defence Officers Housing Authority Service Rules, 2008,without assigning any cogent reason. The petitioner has not only been condemned unheard but has been discharged from service in utter disregard of the Rules framed by the authority for governing his service. It is, therefore, manifest that Maxim “audialterampartem” is applicable to judicial as well as to non-judicial proceedings and at all time, read as part of every statute even such right has not been expressly provided therein. The respondent is a public authority and under the law, they are supposed to do function in accordance with law but here in this case, they have committed the violation of law by not providing him personal hearing. In this view of the matter, there has been clear violation of the Principle of Natural Justice. The above violation can be redressed by invoking the constitutional jurisdiction under Article 199 of the Constitution, 1973. In this regard, we are fortified with the cases of (1)Mrs. AnisaRehman v. P.I.A.C and another reported as 1994 SCMR 2232,(2) Pakistan International Airline Corporation through Chairman and others v. Nasir Jamal Malik and others reported as 2001 SCMR 934 and (3) Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. QaisraElahi and others reported as 2005 SCMR 678.
11. As observed above, the petitioner was confirmed employee of the respondent and he was promoted as LDC (BPS-05). His total period in service with the respondent is near about twenty (20) years. Nothing on record that the petitioner was previously inhabit to remain absent from his duty. It is argued by the learned counsel for the respondents that the services of the petitioner were dispensed with under Chapter III, Rule 8(b)(1) of the Pakistan Defence Officers Housing Authority Rules, therefore, the appeal filed by the petitioner was not responded.No blanket powers can be exercised to dispense with the service of regular employee. The issue was earlier settled on issuing recordable warning, therefore, in our view, the termination does not seem to be bonafide.Hence, for the foregoing reasons, we are inclined to hold that this petition is maintainable and before passing an order of dispense with the service of the petitioner, he was entitled to be heard.Consequently,we would allow the petition in hand and set-aside the impugned order dated 18.09.2013, whereby the petitioner was ousted from service in violation of law. The petitioner is reinstated into service with back benefits. The petition is disposed of accordingly alongwith listed applications.
Dated: 11.01.2017
JUDGE
JUDGE
Faizan A. Rathore/