1999SCMR890 (PLP)

MUNAWAR AHMED MIRZA, J.

This petition for leave to appeal is directed against order, dated 22-8-1996 passed in Constitutional Petition No. D-523 of 1996 by High Court of Sindh, Karachi.

2. Petitioner a multinational company has established with sophisticated technology a chemical factory at Jamshoro. It appears that pursuant upon certain arrangement while inviting tenders for recovery of octroi-tax through public advertisements, the Union Council had been expressly excluded the petitioner from the recovery of octroi-tax by the Contractor. Documents on record, however, suggest, that at different occasions separate agreement showing fixed amount of octroi payable to Union Council, Jamshoro, were executed between the petitioner and said Union Council.

3. It is the case of petitioner that respondent No.3 (Union Council, Jamshoro with express sanction of Provincial Government Sindh executed an agreement with petitioner regarding payment of fixed octroi-tax for the period commencing from 1st July, 1995 to 30th June, 1996.

4. It may be seen that respondent No. 1 (Muhammad Hashim Zardari) claiming to be Octroi Contractor towards 12-8-1995 submitted an application to Secretary. Local Government of Sindh for holding open auction in respect of octroi-tax payable by the petitioner to respondent No.3 (Union Council, Jamshoro). He also made an offer of Rs.15,00,000 (Rupees fifteen lacs) for granting him right to recover octroi from petitioner during ensuing years of 1995 and 1996.

5. Record reflects that on 28-3-1996 Administrator, Union Council, Jamshoro, awarded the contract for recovery of octroi from petitioner (M/s. Sandoz (Pakistan) Limited) with effect from 1st April, 1998, to respondent Muhammad Hashim Zardari. The Petitioner aggrieved from cancellation of agreement concerning fixed octroi represented before high authorities, whereupon implementation of aforementioned arrangement of awarding collection rights of octroi-tax from petitioner vide letter, dated 28th March, 1996 was suspended by Secretary, Local Government of Sindh by means of Letter No.SOIV/16(38) of 1995 UC Jamshoro, dated 3rd April, 1996.

6. Respondent herein namely Muhammad Hashim Zardari challenged aforementioned letter, dated 3-4-1996 which had affected his right of recovering octroi from petitioner, before High Court of Sindh through Constitutional Petition No.D-523 of 1996. During pendency of above petition with consent following interim order was passed on 18-4-1996:-- "As Mr. Ikram Ahmed Ansari requests for time to file counter affidavit, by consent the case is adjourned to 24-4-1996. It is further ordered, by consent, that no octroi would be charged by the petitioner from the Intervenor. Sandoz Limited, provided the said intervenor deposits a sum of Rs.5,00,000 (five lacs) within three days with the Nazir of this Court by way of security. It is further ordered by consent, that an account will be kept of the goods of the intervenor, which may be subject to the payment of the Octroi. As Mr. Khalid Anwar, learned counsel for the intervenor, has undertaken that the said amount would be deposited in the Court as just ordered, this order may be made effective from today. Therefore, by consent, it is ordered accordingly."

7. Later while considering another Miscellaneous Application No.2979 of 1996 High Court directed the petitioner herein, to deposit an amount of Rs.1,27,22,797 (Rupees one crore twenty-seven lacs, twenty-two thousand, seven hundred ninety-seven only), which has now been assailed in present petition for leave to appeal, Operative portion is reproduced hereunder:-- "After considering the respective contentions raised on behalf of the parties although it is not possible for us to determine what is the exact amount payable by the respondent No.3 to the petitioner or the respondent No.2, on account of octroi, but the claim put forward by the petitioner indicates that a huge amount is due from the respondent No.3 to the petitioner or the respondent No.2. The contention of the learned counsel for the petitioner and respondent No.2 does not appear to be unreasonable that the interest of the said respondents must be properly secured before the respondent No.3 is allowed any concession by this Court, in pursuance of the order passed by it dated 18-4-1996. Consequently, we direct the respondent No.3 try deposit an amount of Rs.1,27,22,797 in this Court, payment of which would be subject to the final decision that may be taken in this petition. The said amount may be deposited within two weeks from today. The amount shall be invested in profit bearing securities by the Nazir. In case of failure by the respondent No.3 to deposit the said amount, the concession enjoyed by the respondent No.3 in pursuance of the order, dated 18-4-1996 or any other order passed subsequently shall cease to be operative. By consent the petition shall be fixed for regular hearing after three weeks. "

8. M/s. Fazal-e-Ghani, Senior Advocate Supreme Court for petitioner, and M.A. Siddiqui, Advocate Supreme Court for respondent No.l (Muhammad Hashim) have addressed the arguments. It transpired that respondent No.3 for recovery of octroi tax pertaining to year 1996-97 from the petitioner has executed fresh agreement and such arrangement is continuing. Without entering into factual controversy we feel that following question of considerable importance arise for consideration:-- (i) Whether during the subsistence of agreement for recovering fixed octroi tax from the petitioner, could Provincial Government or Administrator, Union Council, Jamshoro, unilaterally cancel the same or award contract for recovering any part of such octroi to respondent Muhammad Hshim Zardari? (ii) Whether Union Council Jamshoro after contracting with petitioner for fixed amount of octroi tax recoverable in respect of period commencing from 1-7-1995 till 30-6-1996; could retrospectively raise the demand or without notice grant right of recovering octroi tax at enhanced rates for A the remaining period or a portion thereof or entire period for which octroi tax was already received by any other person? (iii) Whether respondent Muhammad Hashim Zardari has many legitimate right to claim/recover Rs.1,27,22,797 from petitioner herein; or High Court of Sindh in the exercise of extraordinary Constitutional jurisdiction without striking down letter, dated 4th April, 1996 issued by Secretary, Local Government had lawful authority of directing the petitioner to deposit aforesaid amount?? (iv) What were the basis of calculating octroi tax and its liabilities as mentioned in the impugned order, specially when evidence was not yet adduced.?

9. We, therefore, grant leave to appeal to thoroughly examine, inter alia above aspects.

10. We may observe, that High Court of Sindh while passing impugned order: with consent had directed to fix regular hearing of the petition within three weeks. Surprisingly despite expiry of two years matter has not been finally disposed of. It would be just and proper if the High Court ensures expeditious disposal of main Constitution Petition.

11. The stay order passed on 1-9-1996, shall, however, remain operative till final disposal of appeal. H.B.T./S-106/S??????????????????????????????????????????????????????????? Leave to appeal granted. 1999SCMR894 [Supreme Court of Pakistan] Present: Ajmal Mian, C. J., Munawar Ahmed Mirza and Ch. Muhammad Arif, JJ UNITED BANK LIMITED

Petitioner versus SHAMIM AHMED KHAN and 41 others

Respondents Civil Petitions Nos. 1004 to 1045 of 1998, decided on 6th October, 1998 (On appeal from the judgment dated 28-7-1998 passed by the Federal Service Tribunal, Karachi in Appeals Nos. 139(K)/98, 165(K)/98 to 174(K)/98, 180(K)/98 to 186(K)/98, 196(K)/98, 197(K)/98, 204(K)/98, 216(K)/98, 217(K)/98, 221(K)/98, 224(K)/98, 225(K)/98, 230(K)/98, 231(K)/98, 559(K)/98 to 569(K)/98, 788(K)/98, 789(K)/98 and 940(K)/98).

Ss. 2-A & 4

Constitution of Pakistan (1973), Art. 185(3)

Dispensing with the services of Bank employees under "Compulsory Golden Handshake Scheme"

Service Tribunal accepted appeal filed by civil servants against such decision of the Bank

Service Tribunal set aside order of Bank with direction to reinstate civil servants in service

Validity

Leave to appeal was granted to consider whether judgment passed by Service Tribunal was in consonance with law enunciated by Supreme Court in that respect

Interlocutory relief sought by Bank was subjected to condition that Bank either should re-induct civil servants into service or should pay them future monthly salaries till the disposal, of appeal with the condition that the respondents would return the amount secured by them from the Bank within a period of two weeks. United Bank Limited and others v. Ahsan Akhtar and others 1998 SCMR 68; Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 53'1; United Bank Limited v. Ahsan Akhtar and others 1998 SCMR 68; K. Rajendran and others v. State of Tamil Nadu and others AIR 1982 SC 1107 and Zeal Pak Cement Factory Ltd., Hyderabad v. Chairman, West Pakistan Industrial Court, Lahore and others PLD 1965 SC 420 ref. Raja Muhammad Akram, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner (in all C.Ps.). A. Mujeeb Pirzada, Advocate Supreme Court for Respondents (in C.Ps. Nos. 1004 to 1028 of 1998). M.L. Shahani, Advocate Supreme Court for Respondents (in C.Ps. Nos..1029 to 1038 of 1998). Akram Sheikh, Advocate Supreme Court and K.A. Wahab, Advocate-?on-Record for Respondents (in C.Ps. Nos. 1039 to 1045 of 1998). Date of hearing: 6th October, 1998. AJMAL MIAN, C.J.

By this common order we intend to dispose of the above 42 petitions for leave to appeal which are directed against a common judgment, dated 28-7-1998 passed by the Federal Service Tribunal (hereinafter referred to as the Tribunal) in Appeal No. 139-K of 1998 and connected appeals mentioned in the title of the judgment filed by the respondents challenging the compulsory Golden Handshake Scheme (hereinafter referred to as the Scheme) for dispensing with the respondents' services on payment of amounts mentioned in the Scheme, allowing to same in the following terms:-- "In view of the above we are of the opinion that the impugned order suffers from several irreparable irregularities rather illegalities, therefore, the impugned order cannot be upheld which is hereby set aside. The respondent Bank is directed to reinstate the appellants subject to the recovery of any retirement benefits, if any. However, in view of the previously prevailing ambiguity about the jurisdiction of forum and the status of the employees, we do not consider fit to order the payment of the benefits for the intervening period and, therefore, the intervening period may be treated as leave of any kind due. This judgment shall be without prejudice to the right of the Bank to initiate any scheme providing for the opportunity of hearing, option of retirement or option of reversion by a transparent policy of retrenchment with the approval of the concerned authorities." The Scheme was introduced in order to down size the number of the staff for reducing the expenses of the Bank. One of us (Ajmal Mian, J. as then he was) in the leave granting order dated 31-10-1997 in the case of United Bank Limited and others v. Ahsan Akhtar and others (1998 SCMR 68) has referred to the reason and detail of the Scheme. It appears that inter alia the respondents were not given the option to opt for the Scheme, but the same was applied to them compulsorily and their services were dispensed with on payment of compensation provided in the scheme. It appears that in view of the incorporation of section 2-A in the Service Tribunals Act, 1973 (hereinafter referred to as the Act) by Service Tribunals (Amendments) Act, 1997 (which provided "that service under any authority, corporation, body or organization established by or under a Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purpose of this Act"), the respondents filed the above appeals before the Federal Service Tribunal, which were resisted by the petitioner bank on various grounds, the same were allowed in the above terms. The petitioner bank has, therefore, filed the present petitions for leave to appeal. In support of the above petitions Raja Muhammad Akram, learned counsel for the petitioner bank, has inter alia contended as under:-- (i) That in spite of the fact that the respondents were deemed to be civil servants for the purpose of the Act, they remained employees of a corporation and, therefore, in the absence of any statutory rules the relationship between the petitioner and the respondents was that of the master and servant. In this respect reliance has been placed on the cases of Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others (PLD 1992 SC 531) and United Bank Limited v. Ahsan Akhtar and others (1998 SCMR 68). (ii) That the petitioner bank was entitled to down size the number of the staff in view of the economic stress. Reliance was placed on the case of K. Rajendran and others etc. etc. v. State of Tamil Nadu and others (AIR 1982 SC 1107), para. 35 at page 1120). (iii) That the petitioner bank was entitled to re-organize its business in order to run it more efficiently and if in the above process some members of the staff have become redundant, it was entitled to terminate their services. Reliance was placed on the case of Zeal Pak Cement Factory Ltd., Hyderabad v. The Chairman, West Pakistan Industrial Court, Lahore and others (PLD 1965 SC 420). (iv) That the learned Tribunal has enunciated various points of law in the impugned judgment contrary to the law enunciated by the superior Courts. (v) That the Tribunal erred in ordering the reinstatement of the respondents in the above terms. On-the other hand Messrs Akram Sheikh, Raja Muhammad Akram and A. Mujeeb Pirzada, learned counsel for the respondents have vehemently urged that though there may be some error on the part of the Tribunal in enunciating the legal position on the various points, but the conclusion, namely, that the Scheme was illegally applied to the respondents, was correct. According to them, the Scheme was, inter alia, violative of Article 25 of the Constitution and also was in breach of the principle of natural justice. We are inclined to grant leave to consider as to whether the impugned judgment is in consonance with the law enunciated by this Court: As regards the interlocutory relief, we are inclined to order that the petitioner should either re-induct the respondents into service, or should pay to them future monthly salaries till the disposal of the appeal arising from the above petitions, subject to the condition that the respondents would return the amounts received by them from the petitioner bank within a period of two weeks. The appeals arising from the above petitions may be fixed for hearing within a period of six months. H.B.T./M-I 1/S ?????????????????????????????????????????????????????????? Leave to appeal granted.