2013 PLP 375 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.

This civil petition for leave to appeal has been filed against the judgment of the High Court of Sindh, Karachi dated 24-9-2012 passed in C.P. No.D-141 of 2011.

2. Briefly stating, facts of the case are that respondent Muhammad Aslam Chaudhry, Manager Human Resource Department, Pakistan Steels was proceeded against departmentally for the allegations of engaging ghost daily wages workers. As such, proceedings under Removal from Service (Special Powers) Ordinance 2000 ("the Ordinance of 2000") were initiated against him. Departmental proceedings culminated in his dismissal from service with immediate effect on 18th July, 2007. The respondent on completion of codal formalities approached the High Court by invoking its jurisdiction under Article 199 of the Constitution through C.P. No.D-1772 of 2007. During the pendency, of the Constitution petition before the High Court, departmental appeal of the respondent was also rejected. His petition before the High Court was dismissed on the ground of maintainability, leaving him to approach the Federal Service Tribunal ("the Tribunal"). In the meantime, jurisdiction of the Tribunal under section 2-A of the Service Tribunals Act 1973 was adjudicated upon in the case of Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602), therefore, his appeal, having become infructuous, was dismissed. He, therefore, again preferred Constitution Petition No.141 of 2011 before the High Court, which has been accepted, vide impugned judgment, in pursuance whereof order of his dismissal from service was set aside, however, with further observation that the petitioner is not being ordered to be reinstated in service because he had already attained the age of superannuation on 15-2-2010. However, he was held entitled to back benefits from the date of dismissal till his attaining the age of superannuation and also terminal/retirement benefits in accordance with rules.

3. Learned counsel for the petitioner contended that petitioner has no statutory rules, therefore, the High Court had no jurisdiction. On the other hand, learned Deputy Attorney-General, who appeared on Court notice, stated that, prima facie, High Court had jurisdiction because action was taken against the respondent under section 5 of the Ordinance of 2000.

4. We have heard the learned Advocate Supreme Court for the petitioner and learned Deputy Attorney-General, the latter relied upon the judgment in the case of Civil Aviation Authority v. Javed Ahmad (2009 SCMR 956) and stated that in such like cases when a person has been dismissed under the Ordinance of 2000, he can invoke the jurisdiction of the High Court as he cannot be left without any remedy. He relied upon following paragraph from the judgment in the case of Javed Ahmed (supra):-- "

8. Needless to mention here that FBR through Circular No.7 dated l9th July, 2008 clarified that scheme is applicable to all undisclosed assets/income which somehow or the other could not be disclosed and remained unexplained and that cases are pending in appeal or raised/detected by the department would be dealt under normal law and not under specific provisions of scheme. The second deviation took place when the FBR issued Circular No.8 of 2008 whereby the scheme was restricted so as to exclude pending cases before the department, appellate authority or any Court, thus, the state of law was changed. We are of the view that amendment brought through the referred circular is of substantive nature thereby restricting the scope of the original scheme and the state of law stood changed from the said date effecting the right and liabilities of those who have acted upon the scheme in good faith under its original scope. Therefore, Circular No.8 of 2008 cannot apply retrospectively and show-cause notices stand vacated.

5. It is pertinent to mention here that besides the above judgment, in another case i.e. Hyderabad Electric Supply Company v. Mushtaq Ali Brohi (2010 PSC 1392), this Court has held that as the services of the respondent were not governed by the statutory rules, therefore, the High Court had no jurisdiction to entertain the petition under Article 199 of the Constitution. It may not be out of context to note that in another case reported as Executive Council Allama Iqbal Open University v. M. Tufail Hashmi (2010 SCMR 1484), this Court in its paragraph No.9 observed as under:-- "

9. The principle perceived from the above judgments is that the employees of those organizations, which are discharging functions in connection with the affairs of Federation, can approach the learned High Court under Article 199 of the Constitution but subject to the condition if their services are protected under the statutory rules."

6. As far as the jurisdiction of the Tribunal under Article 212 of the Constitution is concerned, it was opined that the Tribunal would have jurisdiction under Article 212 of the Constitution for redressal of grievance of those employees whose terms and conditions are governed under the statutory rules. Admittedly, terms and conditions of the respondent in the present case have not been settled under the Constitutional provision referred to hereinbefore, therefore, inter alia, the question for consideration would be as to whether, if a person being employee of a corporation like Steel Mills has been proceeded against under the provisions of Ordinance of 2000, would he have no remedy to challenge such order.

7. Leave to appeal is granted, inter alia, to examine the above questions and to resolve the divergent opinions in the judgments noted hereinabove. Office is directed to put up a note for the purpose of constituting larger Bench to set at naught these discrepancies in the judgments noted above. MWA/P-24/SC Leave granted.