P L D 1983 Karachi 576 (PLP)

ABDUL HAYEE KURESHI, C. J. Petitioner Farid Ahmad, was at all relevant times serving as Marine Engineer, in Karachi Shipyard and Engineering Works Limited. It is admitted case that the said Karachi Shipyard is a company registered under the Companies Act, 1913. For some alleged unsatisfactory act the petitioner was given show-cause notice. He made reply which was found to be unsatisfactory and ultimately he was dismissed from service on 22-4-1979. Aggrieved by such order the petitioner filed the present petition seeking the following reliefs : "(i) Declare that the petitioner's dismissal flowing from the enquiries and show-cause notices as ordered by the respondent No. 1 is without lawful authority having no legal sanctity and that the petitioner continues in service. (ii) It is further prayed that alternatively the petitioner's dismissal being illegal the respondents be directed to accord to the petitioner all his right including all fiduciary benefits accruing to the petitioner as acquired during the tenure of his service, and or direct the respondent No. 1 to accept his resignation from service effective from the material date. (iii) Pass any appropriate order, directions, which this Honourable Court may deem fit and proper in the circumstances of the case. (iv) Also award costs of the petition."

2. We asked Mr. Nasim Farooqi, whether the petitioner was an employee of a Corporation or a Company or in service of Pakistan within the meaning of the Constitution or was a private employee with a definite master. It had become necessary for us to ask these questions because in paragraph 4 of the petition it was stated as under:- "

4. That respondent No. 1 is a corporation which is wholly controlled by the Government of Pakistan under the Ministry of Communication. The .Chairman, Managing Director and all other Directors are appointed by the Government. The respondent No. 1 fulfils functions in connection with the affairs of respondent No.

2. That the respondent No. 1 is primarily a department of the respondent No. 2 Government, accordingly the control of the respondent No. 1 organization fully vests in the Federal Government, indeed the minutes of the respondent No. 1's Board of Directors since inception conclusively established the respondent No. 1 position as asserted in the precedings recital." A bare perusal of the paragraph 4 would indicate that the petitioner had made an affort to show himself to be a Government servant or at least such person or employee who had all the benefits of a Government Servant. The learned counsel, as we anticipated stated before us that the petitioner was an employee of a Corporation and was not in the service of Pakistan.

3. The sole question that now arises is whether this constitutional petition is maintainable in view of the bar contained in Article 212 of the Constitution. Mr. Aziz Munshi, has invited our attention to the provision of sections 3 and 5 of the Corporation Employees (Special Powers) Ordinance, 1978. This Ordinance is reproduced at page 75 of P L D 1978 Central Statutes. It will be profitable to reproduce sections 3 and 5 of the said Ordinance for purposes of determining the issue involved in this case. The same reads as follows : "

3. Certain persons to be liable to removal or reversion.--Notwithstanding anything contained in any law for the time being in force, or in the terms and conditions of service, a person in corporation service appointed or promoted during the period from the first day of January 1972 to the fifth day of July, 1977 may be removed from service, or reverted to his lower post or grade as the case may be, without notice, by the President, or a person authorised by him in this behalf, on such date as the President, or as the case may be, the person so authorised may, in the public interest, direct.

5. Service of corporation to be service of Pakistan, etc.-Service of a corporation is hereby declared to be service of Pakistan and every person in corporation service who is removed from service, or reverted to a lower post or grade, under this Ordinance, not being a person who is on deputation to a corporation from any province, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973."

4. As is known several persons had been recruited between January, 1972 to July, 1977 and a difficulty was faced by several corporations, instituted or established by the Government, in meeting the expenditures. By and large it was stated that there was surplus staff in the institutions for such a reason under section 3 of the said Ordinance provided for removal of some persons from service or reduction to the lower post or grade without notice. The import of section 5 is however to be understood in juxtaposition. Section 5 can fairly be divided in two separate, independent parts. The opening sentence of section states that every person in the service of a corporation is declared to be in the service of Pakistan. This is a declaratory provision confirming the status of all employees of corporations as persons in the service of Pakistan. The later portion of section 5 which is joined with the former portion is linked by the use of the word "and". In this latter portion some venue of relief was sought to be provided for such persons who had been removed or demoted in exercise of power under section 3 of the Ordinance. These persons were by legal fiction termed to be civil servants for purposes of service Tribunal Act, 1973. It would thus mean that section 5 operates to achieve two objects and such objects are stated distinctly and separately though joined by the word "and". In the first part of the section, status of corporation employees has been determined ;that they shall have the same right as persons in service of Pakistan in their service matters and the latter part of section 5 attempts to achieve another object by providing remedies to those persons who had been removed under section

3. Mr. Nasim Farooqi, has canvassed before us that section 5 would only apply in case of such persons who have been removed or reduced under section

3. We are afraid, we cannot accept this interpretation because of the plain language of section

5. By accepting this interpretation, we could virtually be holding the opening sub-clause in section 5 to be redundant and meaningless. Redundancy is rarely ascribed to the legislation.

5. Mr. Nasim Farooqi, has also invited our attention to a judgment of a Division Bench of this Court in C. P. No. 785/76. In that case a petition had been filed by the Peoples Steel Mills Ltd., against Sind Employees Social Security Institution. In that case the main question which arose in regard to benefit of employees of the Steel Mills is in the nature of social security benefit. It was a case in which the persons affected were perhaps appointed between January, 1972 and July, 1977 and the learned Judges of the Division Bench have observed as follows : "Under this Ordinance such employees for the limited purpose of obtaining redress against such removal or the demotion are deemed to be civil servants for the purpose of Service Tribunals Act, 1973. In other words for all other proposes they would not be civil servants." On a reading of the above passage it would appear that the learned Judges have not and have indeed not attempted to interpret the opening sub-clause of section 5 of this Ordinance. This judgment, therefore, is hardly of any avail to the petitioner.

6. The position therefore, is plain to us that since all the provisions relating to persons in service of Pakistan and the provisions of Service Tribunal Act are applicable to the petitioner the remedy by this constitutional petition is barred. We are also conscious of the provisions of Art. 2W of the Constitution which defines service of Pakistan and the Constitution has provided power to the Government to declare any service to be service of Pakistan.

7. We see no substance in this petition which we dismiss in limine. s. Q. Petition dismissed.