2001 PLP 934 (SCMR)

IFTIKHAR MUHAMAMD CHAUDHRY, J.

These appeals have been-filed by leave of the Court vide order dated 17th March, 1999 against the judgment of the Federal. Service Tribunal, Islamabad dated 21st January, 1999. In pursuance whereof the respondents were reinstated is service of Pakistan International Airlines Corporation (PIAC). For the sake of convenience operative para. from leave granting order is reproduced hereinbelow:-- "

3. The main ground that weighed with the Tribunal was that, the action taken by the petitioner was in violation of the principles embodied in the maxim audi alteram partem. Reliance was placed on the case of Mrs. Anisa Rehman v. P.I.A.C. and others (1994 SCMR 2232) decided by this Court earlier.

4. Since admittedly, relationship between the said Corporation and its employees is not governed by any statutory rules of service and it has been the consistent view of this Court that, in absence of statutory rules, such relationship is to be governed by the principle of master and servant and in such cases if services of -an employee are terminated by the employer, and only remedy available to the former in. case of wrongful dismissal would be by institution of a suit for damages against the employer, therefore, it requires to be considered whether relief can be granted in such cases by reinstatement of such employee in service. Reliance has been placed by the Tribunal on the judgment in the case of Mrs. Anisa Rehman (supra), wherein it was held that the principles of natural justice would be applicable in cases of an employee if any action detrimental to his interest is taken by the employer, but apparently no deviation' was intended to be made in the said judgment from the rule earlier followed by this Court, as would appear from some of the judgments recently given by this Court after Anisa Rehman's case. (See United Bank Limited v. Ahsan Akhtar 1998 SCMR 68).

5. Under the circumstances, leave to appeal is granted on the question, whether the Tribunal was right in ordering the reinstatement of the respondents into service."

2. Learned counsel for appellants contended that services of respondents were being governed by the principle of Master and Servant, therefore, they were not entitled for right of hearing and learned Federal Service Tribunal incorrectly placed reliance on the judgment in the case of Anisa Rehman v. P.I.A.C. and others 1994 SCMR 2232. As per his next contention the employer has jurisdiction under section 10 of the Pakistan International -Airlines Corporation Act, 1956 (hereinafter referred to as the "Act") read with Regulation 86 of Pakistan International Airlines Corporation Employees (,Service and Discipline) Regulations, 1985. as well as under section 26 of the General Clauses Act to dispense with their services. Reliance was placed by him on (i) 1998 SCMR 68, (ii) 1999 SCMR 894 and 1526, (iii) PLD 1999 SC -1106 and (iv) 1999 PLC (C.S.) 1539.

3. Learned counsel for respondents argued that Pakistan International Airlines has framed the Pakistan International Airlines Corporation. Rules, 1958 (hereinafter referred to as the "Rules") and the Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985 (hereinafter referred to as the "Service Regulations") under the Act, therefore, before passing any adverse order they were entitled to be dealt with in accordance with the relevant Rules/Regulations. It was also emphasised that as per provisions, of section 2-A of Service Tribunals Act, 1973 the employees of a statutory corporation enjoy the status of a civil servant, therefore, without adopting the procedure prescribed by Regulations their termination from service vide orders impugned before Service Tribunal was illegal. It was also pointed out by them that in some of the cases no reasons have been assigned by the concerned authority of appellant organization while terminating their services whereas in some of the cases their services were dispensed with as they obtained appointment by using political influence. However, in the rejoinder to appeal before Service Tribunal consistent stand in all the cases was taken by the appellants that they were appointed contrary to the Rules and Regulations on account of political influence, used by them upon the higher authorities: They relied on PLD 1990 SC 666, unreported judgment in the cases of P.I.A.C. v. Dr. Mazhar Naeem (CPLA 1062 of 1998), Civil Review No. 165 of 1998. Saleem Murtaza Shah v. P.I.A.C. and P.I.A.C. v. Mrs.. Allia.Hashmi (C.P.L.A. 573 of 2000).

4. We have heard the parties' counsel at length and have carefully gone through the impugned judgment. Before dilating upon respective contentions of the parties counsel we consider it appropriate to produce hereinbelow details of service of respondents: -- S.No Appeal No. States and date of appointment. Status and date of Date of termination 330/1999 Nasir Jamal Malik Reservation and Ticketing Officer 7-9-1995 14-12-1996 331/1999 Rana Shahid Ahmad Noon Reservation and Ticketing Officer 19-3-1996 14-12-1996 332/1999 Aftab Ahmad Store Purchase Officer 6-6-1995 14-12-1996 333/1999 Pervaiz Naseer Passenger Service Officer 24-4-1995 20-3-1997 334/1999 Muhammad Faisal Mahboob Horticulture Officer 8-5-1995 20-3-1997 335/1999 Omar Razzaq Assistant Manager (Store and Purchases) 25-5-1995 12-12-1996 336/1999 Irfan Illahi Marketing Officer 30-7-1995 14-12-1996 337/1999 Muhammad Raza Reservation and Ticketing Officer 7-4-1996 14-12-1996 436/1999 Mrs.Amna Khawaja Admin. Officer 17-8-1995 12-12-1996 In the cases mentioned at S.Nos.l to 3 arid 6 to 9 the termination letter of the respondents %Were issued without assigning any reason. For convenience one of them is reproduced hereinbelow:-- "It is to inform you that your services with the Corporation being no longer required, are hereby terminated with immediate effect. (2) Your dues will be settled in accordance with the terms and conditions of your service, and applicable rules of the Corporation.. (3) This has the approval of the competent authority." As far as remaining respondents are concerned they were terminated from service because they succeeded in getting service through extraneous influence and pressure exerted by the then Prime Minister's Secretariat. One of the termination orders, is reproduced hereunder for convenience:-- "On scrutiny of record it has been found that your appointment as Pax Service Officer in P.I.A.C. service is irregular. It was without inviting applications through advertisement and without competition on merits. Hence void ab initio. Therefore, your services are terminated forthwith without any stigma. Since your termination is simpliciter, you will be entitled to apply for position as and when vacancy is advertised on the basis of your qualification and merits. (2) You will be issued Service Certificate and paid your legal dues on submission of attached clearance ,certificate duly completed in all respects/return of the-following PIA property/documents:-- (a) PIA Card. (b) Apron Pass. (c) Family Cards. (d) Any other PIA document/property (3) This has the approval of competent authority." It is important to observe at this stage that before the Federal Service Tribunal appellant's categoric stance in all the cases was that they were terminated from the service because they were appointed through influence and pressure exerted by the then Prime Minister's Secretariat. Relevant para. reads as under:-- "The petitioner succeeded in getting himself inducted into the employment of the respondent Pakistan International Airlines Corporation (P.I.A.C.), through extraneous influence and pressure exerted by the then Prime Minister's Secretariat. The induction of the petitioner into the service of the respondent PIA Corporation was irregular, unjustified and in violation of applicable regulations/procedures of employment in P.I.A.C. The appellant had thus never been a de jute employee of the respondent P.I.A.C: It was an ill-gotten gain on the part of the appellant and no law can favour the appellant to retain ill-gotten gains. Reliance is placed on the judgment of the Supreme Court of Pakistan in the case (PLD 1997 SC 351) titled Province of the Punjab v. Dr. S. Muhammad Zafar Bukhari."

5. The learned Federal Service Tribunal vide impugned order accepted the appeals filed by the respondents for the principal reason that opportunity of hearing before passing adverse orders against them was not afforded to them, therefore, placing reliance on the case of Mrs. Anisa Rehman v. P.I.A.C. and others (1994 SCMR 2232) reinstated them in service with all back benefits.

6. In view of above background first of all it is pertinent to attend the proposition; "As to whether the employees of P.I.A.C. are governed by the principle -of Master and Servant or they have protection of any statutory law". As per the scheme of the Act the Board of Directors of the Corporation is authorized to do all acts which may be exercised or done. by the Corporation. The authority for appointment of Officers, Advisors and employees has been conferred upon the Corporation "for its efficient performance and function. To give effect to the Act, the Federal Government has been empowered to make Rules under section 29 whereas the Board is authorized to make Regulations under section 30 with the previous sanction .of the Federal Government and the Regulations shall not be inconsistent with the Act. It may also be rioted that under section 31 of the Act-the Rules and Regulations made under the Act shall be published in the official Gazettee and later on they are also required to be laid before the Legislature. There-is, no controversy between the parties that on 31st March, 1985 Service Regulations were promulgated but these Regulations have not been framed with the previous sanction of the Federal Government nor were laid ever before the National Assembly. Thus for non-adherance to section 31 of the Act, the Regulations will not have protection of the Act, therefore, cannot be termed to be the Regulations having statutory backing as held in 1994 SCMR 2232. In his judgment while considering the status of Rules having no statutory backing it was held as under:-- "

4. Adverting to the above first contention of Mr. Shahani that respondent No.1 has statutory rules, it may be observed that in furtherance of his. above submission he has referred to P.I.A.C. Rules, 1958 framed by the Central Government under section 29 of the P.I.A.C. Act, 1956 (hereinafter referred to as the Act). He has particularly referred to rule 22(e), which empowers the Board of respondent No.1, to appoint, remove or suspend any Manager, Secretary, Officers, Clerks, Agents or servants and direct and control and fix their salary and grades etc. In our view, above rules have nothing to do with the service matters as they relate to the working and powers of the Board of Directors of respondent No. l Corporation. It may be pointed out that it has been consistently held by this Court that respondent No. l does not have any. statutory service rules in terms of section 31 of the Act which provides that all Rules and Regulations made under this Act shall be published in the official Gazettee, and shall come into force upon such publication and shall be laid thereafter as soon as may be before the National Assembly'." It would not be out of context to note at this stage that in a latter case of Pakistan International Airlines Corporation through Chairman and others v. Koural Channa and others (1999 PLC (C.S.) 1539) the question whether the principle of Master and Servant will be applicable on the employees of the Corporation was left open because the case was being remitted to the Service Tribunal for fresh decision in accordance with law. But in view of ratio decidendi in the case of Mrs. Anisa Rehman it is held that as the Regulations as well as the Rules have not been promulgated in teams of sections 29, 30 and 31 of the Act, therefore, relationship between the employer and employees in the organization of P.I.A.C. will be governed by the principle of Master and Servant. However, the employer who itself has framed Rules as well as the Regulations for its domestic purposes is bound to strictly follow/adhere them because deviation therefrom is bound to violate settled principles of justice including the one enshrine' in the maxim Audi alteram partem i.e. no one is to be condemned unheard.

7. Learned counsel for the appellants contended that as the principle of Master and Servant governs the relationship between the employer and the employees, therefore, before removing/terminating the services of the respondents they were not entitled for right of hearing by issuing show-cause notice to them. Moreover the employees of such category cannot claim their reinstatement in the service except claiming damages as it has been held in the cases of Mahmood Hussain v. Pakistan International Airlines and others (1989 PLC (C. S.) 549) and United Bank Limited and others v. Ahsan Akhtar and others (1998 SCMR 68). Learned counsel for respondents emphatically opposed the arguments raised by the appellant's counsel and contended that the principle of audi alteram partem is to be adhered to in every kind of proceedings notwithstanding the fact whether it is being drawn under the statutory or non-statutory enactments. Reliance was placed by them on the case of Mrs. M.N. Arshad and others v. Miss Naeema Khan and others (PLD 1990 SC 612). We have considered the arguments so advanced by both the sides in this behalf. It may be noted that in the judicial history of our country as well as in those countries where identical/corresponding system of administration of justice is audi alteram partem has been made applicable expressly or impliedly m every instrument governing the proceedings which may be statutory or otherwise and if its absence is conspicuous by not making it part of the instrument governing the proceedings, Though the principle of audi alteram partem is not universally accepted principle but emphasis on its application has always been made on those proceedings where adverse action is being contemplated to be taken against the person/persons who have at least a right to defend such action or during course of time they have acquired a right to negate allegations on basis of which an action adversely affecting their interest is being taken. To strengthen the arguments reference may be made to Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (PLD 1959 SC (Pak.) 45); (ii) Messrs Faridsons Limited, Karachi and another v. Government of Pakistan and another (PLD 1961 SC 537), (iii) Abdur Rehman v. Collector and Deputy Commissioner, Bahawalnagar and others (PLD 1964 SC 461), (iv) Abul A'la Maudoodi v. Government of West Pakistan (PLD 1964 SC 673), (v) University of Dacca v. Zakir Ahmad (PLD 1965 SC 90), (vi) Muhammad Hayat v. Province of West Pakistan (PLD 1964 SC 321), (vii) Messrs East-end Exports, Karachi v. The Chief Controller of Imports and Exports, Rawalpindi and another (PLD 1965 SC 605), (viii) Pakistan and others v. Public At Large and others (PLD 1987 SC 304), (ix) Khaliluz Zairian v. Supreme. Appellate Court, Lahore and 4 others (PLD 1994 SC 885), (x) Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158, Naushero Feroze and others 1994 SCMR 1299 and Faqir Ullah v. Khalil-ur-Zaman and others (1999 SCMR 2203). It may be noted that in the case of University of Dacca (ibid) question for consideration before this Court was as to whether the principle of Natural justice (audi alteram partem) in the cases of expulsion of student, by University Authorities, for alleged indiscipline, misconduct and rowdyism is applicable. In this context it was held that in all proceedings by whomsoever held, whether judicial or- administrative, the principles of Natural justice have- to be observed if the proceedings might result in consequences affecting ".the person or property or other right of the parties concerned". This rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness. As far as services of respondents are concerned though the principle of Master and Servant is applicable but in the case of Mrs. Anisa Rehman v P.I.A.C. and others (1994 SCMR 2232) it was held that the action of the Corporation violating the principles of natural justice will be without lawful authority and of no legal effect, It was further held that violation of the maxim could be equated with the violation of the principles of law warranting pressing into service Constitutional jurisdiction. Thus we are inclined to hold that in the instant cases appellants terminated the services of the respondents in violation of the principles of natural justice because before passing impugned order no opportunity was given to them to defend themselves against a unilateral adverse action intended to be taken against; them. It may be observed that as .per details of the service of each of the respondents noted in the above paras they were in the employment of the appellants for more than a period of 6 months, therefore, at least a right to defend had accrued to them against the proposed action of termination of their services which in some of the cases had taken place without assigning any reason whereas in some of the cases it was alleged that they managed their induction in the employment of P.I.A.C. under the directions of Prime Minister's Secretariat but before the Federal Service Tribunal a consistent stand was taken by the appellants which has also been reproduced hereinabove. According to which the respondents were being removed because their appointments were not in accordance with law or it had taken place due to their influence etc. Thus apparent contradictions in the reasons disclosed in the termination orders as well 'as the' stand taken by the . appellants before the Federal Service Tribunal reflects mala fides -of the appellants in removing the respondents from their services.

8. It is noteworthy that leave to appeal was obtained to consider whether relief can be granted in such case by reinstatement of such employees in service. It is to be seen that in the leave granting order it has been noted that as the employees of P.I.A.C. are governed by the principles of Master and Servant, therefore, instead of seeking their reinstatement in service they can claim damages as laid down in the case of United Bank Limited and others v. Ahsan Akhtar and others (1998 SCMR 68). As per the fact of this case a notice of termination of -his service was served on respondent Ahsan Akhtar under clause (i) of Rule 15 of the United Bank Limited (Staff) Service Rules, 1981. Statedly he relinquished the charge on 10-10-1997 and thereafter he tiled a writ petition alongwith Civil Miscellaneous Application which was allowed on 22nd October, 1997 and by way of granting interim relief the order of termination of respondent was suspended, therefore, petition for leave to appeal before this Court was filed and during arguments this Court considered whether it was a fit case to pass the impugned interim order suspending the termination notice, the effect of which is to reinstate respondent though he relinquished the charge on 10-10-1997. Consequently leave was granted. However, in para. No.10 of the order it was observed that it had been consistently held by this Court that relationship between a Corporation and-its employees was that of master and servant and that the remedy for wrongful termination of service of an employee was a suit for damages and not relief for reinstatement. But in the case of The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi (PLD. 1984 SC 170) this principle has been made subject to observations that in case of breach of a provision of statute or statutory rule an employee of a corporate body would be entitled to file a Constitutional petition for reinstatement. The facts and the point involved in the United Bank's case in fact has not advanced the case of the appellants in any manner because the question of filing a petition for reinstatement by the employee of a corporation or filing suit for damages against the appellant by the employee is no more open for discussion in view of the amendment of the definition of civil servant by section 2-A of Service Tribunals Act, 1973 coupled with the fact that this Court in the case of Pakistan International Airlines Corporation through Chairman and others v. Koural Channa and others (1999 PLC (C.S.) 1539) has held that the introduction of section 2-A in the Service Tribunals Act did not change the status of the employees of the Corporation or Statutory Body into civil servants in so far their terms and conditions of service were concerned. In spite of introduction of section 2-A in the Act, they continue to be governed by the same terms and conditions of service, which applied to them before introduction of section 2-A in the Act. The only effect of introduction of section 2-A in the Act was that instead of ordinary remedy available to an aggrieved employee of the Bank in respect of his terms and conditions of service, he became entitled to take his grievance before the Service Tribunal established under Article 212 of the Constitution of Islamic Republic of Pakistan. It was further held that the effect of incorporation of section 2-A in the Service Tribunals Act, 1973 is limited. It only trade available to the aggrieved employees of a statutory Corporation, authority, 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. Thus under these circumstances no relief can be granted to appellants in view of the point raised on their behalf while obtaining leave to appeal.

9. Learned counsel for the appellants vehemently contended that under section 10 of the Act the authority who has made the appointment' of the respondent is competent to rescind the appointment order if it is found void ab initio and has been issued in deviation of relevant rules and regulations or through extraneous influence and pressure exerted by the then Prime Minister's Secretariat. As far as proposition put forth by the appellants counsel is concerned there can be no cavil with it because we are conscious of the fact that in view of principle of locus poenitentiae the competent authority is empowered to rescind or cancel earlier order passed by it if no decisive steps have been taken or if it is shown that, the order .is illegal then no prepetuity can be attached with it as it has been held by this. Court in the case of the Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin (PLD 1992 SC 207) and Abdul Haque Indhar and others v. Province of Sindh through Secretary, Forest, Fisheries and Livestock Department, Karachi and 3 others (2000 SCMR 907). As it has been pointed out hereinabove that in the cases in hand the respondents have served for a period more than six months and the appointing authority withheld the reason in some of the cases prevailed upon it for terminating their services and subsequently when matter came up for hearing before Service Tribunal uniform reasons for termination of their services were disclosed, therefore, under such circumstances the respondents at least have made out a case of providing them an opportunity so that they may have defended the intended action of the appellants in pursuance whereof their services have been terminated notwithstanding the fact that Corporation can exercise jurisdiction to cancel their appointment letters if issued contrary to Rules and Regulations. Thus for the foregoing reasons appeals are dismissed with costs. The appellants are directed to reinstate the respondents in service accordingly. They will also be entitled to draw their salary which the P.I.A.C. has deposited with the Registrar of this Court in pursuance of the order dated 17-3-1999. The P.I.A.C., however, will be at liberty to initiate fresh action against the respondents if so advised in view of the observations made hereinabove. Q.M.H./M.A.K./P-21/S Appeal dismissed.