2009 SCMR 329 (PLP)

SABIHUDDIN AHMED, J.

Briefly stated the facts of the matter are that the respondent was serving as Deputy Secretary in the office of Provincial Election Commission, Sindh Karachi. She was served with a show-cause notice, dated 11-2-2006 containing a number of charges relating to her misconduct committed during the course of her service. She replied to the show-cause notice but the same not being found satisfactory, the major penalty of compulsory retirement was imposed upon her. Her departmental representation against such penalty was dismissed whereupon the respondent approached the learned Federal Service Tribunal, Karachi in appeal which was allowed and she was reinstated in service. The Department has chosen to challenge the decision of the learned Tribunal via this petition.

2. At the very outset we have inquired from Mr. Aamir Raza Naqvi, learned D.A.-G. as to whether any regular enquiry was conducted in the matter since a major penalty was imposed upon the respondent. The learned D.A.-G. has frankly conceded that no such inquiry has been carried out in the respondent's case.

3. It is settled law that when a major penalty is to be imposed on a civil servant a regular enquiry is to be held to determine the factual basis of the allegations which are required to be proved in accordance with the law. Moreover, the Removal from Service (Special Powers) Ordinance, 2000 (whereunder the imposed action appears to have been taken) explicitly ordains a regular enquiry before taking action under section 3 which can in the relevant context only be dispensed with under section 5(4) in the event of sufficient documentary evidence being available against the civil servant or for reasons to be recorded in writing showing satisfaction of the competent authority as to absence of need for holding an enquiry. Evidently most of the allegations required explicit proof and no reasons for dispensing with the requirement of an enquiry appear to have been recorded.

4. However, it was contended on behalf of the petitioner that the respondent was not a civil servant and could not invoke the jurisdiction of the Federal Service Tribunal. In this context, it was urged that section 3 of the Service Tribunal Act only' enables a civil servant within the meaning of such expression under the Civil Servants Act and section 2(b) of the Civil Servants Act only a person holding a civil post in connection of the affairs of the Federation or a member of an all Pakistan Service can be treated as a civil servant. Moreover, under Article 212 of the Constitution the Service Tribunal could only exercise jurisdiction in respect of a person in the service of Pakistan, which in terms of Article 260 has been defined "a service post or office in connection with the affairs of the Federation or Province". Reliance was placed on the autonomous status of the Election Commission under the Constitution and the pronouncement of a nine member Bench of this Court in the case of Muhammad Mubin-ul-Islam v. Federation of Pakistan reported PLD 2006 SC 603 wherein it was held that employees of autonomous corporations established by the Government were not civil servants and their employees could not approach the Service Tribunal for redress of grievances pertaining to the terms and conditions of employment.

5. We have carefully considered the aforesaid judgment but found that it does not help the petitioner in any manner. Indeed, their Lordships did hold that employees of certain statutory bodies and a number of corporate bodies owned or controlled by the Federal Government were not civil servants and could not be treated as such through a legal fiction introduced by section 2-A of the Service Tribunals Act. Nevertheless while recording their conclusions in para.108, their Lordships declared the aforesaid section 2-A only partially invalid drawing a clear distinction between those whose terms of service were governed by or under authority of the Federal Legislature and other (whose terms might be regulated by internal regulations of Corporations) holding that only those falling in the latter category could not be amenable to the jurisdiction of Service Tribunals. Obviously the respondent whose terms and conditions were determinable by the Federal Legislature under Article 221 of the Constitution and was governed by statutory rules had to be considered a civil servant in terms of the aforesaid judgment. Moreover, what needs to be seen is whether the Election Commission was performing functions in connection with the affairs of the Federation. No doubt the Constitution itself confers a certain amount of autonomy to the Election Commission in view of the sensitive nature of its function so as to insulate it from the influence of the executive Government but there could be no doubt that it is only performing essential functions of the State and not any commercial or industrial activity having nothing to do with the affairs of the State.

6. Conduct of elections is one of the important functions of the State and the Parliament is exclusively responsible for election laws in relation thereto in terms of item 41 of the Federal Legislative List. Article 221 stipulates that until provided by law enacted by the Parliament the Chief Election Commissioner may with the approval of the President frame rules relating to terms and conditions of employment in the Election Commission. Such rules were framed and notified in terms of S.R.O.128(I)/89, dated 5-2-1989. Rule 5 provides inter alia that appointment of persons in connection with the affairs of the Federation to be appointed in the Election Commission by order of the Chief Election Commissioner and Rule 12 stipulates that in all matters not covered by these Rules such employees would be governed by the Government Servants (Efficiency and Discipline) Rules and the Conduct Rules applicable to employees of the Federal Government. Rule 10 requires that rule pertaining to comparable post in the Federal Government will regulate the terms and conditions of officers and servants of the Commission except that powers exercisable by the President in connection with rules applicable to civil servants will be exercisable by the Chief Election Commissioner. In the aforesaid circumstances, it is impossible to accept the contention that the respondent was not performing functions in connection with the affairs of the Federation.

7. We are conscious of certain judgments of this Court pertaining to employees of superior Courts i.e. Government of the Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others PLD 1993 SC 375 and Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad 1997 SCMR 141 wherein it was held that Court employees were not civil servants and amenable to the jurisdiction of Service Tribunals. It is evident that their Lordships held so on the basis of Article 208 of the Constitution holding that the Parliament had no role in regulating the terms and conditions of service of such employees. The principle laid down in the above judgments cannot be applied to the instant case because of Article 221, like Article 240, expressly enables the Parliament to regulate the terms and conditions of employees of the Election Commission. The contention that the respondent was not a civil servant must, therefore, be repelled.

8. We have also noticed that some of the allegations contained in the show-case notice do not even prima facie constitute misconduct as defined in the Ordinance. Accordingly we would decline leave to appeal, dismiss this petition and direct that the respondent be reinstated forthwith with all back-benefits. Nevertheless the petitioner will be free to issue a fresh charge-sheet upon legally permissible grounds and pass appropriate orders only after holding an enquiry and upon proof of the allegations in accordance with law. S.A.K./C-1/SC Leave refused.