2004 PLP 1308 (SCMR)

SYED DEEDAR HUSSAIN SHAH, J.‑‑‑

This appeal with the leave of the Court is directed against the judgment of the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal) dated 6‑10‑2000, whereby appeal filed by respondent No.1 Mansoor‑ul- Haque Solangi was allowed reinstating him in service with all back benefits.

2. The facts, in brief, are that respondent Mansoor‑ul‑Haque Solangi was appointed as Stock Verifier in the West Pakistan Industrial Development Corporation, confirmed in January, 1971, promoted as Assistant Manager in February, 1974 and Deputy Manager in June, 1980. While working as Officer Incharge of a sub‑office of Harnai Woollen Mills Ltd., a Company under the PIDC, he applied for the post of Senior Manager/Deputy General Manager on 16‑12‑1985 in the Pakistan Automobile Corporation Limited (PACO). Respondent was interviewed and ultimately his services were requisitioned from the PIDC for appointment and posting as Senior Manager under the PACO. In due course, he was transferred from the PIDC and posted as Senior Manager Marketing and Sales, in the Trailer Development Corporation Limited, a Company under the control of PACO, where he joined as such on 30‑6‑1986. The PIDC vide letter dated 23‑6‑1986 terminated the respondent's lien by stating that the same will be maintained by PACO, a borrowing organization and not in the PIDC, and the said proposal was accepted by the PACO. Respondent had taken over the charge on 30‑6‑1986. The matter did not end here, because the PIDC laid down certain conditions in the respondent's appointment letter treating him as a new entrant in service. Thereafter, the PACO transferred him in Naya Daur Motors (Pvt.) Limited, who' terminated his service vide order, dated 26‑9‑1995.

3. Feeling aggrieved, respondent‑Mansoorul Haque Solangi filed C.P. No.D‑646 of 1995 in the High Court of Sindh, which was withdrawn due to insertion of section 2‑A in the Service Tribunals Act, 1973. Thereafter, he filed appeal before the Tribunal, which was allowed vide impugned judgment herein.

4. Ch. Muhammad Jamil, learned Advocate Supreme Court for the appellant, inter alia, contended that the impugned judgment is perverse and without jurisdiction; that the Tribunal has erred in law by not applying its independent judicial mind to the effect that respondent No.1 was neither a civil servant, nor was, at the relevant time, employee of statutory body controlled and managed by the Federal Government, thus, the insertion of section 2‑A in the Service Tribunals Act, 1973 is not attracted to confer jurisdiction on the Tribunal; that respondent No.1, at no stage, was employee of the appellant, but from July, 1987 he was permanent employee of the respondent No.3/Naya Daur Motors (Pvt.) Limited and was governed by principle of Master and Servant; that the Tribunal did not consider that appellant and respondent No.3 are two separate independent legal entities and an employee of one company cannot claim any right or lien in other company; that the impugned judgment is not sustainable in law. In support of his contentions learned counsel has relied on Mohsin Ali Hasani v. Government of Pakistan 1990 SCMR 1685, Federal Public Service Commission v. Syed Muhammad Afaq PLD 2002 SC 167 and Province of Punjab v. Ibrar Younas Butt 2004 SCMR 67 He also referred to the agreement executed between Government of Pakistan and Farid Tawakkal of Maya Daur Motors (Pvt.,) Limited and submitted that respondent No. 1 was a contractual employee, as such the question of his lien with the parent organization i.e. PACO was terminated. Learned counsel further submitted that notice to the Attorney‑General for Pakistan would be essential in view of Order XXVII‑A, rule 1 of Code of Civil Procedure.

5. Conversely, Syed Shahanshah Hussain, learned Advocate Supreme Court argued that respondent No.1 was employee of appellant/PACO and Naya Daur Motors (Pvt.) Limited/respondent No.3 was only a subsidiary of the PACO; that he was transferred to respondent No.3 but his lien with PACO was intact which could not be discontinued legally. He referred to the letters of the appellant and Pakistan Industrial Development Corporation which are available at pages 15 and 16 of II Paper Book. He further submitted that respondent No.1 pursued his remedy bona fide before the High Court and after insertion of section 2-A in the Service Tribunals Act. 1973 he approached the Tribunal for relief as mentioned hereinabove that since the PACO is controlled and managed by the Federal Government, as such, for redress of grievance in service matter the Tribunal is the proper forum to seek relief and he rightly approached the Tribunal; that from the record it is not established that lien of respondent No.1 was ever terminated, though the Fundamental Rules 13, 14 and 14‑A of section 1, Chapter III of F.R. and S.R. Volumes I and II in strict sense are not applicable in the case but these principles can be attracted for giving just, fair and equitable treatment to employee. In support of contentions, learned counsel has referred to Mazhar Ali v. Federation of Pakistan 1992 SCMR 435 at page 440, Sajjad Hussain v. Secretary, Establishment Division 1996 SCMR 284 at page 291 and Executive Engineer, Provincial Building Circle, Lahore v. Muzaffar Bil Haq and 2 others 2000 SCMR 656.

6. We have considered the arguments of learned counsel for the parties and very carefully examined the record available. Admittedly, respondent No.1 was transferred from PIDC to PACO and thereafter he was transferred to Naya Daur Motors (Pvt.) Limited. It would be advantageous to refer here the relevant letters, referred to above which under:‑‑ "Pakistan Automobile Corporation, 6th Floor PNSC Building Moulvi Tamizuddin Khan Road. Karachi‑Pakistan. No.4310, dated June 18, 1986 The Chairman, Pakistan Industrial Development Corpn. Ltd. PIDC House, M.T. Khan Road, Karachi. Dear Sir, It is requested that the services of Mr. Mansoor‑ul‑Haque Solangi, Office Incharge, Harnai Woollen Mills and Mehran Flocking Industries, Sub‑Office, PIDC, Karachi, may kindly be transferred to PACO for posting as Senior Manager (Marketing and Sales) Trailer Development Corporation Limited. Yours faithfully, (Sd.) (Farhat M. Mirza) General Manager (Fin./A&P) Pakistan Industrial Development Corporation (Pvt.) Limited PIDC House, Dr. Ziauddin Ahmed Road, Karachi‑

4. No.HW4/1(MIS) Dated June 23, 1986 Mr. Farhat M. Mirza, General Manager (Fin. & A&P). Messrs Pakistan Automobile Corporation Limited 6th Floor, PNSC Building, Moulvi Tamizuddin K. Road, Karachi. Subject: Transfer of Mr. Manzoor‑ul‑Haque Solangi as Senior Manager (Mktg and Sales). Dear Sir, The letter No.4310, dated June 18, 1986 regarding the above subject to the Chairman has been received. (2) The management has accepted your proposal and directed to relieve the said incumbent from Harnai Woollen Mills Ltd. with immediate effect after clearing his all obligations. (3) After relieving him, be sure that all lien is vested with Messrs PACO not with the PIDC. Sincerely yours, (Sd.) (M. Abid Hafeez) Manager (P) PIDC (P.) Ltd."

7. The contention of learned counsel for the appellant that the case is governed by principle of Master and Servant and that since respondent No. 1 was not a civil servant, therefore, the Tribunal had no jurisdiction to adjudicate upon the matter, we are afraid in view of the admitted facts and after the insertion of section 2‑A in the Act, the respondent had rightly approached the Tribunal after abatement of the petition before the High Court for relief. Respondent No.1 was a permanent employee of the appellant. The record shows that his lien was kept intact with Pakistan Automobile Corporation, and the same could never be terminated in view of the case‑law cited by Syed Shahanshah Hussain learned Advocate Supreme Court for respondent No.

1. In strict sense though he may not be a civil servant but the Constitution ordains that persons placed in the same position shall be treated equally and there should be no discrimination, therefore contention of the learned counsel for the appellant that the Tribunal had no jurisdiction and the respondent was not a civil servant is misconceived an d not accepted.

8. Now we briefly discuss the case‑law for learned counsel for the parties. In Mohsin Ali Hasani's case (supra) this Court accepted the review with the following observations:‑‑ "Government servant on deputation‑‑‑Lien and emoluments Government servant on deputation from Provincial Government to Federal Government would retain a lien on the permanent post in his parent office till he was confirmed in the borrowing Government‑‑‑Such civil servant pending his confirmation in the Federal Government was entitled to the pay which he would have received had he remained in his parent office in the Province as per relevant Fundamental Rules and rules applicable to deputationists‑‑‑Civil servant was, thus, granted the same emoluments which he would have drawn under the Provincial Government with effect from specified date in specified grade " In Federal Public Service Commissions case (supra) the successful candidates assailed the validity of Rule 6(a)(iii) of Competitive Examination Rules, 1997, because each one of them was aggrieved by the application of said rule, and this Court remanded all the cases to respective High Courts with direction to issue notice to Attorney‑General of Pakistan and decide the same within specified period. The relevant portion of the judgment passed by this Court reads as under:‑‑ "

4. During hearing of the above cases, it transpired that notice was not given to the Attorney‑General for Pakistan as required under Order XXVII‑A. rule 1 of the Civil Procedure Code, 1908 in any of these cases by the respective High Courts. Clearly, failure of the respective High Courts to give effect to the mandatory provisions of Order XXVII‑A, rule 1, C.P.C. has vitiated the impugned judgments, in that, the cases involved interpretation of Constitution provisions. It is not controverted by any of the learned counsel for the parties that controversy raised before the High Courts as to the vires of rule 6(a)(iii) of the Rules had been examined in the absence of the Attorney General for Pakistan. The material placed on record does not show that any notice was issued to him." In the case of Province of Punjab (supra) this Court observed as under:‑‑ "... this is highly deplorable and shameful condition which cannot be appreciated. After termination of his lien in the parent department how his services could have been repatriated that too without proper opportunity of hearing as certain vested rights had accrued in favour of the respondent after permanent absorption on the direction of competent authority The repatriation of respondent could not be directed in an arbitrary and capricious manner as no such unfettered powers have been conferred upon the Chief Secretary to pass such orders which are not in accordance with the relevant provisions of law and rules made thereunder. After a lapse of more than a decade the validity of initial appointment and subsequent absorption cannot be questioned save in accordance with law." In Mazhar Ali's case (supra) cited by learned counsel for respondent No. 1, this Court held as under:‑‑ ".... Lien of permanent civil servant could not be terminated even with his consent; same, could, however, be terminated only where he was confirmed against some other permanent post ...." In Sajjad Hussain v. Governor of the Punjab (supra) this Court has been pleased to observe as under:‑‑ "Lien‑‑‑Civil servant on deputation, who had never been absorbed permanently in the borrowing department would continue to be on deputation and his lien could not be terminated in his parent department."

9. The case‑law cited by learned counsel for the appellant, in our considered opinion, is not relevant regarding the re‑instatement in service of respondent No. 1 by the learned Tribunal, whereas the case law cited by learned counsel for respondent No. 1 about the lien to be kept by the organization is very helpful.

10. The record‑ also shows that before the Tribunal nobody appeared on behalf of the Federal Government, and in this matter interpretation of the Constitution is not involved as required under Order XXVII‑A of the Code of Civil Procedure, therefore, notice to the Attorney‑General in our considered opinion, is not necessary The Tribunal, after examining, analyzing and going through the record rightly allowed the appeal of[ respondent No. 1.

11. So far as the back‑benefits awarded by the Tribunal are concerned, the same are not supported by documentary evidence to the he did not work effect that when respondent No.1 was out of service, anywhere to gain financial benefits.

12. For the facts, circumstances and reasons stated hereinabove, this appeal is partly allowed by disallowing the back‑benefits as awarded by the Tribunal, but the reinstatement of respondent No. 1 in service shall remain intact. The parties are left to bear their own costs. M.B.A./P‑18/S Appeal partly allowed.