Discriminatory treatment

2024 PTD 1070 SUPREME-COURT Judicial Precedent

Sixth Sched., Entry No. 152Constitution of Pakistan, Art. 25Customs General Order No. 08 of 2021 dated 31.08.2021 ("CGO No. 8 of 2021"), paras. (a) & (b)Sales tax, exemption from

Manufacturing units in the erstwhile Federally Administered Tribal Areas ("FATA") and Provincially Administered Tribal Areas ("PATA")

Discriminatory treatment

Petitioners (manufacturing units) challenged discriminatory provisions in "CGO No. 8 of 2021", by which the petitioners were denied the beneficial mode of clearance and transshipment granted only to bulk importing edible oil manufacturers

Held, that impugned provisions of "CGO No. 8 of 2021" primarily offered preferential treatment in clearance and transshipment of imported goods to manufacturers of edible oil only in the erstwhile "FATA" and "PATA" which were merged as different districts ("Merged Districts") in the province of Khyber Pakhtunkhwa and, that too, to those who engaged in bulk imports, as compared to other business concerns therefrom

Such preferential treatment was not justifiable for edible oil manufacturers importing in bulk, particularly when compared to other businesses in the region, or for that matter manufacturers of edible oil not importing in bulk, who were not given such concession

Four-Member Bench of the Supreme Court in the case titled Messrs AK Tariq Foundry etc. v. Government of Pakistan through Federal Secretary Finance and Revenue Division, Islamabad, etc. (Civil Petitions Nos. 159 to 178 of 2023, etc.) has already adjudged a statutory provision, creating a sub-class within those carrying on businesses in the Merged Districts, and thereby executing a category of businesses being refused exemption from the fiscal and tax regime as enjoyed by other businesses in the Merged Districts, as discriminatory, offending Article 25 of the Constitution

Said pronouncement of the Supreme Court left little room for the present three-Member Bench to hold otherwise

Petitions were converted into appeals and allowed accordingly.

2023 PTD 793 CUSTOMS-APPELLATE-TRIBUNAL-LAHORE Judicial Precedent

Ss. 32(1), 32(2), 25, 79, 209 & 156(1), Cls. 1, 14 & 45SRO No.499(I)/2009 dated 13-06-2009Mis-declarationExaminationRedemption fine and penalty, imposition ofDiscriminatory treatmentScopeAppellant/importer declared imported goods as "old & used computers"

Contention of the appellant/importer was that the redemption fine and penalty had been imposed only on the apprehension that the importer had deliberately committed mis-declaration of contents of the consignments in order to avoid payment of due amount of leviable duty and taxes

Held, that that there was absolutely no likelihood of escape of leviable duty and taxes on imported consignments of used computers as the same were invariably marked for 100 percent examination

Examination report of such consignments reflected the composition of imported goods accurately, thus making it almost impossible to evade leviable duties and taxes on such imports unless there was some oversight by the Examination Staff of the Collectorate

Such consignments , however, consisted of mixed lot purchased from abroad and it was not possible for the importers to make correct declaration of all the contents of such consignments at the time of declaration before the Department

Any mistake in the declaration was, therefore, not intentional on the part of importers of such goods by any means

Record revealed that previously the Department had released identical goods of other importers, thus discriminatory treatment with the appellant / importer was unfair

Imposition of fine and penalty, in the present case, was too harsh and thus was not applicable as no element of Mens Rea was established against the appellant/importer

Fine and penalty imposed was cancelled/waived

Order-in-Original and Order-in Appeal were set aside

Appeal was allowed, under circumstances.

2022 PLC(CS) 525 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Arts.25 & 199Regularization of serviceEquality of citizensDiscriminatory treatmentScopePetitioners assailed denial of their request for regularization of service

Petitioners put much emphasis on the ground that they were entitled to regularization of their services as the authorities had regularized similarly placed persons who were appointed on daily wages/contract basis

Stance of authorities was that the petitioners were not entitled to regularization as the previous daily wages/contract employees were regularized after scrutinizing each and every case while the petitioners did not fall within the ambit of prescribed criteria

Validity

Petitioners, at the time of joining, had accepted all the terms and conditions of their contract employment and could not resile from the same at a belated stage

Perusal of prescribed criteria revealed that a person who was appointed to a post on work charge/daily wages must have one-year complete satisfactory service, must fulfil the qualification/experience and age limit as per the Regulations and the post for which he applied must exist in the budget/the Regulations

Record attached by the authorities revealed that amongst the petitioners, some did not fulfil the requirement of age limit, while others' work was not satisfactory and there was also service break in their employment

Petitioners did not fulfil the criterion for the regularization of their service and it could not be said that the respondents had treated them indifferently or given discriminatory treatment

Constitutional petition was dismissed, in circumstances.

2020 YLR 1571 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 9Constitution of Pakistan, Art. 199Corruption and corrupt practicesBail, grant ofDiscriminatory treatmentMala fideFurther inquiryScope

Allegation against accused was that he, being Chief Minister, on a self-managed request of a Member of the Provincial Assembly (MPA) approved for construction of a sullage carrier under the garb of a public utility scheme, whereas, the actual motive behind its approval was to provide an effluent disposal mechanism to the mill owned by his son

Circle patwari had categorically mentioned that a pond measuring 86 kanals and 2 marlas was located in the revenue estate where the mill was situated

Validity

No complaint against the industrial effluent of the mill was ever filed against its management

Accused had no special need to construct a sullage carrier for the disposal of industrial effluent

Provincial Cabinet had also approved the said scheme and had released funds accordingly

Site plan of the scheme showed that the sullage was constructed for the benefit of public at large and not only for the benefit of the mill

Sullage carrier scheme was owned by the provincial government and the son of accused had been paying rent for its usage

Prosecution had not alleged that funds were not utilized on the scheme

Procedural irregularity, if any, in the exercise of jurisdiction did not amount to misuse of authority

Case of accused was one of further inquiry

Petition for grant of post-arrest bail was allowed, in circumstances.

2016 CLD 1938 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 33-BState Bank of Pakistan BPD Circular No.29, dated 15.10.2002Constitution of Pakistan, Art. 25Fidelity and secrecyRight as to equality of citizensDiscriminatory treatment

Section 33-B of Banking Companies Ordinance, 1962, under which BPD Circular No.29 had been issued, did not confer authority upon State Bank of Pakistan to allow facility of loan to any borrowers contrary to S. 33-B of Banking Companies Ordinance, 1962

Section 33-B spoke of settling accounts on two important conditions, that were, for want of inadequate security or for rehabilitation of sick unit

Element of discrimination in terms of Art. 25 of Constitution was also identifiable in the Circular.

2014 PTD 52 CUSTOMS-APPELLATE-TRIBUNAL-KARACHI Judicial Precedent

S. 194-AConstitution of Pakistan, Art.25Appeal before Appellate TribunalDiscriminatory treatment

Facility allowed by the other Collectorate of Customs of the country was denied by the Model Customs Collectorate (MCC) of Pakistan Computerized Collectorate of Customs (PACCS)

Effect

Treatment given to the appellant was against the principles enshrined in Art. 25 of the Constitution

Impugned orders were set aside

Appeal of the importer was allowed.

2013 PLC(CS) 1275 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Art. 199Constitutional petitionCivil servicePolicy of recruitment against the quota reserved for children of serving and retired police employeesManner of selection of candidate was not prescribed in the Standing Order issued by the Inspector-General of PoliceDiscriminatory treatment

Standing Order itself revealed that seats would be allocated to the quota as per policy of the government from the vacancies available, but manner of selecting the children of employees under such reserved seats under the said Standing Order was not specified

Standing Order in question provided that candidate should only meet criteria to claim relief mentioned in Standing Order

Non-explaining and describing manner of selection of candidate in the Standing Order might be taken as a sword of discrimination

Policy must ensure justice with those being under one umbrella in such a manner and fashion that no one could come out with a plea of discrimination

Authorities were directed by High Court to chalk out a procedure of selection of candidates appointed under employees quota.

2009 PLC(CS) 506 SUPREME-COURT Judicial Precedent

Increments, withholding ofDiscriminatory treatmentEffect

Record showed that civil servant had been treated discriminately qua the other employees having the cases of similar nature

No reasonable explanation was provided by the authorities for refusal of the release of advance increments after their sanction by the competent authority in the case of civil servant

Plea of authorities of uniform policy could not be accepted in the case of civil servant, as the increments were sanctioned in favour of civil servant in the year 1996, with effect from 10-11-1996, while the trumpeted uniform policy had come into existence in the year 2002, after more than 6 years of the order of sanction which could not be applied with retrospective effect, so as to exclude the lone case of civil servant

Supreme Court, in circumstances, directed the authorities to pay the sanctioned advance increments to the civil servant within a period of two months.