At Josh and Mak International, we pride ourselves on offering an extensive range of legal services tailored to meet the diverse needs of our clients. With an unwavering commitment to effective client communication and satisfaction, we provide sound legal advice and representation, ensuring that your interests are diligently protected. We offer comprehensive legal assistance in cases related to medical reimbursement, particularly for civil servants and government employees. Our team of experts will guide you through the entire process, from filing the initial claim to navigating departmental proceedings and, if necessary, taking the case to court. Our firm is proficient in handling a variety of employment law matters, including wrongful termination, misconduct, employment contracts, benefits and entitlements, and disputes related to medical facilities for employees and their families. We understand the intricacies of the Service Tribunal Act, 1973, and other relevant laws, ensuring that you receive the best possible representation.We also specialise in cases involving administrative decisions that may have been made arbitrarily or unfairly. Our team will challenge such decisions through well-crafted legal arguments and established case law, as was relevant in the case discussed.

Our firm offers legal consultancy services, providing informed opinions backed by comprehensive legal research and case law. Whether it’s a complex healthcare issue or an employment dispute, our consultancy services aim to equip you with the knowledge and strategy needed to tackle your legal challenges effectively.For matters that require Federal Services Tribunal or Services Tribunal intervention, our seasoned litigators are well-versed in presenting compelling arguments before judicial forums. We take a meticulous approach to case preparation, ensuring that every aspect is thoroughly examined.

Our commitment to exceptional service, coupled with our expansive knowledge of the law, makes Josh and Mak International the ideal choice for your legal needs. We welcome the opportunity to discuss how we can assist you further.

The following blog will be updated periodically.

Guidelines for Filing an Appeal with the Tribunal

Civil servants seeking to contest decisions affecting their employment terms and conditions are entitled to file appeals with the Registrar of the Tribunal. These appeals can be submitted either via Registered Post or in person, through the appellant or their legal representative, during official working hours. It is important to note that appeals received or presented by any Tribunal member are considered duly filed in accordance with Rule 6 of the Service Tribunals (Procedures) Rules, 1974.

Essential Requirements for Memorandum of Appeal:

  1. Presentation: The appeal must be clearly, concisely, and correctly written, typed, or printed.
  2. Structure: It should be organized into consecutively numbered paragraphs, each containing a distinct claim or statement.
  3. Identification: Full name, official title, and workplace of each party must be included.
  4. Objective: The appeal should explicitly state the sought-after relief.
  5. Documentation: It must be accompanied by:
    • A copy of the final order (original or appellate) and any other relevant orders impacting the appellant’s service terms.
    • Copies of rules, orders, or documents supporting the appellant’s claims.
  6. Signature: The appellant must sign or place a thumb impression on the document.
  7. Copies: Three copies of the appeal and additional copies for each respondent, along with the required documents, must be submitted.

Additional Procedural Points:

  • The appeal should list the authority whose order is being challenged and any other involved parties as respondents.
  • If the appeal is filed after the prescribed time limit, it must include a petition and affidavit explaining the delay.
  • No court fee is required for filing an appeal or related documents with the Tribunal.

Processing of Appeals:

  • The Registrar reviews each appeal. If compliant with Rule 6, it is registered and scheduled for a preliminary hearing. Non-compliant appeals are returned for amendment within a specified timeframe.
  • Failure to resubmit within this period results in dismissal of the appeal.
  • The Tribunal may dismiss an appeal outright after initial hearing or, if not dismissed, issue a notice for a full hearing.

Security and Costs:

  • Appellants must deposit a security fee and cover the costs of notice service to respondents.

Respondent’s Participation:

  • Respondents must submit their objections within a specified timeframe prior to the hearing date.

Tribunal’s Decision Powers:

  • The Tribunal can uphold, overturn, modify, or vary the appealed order.

Appeal to the Supreme Court of Pakistan:

  • Parties dissatisfied with the Tribunal’s decision can appeal to the Supreme Court of Pakistan within 60 days of the decision’s communication.

Daily Cause List and Judgment Copies:

  • A daily list of scheduled hearings is displayed, and notices are sent to involved parties. Judgment copies are provided to the parties free of charge, with additional copies available for a fee.

A review of Federal Services Tribunal Cases from 2022

PLJ 2022 Tr.C. (Services) 186

[Federal Service Tribunal, Islamabad (Karachi Bench)]

The judgement in question is from the Federal Service Tribunal, Islamabad (Karachi Bench) and is centred on an appeal filed under Section 4 of the Service Tribunals Act, 1973. The case involves Muhammad Afzal as the Appellant and the Managing Director of PEPCO/WAPDA and two others as the Respondents. The appeal is focused on the issue of “Ex-Pakistan leave” and subsequent removal from service, penalties imposed, and time-barred appeals.

Legal Provisions and Laws Cited:

Service Tribunal Act, 1973 (LXX of 1973), Section 4: Governs the jurisdiction of the Service Tribunal.

WAPDA (E&D) Rules, 1978: Rules for the Employees and Disciplinary actions in WAPDA.

Removal from Service (Special Powers) Ordinance, 2000: Governs the conditions for removal from service.

FR-54(b): Governing rules for leave periods and their regularization.

Civil Establishment Code (Esta Code 2007-Edition), SI. 155, Vol-II: Governs civil service conduct and disciplinary matters.

Cases Cited:

2022 CLC 563: Discusses the law of limitation, stating it is not merely a technicality.

2006 SCMR 631: Emphasizes that each day’s delay has to be satisfactorily explained for condonation.

2010 SCMR 11: Deals with back benefits and relevant directives.

Analysis of Legal Principles and Factors:

Issue of Limitation

The Tribunal focussed on the time-barred nature of the appeal, stating that it was filed four years after the order dated 04.05.2016 against which it was directed. The judgement cites precedents stating that each day’s delay needs to be satisfactorily explained, which was not done in this case.

Merit of the Appeal

The Tribunal also commented on the merit or lack thereof in the appeal. It was observed that the department had complied with the order of the Tribunal, thus rendering the appeal without merit.

Ex-Pakistan Leave and Penalties

The Appellant had taken Ex-Pakistan leave but failed to resume duty on time. His removal from service and the subsequent penalties imposed on him, including the ‘stoppage of three increments’, were largely governed by specific service rules and regulations. The judgement underlines that all codal formalities were fulfilled before taking disciplinary action against the Appellant.

Departmental Appeals

The Appellant had been through various stages of departmental appeals and judgements, each affecting his service status differently. The Tribunal considered all these while making its decision but found that the department had acted within the bounds of the law and service rules in its actions.

Non-Compliance with Tribunal’s Order

The Appellant argued that the department did not comply with the Tribunal’s order in letter and spirit. However, the Tribunal found that the department had, in fact, complied and passed a fresh order after due consideration.

In summary, the judgement addresses multiple layers of legal and procedural issues, from service rules to departmental appeals and time limitations. It upholds the principle of law that favours vigilance and timely action, dismissing the appeal as both time-barred and lacking in merit.

Additional Factors

The judgment also navigates the complex weave of departmental and judicial proceedings that the Appellant had undertaken. It discusses the Appellant’s shift from Islamabad to Karachi and the purported reasons for his delay in filing the appeal, but ultimately finds them lacking in substance for the purpose of condoning the delay.

Moreover, the Tribunal gave weight to the absence of counter-affidavits by the Respondents against the Appellant’s application for condonation of delay. Nonetheless, it found that this absence did not tilt the balance in favour of the Appellant, especially considering that the application itself was not supported by cogent reasons for the delay.

Analysis

The case serves as a robust reminder of the importance of adhering to procedural timelines and codal formalities. It underscores the judiciary’s unwillingness to bypass the law of limitation, particularly when no satisfactory explanation for delay is provided, irrespective of the merits of the substantive issue at hand. The judgement is in line with precedent and adheres closely to the statutes governing service matters, specifically the Service Tribunals Act, 1973 and associated rules.

The Tribunal’s decision to dismiss the appeal, therefore, rests on a solid legal foundation, respecting both the procedural and substantive aspects of the law. The judgement, by meticulously going through each point raised during the lengthy litigation history of the Appellant, shows a careful and considered approach to justice, even if the result is unfavourable to the Appellant.

PLJ 2022 Tr.C. (Services) 170

[Khyber Pakhtunkhwa Service Tribunal, Peshawar]

The judgement in question emanates from the Khyber Pakhtunkhwa Service Tribunal, Peshawar, and involves Shahid Ali Khan and others as Appellants against the Government of Khyber Pakhtunkhwa and others as Respondents. The case scrutinizes various issues surrounding eligibility for promotion, the deferment of agenda items in the Departmental Promotion Committee (DPC), and allegations of mala fide and discrimination. The judgement was rendered under the Khyber Pakhtunkhwa Service Tribunal Act, 1974 (I of 1974).

Legal Provisions and Laws Cited:

Khyber Pakhtunkhwa Service Tribunal Act, 1974, Section 4: This section governs the jurisdiction of the Khyber Pakhtunkhwa Service Tribunal.

Cases Cited:

2009 PLC 151: Cited for principles related to civil service promotions.

2022 SCMR 448: Referenced for rules regarding deferment of promotions.

PLD 1991 SC 226: Cited for principles of natural justice in promotions.

2000 PLC (CS) 206: Referenced for discrimination in promotions.

Analysis of Legal Principles and Factors:

Eligibility for Promotion and Deferment of Agenda Item

The Appellants were serving as sub-engineers and had passed the requisite departmental examination for promotion. The DPC had deferred the agenda item related to their promotion, effectively stalling their career advancement. The Tribunal found this to be a violation of the Appellants’ right to promotion.

Mala Fide and Discrimination

The Tribunal noted that while the Respondents had failed to point out any deficiencies in the Appellants’ qualifications or suitability for promotion, they had promoted Engr. Bakhtiar, another eligible Graduate Sub-Engineer/Assistant Engineer. This contradictory action was perceived as evidence of mala fide intent and discriminatory practices on the part of the Respondents.

‘Final Order’ within the Meaning of Section 4

The Tribunal found that the DPC’s decision to defer the agenda item related to the Appellants’ promotion had an adverse effect on them and, therefore, constituted a ‘final order’ within the meaning of Section 4 of the Khyber Pakhtunkhwa Service Tribunal Act, 1974. This interpretation enabled the Appellants to seek redress through the Service Tribunal.

Pendency of Promotion Cases

The judgement also highlighted the issue of the indefinite pendency of promotion cases, casting a negative impact on the career progression of the Appellants. Such delays were found to be detrimental to the principles of justice and fairness in civil service promotions.

Analysis

The judgement serves as a stern reminder to administrative authorities to exercise their powers in a manner that is both fair and in accordance with the law. It particularly stresses the importance of safeguarding the career progression rights of civil servants, emphasising that any adverse actions, such as deferment decisions by the DPC, could be subject to judicial scrutiny. The judgement also brings to the forefront the issues surrounding mala fide actions and discrimination within the civil service, making it clear that such actions will not be tolerated. The Tribunal, therefore, allowed the appeals, directing that the Appellants should not be deprived of their rightful promotions.

 PLJ 2022 Tr.C. (Services) 156

[Federal Service Tribunal Islamabad, Karachi Bench]

 The case under review is an appeal heard by the Federal Service Tribunal Islamabad, Karachi Bench, featuring Imam Bux as the Appellant and the Government of Pakistan Member Admin., Rev. Div. Islamabad, among others, as the Respondents. The core issue under adjudication pertained to the correction of the date of birth in the Appellant’s service book. The case was examined under the regulatory framework of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, specifically focusing on Section 12-A, and the Federal Service Tribunals Act, 1973, Section 4.

Legal Provisions and Laws Cited:

Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Section 12-A: This section deals with the alteration in the date of birth of civil servants.

Federal Service Tribunals Act, 1973, Section 4: This section governs the jurisdiction of the Federal Service Tribunals.

Cases Cited:

2004 PLC (CS) 1162: Referenced for change in date of birth at a belated stage nearing superannuation.

1998 SCMR 602: Cited for the non-permissibility of altering recorded date of birth.

1998 SCMR 1494: Referenced for the legal implications of altering date of birth.

Analysis of Legal Principles and Factors:

Correction of Date of Birth:

The Tribunal observed that there is a growing tendency among government employees to change their date of birth as they near superannuation. In the Appellant’s case, it was noted that the date of birth had never been questioned during the entire tenure of service. It was only at the time of retirement that this issue was raised. The Tribunal found this to be unacceptable, particularly when the Civil Servants Rules prohibit any alteration in the date of birth once recorded at the time of joining government service.

Legal Precedent and Authority:

The Tribunal relied heavily on existing case law and statutory rules to arrive at its decision. Specifically, it cited Rule 12-A of the Civil Servants Rules, which clearly states that no alteration in the date of birth shall be permissible after it has been recorded at the time of joining service. This was buttressed by multiple judgements from the apex court that discourage alterations in the date of birth, especially when nearing retirement.

Inalienable Rights and Due Process:

While the Tribunal acknowledged that every citizen has the inalienable right to enjoy the protection of law and to be treated in accordance with law, as per Article 4 of the Constitution, it clarified that the applicable law in this case did not permit the correction of the date of birth at such a late stage.

Conclusion:

The Tribunal concluded that the appeal lacked legal substance, primarily because the appellant sought to correct his date of birth only at the time of retirement, despite having numerous opportunities to do so earlier in his service tenure. Therefore, the appeal was dismissed with no order as to cost.

In sum, the judgement serves as a cautionary note against the growing trend of late-stage alterations in date of birth records among civil servants. It emphasises the need for due diligence at the time of joining service and upholds the integrity of recorded service history as a binding and unalterable document, save for a few exceptional circumstances.

PLJ 2022 Tr.C. (Services) 147

[Federal Service Tribunal, Islamabad]

Mushtaq Shah (Appellant) vs. the Secretary, Ministry of Interior and another (Respondents).

Legal Provisions and Laws Cited:

Frontier Corp Rules, 1961: Rule 7

Frontier Corp Ordinance, 1961: Sections 9(P) & 10

Constitution of Islamic Republic of Pakistan, 1973: Article 240-A, Article 260, and Article 212(1)(a)

Civil Servants Act, 1973: Section 2(b)

Supreme Court Case: ‘Commandant, Frontier Constabulary vs. Gul Raqib Khan and others’ (2018 SCMR 903)

Case Background:

The Appellant, an ex-employee of the Frontier Corp, was charged with misconduct for trespassing the house of a civilian, Abdul Waheed, with evil intentions. The Court of Inquiry led to his dismissal from service, against which he initially filed a writ petition in the Peshawar High Court. However, following a Supreme Court decision declaring Frontier Constabulary men as in service of Pakistan, the Appellant withdrew his writ petition and filed the current appeal.

Legal Principles and Analysis:

Jurisdiction:

The Tribunal addressed the question of jurisdiction by referring to Article 240-A and Article 260 of the Constitution, read with Section 2(b) of the Civil Servants Act, 1973. It concluded that as per the Supreme Court’s decision in ‘Commandant, Frontier Constabulary vs. Gul Raqib Khan and others’, the Tribunal had jurisdiction over the matter.

Summary Trial vs. Court of Inquiry:

A key issue was whether the proceedings against the Appellant were correctly termed a “Court of Inquiry” or should have been a “Summary Trial” as per Rule 7 of the Frontier Corp Rules, 1961. The Tribunal concluded that a typographical error in naming the process didn’t invalidate the proceedings, which were otherwise legal.

Principles of Common Prudence:

The judgment delves into the principle of common prudence, stating that cross-examination is essential for evaluating the authenticity of a statement. The Tribunal found no illegality in cross-examining the accused or witnesses.

Scope of Section 9(P) and Section 10:

The Appellant’s counsel argued that the charges didn’t fall under Section 9(P) and that dismissal from service was not described in Section 10 of the Frontier Corp Ordinance, 1959. The Tribunal disagreed, stating that Section 9(P) is of a general nature and covers the act committed by the Appellant. Moreover, Section 10 empowers the dismissal from service.

Merits of the Case:

The Tribunal examined the merits of the case and concluded that the Appellant trespassed the civilian’s house with ill will. The statements of Abdul Waheed and his wife Raj Bibi further discredited the Appellant’s version of events.

Conclusion:

The Tribunal found no illegality in the impugned orders and dismissed the appeal. It ruled that the charges against the Appellant were proved, and the dismissal was in accordance with the Frontier Corp Ordinance and Rules.

Legal Factors Involved:

Special Law vs General Law: The judgment highlighted that when there is a special law governing a matter, it will take precedence over general law. In this case, the Frontier Corp Ordinance, 1959 and the Frontier Corp Rules, 1961, being special laws, took precedence over general laws like the Civil Servant (Efficiency and Discipline) Rules.

Procedure and Fair Trial: The judgment emphasized that the Appellant was given ample opportunity for defence, thereby meeting the principles of a fair trial. This included the right to reply in writing and produce defence witnesses.

Timeliness of the Appeal: The Tribunal considered the time-barred nature of the appeal and found it to be within permissible limits, as the Appellant had initially approached the High Court due to ambiguity about the correct forum for his appeal.

Evidentiary Principles: The Tribunal relied on both documentary and oral evidence, including cross-examination of witnesses, to establish the facts of the case.

Interpretation of Statutory Provisions: The Tribunal engaged in textual interpretation of Sections 9(P) and 10 of the Frontier Corp Ordinance, 1959, to determine the scope of offences and punishments under the said law.

Observations:

Jurisdictional Clarity: The case offers insight into the jurisdictional complexities that can arise in service matters, particularly for para-military formations in Pakistan. The Tribunal’s reliance on precedent to clarify this jurisdictional issue will likely serve as guidance for similar cases in the future.

Importance of Procedural Regularity: The Tribunal’s focus on whether the Summary Trial met procedural norms underlines the importance of adhering to prescribed legal procedures, even in matters governed by special laws.

Role of Evidence and Cross-Examination: The case underscores the importance of cross-examination in service matters, providing a nuanced understanding that diverges from the general discouragement of a “question and answer” format in departmental proceedings.

Statutory Interpretation: The Tribunal’s interpretation of Sections 9(P) and 10 serves as an example of how broadly-worded statutory provisions can be applied to specific factual scenarios.

Implications:

The ruling could have far-reaching implications for service matters, particularly those involving para-military and special forces. The case also highlights the importance of procedural fairness and could influence how summary trials and inquiries are conducted in the future.

PLJ 2022 Tr.C. (Services) 134
[Federal Service Tribunal, Islamabad]

Legal Provisions and Laws Cited:

National Highway Authority Employees Service Rules, 1995: Rule 30

National Highway Administration Regulations, 2002: Regulation 17, Chapter 5

Service Tribunals Act, 1973 (LXX of 1973): Section 4

Legal Principles and Factors Involved:

Prerogative of Competent Authority: The case fundamentally hinges on the authority of the competent body to execute transfers and postings as a part of the terms and conditions of service.

Requirement of Departmental Appeal: Before approaching the Tribunal, the appellant was required to file a departmental appeal, which he failed to do.

Mala Fide Intent: The Tribunal considered whether there was any element of mala fide intent in the transfer decision.

Jurisdictional Scope of Employment: The Tribunal examined whether the authority had the jurisdiction to post any employee anywhere in Pakistan.

Observations:

Failure to Exhaust Remedies: One of the critical observations was the appellant’s failure to file a departmental appeal before resorting to the Tribunal. This lapse weakened his position considerably.

Scope of Authority’s Prerogative: The Tribunal reinforced the principle that the competent authority has the prerogative to transfer employees. This prerogative is integral to the terms and conditions of service, and employees have no vested right to remain in a particular post or location.

No Evidence of Mala Fide Intent: The Tribunal found no evidence of mala fide intent behind the transfer decision. This factor played a substantial role in dismissing the appeal.

Courts’ Reluctance to Intervene: The judgment reiterated that courts generally should not interfere in matters of posting and transfer unless there is substantial evidence of mala fide intent or other irregularities.

Implications:

The ruling offers guidance for future cases involving employee transfers and postings, particularly within the National Highway Authority. It highlights the importance of following departmental procedures for appeal before approaching the Tribunal. Moreover, it strengthens the established legal principle that the competent authority has the prerogative to decide matters of transfer and posting.

Conclusion of Case Note:

The judgment serves as a reiteration of the well-established principles governing employee transfers within the National Highway Authority and, by extension, other similar organisations. It stresses the importance of exhausting internal remedies before approaching judicial forums and upholds the authority’s prerogative to make such administrative decisions. Consequently, the case adds value to the existing body of jurisprudence related to service matters in Pakistan.

 PLJ 2022 Tr.C. (Services) 123

[Federal Service Tribunal, Islamabad]

 TUFAIL AHMAD SHAIKH vs. THE CHAIRMAN, NATIONAL HIGHWAY AUTHORITY (NHA), ISLAMABAD and 2 others

Legal Provisions and Laws Cited

National Highway Authority Employees Service Rules, 1995, Rule 30

National Highway Administration Regulations, 2002, Regulation 17, Chapter 5

Service Tribunals Act, 1973 (LXX of 1973), Section 4

Legal Principles and Factors Involved

Prerogative of Competent Authority

The Tribunal highlighted the prerogative of the competent authority to transfer any employee as part of the terms and conditions of service.

Procedural Precedence

The appellant’s failure to file a departmental appeal before approaching the Federal Service Tribunal played a crucial role in the Tribunal’s decision.

Mala Fide Intent

The Tribunal advised that courts should generally refrain from interfering in posting and transfer matters unless there is an element of mala fide intent, which was not proven in this case.

Analysis

The judgement reiterates well-established principles regarding the discretionary powers of competent authorities in matters of employee transfer. It places a strong emphasis on following procedural hierarchies before taking matters to the Tribunal. The appellant’s case was weakened due to the absence of any departmental appeal. Furthermore, the judgement clarifies that unless there is compelling evidence of mala fide intent, the Tribunal, and by extension, the judiciary at large should refrain from intervening in such administrative decisions.

Another noteworthy aspect is that the Tribunal found the competent authority’s decision to be perfectly legal, adhering to its mandate and requirements under the laws cited. This sets a precedent, reinforcing the administrative autonomy of the competent authority in issues related to employee transfers, provided they act within the legal framework.

The judgement did not cite any previous cases, focusing solely on statutory laws and regulations.

[Significance and Implications

The judgement serves as a strong precedent for the autonomy of competent authorities in matters related to the transfer and posting of employees. It reinforces the principle that judicial bodies should exercise restraint in interfering with administrative decisions unless there is compelling evidence of mala fide intent or a violation of legal provisions. This is particularly significant for public sector organisations where the frequent transfer of employees is common.

Moreover, the judgement underscores the importance of adhering to procedural norms before approaching judicial bodies. The appellant’s failure to file a departmental appeal proved to be a critical omission, reinforcing the principle that all available remedies within the departmental framework should be exhausted before resorting to litigation.

Critique

While the judgement is thorough in its interpretation and application of the law, one could argue that it might have been beneficial to explore the concept of ‘administrative convenience’ in more depth. Given that this term can be rather ambiguous, a more detailed legal interpretation could have provided greater clarity for similar cases in the future. However, given the facts of the case, this may not have been necessary for the Tribunal’s decision.

Conclusions

Overall, the judgement  serves to clarify and reinforce existing legal principles related to the transfer and posting of employees within public sector organisations. It places emphasis on the autonomy of competent authorities to make such decisions, provided they operate within the boundaries of the law and without mala fide intent. It also serves as a reminder to employees to exhaust all available departmental remedies before resorting to litigation, thereby strengthening the procedural integrity of administrative systems.

 PLJ 2022 Tr.C. (Services) 123

[Federal Service Tribunal, Islamabad]

The Federal Service Tribunal in Islamabad, presided over by members Asim Akram and Muhammad Mushtaq Jadoon, delivered the judgment in the case of Zubair Anwar and another vs. Secretary to Government of Pakistan, Establishment Division, Cabinet Block, Pak Secretariat, Islamabad and 3 others. The appeals revolved around issues of seniority, merit lists, and the doctrine of constructive res judicata. The case is seminal for its intricate interpretation of procedural and substantive laws related to service matters.

Legal Provisions and Laws Cited

Civil Procedure Code, 1908 (V of 1908), specifically O.II, R. 21

Service Tribunals Act, (LXX of 1973), specifically S. 4 and S. 5

Civil Servant Act, 1973

Civil Servants Seniority Rules, 1993

Referenced Cases

2010 SCMR 501

1996 SCMR 1047

PLD 2018 SC 828

PLD 2020 SC 324

Facts of the Case

The appellants contested the revised seniority list dated 21.04.2017, alleging that it was issued without a proper merit list. They were appointed as Patrolling Officers in 2001, and their seniority was determined based on a merit list created by the Selection Authority. The appellants argued that in the absence of recruitment rules and a merit list, seniority should have been granted based on age.

Issues

Whether the appeal is maintainable given the principle of constructive res judicata.

Whether the appellants have the right to challenge the seniority list issued in 2017 based on merit.

Whether the doctrine of ‘doctrine of election of remedy’ applies to bar the appellants from bringing a second round of litigation on the same issue.

Legal Analysis

The Tribunal emphasized the principle of constructive res judicata, which bars a party from raising a claim in subsequent litigation if it was or could have been a subject of an earlier suit. This principle is derived from O.II, R. 21 of the Civil Procedure Code, 1908. The Tribunal also drew authority from Section 5 of the Service Tribunals Act, 1973, which gives it powers akin to a civil court as per the Civil Procedure Code.

The Tribunal cited various precedents, including the Supreme Court’s direction on re-fixing seniority (2010 SCMR 501, PLD 2018 SC 828), to establish that the appellants’ claim was barred under constructive res judicata. This is because the issue of the merit list could have been raised during the initial challenge to the seniority list in 2007 but was not.

The doctrine of ‘election of remedy’ was also applied, which holds that one cannot choose among multiple available remedies and then hop to another if the first choice is exhausted.

Significance and Implications

The judgment reiterates the importance of the principle of constructive res judicata in the realm of service law. It underscores the need for litigants to present all facets of their claim in the initial round of litigation to avoid being barred from raising them later. It also brings into focus the ‘doctrine of election of remedy,’ cautioning litigants against flip-flopping between different legal remedies for the same cause.

Critique

While the judgment is comprehensive in its treatment of the issues, it could benefit from a more elaborate discussion on the jurisprudential underpinnings of the doctrine of constructive res judicata and ‘doctrine of election of remedy,’ especially in the context of service law.

Conclusion

The Federal Service Tribunal, through this judgment, reinforces the existing legal principles governing service matters, especially concerning seniority and the doctrine of constructive res judicata. It serves as a cautionary tale for public servants to ensure that all possible claims are brought forward at the earliest opportunity to avoid later procedural bars.

PLJ 2022 Tr.C. (Services) 112

Parties

Appellant: Muhammad Anwar Malik
Respondents: Divisional Medical Officer Pakistan Railways, Bogie Road, Lahore and 4 others

Facts

The appellant, Muhammad Anwar Malik, a retired Sanitary Inspector from Pakistan Railways, applied for the reimbursement of medical expenses incurred for his wife’s treatment. His wife had undergone a surgical procedure known as sleeve gastrectomy for metabolic syndrome. The treatment took place at a private hospital, Shalamar Hospital, Lahore, due to the unavailability of appropriate medical facilities at Railway Cairns Hospital. His application for reimbursement was declined by the respondents, who cited various grounds including the private hospital not being empanelled and the absence of pre-approval for the treatment.

Legal Framework

  • Service Tribunal Act, 1973, Section 4
  • Medical Manual of Pakistan Railway
  • West Pakistan Government Servants (Medical Attendance) Rules, 1959

Issues

  • Validity of the denial of medical claim reimbursement.
  • The right of a civil servant and his family to medical facilities.
  • Applicability and interpretation of rules and policies concerning medical reimbursement.

Judgment

The Federal Service Tribunal, Lahore, presided by Ch. Muhammad Amin Javed and Imtiaz Ahmad Khan, held that the denial of the medical claim was illegal. They ordered the reimbursement of the medical expenses to the appellant, effectively setting aside the impugned orders dated 2.2.2017 and 13.10.2017, as well as the findings dated 26.1.2017.

Legal Principles and Analysis

  • Right to Medical Facility: The court established that the appellant and his family had a right to medical facilities. The Service Tribunal Act, 1973, and the Medical Manual of Pakistan Railway were cited to support this right.
  • Emergency Conditions: The court noted that life-threatening conditions warrant emergency measures, making it unreasonable to expect the appellant to wait for pre-approval from the department. This aligns with the West Pakistan Government Servants (Medical Attendance) Rules, 1959, which allow for post facto approval in emergencies.
  • Quality of Medical Board: It was observed that the Medical Board, which was instrumental in declining the claim, was not composed of specialist doctors related to the condition. The court considered this a significant flaw, rendering the board’s decision legally untenable.
  • Administrative Malpractice: The court criticised the respondents for misreading evidence and abusing their authority. It cited cases such as Shiva Kant Jha v. Union of India (AIR 2018 S.C. 1975), PLD 2010 S.C. 857, and PLD 2013 S.C. 195 to highlight the importance of good governance and the duty of government departments to protect the interests of their employees.
  • Precedents: The judgment relied on several other rulings, such as Abdul Baseer Khan v. Government of Khyber Pakhtunkhwa through Secretary Finance Department, Peshawar and others [2016 PLC (C.S.) 1147], to fortify its decision. These cases also dealt with the issue of medical reimbursements and established that a civil servant is entitled to such benefits, particularly in emergency situations.

In conclusion, the judgment is a robust affirmation of a civil servant’s right to medical facilities. It criticises bureaucratic red tape that can endanger lives in emergency situations and calls for a more compassionate and reasonable interpretation of rules and policies. The ruling is grounded on established laws and prior case law, making it a well-reasoned and just decision.

PLJ 2022 Tr.C. (Services) 119

[Federal Service Tribunal, Islamabad]

The judgement in question pertains to the case of Ashraf Ali Shah versus the Government of Pakistan through Chairman, Federal Board of Revenue Islamabad and others. It falls under the purview of the Service Tribunals Act, 1973, specifically Section 4. This case explores the appellant’s quest for a proforma promotion to BS-18 post-retirement. The Federal Service Tribunal, with members Asim Akram and Muhammad Mushtaq Jadoon presiding, dismissed the appeal on the basis of several legal principles, precedents, and statutory guidelines.

Legal Provisions and Laws Cited:

Service Tribunals Act, 1973 (LXX of 1973), Section 4: This is the primary legislative provision under which the appeal was considered. It deals with the jurisdiction and powers of the Service Tribunals in matters concerning civil servants.

Cases Cited:

Ashiq Ali Bhatti—Appellant versus Federation of Pakistan through Secretary Establishment Division and others—Respondents (2006 SCMR 1324)

Government of Pakistan through Establishment Division Islamabad and others v. Hameed Akhtar Niazi, Academy of Administrative Training, Walton Lahore and others (PLD 2003 SC 110)

Dilawar Ali and another vs. General Manager Pakistan Railways, Lahore (2006 PLC(CS)1034)

Muhammad Asghar Rana vs. Board of Intermediate and Secondary Education Lahore (2008 SCMR 663)

Analysis of Legal Principles and Factors:

Proforma Promotion: The appellant’s main argument was that he should be granted a proforma promotion to BS-18 because the vacancy existed before his retirement. The court, however, cited Ashiq Ali Bhatti (2006 SCMR 1324) and noted that the concept of proforma promotion is designed to protect civil servants who have had to leave their parent cadre for reasons of public interest. In this case, the appellant had already retired and had no such conditions to justify a proforma promotion.

Timeliness of the Appeal: One of the significant aspects in the dismissal was the delay in filing the appeal. The court highlighted that the appellant filed the appeal almost three years after retirement, without providing a sufficient reason for the delay.

Seniority and Eligibility: Another crucial point was the appellant’s position on the seniority list. The appellant was 92nd on the seniority list for BS-17, and no junior to him was promoted before his retirement. This made his case for a proforma promotion weaker.

Legal Precedents: Several cases were cited to support the Tribunal’s decision. In particular, the case of Muhammad Asghar Rana (2008 SCMR 663) was invoked to stress that negligence or indolence on part of officials does not warrant indulgence from the courts.

Futility of Departmental Representation: The appellant’s departmental representation was deemed ineffective as it wasn’t filed through the proper channels and lacked clarity on the vacancy and his eligibility for promotion.

In conclusion, the Tribunal found that the appellant’s case lacked merit and was time-barred, thereby dismissing the appeal. The judgement aligns well with the established principles and precedents regarding proforma promotions and timely filing of appeals. Therefore, it serves as a comprehensive exposition on the complexities surrounding proforma promotions in the context of civil service law in Pakistan. 

 PLJ 2022 Tr.C. (Services) 119. The judgment revolves around the appellant’s claim for a proforma promotion after his retirement. The appellant, Ashraf Ali Shah, contended that he was eligible for proforma promotion to BS-18, but was denied the same by the department, thereby necessitating this appeal.

Legal Provisions and Laws Cited:

Service Tribunals Act, 1973 (Section 4)

FR-17(1) Committee Guidelines

Cases Cited:

2006 SCMR 1324

PLD 2003 SC 110

2008 SCMR 663

2006 PLC (CS) 1034

Legal Principles and Factors:

The case deals with a few critical legal principles:

Proforma Promotion: The concept of proforma promotion, especially post-retirement, forms the crux of the case.

Seniority: The matter of the appellant’s seniority and its role in promotions.

Timeliness: The delay in filing the appeal and its implications were also considered.

Administrative Guidelines: The FR-17(1) Committee guidelines were referred to determine the eligibility for proforma promotion.

Analysis:

The Tribunal dismissed the appellant’s case based on a few key factors:

Delay: The appellant filed the appeal almost three years after retirement, and the delay was not satisfactorily explained.

Eligibility: The Tribunal found that no junior of the appellant had been promoted to a higher grade before his retirement, making him ineligible for proforma promotion based on FR-17(1) Committee guidelines.

Precedents: The Tribunal referred to several prior judgments that restrict retrospective proforma promotions and thereby, established that the appellant’s case had no merit.

The Tribunal’s decision aligns with existing laws and precedents, although it opens up a discussion on the need for more flexibility in the guidelines for proforma promotions, especially in exceptional or deserving cases.

Administrative Guidelines and Committees: The Tribunal upheld the stance taken by the Junior Level Committee of FR-17(1), stating that it was in line with the guidelines. This raises questions about the scope and powers of such committees in determining career advancements for civil servants.

Case Law: The judgment cited multiple past decisions to fortify its stand. However, it could be argued that the past cases might not cover all nuances of the appellant’s situation, particularly considering the delay in filing the appeal.

Legal Precedence vs Human Factor: The Tribunal was stringent in its interpretation of the guidelines and previous rulings. While this ensures consistency in legal interpretation, it may not account for individual circumstances that could merit an exception.

Effect on Future Cases: This judgment sets a precedent that could discourage other civil servants from pursuing proforma promotions post-retirement, particularly if there’s a delay in filing or if no junior has been promoted before them.

In summary, the Tribunal’s judgment is consistent with existing laws and past judgments. However, it raises important questions about the rigidity of administrative guidelines and their ability to adapt to individual cases. It also underscores the importance of timely filing of appeals and petitions.

Concluding Remarks:

The Tribunal’s decision in this case demonstrates the intricate balancing act between adhering to legal precedents and administrative guidelines, and considering individual circumstances. While the judgment is legally sound, it does bring up questions about the systemic flexibility needed to address unique or exceptional cases.

PLJ 2022 Tr.C. (Services) 107

[Federal Service Tribunal, Lahore Bench]

Legal Provisions and Laws Cited

Pakistan Water and Power Development Authority Act, 1958 (XXXI of 1958), Section 18

Service Tribunal Act, 1973, Section 4

Fundamental Rule 17

Constitution of Pakistan 1973, Article 189

Civil Servants Act, 1973, Section 25

Cases Cited

2016 SCMR 646

PLD 1990 SC 666

PLD 2017 Islamabad 19

PLD 1991 SC 1118

PLD 1969 SC 430

FST in Liaqat Ali vs WAPDA (Appeal No. 299(L)CS/2000 decided on 09.02.2004)

FST in Fazal-e-Subhan vs. WAPDA (Appeal No. 205(P)CS/2003 decided on 26.04.2007)

2017 CLC 495

Background and Facts

The appellants in this case were civil servants who had been promoted to higher posts through proforma promotion. However, they were denied payment of arrears by the respondent department. The primary issue was whether the appellants were entitled to arrears of pay and allowances for the post of Budget and Accounts Officer. The department had granted proforma promotions but refused to pay arrears based on an Office Memorandum (O.M.) which stipulated that employees would not be entitled to arrears.

Legal Principles and Factors Involved

Proforma Promotion: The case revolves around the principle of proforma promotion, where employees are promoted on paper but continue to work in their existing roles. The central issue was whether such promotion entitles the employee to arrears.

Obligation to Rectify Mistakes: The Tribunal held that if the employer makes an error, they are obligated to rectify it automatically, without requiring an application from the aggrieved employee.

Statutory Force of Office Memorandums: The Tribunal scrutinised the O.M. that formed the basis of the department’s refusal to pay arrears. It found that while the O.M. had statutory force, it did not cover cases where the department had made a mistake.

Natural Justice and Fair Play: The Tribunal found that the department’s denial of arrears was against the principles of natural justice and fair play.

Binding Nature of Judicial Decisions: It was emphasised that judicial decisions declaring a law are binding on all state organs, including WAPDA in this case.

Nonjoinder of Parties: The Tribunal rejected the argument that WAPDA needed to be a party for the appeals to be maintainable, relying on case law that emphasises doing justice over adhering to technicalities.

Analysis

The Tribunal’s judgement is noteworthy for several reasons:

Interplay Between Statutory Rules and Natural Justice: The Tribunal had to balance the strict wordings of statutory rules and O.M.s against the broader principles of natural justice and fairness. It ruled in favour of natural justice, holding that statutory rules couldn’t be used to perpetuate an injustice.

Autonomous Rectification: The Tribunal established that the employer has a legal obligation to rectify its mistakes automatically, which could have implications for similar cases in the future.

Role of Precedents: The Tribunal relied heavily on existing case law, emphasising the binding nature of judicial decisions. This reinforces the hierarchical structure of the legal system and the importance of precedent in ensuring consistent legal interpretations.

Technicalities vs Justice: The Tribunal’s rejection of the nonjoinder argument echoes a broader judicial preference for substantive justice over procedural technicalities.

Limitations of Office Memorandums: The Tribunal scrutinised the limitations of the O.M., specifically its inability to cover situations where the employer makes an error. This could prompt a re-evaluation of similar O.M.s to ensure they are comprehensive.

In conclusion, the judgement serves as an important precedent in cases involving proforma promotions, the right to arrears, and the scope and limitations of Office Memorandums. It underscores the importance of the principles of natural justice and fair play in the interpretation and application of statutory rules.

PLJ 2022 Tr.C. (Services) 94

[Federal Service Tribunal, Islamabad]

Facts of the Case

The appellants, Iftikhar Ahmed and Saif-ur-Rehman, were aggrieved by their transfers from CB Rawalpindi to Mardan and Bannu, respectively. They invoked the jurisdiction of the Federal Service Tribunal, Islamabad. The appeals were filed under different statutes including the Constitution of Pakistan, 1973; Pakistan Cantonment Servant Rules, 1954; Civil Servant Act, 1973; and Service Tribunals Act, 1973.

Legal Provisions Involved

Constitution of Pakistan, 1973: Articles 260, 240, and 241, which define ‘Service of Pakistan’ and provide for the determination of appointments and conditions of service.

Pakistan Cantonment Servant Rules, 1954: Rule 5 which deals with the transfer of local employees.

Civil Servant Act, 1973: Sections 5 and 10, which pertain to the categories of appointments and conditions of service.

Service Tribunals Act, 1973: Section 2(A) dealing with the invoking of jurisdiction.

Case Law Cited

PLD 2006 SC 602: Referred for the jurisdictional matter.

2010 SCMR 1484 and 2018 SCMR 335: Relied upon by the respondents to challenge the jurisdiction and merit of the case.

Appeal No. 525 to 538(R)CS/2009: Relied upon by the appellants, where similar transfer orders were set aside.

See also  THE LEGAL WORLD REVOLUTION THAT IS BLOCKCHAIN

Legal Principles and Analysis

Jurisdiction: A significant aspect of the case was the challenge to the jurisdiction of the Service Tribunal. This was assessed under Article 260 of the Constitution, which defines ‘Service of Pakistan’. The tribunal concluded that the scope of ‘Service of Pakistan’ is broader than that of a ‘Civil Servant’ as per the Civil Servants Act, 1973.

Transfer of Local Employees: According to Rule 5 of the Pakistan Cantonment Servant Rules, 1954, the DG ML&C is competent to transfer any employee from one Cantonment to another. This was the crux of the respondents’ argument.

Lapse of Statutory Period: The appellants argued that their departmental appeals were not responded to, despite the lapse of the statutory period of ninety days. This could be seen as an administrative lapse, affecting the legality of the transfers.

Maintainability of Appeals: Despite objections regarding the jurisdiction, the tribunal allowed the proceedings to continue, indicating that an employee’s right to a legal forum for remedy should be preserved.

Precedent: The appellants relied on past judgments where similar transfer orders were set aside. However, the respondents pointed out that those cases were different and could not be equated with the present matter.

Constitutional and Legal Rights: The tribunal emphasised that as citizens of Pakistan, the appellants have a constitutional right to a forum for remedy, making a strong case for the maintainability of the appeals.

Cost and Adjournments: The tribunal imposed a cost for non-appearance, which was later revoked, showing the tribunal’s stance on adherence to procedural norms.

 PLJ 2022 Tr.C. (Services) 89

[Federal Service Tribunal, Islamabad]

Citation of Legal Provisions, Laws and Cases

National Highway and Pakistan Motorway Police (Efficiency and Disciplinary) Rules, 2016:

Rule 7(1), Rule 7(2)(a)(b), Rule 7(3) and Rule 7(4) are specifically cited to discuss the departmental inquiry procedures and impositions of penalties.

Words & Phrases:

Black’s Law Dictionary definition of “Determination” is cited for better understanding of the term.

Case Law:

The judgement references multiple cases, including 2019 SCMR 640, 2005 SC 85, 1994 SCMR 2232, PLD 2014 Islamabad, 2015 PLC (CS) 1270 and PLD 2014 Lahore 167, to fortify its arguments regarding due process and mandatory provisions.

Analysis of Legal Principles and Factors Involved

Due Process and Mandatory Procedure:

The crux of the case revolves around the concept of due process. The appellant argues that no proper procedure, as outlined in the National Highway and Pakistan Motorway Police (Efficiency and Disciplinary) Rules 2016, was followed. This grievance is validated by the tribunal, citing case law that insists upon the mandatory nature of following established legal procedures.

Authority’s Discretion and ‘Determination’:

The term ‘determination’ as per Black’s Law Dictionary implies a final decision by a Court or administrative agency. The authority’s discretion to initiate an inquiry or issue a show-cause notice comes under this. The tribunal highlighted the necessity for this determination to be a “speaking order,” meaning it should lay down the reasons for reaching its conclusion.

Exceptions to the Rule and Security Interests:

Rule 7(3) allows the authority to bypass the show-cause notice under specific circumstances related to national security. However, the tribunal noted that such an exception was not applicable in this case.

Legal Defects and Remedies:

The judgement pointed out that the authority merely issued an impugned order without adhering to the mandatory procedures of issuing a show-cause notice or conducting an inquiry. Such procedural irregularities were deemed as “bordering illegality” and thus non-condonable.

Time Bar and Filing of Appeals:

The tribunal accepted that the eleven-day delay in filing the departmental appeal was condonable due to the void ab initio nature of the initial inquiry proceedings.

Remand for De Novo Inquiry:

The tribunal remanded the case back for a de novo inquiry, indicating that the procedural lapses were so severe that they merited a complete do-over of the proceedings.

Amendments in Rules:

The tribunal also took the opportunity to suggest amendments in the 2016 Rules, pinpointing specific errors in the language used.

Costs and Parties:

The judgement concludes without an order as to costs, implying that each party will bear its own costs. This is an important point, as it often serves as a deterrent for frivolous lawsuits.

Precedent Setting and Future Implications:

This case is particularly significant because it sets a strict precedent regarding the observance of due process and legal procedures. Authorities would be well-advised to heed the specific instructions and guidelines laid down in the relevant rules to avoid having their decisions set aside on procedural grounds.

Checks on Administrative Discretion:

The judgement serves as a vital check on administrative discretion, emphasising the need for transparency and fairness in administrative actions, which in turn strengthens the rule of law.

Role of Legal Representation:

The role of the counsel for the appellant, Mr. Hafiz Noor Muhammad, and Assistant Attorney General, Mr. Muhammad Shakeel Awan, was crucial in bringing forth the complexities and nuances of the case. Their references to previous case laws and legal provisions added weight to their respective arguments.

Implications for Rule Amendments:

The tribunal’s suggestion for amendments in the National Highway and Pakistan Motorway Police (Efficiency and Disciplinary) Rules, 2016 indicates an active judicial role in not just interpreting but also improving the law for future cases.

In conclusion, the case serves as a robust commentary on the necessity of due process and the adherence to established legal frameworks. It underscores the significance of the rule of law in administrative actions and sets a clear precedent for similar cases in the future.

 PLJ 2022 Tr.C. (Services) 55

[Federal Service Tribunal, Islamabad]

This case involves disciplinary proceedings against an individual based on an anonymous video clip. The judgement covers a range of legal provisions, laws, and case citations to outline the validity of such evidence in disciplinary actions.

Legal Provisions, Laws, and Cases Cited

Punjab Police (Efficiency & Disciplinary) Rules, 1975:

Rule 2(iii) specifies the definition of “Misconduct” but does not mention audio/video clips as evidence.

Rule 6.3(i)(a) & (b) pertains to illegal gratification and the levying of charges based on misconduct and inefficiency.

Qanoon-e-Shahdat Ordinance, 1984, Article 164:

Discusses the admissibility of evidence made available through modern devices.

Case Law:

PLD 2019 SC 675 (Ishtiag Ahmed Mirza and Others vs Federation of Pakistan and others)

2021 SCMR 1077 (Member (Administration), Federal Board of Revenue and others–Petitioners versus Mian Khan–Respondent)

Analysis of Legal Principles and Factors Involved

Anonymous Evidence and Natural Justice:

The case highlights the importance of the principle of natural justice, particularly concerning anonymous evidence. The tribunal found that an anonymous video clip could not serve as a valid basis for disciplinary action without a thorough inquiry into its authenticity.

Definition of Misconduct:

The judgement points out the limitations of Rule 2(iii) in the Punjab Police (Efficiency & Disciplinary) Rules, 1975, which does not specifically address the use of audio/video clips as evidence of misconduct.

Admissibility and Authenticity of Evidence:

The tribunal cited Article 164 of the Qanoon-e-Shahdat Ordinance, 1984, and relevant Supreme Court guidelines to elaborate on the conditions for admitting audio/video evidence.

Due Process and Inquiry:

The case calls for a de novo inquiry to establish the authenticity of the video clip. The tribunal set aside the impugned order on the grounds that it was not in accordance with law and rules, given the lack of a proper inquiry into the evidence.

Conflict of Interest:

The judgement notes that the DIG (Operation), who initially received the anonymous video clip, acted as the complainant, investigator, and decision-maker in the case. This raises issues of impartiality and conflicts with the principle that “a man cannot be a judge in his own cause.”

Forensic Evaluation:

The judgement emphasizes the need for a forensic report to validate the authenticity of audio/video evidence, referencing the case 2021 SCMR 1077.

Outcome and Directions for Future Proceedings:

The tribunal directed a de novo inquiry and outlined specific steps for the respondents to follow to ensure due process and the application of natural justice principles.

Costs and Time Frame:

The judgement concludes without an order as to costs and advises that the entire exercise be completed preferably within three months.

In summary, the judgement serves as a crucial touchstone for matters involving disciplinary action based on anonymous evidence. It sets rigorous standards for the admissibility and evaluation of such evidence, stressing the importance of due process and the principles of natural justice.

PLJ 2022 Tr.C. (Services) 44

[Federal Service Tribunal, Islamabad]

Parties Involved

Appellant: Ali Imran Minhas

Respondents: M/O. Inter-Provincial Coordination through Secretary, Islamabad and another

Presiding Members

Rana Zahid Mehmood and Muhammad Mushtaq Jadoon, Members

Relevant Legal Provisions and Laws

Government Servants (Efficiency and Discipline) Rules, 1973

Federal Service Tribunal Act, (LXX of 1973), S. 4

Civil Procedure Code, 1908

Pakistan Penal Code (1860), Sections 193 and 228

Summary of the Case

The appellant, Ali Imran Minhas, was subjected to a major penalty of reduction to a lower post under the Efficiency and Discipline (E&D) Rules, 1973. The principal charge against him was of taking a bribe of Rs. 140,000. The appellant appealed against this decision, arguing that the inquiry proceedings were fundamentally flawed, relying on hearsay and not following the stipulated procedures under the E&D Rules, 1973. The Tribunal ultimately set aside the penalty imposed on the appellant due to procedural illegalities and lack of substantive evidence.

Legal Principles Involved

Natural Justice: The appellant was not given a fair chance to present his case, which is a violation of the principle of natural justice.

Procedural Integrity: The procedures laid out under the E&D Rules, 1973 were not followed, thereby compromising the integrity of the disciplinary action.

Burden of Proof: The inquiry failed to establish the guilt of the appellant based on substantive evidence.

Analysis and Opinion

Failure to Adhere to Procedure: The case is a textbook example of how not adhering to prescribed legal procedures can lead to miscarriages of justice. The inquiry officer did not follow the E&D Rules, 1973 rigorously, which led to a flawed investigation.

Lack of Substantive Evidence: The allegations against the appellant were serious, but the inquiry relied on hearsay and verbal statements without corroborative evidence. This lack of substantive evidence further weakened the respondents’ case.

Violation of Natural Justice: The appellant’s fundamental rights to defend himself were not respected, which is a clear violation of the principles of natural justice.

Flawed Role of Authorized Officer: The authorized officer acted merely as a forwarding agency rather than applying his mind to the allegations and the evidence, which is contrary to the E&D Rules, 1973.

Presumption of Innocence: The presumption of innocence until proven guilty was not applied in this case. Instead, the appellant was held guilty until he proved his innocence, which is contrary to the fundamental principles of justice.

Inconsistency in Inquiry Reports: There was inconsistency in the inquiry reports, and the fact that an inquiry officer’s report was not even signed reflects a lack of seriousness in adhering to procedural sanctity.

Impartiality: The complainant was not a neutral person, which brings into question the impartiality of the whole process.

In light of the above, it is clear that the appeal was rightly accepted. The case serves as a stark reminder of the importance of following prescribed legal procedures and upholding the principles of natural justice.

Conclusion

The Tribunal’s decision to set aside the penalty imposed on the appellant is legally sound and justified, given the procedural lapses and absence of substantive evidence. This case underscores the importance of adhering to legal procedures and principles, failure in which can result in miscarriages of justice.

PLJ 2022 Tr.C. (Services) 39

[Federal Service Tribunal, Islamabad]

Parties Involved

Appellant: Ejaz Ahmed and another

Respondents: Deputy Inspector General of Police, Operation Islamabad and another

Presiding Members

Asim Akram and Muhammad Javed Ghani, Members

Relevant Legal Provisions and Laws

Punjab Police (Efficiency & Discipline) Rules, 1975 – Rules 4(a)(b), 6(3)(i)(A), and 14

Civil Servants Act, 1973 – Section 2(1)(b)

1998 PLC (C.S.) 893 referred.

Summary of the Case

The appellants, Ejaz Ahmed and Zaheer Ahmed, were police constables who were dismissed from service following departmental proceedings. They were temporarily reinstated by an appellate authority but had their reinstatement cancelled later. The core issue was whether the appellate authority had the jurisdiction to cancel the reinstatement, especially given that the concept of ‘temporary reinstatement’ is not provided for in the Punjab Police (E&D) Rules, 1975. The Tribunal dismissed the appeal, holding that once reinstatement orders were passed, they could neither be revoked nor withdrawn under the principle of locus poenitentiae.

Legal Principles Involved

Jurisdiction of Appellate Authority: Once an appellate authority has made a final decision, it generally does not have the power to revoke it unless explicitly stated in the relevant legal provisions.

Principle of Estoppel: One cannot accept and reject the same legal fact or entitlement at different times for different purposes.

Principle of Locus Poenitentiae: This principle, which allows a party the chance to withdraw from a commitment before any detriment befalls them, was held not applicable once the reinstatement orders had created certain legal rights.

Analysis and Opinion

Question of Jurisdiction: The Tribunal effectively overruled the respondents’ objection on jurisdiction, stating that as employees of the Islamabad Capital Territory Police, the appellants fell within the definition of Civil Servants as per the Civil Servants Act, 1973.

Ambiguity in Reinstatement: The Tribunal highlighted that the term “Temporarily Re-instated” used in the impugned order is not provided for in the Punjab Police (E&D) Rules, 1975. This itself made the subsequent cancellation of the reinstatement dubious in legal terms.

Finality of Appellate Order: According to Rule 14(b) of the Punjab Police (E&D) Rules, 1975, the order of the appellate authority is final. There is no provision for withdrawal of the same, thereby making the cancellation of the reinstatement legally untenable.

Role of Media Pressure: The appellants’ counsel alleged that the impugned order was influenced by media pressure in the Frishta Bibi case. While this was a serious allegation, it was not substantively dealt with in the judgment.

Principle of Estoppel: The Tribunal held that the respondents could not approbate and reprobate with regard to the same matter. This essentially means that having reinstated the appellants, they were estopped from cancelling the reinstatement later.

Principle of Locus Poenitentiae: The Tribunal held that this principle was not applicable here, primarily because the reinstatement orders had already created certain legal rights in favour of the appellants.

In summary, the Tribunal’s dismissal of the appeal is in line with existing legal principles, particularly focusing on the finality of appellate orders and the concept of estoppel. It also highlights the need for clarity in departmental rules to avoid ambiguities like ‘temporary reinstatement’, which are not legally defined.

Conclusion

The case reinforces the sanctity of appellate orders and highlights the constraints within which appellate authorities operate. It also underlines the importance of clear and unambiguous departmental rules to prevent potential legal complications. The Tribunal’s judgment appears well-grounded in existing law, and its dismissal of the appeal serves as a reminder of the limitations of administrative authority once it has been exercised.

 PLJ 2022 Tr.C. (Services) 33

[Federal Service Tribunal, Lahore]

Parties Involved

Appellants: Hammad Hassan Mirza, Deputy Project Director (Track Rehabilitation), Pakistan Railways, Lahore and others

Respondents: Secretary/Chairman, Ministry of Railways (Railway Board) Government of Pakistan, Islamabad and 2 others

Presiding Members

Ch. Muhammad Amin Javed and Imtiaz Ahmad Khan, Members

Relevant Legal Provisions and Laws

Service Tribunals Act, 1973 (LXX of 1973) – Section 4

Cited Cases: 2012 SCMR 965, PLD 2016 (SC) 398, 2020 SCMR 90, 2010 SCMR 1301, 2003 SCMR 271, 2012 SCMR 864

Summary of the Case

The appellants challenged the provisional seniority list, which demoted their seniority position, and the rejection of their departmental appeals. The core issue revolved around an amendment in the rules and a subsequent notification that clubbed the posts of civil engineers and mining engineers for the purpose of seniority and promotion. The Tribunal accepted the appeals, finding the clubbing of different service cadres and the retrospective implementation of the notification illegal and untenable in law.

Legal Principles Involved

Retrospective Implementation of Rules: Laws and notifications cannot be applied retrospectively to affect vested rights.

Legitimate Expectation: Employees have a legitimate expectation that their seniority and other service rights will not be adversely affected by changes in rules or laws.

Fair Exercise of Discretion: Administrative authorities must exercise discretion in a fair, reasonable, and transparent manner.

Analysis and Opinion

Retrospective Implementation: The Tribunal held that the retrospective application of the notification to 1994, the date of appointment of Respondent No. 3, was against the law of interpretation. This was especially poignant since it affected the rights of the appellants negatively.

Distinct Nature of Cadres: The Tribunal found it wholly illegal to club two different service cadres (civil engineers and mining engineers) with distinct natures of job, qualifications, and appointment criteria into one cadre for the purpose of seniority and promotion.

Failure to Include Necessary Parties: The Tribunal noted that the appellants were not included as necessary parties in the original appeal that led to the amendment in the rules, thus questioning the legality of the clubbing of cadres.

Legal Precedents: The Tribunal cited multiple judgments to assert that rules should operate prospectively and should not affect vested rights. It also emphasized that undue benefits should not be granted based on amended rules that were not available at the relevant date.

Non-Maintainability Rejected: The Tribunal rejected the respondents’ arguments that the appeals were not maintainable, as the appellants were directly affected by the seniority list and had a legal right to challenge it.

Legitimate Expectation: The ruling also touched upon the principle of legitimate expectation where employees should not be adversely affected due to amendments in rules, particularly when such amendments have retrospective effects.

In summary, the Tribunal’s ruling was a strong affirmation of the principles that protect employees’ rights and the rules of fair administrative procedure. It highlighted the limitations on administrative powers, particularly when it comes to making retrospective decisions that affect employees’ rights.

Conclusion

The case serves as an important reminder of the principles that govern administrative decisions affecting employees’ rights. It underscores the need for careful consideration and transparency when making changes to rules and regulations that affect employees, particularly when those changes have retrospective implications. The Tribunal’s judgment is well-rooted in established legal principles and provides a clear path for addressing similar issues in the future.

 PLJ 2022 Tr.C. (Services) 28

[Federal Service Tribunal, Lahore]

Parties Involved

Appellant: Maqbool Hussain

Respondents: Planning and Development Division of Pakistan Civil Secretariat, Islamabad through Secretary and 3 others

Bench

Ch. Muhammad Amin Javed and Imtiaz Ahmad Khan, Members

Legal Provisions and Laws Cited

Service Tribunals Act, 1973 (LXX of 1973), Section 4

NLC Service Rules, 1986

Civil Servants Act, 1973

Government Servants (Efficiency and Discipline) Rules, 1973

Referenced Cases

Federation of Pakistan through Secretary, Ministry of Education and others v. Naheed Naushahi (2010 SCMR 11)

Alamgir v. Divisional Forest Officer, Multan (1993 SCMR 603)

Chief Election Commissioner of Pakistan and others v. Miss Nasreen Pervez (2009 SCMR 329)

Muhammad Naeem Akhtar v. Managing Director, Water and Sanitation Agency LDA, Lahore and others [2017 PLC (C.S.) 676]

Facts

The appellant, Maqbool Hussain, was initially terminated verbally in 2009. Upon appeal, the Federal Service Tribunal reinstated him in 2015 and directed a de novo inquiry into the allegations against him. Despite the Tribunal’s directive, the department discharged him again in 2017 without conducting a proper inquiry. The appellant appealed the decision, citing failure to adhere to principles of natural justice and procedural improprieties.

Issues

Whether the termination of the appellant without a proper inquiry was lawful.

Whether the principles of natural justice were adhered to in the process leading to the appellant’s termination.

Judgment Analysis

The Tribunal emphasized the indispensable nature of a departmental inquiry in cases where a major penalty, such as termination, is imposed. It was noted that the department failed to heed the Court’s previous directions for a de novo inquiry against the appellant. As such, the Tribunal found the department’s actions to be in breach of established legal principles and the principles of natural justice.

The Tribunal also dismissed the respondents’ objection regarding the maintainability of the appeal, stating that the issue had already been settled by the Supreme Court of Pakistan.

Holding and Decision

The Tribunal accepted the appellant’s appeal and directed his reinstatement from the date of his discharge, with back benefits.

Legal Principles Involved

Natural Justice: The Tribunal reaffirmed the principle that an employee accused of misconduct must be given a fair opportunity to defend themselves, which usually entails a full-fledged inquiry.

Retrospective Effect: The Tribunal also discussed the established canon of law that policies or rules cannot be implemented retrospectively, affecting vested rights.

Critical Analysis

The judgment is a strong affirmation of the principles of natural justice and procedural fairness. It underscores the importance of conducting a regular inquiry before imposing major penalties like termination. The Tribunal’s judgment serves as a reminder that shortcuts in procedural requirements may result in legal setbacks for employers, thereby elongating the legal process, contrary to the aim of quick dispute resolution.

By dismissing the respondents’ objections about the maintainability of the appeal, the Tribunal also contributed to the clarity of law, reinforcing that legal procedures must be adhered to irrespective of the nature of the employment or the entity involved.

In essence, the judgment emphasizes the sanctity of procedural fairness and the need for adherence to principles of natural justice in employment matters, thereby setting a precedent for similar cases in the future.

 PLJ 2022 Tr.C. (Services) 20

[Federal Service Tribunal, Islamabad]

The case, heard at the Federal Service Tribunal in Islamabad, was an appeal against the Commandant of the Frontier Constabulary (F.C.) in Khyber Pakhtunkhwa (KPK) by Shah Khalid and others. The appellants contended that their services, initially contractual, should be regularised from their initial date of appointment, thereby entitling them to back benefits, increments, and pay protection.

Legal Provisions and Laws Cited

Constitution of Pakistan, 1973, Article 190

Service Tribunals Act, 1973, Section 4

Case References

PLJ 2021 Tr.C. (Services) 60

2016 SCMR 1611 (Abdul Hameed and others vs. Special Secretary Education, Government of Punjab, Lahore)

2017 PLC (CS) 692

2014 PLC (C.S) 377

2018 SCMR 157 & 2018 SCMR 380

Analysis

Legal Principles and Factors Involved

The primary legal issue was the regularisation of contractual employees and whether it should be backdated to their initial date of service. The Service Tribunals Act, 1973, and the Constitution of Pakistan, 1973, were pivotal in this regard.

Article 190 of the Constitution mandates that all executive and judicial authorities in Pakistan shall act in aid of the Supreme Court. This became crucial as the judgment had to align with the precedents set by the Supreme Court, which are binding on all lower courts and tribunals.

Critical Aspects

Exclusive Remedy: The Supreme Court had earlier ruled that the Service Tribunal was the exclusive legal forum for matters relating to the terms and conditions of F.C. employees.

Timing of Regularisation: The primary contention was whether the regularisation should be backdated to the initial appointment date. The appellants argued that they had been discriminated against as their services were not regularised from the beginning, unlike their colleagues.

Contractual to Permanent Transition: The respondents argued that since the appellants were initially hired on a contract, their services could only be considered regular from the date of their official regularisation.

Tribunal’s Decision

The Tribunal rejected the appellant’s arguments for a few key reasons:

It relied heavily on the precedents set by the Supreme Court, which stated that the regularisation of contractual employees should be effective from the date of the regularisation and not backdated.

The Tribunal also referred to the Supreme Court’s ruling that it was the exclusive forum for such employment disputes, thereby nullifying the earlier decision by the Peshawar High Court.

Conclusion

The Tribunal’s decision was in line with the Supreme Court’s rulings and the Constitution. It highlighted the importance of adhering to established legal procedures and norms, specifically those set by higher courts. The appeal was dismissed, affirming that the regularisation of the appellants would not be backdated to their initial date of appointment.

A review of Tribunal Cases from 2023

PLJ 2023 Tr.C. (Services) 101

[Federal Service Tribunal, Islamabad (Karachi Bench)]

In the case of Ghulam Hussain Chand v. Secretary, Revenue Division/Chairman, FBR, Islamabad and 2 others, Appeal No. 111(K)CS of 2021, decided on 28.9.2022, the Federal Service Tribunal, Islamabad (Karachi Bench) delved into several intricate legal principles and factors. The bench comprised Tauqeer Ahmed Khan and Shahid Ahmad as Members.

Legal Provisions and Laws Cited

Civil Servants (Efficiency and Discipline) Rules, 2020, specifically Rules 2(1)(h)(k), 6 & 7

Service Tribunals Act, 1973, specifically Section 4

Case Law Cited

2010 SCMR 237 (Executive Engineer, GEPCO Limited and another v. Liaqat Ali)

2017 SCMR 1880 (Muhammad Sadiq v. Inspector General of Police Punjab Lahore and others)

2020 SCMR 1018 (Muhammad Shoaib Ahmed v. The Controller General of Accounts, Islamabad)

Legal Principles and Factors

Violation of Principles of Natural Justice

The tribunal found that the principles of natural justice were grossly violated against the appellant. The appellant was not afforded a fair opportunity to defend himself against allegations of absence from duty, especially since he had denied the allegations.

Mala Fides on Part of the Department

The tribunal took note of the mala fides of the department, especially the behaviour and conduct of Respondent No. 2, who took five months to report the appellant’s alleged absence and did not provide proper office accommodation or assign official duties to the appellant. The mala fides were evident in the way the appellant’s applications and concerns were handled.

Absence of Proper Inquiry

The tribunal emphasised that no proper and regular inquiry was conducted against the appellant. This contravenes Rule 6 read with Rule 7 of the Civil Servants (Efficiency and Discipline) Rules, 2020, which require a proper inquiry unless the charges are established from the record.

Failure to Consider Retirement

Another significant factor was that the appellant was nearing the age of superannuation and had already applied for retirement. The authority failed to consider this while imposing the major penalty of compulsory retirement.

Reliance on Precedents

The tribunal also relied on previous rulings, such as 2010 SCMR 237 and 2017 SCMR 1880, to highlight that in cases where allegations are denied, as they were here, a proper inquiry is mandated by law.

In conclusion, the tribunal found that the appellant was improperly and unfairly treated and that the principles of natural justice were violated. The tribunal set aside the impugned order, treating the appellant as on duty until his retirement, and ordered that all back and consequential benefits be paid to him.

Concluding Analysis

The Federal Service Tribunal’s judgment in this case represents a significant affirmation of the principles of natural justice and the necessity for procedural fairness in administrative actions, particularly those concerning the livelihoods of civil servants. It underscores the importance of conducting regular and proper inquiries before imposing any major disciplinary penalties such as compulsory retirement, especially when the accused denies the allegations.

Moreover, the judgment serves as a warning against mala fide actions by departmental authorities. It establishes that any failure to provide a fair opportunity for the accused to present their case, or any indication of mala fides on the part of the department, can lead to the nullification of the administrative action.

In sum, this judgment strongly reinforces the principles of natural justice, fairness, and the rule of law in administrative proceedings within the realm of civil service. It provides a robust judicial safeguard against arbitrary or mala fide actions by administrative authorities and ensures that due process is followed, thereby maintaining the integrity and fairness of the administrative system.

PLJ 2023 Tr.C. (Services) 1

[Federal Service Tribunal, Islamabad]

The case of Asif Nadeem and others vs. Controller General of Accounts and 3 others, decided by the Federal Service Tribunal in Islamabad, tackles complex issues regarding employment, seniority, and promotion within the Controller General of Accounts (CGA). The bench comprised Asim Akram and Muhammad Mushtaq Jadoon as Members.

Legal Provisions and Laws Cited

Service Tribunals Act, 1973, specifically Section 4

ESTACODE Edition, 2015, specifically Serial No. 26.2 of Chapter 2

Recruitment Rules of Controller General of Accounts (CGA), SRO No. 1554(1)/2019 dated 25th of September, 2019

Key Issues

Regularisation and Seniority

The appellant, Asif Nadeem, who was working as a Data Processing Assistant, raised the issue of the irregular regularisation of Respondent No. 3, Nayyar Kazim, as a Data Processing Officer (DPO) by the CGA. This regularisation allegedly violated the Recruitment Rules, which stipulate that 65% of DPO posts must be filled through promotion, and the remaining 35% by initial appointment.

Quota for Promotion

The Tribunal noted the ESTACODE instruction that in cases where there is a quota for both promotion and direct appointment, promotion should take priority. As per this instruction and the Recruitment Rules, the available DPO posts should have been filled through promotion, thereby respecting the appellant’s right for such promotion.

Tribunal’s Decision

The Tribunal found that the services of Respondent No. 3 were regularised not by the CGA but by the Auditor General of Pakistan (AGP). As such, Respondent No. 3 was an employee of the AGP and should not have been included in the seniority list of DPOs maintained by the CGA.

The Tribunal held that the Impugned Order, which regularised the services of Respondent No. 3, was invalid and against the law. It directed that a fresh office order be issued, and the post of DPO should be filled as per the law and rules, giving priority to promotion over direct appointment.

Concluding Analysis

This judgment serves as an important precedent on the proper application of quotas for promotion and direct appointment, and the need for strict adherence to recruitment rules and established codes. It affirms the principle that seniority lists and promotion quotas should be respected and followed strictly to maintain fairness in employment practices. In doing so, it protects the rights of employees to promotion, ensuring that administrative actions align with legal and procedural frameworks.

The ruling is particularly instructive for legal practitioners dealing with employment and administrative law, as it clarifies the interpretation of ESTACODE and Recruitment Rules. The case also serves as a cautionary tale for administrative bodies to act strictly within the framework of existing rules and laws, ensuring that decisions are both legally sound and fair.

PLJ 2023 Tr.C. (Services) 5

[Federal Service Tribunal, Islamabad]

The case of Saif-ur-Rehman versus the Secretary and another, adjudicated by the Federal Service Tribunal in Islamabad, revolves around the appellant’s removal from service on grounds of misconduct, specifically absenteeism without prior permission. The judgement was rendered by Asim Akram and Muhammad Mushtaq Jadoon as Members.

Legal Provisions and Laws Cited

Governments Servants (Efficiency & Discipline) Rules, 1973, Rule 5

Governments Servants (APT) Rules, 1973, Rule 19(3)

Limitation Act, 1908, Section 5

Key Points

Absenteeism and Misconduct

The appellant’s primary issue was his removal from service based on his unauthorised absence. The tribunal found that the appellant had been dismissed twice before for misconduct but was reinstated following departmental appeals. His service record was described as “highly tainted”.

Medical Grounds for Pension

The appellant sought to have his removal converted into retirement on medical grounds due to his health condition. However, the Tribunal highlighted that he had admitted to addiction to narcotics and, therefore, could not be granted a pension on medical grounds.

Issues of Limitation

The appellant filed a second departmental appeal to ostensibly circumvent the issue of limitation. The tribunal found this unacceptable and stated that there’s no provision in the law for a second departmental appeal.

Tribunal’s Decision

The Tribunal observed that the appellant’s absence was a serious offence and not a matter of just 13 days of absence as purported. He failed to respond to multiple show-cause notices, thereby constituting grave misconduct. His record also indicated a pattern of misconduct, including prior removals and reinstatements.

Furthermore, the Tribunal rejected the appellant’s contention that he should be granted a pension on medical grounds. The Tribunal noted that addiction is both a disease and a crime and, as such, cannot be a basis for rewarding an employee with a pension.

Lastly, the Tribunal found the appeal to be time-barred, lacking sufficient justification for the delay in filing.

Concluding Analysis

This judgement is of interest in several respects. It reaffirms the principles that the rules of discipline and efficiency should be strictly adhered to and that a tainted service record can be a significant factor in upholding disciplinary actions. It also confirms that the rules of limitation have to be strictly complied with, and attempts to circumvent these rules will not be tolerated.

Moreover, this case provides a nuanced discussion on the limitations of converting a removal into a retirement on medical grounds, particularly where the employee’s condition is self-inflicted, such as addiction.

Thus, the Tribunal’s judgement serves as a robust reminder that while the rights of employees are important, these rights are not absolute and are subject to the employee’s adherence to rules and regulations governing their service.

PLJ 2023 Tr.C. (Services) 10

[Khyber Pakhtunkhwa Service Tribunal, Peshawar]

The case of Ahmad Shah versus the Government of Khyber Pakhtunkhwa delves into the issues related to promotion and retirement in the context of public service under the Khyber Pakhtunkhwa Service Tribunal Act, 1974. The Tribunal was chaired by Kalim Arshad Khan with Fareeha Paul as Member (Executive).

Key Points of the Case

Retirement and Promotion

The appellant, Ahmad Shah, had retired at the age of sixty and argued that he was the most senior officer in his grade (BPS-18) and was thus entitled to promotion to the next higher grade (BPS-19). Notably, the promotion was pending due to the absence of service rules for the newly upgraded posts.

Existence of Rules

The Tribunal found that the absence of service rules rendered the appellant ineligible for promotion. After his retirement, the service rules were notified, but by then it was too late for the appellant to benefit from them.

Promotion as a Vested Right

The Tribunal pointed out that promotion cannot be claimed as a vested right. It depends on various factors, including the existence of service rules at the time of consideration for promotion.

Tribunal’s Decision

The Tribunal dismissed the appellant’s appeal. It held that since there were no service rules at the time when the appellant was in service, he could not be considered for promotion. The Tribunal also emphasized that promotion is not a vested right that can be claimed; it must be granted under the prevailing rules at the time. Moreover, the Tribunal noted that a benefit which has not been extended in the rules could not be extended by the Tribunal itself.

Legal Implications and Analysis

This judgement underscores the importance of institutional rules and frameworks in matters of employee promotion within public service. It serves as a cautionary tale for public servants who may be approaching retirement and are yet to be promoted due to administrative delays or non-existence of service rules.

Moreover, the judgement reiterates a well-established principle that promotion is not a vested right. Employees must meet the criteria set out in the relevant service rules, which must be in place at the time of consideration for promotion.

Finally, the case also highlights the limitations of judicial review in matters of administrative discretion, particularly where service rules have not been framed. Courts and tribunals are bound by the existing legal framework and cannot extend benefits that are not provided for in the rules.

Therefore, while the appellant’s situation may elicit empathy, especially given his seniority and the delays in framing service rules, the Tribunal’s decision is grounded in the existing legal framework.

PLJ 2023 Tr.C. (Services) 15

[Federal Service Tribunal, Islamabad]

The case of Akhlaq Hussain Faruqi versus Secretary, Establishment Division, Islamabad dealt with complex issues related to the seniority of civil servants, particularly when they have been transferred between various departments and placed in a ‘surplus pool.’ This Federal Service Tribunal judgement is grounded in the Civil Servants (Seniority) Rules of 1993, the Civil Servants Act of 1973, and the Service Tribunal Act of 1973.

Key Points of the Case

Absorption and Seniority

The appellant, Akhlaq Hussain Faruqi, was primarily concerned with the correction of his seniority list. He had served in various departments, sometimes as a deputed employee, and was at different times placed in a surplus pool before being absorbed into another department. The core of the issue revolved around whether his seniority should be determined from the date of his initial appointment or from the date of his absorption into the new department.

Application of Rules

The appellant’s counsel argued that Rule 4-A of the Civil Servants (Seniority) Rules, 1993 should apply. This rule deals with the inter-se seniority of civil servants in the event of the merger of ministries, divisions, or attached departments. The Tribunal, however, found this inapplicable as the departments where the appellant served were not merged but were either made defunct or he was placed in a surplus pool.

Legal Precedents and Definitions

The Tribunal also referred to legal precedents, which stipulated that the seniority of an employee absorbed from a surplus pool is to be determined from the date of his absorption into the new department. Furthermore, the term “defunct,” according to Black’s Law Dictionary, means “dead; extinct,” indicating that the organisation has not been merged into another but has ceased to exist.

Tribunal’s Decision

The Tribunal dismissed the appeal. It ruled that the seniority of the appellant should be reckoned from the date of his absorption into the new department (Department of Communication Security), not from the date of his initial appointment or previous absorptions. This was consistent with the existing rules and legal precedents.

Legal Implications and Analysis

This judgement reinforces the importance of following established rules and precedents when determining the seniority of civil servants who have moved through various departments and have been placed in surplus pools. It clarifies that Rule 4-A of the Civil Servants (Seniority) Rules, 1993 is not applicable in cases where the organisation has become defunct or the employee has been placed in a surplus pool.

The case also underscores the complexities involved in determining seniority within the civil service, particularly when employees have served in various capacities across different departments. It highlights the need for clear guidelines and rules to address such complexities, ensuring fair treatment of civil servants in accordance with existing legal frameworks.

Thus, while the appellant’s desire for recognition of his long service across various departments is understandable, the Tribunal’s decision aligns with existing rules and case law.

PLJ 2023 Tr.C. (Services) 22

[Federal Service Tribunal, Islamabad]

 The judgment from the Federal Service Tribunal, Islamabad in the case of SAJID MEHMOOD versus FEDERATION OF PAKISTAN addresses a complex set of procedural and substantive issues, primarily concerning the disciplinary proceedings against a government servant, under the Government Servant (E&D) Rules, 1973, and the Civil Servants Act, 1973. The judgment also touches upon constitutional rights under the Constitution of Pakistan, 1973, specifically Articles 4, 14, 19-A, and 25.

The case revolves around Sajid Mehmood, the appellant, who was removed from service and ordered to pay a recovery of Rs. 25 Million. The tribunal identified multiple procedural irregularities in the inquiry against the appellant, including the fact that the inquiry was conducted in a question/answer format, which is in violation of Rule-6 of the Government Servants (E&D) Rules, 1973. The tribunal relied on precedent, citing 1993 SCMR 1440, to highlight this violation.

Furthermore, the tribunal observed that the respondents failed to identify other officials against whom disciplinary proceedings were initiated, thereby leading to discriminatory action against the appellant. This was viewed as an infringement of the appellant’s fundamental rights under Articles 4, 14, 19-A, and 25 of the Constitution. The tribunal cited various precedents such as 1996 SCMR 1185, 2005 SCMR 499, and 2009 SCMR 01 in this context.

The tribunal also scrutinized the roles and responsibilities of various officers under the MES Regulation Manual, 1998, and concluded that there was a clear discrimination in the apportionment of blame among all those responsible for the alleged misconduct.

Based on the evidence and arguments presented, the tribunal accepted the appeal and set aside the impugned order with modifications. It reduced the major penalty of removal from service to a reduction in grade and post for a period of three years and suggested a judicious apportionment of the recovery amount of Rs. 25 Million.

The tribunal’s decision is notable for its meticulous examination of both procedural and substantive aspects of the case, relying heavily on statutory rules, manuals, and precedent to arrive at its conclusion.The judgment is particularly striking for the manner in which it navigates through a web of regulations, statutes, and constitutional provisions to arrive at a nuanced understanding of the case. The tribunal meticulously dissected the procedural flaws in the internal inquiry against the appellant, making it clear that the rule of law must be adhered to even in internal disciplinary processes.

One of the key aspects of the judgment is its focus on the collective responsibility of multiple tiers within the governmental framework. It negates the idea of penalizing a single individual for what clearly appears to be a systemic issue. In doing so, the tribunal implicitly calls for a more thorough and fair system of internal inquiries and disciplinary action within governmental structures. The tribunal’s focus on collective responsibility aligns with its emphasis on the need for a joint inquiry against all implicated officers, as recommended by the Court of Inquiry. This is not just a call for procedural integrity but also a safeguard for the constitutional rights of government servants.

The judgment also provides a roadmap for how future disciplinary proceedings should be conducted, especially those that may have broader systemic implications. It underscores the importance of observing the established procedures and rules, not just for the sake of formality but to ensure that justice is meted out in a manner that is both fair and perceived as such. The tribunal cited various case laws like 1997 SCMR 1440, 1996 SCMR 802, 1997 SCMR 343, and 1999 SCMR 3221 to substantiate its points, thereby adding jurisprudential weight to its findings.

In summary, the Federal Service Tribunal’s judgment in this case serves as a robust reminder of the intricate balance that must be maintained between procedural propriety and substantive justice. It reaffirms the sanctity of constitutional rights in the context of internal disciplinary proceedings and emphasizes the necessity for these proceedings to be conducted in a fair and transparent manner.

PLJ 2023 Tr.C. (Services) 32

[Federal Service Tribunal, Islamabad]

In the case of Sadia Imad vs. PM Secretariat etc. [PLJ 2023 Tr.C. (Services) 32], decided on 20th May 2022, the Federal Service Tribunal, Islamabad, dealt with the issue of compulsory retirement and unauthorised absence from duty. The Tribunal was presided over by Members Asim Akram and Muhammad Mushtaq Jadoon.

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Legal Provisions and Cases Cited:

Service Tribunal Act, 1973 (LXX of 1973), Section 4: This section deals with the authority and jurisdiction of the Service Tribunal.

2020 SCMR 425: This Supreme Court judgment was cited to elaborate the treatment of Extraordinary Leave (EOL) and its non-punitive nature.

Facts:

The appellant, Sadia Imad, had prayed for the setting aside of the impugned order dated 31.12.2018, seeking the regularization of her period from 14.07.2012 to 31.12.2018 as in service and for early retirement with all consequential benefits. The impugned order had imposed the major penalty of compulsory retirement upon her with immediate effect and treated her period of unauthorised absence as Extraordinary Leave (EOL).

Legal Principles and Factors Involved:

Cause of Action

The Tribunal observed that there was no cause of action for the appeal as the appellant had already received the relief she sought. She had been compulsorily retired with immediate effect, meaning she was in service until that date, and her period of unauthorised absence had been treated as EOL.

Nature of Extraordinary Leave (EOL)

The Tribunal relied on the judgment of the Supreme Court in 2020 SCMR 425, which clarified that the treatment of a period as EOL is not a penalty but a treatment accorded to the period of absence. This treatment is within the employer’s right to impose.

Analysis:

The Tribunal’s decision underscores the importance of a valid cause of action for the institution of an appeal. It also reaffirms the principle that an appellant cannot seek relief that has already been granted. This aspect is crucial as it could set a precedent for similar cases where appellants seek reliefs that have already been accorded, thereby wasting judicial time.

The case also elucidates the legal treatment of periods of unauthorised absence. By treating such periods as EOL, the employer is not imposing an additional penalty but merely categorising the nature of the absence. This is particularly significant as it could influence employer-employee relationships in the public sector, shaping how periods of unauthorised absence are dealt with in future disciplinary actions.

In summary, the Tribunal’s decision in this case serves as an affirmation of established legal principles, particularly those surrounding the requirements for a valid appeal and the non-punitive nature of Extraordinary Leave (EOL).

PLJ 2023 Tr.C. (Service) 34

[Federal Service Tribunal, Islamabad (Karachi Bench)]

In the case of Mumtaz Hussain Phulpoto (Ex-Inspector) vs. Inspector General of Police, National Highways & Motorway Police, Islamabad and 2 others [PLJ 2023 Tr.C. (Service) 34], the Federal Service Tribunal (Karachi Bench) considered the legality of an order of dismissal against the appellant, Mumtaz Hussain Phulpoto. The Tribunal was presided over by Members Tauqeer Ahmed Khan and Shahid Ahmad and the judgment was rendered on 6th September 2022.

Legal Provisions and Cases Cited:

Government Servants (Efficiency & Discipline) Rules, 1973, Rule 6: Concerned with the procedures for conducting inquiries against government servants.

Service Tribunals Act, 1973, Section 4: Pertains to the authority and jurisdiction of Service Tribunals.

Various Case Law: The Tribunal cited multiple cases, including 2019 PLC (CS) Note 14, 2020 SCMR 1029, 2009 SCMR 329, and 2009 PLC (CS) 19, to support its reasoning.

Facts:

The appellant was dismissed from his service in the National Highways and Motorway Police (NH&MP) following allegations of issuing bogus challans. A show-cause notice was issued to him but was followed by immediate dismissal without the initiation of a regular inquiry or issuance of a charge sheet. The appellant appealed to the Tribunal following the dismissal of his departmental appeal.

Legal Principles and Factors Involved:

Procedural Flaws

The Tribunal found that both the show-cause notice and the dismissal order were passed by a single authority, which is not in compliance with law. No charge sheet was issued, and Rule 6 of the Government Servants (Efficiency & Discipline) Rules, 1973 was not followed.

Right to Defence

The appellant was not provided an opportunity to defend himself, which jeopardized his valuable right to participate in an inquiry.

Comparative Treatment

The Tribunal noted that the respondents failed to bring on record the punishment imposed upon IP/SPO Shahid Abbas Gilani, who was described as the main culprit.

Analysis:

The Tribunal’s decision highlights the indispensable role of procedural fairness and natural justice in disciplinary actions against government servants. This case serves as a cautionary tale for governmental bodies to adhere strictly to procedural rules when contemplating severe disciplinary actions like dismissal from service.

It reiterates the necessity for a regular inquiry to be conducted when major penalties are to be imposed, allowing the concerned employee a fair chance to defend themselves. In the absence of such procedural fairness, the Tribunal found that any such orders would be “patently illegal” and liable for setting aside.

This judgment reaffirms the principle that the rule of law is not merely a procedural technicality but a substantive requirement for justice. By quashing the impugned order and reinstating the appellant, the Tribunal has arguably strengthened the jurisprudence concerning disciplinary procedures and natural justice in Pakistan’s public service law.

In summary, the case serves as a reminder of the stringent requirements for procedural fairness in public service law, particularly concerning disciplinary actions. It confirms that any deviation from established procedures not only jeopardizes the legality of the disciplinary action but also risks infringing upon the rights of the government servant involved.

PLJ 2023 Tr.C. (Services) 40

[Federal Service Tribunal, Islamabad (Karachi Bench)]

The case at hand pertains to a legal dispute involving an appellant, Mr. Akbar Noor, and the Ministry of Law, Justice & Provincial Coordination, Law & Justice Division, Government of Pakistan, among other respondents. The appellant was employed as a Reader in the federal courts and sought promotion to the position of Registrar. Despite meeting the criteria and despite the submission of a complete filled-in proforma for the promotion, his request was declined. The appellant took this matter to the Federal Service Tribunal, which eventually ruled in his favour.

The Federal Service Tribunal, in its detailed judgment, relied on existing law and previous judgments to arrive at its decision. A significant aspect is the Tribunal’s consideration of the appellant’s service record, the seniority list, and the procedural steps taken by the appellant for his promotion. The judgment underscored the fact that the appellant met the criteria for promotion and that there was no valid reason for the refusal of his promotion by the respondents.

A noteworthy point is the Tribunal’s reliance on the Hon’ble Supreme Court’s observations regarding FR-17 committee’s jurisdiction to consider cases for ante-dated promotions. The Tribunal directed the respondents to forward the appellant’s case to the FR-17 committee, advising that it be decided preferably within a period of six months.

The case is instructive for several reasons:

(1) It highlights the importance of adhering to prescribed procedures and requirements when seeking promotions within government services.

(2)nIt underscores the relevance of seniority lists and the accompanying guidelines that dictate promotions and transfers.

(3) It establishes that an administrative failure to act promptly on a promotion should not prejudice the employee, especially when the delay is not attributable to him.

(4) It reiterates the mandate of the FR-17 committee in considering cases for ante-dated promotions, thereby acting as a safeguard against administrative lapses.

In light of the Tribunal’s judgment, the appellant’s legal team could consider this a resounding success. The respondents are now mandated to forward the appellant’s case for an ante-dated promotion to the FR-17 committee. Depending on the committee’s findings, the appellant could finally attain the promotion he had been seeking, albeit with some delay. Overall, the judgment appears to be a well-reasoned and fair resolution to the appellant’s grievance. 

The Tribunal’s judgment also serves as a precedent for similar cases where employees, despite fulfilling eligibility criteria, face administrative hurdles in their career progression. The Tribunal’s invocation of the Supreme Court’s observations lends additional weight to its directions, and fortifies the doctrine that procedural lapses should not deter merit-based advancements within the federal services.

Moreover, the judgment’s implications extend beyond the immediate parties involved. It serves as a cautionary note to administrative bodies to exercise their discretionary powers judiciously and in accordance with the law, particularly when it concerns an employee’s career progression. Administrative bodies must be mindful of the far-reaching consequences their decisions can have on an individual’s professional life and should therefore act with due diligence and fairness.

The Tribunal also made it clear that when an administrative body fails to act in a timely manner, the FR-17 committee serves as a remedial mechanism. This adds another layer of accountability and checks and balances within the system.

For Mr. Akbar Noor and his legal team, the next steps would be to diligently follow through with the FR-17 committee’s proceedings to ensure that the Tribunal’s directions are fully implemented. Given the directive to conclude the matter within six months, it would be prudent to keep track of the timeline and, if necessary, take further legal steps to ensure compliance.

The case serves as an instructive example for legal practitioners in the realm of service law, particularly in dealing with issues of promotion and seniority. It illustrates the need to meticulously document the client’s service record, adhere to prescribed procedures, and rely on judicious legal precedents to build a compelling case.

In conclusion, the Federal Service Tribunal’s judgment in this case provides a comprehensive overview of the legal framework governing promotions within federal services in Pakistan. It serves as a guide for both legal practitioners and administrative bodies on how to approach cases involving promotions, seniority, and other related service matters. Therefore, it contributes not only to the immediate resolution of Mr. Akbar Noor’s grievance but also to the broader jurisprudence of service law in Pakistan. 

PLJ 2023 Tr.C. (Services) 46

[Federal Service Tribunal, Islamabad]

The case under review, reported as PLJ 2023 Tr.C. (Services) 46, deals primarily with the issue of seniority in the Civil Services of Pakistan. The appellant, Mr. Ghulam Khaliq, sought to challenge his seniority placement after he deferred joining the 41st Common Training Programme (CTP) and later joined the 42nd CTP. The judgment was handed down by a bench comprising Muhammad Mushtaq Jadoon and Dr. Mujeeb-ur-Rehman Khan, Members of the Federal Service Tribunal in Islamabad.

Legal Provisions and Cases Cited

The legal provisions invoked in the judgment include:

Sections 8 and 25 of the Civil Servants Act, 1973

Rules 3(1), 6, and 7 of the Civil Servants (Seniority) Rules, 1993

Rules 6 and 7 of the Occupational Group Rules, 1990

Various Office Memorandums (O.M.s) issued by the Establishment Division

Case laws, including PLD 2007 LHR 718, 2008 SCMR 598, 2009 SCMR 1055, and 2014 PLC (CS) 459 among others

Legal Principles and Factors Involved

Seniority in Civil Services

The central issue revolves around the determination of seniority, which, as per Section 8 of the Civil Servants Act, 1973 and Rule 2(3)(b) of the Civil Servants (Seniority) Rules, 1993, is reckoned from the date of joining the post. The Tribunal made it clear that seniority is not a vested right, but a statutorily defined position.

Deferment and its Consequences

The appellant deferred his initial allocation to the 41st CTP and later joined the 42nd CTP. The Tribunal held that deferment is a special concession, not a right, and therefore doesn’t confer seniority benefits. The Tribunal also noted that ignorance of law and rules cannot serve as a defence for the appellant.

Office Memorandums (O.M.s) and Their Legal Standing

The appellant’s counsel questioned the legal validity of various O.M.s issued by the Establishment Division, arguing they cannot supersede statutory rules. The Tribunal clarified that these O.M.s were issued under the authority vested by the Civil Servants Act, 1973, and were therefore legally sound.

Retrospective Application of Rules

The appellant contended that rules were applied to him retrospectively, affecting his seniority. The Tribunal rejected this argument, stating that the rules were very much in the field when he joined the 42nd CTP.

Administrative Guidelines for Future

The Tribunal directed the Establishment Division to amend the Occupational Groups and Services (Promotion, Training and Seniority) Rules, 1990, to include provisions on deferment to avoid future litigation.

Analysis

The Tribunal’s judgment is an exhaustive exposition on the complex issue of seniority within the framework of the Civil Services in Pakistan. It clarifies several points of law and administrative procedure, particularly the role and legal standing of O.M.s, the concept of seniority, and the implications of deferment. It also adds a layer of administrative accountability by directing the amendment of existing rules to incorporate clauses on deferment.

The judgment serves as a crucial precedent for similar cases, reinforcing that while the Civil Services framework allows for certain flexibilities like deferment, these should not be misconstrued as rights that confer benefits like seniority. 

PLJ 2023 Tr.C. (Services) 51

[Federal Service Tribunal, Islamabad (Karachi Bench)]

Parties Involved

Appellant: Muhammad Iqbal, Ex-Deputy Superintendent Rangers (DSR), Pakistan Rangers Sindh

Respondents: Secretary, Ministry of Interior, Government of Pakistan, Islamabad and another

Legal Provisions Involved

Pakistan Rangers Ordinance, 1959 (XIV of 1959), particularly Section 15(1)

Pakistan Rangers (Efficiency, Discipline & Appeal) Rules, 1967, Rule 4

Constitution of Pakistan, 1973, Article 10-A

Reference Cases

2018 PLC (CS) 99

PLD 1996 SC 801

Factual Background

The appellant, Muhammad Iqbal, had a long-standing career with the Pakistan Rangers Sindh, spanning 22 years and five months, with an unblemished record. He was served with a charge sheet under Section-15(1) of the Pakistan Rangers Ordinance 1959 and Rule-4 of the Pakistan Rangers (Efficiency, Discipline & Appeal) Rules, 1967. The charges were multifaceted, ranging from financial impropriety to failure to follow Standing Operating Procedures.

Legal Issues

Legitimacy of the inquiry process: Whether the inquiry was conducted in a manner that was fair, impartial, and devoid of coercion or pressure.

Right to fair trial under Article 10-A: Whether the appellant’s constitutional rights to a fair trial and due process were upheld.

Specificity of the charges: Whether the charges laid out in the charge sheet were specific and unambiguous.

Analysis

Inquiry Process

The tribunal found the inquiry process to be deeply flawed. The appellant’s statement was obtained under coercion while he was handcuffed, and he was denied the opportunity to cross-examine witnesses. This fundamentally compromises the integrity of the inquiry and is a violation of the principle of natural justice.

Right to Fair Trial

The tribunal also found that the appellant’s right to a fair trial under Article 10-A of the Constitution was violated. The appellant was not given a proper opportunity to defend himself, which is a cornerstone of any fair judicial process. This was further bolstered by reference to PLD 1996 SC 801 and 2000 PLC (CS) 1196, which highlighted the inadmissibility of statements obtained under duress.

Specificity of Charges

The tribunal found the charge sheet to be vague and unspecific, lacking in details such as the date and time of the alleged incidents. This lack of specificity makes it nearly impossible for the appellant to mount a targeted and effective defence, thereby undermining the fairness of the entire process.

Conclusion and Tribunal’s Decision

The appeal was allowed on the basis that the inquiry was improperly conducted, and the appellant’s right to a fair trial was violated. The tribunal also noted that the charges were vague and unspecific, making the imposition of any punishment on such grounds unsustainable.

In light of these considerations, the punishment meted out to the appellant could not be sustained, and the appeal was allowed.

PLJ 2023 Tr.C. (Services) 60

[Federal Service Tribunal, Islamabad (Karachi Bench)]

In Appeal No. 169(K)CS of 2020, Muhammad Badar Alam Baig, the Appellant, challenged his dismissal from service by the Deputy Post Master General (KPR-II), Karachi, and another, the Respondents. The Federal Service Tribunal, Islamabad (Karachi Bench), comprising Members Tauqeer Ahmed Khan and Shahid Ahmad, dismissed the appeal, upholding the principle of ‘res judicata’ and emphasising the gravity of the allegations against the Appellant.

Legal Framework

Service Tribunals Act, 1973 (LXX of 1973): The appeal was filed under Section 4 of this Act, which governs service-related disputes.

Removal from Service (Special Powers) Ordinance, 2000: Referenced by the Respondents as the basis for appointing the inquiry committee.

Precedent Cases

2009 SCMR 720: Emphasised the severity of negligence in financial institutions.

1990 SCMR 1214: Affirmed that charges of misappropriation could not be taken lightly.

2002 SCMR 753: Stressed the departmental authority’s discretion in dismissal upon proven corruption.

2009 PLC (CS) 211: Reiterated that failure to deny charges means tacit admission.

2009 SCMR 903: Established that criminal and departmental proceedings are independent.

2021 PLC (CS) 1531: Clarified that acquittal in criminal proceedings doesn’t affect departmental proceedings.

Legal Principles and Analysis

Maintainability and ‘Res Judicata’: One of the Tribunal’s primary considerations was whether the appeal was maintainable given that a previous appeal (No. 98(K)CS/2006) had been dismissed. In line with the principle of ‘res judicata’, the Tribunal held that the matter had been conclusively settled and could not be re-agitated.

Charge of Corruption and Misappropriation: The Appellant faced serious allegations of causing a loss of Rs. 67,73,400/- to the department and the Government of Pakistan. The Tribunal opined that, in light of the severity of the allegations and the public’s faith in financial institutions, no leniency could be afforded to the Appellant.

Failure to Participate in Inquiry: The Tribunal stressed that the Appellant neither submitted a written defence nor participated in the inquiry proceedings, which they considered a tacit admission of guilt.

Departmental vs Criminal Proceedings: The Tribunal underscored the independence of criminal and departmental proceedings, dismissing the Appellant’s contention that his acquittal in criminal charges should have any bearing on the departmental proceedings.

Conclusion

The Tribunal’s judgment underscores the importance of the principle of ‘res judicata’ in maintaining judicial efficiency and the sanctity of prior rulings. It also emphasises the need for probity and integrity in public service, particularly in financial institutions. The Tribunal held that the Appellant was not entitled to any leniency given the serious nature of the allegations against him and dismissed the appeal.

Recommendations

For future cases, it would be advisable for litigants to be actively involved in all inquiry proceedings and to exhaust all legal remedies before pursuing subsequent appeals. The Tribunal’s judgment serves as a precedent highlighting the importance of these considerations.

 PLJ 2023 Tr.C. (Services) 66

[Federal Service Tribunal, Islamabad]

The Federal Service Tribunal in Islamabad, consisting of Members Asim Akram and Muhammad Javed Ghani, heard Appeal Nos. 182 (R) CS to 222 (R)CS of 2020. The appellants, employees of WAPDA Security Force, sought a reconsideration of the discontinuation of their conveyance allowance. The Tribunal ruled in favour of the respondents, citing the terms and conditions of WAPDA that disallow conveyance allowance to employees whose residences and offices are within the same boundary wall.

Legal Framework

Services Tribunals Act, 1973 (LXX of 1973), Section 4: This was the statutory basis for the appeal, dealing with service-related issues.

Counsel

Mr. Muhammad Ramzan Khan: Advocate for Appellants

Mr. Sajjad Zafar: Counsel for Respondents

Legal Principles and Analysis

Conveyance Allowance: The crux of the appeal was the discontinuation of conveyance allowance by WAPDA for its employees, including the appellants, who live and work within the same boundary wall. The Tribunal asserted that conveyance allowances are granted based on the employer’s terms and conditions, which in this case, disallowed the allowance under the given circumstances.

Policy Interpretation: The Tribunal relied heavily on the policy rules framed by WAPDA in its Office Memorandum dated 20.07.2011 and further clarified on 27.08.2011. These rules specifically stated that employees residing and working within the same boundary wall are not entitled to conveyance allowance.

Maintainability and Past Appeals: The Tribunal took into account the history of the appellants’ appeals and departmental representations. While the respondents had restored conveyance allowance effective from 01.10.2018, the Tribunal found that the appellants failed to highlight any discrepancy in WAPDA’s terms and conditions that would make them constitutionally invalid.

Boundaries and Eligibility: The Tribunal noted that the allowance was restored after the construction of a separating wall between the residential and office areas, implying that the terms and conditions were consistently applied.

Employer Discretion: The Tribunal highlighted that the grant of conveyance allowance is a policy matter subject to the terms and conditions set by the employer. Here, the employer exercised its discretion in line with its established policies.

Conclusion

The Tribunal found no merit in the appellants’ argument that they were unjustly denied conveyance allowance for a specific period. By strictly interpreting the employer’s policy and given the absence of any constitutional or legal discrepancy therein, the Tribunal upheld WAPDA’s decision to discontinue the allowance during the period when there was no separating wall.

Recommendations

Employees should be fully aware of the terms and conditions set forth by their employers, especially concerning allowances and benefits. In case of any amendments to such policies, it is advisable for employees to seek immediate clarification to avoid any future disputes.

PLJ 2023 Tr.C. (Services) 86

[Federal Service Tribunal, Islamabad]

The case under consideration, heard by the Federal Service Tribunal in Islamabad and presided over by Members Asim Akram and Muhammad Mushtaq Jadoon, revolves around the appellant Faiz Muhammad and his conflict with the Inspector General of Police, Islamabad. The appeal was brought forth under the provisions of the Punjab Police (Efficiency & Discipline) Rules, 1975, specifically citing Rule 6, sub-clause (3)(i)(a) & (b). The primary issue was a video clip anonymously sent to the DIG (Operation), Islamabad, alleging Faiz Muhammad of taking illegal gratification from motorcyclists.

Legal Framework

Punjab Police (Efficiency & Discipline) Rules, 1975, Rule 6, sub-clause (3)(i)(a) & (b): Cited as the primary rule under which disciplinary action was initiated.

Punjab Police (Efficiency & Discipline) Rules, 1975, Rule 2(iii): Defines “Misconduct” but does not address audio/video clips as evidence.

PLD 2019 SC 675: Guidelines on the admissibility of audio/video evidence.

2021 SCMR 1077: Deals with the necessity of a forensic report for video evidence.

ESTACODE (Edition 2015): Cited for future determination of back benefits.

Legal Principles and Analysis

Principle of Natural Justice: The Tribunal found that the proceedings violated the principle of natural justice. No verification or authentication was done regarding the anonymous video clip, which was the sole basis for the disciplinary action. The absence of a formal complaint and lack of details further rendered the proceedings questionable.

Role of DIG (Operation): The Tribunal found it problematic that the DIG (Operation) acted as the complainant, investigator, and adjudicator, thereby violating the principle that a man cannot be a judge in his own cause.

Admissibility of Video Evidence: Citing PLD 2019 SC 675 and 2021 SCMR 1077, the Tribunal expressed the necessity of a forensic report to confirm the authenticity of the video clip. Without such a report, disciplinary actions based solely on the video are against the principle of natural justice.

Procedural Flaws: The Tribunal found that the disciplinary proceedings and the subsequent departmental appeal were flawed. There was no detailed inquiry, and the charge was not proved through a regular inquiry as required.

Conclusion and Recommendations

The Tribunal set aside the impugned orders and reinstated the appellant into service. It directed that a de novo inquiry be initiated, following proper procedures to authenticate the video clip and ascertain the specifics of the incident. The question of back benefits will be determined based on the outcome of the new proceedings and in light of the ESTACODE (Edition 2015).

This case serves as a precedent for the necessity of adhering to the principles of natural justice and due process, especially when the sole evidence is an anonymous video clip. It emphasises the importance of forensic verification of electronic evidence and cautions against the misuse of power by authorities in disciplinary proceedings.

PLJ 2023 Tr.C. (Services) 92

[Federal Service Tribunal, Islamabad]

“HANIF KAMAL vs SECRETARY, MINISTRY OF INTERIOR, GOVT. OF PAKISTAN, ISLAMABAD and 4 others”, as adjudicated by the Federal Service Tribunal in Islamabad and reported in PLJ 2023 Tr.C. (Services) 92. The decision was delivered by Members Asim Akram and Muhammad Mushtaq Jadoon.

Legal Provisions and Laws Cited:

Punjab Police (Efficiency and Discipline) Rules, 1975 (Rule 3)

Punjab Police Conduct Rules, 1934 (Rule 14.7, 14.8, 14.25 & 14.33)

Civil Servant Act, 1973

Cases Cited:

2001 SCMR 1566

2004 SCMR 294

2007 SCMR 152

2008 SCMR 1369

2004 PLC (CS) 992

2009 SCMR 329

2009 PLC (CS) 19

Legal Principles and Factors Involved:

Issues of Natural Justice and Due Process:

The Tribunal was critical of the departmental inquiry proceedings against the appellant, Hanif Kamal. It noted that the allegations were not sufficiently substantiated and that the appellant was not given a proper chance to defend himself.

Misuse of Power:

The Tribunal found that the higher-ups in Islamabad Police showed mala fide intentions against the appellant, citing a misuse of power. This was particularly noted in the unique “camaraderie” the senior officers displayed against a low-ranking police official.

Importance of Departmental Appeals:

The Tribunal was particularly concerned that the appellant’s departmental appeal had not been responded to. This was seen as a breach of the procedural fairness that ought to be accorded to an employee who has been dismissed after 29 years of service.

Application of Specific Rules:

The Tribunal considered specific rules under the Punjab Police Conduct Rules, 1934 and Punjab Police (E&D) Rules, 1975. It found that none of the rules cited in the show cause notice and impugned order were applicable in the appellant’s case.

Interpretation of “Misconduct”:

The judgment meticulously examines what constitutes ‘misconduct’ under the Punjab Police (E&D) Rules, 1975. The Tribunal found that the term was inappropriately applied to the appellant.

Malafide Actions:

The Tribunal was unequivocal in its finding of malafide actions on the part of the respondents. It noted that instead of providing a reasoned decision on the appellant’s departmental appeal, the respondents had let it languish, which reflected badly on their intentions.

Conclusion and Tribunal’s Order:

In light of the above principles, the Tribunal allowed the appeal. It modified the major penalty of dismissal to a minor penalty of stoppage of three increments for three years without cumulative effect. Additionally, the appellant was reinstated into service with the period of dismissal treated as leave of the kind due.

This case serves as a significant precedent on the issues of procedural fairness, misuse of power, and the proper application of disciplinary rules within the police service. It underscores the importance of adhering to principles of natural justice and the proper application of service rules.

PLJ 2023 Tr.C. (Services) 101

[Federal Service Tribunal, Islamabad (Karachi Bench)] GHULAM HUSSAIN CHAND versus SECRETARY, REVENUE DIVISION/CHAIRMAN, FBR, ISLAMABAD and 2 others.

Legal Provisions and Laws Cited:

Civil Servants (Efficiency and Discipline) Rules, 2020: Rules 2(1)(h)(k), 6 & 7

Service Tribunals Act, 1973: Section 4

Civil Servants (Appeal) Rules, 1977

Case Laws Referred:

2010 SCMR 237

2017 SCMR 1880

2020 SCMR 1018

Summary of the Case:

The appellant, Ghulam Hussain Chand, was compelled to retire from service under the Civil Servants (Efficiency and Discipline) Rules, 2020, on allegations of unauthorised absence from duty since 17th August 2020. The appellant appealed under Section 4 of the Service Tribunals Act, 1973. He had initially appealed to the Prime Minister, but that remained unresponsive. The Federal Service Tribunal decided in favour of the appellant, holding that the authority had violated the principles of natural justice.

Legal Principles and Factors Involved:

Natural Justice:

The Tribunal held that the principles of natural justice were violated. The appellant was not afforded proper opportunity to defend himself. There was no proper and regular inquiry against him, even when he denied the allegations.

Mala Fide Intent:

The appellant alleged that the department acted with mala fide intent, particularly the Respondent No. 2, whose conduct towards the appellant was improper. The Tribunal found merit in this claim.

Dispensation of Inquiry:

The Tribunal held that dispensing with a regular inquiry, in this case, was improper. Reasons should have been provided for such a serious action, as established in 2017 SCMR 1880.

Procedural Lapses:

There were significant procedural lapses, including the lack of response to the appellant’s appeal to the Prime Minister and the absence of reasons for dispensing with the inquiry.

Superannuation:

During the pendency of the appeal, the appellant retired. The Tribunal ordered that the appellant be treated as on duty until his retirement and entitled to all back/consequential benefits.

Analysis:

The judgement is significant for its emphasis on the principles of natural justice and the procedural requirements that need to be satisfied before taking adverse action against a civil servant. It also highlights the importance of proper inquiry procedures and the need for authorities to act without mala fides. The Tribunal’s insistence on adherence to principles of natural justice reiterates the safeguards that ought to protect civil servants from arbitrary or biased decisions.

The case can be seen as a strong reinforcement of the rule of law within the context of employment law in Pakistan, particularly concerning civil servants. It provides a legal precedent that may be cited in future cases involving similar issues and serves as a cautionary tale for authorities to ensure strict adherence to procedural norms and the principles of natural justice.

Conclusion and Tribunal’s Order:

The Federal Service Tribunal set aside the compulsory retirement of the appellant, Ghulam Hussain Chand. The Tribunal ordered that he be treated as on duty until his date of superannuation and directed that all back/consequential benefits be calculated and paid to him forthwith. The judgement serves as a critique of administrative actions that lack procedural fairness and underscores the necessity for authorities to adhere strictly to principles of natural justice, particularly when levying major penalties like compulsory retirement.

PLJ 2023 Tr.C. (Services) 111

[Federal Service Tribunal, Islamabad (Karachi Bench)] SADIQ ADEEL versus SECRETARY (MGT.CUST-IV), FEDERAL BOARD OF REVENUE, ISLAMABAD and 3 others as decided by the Federal Service Tribunal, Islamabad (Karachi Bench).

Legal Provisions and Laws Cited:

Service Tribunals Act, 1973: Section 4

Efficiency and Discipline Rules, 2020

Case Laws Referred:

1997 SCMR 1522

2001 SCMR 1566

Summary of the Case:

The appellant, Sadiq Adeel, was terminated from his contractual employment under the Assistance Package for families of deceased Government Employees. The termination was based on allegations of misusing official authority and misconduct. The appellant had not been served with any show-cause notice, statement of allegations, or been given an opportunity for a hearing. The Federal Service Tribunal ruled in favour of the appellant, stating that the termination was illegal, unlawful, and void ab initio. The Tribunal directed the respondent to reinstate the appellant and conduct a de novo inquiry, providing him an opportunity for a hearing.

Legal Principles and Factors Involved:

Procedural Fairness:

The Tribunal stressed that procedural fairness was violated as no show-cause notice or statement of allegations were provided to the appellant. He was not given a fair opportunity to defend himself, which is a fundamental requirement under the Efficiency and Discipline Rules, 2020.

Violation of Government Instructions:

The Tribunal noted that the termination violated a Circular issued by the Prime Minister’s Office, advising against the termination of services of any employee on any grounds, including disciplinary action, until further orders.

Distinction Between Contractual and Permanent Employment:

The Tribunal referred to the judgement in 1997 SCMR 1522, which distinguishes between termination of services on contractual terms and termination on grounds of misconduct. Even a contractual employee is entitled to a fair hearing and a regular inquiry if terminated on the grounds of misconduct.

Implication of Misconduct:

The Tribunal emphasized that allegations of misconduct carry a stigma and therefore require a formal inquiry as laid out in 2001 SCMR 1566. An employee must be given a fair chance to defend himself, failing which the termination becomes unlawful.

Direction for De Novo Inquiry:

The Tribunal directed a de novo inquiry and an opportunity of hearing for the appellant. The matter was to be decided within three months from the date the judgement copy is received.

Analysis:

The judgement reinforces the importance of procedural fairness and natural justice in employment matters, even for contractual employees. It serves as a stern reminder to government bodies to adhere to their own guidelines and rules when taking disciplinary actions. Moreover, it establishes the principle that an employee should not be condemned without a proper hearing, irrespective of the nature of their employment contract.

Continuation of Analysis:

Implications for Contractual Employees:

This judgement will have significant implications for contractual employees working under the Assistance Package for families of deceased Government Employees. It brings them under the purview of procedural fairness, insisting that even they are entitled to a fair hearing and a proper inquiry process when faced with allegations of misconduct.

Checks and Balances on Administrative Actions:

The Tribunal’s decision highlights the essential checks and balances that should be in place within administrative bodies. It emphasises the need for these institutions to exercise their powers judiciously and in accordance with established legal procedures.

Timeline for De Novo Inquiry:

Another notable point is the Tribunal’s direction for a de novo inquiry to be completed within three months. This sets a precedent for expediency in such matters, ensuring that justice is not only served but also done swiftly.

Impact on Future Cases:

Given the detailed references to case laws and established legal principles, this judgement is likely to serve as a significant precedent for similar cases in the future. It could be cited in arguments relating to unfair termination, especially where government circulars and guidelines have been disregarded.

Conclusion:

The judgement  serves as an exemplar of the application of principles of natural justice and procedural fairness. It underscores the importance of adhering to legal procedures and government instructions, particularly in matters related to employment and disciplinary actions. The judgement is replete with references to prior case laws, thereby enriching its jurisprudential value. It stands as a cautionary tale for administrative bodies to exercise their powers within the bounds of law, ensuring justice and fairness in their actions.

 PLJ 2023 Tr.C. (Services) 115
[Federal Service Tribunal, Islamabad]

 TARIQ KHAN, JUNIOR AUDITOR, OFFICE OF THE ACCOUNTANT GENERAL BALOCHISTAN versus SECRETARY, MINISTRY OF FINANCE, GOVERNMENT OF PAKISTAN, and others, as adjudicated by the Federal Service Tribunal, Islamabad.

Legal Provisions and Laws Cited:

Civil Servants (Appeal) Rules, 1977: Rule 6

Service Tribunals Act, 1973: Section 4

Rules of Business, 1973: Schedule II

Civil Servants (Appointment, Promotion & Transfer) Rules, 1973: Rule 3(2)

Constitution of Pakistan 1973: Articles 4 & 25

Case Law Referred:

1996 SCMR 1185 (Hameed Akhtar Niazi vs. Secretary, Establishment Division)

Summary of the Case:

The appellant, Tariq Khan, was a Junior Auditor in the Office of the Accountant General Balochistan. He filed a departmental appeal challenging the amendment in recruitment and promotion rules that affected Junior Auditors adversely. His departmental appeal was rejected, prompting him to file a service appeal. The Tribunal ruled in his favour, stating that the changes made in the promotion criteria and other qualifications were not only discriminatory but also a breach of institutional powers.

Legal Principles and Factors Involved:

Domain of Establishment:

According to Schedule II of the Rules of Business, 1973, it is the domain of the Establishment Division to review and regulate matters concerning civil posts, including recruitment, promotion, conduct, and discipline.

Unilateral Changes and Discrimination:

The Tribunal noted that unilateral changes made by an institution without having the legal powers would create anomalies within the same cadre of employees. Such discrimination was found to be in violation of Rule 3(2) of the Civil Servants Act, 1973, and Articles 4 and 25 of the Constitution.

Non-exercise and Misexercise of Powers:

The Tribunal highlighted that it was a classic case of non-exercise of powers vested in an institution and the exercise of powers by an institution not vested with such powers. It further stated that when an institution fails to exercise its vested powers, others may arrogate those powers to themselves.

[To Be Continued]

Entitlement to Benefits of Supreme Court Judgments:

The Tribunal ruled that the appellant was entitled to the benefits of judgments of the Hon’ble Supreme Court of Pakistan and the Federal Service Tribunal based on the principle laid down in 1996 SCMR 1185. In that cited case, it was established that if the vested powers are not exercised by the institution in which they are vested, another may take over those powers, creating a vacuum in the exercise of powers.

Changes in Promotion Quota:

The Tribunal took serious note of the fact that the promotion quota for Junior Auditors was reduced drastically from 90% to 10%. This was not just a minor administrative change but had significant implications for the career progression of Junior Auditors like the appellant.

Analysis:

Institutional Integrity and Legal Framework:

This case serves as an essential reminder of the need for institutional integrity. Institutions must operate within their legally defined domains to ensure the rule of law and procedural fairness. The Tribunal’s judgment, in this case, serves as a cautionary tale for institutions tempted to overreach their authority.

Discrimination and Equal Treatment:

The case also touches upon the significant issue of discrimination within the same cadre of employees. In altering the promotion quotas and other qualifications unilaterally, the concerned authorities violated the core principle of equal treatment under the law.

Precedential Value:

The Tribunal’s reliance on prior judgments, particularly 1996 SCMR 1185, underscores the importance of established legal principles in shaping future jurisprudence. This judgment is likely to be cited in future cases involving unilateral changes to employment rules and regulations, as well as those that touch upon the exercise and non-exercise of institutional powers.

Conclusion:

The Tribunal’s judgment in this case reinforces the importance of adhering to the established legal framework, ensuring that powers are exercised by the institutions in which they are vested. It also adds to the jurisprudential discourse on discrimination, particularly in employment matters, and will likely serve as a significant precedent for similar cases in the future.

 PLJ 2023 Tr.C. (Services) 143

[Federal Service Tribunal, Islamabad (Karachi Bench)] AZIZULLAH KHAN versus MEMBER (ADMN), FEDERAL BOARD OF REVENUE, ISLAMABAD and 2 others, as decided by the Federal Service Tribunal, Islamabad (Karachi Bench).

Legal Provisions and Laws Cited:

Civil Servant Act, 1973 (LXXI of 1973): Section 22(2)

General Clauses Act, 1987: Section 24-A

General Clauses Act, 1897: Section 24-A

Service Tribunal Act, 1973: Section 4

Advocates for Parties:

Syed Attaullah, Advocate for Appellant

Mr. Zafar Imam, Advocate for Respondents

Summary of the Case:

The appellant, Azizullah Khan, was aggrieved by the promotion of a junior colleague, Pir Ali Shah, to the post of Deputy Superintendent, while his own representations for promotion remained unaddressed. The Tribunal found in favour of the appellant, noting several lapses in institutional responsibility and declaring the promotion of Pir Ali Shah as void.

Legal Principles and Factors Involved:

Continuing Cause of Action and Limitation:

The Tribunal noted that a continuing cause of action does not have a fixed period of limitation. The appellant’s case, therefore, was not time-barred as the respondent had not addressed his multiple representations over the years.

Duty of Authority and Unaddressed Representations:

According to Section 22(2) of the Civil Servant Act, 1973, when a departmental appeal or representation is filed, the concerned authority is duty-bound to address it objectively. Failing to do so is a dereliction of duty and gives the appellant a continuing cause of action.

Discrimination and Seniority:

Discrimination was evident in how the appellant was treated vis-à-vis his junior, who was promoted. The Tribunal found no lawful justification for this discrepancy, thereby violating Article 25 of the Constitution of Pakistan. The Tribunal also stressed that seniority should be determined from the date of initial appointment, not confirmation or regularization.

Administrative Lapses and Departmental Responsibilities:

The Tribunal emphasized the importance of a timely and reasoned decision on departmental appeals or representations. The failure to do so not only hampers the career progression of employees but also undermines institutional integrity. Such failure was deemed to violate Section 24-A of the General Clauses Act, 1987, which mandates a speaking order to be passed for any administrative action.

Proforma Promotion and Consequential Benefits:

The Tribunal also highlighted the concept of proforma promotion, citing various apex court judgments. According to these judgments, if an individual loses out on a promotion due to administrative lapses, they should be granted proforma promotion with back benefits. This approach aligns with Fundamental Rule 17 and was found to be applicable in the appellant’s case.

Void Orders and Legal Precedents:

The Tribunal declared the promotion of Pir Ali Shah as void, aligning with the Supreme Court’s stance that no period of limitation runs against a void order. This principle was cited from the judgment in Yousaf Ali vs. Muhammad Aslam Zia (PLD 1958 SC 104).

Analysis:

Institutional Integrity and Adherence to Rules:

This case serves as an example of the challenges that can arise from not adhering to established rules and procedures, thus affecting the lives and careers of civil servants. The failure of the competent authorities to address departmental representations punctually and fairly led to an inequitable situation that ultimately had to be resolved through judicial means.

Implications for Seniority and Promotion:

The case also serves as a cautionary tale for institutions that may be tempted to undermine the seniority principle in promotions. The Tribunal’s ruling, grounded in both statutory law and established legal precedents, underscores the importance of adhering to well-established rules when making promotions.

Legal Precedents:

The Tribunal’s reliance on prior judgments solidifies the importance of established legal principles and adds to the jurisprudential discourse on issues such as discrimination, seniority, and the obligation of departmental authorities to pass speaking orders.

Conclusion:

In summary, the Tribunal’s judgment serves as a comprehensive guide on the procedural and substantive aspects of departmental appeals and promotions within the civil service. It reinforces the importance of administrative propriety, the rule of law, and the need for institutions to function within their legally defined boundaries.

PLJ 2023 Tr.C. (Services) 151

[Federal Service Tribunal, Islamabad]

Legal Provisions and Laws Cited:

Government Servants (Efficiency and Discipline) Rules, 1973 – Rules 8 & 9

Service Tribunals Act, 1973 (LXX of 1973) – Section 4

Control of Narcotic Substances Act, 1997 – Sections 9-C & 15

Cases Referenced:

Rashid Mehmood vs. Additional Inspector-General of Police and 2 others (2002 SCMR 57)

Malik Azharul Haq vs. Director of Food, Punjab (1991 SCMR 209)

Several other cases including 1994 PLC (CS) 693, 1998 SCMR 1993, 2012 SCMR 165, and PLD 2010 SC 695

Summary of the Case:

Muhammad Irfan, the appellant, was dismissed from service due to his involvement in a criminal case related to narcotics and subsequent absence from duty. The appellant was later acquitted by a competent court, but his application for reinstatement was rejected. He appealed to the Federal Service Tribunal, which found in his favor, stating that the dismissal was not in line with established laws and precedents.

Legal Principles and Factors Involved:

Absence of Departmental Proceedings:

The Tribunal noted that no departmental proceedings, including charge-sheet or show-cause notice, were initiated against the appellant before dismissing him from service. This omission is particularly crucial because the appellant was penalized solely based on his involvement in a criminal case and absence from duty.

Acquittal and Reinstatement:

The Tribunal relied on prior judgments, especially Rashid Mehmood (2002 SCMR 57), to highlight that if a government servant is penalized solely on the grounds of a criminal case, the departmental penalty stands nullified upon acquittal by a competent court. Therefore, the Tribunal found that the appellant should be reinstated with all back benefits.

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Willfulness of Absence:

The Tribunal also found that the appellant’s absence from duty was not willful but was rather due to his arrest in a criminal case. This absence, therefore, could not be cited as a ground for dismissal under Rule 8 of the Government Servants (Efficiency and Discipline) Rules, 1973.

Ignorance of Supreme Court Precedents:

The Tribunal criticised the authority for ignoring the laws, rules, and judgments of the Hon’ble Supreme Court of Pakistan and relying solely on police investigations, which were already condemned by the Special Court Judge.

Void Nature of the Order:

Consequently, the Tribunal declared that the order dismissing the appellant from service was void in nature, as it was against the law, rules, and precedents.

Analysis:

The case serves as a touchstone for the importance of procedural justice in administrative matters, especially in the context of disciplinary actions against government servants. It reiterates that the absence of a fair and transparent departmental proceeding, especially when the only reason for the penalty is involvement in a criminal case, is unacceptable.

The Tribunal’s reliance on existing Supreme Court precedents also underscores the necessity for lower authorities to adhere to higher judicial guidelines. The Tribunal’s judgment serves as a cautionary tale for authorities that might be tempted to bypass legal procedures and safeguards, thereby reinforcing the principle of justice and fairness in administrative actions.

Conclusion:

In summary, the Tribunal’s judgment in Muhammad Irfan vs Inspector General of Islamabad and others serves as a guiding precedent for upholding the rule of law in departmental actions against government servants. It emphasizes the indispensability of initiating proper departmental proceedings before imposing any major penalties, such as dismissal from service. The judgment also makes it clear that if a government servant is penalized solely on the basis of involvement in a criminal case, the departmental penalty stands waived upon acquittal by a competent court. This aligns with established legal principles and the rule of law, reinforcing the need for procedural justice.

Moreover, the judgment touches upon the principle that departmental authorities should not ignore the laws, rules, and judgments of the Hon’ble Supreme Court of Pakistan. Ignoring such important legal benchmarks not only undermines the authority’s credibility but also makes their actions legally untenable.

The case is a significant addition to the jurisprudence relating to departmental penalties, especially in the context of government servants involved in criminal cases. It serves as a practical reminder to administrative authorities of the legal principles that must be adhered to when taking disciplinary action against employees, thus reinforcing the principles of justice, fairness, and transparency in administrative matters.

 PLJ 2023 Tr.C. (Services)164

[Federal Service Tribunal, Lahore]

 Muhammad Nawaz Mirza vs General Manager (Personnel), Pakistan Railways Head Quarters Office, Lahore

Legal Provisions and Laws Cited:

Service Tribunals Act, 1973 (LXX of 1973) – Section 4

Cases Referenced:

PLD 2010 SC 857

2013 SCMR 544

2014 PLC (CS) 948

2022 SCMR 595

Summary of the Case:

The appellant, Muhammad Nawaz Mirza, appealed under Section 4 of The Service Tribunals Act, 1973 against the decision rejecting his representation for promotion. Initially appointed as a Junior Clerk in 1967, the appellant had a complex service history involving promotions, demotions, and dismissals. The matter at hand was his entitlement to pro forma promotion to higher posts, which he argued was wrongfully denied. He contended that he had been illegally deprived of his right to promotion, particularly given that all his prior punishments had been waived by the department. The Tribunal accepted his appeal, directing the respondents to consider his pro forma promotion.

Legal Principles and Factors Involved:

Issue of Time-bar:

The Tribunal first addressed the question of whether the appeal was time-barred, given that the departmental authority had dismissed an earlier departmental appeal in 2016. The Tribunal held that the appeal was within the time limit under Section 4 of The Service Tribunals Act, 1973, as the issue of limitation had not been explicitly discussed in the departmental authority’s decision.

Pro Forma Promotion:

The appellant was initially appointed as a Junior Clerk in 1967 and had been promoted and demoted several times. The Tribunal found that he was unlawfully denied promotion, particularly given that all his punishments had been waived by the department.

Independent Judicious Mind:

The Tribunal criticised the departmental authority for not applying its independent judicious mind and for not perusing the record properly, which led to a miscarriage of justice for the appellant.

Precedents:

The Tribunal’s decision was supported by various precedents, including PLD 2010 SC 857 and 2013 SCMR 544, which further strengthened the appellant’s case for pro forma promotion.

Analysis:

The Tribunal’s judgment underscores the principle that pro forma promotions cannot be arbitrarily denied, particularly when all prior punishments have been waived. It also emphasises the need for departmental authorities to exercise independent judicious reasoning while making decisions that affect the careers and livelihoods of employees.

The Tribunal criticised the department for not adequately considering the appellant’s case and history, thus causing a glaring miscarriage of justice. This reiterates the need for procedural justice and an independent application of mind in administrative actions.

The issue of time-bar was also crucial. The Tribunal clarified that when a departmental decision does not explicitly discuss the issue of limitation, the matter is considered to be impliedly condoned, thus enabling the appellant to file an appeal within the stipulated time under the Service Tribunals Act.

Overall, the Tribunal’s judgment serves as a cautionary tale for administrative authorities. It emphasises the importance of following procedural norms and judicial precedents to ensure fair and equitable treatment of employees.

Conclusion:

The Tribunal’s decision in the case of Muhammad Nawaz Mirza vs General Manager (Personnel), Pakistan Railways Head Quarters Office, Lahore serves as an important precedent in the area of administrative law and employment rights. It highlights the significance of procedural justice and the need for administrative authorities to apply an independent mind while making decisions that profoundly affect the lives of government servants. The case also touches upon the importance of adhering to legal timelines, adding a layer of procedural clarity to the Service Tribunals Act, 1973.

Case Note: PLJ 2023 Tr.C. (Services) 170

Parties and Relevant Statutes

The case features Tariq Mehmood as the Appellant, and the Secretary, Ministry of Defence, Secretariat-II, Sadder, Rawalpindi among others as Respondents. The relevant statutes invoked include the Pakistan Army Act, 1952 (Sections 2(1)(c) & 8(1)) and the Civil Servants Act, 1973 (Section 2(1)(b)).

Facts and Legal Issues

Tariq Mehmood, a contractual civil employee of the Frontier Works Organization (FWO), was relieved from his service due to the abolition of his post. He filed an appeal against this decision, alleging that his dismissal was unlawful and challenging the jurisdiction of the Tribunal to hear his case.

Judgement

The Federal Service Tribunal, Islamabad, dismissed the appeal for want of jurisdiction. The Tribunal found that the appellant, as a contractual civil employee of FWO involved in military operations, doesn’t fall under the definition of a civil servant as per the Civil Servants Act, 1973. Therefore, the appellant couldn’t avail the remedy of appeal before this Tribunal.

Citations and Precedents

The judgement referenced several legal provisions and cases, including:

Pakistan Army Act, 1952 (Sections 2(1)(c) & 8(1))

Civil Servants Act, 1973 (Section 2(1)(b))

Secretary, Ministry of Defence and another vs. Zahoor Ahmed Javed (2009 PLC (CS) 141)

Legal Principles and Factors Involved

Jurisdiction: One of the main legal principles involved was the jurisdiction of the Federal Service Tribunal. The Tribunal determined that it lacked jurisdiction to hear the appeal because the appellant was not a ‘civil servant’ under the Civil Servants Act, 1973.

Definition of Civil Servant and Active Service: The case delved into the definition of ‘civil servant’ under the Civil Servants Act, 1973 and ‘active service’ under the Pakistan Army Act, 1952. It was found that employees like the appellant, who are involved in military operations, are considered to be in ‘active service’ under the Pakistan Army Act, 1952, and thus, not ‘civil servants’.

Precedential Value: The judgement cited several prior rulings to substantiate its conclusions, particularly the Supreme Court decision in Zahoor Ahmed Javed (2009 PLC (CS) 141), which clarified the status of civilian personnel in military organisations.

Penalty and Relief: The Tribunal also considered that the appellant was relieved with all benefits due to the abolition of his post and not as a penalty, which further weakened his case.

Analysis

The judgement is important for its clarity on jurisdictional issues involving civil employees in military organizations. It sets a precedent for similar cases involving the Frontier Works Organization or other such military organizations. The Tribunal’s reliance on prior Supreme Court decisions adds weight to its conclusions. However, it leaves contractual civil employees in such organizations in a precarious position regarding legal recourse, as they are deemed outside the purview of ‘civil servants’ under the Civil Servants Act, 1973.

The judgement has implications for the broader interpretation of what constitutes ‘active service’ and a ‘civil servant’, potentially affecting many other cases involving employees in similar organizations. 

PLJ 2023 Tr.C. (Services) 184

[Federal Service Tribunal, Islamabad (Karachi Bench)]

Case Note

Legal Provisions, Laws, and Cases Cited

Service Tribunals Act, 1973 (LXX of 1973), Section 4: This is the primary law under which the case is appealed. It governs the terms of service for civil servants and the mechanisms for redressal of their grievances.

2008 PLC (CS) 973: A precedent cited that supports the idea that inquiries based on questionnaires are legally infirm.

2008 PLC (CS) 786: Another precedent that disapproves of the questionnaire method of inquiry and insists on a thorough process.

2010 PLC (CS) 1299: This case from the Khyber Pakhtunkhwa Service Tribunal also emphasises the need for a proper inquiry process, condemning questionnaire-based inquiries.

Summary

The appellant, Mushtaque Ali, who was serving as a senior auditor, was dismissed from service following a departmental inquiry into alleged unauthorised payments. He was not given a proper chance to defend himself and the inquiry was largely conducted through a questionnaire, a method not appreciated by the Apex Court. The department failed to prove any loss to the Government Exchequer related to the allegations against the appellant.

Legal Principles and Factors Involved

Natural Justice – Audi Alteram Partem: The principle that no one should be condemned unheard. The tribunal found that the appellant was not given a proper chance to defend himself, which is a violation of this principle.

Inquiry Methodology: The method of conducting an inquiry through questionnaires is disapproved by the Apex Court, as cited in several precedents. Such a process is not considered as offering a fair chance for the accused to defend themselves.

Proof of Loss to Exchequer: One of the key missing elements in the department’s case was the lack of evidence pointing to a loss to the Government Exchequer. This weakens the case against the appellant considerably.

Condonation of Delay: Due to the Covid-19 pandemic, a delay in filing the appeal was observed, which the Tribunal condoned, given the exceptional circumstances.

Analysis

The Tribunal’s judgement is a robust affirmation of the principles of natural justice and procedural fairness. The judgement makes it clear that an inquiry based on questionnaires is insufficient to meet the standards of a fair and just inquiry, as established by the Apex Court. The Tribunal also emphasises the need for concrete evidence, particularly when allegations of a serious nature are made, such as loss to the Government Exchequer.

Further, the Tribunal is not inclined to give the department another opportunity for a de-novo inquiry, stating that they had already been given ample chances to substantiate their allegations, which they failed to do. This underscores the Tribunal’s commitment to not let the process be abused for endless, fruitless inquiries.

The Tribunal’s decision to condone the delay in filing the appeal due to Covid-19 shows its responsiveness to exceptional circumstances, aligning with the notification from the Hon’ble TE Supreme Court.

In conclusion, the judgement is a thorough rebuke of unfair and flawed departmental inquiries and serves as a strong reminder of the principles of natural justice that are foundational to the legal system.

Case Note on PLJ 2023 Tr.C. (Services) 156 [Federal Service Tribunal, Islamabad, (Karachi Bench)]

Parties Involved

Ms. AKASH ILTAF, the Appellant

SECRETARY, MINISTRY OF RAILWAYS, ISLAMABAD, and 5 others, the Respondents

Legal Provisions and Laws Cited

General Clauses Act, 1897 (X of 1897), S. 24(a)

Service Tribunal Act, 1973, S. 4

Referenced Cases

2005 PLC (CS) 1042

1984 PLC (CS) 485

Facts of the Case

Ms. AKASH ILTAF appealed under Section 4 of the Service Tribunals Act, 1973, after her promotion was deferred due to the non-availability of a Performance Evaluation Report (PER) in a Departmental Promotion Committee (DPC) meeting. Despite fulfilling all other criteria, her promotion was put on hold. She also claimed discriminatory treatment as other employees in similar positions were promoted.

Issues

The non-decision of the appellant’s representation.

The deferment of the appellant’s promotion.

Discriminatory treatment in contrast to other employees.

Judgement Analysis

Non-Decision of Representation: The Tribunal noted that the appellant’s representation had not been decided by the Appellate Authority. This was deemed a violation of her statutory rights as a civil servant. The judgement cited previous cases (2005 PLC (CS) 1042 & 1984 PLC (CS) 485) to affirm that it was the duty of the department to forward the appeal to the proper authority.

Deferment of Promotion: The Tribunal highlighted that the PER, which was missing and led to the deferment of the appellant’s promotion, was the responsibility of the department. In this regard, the Tribunal found that the department had failed in its duty.

Discriminatory Treatment: The appellant claimed discriminatory treatment, which the Tribunal noted was not dealt with by the Appellate Authority. This was considered a failure to attend to an important aspect of the case, and the Tribunal directed that this be addressed.

Ineffectiveness of the Respondents: Only some of the respondents submitted their comments, and their submissions were found to be lacking in substance. For example, they argued that the appeal was time-barred, which the Tribunal did not find convincing.

Direction: The appeal was disposed of with a direction to the Appellate Authority to decide the appeal after giving the appellant an opportunity for a personal hearing.

Legal Principles and Factors Involved

Statutory Right of Appeal: The judgement emphasises the statutory right of a civil servant to appeal, which must be dealt with seriously and in accordance with established norms.

Responsibility of Department: The judgement makes it clear that the department has an obligation to ensure all necessary documents are in place for decisions about promotions.

Discriminatory Treatment: The issue of discrimination was raised but not addressed by the Appellate Authority. The judgement emphasises that such claims should not be ignored and must be dealt with in accordance with the law.

Due Process: The judgement stresses the importance of due process and the right to be heard, in line with previous case law and constitutional provisions.

Overall, the judgement represents a thorough examination of administrative failures and emphasises the importance of due process and the right to appeal.

Implications and Critique

Reinforcement of Statutory Rights: The judgement serves as a reinforcement of the principle that statutory rights, especially those related to employment and career progression, should be respected and upheld. The Tribunal emphasises this by directing the Appellate Authority to decide the appellant’s case afresh.

Accountability of Administrative Actions: The judgement holds the administrative body (in this case, the Ministry of Railways and related departments) accountable for their failure to process the appellant’s promotion and to respond adequately to her appeal. This sets a precedent that may encourage higher standards of administrative governance.

Stress on Due Process: The judgement stresses the importance of adhering to the principles of natural justice, particularly the right to be heard and the right to a fair decision. It adds weight to the ongoing discourse about the importance of due process in administrative actions.

Potential for Further Litigation: While the appeal was disposed of with directions to the Appellate Authority, the judgement leaves open the possibility for further litigation, especially if the Appellate Authority fails to adhere to the directions given by the Tribunal. This could potentially mean that the appellant might have to engage in further legal battles to secure her rights.

Limitation on Scope: While the judgement does an admirable job of addressing the immediate issues at hand, it does not delve into systemic issues that might be at play, such as systemic discrimination or inefficiencies in the administrative setup. However, it can be argued that such an exploration might be beyond the purview of a case of this nature.

Legal Precedent: The case serves as a legal precedent for similar future cases where an employee’s promotion is deferred due to administrative lapses. It adds to the body of case law that deals with employment rights and administrative justice.

In conclusion, the judgement in PLJ 2023 Tr.C. (Services) 156 serves as a significant addition to Pakistani administrative law jurisprudence, especially in matters concerning employment rights and the responsibilities of administrative bodies. By focusing on the importance of due process and the obligation of administrative bodies to act fairly and efficiently, it addresses key concerns that are universally relevant in the realm of administrative law.

Other Notable Tribunal Decisions:

  • Federal Service Tribunal Case (1989 PLC(CS) 237): A case involving a Meter Mechanic’s service termination, where the Tribunal modified the penalty to uphold the principle of proportionality in disciplinary actions.
  • Capital Development Authority, Islamabad vs. Muhammad Ayub (1976 PLC 924 Labour Appellate Tribunal Punjab): This decision emphasized that CDA employees are governed by Efficiency and Discipline Rules, with certain decisions being outside the purview of Labour Court challenges due to jurisdictional limitations.

List of Important Cases on Section 2-A of the Service Tribunals Act, 1973:

  1. Pakistan State Oil Co. Ltd. V Muhammad Tahir Khan and others
    • Citation: 2001 PLC (C.S.) 591 [S.C.] = PLD 2001 SC 980.
  2. Mahboob Hussain Qamar and others V United Bank Limited through President and others
    • Citation: PLD 2001 SC 193.
  3. Rooh-ul-Amin V University of Peshawar and 3 others
    • Citation: 2006 PLC (C.S.) 813 [Peshawar High Court].
  4. Muhammad Sajid Iftikhar Gujar V Chief Secretary, Government of the Punjab, Lahore and another
    • Citation: PLJ 2006 Tr.C. (Services) 73 [P.S.T.] = 2006 PLC (C.S.) 396 [P.S.T.].
  5. Nisar Ahmed Qureshi and others V Chairman, Pakistan Steel Bin Qasim, Karachi and another
    • Citation: 2006 PLC (C.S.) 675 [F.S.T.].
  6. Muslim Commercial Bank Ltd. and another V Muhammad Shafi
    • Citation: 2002 PLC 124.
  7. Farasat Hussain and others V Pakistan National Shipping Corporation through its Chairman and others
    • Citation: PLJ 2005 SC 212 = 2005 PLC (C.S.) 890 [S.C.].
  8. Saeed Khan Mobejo V Trading Corporation of Pakistan (PVT) Limited through Chairman and others
    • Citation: 2005 PLC (C.S.) 1171 [F.S.T.].
  9. Muhammad Ashraf V Director-General, Multan Development Authority, Multan and another
    • Citation: 2000 PLC (C.S.) 796 [Lahore High Court].
  10. Muhammad Akram V Mst. Farman Bi
    • Citation: PLD 1990 SC 28.
  11. Ghulam Mustafa Khairati V Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and another
    • Citation: 2005 PLC (C.S.) 417 [F.S.T.].
  12. Abdul Hafeez Abbasi and others V Managing Director, Pakistan International Airlines Corporation, Karachi and others
    • Citation: 2002 SCMR 1034 = 2002 PLC (C.S.) 1083 [S.C.].
  13. Ejaz Rahim V. Federation of Pakistan
    • Citation: 1999 PLC (C.S.) 38 [Lahore High Court] = PLJ 1998 Lah. 1628 = 2000 PLC (C.S.) 145.
  14. Managing Director NBF, Islamabad and 2 others V Muhammad Arif Raja
    • Citation: 2006 PLC (C.S.) 193 [S.C.] = PLD 2006 SC 175 = PLJ 2006 SC 777.
  15. Sayed Sagheer Ahmed Naqvi V Province of Sindh and another
    • Citation: 1996 SCMR 1165 = 1996 PLC (C.S.) 803 = NLR 1995 TD (Service) 244.
  16. Munir Ahmed Sheikh V Federation of Pakistan through Secretary, Establishment Division and another
    • Citation: 2002 PLC (C.S.) 394 [Lahore High Court].
  17. I.A. Sherwani and others V. Government of Pakistan
    • Citation: 1991 SCMR 1041.
  18. Khalid Mehmood Watto V Government of the Punjab
    • Citation: 1998 SCMR 2280.
  19. Pervez Alam V Pakistan Dairy Products (PVT.) Limited, Karachi and 2 others
    • Citation: 2005 SCMR 1840.
  20. Punjab Small Industries Corporation V Ahmad Akhtar Cheema
    • Citation: 2002 PLC (C.S.) 182 [S.C.] = 2002 SCMR 549.
  21. Raja Riaz V Chairman, Pakistan Space an Upper Atmosphere Research Commission, Karachi
    • Citation: 2008 SCMR 402.
  22. Pakistan V. Wali Muhammad, Registrar, Supreme Court of Pakistan V. Wali Muhammad
    • Citation: 1997 SCMR 141 = 1997 PLC (C.S.) 137 = NLR 1997 Service SC 45.
  23. Abida Hussain V. Tribunal for N.A. 69, Jhang
    • Citation: PLD 1994 SC 60.

This list provides a comprehensive overview of significant cases related to Section 2-A of the Service Tribunals Act, 1973, illustrating the varied judicial interpretations and applications of this critical piece of legislation

An Analysis of the Legal Scope and Impact of Section 2-A, Service Tribunals Act, 1973

Concept of Judicial Review and Its Application to Section 2-A:

Judicial review constitutes a fundamental mechanism in the judiciary’s arsenal, allowing it to scrutinize and ensure the constitutionality of actions undertaken by the legislative, executive, and administrative branches of government. Rooted in the principle that legislative authority is bound by constitutional limits, judicial review seeks to restrain any actions exceeding these bounds. This principle was notably affirmed in the seminal U.S. Supreme Court case of Marbury v. Madison (1803), establishing the precedent for judicial review.

The Supreme Court of Pakistan’s interpretation of judicial review, particularly in the context of Section 2-A of the Service Tribunals Act, 1973, as evidenced in the case of Muhammad Mubeen-us Salam and others Vs. Federation of Pakistan (PLJ 2006 SC 1296), reflects its commitment to upholding constitutional mandates. In this landmark judgment, the Court scrutinized the constitutionality of Section 2-A, ultimately deeming it partially ultra vires, or beyond the constitutional powers granted.

Historical Context and Legislative Intent of Section 2-A:

The inception of Section 2-A was rooted in the constitutional provision of Article 212, empowering the legislature to establish administrative courts or tribunals for matters concerning service terms and conditions of persons employed by Pakistan. The Service Tribunals Act of 1973, amended in 1997 to include Section 2-A, sought to provide a specialized forum for civil servants to address grievances related to their service.

Prior to Section 2-A, the Tribunal’s jurisdiction was limited to those classified as civil servants under the Civil Servants Act (LXXI of 1973). Employees of statutory bodies or corporations controlled by the Federal Government, who did not meet the civil servant criteria, were excluded from this remedy. These employees typically sought redress through constitutional petitions in the High Court or, in certain cases, through labor courts.

The introduction of Section 2-A expanded the Tribunal’s jurisdiction to include employees of federal statutory bodies and corporations, classifying them as civil servants solely for the purpose of accessing the Tribunal. This amendment aimed at unifying the legal recourse available to these employees, streamlining the adjudication process, and addressing the lack of a uniform mechanism for resolving service-related disputes.

Implications and Debates Surrounding Section 2-A:

The inclusion of Section 2-A effectively centralized the adjudication of employment disputes in the Service Tribunal, precluding recourse to other judicial forums like the High Court, Civil Courts, or Labor Courts for employees of federal statutory bodies and corporations. This shift has sparked significant legal discourse, focusing on the broader implications for employee rights and the judicial system’s capacity to effectively handle these specialized cases.

Critically, the Supreme Court’s ruling on the partial ultra vires nature of Section 2-A has not only judicially recalibrated the scope of the Service Tribunals Act but has also reopened discussions on the appropriate avenues for employment dispute resolution in Pakistan. The judgment underscores the delicate balance between legislative intent, constitutional mandates, and the practical realities of administrative and judicial processes.

  • Constitutional Viability of Section 2-A, STA, 1973:
    • Section 2-A of the Service Tribunals Act (STA), 1973, is deemed partially ultra vires, specifically in relation to employees whose service terms are not legislated by the Federal Legislature. Consequently, these employees cannot be constitutionally categorized as civil servants as per section 2(1)(b) of the Civil Servants Act (CSA), 1973, especially when not directly involved in Federation affairs.
  • Enforcement Limitation of Section 2-A:
    • The enforcement of Section 2-A is contingent upon an amendment to the definition of ‘civil servant’ in section 2(1)(b) of the CSA, 1973. Without such an amendment, Section 2-A lacks constitutional enforceability.
  • Availability of Remedies for Certain Employees:
    • Employees falling outside the purview of the ‘civil servant’ definition under the CSA, 1973, and thus under Section 2-A of the STA, 1973, are not eligible for remedies via the Service Tribunal as structured under Article 212 of the Constitution. These individuals are advised to seek redress through other appropriate legal channels.

Consequential Directions and Implications:

(a) Finality of Previously Decided Cases:

  • Cases conclusively resolved by the Supreme Court under Article 212(3) of the Constitution will remain undisturbed. Any pending review petitions or applications related to these judgments will be independently considered, unaffected by the current decision’s ratio.

(b) Abatement of Certain Proceedings:

  • Proceedings initiated by or against employers, not falling under the previously mentioned category and pending before the Supreme Court or the Service Tribunal, are declared abated. Parties involved are directed to seek remedies that were available before the enactment of Section 2-A in the STA, 1973.

(c) Option for Aggrieved Parties in Non-Protected Cases:

  • Cases or proceedings not covered by the judgment’s protection are considered abated. Affected parties may approach competent forums for grievance redressal within 90 days, during which the usual legal time bars will be inoperative.

(d) Status of Implemented Tribunal Orders:

  • Orders of the Service Tribunal that have already been implemented will remain effective for 90 days or until the initiation of appropriate proceedings, whichever occurs first.

(e) Guidance for Service Tribunal on Pending Cases:

  • The Service Tribunal is instructed to adjudicate pending cases under Section 2-A of the STA, 1973, in light of these observations. For cases falling under clause ‘c’, a 90-day period is provided for the aggrieved party to seek redress in a competent forum.

Legal Interpretation and Implications:

  • Bifurcation of Section 2-A, STA, 1973:
    • The language of Section 2-A in the STA, 1973, implies a two-fold classification: firstly, it declares certain services under specified authorities as part of the service of Pakistan, and secondly, it deems individuals in such services as civil servants for the purposes of the STA.
  • Partial Constitutionality of Section 2-A:
    • The Supreme Court has not deemed Section 2-A entirely ultra vires but has identified it as partially conflicting with Articles 240 and 260 of the Constitution. This conflict arises due to the absence of a corresponding amendment in the definition of ‘civil servant’ in the CSA, 1973. The part of Section 2-A regarding the declaration of service as part of the service of Pakistan remains within constitutional bounds, subject to specific conditions.
  • Article 212(1)(a) and Jurisdictional Scope:
    • Article 212(1)(a) empowers the establishment of tribunals for issues relating to service terms of individuals in the service of Pakistan, including disciplinary matters. This has implications for the jurisdiction and scope of the Service Tribunal’s authority.
  • Obligations of the Service Tribunal:
    • The Service Tribunal should have adjudicated pending cases filed under Section 2-A of the STA, 1973, considering the Supreme Court’s observations, instead of declaring all such cases abated without hearing the parties involved.

Tribunal’s Interpretation and Actions:

The Tribunal’s decision to non-suit all litigants en masse without hearings raises several legal questions. These include the Tribunal’s interpretation of the Supreme Court’s judgment, the applicability of the judgment to specific cases, and the right to a hearing for litigants. The Supreme Court’s judgment, if fully considered, reveals key points:

  • Criteria for Service of Pakistan:
    • A declaration is required for a person to be considered in the service of Pakistan, and they must hold a post in connection with the affairs of the Federation or a Province.
  • Connection with Federation Affairs:
    • A nexus with the Federation’s affairs is crucial for declaring a person’s service as part of the service of Pakistan, particularly for roles involving sovereign state functions.
  • Exclusive Jurisdiction of the Tribunal:
    • The Tribunal’s jurisdiction is limited to individuals whose service terms are governed by statute or statutory rules as per Article 240 of the Constitution.
  • Mandatory Conditions for Tribunal Relief:
    • To qualify for relief from the Service Tribunal, an individual must hold a post, failing which they would not be considered in the service of Pakistan.

Legal Advocacy and Tribunal’s Response:

The arguments presented by learned advocates before the Supreme Court suggest that Section 2-A is intra vires for those whose terms are governed by statutory provisions but ultra vires for those without such governance. However, the Tribunal’s broad application of the judgment to all pending cases, without distinguishing between these two categories, seems legally inadequate.

Illustrative Case Study: State Bank of Pakistan:

Consider the scenario of an employee of the State Bank of Pakistan seeking redress through the Service Tribunal. The Bank, established under the State Bank of Pakistan Act, 1956, performs functions integral to the Federation and the Provinces. The terms and conditions of the Bank’s employees are governed by statutory rules and regulations. Therefore, such employees should be differentiated from those not protected by statutory rules. This differentiation is crucial in determining the maintainability of their appeals before the Tribunal.

Evaluation of the Tribunal’s Decision-Making Process:

  • Criteria for Tribunal Jurisdiction:
    • The Service Tribunal needed to assess whether appellants, such as those from the State Bank of Pakistan, fulfilled the criteria outlined in the Supreme Court’s judgment. This includes:
    • (a) Recognition under the intact part of Section 2-A of the STA, 1973, as being in the service of Pakistan.
    • (b) Holding a position connected to the affairs of the Federation or a Province, with duties aligning with the Federation’s affairs.
    • (c) Terms and conditions of service being governed by statutory regulations, as in the case of the State Bank of Pakistan Act, 1956.
  • Other Legal Provisions Analogous to Section 2-A:
    • The Supreme Court did not invalidate analogous legal provisions such as Section 17(1-B) of the West Pakistan Water and Power Development Authority Act, 1958, or Section 3-E of the Sindh Service Tribunal Act, 1973. This raises questions about the consistency in the application of legal principles across similar statutory provisions.
  • Implications of the Removal from Service (Special Powers) Ordinance, 2000:
    • The non-obstante clause in Section 11 of the Ordinance, which states its precedence over the Civil Servants Act, 1973, and other laws, suggests a higher legal standing for the Ordinance. Sections 11 and 12 of the Ordinance emphasize its overriding effect on disciplinary proceedings, potentially impacting the maintainability of appeals in the Service Tribunal under different legal frameworks.
  • Inconsistencies in Treatment of Different Employee Groups:
    • There appears to be a discrepancy in the treatment of employees from bodies like WAPDA and other statutory corporations. If employees of WAPDA and Sindh corporations continue to be considered ‘deemed civil servants’ under existing laws, this could lead to an inequitable and potentially unjust legal landscape.
  • Legal Status of WAPDA Employees:
    • The terms and conditions for WAPDA employees, not entirely determined by Federal Legislation, raise questions about their status as civil servants. The Efficiency and Discipline Rules of WAPDA were not established by an Act of Parliament but by WAPDA itself, which might not align with the reasoning used by the Supreme Court in declaring Section 2-A ultra vires.
  • Consequences of Legal Parity in Provisions:
    • Sections 17(1-B) of the West Pakistan Water and Power Development Authority Act, 1958, and 3-E of the Sindh Service Tribunals Act, 1973, both contain ‘deeming clauses’ similar to Section 2-A of the STA, 1973. Their continued validity post the Supreme Court’s judgment on Section 2-A necessitates a re-examination of their constitutional standing and implications for employees under these statutes.

Remedial Options Post Judgment:

  • Alternatives for ‘Workmen’:
    • Employees classified as ‘workmen’ have the option to file grievance petitions before Labour Courts. However, this alternative does not extend to officers and supervisory staff whose service terms are not governed by statutory rules.
  • Pre-1997 Remedies for Non-‘Workmen’:
    • For employees not covered under the ‘workman’ definition, the Supreme Court has indicated that remedies available prior to June 10, 1997, should be pursued, which primarily included suits for damages.
  • Master and Servant Principle:
    • Historically, where employment wasn’t governed by statutory rules, the master and servant principle applied, limiting the employee’s remedy to damages for wrongful dismissal. This principle has been subject to scrutiny and evolution, particularly in light of Supreme Court rulings emphasizing the applicability of natural justice principles.
  • Relevance of the Master and Servant Principle:
    • The judgment’s affirmation of the second part of Section 2-A, recognizing certain employees as being in the service of Pakistan, may diminish the applicability of the master and servant principle. It raises questions about whether this principle can still be invoked by employers against non-statutory employees.
  • Case Law Against the Master and Servant Principle:
    • There is significant case law indicating a shift away from the traditional master and servant approach, favoring a more equitable and just treatment of employees, irrespective of the statutory nature of their roles.

Constitutional Jurisdiction of the High Court vs. Powers of the Service Tribunal:

  • Efficacy of High Court’s Constitutional Jurisdiction:
    • The High Court, in its constitutional jurisdiction, typically addresses jurisdictional defects and violations of law or statutory rules. It generally avoids delving into detailed factual inquiries, which are better suited for a trial court or tribunal setting.
  • Scope of the Service Tribunal:
    • The Service Tribunal, with its broad jurisdiction over both legal and factual matters, can address violations of rules, regulations, and even non-statutory policies. It has the authority to modify or set aside departmental orders, often exercising discretion in the imposition of penalties.
  • Supreme Court’s Stance on Tribunal’s Discretion:
    • The Supreme Court generally does not interfere with the Tribunal’s discretion unless it finds the exercise of such discretion arbitrary or lacking reasonable basis.
  • Limitations of High Court’s Jurisdiction:
    • The High Court’s jurisdiction is more restrained. It does not normally substitute a harsh penalty with a lenient one and exercises its extraordinary jurisdiction primarily to address blatant legal violations or jurisdictional overreach.

Recent Judicial Interpretations and Applications:

  • Invalid Disposal of Appeals by the Service Tribunal:
    • In a notable case, the Supreme Court held that the disposal of appeals by the Service Tribunal through mere administrative notices issued by the Registrar was invalid. The Court emphasized the need for separate judicial orders in each case, providing parties the opportunity to present their arguments, in line with the Supreme Court’s directives.
  • Scope and Impact of Abatement:
    • The application of abatement, as clarified in the case of Muhammad Mubeen-us-Salam, was specifically related to proceedings pending before the Supreme Court. Cases not challenged before the Supreme Court and thereby attaining finality were not impacted. However, the judgment led to the abatement of proceedings initiated before the Service Tribunal where the services of an employee were not governed by statutory rules.
  • Implementation of Service Tribunal Judgments:
    • In cases where Service Tribunal judgments were implemented, such as in the State Life Insurance Corporation case, the High Court directed compliance with these decisions, contradicting the broader abatement principles.
  • Application of the Doctrine of de facto:
    • In instances where actions of public functionaries were challenged for legal infirmities, the doctrine of de facto was applied, protecting bona fide actions taken in the ordinary discharge of duties. Such cases were treated as past and closed transactions and not subject to reversal based on subsequent legal interpretations.
  • Removal from Service (Special Powers) Ordinance, 2000 and Its Implications:
    • The Ordinance created a different category of employees removed under special provisions, distinct from those covered under Section 2-A of the STA, 1973. The Supreme Court’s decision to declare Section 2-A partially ultra vires necessitated a differentiation between employees governed by statutory rules and those governed by internal or contractual regulations.
  • Jurisdictional Challenges and Conflicting Views:
    • Various cases presented conflicting views on the jurisdictional reach of the Service Tribunal post the Supreme Court’s judgment. These included disputes over the Tribunal’s authority to hear appeals under the Removal from Service (Special Powers) Ordinance, 2000, and the applicability of the master and servant principle.

Assessment of the Service Tribunals Act, 1973, in Light of Article 212(1)(a) of the Constitution:

  • Legislative Scope vs. Constitutional Mandate:
    • The Service Tribunals Act, 1973, appears to have extended beyond the mandate provided by Article 212(1)(a) of the Constitution, which refers to persons in the service of Pakistan, not specifically to ‘civil servants’. This divergence raises questions about the Act’s overall constitutionality.
  • Distinction between ‘Service of Pakistan’ and ‘Civil Servants’:
    • The terms ‘Service of Pakistan’ and ‘civil servants’ are not synonymous, with the former having a broader scope as defined in Article 260 of the Constitution. This distinction implies that the Service Tribunals Act, 1973, may have inadvertently narrowed its scope, potentially leading to constitutional challenges.
  • Ambassadorial Positions and Service of Pakistan:
    • The role of an Ambassador, as a position connected with the affairs of the Federation, falls under the broader definition of ‘Service of Pakistan’, demonstrating the expansive nature of this term beyond the confines of the Civil Servants Act.

Obligations and Responses to Changed Circumstances:

  • Role of the Bar and Legal Community:
    • The legal community is tasked with interpreting the Supreme Court’s judgment, particularly in understanding its social implications and potential impacts on employees of statutory bodies and corporations.
  • Legislative Action Needed:
    • The legislature is urged to address the defects identified by the Supreme Court in Section 2-A of the Service Tribunals Act, 1973. This includes potentially amending relevant constitutional articles and statutory provisions to ensure uniform judicial remedies for employees of statutory bodies and corporations.
  • Protection from the Master & Servant Law:
    • Legislative amendments are vital to shield employees from the outdated and inequitable principles of the Master & Servant law, promoting a more modern and fair employment jurisprudence.
  • Proposed Amendments and Reforms:
    • Suggested legislative reforms include amending Articles 212, 240, and 260 of the Constitution to explicitly include service in corporations controlled by the Federal Government as part of the ‘Service of Pakistan’. Corresponding amendments to the Civil Servants Act and the Service Tribunals Act are also recommended.
  • Learning from International Precedents:
    • The Indian Constitution’s Article 323-A serves as a model, demonstrating foresight in establishing administrative tribunals for a broad range of public services and posts, including those in corporations controlled by the government. This model could inform similar reforms in Pakistan.

Conclusions 

(1)The constitutional validity of the Service Tribunals Act, 1973, in its current form, appears to be in question, given its narrower focus compared to the broader mandate of Article 212(1)(a) of the Constitution. This situation calls for a concerted response from both the legal community and the legislature to rectify legislative oversights and ensure that the Act aligns with constitutional provisions. Such reforms are crucial for upholding the principles of justice and fairness in the realm of public service employment, thereby strengthening the legal framework governing employment disputes in Pakistan.

(2) The interpretation and application of the Supreme Court’s judgment on Section 2-A of the STA, 1973, have led to a diverse array of judicial decisions. These decisions reflect the complex and evolving nature of employment law, particularly concerning employees of statutory bodies and corporations. The courts have grappled with issues such as the validity of administrative actions by tribunals, the scope of abatement, and the distinction between statutory and non-statutory employees.

(3) The cases underscore the need for clarity and consistency in the application of legal principles governing employment disputes. They also highlight the importance of considering the unique circumstances of each case, especially when dealing with employees whose service terms are not explicitly governed by statutory rules. As the legal landscape continues to evolve, it is crucial for employees, employers, and legal practitioners to stay abreast of these developments to navigate effectively the complexities of employment law in Pakistan.

(4) The aftermath of the Supreme Court’s judgment on Section 2-A of the STA, 1973, necessitates a nuanced understanding of the available remedies for employees of statutory bodies and corporations. For non-‘workmen’, the legal landscape is complex, with the traditional master and servant principle being increasingly challenged in favor of more equitable treatment under natural justice and constitutional principles.

(5) The distinction between the roles and limitations of the High Court and the Service Tribunal is critical. While the High Court is more suited for addressing clear-cut legal violations and jurisdictional matters, the Service Tribunal is equipped to handle a broader range of issues, including factual disputes and discretionary matters related to employment grievances.

(6) In light of these developments, it is imperative for employees of statutory bodies and corporations, especially those not covered by statutory rules, to seek legal guidance to navigate the post-judgment landscape effectively. This guidance should be aligned with the evolving jurisprudence that increasingly emphasizes fairness, natural justice, and the dignity of employees in the workplace.

(7) The analysis of the Supreme Court’s judgment concerning Section 2-A of the STA, 1973, and its application by the Service Tribunal reveals a complex legal landscape. This complexity is further compounded by the existence of similar legal provisions in other statutes, which have not been subject to the same judicial scrutiny. A harmonized approach to these legal provisions is necessary to ensure equity and consistency in the treatment of employees across different statutory bodies and corporations. Further judicial clarification and legislative action may be required to resolve these discrepancies and ensure a fair and consistent application of the law for all employees in similar circumstances.

(8) The Supreme Court’s judgment in relation to Section 2-A of the STA, 1973, necessitates a nuanced and careful interpretation by the Service Tribunal. This involves distinguishing between employees whose service terms are statutorily governed and those who are not, to ensure that justice is administered appropriately and in accordance with the constitutional framework. The Tribunal’s approach in handling these cases must reflect this legal complexity and adhere to the principles laid down by the Supreme Court.

(9)This judgment profoundly impacts the legal landscape regarding the adjudication of service-related disputes, particularly for employees of federal statutory bodies and corporations. It delineates the constitutional boundaries within which legislative enactments like the STA must operate, ensuring alignment with the broader constitutional framework. Additionally, it highlights the necessity for legislative clarity and precision, especially when statutes affect the fundamental employment rights of various categories of workers. The decision underscores the need for a balanced and constitutionally coherent approach in addressing the complexities of administrative and employment law in Pakistan.

(10)The evolution of Section 2-A within the Service Tribunals Act, 1973, and its subsequent judicial interpretation, signify a dynamic interaction between legislative action and judicial oversight in Pakistan. The ongoing debates and legal interpretations surrounding this section reflect the complexities involved in creating equitable and efficient mechanisms for addressing employment disputes in diverse administrative settings. As the legal community continues to grapple with these issues, the evolving jurisprudence will undoubtedly shape the landscape of employment law and administrative justice in Pakistan.

By The Josh and Mak Team

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