Research Note for BISP

2016 S C M R 2146

Art. 199---Non-statutory service regulations/rules---Constitutional petition before the High

Court---Maintainability---Aggrieved person could invoke the constitutional jurisdiction of the
High Court against a public authority if he satisfied that the act of the authority was violative
of the service regulations even if they were non-statutory.

P L D 2016 Supreme Court 377

Present: Anwar Zaheer Jamali, C.J., Ejaz Afzal Khan and Mushir Alam, JJ

----Ss. 7, 9 & 15---Rules framed under Ss.7, 9 & 15 of National Command Authority Act,
2010---Said Rules were statutory in nature on all accounts and by every attribute---Said Rules
had not been framed with the intervention and approval of the Federal Government, but that
would not prevent them from being statutory---Rules framed under Ss.7, 9 & 15 of the
National Command Authority Act, 2010 were not only broader in their area of efficacy but
were also complementary to the parent statute in matters of crucial importance.

2017 P L C (C.S.) 453 [Lahore High Court]

Before Shahid Karim and Jawad Hassan,

Facts:

Brief facts for the disposal of instant Intra Court Appeals filed under section 3 of Law
Reforms Ordinance, 1972 are that the Respondents/Petitioners are retired officials/officers of
Appellant/ Respondent which was constituted under the National Bank of Pakistan
Ordinance, 1949 and was governed by the NBP Employees Pension Provident and Guarantee
Rules, 1958 and the National Bank of Pakistan (Staff) Service Rules, 1973 made thereunder,
duly approved by the Federal Government of Pakistan. During their service with the NBP, the
Federal Government launched a new pension scheme which was circulated by NBP vide
Instruction Circular No.228(C) dated 26.12.1977. As per Clause 4(b) of the said Circular, the
pension of the retired employees of NBP was to be enhanced at the rate of 70% of average
emoluments on completion of 30 years qualifying service. The Respondents/Petitioners opted
for the aforesaid Scheme. In para-10 of the aforesaid Scheme it was further mentioned that
any change or revision in rates/scales of pension or gratuity that may thereafter be made by
the Federal Government shall also apply to the officers/ executives of the Bank. In the year
1999, the Management of the NBP issued another Instruction Circular No.37/1999 dated
16.06.1999, whereby the pension was reduced to almost 33% as against 70% and basic pay
was increased, which was assailed in the Constitutional Petitions, which ultimately were
allowed through the Impugned Judgment. Hence, this Intra Court Appeal

(f)

----Cl. 4(b)---National Bank of Pakistan, Instruction Circular No.37/1999 dated 16-06-

1999---Banks (Nationalization) Act (XIX of 1974), S.20---Government of Pakistan, Finance
Division (Internal Finance Wing), letter No.17(9)-IF.XI/77 dated 31-11-1977---Retired
officials of National Bank of Pakistan---Pensionary benefits---Non-statutory rules or mere
instructions issued by the Board of the National Bank of Pakistan ('the Bank') could not
repeal, rescind or displace statutory rules relating to pension of employees of the Bank---Only
the Government had powers to fix an amount of pension, increase the same, bring about
changes therein from time to time and prescribe method for its calculation in absence of any
bar or restriction---National Bank of Pakistan, Instruction Circular No.228(C) dated 26-12-
1977 ('1977 Circular') was based on the Government of Pakistan, Finance Division (Internal
Finance Wing), letter No.17(9)-IF.XI/77 dated 31-11-1977 (`1977 Notification')---Both the
'1997 Circular' and the '1997 Notification' were statutory in nature, and were commitments
made on behalf of the Federal Government---National Bank of Pakistan, Instruction Circular
No.37/1999 dated 16-06-1999 (`1999 Circular'), which reduced pension of respondents, had
been issued by the Board of the Bank pursuant to its authority in the nature of management/
superintendence of the affairs of the Bank and/or the policy making power, thus, it did not
enjoy the status of a statutory instrument---Said Circular had not been composed/enforced
with the prior approval of the Government---Board of the Bank in the garb of its general
empowerment of policy making, superintendence and managing affairs of business could not
rescind, replace, substitute and/or vitiate statutory instruments i.e. the `1977 Circular' and the
'1977 Notification'---Terms and conditions of pension of respondents were governed by the
'1977 Notification' and the '1977 Circular'---Appeals were dismissed accordingly.

P L D 2006 Supreme Court 602

Present: Iftikhar Muhammad Chaudhry, C. J., Rana Bhagwandas, Javed Iqbal, Abdul
Hameed Dogar, Faqir Muhammad Khokhar, Mian Shakirullah Jan, M. Javed Buttar,
Tassaduq Hussain Jillani and Syed Jamshed Ali, JJ

(s)

…Only those persons who are covered within the definition of "Service of Pakistan" in terms
of Art.212(1)(a) of the Constitution, can invoke the jurisdiction of Service Tribunal,
otherwise when the Constitution framers have used the expression "Service of any statutory
body or anybody, owned and controlled by the Government or in which the Government has
controlling share and interest" along with the expression "Service of Pakistan" may have used
it---Such distinction is presumed to be in the knowledge of the framers of the Constitution…

……remedy about any of their grievance regarding conditions service was before High
Court…….

2012 PLC (CS) 359 ISLAMABAD

S.2---Service Tribunals Act, (LXX of 1973), S.2-A---Hydrocarbon Development Institute of

Pakistan Act, (I of 2006), Ss.20 & 21---Hydrocarbon Development Institute of Pakistan
Service and Financial rules, 2009, R.13.1---Constitution of Pakistan, Art.199---"Civil
servant"---definition ---Scope---Petitioner was not civil servant under the Civil Servants Act,
1973 but the rules governing his services were statutory, so only remedy available to him was
to file constitutional petition.

 Departmental inquiry is a necessary condition and dispensation therewith cannot

be made as in the first place

2011 S C M R 1

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Raja Fayyaz Ahmad and Ch. Ijaz
Ahmed, JJ

….Every citizen has inalienable right to be treated in accordance with law as envisaged by
Art. 4 of the Constitution---Public functionaries are obliged to act within four corners of
mandate of Constitution and Law---Even Chief Executive of Country is not above the
Constitution and is bound to obey command of Constitution as envisaged under Art.5(2) of
the Constitution.

2009 S C M R 339

Present: Saiyed Saeed Ashhad and Sheikh Hakim Ali, JJ

(b)

…..Where the allegations/charges/misconduct is of the nature requiring production of

evidence to prove the same, then holding of a departmental inquiry is a necessary condition
and dispensation therewith cannot be made as in the first place, there would be no evidence
or material in possession of the department to establish and prove the charges/allegations of
fact and secondly, that the civil servant proceeded against would be deprived of his right to
defend himself properly as it would not be possible for him to cross-examine the witnesses,
who would depose against him and from their cross-examination, he could not elicit
favourable and beneficial statements.

(c)

----When initial order or act relating of initiation of proceedings was contrary to law and
illegal, then all subsequent proceedings and actions taken thereon would have no basis and
would fall.

At para No.2

In other words initiation of the proceedings against the petitioners was based on illegalities as
the observation of doing away with the inquiry was contrary to the pronouncement made by
this Court in. a large number of cases that where the allegation/charge/misconduct is of the
nature requiring production of evidence to prove the same then holding of a departmental
inquiry is a necessary condition and dispensation thereof cannot be made as in the first place
there would be no evidence or material in possession of the department to establish and prove
the charge/allegation of fact and, secondly that the civil servant proceeded against would be
deprived of his right to defend himself properly as it would not be possible for him to cross-
examine the witnesses who would depose against him and from their cross-examination he
could elicit favourable and beneficial statements. It is a settled principle of law that when the
initial order or the very act which relates to the initiation of a proceeding is contrary to law
and illegal then all subsequent proceedings and actions taken on the basis of such illegal and
unlawful action would have no basis and would fall. If any authority is required in support of
the above the same is available from the case of Mansab Ali v. Amir and 3 others PLD 1971
SC 124. It is also surprising that the Tribunal while hearing the appeals of the petitioner got
involved and entangled itself in technicalities without taking into consideration the above
illegalities. There is no doubt that the petitioners did not assail their orders of dismissal by
filing the departmental appeals and instead they submitted legal notices through their
advocates which could not be equated or treated as appeal under the Removal from Service
(Special. Powers) Ordinance, 2000 but completely ignored the illegalities and shortcoming
committed by the Railway Authorities and on the basis of the failure of the petitioners to
comply with the provisions of law penalized them while completely ignoring and overlooking
the respondent/Railway Department's illegal, unlawful actions, and contravention of law
which resulted in illegal dismissal of the petitioners.

At para No.3

In view of the above there is no doubt that entire process initiated by the Department against
the petitioners for their dismissal/removal from service smacks of mala fides and animosity
besides lacking legal sanctions.

2007 S C M R 229

At para No.3

In the presence of express and specific language employed in the Ordinance neither the
departmental authorities nor the Tribunal bothered to notice that after the date of
promulgation of the Ordinance all disciplinary proceedings should have been initiated under
Ordinance rather than the old Rules enforced in 1973. This Court has already ruled in a
number of judgments that this Ordinance has the overriding effect over all other laws on the
subject except in case of proceedings, which were already pending before promulgation of
the Ordinance. Since the impugned action was initiated and taken to its logical conclusion
under a misconception of law and under a wrong law, it has vitiated the entire proceedings,
including the final order, which cannot be sustained under the law. The proceedings as well
as final order is, therefore, liable to be set aside.

At para No.4

4. Accordingly after converting this petition into appeal, we set aside the same as well as the
impugned judgment of the Tribunal. The department would be at liberty to initiate fresh
proceedings against the petitioner and finalize it within three months from today. The
petitioner is reinstated into service. However, the question of award of back benefits to him
would certainly depend on the outcome of fresh enquiry, if any, as above:

2017 PLC 233 LAHORE-HIGH-COURT-LAHORE

Government servant could not be awarded major penalty without holding regular inquiry but
in exceptional circumstances competent authority could pass penal order on the basis of
proceedings conducted while dispensing with regular inquiry ---Misappropriation had not
been denied by the employee rather his stance was that same was committed by another
person---No exception could be taken against the order passed by the competent authority on
the ground that employee was proceeded against without holding regular inquiry ---Impugned
judgments passed by the Courts below were set aside---Constitutional petition was allowed in
circumstances.

Submitted by:

Atif Waheed

Advocate