SHER KHAN vs UNITED BANK LTD. & others
These petitions were filed against the judgments of the Federal Service Tribunal regarding its jurisdiction over service appeals of employees of privatized banking institutions, specifically United Bank Limited and Habib Bank Limited. The core legal question before the Supreme Court was whether the Federal Service Tribunal retained jurisdiction to adjudicate pending service appeals of employees following the privatization of these banks, and the effect of prior conflicting precedents on the matter. The Supreme Court granted leave to appeal to examine the respective contentions of the parties concerning jurisdiction and whether certain prior judgments were rendered per incuriam due to the omission of earlier binding authorities and statutory provisions. The key principle laid down is that leave to appeal is granted when substantial questions regarding conflicting precedents, the binding nature of prior judgments, and the jurisdictional competence of the Service Tribunal post-privatization require authoritative determination by the apex court.
- Does the Federal Service Tribunal retain jurisdiction to hear pending service appeals of employees after the privatization of United Bank Limited or Habib Bank Limited?
- What is the effect of Sections 28, 31, and 42 of the Privatization Commission Ordinance 2000 on pending cases before the Federal Service Tribunal?
- Whether a judgment passed by a court is considered per incuriam if it overlooks an earlier inconsistent decision?
- Section 28, Privatization Commission Ordinance 2000
- Section 31, Privatization Commission Ordinance 2000
- Section 42, Privatization Commission Ordinance 2000
- Section 2-A, Service Tribunals Act 1973
ORDER
Iftikhar Muhammad Chaudhry, C.J.--Listed petitions have been filed against the judgment dated 13.4.2004 & 15.7.2005 passed by Federal Service Tribunal, Karachi in Appeal No, 154 (K)/98 & Appeal No, 926(K) CE/2004.
2. Precisely stating facts of the case are that Sher Khan instituted on appeal in Service Tribunal, Islamabad, challenging the order of respondent dated 28th November 1997, dismissing him from service. It so happened that during pendency of appeal on account of process of privatization of the United Bank Ltd., Federal Service Tribunal declined to exercise the jurisdiction. Relevant paras from CP 560-1(104 are reproduced herein below:-- "5. It has been now conclusively held that after the Privatization of the United Bank Limited. FST has lost its jurisdiction and in the light of provisions of Section 28 and 31 of the Privatization Commission Ordinance of 2000 all the pending cases shall now came within the ambit of the jurisdiction of the Hon'ble High Court. Section 42 of the said Ordinance also provides that the provisions of Privatization Ordinance shall have effect of over riding all other laws.
6. In view of the above facts the appeals stands abated. Appellants may agitate their grievances before the proper legal forum. These appeals are, disposed of accordingly."
Similarly in the' connected case CP No, 602-K/2005 the Tribunal exercised its jurisdiction despite the process of privatization of HBL. Relevant para therefrom is reproduced herein below: "For our purpose, relying on the judgment in the above cases against UBL, which is a judgment in rem, constituting the precedence for the like cases, we hold that the Tribunal has jurisdiction to hear the cases of .HBL pending before the Tribunal prior to the privatization of HBL. As such, we allow the request of the Appellant for fixation of his appeal regular hearing Issue, we allow the request of the Appellant for fixation of his appeal regular hearing. Issue Notice to the parties for regular hearing Adjourned to 15.11.2005."
3. Learned counsel for the petitioner contended that in view of the judgment in the case of Manzoor Ali & 39 others v. United Bank Limited through President (2005 SCM R 1785) the Service Tribunal would continue to exercise its jurisdiction. He also stated that the view expressed in this judgment has been re-affirmed in another judgment announced on 12th May, 2005 in Muhammad Yousaf Qureshi & others v. M/s. United Bank etc. (CAs No, 99, 108, 111 & 114 of 2004 a/w CPs 571-L, 1057-L, 1061- L & 1064L/2004).
4. On the other hand learned counsel contended that in the above noted cases, the effect of the earlier judgments in CP No, 247-L/98 and CPs No, 2767-4 3030-L/2000, 157-L & 235 of 2001, wherein it has been held that after the privatization, the Tribunal would have no jurisdiction to decide the cases of the employees whose cases are covered by Section 2-A of the Service Tribunals Act 1973, was not considered.
5. Mr. Shahid Hussain Bajwa, learned counsel for HBL contended that in the matters where there is equal number of the Judges and earlier judgment has not been 'considered, the later judgment would be considered to have passed incuriam. He made reference to the following para from Salmond of Jurisprudence. Inconsistency with earlier decision of higher Court. It is clear law that a precedent loses its binding force if the Court that decided it overlooked an - inconsistent decision of a higher Court. If, for example, the Court of appeal decides a case in ignorancy of a decision of the House of Lords which went the other way, the decision of the House of Lords which went the other way, the decision of the Court of Appeal is per incuriam, and is not binding either on itself (r) or on lower Courts (s); on the contrary, it is the decision of the. House of Lords that is binding. The same rule applies to precedents in other Courts, such as the Divisional Court (t).
6. After having heard the learned counsel for the parties and noticing the above judgments leave to appeal is granted to examine respective contentions of parties counsel.
7. Office to prepare the appeal on the present record with liberty to the parties to file additional documents, if need be.