MUHAMMAD AMIN and another vs GOVERNMENT OF PUNJAB and others

' AMIR HANI MUSLIM, J.---These Petitions for leave to appeal are directed against a consolidated judgment passed by the Lahore High Court, Lahore, whereby Intra Court Appeals filed by the petitioners were dismissed.

2. The petitioners while working on different posts in the Market Committee, Sialkot, were proceeded against departmentally under the provisions of PEEDA Act, 2006. Inquiry Officer was appointed to probe into the allegations against the petitioners who recommended imposition of major penalty of compulsory retirement from service or forfeiture of past service for a period of five years upon petitioner Muhammad Amin (in Civil Petition No,667-L of 2013), whereas Muhammad Ilyas, petitioner (in Civil Petition No,702-L of 2013) was recommended the penalty of removal from service. Show-Cause Notices were issued to the petitioners with opportunity of personal hearing.

The petitioner Muhammad Ilyas was imposed major penalty of removal from service along with recovery of loss caused to the Market Committee amounting to Rs,68,387 while major penalty of dismissal from service was imposed upon petitioner Muhammad Amin. Both the petitioners filed.

Departmental Appeals against their departmental penalties. The Appeal of Muhammad Ilyas was rejected vide order dated 15-10-2012 whereas the penalty of dismissal from service imposed upon petitioner Muhammad Amin was converted into compulsory retirement vide order dated 14-12- 2012. Both the petitioners filed Writ Petitions before the High Court, challenging the orders of the departmental authorities, which were dismissed, by a learned Judge (in Chambers), against which they filed Intra Court Appeals, which also met with the same fate vide impugned order. Hence these Petitions for leave to appeal.

3. The learned counsel for the petitioners has contended that the learned High Court fell in error in holding that by virtue of Rule 70(6) of the Punjab Agricultural Produce Markets (General) Rules, 1979 [hereinafter referred to as the Rules 1979] the services of the petitioners were governed by Punjab Employees Efficiency and Accountability Act, 2006 (hereinafter referred, to as the Act of 2006).

Therefore, the petitioners became civil servants and the High Court has no jurisdiction. He next contended that the learned Judge in Chambers and the Division Bench of the High Court has misinterpreted Sub-Rule 70(6) of the Rules, 1979 while passing the impugned judgment.

4. On the other hand, the learned Additional Advocate-General has supported the impugned judgment.

5. We have heard the learned Counsel for the petitioners as well as the learned Law Officer and perused the record. The petitioners were appointed in the Market Committee under section 16 of the Agricultural Produce Markets Ordinance, 1978. Pursuant to section 35 of the aforesaid Ordinance, the Competent Authority has framed Rules called as "the Punjab Agricultural Produce Markets (General) Rules, 1979". Sub-Rule (6) of Rule 70 of the Rules 1979 provides as under:- "In respect of service conditions including disciplinary matters and other matters ancillary thereto, the employees of the market committee shall be governed mutatis mutandis by the rules applicable, from time to time to the employees of the Punjab Government".

We may, however, observe that the Market Committees do not have any statutory service Rules to regulate terms and conditions of service of their employees.

6. Section 2(h)(i) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, provides that "employee" means a person (i) in the employment of a corporation, corporate body, autonomous body, authority, statutory body or any other organization or institution set up, established, owned, managed or controlled by the Government, by or under any law for the time being in force or a body or organization in which the Government has a controlling share or interest and includes the Chairman and the Chief Executive and the holder of any other office therein". This definition covers the petitioners who are employees, of the Market Committee, which does not have independent statutory service Rules.

7. Section 19 of the Act of 2006 which has been made applicable by virtue of section 2(h)(i) of the Act of 2006 read with section 35 of the Ordinance, regulates the services of the petitioners. Section 19 of the Act of 2006 which appears to have been amended subsequently clearly draws a line between the Civil Servants and the employees defined under section 2(h)(i) of the Act of 2006. The Civil Servants who are proceeded against under the provisions of the Act of 2006 have to approach the Punjab Services Tribunal against a final order passed by the Departmental Authorities. The other employees who are covered under section 2(h)(i) of the Act of 2006, if aggrieved by a final order passed by the Departmental Authorities under section 16 or 17 of the Act of 2006, can seek redressal of their grievances before the High Court.

8. These provisions are in line with the judgments of this Court reported as Muhammad Mubeen- us-Salam and others v. Federation of Pakistan (PLD 2006 SC 602), Pakistan Defence Officers Housing Authority v. Lt. Col. Syed Jawaid Ahmed (2013 SCM R 1707), Contempt Proceedings against Chief Secretary Sindh and others (2013 SCM R 1752). It appears that the subsequent amendment made in section 19 of the Act of 2006 has not been brought to the notice of the learned High Court which has resulted in reaching the erroneous conclusion.

9. We, therefore, in these proceedings clarify that the learned High Court has the jurisdiction under Article 199 of the Constitution to redress the grievance of the employees who are covered by definition of section 2(h)(i) of the Act, 2006 except those who are defined under section 2(b) of the Punjab Civil Servants Act, 1974.

10. We, for the aforesaid reasons, convert the Petitions into Appeals and allow them. The impugned order dated 19-3-2013 passed in Intra Court Appeals Nos.182 and 183 of 2013 as well as order dated 22-1-2013 passed in Writ Petitions Nos.31711 and 29312 of 2012 by the learned Judge in Chambers are set aside. The Writ Petitions of the petitioners shall be deemed to be pending before the High Court which shall be decided on merits after hearing the parties afresh.