2015 PLC(CS) 1149

GHULAM AULIA Versus FEDERATION OF PAKISTAN through Secretary

Citation2015 PLC(CS) 1149

CourtSindh High Court

Judge(s)Syed Hasan Azhar Rizvi and Aziz-ur-Rehman

AZIZ-UR-REHMAN, J.--- By means of this Constitutional Petition filed by the petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 on 23-4-2009, the petitioner is seeking the following reliefs:---

(a) Direct the respondents Nos.2 and 3 to implement the Judgment/decision rendered by the Federal Service Tribunal in Appeal No.771(K)/1998 allowing up-gradation to the petitioner from 16-2-1986 to the post of Junior Executive (BS-9) and subsequent move-over to BS-10 with effect from the date when the same fallen due to the petitioner,

(b) Direct the respondents Nos.2 and 3 to extend all the benefits accrued to the petitioner pursuant to his up-gradation and move-over from the date when the same fallen due to the petitioner till the services of the petitioner were dispensed with on 2-9-2001.

2. The facts in brief are that in the year, 1967 the petitioner was appointed as Typist in the respondent Corporation and was subsequently promoted as Senior Assistant on 16-2-1977. Subsequently, the petitioner was placed under suspension on 31-7-1983 on account of his involvement in a criminal case registered against the petitioner. Nevertheless, in the aforesaid criminal case, the petitioner was ultimately acquitted on 31st August, 1991, by the Court of Special Judge, Central Karachi. The respondents, upon acquittal of the petitioner, re-instated the petitioner in service vide Orders/Letter dated 28-10-1991.

3. Under the aforesaid Order/Letter dated 28-10-1991, it is important to mention, the petitioner was restored with all the benefits admissible to him and the period for which the petitioner remained under suspension was treated as a period on duty. Moreover, the petitioner was also allowed his withheld increments for the period of suspension. According to the petitioner stand, the petitioner was also entitled to 'ex-gratia' and 'Workers Participation Fund' for the intervening period and 'Children Education Allowance' for the remaining period ]from 28-10-1991 to 31-12-1992, but the same were not paid to him. Under such circumstances, the petitioner did compel to make representations to the authorities/respondents.

4. Per petitioner's stand, the petitioner was promoted by way of 'up-gradation' to the post of Junior Executive [BPS-9] with effect from 27-4-1995 vide order dated 24-5-1995. In the order of 24th May, 1995, the petitioner's name was mentioned at Serial No.18. Feeling aggrieved by the aforesaid Order of 24th May, 1995 to the extent of assigning the date of promotion from 27-4-1995, the petitioner, filed 'Departmental Appeal' before the respondent No.2, mainly on the ground that the promotion of the petitioner actually has fallen due to the petitioner w.e.f. 16-2-1986 i.e. after completion of 9 years service as Senior Assistant under Administrative Order No.5/1982, Para 24 (Career Planning) of Sub-Para (c) dated 18-4-1982. Therefore said 'Departmental Appeal' nonetheless, was rejected vide Order dated 27-5-1998 however, only after filing of C.P.No.D-1955 of 1997 before this Hon'ble Court for seeking direction to the respondents for deciding the fate of the petitioner's 'Departmental Appeal'. This Court while, disposing of the aforesaid C.P. No.D-1955 of 1997 vide order dated 30-4-1998, issued directions to the respondents for quick disposal of the petitioner's 'Departmental Appeal'. The 'Departmental Appeal' of the petitioner was thus decided as rejected on 27-5-1998.

5. The petitioner, thereafter approached the Federal Service Tribunal [In short FST] vide Appeal No.771(K)/1998 [Ghulam Aulia v. PNSC and another] for redressal of his grievances. The learned FST upon hearing of the parties was ultimately pleased to allow the appeal on 20-9-2004 with direction to the respondents to consider the 'move-over' of the petitioner to 'BPS-10' with effect from the date which fallen due to him. As far as the issue of 'up-gradation' to 'BPS-9' of the petitioner was concerned, the petitioner's Appeal No.771[K]/1998 to that extent was allowed w.e.f. 16-2-1986. The operative part of the FST judgment dated 20-9-2004 reads as under:---

The relief regarding claim of move-over to BPS-10 has not been contested by the respondents, either in their comments or during the course of arguments. This amounts to admission and as such, we allow the appeal as far as his up-gradation in BS-9 w.e.f. 16-2-1986 is concerned and direct the respondents to consider the appellant for move-over to BS-I0 with effect from the date it falls due to him. No order as to costs. [Underlining is ours].

6. Per petitioner's averments, the judgment dated 29th September, 2004 passed by the Federal Service Tribunal [FST] has not been complied with in its' letter and spirit and the benefits of 'up-gradation' and 'move-over' have also not been released to the petitioner. The petitioner under such scenario, went on approaching the respondents from time to time for extension of the benefits arising out of 'up-gradation' and 'move-over' from the due dates as per direction of the Federal Service Tribunal [FST], however, in return of the petitioner's request, except giving assurances by respondents, nothing concrete came into effect/materialized as averred by the petitioner in MoP.

7. The respondents since, were found reluctant to implement the judgment dated 20-9-2004 passed by the FST, the petitioner consequently filed Misc. Petition No.273/2004 in Appeal No.771[K] of 1998 but during the pendency of Misc. Petition No.273 of 2004 filed in Appeal No.771[K] of 1998, the same then was 'stood abated' by operation of law i.e. in view of the judgment dated 27-6-2006, passed by the honourable Supreme Court of Pakistan in the case of Muhammad Mubeen-us-Salam v. Federation of Pakistan and others [PLD 2006 SC 602]. The petitioner was also informed about the abatement of his Misc. Petition No.273 of 2004 filed in Appeal No.771[K] of 1998 by the Assistant Registrar of FST Karachi through his letter of 30th June, 2006.

8. The respondent viz. Pakistan National Shipping Corporation [In short PNSC], since has been established under Ordinance, No.XX of 1979, as such their Employees, per petitioner's version, are working under the control of respondent No.1, the Secretary, Ports and Shipping. In view of this position, the service of the petitioner amongst others is/was regulated by virtue of the provisions contained in the said Ordinance No.XX of 1979 as such the petitioner's Misc. Petition No.273 of 2004 filed in Appeal No.771[K] of 1998 and then pending with the FST thus should not have been abated. The petitioner, was thus compelled to file C.P.No.D-2221 of 2006 (Ghulam Aulia v. Federation of Pakistan and 3 others] before this Court, inter alia, for seeking declaration of the communication of Assistant Registrar, FST regarding abatement of Misc. Petition No.273 of 2004 filed by the petitioner in Appeal No.771[K]/1998 before the FST as being illegal and liable to be set aside. Besides, direction was also sought to the effect that Misc. Petition No.273 of 2004 before the FST, be deemed and treated as pending. In the 'alternative' direction was sought to the FST for implementation of its' decision/judgment dated 20-9-2004, passed in Appeal No.771[K]/1998 in its' letter and spirit.

9. The aforementioned petition bearing C.P.No.D-2221 of 2006 [Ghulam Aulia v. Federation of Pakistan and others], was while, pending adjudication before this Court, the honourable Supreme Court of Pakistan in Civil Petition No.722 of 2007 passed an order whereby the 'communication of abatement of the matters' before FST sent by the Assistant Registrar of the FST, was held as not a judicial order. In view such decision, the petitioner thereafter filed on 11-1-2008, an application under section 151, C.P.C. [C.M.A. No.267 of 2008] in C.P.No.D-2221 of 2006 (Ghulam Aulia v. Federation of Pakistan and others) with the prayer as under:---

"That after the decision taken by the honourable Supreme Court of Pakistan, the continuation of present petition will be of no avail and necessary orders to the effect that the matter of the petitioner is deemed to be pending with Federal Service Tribunal may kindly be passed. Affidavit in support is filed herewith."

10. On 16th January, 2008 when the above Constitutional Petition No.D-2221 of 2008 came-up before the Court then the Hon'ble Division Bench of this Hon'ble Court 'disposed of' the petition along with listed Application bearing C.M.A. No.267 of 2008, The order passed on 16th January, 2008 reads as follows:---

"16-1-2018

Mr. Muhammad Nawaz Shaikh, learned counsel for the petitioner, states that in view of the judgment passed by the Hon'ble Supreme Court in service matters, he does not press tis petition and seeks permission to avail the remedy available before the Federal Service Tribunal according to law. [Underlining is ours]

The petition is disposed of accordingly along with the listed application."

11. Pursuant to the 'disposal of' the aforesaid petition, the petitioner thereafter again, as per his own wish, approached the FST through filing Misc. Petition No.68 of 2008 on 24th January, 2008 in Appeal No.771[K] of 1998 for seeking judicial Order on the earlier Misc. Petition No.273 of 2004 filed in Appeal No.771[K] of 1998 by the petitioner for the 'implementation' of the judgment dated 20th September, 2004 of FST passed in Appeal No.771[K] of 1993 [Ghulam Aulia v. Pakistan National Shipping Corporation through its' Chairman and another]. Thereafter, the Misc. Petition No.68 of 2008 was taken up by FST and after hearing of the learned counsel for the parties at length, by a detailed and comprehensive 'judicial order' dated 2-4-2009, the same was 'disposed of and the order so passed was also communicated to the petitioner vide letter dated 11-4-2009. In terms of the aforesaid Order, the learned FST expressed its' inability to continue with the proceedings any further on the ground of 'abatement' of Appeal No.771[K] of 1998. The M.P. No.68 of 2008 thus filed by the petitioner for recalling of abatement order dated 30th June, 2006 and restoring of the Appeal No.771 [K] of 1998 to its' original position was also disposed of accordingly.

12. The petitioner feeling himself aggrieved once again approached this Court on the basis of same 'cause of action' by way of filing of the instant Petition bearing C.P.No.D-873 of 2007 on 23rd April, 2009 inter alia for seeking direction to the respondents for implementation of the judgment dated 20-9-2004 passed in Appeal No.771[K] of 1998 by FST. Needless to say, the services of the petitioner amongst other employees were dispensed with w.e.f. 2-8-2001 i.e. much prior to the judgment dated 20-9-2004 of the FST, vide Order/letter dated 2-8-2001 as such the petitioner as claimed is entitled to the benefits accrued to him till his service was dispensed with i.e. 2-8-2001.

13. Per petitioner's stand since, the judgments of the FST dated 20th September, 2004 has never been challenged before the Hon'ble Supreme Court of Pakistan as such upon attaining finality, needs to be implemented without further dragging the employees into litigation. In this regard reliance has been placed on Clause (b) of Para. 14 of judgment passed by Hon'ble Supreme Court of Pakistan in Civil Appeal No.1304 of 1999.

14. As stated above, the judgment of FST dated 20th September, 2004 has since attained finality, therefore, per contention of the petitioner, respondents are duty bound to implement the said judgment, of course, in its' letter and spirit whereby 'up-gradation' of the petitioner to 'BPS-9' was allowed and direction was also issued to respondent No.2 [PNSC] to consider the 'move-over' of the petitioner with effect from the date when it fell due to the petitioner. Since, the PNSC, per petitioner's stand, has failed to implement the judgment of FST dated 20-9-2004 in its' letter and spirit, hence this 3rd Petition on the subject was filed on 23-4-2009.

15. Upon service, very detailed and comprehensive 'comments' have been filed on behalf of respondents Nos.2 and 3, wherein inter alia the following Preliminary Legal Objections regarding maintainability of the petition have also been raised:---

"(A) That the judgment dated 20-9-2004 of learned FST in Appeal No.771(K)/1998 sought to be implemented has already been abated by a subsequent order dated 2-4-2009 passed by the FST. Since the said judgment has already been abated and the petitioner did not challenge the said abatement order dated 2-4-2009 in the honourable Supreme Court of Pakistan which is the only proper forum as such he cannot seek implementation of the judgment which does not hold the field and has already been abated by a judicial order passed by the FST.

(B) That the petitioner had earlier filed a C.P.No.D-2221 of 2006 on 25-9-2006 for the same relief which has been dismissed by this Court being not pressed by the petitioner vide order dated 16-1-2008. Hence the petitioner cannot file another constitutional petition in this Court for the same relief in respect of the same matter.

(C) That vide judgment dated 12-3-2007 passed by the honourable Larger Bench of this Court reported at 2007 PLC (C.S.) 1046 it has been held by the honourable Larger Bench that no directions for implementation of judgment of FST can be given and the petitions filed by various petitioners for the purpose of seeking directions for implementation of the judgment of FST have been dismissed. The said judgment has attained finality. The earlier Petition No.2221 of 2006 filed by the petitioner on 25-9-2006 in this Court is covered by the said judgment dated 12-3-2007 passed by the Larger Bench of this Court and the same is liable to be dismissed on this ground alone.

(D) That the above matter agitated by the petitioner at the relevant time was for his upgradation. However, the petitioner has already been retired from service of respondent PNSC w.e.f. 7-1-2002 and he has already received his all retirement benefits as full and final settlement as such the question of so called upgradation at this belated stage cannot be agitated by the petitioner when he has already been retired from service and is no more an employee of respondent PNSC.

(E) That the Pakistan National Shipping Corporation [Service] Regulations, 1984 are not statutory rules of service and as such the relationship between the petitioner and answering respondent is that of Master and Servant, hence the constitutional petition under Article 199 of the Constitution, 1973 in a service matter relating to terms and conditions of service/employment is not maintainable in law as held in the following cases of PNSC already decided by the honourable Supreme Court of Pakistan and by this Court:

(i) PLD 1974 SC 146 R.T.H. Janjua v. National Shipping Corporation;

(ii) 1988 PLC (C.S.) 705 Muhammad Mumtaz Javed v. Pakistan through Secretary Ministry of Communications, Government of Pakistan and 2 others.

(F) That the constitutional petition filed by the petitioner involves disputed questions of facts and same is not maintainable in law."

16. The respondents Nos.2 and 3, without prejudice to the above Preliminary Legal Objections also submitted their 'para-wise' reply wherein the assertions/averments of the petitioner made in the Memo. of Petition [In short MoP] were not only denied para by para but also a prayer for dismissal of the instant Petition has been sought as being devoid of any merits.

17. According to respondents Nos.2 and 3, the petitioner was appointed in Ex-NSC [Now PNSC] some time in the year, 1967, as 'Typist' and thereafter in due course of time was upgraded/promoted as Assistant, Senior Assistant and Junior Executive w.e.f. 3-7-1973, 16-2-1977 and 24-4-1995 respectively. The petitioner, indeed, was suspended by the Management of PNSC [respondent No.2] i.e. for his involvement in a 'criminal case' having been lodged against him for demanding of illegal 'gratification' from 'Daily Wages Employees'. The petitioner, nonetheless, was later on acquitted by the Special Judge, Central Karachi, on 31-8-1997 and consequently, thereafter was reinstated in service along with benefits admissible to him vide order dated 28-10-1991. The petitioner after being reinstated in service moved an application to respondents Nos.2 and 3 regarding the payment of 'ex-gratia' and 'Children's Education Allowance' for the period from 28-10-1991 w.e.f. 31-12-1992. The said application was forwarded to the 'Accounts Department' for consideration and taking necessary action thereon as per law and laid down procedure. The petitioner, per respondents Nos.2 and 3 stand, however, failed to provide/submit any 'CERTIFICATE' from any recognized school/college/institution in support of his request made in the application. Resultantly, the same was rejected after being found meritless.

18 According to respondents Nos.2 and 3 stand, the name of the petitioner after petitioner's re-instatement in service was knowingly placed in a meeting of the 'Promotion Committee-II' for consideration of his 'promotion'. The committee after giving due consideration to the 'Employment Record' of the petitioner and keeping in view the 'Annual Confidential Reports' of the petitioner fairly decided to promote the petitioner to the post of 'Junior Executive BS-9', however, with effect from 27-4-1995 and not w.e.f. 16-2-1986. Such decision was taken in the light of the petitioner's ACRs wherein the case of the petitioner was not recommended by the head of his department for promotion. The 'up-gradation'/'promotion' of an employee, it is significant to note, is linked with 'seniority-cum-fitness' and 'good service record' of an employee. Such factors, indeed, are always considered at the time of promotion/up-gradation. Promotion/up-gradation of an employee is not a vested right rather always made purely on merits and strictly in accordance with law and rules.

19. The petitioner along with hundreds of other Employees of respondent Corporation [PNSC], as asserted, no doubt, in the first instance were sent on forced leave and thereafter, of course, their services were dispensed with in terms of PNSC Service Regulations, 1984 with all benefits w.e.f. 1-1-2001 and 2-8-2001 respectively. Upon feeling aggrieved, the matter was also agitated by the Employees before the learned FST. The learned FST passed a judgment, however, both the parties feeling aggrieved by the said judgment of learned FST, had challenged the same before the Hon'ble Supreme Court of Pakistan. Nonetheless, the judgment of learned FST was maintained. Meanwhile, the petitioner stood retired from service of PNSC w.e.f. 7-1-2002 i.e. on attaining the age of superannuation. The petitioner thereafter received all his 'Retirement Benefits' from respondent Corporation without any reservation and/or objection towards his full and final settlement of claims.

20. The matter now being agitated in the present petition regarding 'so-called 'promotion'/'up-gradation', per respondents Nos.2 and 3 version, besides being infructuous is not maintainable on various grounds inter alia being a matter of 'past' and 'closed' transaction'. Moreover, in view of an earlier judgment dated 27-1-2009 passed by this Court in C.P.-No.D-1947 of 2006, to which the petitioner was also party, the issue of 'payment'/'back benefits' was not only agitated but also decided by this Court as well as Hon'ble Supreme Court of Pakistan. The respondent Corporation [PNSC], consequently in compliance with the judgment of Hon'ble apex Court, paid further/more amounts to the petitioner amongst others. The petitioner herein viz. Ghulam Aulia was also paid an amount of Rs.72,000 [Rupees Seventy Two Thousand only] on 24-6-2010 vide Cheque No.FAF4875199 dated 18-6-2010 which was not only received by the petitioner 'without any protest' but also the same was encashed. The petitioner thereafter has not agitated any grievance and apparently found himself fully satisfied regarding the service benefits. In view of this position as well, per respondent [PNSC] contention, the instant Petition has become infructuous.

21. Even otherwise, the present Petition filed in the year, 2009, in view of the earlier Petition filed on 25-9-2006 i.e. C.P.No.D-2221 of 2006 [Ghulam Aulia v. Federation of Pakistan and 3 others] seems not only infructuous but also not maintainable in law. The judgment dated 20-9-2004 passed by FST in the petitioner's Appeal No.771[K] of 1998 has subsequently been declared as abated by the FST vide its' order dated 2-4-2009. The abatement Order of 2nd April, 2009 on account of its' not being challenged in the Hon'ble Supreme Court of Pakistan has attained finality as such the question of implementation of the FST's judgment dated 20th September, 2004 does not arise.

22. It is significant to note that the Order dated 2-4-2009 passed by the learned FST whereby the petitioner's Appeal No.771[K] of 1998 [Ghulam Aulia v. Federation of Pakistan and another] was declared as abated has never been challenged by the petitioner. The order passed by FST on Misc. Petition No.68 of 2008 [Filed in Appeal No.771[K] of 1998] whereunder not only Misc. Petition No.68 of 2008 was also found meritless but the Appeal No.771 [K] of 1998 was also declared as abated by FST has now attained finality. In view of this position, the question of implementation of any order/judgment in the aforesaid appeal, as prayed by the petitioner or otherwise, does not arise. Per respondents Nos.2 and 3 version, the judgment passed by the honourable Courts and relied upon by the petitioner's counsel is not applicable under the facts and circumstances of the present case rather to say is absolutely distinguishable. Respondents Nos.2 and 3 in view of the above legal position have consequently prayed for dismissal of the instant Petition with cost.

23 On 11th November, 2014 when the above Petition, came up before us for Katcha Peshi, then we heard Mr. Muhammad Arshad Khan Tanoli, learned counsel for the petitioner, Mr. Khalid Javed, learned counsel for respondents Nos.2 and 3 and Mr. Asif Hussain Mangi, learned Standing Counsel and with their valuable assistance also gone through the available record before us minutely.

24. Before proceeding further at this stage we would like to refer to the Order of 8th May, 2014 passed in the instant Petition which reads as follows:---

"8-5-2014

Mr. Muhammad Arshad Khan Tanoli, advocate for petitioner Mr. Khalid Javed, advocate for PNSC

Shaikh Liaquat Hussain, Standing Counsel

Though relief was granted to the petitioner in the year 2004 by the FST but meanwhile judgment in Mubin-ul-Islam's case was rendered by Hon'ble Supreme Court. Petitioner filed an application for implementation of FST's judgment which was abated under the order of Registrar. Same petitioner filed earlier C.P.No.D-2221 of 2006 in this Court and after announcement of judgment in Muhammad Idrees's case by Hon'ble Supreme Court reported in PLD 2007 SC 681, petition was withdrawn and petitioner again moved to the FST for passing order on Misc. Petition filed for implementation. However, the FST vide their order dated 2-4-2009, not only dismissed Misc. Petition but in the order it is also stated that Appeal No.771(K) of 1998 is abated. The FST also discussed the merits that service regulations of PNSC are not statutory in nature. After this order, we are of the tentative view that effect of 2004's judgment passed by the FST was nullified. Learned counsel for petitioner argued that this was an illegal order. After order of the FST passed on 2-4-2009, scenario was changed. Mr. Khalid Javed, learned counsel for respondents, submits that may be, FST passed a wrong order but for rectification or curing the defects, petitioner must have approached to the Hon'ble Supreme Court and keeping in view the bar contained in Article 212 of the Constitution, this petition is not maintainable. Learned counsel for petitioner requests for time to satisfy this Court. By consent, adjourned to 15-5-2014." [Underlining is ours]

25. On record, it is admitted position that Order passed by the learned FST on 2nd April, 2009, has not been challenged/assailed before the Hon'ble Supreme Court of Pakistan as such the aforesaid Order has attained finality. Nevertheless, Mr. Muhammad Arshad Khan Tanoli forcefully argued that the instant Petition bearing C.P. No.D-873 of 2009 [Ghulam Aulia v. Federation of Pakistan and others], is not only maintainable under the law but also deserves to be allowed as prayed. Per learned counsel, despite 'disposal' of the earlier Petition bearing C.P.No.D-2221 of 2006 [Ghulam Aulia v. Federation of Pakistan and others] by this Court the instant Petition is quite maintainable under law and deserves to be allowed.

26. Being relevant in this regard, the prayers sought in C.P.No.D-2221 of 2006 [Ghulam Aulia v. Federation of Pakistan and others] are reproduced as under:---

"(a) To declare that the communication sent by the respondent No.4 as to the abatement of the matter of the petitioner is illegal, against law ad liable to be set aside.

(b) To direct that the Miscellaneous Petition No.273 of 2004 filed in Appeal No.771[K] of 1998 cannot be abated and deemed to be pending with Federal Service Tribunal.

OR IN ALTERNATIVE

(d) To award any other relief which this honourable Court may deem fit, looking to the circumstances of the case."

Notwithstanding the aforesaid prayers sought in the earlier Petition, the instant Petition, per Mr. Arshad Khan Tanoli, is competent in law and not barred under Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973 or otherwise Mr. Arshad Khan Tanoli submitted in vehemence that order passed by Assistant Registrar of FST on 30th June, 2009 whereby Misc. Petition No.273 of 2004 in Appeal No.771[K] of 1998 was declared as abated w.e.f. 27th June, 2006 was in fact a 'Non-Judicial Order' as such was properly challenged in C.P. No.D-2221 of 2006 [Ghulam Aulia v. Federation of Pakistan and others].

27. The Order passed by the Assistant Registrar of FST on 30th June, 2006 reads as follows:---

"FEDERAL SERVICE TRIBUNAL

KARACHI

Karachi the 30th June, 2006

I have been directed to inform the litigants in their respective service matters, that pending cases or proceeding, which are not protected or covered by the judgment of the Apex Court dated 27-6-2006 in Civil Appeals Nos.792 to 816 of 2005 etc. shall stand abated and that they i.e. litigants have been mandated by the Apex Court to resort to the competent forums for redressal of their grievances within 90 days and the bar of limitation provided by the respective laws, shall not operate against them till the expiry of the stipulated period. Further, it may be noticed that as held in 1999 PLC (C.S.) 1316.

There cannot be two opinions with regard to settled legal proposition that where abatement of appeal/proceedings result as consequence of operations of law, such abatement becomes operative and de facto at once and there is no need or legal requirement for obtaining any formal order or declaration from the said forum or Court being seized of the matter and time wasted before other forums thereafter, cannot be availed of by the concerned party under the guise of "pursuing the matter before competent forum" as in fact after abatment of the proceedings such forum cannot be held to be competent or proper forum. The only conclusion pursuant to such discussion is that litigation before incompetent forum does not justify condonation of delay. We are fortified to hold so by relying upon the rules enunciated in the following case laws:

(1) PLD 1983 SC 385 (2) 1975 SCMR 259 (3) 1975 SCMR 333 (4) 1985 SCMR 890 (5) 1991 SCMR 1841 and (6) 1997 SCMR 1167.

You are nevertheless being informed that your cause Appeal No.M.P.No.273/004 . Stood abated w.e.f. 27th day of June, 2006. Appeal No.771(K)/98.

By Order

Sd/-

(...Channer)

Assistant Registrar"

28. Mr. Muhammad Arshad Khan Tanoli, learned counsel for the petitioner argued in vehemence that the aforesaid Order passed by Assistant Registrar of FST and later on as was held by Hon'ble Supreme Court of Pakistan in Judgment dated 19th September, 2007 [copy not placed on record] is/was not within the powers of the Assistant Registrar of FST to have passed such order. Per learned counsel, consequently, the Hon'ble Supreme Court of Pakistan held that appeals before FST ought to be deemed as pending before FST. If, it was so then question arises, why the petitioner filed M.P.No.68 of 2008 for recalling of 'abatement order' of 30th June, 2006 and restoration of Appeal No.771[K] of 1998 to its' original position.

29. Mr. Muhammad Arshad Khan Tanoli, learned counsel for the petitioner next argued that the earlier C.P. No.D-2221 of 2006 though filed against the Order of Assistant Registrar of FST passed on 30th June, 2006 but it was 'disposed of' as 'not pressed' vide Order dated 16th January, 2008. Order dated 6th January, 2008 passed in C.P.No.D-2221 of 2006 [Ghulam Aulia v. Federation of Pakistan and others] being relevant is reproduced as follows:---

"16-1-2008

The petition is disposed of accordingly along with the listed application."

30. Per learned counsel, thereafter, the present petitioner viz. Ghulam Aulia availed the remedy, per his wish before the FST by way of filing Misc. Petition No.68 of 2008 in Appeal No.771 [K] of 1998 for recalling of the abatement dated 30th June, 2006, passed by the Additional Registrar of FST and restoring of the Appeal No.771[K] of 1998 [Ghulam Aulia v. Federation of Pakistan and another], to its' 'original position'. Nonetheless, the same was 'disposed of' by a well speaking 'Judicial Order' of 2nd April, 2008 whereby the petitioner's Appeal No.771[K] of 1998 was also stand abated.

31. Against the aforesaid Judicial Order of 2nd April, 2008, where-under the petitioner's Appeal No.771[K] of 1998 [Ghulam Aulia v. Federation of Pakistan and another] was declared as abated, though no appeal was filed before the Hon'ble Supreme Court of Pakistan but per Mr. Arshad Khan Tanoli, still the present Constitutional Petition No.D-873 of 2008 is not only maintainable but also deserves to be granted 'as prayed' by this Court under exercise of its' Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

32. Mr. Arshad Khan Tanoli, learned counsel for the petitioner in support of his contention placed reliance on the judgment rendered by Hon'ble Supreme Court of Pakistan in Civil Appeal No.1304 of 1999. [See para 19 of MoP]. The relied and relevant part of the judgment i.e. Clause [b] of para 14 reads as follows:---

"(b) The judgments of the learned Federal Service Tribunal rendered on the basis of section 2-A of the Service Tribunals Act, 1973 which were never challenged before this Court have attained finality and shall be implemented by the concerned organizations without dragging the employees into further litigation."

33. Mr. Khalid Javed, learned counsel for the respondents Nos.2 and 3 on the other hand forcefully argued that the instant Petition besides misleading, misconceived is incompetent in law. Per learned counsel, the Pakistan National Corporation [Services] Regulations, 1984 have 'no statutory Rules' of service as such the relationship between the petitioner and PNSC is that of 'Master' and 'Servant' hence the Constitutional Petition in a service matter relating to the 'terms' and 'conditions' of employment is not maintainable as is the case in hand, and also there is no violation of any statutory rule or law. On this aspect of the matter reliance was placed on the case of Anisa Rehman v. PIAC and another [1994 SCMR 2232] wherein it was held as under:---

"7. From the above stated cases, it is evident that there is judicial consensus that the Maxim audi alteram partem is applicable to judicial as well as to non judicial proceedings. The above Maxim will be read into as a part of every statute if the right of hearing has not been expressly provided therein. In the present case respondent No. 1 in its comments to the writ petition (at page 41 of the paper book) admitted the fact that no show-cause notice was issued to the appellant nor she was heard before the impugned order dated 6th August, 1991 reverting her Grade VI from Grade VII was passed. In this view of the matter, there has been violation of the principles of natural justice. The above violation can be equated with the violation of a provision of law warranting pressing into service Constitutional jurisdiction under Article 199 of the Constitution, which the High Court failed to exercise. The fact that there are no statutory service rules in respondent No. 1 Corporation and its relationship with its employees is of that Master and Servant will not negate the application of the above Maxim audi alteram partem. The above view, which we are inclined to take is in consonance with the Islamic Injunctions as highlighted in the case of Pakistan and others v. Public-at-Large (supra), wherein, it has been held that before an order of retirement in respect of a civil servant or an employee of a statutory Corporation can be passed, he is entitled to be heard.

The effect of the application of the master and servant rule is that an employee of a Corporation in the absence of violation of law or any statutory rule cannot press into service Constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement to service, his remedy for wrongful dismissal is to claim damages."

14. Mr. Khalid Javed, learned counsel for the respondents Nos.2 and 3 vehemently argued that the petitioner's claim is based seemingly on the instructions, policies, circulars issued by PNSC and/or under PNSC [Services] Regulations, 1984 and/or admin orders having been issued by PNSC with the approval of its' Board of Directors [In short BoD] but nevertheless, the same are not 'statutory Rules' of the nature on the basis whereof the petitioner's case can be brought within the ambit of requisite qualifications for maintaining the Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The petitioner amongst other employees of PNSC viz-a-viz breach of such non-statutory Rules of Service/Regulations, if any, could not seek remedy regarding his/their grievances, if any, by way of filing the Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 as the relationship between the Corporation and its' employees is that of 'Master' and 'Servant' and nothing more. In view of this position, per Mr. Khalid Javed, the only remedy available to the petitioner was to sue for damages only.

35. While, elaborating his argument Mr. Khalid Javed, learned counsel for the respondents Nos.2 and 3 further submitted that the service Rules/Regulations of respondent No.2's Corporation [PNSC] on account of its' being 'non-statutory' be deemed as merged and became part of the contract of employment of the petitioner with the respondent No.2 Corporation. The employment of petitioner with PNSC since was purely contractual and as such is/was covered/governed by the principle of 'Master' and 'Servant'. The contractual 'terms' and 'conditions' of employment, needless to say, cannot be enforced through Constitutional Petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

36. Moreover, the instant Petition as 'framed' and 'filed' also suffers from laches. The in-ordinate delay in filing of the instant Petition has even not been explained by the petitioner. Besides, Mr. Khalid Javed argued that the instant Petition involves seriously disputed questions of facts which, indeed, cannot be resolved without recording elaborate evidence and such 'drill', of recording of evidence could be undertaken in the Constitutional Jurisdiction of this Court.

37. Apart from the above, Mr. Khalid Javed, learned counsel for the respondents Nos.2 and 3 argued that judgment of FST dated 20th September, 2004 passed in Appeal No.77I [K] of 1998 of which the implementation has been sought in the instant Petition has already been declared as 'abated' by a speaking 'Judicial Order' of FST passed on 2nd April, 2009. Against such Judicial Order of 2nd April, 2009 since, the petitioner has failed to challenge the same before the appropriate forum i.e. Hon'ble Supreme Court of Pakistan, as such, the same has already got finality. Per Mr. Khalid Javed, the judgment of FST passed on 20th September, 2004 does not hold the field, therefore, implementation of such abated judgment in the present Petition calls for the 'wisdom' of the petitioner.

38. Not only this, the earlier Constitutional Petition No.D-2221 of 2006 [Ghulam Aulia v. Federation of Pakistan and others] filed by the present petitioner for almost the same relief[s] has already been dismissed as 'withdrawn' by this Court on 25th September, 2006 without any permission for filing this fresh petition, on the same causes of action. In view of this position as well the instant Petition is not maintainable and straight away is liable to be dismissed with cost. Besides, as held by the Full Bench of this Court, no direction for implementation of the judgments of FST can be issued. According to Mr. Khalid Javed, various Constitutional Petitions earlier filed for seeking the same relief[s] have already been dismissed by Full Bench of this Court and such factum is also known to the petitioner.

39. The petitioner has already retired from the service of PNSC w.e.f. 7th January, 2002 and thereafter voluntarily has also received all his 'retirement benefits' without any 'hue' and 'cry'. In view of this position as well the issue of so-called 'up-gradation' cannot be agitated and/or granted as the petitioner is no more the employee of PNSC and the FST Judgment of 20th September, 2004 has also stand abated long ago.

40. Lastly, Mr. Khalid Javed, learned counsel for the respondents Nos.2 and 3 while placing reliance on the following case-laws also prayed for dismissal of the instant Petition with cost:---

(a) Muhammad Dawood v. Federation of Pakistan [2007 PLC (C.S) 1046].

(b) R.T.H. Janjua v. National Shipping Corporation [PLD 1974 SC 146].

(c) Muhammad Mumtaz Javed v. Pakistan through Secretary Ministry of Communications, Government of Pakistan and 2 others [1988 PLC (C.S) 705].

(d) Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others [PLD 2010 SC 676].

(e) Raziuddin v. Chairman PIAC [PLD 1992 SC 531].

(f) Muhammad Yusuf Shah v. Pakistan International Airlines Corporation [PLD 1981 SC 224].

(g) Pakistan International Airline Corporation v. Shahabuddin and others [1993 PLC (C.S.) 1].

(h) Pakistan Telecommunication Co. Limited v. Iqbal Nasir [PLD 2011 SC 132].

41. Before proceeding further, it would be appropriate to refer to and reproduce herein some of the relevant paragraphs from the Judicial Order dated 2nd April, 2008 which reads as follows:---

"5. In the first instant, we do not share the view that this Tribunal is not vested with powers to implement its own decisions. We would like to clear the confusion by reiterating that this issue was examined in quite detail in the judgment of this Tribunal dated 18-12-2007 in the case of Fl. Lt. Farrukh Rasheed v. Establishment Division, authored by the Chairman, wherein it has been held that the Tribunal possesses the powers to implement its decision. While reaching this conclusion, the Tribunal had examined cases reported in 2002 SCMR 1034, PLD 1996 SC (AJK) 29, 2003 PLC (C.S.) 1186, 1989 PLC (C.S.) 398, 1999 PLC (C.S.) 443, 2006 TD (Service) 63, PLD 2005 Karachi 316 and 2 other unreported cases.

6. Coming to the seminal issue about the status of the employees as civil servants is concerned, we need to measure this issue on the touchstone of the following yardsticks:---

(a) definition of a civil servant within the meaning of section 2(1)(b) of the Civil Servants Act, 1973.

(b) whether Service Rules of the Organization have been passed by the Act of the Parliament (Majlis-e-Shoora); and

(c) whether the appellant can be considered to be in the service of Pakistan as defined in Article-240 of the Constitution of Pakistan.

7. It is evident that the appellant does not come within parameters of section 2(I)(b) of the Civil Servants Act, 1973 since he is an employee of the PNSC and not the Federal Government i.e. the appointing authority in his case is not the Federal Government but the Corporation acting as an entity. In this connection, we would also like to cite the authority in Esta Code (2001 Edition) Chapter I-B-6 at Page 29 where it is stated:---

"Sl. No.13:

It has been held by the Cabinet Secretariat (Establishment Division) in consultation with the Ministry of Law that the employees of autonomous and semi-autonomous bodies, like the Port Trust, PIDC, Pakistan Council of Scientific and Industrial Research etc., except the Government servants who may be on deputation to those bodies cannot be regarded to be in the civil service of Pakistan, and, therefore, they do not come under the purview of the Government Servants' Conduct Rules."

8. The second yardstick is whether the service rules/regulations of the organization have the sanction of the Act of Parliament. The mere fact that the service rules/or regulations have been framed under a specific section of the Ordinance or Act under which the organization has been established/incorporated does not by itself lend such status to its service rules/or regulations. Also the mere factum that the service rules have been framed with the 'approval of the Federal Government" does not mean such rules are statutory in nature. In this context, it will be relevant to reproduce extract from order of this Tribunal in M.P. Nos.1827 to 1829 of 2006 in Appeals Nos.130 to 132 (P) CE/2006 filed by Mr. Muhammad Shakir and 2 others v. HBFC: ---

"5. We have perused the HBFC Act, 1952 and the HBVFC Employees Service Regulations, 1957. We find that these regulations have been framed by the Board of Directors of the Corporation in pursuance of the authority conferred upon it under clauses (i) and (ii) of subsection (2) of section 42 of the said Act. We find that statutory corporations like HBFC function in accordance with the law by which they have been created. The objects and the scope of their activities is also determined by the statute. The mere fact that such corporation has been empowered to frame service regulations for its employees does not imply that such regulations would be deemed to be legislation by the Federal Legislature. HBFC is a statutory corporation, an independent body corporate and an artificial legal person. Consequently, the terms and conditions of service of employees which have been determined by HBFC Board of Directors, cannot be regarded as statutory in their nature."

9. In our view, the Service Regulations of the PNSC, like those of BFC and other similarly placed organizations do not, therefore, measure upto the required conditionalities.

10. We therefore have no hesitation in concluding that the Service Regulations of the PNSC are not statutory in nature and, therefore, this MP has no merit. As such, the Appeal No. 771(K)/98 is abated.

11. MP No.68 of 2008 is disposed of accordingly."

42. Significantly the speaking 'Judicial Order' of 2nd April, 2009 passed by FST has not been assailed by the Petitioner before the Hon'ble Supreme Court of Pakistan as such the same has attained finality. Since under the 'Judicial Order' of 2nd April, 2009 the Appeal No.771[K] of 1998 before the FST has been abated, as such question of 'implementation' of any order/judgment in such appeal does not arise. In this behalf reference can also be made to the case of Mubeen-us-Salam and another v. Federation of Pakistan and others [PLD 2006 SC 602]. For the purpose of dispute in hand paras 108 and 109 being more relevant and important are reproduced as follows:---

"108. The threadbare discussion on the subject persuades us to hold:---

(1) Section 2-A of the STA, 1973 is, partially, ultra vires of Articles 240 and 260 of the Constitution, to the extent of the category of employees, whose terms and conditions of service have not been determined by the Federal Legislature and by a deeming clause they cannot be treated civil servants as defined under section 2(1)(b) of the CSA, 1973 and they are not engaged in the affairs of the Federation.

(2) Section 2-A of the STA, 1973 cannot be enforced in the absence of amendment in the definition of the civil servant under section 2(1) (b) of the CSA, 1973.

(3) The cases of the employees under section 2-A, STA, 1973, who do not fall within the definition of civil servant as defined in section 2(1)(b) of the CSA, shall have no remedy before the Service Tribunal, functioning under Article 212 of the Constitution and they would be free to avail appropriate remedy.

109. Now the question is as to what would be the effect of this judgment on the cases pending before this Court and Federal Service Tribunal. In this behalf it may be noted that following the rule of past and closed transactions, laid down in the case of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445), it is directed as follows:--

(a) The cases which have been decided finally by this Court in exercise of jurisdiction under Article 212(3) of the Constitution shall not be opened and if any Review Petition, Misc. Application or Contempt Application, filed against the judgment is pending, it shall be heard independently and shall not be affected by the ratio of this judgment.

(b) The proceedings instituted either by an employee or by the an employer, pending before this Court, against the judgment of the Service Tribunal, not covered by category (a) before this Court or the Service Tribunal shall stand abated, leaving the parties to avail remedy prevailing prior to promulgation of section 2-A of the STA, 1973.

(c) The cases or proceedings which are not protected or covered by this judgment shall be deemed to have abated and the aggrieved person may approach the competent forums for redressal of their grievances within a period of 90 days and the bar of limitation provided by the respective laws, shall not operate against them till the expiry of stipulated period.

(d) The cases in which the order of Service Tribunal has been implemented shall remain intact for a period of 90 days or till the filing of appropriate proceedings, whichever is earlier.

(e) The Service Tribunal shall decide pending cases under section 2-A of the STA, 1973 in view of the above observations. However, if any of the cases is covered by clause 'c' (ibid), a period of 90 days shall be allowed to aggrieved party to approach the competent forum for the redressal of its grievance order accordingly."

43. It appears that pursuant to the aforesaid Judgment of apex Court, the Assistant Registrar of FST on 30th June, 2006 had informed the petitioner about abatement of the Appeal No.771[K] of 1998 and M.P. No.273 of 2004 w.e.f. 27th June, 2006. The petitioner thereafter seemingly feeling aggrieved had filed C.P.No.D-2221 of 2006 [Ghulam Aulia v. Federation of Pakistan and others] before this Court in the year, 2006, which petition, nonetheless, was 'not pressed' by the petitioner in his 'own wisdom'. Consequently the same was 'disposed of' vide Order dated 16th January, 2008, by this Court.

44. Rather to seek suitable remedy before the appropriate 'forum' in view of the 'abatement' of Appeal No.771[K] of 1998 in the light of Judgment passed in the case of Mubeen-us-Salam and after dismissal of CP No.D-2221 of 2006 filed by the petitioner on 16th January, 2008, again the petitioner obviously in his own wisdom approached the FST for the so called 'implementation' of the judgment of FST passed on 20th September, 2004 in Appeal No.771[K] of 1998 through M.P. No.68 of 2008 but again the same was 'disposed' of through a speaking Judicial Order dated 2nd April, 2009 besides holding the aforesaid appeal as abated.

45. The petitioner instead of challenging the abatement Order of 9th April, 2009 before the competent and appropriate forum i.e. Hon'ble Supreme Court of Pakistan, again approached this Court for 'implementation' of the judgment of 20th of September, 2009. Manifestly the filing of the instant Petition [Ghulam Aulia v. Federation of Pakistan and others] besides 'misconceived', 'misleading' is in-competent in law' particularly in view of the 'debate' and legal position as observed/held by the Full Bench of this Court in the case of Muhammad Dawood v. Federation of Pakistan [2007 PLC (C.S.) 1046]. The relevant paras therefrom read as follows:---

"2. Pursuant to the aforesaid judgment of the Honourable Supreme Court the Federal Service Tribunal on different dates informed several employees of statutory or other State owned or State controlled corporations that appeals or other proceedings pending before the Tribunal had abated. In some cases seeking execution of the final orders of the Tribunal the employees were also informed that their applications had abated and could not be acted upon. Consequently, a very large number of public corporations employees approached this Court in constitutional jurisdiction seeking multiple reliefs. While it is not possible or expedient to dilate upon the facts of each case separately it might be proper to classify them in following broad categories:--

(i) Where the petitioners have questioned the validity of the orders of abatement passed by the Service Tribunal.

(ii) Where implementation of the final orders of the Service Tribunal passed prior to the pronouncement of the Supreme Court judgment has been sought.

(iii) Where the petitioners have called in question orders passed in the exercise of powers under the Removal from Service (Special Powers) Ordinance, 2000 (R.S.O.).

(iv) Where violation of statutory rules of service has been urged.

(v) Where orders passed by the Management of public corporations have been assailed on grounds of mala fides, violation of principle of natural justice, etc.

(vi) Where despite non-existent of statutory rule the petitioners have claimed violation of internal service regulations of the public corporations are alleged.

(vii) Where breach of the terms of employment through contract has been complained of.

(viii) Where abatement of proceedings before the Service Tribunal or absence of jurisdiction entertained in new matters has been acknowledged but the jurisdiction of this Court to grant redress under Article 199 of the Constitution has been stressed upon.

4. As regards the first category of cases, it is not disputed that the honourable Supreme Court has in the above mentioned judgment in Muhammad Mubeen-us-Salam's case pronounced section 2A of the Service Tribunals Act to be partially ultra vires Articles 240 and 260 of the Constitution to the extent that those categories of employees whose terms and conditions of service have not been determined by the Federal Legislature cannot be treated as civil servants through a deeming clause and proceeded to hold in the operative part that proceedings before the Service Tribunal not protected by this judgment would be deemed to have abated. Indeed some of the learned counsel appearing for the petitioners urged that in any event the Service Tribunal could not have passed omnibus order of abatement without giving the petitioners an opportunity of being heard. Frankly we are not impressed by this contention. It needs to be kept in view that such opportunity is claimed by the petitioners on the basis of principles of natural justice rather than any mandatory provision of law. In this context the law in Pakistan is well-settled as was held in Collector Sahiwal and others v. Muhammad Akhtar 1971 SCMR 681 that when notice is claimed on the basis of a mandatory statutory provision an order passed without such notice is void. However when it is claimed on the principles of natural justice prejudice needs to be shown and the defect could always be cured through a subsequent hearing. In the instant case no question of prejudice could arise as the order of abatement is premised upon a declaration of law by the Honourable Supreme Court, which is binding upon all Courts and authorities in Pakistan under Article 189 of the Constitution. None of the petitioners has been able to show that his terms and conditions of service were determined by Federal law and, therefore, his appeal could not be deemed to have abated pursuant to the above judgment. We, therefore, find no force in this contention.

5. With respect to the second category it might suffice to say that the Honourable Supreme Court in para.109 of the judgment in Mubinus Salam's case has drawn a distinction between final order passed by the Supreme Court itself and those passed by Service Tribunals. In sub-para.(a) the final orders of the Supreme Court stand protected apparently on the doctrine of past and closed transaction. Nevertheless in sub-para.(d), Lordships have clearly observed that even orders of the Service Tribunal which have been fully implemented would remain in force only for a limited period of 90 days to enable the employees to seek remedies from other fora. We fail to see that when their Lordships did not intend to afford complete protection even to orders which had been duly implemented by the employers on the doctrine of past and closed transaction how direction to enforce orders which have not yet been implemented could be given by this Court, which is bound by the law declared by the Honourable Supreme Court. Therefore, no directions sought in this respect could be granted. [Underlining is ours]

46. Moreover, in the case in hand since PNSC has no Statutory Rules, as such on this count as well, the instant Petition under the settled principle of law is not maintainable. On this aspect the matter we would like to refer to the case of Pakistan Defence Officer's Housing Authority v. Lt. Col. Syed Jawaid Ahmed [2013 SCMR 1707] wherein in para 50(ii) it was categorically held as follows:---

"50.(ii) Where conditions of service of employees of a statutory body are not regulated by Rules/Regulations framed under the Statute but only Rules or Instructions issued for its internal use, any violation thereof cannot normally be enforced through writ jurisdiction and they would be governed by the principle of 'Master and Servant'."

47. Like-wise, in the case of Pakistan Red Crescent Society and another v. Syed Nazir Gillani [PLD 2005 SC 806] it was held as under:---

"11. ...an employee of a corporation in the absence of violation of law or any statutory rule could not press into service the Constitution jurisdiction or civil jurisdiction for seeking relief of reinstatement in service. His remedy against wrongful dismissal or termination is to claim damages."

In the aforesaid case reliance was also placed on the following authorities:---

M.N. Arshad v. Mrs. Naeema Khan PLD 1990 SC 612, Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others PLD 1961 SC 531: Zainul Abidin v. Multan Central Cooperative Bank Limited Multan PLD 1966 SC 445; The Chairman, East Pakistan Industrial Development Corporation, Dacca and another v. Rustom Ali and another PLD 1966 SC 848; Abdul Salam Mehta v. Chairman, Water and Power Development Authority and another 1970 SCMR 40; Lt. Col. Shujauddin Ahmad v. Oil and Gas Development Corporation 1971 SCMR 566, R.T.A. Janjua v. National Shipping Corporation PLD 1974 SC 146, The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170, Anwar Hussain v. Agricultural Development Bank of Pakistan and another PLD 1984 SC 194, Syed Akbar Ali Bokhari v. State Bank of Pakistan and others PLD 1977 Lah. 234; Muhammad Yusuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224, the Evacuee Trust Property Board and another v. Muhammad Nawaz 1983 SCMR 1275.

48. Not only the above, the present Petition also suffers from 'laches' as it has been filed almost after 5 years of the passing of FST's judgment passed on 20th September, 2004. Besides being failed to fully explain such long long delay of about five ^[5] years, the petitioner otherwise also could not satisfy this Court about the maintainability of the instant petition. The discretionary relief, it is significant to note cannot be extended/granted in favour of the petitioners in such-like situation. Reliance in this regard can be placed on the case of State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others [2012 SCMR 280] wherein inter alia it was observed as follows:---

"30. . Laches is a doctrine whereunder a party which may have a right, which was otherwise enforceable, loses such right to the extent of its enforcement if it is found by the Court of a law that its case is hit by the doctrine of laches/limitation. Right remains with the party but it cannot enforce it. The limitation is examined by the Limitation Act or by special laws which have inbuilt provisions for seeking relief against any grievance within the time specified under the law and if party aggrieved do not approach the appropriate forum within the stipulated period/time, the grievance though remains but it cannot be redressed because if on one hand there was a right with a party which he could have enforced against the other but because of principle of limitation/laches, same right then vests/accrues in favour of the opposite party.

It is settled principle of our jurisprudence as well that delay defeats equity and that equity aids the vigilant and not the indolent. In the case of Jawad Mir Muhammadi v. Haroon Mirza (PLD 2007 SC 472), a full Bench of this Court has held that laches per se is not a bar to the constitutional jurisdiction and question of delay in filing would have to be examined with reference to the facts of each case; question of delay/laches in filing constitutional petition has to be given serious consideration and unless a satisfactory and plausible explanation is forthcoming for delay in filing constitutional petition, the same cannot be overlooked or ignored subject to facts and circumstances of each case.

In this very case reference has also been made to words of Lord Camden L.C. from the judgment of Smith v. Clay (1767) 3 Bro. C.C. 639n at 640n wherein it has been observed that "a Court of equity has always refused its aid to stale demands, where a party has slept upon his right and acquiesced for a great length of time; nothing can call forth this Court into activity, but conscience, good faith, and reasonable diligence,' where these are wanting the Court is passive, and does nothing". Cited judgment also refers to a book titled Snell's Equity by John Meghee 13th Edition, wherein at page 35 it has been observed that "the doctrine of laches in Courts of equity is not an arbitrary or a technical doctrine; where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these lapse of time and delay are most material".

In Member (S&R)/Chief Settlement Commissioner v. Ashfaque Ali (PLD 2003 SC 132), this Court has held that "writ jurisdiction is undoubtedly discretionary and extraordinary in which may not be invoked by a party who demonstrates a style of slackness and laxity on his part. ............ law is well-settled that a party guilty of gross negligence and laches is not entitled to the equitable relief."

In S.A. Jameel v. Secretary to the Government of the Punjab (2005 SCMR 126), this Court while addressing the question of laches has observed that "there is marked distinction between delay in filing of a legal proceeding within the period specified under the provisions of Limitation Act, 1908 and undue time consumed by a party in filing of Constitutional petition, for which no statutory period is prescribed under the law; in the former case, delay of each day is to be explained by furnishing sufficient cause for enlargement of time and condonation of delay within the contemplation of section 5 of the Limitation Act whereas in the later case lapse of time or the question of laches has to be examined on equitable principles for the reason that the exercise of Constitutional jurisdiction is always discretionary with the Court and the relief so granted is always in the nature of equitable relief in case if the Court finds that the party invoking writ jurisdiction of the High Court is guilty of contumacious lethargy, inaction, laxity or gross negligence in the prosecution or a cause for enforcement of a right, the Court would be justified in non-suiting such person on the premise of laches" (emphasis provided). Hon'ble Mr. Justice Rana Bhagwandas (as he then was), also relied upon the following para of Pakistan Post Office v. Settlement Commissioner (1987 SCMR 1119):--

"There is absolutely no justification to equate laches with statutory bar of limitation. While the former operates as a bar in equity, the latter operates as a legal bar to the grant of remedy. Thus, in the former, all the dictates of justice and equity and balance of legitimate rights are to be weighed, in the latter, subject to statutory relaxations in this behalf nothing is left to the discretion of the Court. It is a harsh law. Thus, passage of time per se brings the statute of limitation in operation, but the bar of laches does not deny the grant of right or slice the remedy unless the grant of relief in addition to being delayed, must also perpetuate injustice to another party. It is also in this very context that the condonation of delay under section 5 of the Limitation Act will be on different harder considerations than those in a case of laches. For, example, while it is essential to explain and condone the delay of each day vis-a-vis statutory limitation, there is no such strict requirement in cases of laches."

The doctrine of laches was also under discussion and dealt with by Privy Council in the judgment reported as John Objobo Agbeyegbe v. Festus Makene Ikomi (PLD 1953 PC 19) where the Lord Oaksey quoted the following para from Erlanger v. New Sombrero Phosphate Company (1878 LR 3 AC at page 1279):--

"In Lindsay Petroleum Company v. Hurd (LR 5 PC 239) it is said:

'The doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where, by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases lapse of time and delay are most material. But in every case if an argument against relief, which otherwise not amounting to a bar in any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."

In the instant case doctrine of laches will have double force against the respondent-employees because in the first instance they could not prove or show the infringement of any right as held by us in the preceding paras hereinabove and secondly because they are guilty of laches in approaching the legal forum in for redressal of their grievance, if at all they had a legal and genuine grievance. [Underlining is ours]

49. Mr. Khalid Javed, learned counsel for the respondents Nos.2 and 3 while, arguing the case further submitted that consequent upon an earlier judgment dated 27th January, 2009 passed by this Court in C.P. No.D-1947 of 2006 to which the petitioner was also a party has already been paid the amount of Rs.72,000 [Rupees Seventy Two Thousand only] vide Cheque No.FAF 4875199 dated 18th June, 2010 on account of payment of 'Medical Allowance'. The letter No.PED/1467/1002343 of PNSC dated 24th June, 2010 for ready reference is reproduced as under:---

Pakistan National Shipping Corporation

(ESTABLISHED UNDER ORDINANCE NO XX OF 1979)

PED/1467/1002343 24th June, 2010

WITHOUT PREJUDICE

Mr. Ghulam Auolia,

FS-59/11, Malir Extension, Karachi.

Subject SUBMISSION OF PAY AND ALLOWANCES (MEDICAL).

Dear sir,

1. In compliance to the directives passed by the Hon'ble Supreme Court of Pakistan vide order 21-5-2010, we enclose herewith cheque No.FAF4875199, dated the 18th June, 2010 amounting to Rs.72,000 on account of payment of Medical Allowance.

2. Kindly acknowledge receipt the same.

Yours faithfully,

For PAKISTAN NATIONAL SHIPPING CORPORAITON,

Sd/-

(LT COL. (RETD) ASHAD ANWAR)

MANAGER (PERSONNEL)

Encl: As above.

Accounts Deptt."

50. Mr. Khalid Javed, learned counsel for respondents Nos.2 and 3, next argued that the instant Petition, otherwise, as well has become infructuous thus liable to be dismissed with heavy cost. The petitioner, it is significant to note, has either failed and/or ignored or otherwise, avoided to file any Reply/Affidavit-in-Rejoinder in response to the 'para-wise comments' filed on behalf of respondents Nos.2 and 3. As such, the averments/question made therein have not only gone un-challenged but also/un-rebutted. Under such scenario, the averments/assertions made, of course, be deemed and treated as true and correct.

51. The seriously disputed questions of facts as the case in hand is it is worth to note, cannot be 'looked' into or 'scrutinized' under the Constitutional Jurisdiction of this Court which is discretionary in nature. The 'pro' and 'contra', 'admissions' and 'denials' on the part of the parties in the present Petition is nothing but a factual dispute which needs elaborate recording of evidence. Of course, such 'drill' of recording of evidence cannot be done or undertaken under the Constitutional Jurisdiction of this Court. Neither any appraisement, re-appraisement of evidence nor enforcement of the seriously disputed questions of factual nature can validly be resolved, under the 'writ jurisdiction' of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. We are fortified in this view by the case of Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others [PLD 2001 SC 415] wherein it was held that under the Constitutional Jurisdiction the High Court needs not to go in the process of scrutiny of disputed questions of facts much-less by way of recording the evidence of parties. The relevant observation reads as follows:---

13. Another vital question which needs consideration is as to whether Constitutional jurisdiction should have exercised in such-like cases specially when the forums available in the hierarchy under the relevant law have decided all the controversial questions on the basis of record in accordance with law. It is well-settled by now that "High Court will not go into disputed questions of fact in Constitutional jurisdiction". (NLR 1992 CLJ 99 + 1991 CLC 2004 + 1991 CLC 605 + 1991 MLD 1492 + 1987 PCr.LJ 1413 + 1987 CLC 2519 + 1982 CLC 2227 + 1990 PCr.LJ 1478 + 1990 PCr.LJ 1997 + 1990 CLC 456 + 1990 CLC 479 + 1990 MLD 563 + 1990 MLD 389 + PLD 1989 Kar. 185 + 1989 SCMR 918 + 1989 CLC 1253 + PLD 1988 Quetta 52 + 1988 SCMR 1259 + 1988 CLC 2220 + 1988 CLC 2201 + PLD 1989 Lah. 31 + 1987 CLC 2519 + 1987 PCr.LJ 1413 + 1987 PCr.LJ 939 + PLD 1987 Lah. 336 + 1986 CLC 2403(2) + 1986 CLC 54 + 1986 CLC 1146 + PLD 1985 Lah. 545 + PLD 1985 Lah. 217 + PLD 1985 Kar. 546 + 1985 PCr.LJ 1437 + 1984 SCMR 963 + PLD 1984 Kar. 155 + 1984 CLC 2002 + 1983 CLC 1801 + 1983 SCMR 732 + 1982 SCMR 497 + PLD 1982 Kar. 449 + PLD 1982 Kar. 581 + 1981 PLC (C.S.) 203 + PLD 1942(sic) Quetta 136 + 1982 CLC 693 + 1982 CLC 553 + 1982 CLC 805 + 1982 CLC 1115 + 1982 CLC 2227 + 1982 CLC 2491 + 1982 CLC 1784 + 1982 CLC 2076 + 1982 CLC 2518 + PLD 1982 Lah. 410 + PLJ 1982 Lah. 231 + PLD 1981 Lab. 583 + PLD 1981 Lah. 459 + PLD 1981 Lah. 459 + 1981 CLC 1242 + 1981 CLC 1400+ 1981 CLC 1403 + 1981 CLC 1569 + 1981 CLC 195 + 1980 CLC 952 + PLD 1986 Quetta 93 + PLD 1984 Kar. 269+ 1970 SCMR 158 + PLD 1963 Lah. 63 + PLD 1962 Lah. 797 + PLD 1964 Dacca 522 + 15 DLR 307 + PLD 1980 Quetta 1 + PLD 1979 Kar. 212 + PLD 1979 Kar. 465 + PLD 1979 Kar. 545 + 1979 CLC 872 + PLD 1978 Lah. 917 + 1978 PCr.LJ 141 + 1978 SCMR 449 + NLR 1978 Civil 1162, PLD 1978 Kar. 867 + PLD 1978 Quetta 34 + PLD 1978 Kar. 214 + PLD 1976 Quetta 70 + PLD 1979 Lah. 27 + PLD 1977 Kar. 214 + PLD 1977 Lah. 718 + PLD 1977 Kar. 601 + PLD 1973 Lah. 230 + PLD 1973 Lah. 628 + PLD 1974 Note 131 at page 193 + PLD 1974 Lah. 434 + 1974 PLC 89 + 1974 Law Notes 105 + PLD 1974 Lah. 318 + PLD 1973 Lah. 228 + 1989 MLD 3480 + PLD 1975 Lah. 967 + PLJ 1975 Kar. 304 + PLJ 1975 Lah., 317 + 1975 SCMR 184 + 1973 SCMR 422 + 1974 SCMR 28 + 1984 SCMR 377 + PLD 1990 Pesh. 122 + 1982 SCMR 372 + 1982 SCMR 883 + 1984 CLC 925 + 1984 CLC 941 + 1983 CLC 1801. This is more so when it is supported by attending circumstances and relevant record. (PLD 1976 Lah. 880 + PLD 1974 SC 139 + PLD 1977 Lah. 24 + PLD 1977 Lah. 194). Constitutional jurisdiction of High Court, cannot be converted into that of an Appellate Court. Disputed questions of fact cannot be entered or allowed to be reagitated in writ jurisdiction. (1982 CLC 1972). When the relevant law provides other forums for the purpose. (1987 PCr.LJ 1413 (DB). It follows that finding of fact recorded by Appellate Court below on appraisal of evidence cannot be disturbed in writ jurisdiction. (PLD 1981 Lah. 511). In Constitutional jurisdiction Court does not go into a question involving minute details nor can it decide facts of which no foundation is laid, (1990 MLD 563 (DB), unless it is shown that such controversy is devoid of supporting record, or perverse." (1990 MLD 344). It hardly needs any elaboration that "the superior Courts should not involve themselves into investigations of disputed question of fact which, necessitate taking of evidence. This can more appropriately be done in the ordinary Civil Procedure for litigation by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts", (1991 CLC 1908 + PLD 1989 Pesh. 36 + PLD 1990 Kar. 186 (DB) + PLD 1990 Kar. 378 (DB) + 1986 CLC 2635 (DB) + 1984 CLC 3279 + 1986 CLC 2559 + PLD 1986 Pesh. 75 + 1986 SCMR 598 + PLD 1987 Quetta 103 (DB) + 1982 CLC 2268 + PLD 1985 Lah. 134 + 1986 CLC 2416 + PLD 1981 Pesh. 57 + PLD 1986 Lah. 409 + 1981 SCMR 291 + 1982 CLC 2421 (DB) + 1981 CLC 1332 (DB) + 1980 CLC 736 + PLD 1982 Lah. 831 (DB) + 1978 PCr.LJ 141 + 1968 SCMR 935 + PLD 1970 Dacca 633 (DB) + PLD 1968 SC 185 + 20 DLR (SC) 144 +' PLD 1967 Dacca 709 (DB) + PLD 1970 Lah. 569 + PLD 1968 Lah. 1244 + PLD 1970 (sic) (W.P.) 1 + PLD 1971 Lah. 866 + PLD 1971 Kar. 517 + PLD 1972 Lah. 262 + 1971 SCMR 110 + 1971 SCMR 697 + 1970 SCMR 853 + 1969 SCMR 217 + 1968 SCMR 880 + 1968 SCMR 145 + 1970 DLC 330 + 22 DLR 337 + 1970 DLC 29 + 21 DLR 938 + PLD 1968 Dacca 367 + PLD 1969 Dacca 74 + PLD 1969 Dacca 779 + PLD 1965 Dacca 263 + PLD 1964 SC 636 + 16 DLR (SC) 457 + PLD 1964 Kar. 468 + PLD 1964 BJ 15 + PLD 1963 Lah. 98 + PLD 1964 Kar. 90 + PLD 1964 Dacca 522 + 15 DLR 703 + PLD 1962 Kar. 712 + PLD 1962 Lah. 189 + PLD 1962 Lah. 16 + PLD 1961 Lah. 842 (FB) + PLD 1961 Lah: 304 + PLD 1961 Lah. 756 + PLD 1960 Dacca 541 + PLD 1960 Dacca 31 + PLD 1960 Dacca 523 + PLD 1960 Dacca 660 + 12 DLR 255 (DB) + PLD 1958 Lah. 345 + PLR 1959 (1) W.P. 163 + 11 DLR (W.P.) 14 + 11 DLR 367 + PLD 1959 Lah. 915 + PLR 1960 (1) W.P. 830 + PLD 1957 Kar. 921). "High Court in exercise of Constitutional jurisdiction cannot reappraise evidence and come to its own independent finding where finding of fact was recorded by Authority below after giving good reasons in support for it". (1988 CLC 1198). There is no cavil to the proposition that "superior Courts have ample jurisdiction to refuse a relief where granting it would be tantamount to injustice (1988 SCMR 516 + PLD 1975 SC 331 + PLD 1968 Lah. 1334 (DB) + PLR 1969 (1) W.P.342 + PLD 1968 Lah. 166 + 1973 SCMR 127), or would perpetuate an illegality (PLD 1991 SC 691 + 1990 CLC 1174 + PLD 1990 Lah. 283 + 1984 CLC 1729 + PLD 1984 Quetta 158 + 1973 SCMR 127) or perpetual injustice, (1990 MLD 2192) or for retention of ill-gotten gains (PLD 1984 Quetta 158) or if greater harm is likely to be caused thereby than the one sought to be remedied. Individual interest must be subordinated to collective good. (PLD 1989 SC 166 + 1987 MLD 1098 High Court), cannot come to rescue of a person seeking its stamp or approval for order or action which was patently unjust, being without jurisdiction and hence void ab initio. (1986 CLC 54). Therefore, High Court is not bound to grant relief to a petitioner simply because he was legally entitled to it, if the grant of such relief is immoral, unfair or against the dictates of good conscience and fairplay". (1990 MLD 2192 (DB)). It hardly needs any elaboration that High Court is not obliged to press into service its Constitutional jurisdiction in every case in which illegality or void action or order is impugned. The Court is to see, whether the grant of relief prayed for will foster the cause of justice or will it perpetuate injustice. If the Court finds that in a given case though the action taken by the authority is illegal but setting aside of such an illegal action would result in miscarriage of justice instead of advancing the cause of justice, the Court may decline to press into service its Constitutional jurisdiction. In this regard reference can be made to 1990 CLC 954 (DB). We are of the considered view that relief in Constitutional jurisdiction being discretionary should not be granted to hold retention of ill-gotten gains even if for technical reasons impugned order be not strictly justifiable. [Underlining is ours].

52. The petitioner's case, evidently does not fall within the parameters of section 2(1)(b) of the Civil Servants Act, 1973 [LXXI of 1973]. Rather to say, the petitioner is/was an employee of Pakistan National Shipping Corporation [In short PNSC] and not of Federal Government. The appointing authority in the case of the petitioner is not the Federal Government but the Corporation itself. The respondent Corporation [PNSC] knowingly is a separate legal entity having its' own Board of Directors [In short the BoD] and under law, independently can sue and be sued. Moreover, the Rules and/or Regulations framed for running the affairs of PNSC are not statutory in nature as such, the relationship between the Corporation [PNSC] and its' employees is not more than that of a 'Master' and 'Servant[s]'.

53. As far as the observation of the Hon'ble Supreme Court of Pakistan in Civil Appeal No.1304 of 1999 [see para 19 of MoP] is concerned, the same under the facts and circumstances of the present case, is not applicable inter alia on the ground that the Judgment passed by FST in Civil Appeal N.771 of 1998 is of 20th September, 2004 and later on stood abated in view of the judgment passed by apex Court in the case of Muhammad Mubeen-us-Salam v. Federation of Pakistan and others [PLD 2006 SC 602].

54. It is also significant to note that per sub-para [d] of Para 109 of the judgment in Mubeen-us-Salam case, the Hon'ble Supreme Court of Pakistan in clear crystal manner/words has observed that even orders of the FST having already been fully implemented would remain intact/enforceable only for a limited period of 90 days so as to enable the employees to seek their remedies from other competent fora.

55. The petitioner, as is evident from record has not only misdirected himself but also kept himself tangled in the fruitless litigation i.e. in filing of Constitutional Petitions one after another. Moreover, under the foregoing circumstances, we also fail to see any logic in the arguments of learned counsel for the petitioner particularly when Hon'ble Supreme Court of Pakistan even in the case of Mubeen-us-Salam did not intend to afford complete protection, even to those Orders/Judgments passed by FST and which were already fully implemented on the basis of doctrine of 'past' and 'closed transaction' then how direction to enforce those Orders/Judgments passed by FST which are still to be implemented could be given by the Court when we are also bound by the law declared by the Hon'ble Supreme Court of Pakistan. It is significant to note that under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 the decision of august Supreme Court of Pakistan deciding a question of law or enunciating a principle of law is binding on all other courts in Pakistan including a High Court. In this view of the matter as well, the prayer sought by the petitioner for the implementation of the judgment passed by FST in Appeal No.771[K] of 1998, which later-on has also been declared as abated by FST vide its' Judicial Order dated 2nd April, 2009, besides misconceived is misleading as such cannot be allowed.

56. For the fore-going reasons and discussion, we are of the considered opinion that the present Petition besides being devoid of merits is also in competent in law as such, the same is dismissed, however, with no order as to costs.

ZC/G-2/Sindh Petition dismissed.

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