MUHAMMAD IBRAHIM KHAN vs SECRETARY, MINISTRY OF LABOUR AND OTHERS

1. SHAFIUR RAHMAN, J.-Leave to appeal was granted under Article 212(3) of the Constitution to the appellant, a Civil servant, to examine whether the impugned order of the Tribunal by which his seniority was disturbed to his prejudice is not a speaking order, that the appeal of the respondent before A the Tribunal was not time-barred and that the order under challenge having been made by the President in exercise of the powers under section 12-A of the Civil Servants Act was not beyond the jurisdiction of tile Tribunal.

2. ' The respondent No, 3 was appointed initially as an Assistant Director (Grade-17) on ad hoc basis in the Bureau of Emigration and Overseas Employment on the 1st of March, 1975. He was regularly appointed to the same post through the Public Service Commission on 1st of October, 1975 and took over formally as such on 7-12-1975 and was kept on probation for a year from that date. He was promoted the next year from 7-10-1976 to the post of Deputy Director (Grade-18). He had at first a dispute with another promotee Mr. Sarwar Nasim which he contested and brought to the Tribunal and succeeded in making himself senior to him.

3. ' A gazette notification appeared on 8th of March, 1981 whereby the President in exercise of powers conferred under section 12-A of the Civil Servants Act ordered that the seniority in Grade-18 of M.

4. Anwar Butt, Deputy Director, Bureau of Emigration and Overseas Employment be reckoned from the date he completes five years' service in Grade-17. A revised seniority list was issued whereunder he was shown to have been paroled to this post on 7th of October? 1976 but it was ordered that he will count his seniority with effect from 1st of March, 1980 when he completed 5 years of service in Grade-17 in the same department. In giving effect to this order he was reduced to a position below the appellant and Mr. M. Sarwar Nasim. He sought review of the order passed by the President and then approached the Service Tribunal in the matter. The grounds on which he challenged this notification is reflected in para. 15 of the memo. Of appeal before the Tribunal which is as follows :- "In the meantime the case of the appellant was maliciously singled out for discriminatory treatment and was referred to the Review Board for action under section 12-A of the Civil Servants Act, 1973. By misrepresenting the facts about the appellant and concealing and sup4essing the relevant facts about some of his colleagues. Respondent No. 1 was able to obtain an order in the form of notification dated the 8th March, 1961 according to which the President in exercise of powers under section 12-A had allegedly decided that the seniority of the appellant in Grade-18 be reckoned from the date he completed five years of service in Grade-17."

5. ' The Tribunal after reciting what the respondent No, 3 had to say and after re-producing the earlier controversy between respondent No, 3 and Mr. Sarwar Nasim and Tribunal's decision with regard to their seniority dealt with the subject of the controversy in the following words :- "Having considered the matter carefully we are in no doubt that a wrong advice was tendered to the President in this case. The onus for this wrong advice falls squarely on the Manpower Division.

6. The Establishment Division could have saved the situation but did not. Now that wrong orders have been issued in the form of gazette notification, dated 8-3-81 the two said Divisions are reluctant or embarrassed to go back to the President and have him revise his earlier decision of leaving the gazette notification dated 8th March, 1961 intact. They have, therefore, decided to rely on the judgment of the Tribunal so that they could keep out of harm's way. We are in no doubt that injustice has been done to the appellant which can be traced easily to a cross inefficiency of Establishment Division who are expected to be a leading light in these matters. The parent Division of the appellant is no less culpable. The record which we have perused speaks volumes to this effect. We, therefore, order that the appellant shall be placed senior to respondents Nos. 3, 4 and 5 and the seniority list dated 31-8-1981 deemed to have been amended accordingly. The gazette notification dated 8-3-1961 shall be deemed never to have been issued and the appellant's seniority shall reckon with effect from 7th October, 1976 in the grade of Deputy Director."

7. ' The learned counsel for the appellant has taken us through the history of the appointment of the appellant and respondent No, 3, the dispute over seniority, the rules applicable to them in the matter, and urged that the decision of the Tribunal has the effect of disturbing seniority which was never in dispute as between the appellant and respondent No, 3 and the respondent No, 3 had reconciled himself since long in being treated as junior to the appellant. The controversy so far as the seniority list was concerned was only with regard to Sarwar Nasim and against no other colleague of his. It is also pointed out that neither the factual controversy involved before the Tribunal nor the law applicable to the situation had at all been adverted to and general observations have been made the basis for disturbing an order competently passed by the President as according to the dates of the promotion his case was admittedly reviewable under section 12-A of the Civil Servants Act.

8. ' The learned counsel for the respondent No, 3 has in justification of the order of the Tribunal contended that the Tribunal had access to the record of the department ; had examined it minutely and drawn the conclusions which vitiated the action taken under section 12-A of the Civil Servants Act as manifestly wrong advice had been tendered which had led to an arbitrary and capricious decision. After recording the finding of fact, the Tribunal had interfered with this order and justifiably so.

9. ' Article 212(1) of the Constitution confers exclusive jurisdiction on Service Tribunal in matters relating to the terms and conditions of person who are or have been in the service of Pakistan, including disciplinary matters. An appeal to this Court against the decision of Service Tribunal is competent only if this Court "being satisfied that the case involves a substantial question of law of public importance grants leave to appeal". In the cases of M. Yamin Quraishi (1) and M.

11. Shamirn (2) this Court has already pointed out that it is the obligation of the Service Tribunal to decide all questions of law and fact raised in the appeal. It was also pointed out in those cases that in view of the nature and scope of jurisdiction conferred on this Court under Article 212(3) of the Constitution it would be traversing beyond the jurisdiction conferred on us by the Constitution, if we were ourselves to undertake examination and resolutions of disputed questions of law and fact which ought to be decided in the first instance by the Service Tribunal.

10. ' This Court has repeatedly emphasized the need for recording a speaking order. In the case of Adamjee Jute Mills Ltd. (3) while remitting the applications for reconsideration and for recording of a proper order it was observed that where there has been no prior adjudication of a matter and substantial questions of law are raised, it is the undoubted duty of the adjudicating authority to state what the precise controversy of fact and law has been raised and the grounds on which it was accepted or rejected. In another case of G. M. Sikdar (4) the following observations made in another decision were reproduced ;- "This Court was at pains to point out that 'A judicial order must be a speaking order manifesting by itself that the Court has applied its mind to the resolution of the issues involed for their proper adjudication because the litigants who bring their disputes to the law Courts with the incidental hardship and expenses involved do expect a patient and judicious treatment of their cases and their determination by proper orders.

11. ' Apart from this, as final Court of appeal in the country, in the words of Cordozo 'we must know what a decision means before the duty becomes ours to say whether it is right or wrong."

12. ' Coming back in this background of law and precedent to the contents of the impugned decision of the Tribunal the finding recorded by the Tribunal is "we are in no doubt that a wrong advice was tendered to the President", Nowhere for the benefit of the Court of appeal or the party itself the advice tendered has been mentioned or reproduced, muchless indicated as to how {{FOOT NOTE}}

(1) PLD 1980 SC 22 (2) PLD 1980 SC 37

(3) P L p 1959 SC 272 (4) PLD 1970 SC 158 {{FOOT NOTE}} ' it was wrong. Not only this, how a wrong advice affected the exercise of power under section 12-A of the Act has not been disclosed. Another finding recorded in the same peremptory language is "we are in no doubt that injustice has been done to the appellant". None is given any inkling as to what type of injustice, by reference to which law and right was done. Yet another finding quite baffling for us is "The record which we have perused speaks volumes to this effect". One remains as uninformed on fact and law after reading this decision as without reading it.

13. ' We are, therefore, of the view that the decision of the Tribunal is a model of how a decision should not be recorded. We accept this appeal and remit it for recording a proper order, if necessary, after rehearing the parties. No order as to costs.