KARACHI: Petitions of 300 SSGC employees dismissed: Tests by IBA
By Shamim-ur-Rahman
KARACHI, Jan 11: A division bench of the Sindh High Court on Friday dismissed 10 petitions of over 300 Sui Southern Gas Company employees who had challenged the credibility of the IBA tests for their removal from service.
The bench, comprising Justice Sabihuddin Ahmed and Justice Ali Aslam Jaferi, did not find their petitions maintainable as the High Court could not exercise jurisdiction in service matters. The petitioners were directed to approach the Federal Services Tribunal (FST) for their grievances.
The bench held that the direction of the respondent company to put the petitioners to an independent IBA test, was an order covered by Section 4(2) of the Services Tribunal Act 1973 and an order appealable before the FST under section 4(2) (b) of the FST Act 1973. As such, under Article 212 of the Constitution, the exclusive jurisdiction lay with the FST and hence the petitions were not maintainable before the division bench of the high court.
The division bench, while dismissing the petitions as not maintainable, “hoped that the FST would take a sympathetic view in connection with the delay caused by the petitioners in these proceedings”.
The bench, however, held its order in abeyance for a period of 30 days. Taking notice of the fact that post of chairman of Federal Service Tribunal was lying vacant, the bench ordered that the petitioners could file an appeal within 15 days from the date of his appointment, whichever was later.
The bench also observed that case of petitioners regarding condoning delay in filing an appeal be considered sympathetically by the FST under section 14 of the Limitation Act.
The petitioners had moved the court against an order of the respondent SSGC requiring them to appear in test to be conducted by IBA for ascertaining the fitness of the petitioners. They were dismissed from the services for being political appointees.
The petitioners had invoked constitutional jurisdiction of the High Court under Article 199 of the Constitution.
The counsel for SSGC, Barrister Chaudhry Muhammad Jamil, contended that all management trainees were thrust upon the company by Benazir Bhutto government in 1994 without any test and a bench of Supreme Court in its judgment (dated October 22, 2001) held that these management trainees, after reinstatement, should be put to test and, if they qualified, they may be retained in service.
The judgment vindicated respondent company’s contention on jurisdiction of High Court in the matter. Counsel for the company had mainly focused on the maintainability of the petition and that the petitioners should apply to the Services Tribunal for their grievances.
Counsel for the respondent company, Barrister Ch. Mohammad Jamil had argued that petitions were not maintainable and should, therefore, be dismissed. It was his contention that the matter was regarding the terms and conditions of service.
Hence under Article 212 when there were Administrative Tribunals no other court, including the High Court, had the jurisdiction to decide the question of terms and conditions of the civil servant/ employees of the government organisation.
According to Article 212 (2) of the constitution (Administrative Courts and Tribunals), “Notwithstanding that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Parliament by law extends the provisions to such a Court or Tribunal”. According to clause (3) of this Article of the Constitution, “an appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal.”
Counsel for the respondent had argued that the letter dated June 12, 2001, asking the petitioners/trainees to submit their testimonials, National Identity Cards etc, and also asking them to sit for IBA test, was in accordance with the decision of the Supreme Court as well as the prerogative of the company to test the competency and fitness of the petitioners for the jobs in the company.
His contention was that the petitioners were thrust upon the company through back doors by the Benazir Bhutto government, without any test. His contention was that the management trainees/trainee engineers, were initially inducted as trainees on fixed amount of stipend of Rs5,000 per month during Benazir Bhutto’s government. About 4,500 persons were thrust upon the company without its requirement.
It was contended that since 1996 after the dismissal of the Benazir Bhutto government, the petitioners had been contesting for the status of permanent employees in the company.
He had contended that on Oct 22, 2001 the Supreme Court finally decided that the petitioners must go through the tests arranged by the SSGC to be conducted by the IBA. In case they passed the test, they might be retained in the company. He had also dilated on the interpretation of “absorption” and had contended that it meant reinstatement.
It was his contention that the tribunal was not competent to order absorption. Counsel for the gas company had submitted that the tribunal had not held whether the petitioners were fit or not. He said that the review which was dismissed had nothing to do with the IBA test.
When Justice Sabihuddin Ahmed had observed that “in 1994/95 most of these appointments were made and the question of IBA test came up in 2001”, counsel for the gas company had claimed that the petitioners were not appointed. The company had been testing people for appointment on a regular basis. But the counsel had claimed that most of the petitioners were sent by the prime minister’s secretariat for trainee engineers and were not subjected to any tests.
His contention was that even if it amounted to changing of terms and conditions, even then it had to be decided by the tribunal and not by the High Court. Supreme Court had decided the question of fitness. He had also referred to the latest judgment of the Supreme Court.
Barrister Ch. Jamil, who was assisted by Barrister Zahid Usman Jamil, had submitted that employment should not be given to those who had approached the Prime Minister, MNAs or MPAs or other politicians. Petitioners were appointed in SSGC as management trainees in 1994-95.
The petitioners had filed appeals in the FST, which on April 13, 2001, set aside termination orders in view of case of Engineer Narian Das and others as decided by Pakistan’s apex court on Feb 2, 2001.
It was case of petitioners that on June 12, 2001, SSGC management asked them to appear in aptitude test conducted by the IBA for their fitness and suitability for permanent employment. They had prayed that the court asks the SSGC management to comply with Supreme Court judgment and FST.
It was contended by some of the petitioners that they had come to the court to seek implementation of the judgment of the services tribunal.
Thrust of the petitioners’ counsel was on whether or not the SSGC was empowered to order fitness test through the IBA. It was contended by some of the counsel that raison detre for the IBA test was being misinterpreted by the department. Their contention was that “fitness” was to determine the capability to hold a “particular post” but the department (SSGC) was interpreting it for “any” post and removal from service. It was argued that the IBA test had not been defined and what were its objectives. IBA was not a department to conduct such tests. IBA was not a competent departmental authority to conduct fitness tests. The IBA test had got no syllabus or any disclosed field of studies.
It was that the action of the department which was mala fide because it wanted to dislodge the judgment of the Supreme Court and the FST. The fitness of an employees was determined before employment and not after appointment and thus the action of the gas company was discriminatory because no other government employee had been subjected to the same treatment.
Fitness could be used for holding a particular post and not for termination of service, they had argued. The question whether the petitioners had been legally appointed or not could only be determined through a detailed inquiry which had not yet been held so far, they had submitted.
Justice Sabihuddin Ahmed had during the course of argument observed that even if the jurisdiction did not exist, if the action was mala fide, the writ would lie.
It was also argued by some of the counsel for the petitioners that an order had to be in conformity with the terms and conditions.
It was argued that while the counsel for the respondent was opposed to giving jobs to those who had approached the prime minister or others, but how would he explain the appointment of more than 60 persons, without any test, because they were relatives of either the managing director or other officials.
It was their contention that the petitioners were absorbed in 1998. They could not be asked to appear for a fitness test after they had been in the service for three years.
On rebutting the respondent company’s counsel, one of the petitioners’ counsel had argued: “Did the court say to give IBA test before absorbing? No. Supreme Court said absorb them and treated their period of training as probation. When the Supreme Court directed for absorption, it meant permanent employment.”
It was also contended that the respondent’s action was also violation of Article 4 of the Constitution.
It was argued that in the latest Supreme Court judgment there were nine categories and in only one category the apex court said the petitioner should take the test (Mohammad Akram and others). In no other case, the SC ordered for a test.
It was also argued that the fitness test was also hit by article 4 and 25 of the Constitution and the respondents wanted to defeat what had been given to the petitioners by the court.
With regard to Article 212(2) of the constitution, it was argued by the petitioners’ counsel that if something was beyond the scope of terms and conditions and rules, jurisdiction of the court would be ousted. The tribunal cannot replace the judicial review jurisdiction of the High Court.
It was argued by them that the petitioners had already been issued letters of appointment pursuant to the decision of the FST, dated April 13, absorbing the petitioners in the service of the SSGC vide a letter dated June 8. It was their contention that the SSGC had not filed an appeal against that order in the Supreme Court, therefore, the order of the FST had acquired finality.
Barrister Kamal Azfar, Wasim Sajjad, Akram Shaikh, Mujeeb Pirzada, Mohammad Nawaz Shaikh, Aqil Awan advocates and others had argued on behalf of the petitioners.
