KARACHI, Nov 13: A three-member bench of the Sindh High Court reserved on Monday its ruling on the question of forum available to government-run corporation employees after annulment of Section 2-A of the Service Tribunal Act, which deemed them to be ‘civil servants’ for seeking relief from the Federal Service Tribunal, by the Supreme Court.
Section 2-A was declared partially repugnant to Articles 240 and 260 of the Constitution insofar as they define the ‘service of Pakistan’ by the Supreme Court in June 2006.
Nationalized bank and corporation employees, including those of the Pakistan International Airlines Corporation, the Water and Power Development Authority, the Pakistan Steel, had been litigating against allegedly unlawful removal from service and other alleged violation of the terms and conditions of service in the FST ever since the insertion of the provision in 1997.
Meanwhile, the removal from Service (Special Powers) Ordinance was promulgated in 2000 to confer summary dismissal powers on the corporations. Its Section 10 also conferred exclusive jurisdiction on the FST in respect of the grievances of the employees. The provision did not come up before the Supreme Court like Section 2-A but it is hit by the rationale of the SC judgment.
The insertion of Section 2-A coincided with the mass retrenchment of bank employees and effectively deprived the aggrieved employees of the protection available to them under the constitutional jurisdiction of the high courts. It deemed the employees ‘civil servants’ for agitating their service matters before the FST to the exclusion of any other court without any amendment to the Civil Servants Act.
The Supreme Court judgment barred them from the FST jurisdiction, which could only be invoked by ‘civil servants’ as defined by the Civil Servants Act under Articles 240 and 260 of the Constitution or employees of statutory corporations whose services were regulated by statutory rules.
A number of petitions moved by corporation employees agitated their service matters before the Sindh High Court after the SC judgment, saying since they had been excluded from the FST purview, they could invoke the writ jurisdiction for redress of their grievances.
The respondent corporations challenged the maintainability of the petitions and Chief Justice Sabihuddin Ahmed constituted a three-member bench consisting of himself and Justices Sarmad Jalal Osmany and Mushir Alam to decide the common preliminary question whether employees could maintain their petitions under Article 199 of the Constitution. Advocates Khalid Anwer and Akhtar Hussain were asked to assist the bench as amici curiae (friends of the court). A number of lawyers, including Dr Farogh Nasim, M Aqil Awan, Mansoorul Haq Solangi, Khalid Jawed Khan, M. Nawaz Shaikh, appeared for the petitioners.
Representing the federal and provincial governments, Deputy Attorney-General Akhter Ali Mahmud and Advocate-General Anwar Mansoor Khan argued that the petitions were not maintainable as the employees not governed by statutory rules were not entitled to constitutional protection.
Their services were merely contractual and regulated by master-servant relationship. They could only move civil courts for compensation. The petitioners’ counsel submitted that the high court was the only forum available to the employees.
Both the amici curiae also broadly supported the view that the high court jurisdiction in respect of the corporation employees stood restored after the striking down of Section 2-A of the Service Tribunals Act by the Supreme Court. Advocate Solangi maintained that the pre-1997 legal position should prevail and the petitions were competent. The bench reserved its judgment after hearing the arguments.
