Employees of state firms can challenge dismissal: SHC judgment
By Our Staff Reporter
KARACHI, March 26: Employees of state-controlled corporations may challenge their dismissal from service in the high court if it involves violation of any law, including principles of natural justice, a full bench of the Sindh High Court held on Tuesday.
Hundreds of petitions were moved in the court after abatement of appeals in the Federal Services Tribunal in pursuance of a Supreme Court judgment of June 2006.
A nine-member Supreme Court bench headed by the then chief justice declared that section 2-A of the Federal Service Tribunal Act, which was amended in 1998 to bring dismissed bank and corporation employees exclusively within the FST purview, was ultra vires of Articles 240 and 260 of the constitution to the extent that their terms and conditions of service had not been determined by the legislature.
The ‘deeming’ clause of section 2-A of the FST Act could not be enforced in the absence of an amendment to the definition of ‘civil servant’ in the Civil Servants Act, the SC judgment said.
Thousands of employees sacked in 1998 were effectively deprived of the protection afforded by the writ jurisdiction under article 199 of the constitution.
They agitated their rights before the FST but were deprived of the forum as a result of the SC verdict. A number of employees moved the high court, saying that their right to litigate service matters under Article 199 stood restored after the SC verdict.
A three-member SHC bench heard arguments by a number of lawyers, including Khalid Jawed Khan, Dr Farogh Naseem, M. Aqil Awan, Abdul Razzak, Farooq H. Naek, Deputy Attorney-General Akhtar Ali Mehmud and Advocate-General Anwar Mansoor Khan. Advocate Khalid Anwer, who was federal law minister when the FST Act was amended but successfully led the arguments against the validity of the amendment in 2006, was also heard.
The SHC full bench decided as follows:
1. Irrespective of an employee of a state-controlled corporation not being a civil servant, the corporations themselves continue to remain amenable to the high court jurisdiction under Article 199 of the Constitution.
2. The rule of master and servant relationship is inapplicable to cases where there is violation of statutory provisions or of any other law.
3. The expression ‘violation of law’ would not be confined merely to violation of any specific provision of a statute but would embrace all that is treated as law in the country, including the principles of law laid down by superior courts, norms of natural justice, the public duty to act fairly and absence of mala fides in law and fact. In all such cases, the court would be competent to grant the relief of reinstatement.
4. However, where the grievance of the petitioner is not founded on any violation of law but merely violation of a condition contained in a contract, the rule of master and servant relationship would apply.
The dismissal of previous petitions on ground of exclusive jurisdiction of the FST would not bar fresh petitions.
