Citation(s): 1984 SLD 736 = 1984 SCMR 1014
Supreme Court of Pakistan
Civil Appeal No. 211 of 1983, decision dated: 27-05-1984 (Against the judgment
and order, dated 21-2-1983 of the Service Tribunal, Islamabad in Service Appeal
No. 50(R) of 1982)
AUTHOR(S): MUHAMMAD HALEEM, C.J. SHAFIUR RAHMAN AND M. S. H. QURAISHI,
JJ
MUHAMMAD IBRAHIM KHAN--APPELLANT
VS.
SECRETARY, MINISTRY OF LABOUR AND OTHERS--RESPONDENTS
(a) Constitution of Pakistan (1973)---Art. 212(3)-Service Tribunals Act (LXX of 1973), S. 4--
Leave to appeal granted to examine (i) whether impugned order of Tribunal disturbing
seniority of petitioner to his prejudice was not a speaking order; (ii) whether appeal of
respondent before Tribunal was not time-barred, and (iii) whether order under challenge
was not beyond jurisdiction of Tribunal.
(b) Service Tribunals Act (LXX of 1973)-
- S. 4 read with Constitution of Pakistan (1973), Art. 212(3)-Service Tribunal under
obligation to decide all questions of law and fact raised in appeal-Supreme Court cannot
itself undertake examination and resolution of disputed questions of law and fact-Finding of
Tribunal in peremptory language and baffling-Decision of Tribunal not stating precise
controversy of fact and law raised nor grounds on which same accepted Held, a model of
how a decision should not be recorded-Appeal remitted for recording a proper order after
rehearing parties, if necessary.
M. Yamin Quraishi P L D 1980 S C 22; M. H. Shamim P L D 1960 S C ,7; Adamjee Jute Mills
Ltd. P L D 1959 SC 272 and G. M. Sikdar P L D 1970 5 C 158 ref.
Abdul Hakim Khan, Advocate Supreme Court with M. Afzal Siddiqui, Advocate-on-Record for
Appellant.
Munir A. Shaikh, Dy. A.-G. and Rao Muhammad Yousaf Khan, Advocateon-Record for
Respondents Nos. 1 and 2.
Abid Hassan Minto, Advocate Supreme Court and Ch. Akhtar Ali, Advocate on-Record for
Respondent No. 3.
Nemo for Respondents Nos. 4 and 5.
Date of hearing: 27th May, 1984.
JUDGMENT
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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 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 I the Civil Servants Act was not beyond the jurisdiction of tie Tribunal.
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.
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 ORDER:ed that the seniority
in Grade-18 of M. Anwar Butt, Deputy Director Bureau of Emigration and Overseas
Employment be rekoned from the date he completes five years' service in Grade-17. A
revised , seniority list was issued whereunder he was shown to have been promoted
October, 197, but it was ORDER:ed that he will count his seniority with effect from 1st of
March, 1980 when he completed 5 years of service to 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 11-A of the Civil
Servants Act, 1973. By misrepresenting the facts about the appellant and concealing and
suppressing 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, 191 according to which
the President in exercise of powers under section l2-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."
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. The Establishment Division could have saved the situation but did not.
Now that wrong ORDER:s 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, 1951
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 the 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."
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 jonior 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 halve 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.
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.
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 (P L D 1980 S C 22) and M. H. Shamim (P L D 1980 S C 37) 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.
This Court has repeatedly emphasized the need for recording a speaking Order. In the case
of Adamjee Jute Mills Ltd. (1 P 1- D 1959 S C 272) 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 (P L D 1970 S C 158 ) 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
involved 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
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judicious treatment of their cases and their determination by proper ORDER:s.
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."
Coming back in this background of law and precedent to the contents the impugned
decision of the Tribunal the finding recorded by the Tribunal "we are in no doubt that a
wrong advice was tendered to the President", where for the benefit of the Court of appeal or
the party itself the advice sacred has been mentioned or reproduced, muchless indicated as
to how 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.
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.
Case remanded.
