Tuesday, 28 August 2012

Termination from service should be judicious


  Citation Name  : 2011  PLC  1017     SUPREME-COURT
  Side Appellant : ABDUL WAHAB
  Side Opponent : SECRETARY, GOVERNMENT OF BALOCHISTAN
                       
                        termination  of service---No one could be allowed, irrespective of the fact who was who to act in an arbitrary, fanciful and whimsical manner, and they had got to be judicious, fair and just in taking such decision---Contention that question of retention and dispensation of an employee fell within the discretion of department was repelled---termination  of civil servants had been dealt with in a careless, cursory and casual manner without examining the merits of case---Explanations furnished by responsible officials of the department for termination  of services of employees were vague, sketchy and contradictory as the record spoke otherwise---Supreme Court converted petition for leave to appeal of the employees into appeal and accepted the same.

Can a civil servant be terminated?




  Citation Name  : 2011  PLC  942     SUPREME-COURT
  Side Appellant : DISTRICT COORDINATION OFFICER, DISTRICT DIR LOWER
  Side Opponent : ROZI KHAN
                       
                        Art. 212(3)---termination /withdrawal of appointment of civil servant---Civil servants, in the present case, were qualified and their appointments were made by the competent authority after observance of due process of law---No proper inquiry, such as issuing of charge-sheet/statement of allegations, show-cause notice, had been issued to the civil servants while terminating/withdrawing their services---Judgment of the Service Tribunal was based on valid and sound reasons and was entirely in consonance with the settled law---Neither there was misreading, nor misconstruction of facts and law was found in the said judgment of Service Tribunal---Any irregularity, whatsoever, if committed by the appointing department itself, the appointee could not be harmed, damaged or condemned subsequently when it occurred to the department that it had itself committed some irregularities qua any appointment---Petition for leave to appeal by the department was dismissed by the Supreme Court, in circumstances.

Monday, 27 August 2012

Excellent Judgment on Rules of Business for Promotion


  Citation Name  : 2011  PLC  1130     SUPREME-COURT
  Side Appellant : TARIQ AZIZ-UD-DIN
  Side Opponent :
                       
                        S. 9---Rules of Business, 1973, Rule. 15 (2) ---Constitution of Pakistan Art.184(3)---Human rights---Promotion from Basic Scale-21 to 22---Arbitrary procedure---Exercise of discretion by competent authority---Principle of transparency---Summary to Prime Minister----Procedure---Petitioners were civil servants working under Basic Scale-21 and were aggrieved of promotions of respondents from Basic Scale-21 to 22---Validity---It was mandatory under R.15(2) of Rules of Business, 1973, that a case should be submitted to Prime Minister for his orders based on self contained, concise and objective summary stating relevant facts or points for decision prepared on the same lines as those prescribed in the rules for summary of Establishment etc.---Secretary Establishment pointed out to Supreme Court that there was no practice prevailing for the last about 60 years for forwarding cases of promotion from Basic Scale-21 to 22 and subject to availability of vacancies, Prime Minister could call for the files for promoting officers and notification was issued of his/their promotion on receipt of directions from Prime Minister by Establishment Division, such past practice was followed in the promotion of respondents i.e. mandate of relevant rules was ignored---There was admitted non-adherence to Rules of Business, 1973, and Secretary Establishment sent files without any forwarding letter and cases of all officers totalling 267 were not sent in terms of R.15(2) of Rules of Business, 1973---Due weight was required to be given to Rules of Business, 1973, which had constitutional sanction, whereas while promoting respondents, mandate of law was uncondonably violated---Adopting such arbitrary procedure, not only injustice had been caused to officers who were otherwise senior and also had better case on merits but they had been deprived because there was nothing in black and white before competent authority---Such fact had brought case of petitioners in the area where discretion so exercised by competent authority could not be said to be in consonance with well known principle of fair play as cases of those officers who were not promoted their files were not before him, along with self-contained note by Secretary Establishment in terns of R. 15(2) of Rules of Business, 1973---To ensure justice and openness in view of rule of law, it was obligatory upon the competent authority to decide each case on merit taking into consideration the service record of the officers in Basic Scale-21 who were eligible for promotion to Basic Scale-22---Such aspect of the matter required application of mind based on consideration and determination  of merit in the light of material explicitly showing as to why officers who had been left out were not found to be competent / below in merit in comparison to those promoted to Basic Scale-22---Such consideration of case and determination  of merit for parity of treatment had become all the more necessary and in absence of considering candidature of left out officers, it would alone be tantamount to pick and choose and there was no transparency in exercise of discretion by competent authority---Manner in which promotions in civil service had been made, might tend to adversely affect existence of such organ---Honesty, efficiency and incorruptibility were sterling qualities in all fields of life including Administration of Services and such criteria ought to have been followed---Respondents were promoted in complete disregard of the law causing anger, anguish, acrimony, dissatisfaction and diffidence in ranks of services which was likely to destroy service structure---Although petitioners had no right to be promoted yet in accordance with S. 9 of Civil Servants Act, 1973, they were, at least, entitled to be considered for promotion---Right contemplated under S.9 of Civil Servants Act, 1973, was neither illusionary nor a perfunctory ritual and withholding of promotion of an officer was a major penally in accordance with Civil Servants (Efficiency and Discipline) Rules, 1973, therefore, consideration of an officer for promotion was to be based not only on relevant law and rules but also to be based on some tangible material relating to merit and eligibility which could be lawfully taken note of---Supreme Court set aside notifications of promotion of respondents and declared those of no legal. Consequences---Supreme Court directed "competent authority to consider cases of, all officers holding posts in Basic Scale-21 afresh in view of the observations made by Supreme Court---Respondents were not entitled for benefits, perks and privileges--Supreme Court recommended to ensure fairness, justness and the rules rescinded on 4-4-1998 to be re-enacted---Petition was allowed.

Saturday, 25 August 2012

Employer can not lay off employees illegally



  Citation Name  : 2011  SCMR  11     SUPREME-COURT
  Side Appellant : PAKISTAN SYNTHETICS LIMITED
  Side Opponent : WAQAR AHMED
                       
                        Ss. 12 & 13---Retrenchment or lay off---Economy measures---Proof---Services of employees were terminated due to downsizing for economy measures---Action taken by employer was maintained by Labour Court but High Court declared such termination  as mala fide and set aside the same---Validity---Mode provided by law was to be strictly followed under mandatory provisions of Ss.12(3) and 13 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---Retrenchment was to be in good faith/bona fide and not to victimize employees or as a cloak to get rid of employees---High Court was justified to go into the question to see bona fides of retrenchment and had rightly given a finding of fact that termination  in question was mala fide and in colourable exercise of power, thus action was not taken by employer due to measure of economy---Employer failed to raise any substantial question of law of public importance---Jurisdiction of Supreme Court under Art. 185 (3) of the Constitution was discretionary in character and Supreme Court declined to exercise its discretion in favour of employer---Appeal was dismissed.

Tuesday, 21 August 2012

Blasphemy Law in Pakistan

The blasphemy law in Pakistan is part of Pakistan Penal Code. It is very much in line with the principles of Islamic Law. However a fact is that the courts of Pakistan fail to deliver justice in most of the cases. For the same reasons there are problems faced by people of being wrongly alleged in punished under this law. That has also opened gates for criticism on the law. The real fact is that the law is good but its implementation has problems. Kindly read the content from the statute produced below which is the actual blasphemy law in Pakistan.

295.Injuring or defiling place of worship, with Intent to insult the religion of any class:
Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction damage or defilement as an insult to their religion. shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
 
 106[
295-A.Deliberate and malicious acts intended to outrage religious feelings of any class by insulting Its religion or religious beliefs:
Whoever, with deliberate and malicious intention of outraging the 'religious feelings of any class of the citizens of Pakistan, by words, either spoken or written, or by visible representations insults the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.
 
] 106
 107[
295-B.Defiling, etc., of Holy Qur'an:
Whoever wilfully defiles, damages or desecrates a copy of the Holy Qur'an or of an extract therefrom or uses it in any derogatory manner or for any unlawful purpose shall be punishable with imprisonment for life.
 
] 107
 108[
295-C.Use of derogatory remarks, etc., in respect of the Holy Prophet:
Whoever by words, either spoken or written, or by visible representation or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.

Saturday, 18 August 2012

Wrongful termination of police officer

 In this judgment a case of wrong termination of a Police officer has been discussed. Kindly read it to gain knowledge on the subject.


 Citation Name  : 2011  SCMR  1220     SUPREME-COURT
  Side Appellant : CHIEF SECRETARY, GOVERNMENT OF PUNJAB
  Side Opponent : Malik ASIF HAYAT
                       
                        S. 4---Rules of Business (Punjab), 1974, Sched. VII, Part-A, Sr.No.20---General Clauses Act (X of 1897), Ss. 21 & 24---Constitution of Pakistan, Art. 212(3)---Appeal---Assistant Sub-Inspector Police---Dismissal from service vide order dated 5-7-1994---Absence from duty, charge of---Rejection of appeal by Service Tribunal---Directive of Chief Minister issued after accepting mercy petition in June 2005 for reinstatement of appellant in service---Implementation of such directive by authority, completion of one year "D" Course by appellant and subsequent entering his name into list "E" and promotion to post of Sub-Inspector---Issuance of show-cause notice by authority after two years alleging appellant's reinstatement to be illegal---Withdrawal of such show-cause notice by authority during pendency of constitutional petition filed thereagainst by appellant and his subsequent promotion to rank of Inspector---Dismissal of appellant from service w.e.f. 5-7-1997 vide order dated 2-1-2002 on same ground---Acceptance of appellant's appeal by Service Tribunal---Validity---termination  from service could not be with retrospective effect, unless competent authority was expressly empowered in such regard by some statute or rules made thereunder---Rectification of wrong could not be made at any time as such practice would be dangerous for service structure---Action should have been initiated against those responsible for such wrong, which could not be rectified after a long period during which appellant had not only performed his duties diligently, but had also earned few promotions and risen to rank of Inspector---Such directive of Chief Minister was not liable to be implemented, but none had shown moral courage to resist same at relevant time--- Appellant had been reinstated in year 2005, while he had been dismissed finally on 2-1-2010 with retrospective effect i.e. on 5-7-1994---Authority had already exercised powers under S. 21 of General Clauses Act, 1897 by issuing show-cause notice, which had been withdrawn during proceedings pending in High Court---Such matter was closed once for all and could not be re-opened without any lawful justification---Order passed by a competent authority, if had taken effect and conferred a legal right, could not be rescinded subject to certain lawful exceptions---Supreme Court refused to grant leave to appeal, in circumstances.

Friday, 17 August 2012

A terminated employee can be reinstated in service

A wrongfully terminated employee can be reinstated on the precedent of this judgment of Sindh Services Tribunal.



  Citation Name  : 2011  PLC  526     SERVICE-TRIBUNAL-SINDH
  Side Appellant : GOHRAM SOOMRO
  Side Opponent : SECRETARY, MINISTRY OF EDUCATION
                       
                        S. 4---termination  of service---Appeal---Appellant who was appointed as High School Teacher (B-16) on 13-8-1995, continued to serve as school teacher in rural area for about nine years, but all of a sudden his monthly salary was stopped---Appellant however continued to serve the department, while three years thereafter on 28-4-2007, he was verbally informed that he was no more a government servant on the ground that he was a bogus employee; as his appointment was made on false/fictitious documents---termination  of the appellant from service was not made through any written order---Not only any show-cause notice was issued to the appellant, but detailed enquiry was also not conducted in the matter---Appellant who continued receiving salary for not less than a period of nine years without even being questioned, with the passage of a decade in service, had acquired a very valuable right and if was thrown out of job at that stage and his age, he could never get a like job elsewhere for various reasons including the stigma of dismissal---Order of termination  of the appellant, was void ab initio, illegal and without jurisdiction---Appeal by the appellant was not hit by any provisions of limitation as no time would run against order of termination ---Appellant in view of his long unblemished service had acquired a valuable right---No fault was shown on the part of the appellant, but it lay entirely on the authorities, who were either so careless or in a deep slumber for more than 9 years to learn about alleged irregularity in appointment of the appellant---Authorities were directed to reinstate the appellant from the date he was removed from service, with all back-benefits admissible under the law.

Tuesday, 14 August 2012

Young boy murdered by close relative

In this judgment a boy was murdered in  by a close relative and at the end the court dismissed the appeal of accused because of his cruel and merciless killing of the victim. Kindly read this for gaining more information on the case.


  Citation Name  : 2011  SCMR  670     SUPREME-COURT
  Side Appellant : GUL MUHAMMAD
  Side Opponent : State
                       
                        S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 40---Appraisal of evidence---Delay in lodging of F.I.R. was suitably explained by the complainant, father of the deceased child ---Complainant and accused were close relatives---Accused had nourished ill will and grudge towards the complainant as he considered the complainant responsible for separation of his wife and daughters and thus thought of teaching a lesson to him---Medical evidence had supported the last seen and other circumstantial evidence---Multiple circumstances had corroborated the involvement of accused in killing the boy, who had taken him along on a bicycle, killed him thereafter and thrown into the river---In view of Article 40 of the Qanun-e-Shahadat, 1984, the lead provided by the accused and pointation of the place where the minor was killed and recovery of dead body, were all relevant informations about which only the accused had the information---Accused had taken life of an innocent child  in a merciless and cruel manner and he deserved no leniency---Appeal was dismissed in circumstances.

Monday, 13 August 2012

THE ARMED FORCES (EMERGENCY DUTIES) ACT, 1947



Act : THE ARMED FORCES (EMERGENCY DUTIES) ACT, 1947 1*

ACT NO. 15 OF 1947.[20th March,1947.]


An Act to enable duties in collection with vital services to be imposed in an emergency on the Armed Forces 2 * * *

WHEREAS it is expedient to enable duties in connection with vital services to be imposed in an emergency on the Armed Forces 2* * *;

It is hereby enacted as follows :-


1.Short title and extent.


1. Short title and extent. 3* This Act may be called the Armed
Forces (Emergency Duties) Act, 1947.3* * * * *


2.Emergency duties of Armed Forces.


2. Emergency duties of Armed Forces. (1) The Central
Government may, by notification in the Official Gazette, declare any specified service 4[in a State] to be a service of vital importance to the community:

Provided that such notification shall remain in force for one month in the first instance, but may be extended, from time to time, by a like notification.

(2) Upon a declaration being made under sub-section (1) and until it is rescinded, it shall be the duty of every person subject to
5[the Army Act, 1950, (46 of 1950.) or the Air Force Act, 1950], (45.of 1950.) or 6* * * * 7[the Navy Act, 1957], (62 of 1957.) to obey any command given by any superior officer in relation to employment upon or in connection with the service specified in the declaration;
and every such command shall be deemed to be

----------------------------------------------------------------------

1 The Act was extended to the new Provinces and merged States by the Merged States (Laws) Act, 1949 (59 of 1949), s. 3 and Sch. and to the States of Manipur, Tripura and Vindhya Pradesh by the Part C
States (Laws) Act, 1950 (30 of 1950), s. 3.This Act has been extended to-
Goa. Daman and Diu with modifications by Reg. 12 of 1962, s. 3.and Sch. and comes into force in Pondicherry vide Reg. 7 of 1963, s. 3.and Sch. I (w.e.f. 1-10-1963),

and brought into force in Dadra and Nagar Haveli by Reg. 6 of
1963, s. 2 and Sch. I (w.e.f. 1-7-1965).

Lakshadweep vide Reg 8 of 1965, s. 3 and Sch. (w.e.f. 1-10-1967).

2 The words "of the Crown" were omitted by the A. O. 1950.

3 The brackets and figure "(1)" and sub-section (2) rep. by Act 4.of 1948, s. 2.4 Subs. by Act 3 of 1951, s. 3 and Sch., for "in a Part A State or a Part C ".

State or, if so requested by the Government of a Part B State, any specified service in that State.

5 Subs ibid., for "the Indian Army Act, 1911, or the Indian Air
Force Act, 1932".

6 The words "the Naval Discipline Act, in the form in which it is set forth in the First Schedule to" rep. by the A. O. 1950.

7 Subs. by Act 58 of 1960. s. 3 and Sch. II. for "the Indian
Navy (Discipline) Act, 1934".

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a lawful command within the meaning and for the purposes of the said
Acts.


3.Validation of certain past commands.


3. Validation of certain past commands. Every command given, after the 30th day of September, 1946, and before the commencement of this Act, to any person referred to in sub-section (2) of section 2 by any superior officer in relation to employment upon or in connection with any such service as the Central Government may, by notification in the Official Gazette, specify in this behalf, shall be deemed to have been a lawful command within the meaning and for the purposes of the Acts referred to in that sub-section, so however that no such person shall be punished by reason only of his not having obeyed any such command.

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