2017-10-06

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Statutory and Non-Statutory Service rules

 2017  SCMR  571     SUPREME-COURT
MUHAMMAD ZAMAN     VS  GOVERNMENT OF PAKISTAN through Secretary, Finance Division (Regulation Wing), Islamabad

statutory or non-statutory nature, determination of—Test of whether rules /regulations were statutory or otherwise was not solely whether their framing required the approval of the Government or not, rather it was the nature and efficacy of such rules /regulations—Court had to see whether the rules /regulations dealt with instructions for internal control or management, in which case they would be non-statutory , or they were broader than and were complementary to the parent statute in matters of crucial importance, in which event they would be statutory .

 2017  SCMR  206     SUPREME-COURT
  SHAHID PERVAIZ  VS  EJAZ AHMAD

Rules framed under a statute—Scope—Operation of a statute or any statutory provision was not dependent upon framing of the rules —Absence of rules may affect the enforceability or operation of the statute, however, for considering the constitutionality or otherwise of a statute on the touchstone of the Constitution or Fundamental Rights, framing or non-framing of the rules under that statute could hardly be relevant.

 2017  PLC  1     SUPREME-COURT
NEMAT ULLAH   VS  CHAIRMAN GOVERNING BODY, WORKER WELFARE BOARD/SECRETARY TO GOVERNMENT OF KPK, LABOUR DEPARTMENT

Permanent post having statutory rules —Probationary/contractual period— Employer could not put the employee on contract basis/ probation for an unreasonably long period when the appointment was made against a permanent vacancy/sanctioned post—Such practice was deprecated by the Supreme Court.

 2017  PLC  1     SUPREME-COURT
 NEMAT ULLAH  VS      CHAIRMAN GOVERNING BODY, WORKER WELFARE BOARD/SECRETARY TO GOVERNMENT OF KPK, LABOUR DEPARTMENT

S. 8(3)—Workers’ Welfare Fund (Employees Service) rules , 1997—Constitution of Pakistan, Art. 199—Employees of Khyber Pakhtunkhwa Workers Welfare Board (“Employees”)—statutory rules of service—Workers’ Welfare Fund (Employees Service) rules , 1997 were applicable with full statutory force to the service of the employees of the Workers’ Welfare Board of the Province of Khyber Pakhtunkhwa—Moreover after the Eighteenth Amendment to the Constitution, said rules enacted by the Federal Government were exclusively within the domain of the Provincial Government/Provincial Workers’ Welfare Board—Employees could file a Constitutional petition before the High Court if there was any invasion on their service benefits and rights by the authorities.

2017 SCMR 732 SUPREME-COURT
 SHAHAB USTO Vs  GOVERNMENT OF SINDH through Chief Secretary

Arts. 9 & 184(3)–-Sindh Environmental Protection Act (VIII of 2014), S. 5(2)—Sindh Hospital Waste Management rules , 2014, R. 9(1) & Sched. I—Constitutional petition before the Supreme Court to ensure provision of clean drinking water and safe environment for the people of Province of Sindh—Right of people to have access to clean drinking water, sanitation and a safe and hygienic environment—Scope—Commission was formed on the directions of the Supreme Court to record findings in regard to providing/supply of clean water to the residents of the Province besides the deteriorating conditions of sanitation—Visuals and footage recorded by the Commission in different cities of the Province graphically showed the actual state of waste and polluted water flowing into canals, channels and the main river, and the resulting environmental hazards and human sufferings—Provincial Government had failed to supply drinkable water , and untreated municipal and industrial sewerage was poisoning water bodies—Dangerous hospital waste was being disposed of without proper management—Supreme Court directed that visuals and footage recorded by the Commission should be sent to the Speaker of the Provincial Assembly who may arrange its viewing in the Provincial Assembly to enable the peoples’ representatives/legislators to have a clear view of the prevailing situation in the Province; that the Provincial Government shall appoint a cadre officer as Director General, Sindh Environmental Protection Agency; that a Task Force formed to comply with the recommendations of the Commission shall immediately start its work under the supervision of the Provincial Chief Secretary and shall report to the Commission; that the Commission shall have further powers to ensure compliance of the recommendations made in its report and shall continue taking all steps to achieve the objective for which the Commission was formed; that the Commission shall be at liberty to pass orders as High Court Judge whenever it was necessary in the public interest for achieving the object for which it has been constituted; that all Provincial and Federal Government departments, statutory bodies, agencies, companies under their patronage shall be bound by the directions and orders issued by the Commission; that the Commission may seek information or any detail in regard to any question relatable to water or sanitation problems in any part of the Sindh; that any expense borne by the Commission to undertake its task shall be borne by the Provincial Government; that any order of the Commission during the hearing of present proceedings cannot be appealed before any forum except the Supreme Court and it would be binding on all the Provincial and Federal Government departments and/or their agencies unless reversed or reviewed by the Supreme Court; that the Provincial Government shall be restrained from posting out either the Provincial Chief Secretary and/or any of the members of the Task Force on Water Filtration and Sewerage Treatment Plants from their office without prior approval of the Supreme Court unless a member’s three years tenure period was complete—Order accordingly.

2017 SCMR 571 SUPREME-COURT
MUHAMMAD ZAMAN  VS GOVERNMENT OF PAKISTAN through Secretary, Finance Division (Regulation Wing), Islamabad

statutory or non-statutory nature, determination of—Test of whether rules /regulations were statutory or otherwise was not solely whether their framing required the approval of the Government or not, rather it was the nature and efficacy of such rules /regulations—Court had to see whether the rules /regulations dealt with instructions for internal control or management, in which case they would be non-statutory , or they were broader than and were complementary to the parent statute in matters of crucial importance, in which event they would be statutory .

2017 SCMR 206 SUPREME-COURT
 SHAHID PERVAIZ VS  EJAZ AHMAD

rules framed under a statute—Scope—Operation of a statute or any statutory provision was not dependent upon framing of the rules —Absence of rules may affect the enforceability or operation of the statute, however, for considering the constitutionality or otherwise of a statute on the touchstone of the Constitution or Fundamental Rights, framing or non-framing of the rules under that statute could hardly be relevant.

 2017 PLC 1 SUPREME-COURT
NEMAT ULLAH    VS    CHAIRMAN GOVERNING BODY, WORKER WELFARE BOARD/SECRETARY TO GOVERNMENT OF KPK, LABOUR DEPARTMENT

Permanent post having statutory rules —Probationary/contractual period— Employer could not put the employee on contract basis/ probation for an unreasonably long period when the appointment was made against a permanent vacancy/sanctioned post—Such practice was deprecated by the Supreme Court.

2017 PLC 1 SUPREME-COURT
 NEMAT ULLAH  VS CHAIRMAN GOVERNING BODY, WORKER WELFARE BOARD/SECRETARY TO GOVERNMENT OF KPK, LABOUR DEPARTMENT

S. 8(3)—Workers’ Welfare Fund (Employees Service) rules, 1997—Constitution of Pakistan, Art. 199—Employees of Khyber Pakhtunkhwa Workers Welfare Board (“Employees”)—statutory rules of service—Workers’ Welfare Fund (Employees Service) rules , 1997 were applicable with full statutory force to the service of the employees of the Workers’ Welfare Board of the Province of Khyber Pakhtunkhwa—Moreover after the Eighteenth Amendment to the Constitution, said rules enacted by the Federal Government were exclusively within the domain of the Provincial Government/Provincial Workers’ Welfare Board—Employees could file a Constitutional petition before the High Court if there was any invasion on their service benefits and rights by the authorities.

 2016 SCMR 2146 SUPREME-COURT
MUHAMMAD RAFI  VS   FEDERATION OF PAKISTAN

Art. 199—Non-statutory service regulations/rules ––Constitutional petition before the High Court—Maintainability—Aggrieved person could invoke the constitutional jurisdiction of the High Court against a public authority if he satisfied that the act of the authority was violative of the service regulations even if they were non-statutory .

 2016 SCMR 1299 SUPREME-COURT
 NEMAT ULLAH   VS   CHAIRMAN GOVERNING BODY, WORKER WELFARE BOARD/SECRETARY TO GOVERNMENT OF KPK, LABOUR DEPARTMENT

Permanent post having statutory rules —Probationary/contractual period— Employer could not put the employee on contract basis/ probation for an unreasonably long period when the appointment was made against a permanent vacancy/sanctioned post—Such practice was deprecated by the Supreme Court.

Master and Servant 

2011 SCMR 1500

 Suit by employee against employer Bank—Rejection of plaint by forums below on ground that defendant-Bank was a statutory body, and relationship between parties was that of master and servant , thus Service Tribunal had jurisdiction in such matter and not civil court—Validity—Impugned order was self-contradictory-Once relationship between parties was held to be that of master and servant , then plaint could not have been rejected on ground that appropriate forum in such matter was Service Tribunal—Claim being agitated by plaintiff in his suit was not based on his terms and conditions of service—Courts below had wrongly rejected plaint—Supreme Court set aside impugned orders and directed parties to appear before Trial Court, which would decide suit in accordance with law.

2011 PLD 132 SC

Non-¬statutory rules—master and servant , principle of—Applicability—Constitutional jurisdiction of High Court, exercise of—Contract employees—Vested right—Respondents were contract employees and on completion of contracts, Pakistan Telecommunication Corporation Authority terminated their services—High Court in exercise of constitutional jurisdiction, directed the Corporation to reinstate respondents in service—Validity—Federal Government first sold 12% shares of Pakistan Telecommunication Corporation Limited through public subscription and then it sold 26% [all B class shares] to foreign company and remaining 62% shares of Pakistan Telecommunication Corporation Limited were still owned by Federal Government—As long as Government owned majority shares in the Corporation, either in its own name or whether wholly or partially in the name of any other organization or entity controlled by Government, Pakistan Telecommunication Corporation Limited was and should continue to be amenable to jurisdiction of High Court under Art.199 of the Constitution—Pakistan Telecommunication Corporation Limited was a person within meaning of Art.199 (5) of the Constitution—In the absence of statutory rules, principle of “master and servant ” was applicable and respondents were entitled to seek remedy permissible before court of competent jurisdiction—Employees of Pakistan Telecommunication Corporation Limited were governed by principle of “master and servant ” and in absence of statutory rules, constitutional petitions filed by employees were not maintainable—All employees having entered into contract of service on the same or similar terms and conditions had no vested right to seek regularization of their employment, which was discretionary with the master —master was within his rights to retain or dispense with services of an employee on the basis of satisfactory or otherwise performance—Contract employees had no right to invoke constitutional jurisdiction, where their services were terminated on completion of period of contract—As all respondents were covered under the definition of workman, they were entitled to one month’s notice or salary in lieu thereof, as permissible to them under the rule of master and servant —Supreme Court set aside the judgment passed by High Court in favour of contract employees of Pakistan Telecommunication Corporation Limited—Appeal was allowed.

2010 SCMR 1904

Relationship of teachers being employees of such institution was that of `master and servant ‘-–Posts held by the teachers were created under such Institutions’ own Regulations, but not in manner posts in Government Departments were created—Posts held by such teachers were not “civil posts “, thus, they were not civil servant s within meaning of S. 2(1)(b) of Act, 1973 as they were not connected with Defence or Federal Government.

2010 SCMR 1484

Employees of non-statutory corporations, who approached Service Tribunal for redressal of their grievance were not enjoying the protection of statutory rules, therefore, Service Tribunal had no jurisdiction to adjudicate upon such matters and they would be governed by the principle of master and servant.

2009 SCMR 109

Application of master and servant , rule was that an employee of a corporation, in absence of violation of law or any statutory rule could not press into service constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service.

2005 PLD 806 SC

Employee of a Corporation, in the absence of violation of law or any statutory rules could not press into service the Constitutional jurisdiction of High Court or Civil jurisdiction for seeking relief of reinstatement in service as in the case of such an employee where protection could not be sought under any statutory instrument or enactment the relationship between the employer and employee was that of a master and servant.

2003 PLD 724 SC

S. 1(4)—Employees falling within the definition of “workman” as per S.1(4), West Pakistan Industrial and Commercial Employment (Stand ing Orders) Ordinance, 1968 would enjoy the protection of the said Ordinance and their services would not be governed by the principle of , master and servant.

2001 SCMR 934

master and servant-Natural justice, principles of —Termination of service—Stand taken by the appellants before Federal Service Tribunal reflected mala fide of the appellants in removing the respondents from their services—Where before termination ,order, no opportunity was given to the employees to defend themselves against unilateral adverse action intended to be taken against them, services of the employees were terminated in violation of principles of natural justice.