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Amir Chaudhry (Teaching)     13 November 2014

Help for intra court appeal for service matter

Hi

I file a writ petition in the High Court for my wrongful termination but single judge dismissed my WP as not maintainable. The single judge overlook even did not consider some important law points which i raised in my wp and written submissions.

Now i am going to file an ICA. I want to raise some serious law points/question of law in my ICA. Since i am not a lawyer but appearing as "in person", i need help that at what section of my appeal i can raise these questions of law. plz treat it as urgent and do help me.



Learning

 7 Replies

Sudhir Kumar, Advocate (Advocate)     13 November 2014

So you want to seek advise without disclosing facts of the case.

Amir Chaudhry (Teaching)     13 November 2014

I was working in a statutory body for last 15 year. the authority terminated my services without assigning any reason. The single judge held that since rules are non statutory, master and servant rule apply. The single judge completely ignored my grounds.

 

 

Originally posted by : Sudhir Kumar

So you want to seek advise without disclosing facts of the case.

 

Isaac Gabriel (Advocate)     13 November 2014

Whether the statutory body is a Government functionary?On what ground the writ was found to be not maintainabl?bring out with facts..

Amir Chaudhry (Teaching)     13 November 2014

Let me get the copy of judgment tomorrow then i'll explain in details. thanks for the concerns.

Originally posted by : Isaac Gabriel

Whether the statutory body is a Government functionary?On what ground the writ was found to be not maintainabl?bring out with facts..

T. Kalaiselvan, Advocate (Advocate)     16 November 2014

I will revert to the original query of expert Mr.Sudhir Kumar "

"So you want to seek advise without disclosing facts of the case."

You can come with the details if you are really interested in proper opinion from this forum.

Amir Chaudhry (Teaching)     17 November 2014

I must first thanks to the learned lawyers for their replies. I am not a lawyer and appearing in my case as "in Person" due to fincncial limitations.

You will be surprised that I am from Lahore. Since there is no such forum in our side for the help and guidance, so i joined this forum some years back when i filed my WP in Lahore High court. I know there are some difference between india and pakistan constitution but the fundamental chapters are almost pari materia to indian constitution. Then there is Artilce 199 of our constitution which deals with the invokation of door of the high courts.

The bank in which I was working was came into being under the bank of Punjab ACt 1989. It is a statutory body controlled by the government of the punjab. It also fall under the definition of "Person" under Article 1991 (a) (ii) read with article 199(5) of our constitution.

In year 2000, the federal government formulated an ACT called as "Removal from Service Ordinance, 2000" . In the said Ordinance the definition of employees cover the government as well as person working in the statutory and government owned companies whether public or private. The all the provinces also adopted the same Ordinace just changed the name federal with provincial.

Then in year 2006, the government of punjab repeal the said ordinance and issued "Punjab Employees Efficiency, Discipline and Accountability ACT 2006" (Peeda Act, 2006). Again the difinition of employees in Peeda Act covers the employees of gouvt. as well as statutory and govt. owned companies.

In year 2006, the board of director frame service rules of the bank in the name of HR Manual and in the minutes of 121th meeting the Board approve the same.

The old wording of the Section 25 of the BOP ACT empowers the BOD to frame by laws for all matters with the prior approval of the govt. But in year 2006, an amendment was made in the BOP ACT and the words "prior approval of the govt." were deleted. The board frame the HR Manual after that amendment.

In this HR Manual there is clause 10.3.2 which empower the President of the bank to terminate the service of any permanent employee without assigning any reason with 3 month notice pay.

So the bank terminated my service under clause 10.3.2.

Now the consistenet view of our superior court to the such matters (employees of the statuory bodies) was that "the employees of the statutory bodies in the absence of any law or statutory ruless, can not invoke the writ jurisdiction of the High Court under Article 199 and their remedy is to claim damages in the civil courts."

In some judgments of the superior courts, it is held that violation of Principles of justice is equated with the violation of law so the affected employees got reliefs on the violation of natural justice. But majority of the case laws treat the former version and in the absence of staturoy service rules, relationship of master and servant were prevailed.

In year 2013, the apex court take a turn and first time consider the effect of removal from service ordinance 2000 with regard to the employees of statutory bodies. the court held that since the employees of statutory bodies fall under the difinition of "employees" as mention in the RSO ordinace so any deviation or non compliance of the said ordinance is emenable to the writ jurisdiction of the High court under Article 199 of the constitution.

In my case i took reliance on the said judgement and submitted that my irrespective the fact of my rules are statutory or non statutory, PEEDA ACT is a statutory intervention and also has overriding effect, my service can not be terminated without following the PEEDA ACT.

Similary there was violation of Principles of NJ and fundamental rights of the petitioner.

 

BUT unfortunately, the single judge relied upon the old precedent case law and dismissed my petition on the ground that since the service rules are non statutory, writ is not maintainable.

 

THIS IS THE SUMMARY...Now I have to file ICA upto 18 of this month....I have frame some point of law...at what section of the ICA i can raise these law points......

 

MY PROPOSED POINT OF LAW ARE AS UNDER

 

Questions of Law

 

1.   Whether the violation of Principles of Natural Justice is equated with the violation of law when these are deemed to be the part of the constitutional guarantees contained in Articles 4, 9, 10A & 25 of the Constitution, and the same are embedded in every statute, rules, regulations and by-laws even if they are not explicitly mentioned therein, the same must be read into it.

2.   Whether every administrative and executive action of the government and its statutory bodies is amenable to the writ jurisdiction of the High Court under article 199 of the constitution if it violates Principle of Natural Justice and the fundamental rights.

3.   Whether statutory bodies, like the Bank of Punjab, have unbridled, uncanalazed, unfettered, unguided and absolute powers to frame any service rule, regulation or term & condition which may violates the Principles of Natural Justice and Fundamental rights of the employee

4.   Whether the Bank of Punjab fall under the definition of “Person” under Article 199 of the constitution.

5.   Whether the employees of BOP can claim the effective enforcement of fundamental rights of the Constitution under Article 199 (2) of the constitution.

6.   Whether an employee of a statutory body, irrespective of the rules/regulation statutory or non statutory, challenge the vires of any rule, regulation, term & condition or powers of the authority being ultra vires of the constitution or any other law.

7.   Whether the powers of the President of the BOP, (as mentioned in BOP HR Manual), to terminate the employees of the bank is ultra vires of BOP ACT 1989.

8.   Whether the Termination Simpliciter Clause 10.3.2 of the BOP HR Manual is ultra vires the Article 4, 9, 10A and 25 of the Constitution and also Clause 24A of the General Clause ACT and The BOP ACT 1989.

9.   Whether the Punjab Employees Efficiency Discipline and Accountability ACT 1986, (PEEDA ACT), is a statutory intervention in the service matter of the employees of the BOP and the employees of the BOP had to be dealt with under PEEDA ACT 2006. Any violation or non compliance of the PEEDA ACT 2006 is amenable to the writ jurisdiction of the High Court under Article 199. Could the employee not invoke Article 199 of the constitution to seek due compliance of the PEEDA ACT for ensuring fair trail and due process and to seek enforcement of their right guaranteed under Article 4 of the constitution which inter alia mandates that every citizen shall be dealt with in accordance with law.

10.  Whether the right of appeal is a substantive right of an employee of a statutory body which falls under the definition of “Person” under Article 199(5) of the constitution and would it not be violative of the fundamental right to a “fair trail and due process” as ordained in Article 10 A of the constitution.

11.  What is the legislative intent in promulgation of Punjab Employees Efficiency, Discipline and Accountability ACT, 2006.

12.  Whether the precedent judgments of the Apex Court before the judgment of 2013 SCMR 1707, on the issue in hand, consider the all issues with reference to the employees of statutory bodies who fall under the definition of “Person” under Article 199 of the constitution.

13.  Whether the rules/regulation framed by the BOD of the BOP under the delegated power are statutory in nature.

 

.. 

 

      

Kumar Doab (FIN)     19 November 2014

The Labor Laws worldwide are almost same and are enacted to defend the emplpure from discriminatory actions and to enforce the rule of law. The employer craves to take shelter under Master and Servant Relationship, Acts like Specific Relief Act, and create noise that court should not sit on matters pertaining to Master and Servant Relationships... The principal of natural justice prevails. There should be many lawyers in Pakistan too that help the needy and those who can't pay fee. You will have to find or request an able and experienced Labor Law Consultant /Service matters lawyer in Pakistan to take up your case as a cause....and help you......by counseling .... even if you prefer to be party in person. Although it shall be better if you are represented by an able lawyer. Usually employees win such cases.However a lawyer well versed with laws of Pakistan, judicial prouncements, Service Rules can help you the best. Trade Unions leaders of your Bank can also help you. Like in India there might be bodies like Dist/State legal authorities that provide free legal aid to eligible persons that don't have means including... unemployed....

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