Writ petition against CSD incompetent: SC

ISLAMABAD:

The Supreme Court has ruled that a writ petition against the Canteen Stores Department (CSD) was incompetent.

The top court noted that the CSD was neither a political or corporate body, nor an authority.

“As such, a petition against it by its employees before the high court in its constitutional jurisdiction is not competent,” read a 16-page judgment authored by SC’s Justice Shahid Waheed while setting aside the Lahore High Court’s decision.

A three-judge SC bench headed by Justice Munib Akhtar adjudicated two questions of law.

First, whether the employees of the CSD were in the service of the armed forces or not. Therefore, the jurisdiction of the high court under Article 199(3) of the Constitution was barred.

Secondly, whether the CSD under which the respondents served came within the meaning of “person” provided in clause (5) of Article 199 of the Constitution so that they could obtain an order from the high court directing it to reinstate them.

The CSD is an organisation whose object is to supply the personnel of the armed forces with daily use items of standard quality.

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The judgment noted that the CSD’s origin could be traced to the British control of the Subcontinent when the Army Canteen Board was established in India. It was set up as a branch of the British Navy and Army Canteen Board.

Although the Navy and Army Canteen Board in Britain was abolished in 1922 and replaced by the Naval, Army and Air Force Agency, its counterpart in India continued to function until 1927.

The Army Canteen Board was abolished in 1927 and replaced by the Canteen Contractors' Syndicate (CCS).

The verdict observed that the CSD could only be considered as an organisation that provided services connected with the armed forces.

It added that its employees could not be treated as government servants or members of the armed forces.

“Consequently, in light of this analysis, it can be safely concluded that concerning the terms and conditions of its employees, the CSD cannot put forward the bar contained in clause (3) of Article 199 of the Constitution before the high court," it read.

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The court also noted that under Article 199(5), a person included any political or corporate body and any authority of or under the control of the federal or provincial governments.

“In that vein, it is to be first ascertained whether [the] CSD could be treated as a [political or corporate] body. It may be observed that under the Anglo-Saxon Law, there are two main classes of corporations: corporations sole and corporations aggregate. A corporation sole is a [political] body having perpetual succession constituted in a single person like a sovereign or some ministers of the Crown, government officers or an archbishop, dean, a vicar, etc., who have been created as corporation sole by name under the relevant statute but this is not a common type of corporation. The corporation aggregate is more common contemporary. The method of their incorporation in Britain is either by a Royal Charter or by the authority of parliament, that is, by virtue of statute,” the verdict stated. “In Pakistan, corporations are incorporated either by a statute or by registration of companies under [a] statute such as Companies Act, associations under the Societies Act, cooperative societies under the Cooperative Societies Act, or trusts under the Trust Act. It is also common for corporations to be created by an executive order under the authority delegated by an Act of Parliament. In light of this perspective, we cannot say that [the] CSD is a body politic or corporate because the historical perspective and the precedents tell us that it has not come into being by a statute or under a statute."

The SC verdict inquired could the CSD be construed as an authority of or under the control of the federal government.

“It is now well settled that to be such an authority, it must be entrusted with functions of the government involving some exercise of sovereign or public power, and it must also be legally entitled to, or entrusted by the government with, the control or management of a local fund. In the case of [the] CSD, we find that its entire capital belongs to it and does not form part of the government money or funds. It has independent financial resources and is run by its own funds, receives no funds from any source of the government and is completely autonomous in its internal administration.”

The SC noted that the Public Accounts Committee did not scrutinise the CSD’s accounts to include them in the federal government’s fund.

“It [CSD] is a private commercial organisation and does not perform any function of the government. Since the respondents were employed when the CSD had ceased to be a government department or undertaking, the inter se relationship of the respondents and CSD was governed by the ordinary law of Master and Servant, and, as such, it follows that respondents being employees of CSD, which does not come within the meaning of clause (5) of Article 199 of the Constitution, could not maintain their writ petition before the high court to obtain an order of their reinstatement. Under Article 199 of the Constitution, their petition was incompetent.”