S. ANWARUL HAQ, C. J. ASLAM RIAZ HUSSAIN, MUHAMMAD AFZAL ZULLAB,
NASIM HASAN SHAH, JJ FEDERATION OF PAKISTAN
versus
MUHAMMAD SIDD1Q
Civil Appeal No. 109 of 1976 and Civil Appeals No. 49, 50, 51, 52, 53 and 112 of 1977 all decided on 26-M 980.
(i) Service Tribunals Act (LXX of 1973)—S. 6 proviso—Provisions qua abatement of suits and other proceedings—Change in language of proviso— Phrase “any civil servant who is a party to such a suit” substituted by phrase, “any oarty to such a suit”—Effect of change : appeal or proceedings at the
instance of Government entertailiable by Tribunal. (Para. 16)
PLD 1976 Kar. Ill overruled.
(ii) Constitution of Pakistan (1973)—Art. 212—As amended by Constitution (First amendment) Act (XXXIII of 1974) dated 8th May 1974 : Proceedings pending before other Courts immediately before establishment of Administrative Court or Tribunal to abate on such establishment—Though abatement could not take place until Tribunal was established but amendment in Art. 212.effected that provision qua abatement “shall be deemed always to have been inserted”— Date of abatement would be date of establishment of Tribunal—S. 6, Service Tribunals Act (1973). (Para. 17)
(ili) Service Tribunals Act (LXX of 1973)—S. 6 -Abatement—S. 6, Service Tribunals Ordinance (1973) and Constitution of Pakistan (1973) Art. 212 (2)— Abatement to be effective from date of establishment of Tribunal and not from commencement of the Act or the Ordinance. (Para. 17)
(Iv) Service Tribiuuls Act (LXX «f 1973)-S. 4 (1) proviso (c) and S. 6 proviso—Proviso (c) to subsection (1) added on 6th May 1974 and not retros¬pective in operation—Bar of right to appeal against an order or decision made before 1st July 1969—Bar effective from 6th May 1974—Right to file appeal accrued prior to the bar no; taken away by the bar—Abatement taken place under S. 6 on establishment of Tribunal on 22nd February 1974—Right to appeal thus accrued vide proviso (c) to S. 4 (I) could be availed by filing appeal on establishment of Tribunal on 22nd February 1974 vide proviso to S. 6,
(Para..a 8)
(v) Service Tribunals Act (LXX of 1973)—S.4 and S. 6—Right of appeal vte-a- y/z,abatement of proceedings—Applicability to WAPDA Employees by enactment of Water < & Power Development Authority (Amendment) Ordinance (XV£ of 1975) S. 2 enforced on 30th September 1975—The Act LXX ot 1973 though enacted on 29th September 1973 but provisions to cover WAPDA Employe*! would be effective from 30th September 1975 and proceedings pending befon ot',:er Courts would abate on this latter dale—Peripd of limitation woul« commence on such date of abatement I.e. 30th September 1975—Whether S, • controls the right conferred by S. 6—Matter not dealt with. (Parac. 21, 22 5. Muhammad Shahudul Haq ASC and Rana Maqbool Ahmad Qadrt AOR for Appellant. Zafar&ajwa ASC with Respondent. Dates of hearing: 7/12/17/21/ 2411-1979. JUDGMENT Mohammad Afial Zullah, /.—Similar questions of law are involved in these service appetils under Article 212 of the Con titution. They are being disposed of together. 2. AD the appeals can be split up in three categories. Civil Appeals No*. 49 and SO of I.P77 which were filed by Water and Power Development Authority WAPDA) would fall in one category, appeal No. 55 of 1977 which filed by a civil servant forms a different category and all the remaining appeals which were filed by the Government would constitute yet another category. The common law points, relate to the interpretation of various provisions of the Service Tribunals Act ; a.t*4 in -particular, the provisions which relate to the jurisdiction of the Tribunal to entertain appeals after abatement of proceed iags which were pending in different Courts, under the ordinary law. 3. For facility of reference some of the provisions which would com* under discussion are reproduced below : Servici Triimmig Act, W3 :~<€atae into force on 29th September 1973 i» place of ffereiae Tribunate Ordinance. 1973 which had come into force o» (2) A Tribunal sbaHfcave exclusive jurisdiction ia respect of mutters relating to the terms and conditions of service of civil servants, including disciplinary matters 4. Appeal to TeiiHmels. — (i) Any civil servant aggrieved by any final order, whether original or appellate, made by * departmeuul anthority in respect of any of the terms and conditions of kit service may, within thirty days of tbe communication of sncfe order fftltun, (or within §ixv im>nths of the establishment of :be appropriate TribanAl, wbtcb ever ii later prefer no appeal to tke Tiibonal).f
(*) …………. …. ……………. -(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority nude at any jtime before the ist July 1969.”
(2) …….. …………. ………… prefer appeal to the Tribunal having juri* « – tbe mauer” *^« service Trilw»i»Js (Amendment) Act (31 of 1974) which ca»e into force on 6-5-1974).
(«) P«a (c> added by Semce Trtb«B«ts (Aaaoa4«»a»> Act (31 of 1974), wh ichcarmeipto fore* OB

Explanation.— la this section “departmental authority” means any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants.
6. Abatement of suits and other proceedings- —M suits-appeals or applica¬tions regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Act shall abate forthwith : —
Provided that (any party)'” to such a suit, appeal or application may within ninety days of the (establishment of the appropriate Tribunal, prefer an appeal to it)'” in respect of any such matter which is in issue in such suit, appeal or application ,
9. Repeal.~Tbe Service Tribunals Ordinance, 1973 (XV of 1973), is hereby repealed.”
4. The Service Laws (the Act- as also the repealed Ordinance) were made in pursuance to the mandate contained in Article 212 of the Constitution which reads as follows : —”212. — (1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act” Provide for the establishment of) one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of.
(a) matters relating to the terms and conditions of persona” (who are or have been) ia the service of Pakistan, including disciplinary matters;
(A) ………. – ….. … ……………
(«).. …… ……… …… -• …… : –
(2) Notwithstanding anything hereinbefore contained, whew my Adminis¬trative Court or Tribunal is established under clause (I), no other Court snail grant an injunction, make any order or entertain any proceedings in in respect of any matter to which htbe jurisdiction of suck Admhmtratif* Coujt of Tribunal extends**’ (and ail proceedings in respect of any-such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal****,
(in} £u6stituted’ in trie Act for toe words ‘any civil servant who is a party’ as in the Ordinance.
(/») substituted for the words and comma ‘•commencement of the Act, prefer an appeal to the appropriate Tribunal” vide Service Tribunals (Amend¬ment) Act (31 of 1974) which came into force OB 6-5-1974.
(>) Inserted and shall be deemed always to have been so inserted by the Constitution (First Amendment) Act, 1974 (33 of 1974> section 12. (8-5-1974).
(t- 1) Inserted and shall be deemed always to have been so inserted by too Constitution (First Amendment) Act,1974, section 12, (8-5-1974).
Inserted and shall be deemed always to have been so inserted by the Constitution (Fifth Amendment) Act. 1976 (62 of 1976), section 15. (Dated 15-9-1976).other than an appeal pending before the Supreme Court,) shall abate on -uch establishment).
Provided that the provisions of this clause shall not apply to an Administrative Court of Tribunal established under an Act or a Provin¬cial Assembly unless, at the request of that Assembly made in the form nf a resolution Parliament by law extends the*1 provisions to such a Court of, Tribunal.
(3) An appeal to the Supreme Court from a judgment, decrees, order or sentence of an Administrative Court of Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave so appeal.
5. The facts in the two Appeals filed by WAPDA are that the respondents therein who claimed to be employees of WAPDA at Tarbela Dam filed suits on 3!st of July 1974 for a declaration regarding their oay and emoluments. The suits were decreed in iheir favour on 30th of July 1975. WAPDA filed appeals before the District Court which were withdrawn on 4-3-76 (C. A. 49) and 2-3-1976 (C. A 50) respectively and instead the appeals were filed before the Service Tribunal. Islamabad, which were dismissed en 24th June 1976. It was assumed by the learned Tribunal that WAPDA and its employees were governed by the Service Tribunals Act by virtue of Water and Power Development Autho- ity(Amcndment) Ordinance, 1975 which came inio effect from 30th of September 975 and declared that the service under the Authority would be the service of Pakistan (excepting few exclusions) for the purpose of the Act. Despite that it was held that ‘the only section of law which entitles Government to institute an appeal against a civil servant is section 6 of the Service Tribunals Act of 1973. li creates entitlement only if a suit or appeal was pending at the time of passing the Service Tribunal Act. 1973. In the present case, no such appeal being pending in September, 1973, the section is wot applicable”. The appeals it was accordingly observed, were not entertainable.
6. In Civil Appeal No 55/77 the appellant had joined service in the Department of Civil Aviation. Government of Pakistan in 1964. As a re»ult of departmental action, be was dismissed from service with effect from 2-8-1969 His civil suit challenging the dismissal was decreed on 3-6-1970. However, he was again proceeded against and was removed from service on the 22nd of De¬ cember. 1970 He again sought remedy through a civil suit which was deeieed on 13-3-1972. The Director General of Civil Aviation filed an appeal in the District Court, which it was held on I8-12-S973, had abated on the promulgation of the Act, The Government then filed an appeal on the establishment of Service Tribunal which was allowed by it and the order of removal of the appellant herein was maintained. On an objection a* to “whether an appeal by a Govern¬ ment Department is competent, as section 4 of the Tribunal “Act gives a right of appeal to a civil servant only”, it was held that the appeal to the Tribunal, by the Department was “competent under section 6 of the Service Tribunals Act which lays down that any party tr» such a suit or appeal may prefer an appeal may prefer an appeal to the appropriate Tribunal”. It was further observed that “the appeal of the- Department in a Court of Law abated OB creation of the Tribunal, and the Department filed an appeal .10 the Tribunal within the prescribed time limit”. The appellant has challenged the decision of the Tribunal amongst others, on the ground that it was passed on an appeal which was not competent.__ ________
7. (j”x) For such law, see the Provincial Service Tribunals (Extention of Provi¬sion* of the Constitution Act, 1974 (32 of 1974). (Dated 6-5-1974).
7. As already noted all the remaining appeals have been filed by the Government Departments. For purpose of determination of the legal questions involved therein, it is not necessary to give all the facts in each appeal. The following particulars showing the proceedings before the Courts as also the Tribunal in these appeals would suffice : —
8. In Appeal No. 109 of 1976, the Departmental action was taken acainst the respondent on 6-8-1964. His suit challenging the same was decreed on 13-1-1973 by the Additional District Judge on original jurisdiction. The first appeal by the Government in the High Court of Sind and Balu histan at Karachi was deemed to have abated on the Promulgation of the Service Tribunals Act. The Government then filed an appeal under section 4 of the Act which was rejected on he 20th February 1975, on a finding that the Tribunal had no jurisdiction to entertain the same.
9. In Civil Appeals Nos. 5.1 and 52 of 1977, the Departmental action was taken on the 13th of February, 1952. Civil Suit in one case was dismissed. In the other (C.A. 52) it was decreed However, on first appeal by the civil servant the first mentioned suit (C.A. No. 51) was also decreed while the Government appeal in the second suit was dismissed. The second appeals filed by the Government in the Higbt Court were deemed to have abated on account of section 6 of the Service Tribunals Act. The formal order in this behalf was passed on the 21st of December 1973 Appeals were then filed before the Tribunal which were dismissed on the earlier stated ground of incompetence.
10. In Appeal No. 53 of 1977, the Departmental action was taken on 8-2-1965. Respondent’s suit was dismissed on 30th September 1969. The first appeal was accepted on 30th October 1971. The Government’s second appeal ia the High Court was deemed to have abated and the appeal under section 6 of the Act was dismissed on 31st August 1976, as incompetent.
11. In Appeal No. 112 of 1977, the Departmental action was taken on J4-1Q-1967 The respondent’s suit was decreed on 14-4-1976. The Director General, Pakistan Rangers, filed an appeal on 25-5-1976 which Was rejected on 14-10-1976. On revision in the High Court, it was contended that by virtue of section 6 of the Act. the suit of the plaintiff had abated immediately on coming into force of the said Act. However, the High Court held that the Departmental action having been taken before the 1st of July 1969. section 6 of the Act was not attracted. Accordingly the revision was dismissed.
12. ft is c/ear from t&e foregoing details fa CM! Appeals Nos. lO9f?6aa to section 4 (1) is applicable only to the appeals filed by the civil, servants under section 4 (1) and not to the appeals which were filed by a party under the proviso to section 6.
15. In the repiy from the respondents side it has been urged; that the orders passed before J-7-1969 were taken out of she jurisdiction of the Tribunal, 8Cd as the abatement was linked in the purview of section 6 with the jurisdic¬tion of the Tribunal, therefore, the proceedings before the Courts did not abate and the provision for an appeal under the proviso to section _ 6 did not change this position ; that (in the alternative) if prior to the amendment in the Act (of 6-5-1974) when the bar did not operate) the proceedings abated, the abatement would be deemed to have taken place on the enactment of the Ordinance on 15-SH973; the Government as a.party had no right then to file an appeal under the proviso to section 6 of thfrQrdioanee and that being so, when the Act came into force on 29-9-1973, thefo*«s«ss nothing left before the Courts which would abate under section 6 d.Ffhe Act, therefore, the question of appeal under the proviso thereto would Aoi arise—-reliance has been placed in ths$ behtlf on Axod Government and another v. Sheikh Mohammad Sadiq and another (PLD 1979 Azad J & K 37) ; that although the amendment in section 4 of the Act was not retrospective and would not “affect the right to file an appeal which had aJreadv accrued, yet this concession ‘would be of no use to ‘he Ooverament as it had no right of appeal—reliance was placed on Poklitan through the Secretary, Ministry of Industries, Karachi v. S. M. ttafisul Hassan Shah (PLD 1979 Karachi 117) and that in any case Government appeals were time barred. Mr. Mohammad Siddiq one of the respondents also advanced argument* to show that the Government had a weak case on the merits.
16. It is not possible, we regret, to uphold the view taken by a learned single Judge in the High Court in the case of S M, Nafisul Hassan Shah to the effect that an appeal filed by the Government is not at all entertainable under the Act. It is true that in the proviso to section 6 of the Ordinance which
preceded the Act, it was specified that a civil servant, who was a party to suit/ appeal or application which abated, under the purview of section 6, could prefer an appeal to the appropriate Tribuoal. But in the Act itself a change was brought about in the language of the proviso. The phrase ‘any civil servant who is a party to such a suit’ was substituted by the phrase ‘any party to such a suit*. The Act was promulgated on the 29th of September 1973 while the appeal before the Service Tribunal in the said case was Sled on the 24th of October, 1974. If this change would have been brought to the notice of the High Court, the observation that the Service Tribunal bad no jurisdiction to bear appeal or to entertain any proceedings”‘-of any kind whatsoever at the instance of the Goversrnent”, would not have been made.
17. The real controversy underlying al! the main questions raised in these cases is as to when, in point of time, the abatement visualised by the relevant Service Tribunal laws had fakers place. No doubt, under the Ordinance the abate¬ ment wouSd be “forthwith”, on the commencement of tSie said Ordinance in Isth of August, 1973. The Act came into force on 29th of Septemper, .’973. Same language was used ia section 6 thereof in this behalf; namely, that the abatement would be forthwith on the commencement of the Act i.e. 29th of September. 1973. The matter does not end here. These laws were made, as already noted, uader the mandate of Article 212 of the Constitution. By Constitution (First Amendment) Act, 1974 (Act XXXIH of 1974) it w«S provided that all proceed¬ ings in respect of matters governed by Artiek 212 wWcfemay be pending before such other Court immediately before the establishment of the Administrative
Court of Tribunal——- -shall abate on such establishment”.- There are no two opinions regarding (he policy of law that a conscious effort was mad to continue ihe remedies then being pursued (of coarse with some changes) under the oew service laws. The proviso 10 section 6 (whether of the Ordidftnce or of the Act), in pursuance to the same principle provided that where aoaieraent of a matter took place, under the purview thereof, aa appeal to the appropriate Tribunal could be preferred within rhe stipulated period of 90 days. Itj^ admitted fact thai the appropriate Tribunals were not. established till severs! months after the promulgatioa of the Constitution aad the said laws. It appears that no account of these reasons, and the factual position having been faj note of, appropriate amendment was made in the C0s»litutiop ; namely, thai the abatement iiself, instead of having saken phsee on the commgncement of too Ordinance or ihe Act, would take piace on the establishment of the Tribun The Constitution (First Amendment) Act itself casne* into force on the 8th af May, 1974. Sub-clause (fc) of section 12 thereof provided that stee amendment of Article 212 of the Constitution, by addition of the provision relating to abatement “shall be deemed always to have been inserted” in tas said Article. The Constitution was promulgated on the 12th of April, 1973. It would be clear that the abatement as provided in the Constitution could not take place unless and until the Service Tribunal was established. Thus the abatement took place on the 22nd of February, 1974 i e. the date of the establishment of the Service Tribunal. The other so-called abatement/s under the Ordinance and/or the Act in face of the mandatory provisions regarding the time of abatement (contained in Article 212 of the Conttitution, would not be recognised and {Accepted as affecting the rights of the conoerned parties in this behalf. It was so envisaged by the amended Article 212 of the Constitution. The hearing ia the case of Khan Faizullah Khan took place in this Court on the 27th of May, 1974. The Constitution (First Amendment) Act 1974, having already come into force, due note of the effect thereof was taken and it was held therein that “it will be seen that the language of Article 212 leaves no doubt that at and when as appropriate Tribunal is established with jurisdiction to deal with the matter in controversy, only then any proceedings”concerning thereto pending in any other Court shall abate”. (Underlining is ours) (Herein Atalics). No further discussion is necessary on the question that the date of abatement would be the date of the establishment of the Tribunal which as noted earlier, all the learned counsel agree, was 22nd of February 1974.
IS. The amendment in section 4 of the Act whereby proviso (c) to sub¬section (1) thereof was added, was made on the 6th of May 1974. By virtue of this amendment, it was provided that no appeal shall lie to a Tribunal against an order .made at any time before the 1st of July 1969. All the learned ounsel agreed on the point that the right of appeal once confered could not be nullified unless the law taking away such a right is made to operate retros¬pectively. It is also agreed that the amendment whereby proviso (c) was added was not retrospective in its operation. That being so, if right to file appeal had accrued to a party prior to 6-5-74, that party would be entitled to file iae appeal, notwithstanding the bar contained in proviso (c). It has already been held that the relevant law’ did not leave any aggrieved party rejaedyless on abatement of the proceedings. The right of appeal to the Tribunal automatical¬ly accrued contemporaneously at the time when the abatement took place. As already held, the abatement took place on the establishment of the Tribunal on the 22nd of February 1974. On the very date, immediately on the abatement, ihe aggrieved parties became entitled by virtue of the proviso to section 6 of the Act, to file appeals before the Service Tribunal. This right of appeal was not taken away by the subsequent amendment whereby proviso (c) was added to •iubsection (4) as it was not retrospective. Thus appeals could be filed before and competently entertained by the Tribunal, notwithstanding the bar contained in proviso (c).
19. fn Civil Appeal No. 55 of 1977. the Tribunal, on an objection raised by the present appellant, held that the appeal of the department before the District Court abated on creation of the Tribunal. Whereupon an appeal was tiled before the Tribunal which was competent. This is in accord with the view we have taken. There is no force in the said appeal and it is accordingly dismissed.
in the Civil Appeals Nos. 109 of 1976. 51 of 1977, 52/77 and 53 of 1977, the proceedings before the ordinary Courts abated on the 22nd of February 1974, on the establishment of the Tribunal, notwithstanding the fact ihat the formal orders regarding abatement were passed therein on different dates. It has not been disputed by any learned counsel that the abatement were whomever it took place did not require a formal order, to make it a fact. Thus the form¬ality of an order regarding date thereof becomes insignificant. Accordingly, in these cases the abatement having taken place on the 22ad of February 1974,. right to file an appeal before the Service Tribunal under the proviso to section 6 of the Act, immediately accrued to the Government which was an aggrieved party in these cases. This right was not takea-away retrospectively by proviso Government could therefore, file the appeals and the Tribunal was not only emitted but under a duty to entrtain and decide the same on merits in iccordance with law. The Tribunal failed to exercise jurisdiction vested in it. Tbese appeals accordingly are allowed. The cases are remanded to the’ Tribunal for decision in accordance with law.
20. In Civil Appeal No, 112 of 1977, the original suit filed by the respon¬dent was pending when the Constitution (First Amendment) Act came into force. It was also pending when the Tribunal was established on the 22nd of February 1974 The respondent (civil servant) then had a right to file an appeal before ihe Service Tribunal. The objection of the present appellant before the High Court with regard to the competence of subsequent proceedings before the ordinarv Courts could not be over-ruled We allow the appeal, set aside the order o- “he High Court and direct that the said matter would proceed in iccordance with law as if the suit of the respondent abated before the Civil Court on the 22nd of February 1974. On this abatement the respondent became entitled to file an appeal before the Tribunal. If so advised, the appeal may even now even filed by taking due advantage of the provisions contained m the Limitation Act regarding proceedings taken and pursued bonafide before wrong forums.
21 As noted in the opening part of this judgment, the Appeals Nos. 49 tod 50 fall into a separate category. Suits of WAPDA employees (respondents) were filed on 3lsi of June 1974. They were decreed on 30th ot July 1975. The WAPDA filed appeals before the District Court which were withdrawn on 4-3-1976 and 2-3-1976 respectively. The Water and Power Development Authority (Amendment) Ordinance 1975 came into force on 30th of September 1975 H was declared that the service under the WAPDA would be the service of Pakistan (excepting few exclusions) for the purpose of the Act. The service appeals filed by the WAPDA were dismissed by the Service Tribunal as in competent on the assumption that the Amendment Ordinance having come into force on 30th of September 1975, the appeals filed before the Tribunal could ‘not be enterained because the suits or appeals before the Civil Courts out of which they arose were not pending at the time of the passing of the Act. In mch like situations the underlying principle appears to be that whcr -. statute it extended to a territory or class of persons who were original!/ not covered by it, regarding those territories and persons when a new statute it enacted, by reference’ to the original statute, the date of commencement given in the original statute is synchronised with the date on which the said statute is extended to the new territories and/or persons. In these cases, the original statute i c. the Act was enacted on’29th of September 1973. The Water and Power Development Authority (Amendment) Ordinance 1975 whereby the Act was extended to the WAPDA employees came into force on 30th of September 1975, Therefore, the Act would apply mutatis mutandis to the WAPDA emp¬loyees on and after 30th of September 1975. The civil appeals by the WAPDA filed before the District Court against the decrees passed by the learned trial Judge were pending before the District Court on 30tb of September 1975. Therefore, they abated on ib,e said date That being so, the WAPDA had the right to file appeals before the Tribunal under the proviso to section 6 of the Act. of course, the the said provision, on account of natural barrier of time. would apply mutatis mutandis, meaning thereby that the period of limitation would commence from the date of the abatement; namely, 30th of September 1975. The view ot the Tribunal that the appeals were not competent because the matter was not pending before ihe original courts before the 29th of Sept¬ember 1973, wa> e\ facie erroneous. T6e relevant date in these cases was the Of S«pttttb«r 1975 wb«n the Act was extended to the employees of the P&A. time t«o appeals are accordiaf ly allowed and the casts are remanded to th* Service Tribunal for decision os merit*.
22. In *U these cases the parties ate left te bear their own costs.
I in view of oar decision regarding the date of the application of the bar (contained in proviso (e) to subsection (!) of section 4, it is not necessary in jthis matter to deal with the other question as to whether section 4 of the Act (controls the right conferred by section 6 thereof nor there is any compelling reason fur us to reconsider in these cases the -icw in that behalf taken in the cas* of Khan Faintlleh Khan and reiterated i» Mamie Republic of Pakistan through the Secretary* Affinistry of Defence, Go.-m-at.it of Pakistan, Rawalpindi and another v. Jmjetl AK Mima (PLD 1977 SC l%2).

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