[Federal Service Tribunal, Islamabad]
Present : MR. JUSTICE (R) GULBAZ KHAN, CHAIRMAN AND
NOOR MUHAMMAD MAGSI, MEMBER
……..
versus
CHAIRMAN PAKISTAN INTERNATIONAL AIRLINES ETC.

Appeal No. 652(R)/97, dismissed on 28-10-1997.

(LXX of 1973)–
—-S. 2-A/4 and 6-Government Servant-Termination of Service-Challenge to-Section 2-A whether has retrospective application or not-Question of-General impression is that S. 2-A which was added on 10-6-1997 in the Act, all matters pending before various courts stood abated-This impression is strictly against law under Article 212 of constitution, only those matters stood abated which were pending in other courts immediately before establishment of Tribunal except on appeal which was pending before Supreme Court under S. 6 of Act, all suits, appeals or applications falling within jurisdiction of Tribunal pending in any court immediately before commencement of Act, shall stand abated forth-with–Thus, those cases shall abate which are covered by Article 212 of constitution and S. 6 of the Act-Newly inserted section 2-A in service Tribunals Act, 1973 has no retrospective application-Amendment can be made applicable retrospectively if so stated in the Amending order-Services of the appellant were terminated on 21-8-77-His review petition before Supreme Court was dismissed on 27-10-1992-Section 2-A has not been made applicable retrospectively-Appeal dismissed in limine.
[P. 121 & 122] A & B

Appellant in person.

Date of hearing : 28-10-1997.

JUDGMENT

Justice (R) Gulbaz Khan, Chairman-Sahibzada K.A.K. Afridi filed the present appeal under Section 4 read with Section 6 of the Service Tribunals Act, 1973, for setting aside the order of his termination of service dated 21.8.1977, from Pakistan International Airlines Corporation.
2. The appellant was appointed as an officer in Finance Department at PIAC Head Office, Karachi vide order dated 18.2.1975. He was transferred to Rawalpindi as Liaison Officer in Finance Department, on 2.5.1975. He was redesignated as Senior Liaison Officer vide order dated 29.9.1975. The services of the appellant were terminated, on 21.8.1977. Feeling aggrieved of the order of termination of service, the appellant filed petition before the Punjab Labour Court, on 21.8.1977, under Section 25-A of Industrial Relations Ordinance, 1969, which was dismissed, on 30.1.1978. The prayer in the application was that the order of termination of service being illegal, be set aside. The appellant filed appeal before the Punjab Labour Appellate Tribunal, which was accepted, on 7.8.1978. The order of the Labour Appellate Tribunal was set aside by Lahore High Court, on 10.1.1979. The appellant filed appeal before the Supreme Court which was dismissed, on 10.2.1991 and 3.5.1992. The appellant filed review petition before the Supreme Court which was also dismissed on 27.10.1992. The appellant filed Writ Petition No. 50/93 in Lahore High Court, Rawalpindi Bench, which is still pending. The appellant filed the present appeal on the assumption that his Writ Petition stood abated due to the addition of Section 2-A in the Service Tribunals Act, 1973, which came into force on 10.6.1997. For the determination of point as to which matters stood abated on’ account of the addition of Section 2-A in the Service Tribunals Act, 1973, which came into force on 10.6.1997, we shall have to trace out the history right from the promulgation of the Constitution of the Islamic Republic of Pakistan, 1973.
3. The Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter to be referred as the Constitution), came into force on 12th April, 1973. Prior to the promulgation of the Constitution, no Civil Servant Act was in force for determining the terms and conditions of persons who were or had been in the service of Pakistan. For the first time, it was laid down in Article 212 of the Constitution that Administrative Courts and Tribunals should be established for matters relating to the terms and conditions of the persons who are or had been in the service of Pakistan, including disciplinary matters. It would be appropriate to reproduce Article 212 of the Constitution :

“Article 212. Administrative Courts and Tribunals.–
(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 persons who are or have been in the service of Pakistan, including disciplinary matters;
(b) matters relating to claims arising from tortuous acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.

(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative
Court or Tribunal extends and all 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; other than an appeal pending before the Supreme Court, shall abate on such
establishment:

Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Majlis-e-Shoora (Parliament) by law extends the provisions to such a Court or Tribunal.

(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal.”

In pursuance of Article 212 of the Constitution, the Civil Servants Ordinance, 1973 (Ordinance XIV of 1973) and Service Tribunals Ordinance, 1973 Ordinance XV of 1973) came into force on 15.8.1973. Subsequently,these two Ordinance were repealed, on 29.9.1973, by Civil Servants Act,1973 (Act LXXI of 1973) nd Service Tribunals Act, 1973 (Act LXX of 1973)(hereinafter to be referred as the Act). Till then, the Service Tribunal hadnot been established. The Service Tribunal as established on 22.2.1974. Itis laid down in Article 212 of the Constitution that notwithstanding anythinghereinbefore contained, where any Administrative ourt or Tribunal isestablished under clause (1), no other Court shall grant an injunction, makeany order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all 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; other than an appeal pending before the Supreme Court, shall bate on such establishment. Thus, it is clear from Article 212 (2) of the Constitution that all proceedings in respect of any matter to which the jurisdiction of the Service Tribunal extends and which may be pending before any other Court immediately before the establishment of the ribunal, other than an appeal pending before the Supreme Court, shall abate on such establishment. The Service Tribunal was established on 22.2.1974. All matters to which the jurisdiction of he Tribunal extended and hich were pending in any other Court immediately before 22.2.1974 stood abated. Right of appeal has been provided under Section 4 of the Act. It is laid by any final order (word ‘final’ omitted by Act No. XVII of 1997, dated10.6.1997), whether original or appellate, made by a departmental authority

in respect of any of the terms and conditions of service may, within thirty days of the communication of such order to him, or within six months of the establishment of the appropriate Tribunal, whichever is fater, prefer an appeal to the Tribunal. All matters which stood abated under Article 212 of the Constitution, a right had been conferred upon all those aggrieved persons to file an appeal to the Tribunal within six months of the establishment of the Tribunal. Such persons could thus prefer appeal to the Tribunal before 22.8.1974.

4. Section 6 of the Act also deals with the matter of abatement. It is laid down in Section 6 of the Act that all suits, appeals or applications, regarding any matter within the jurisdiction of Tribunal pending in any Court immediately before the commencement of this Act, shall abate forth¬with; provided that any party to such a suit, appeal or application, may within 90 days of the establishment of the appropriate Tribunal, prefer an appeal to it in respect of any such matter which is in issue for such suits, appeals or applications. ‘After going through Section 6 of the Act, it is to be determined as to which of the suits, appeals or applications would abate and what would be the time of limitation for filing the appeals before the Service Tribunal.
5. One category of cases is, where suits, appeals or applications were pending in any other Court at the time of promulgation of the Constitution. Such suits, appeals or applications shall abate under the Constitution, on 22.2.1974, and the appeals could be filed within a period of six months, i.e. before 21.8.1974. The other category of cases is, where suits, appeal or applications regarding any matter within the jurisdiction of the Tribunal were pending in any other Court immediately before the commencement of the Act. Such matter stood abated under Section 6 of the Act, which came into orce on 29.9.1973. Under proviso to Section 6, any party could file appeal within 90 days of the establishment of the Service Tribunal. The cases so covered under Section 6 were also covered under Article 212 of the Constitution. Thus, for all such cases falling either under Article 212 of the Constitution or under Section 6 of the Act, the period of limitation would be six months of the establishment of the Tribunal and the aggrieved parties could file appeals before 21.8.1974.
6. Word “establishment” has been used in Article 212 of the Constitution and Section 6 of the Act. We have looked into the Dictionary for finding out the meaning of word “establish”. Relevant meanings of the word are set up in a permanent or relatively enduring – nurture so that stability and continuance are assured – to settle by enactment – to bring into existence – permanent settled position – a permanent organisation. Service Tribunal had been established only once on 22.2.1974.
7. The general impression is that Section 2-A which was added on 10.6.1997 in the Act, all matters pending before various Courts stood abated.This impression is strictly against law. Under Article 212 of the Constitution, only those matters stood abated which were pending in other Courts immediately before the establishment of the Tribunal except an appeal which was pending before the Supreme Court. Under Section 6 of the Act, all suits, appeals or applications falling within the jurisdiction of the Tribunal pending in any Court immediately before the commencement of the Act, shall stand abated forth-with. Thus, those cases shall a bate which are covered by Article 212 of the Constitution and Section 6 of the Act. It is simply provided in the newly inserted Section 2-A that service under certain corporation etc. to be service of Pakistan; service under any authority, corporation, body or organisation established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest, is hereby declared to be service of Pakistan and every person holding a post under such authority, corporation body or organisation shall be deemed to be a civil servant for the purpose of this Act. Nothing has been said about the abatement of the suits, appeals or applications. If the intention had been to make the provision of abatement applicable, it would have been added that all suits, appeals or applications, regarding any matter within the jurisdiction of a Tribunal, pending in any Court immediately before the addition of Section 2-A in the Service Tribunal Act, 1973, shall abate forth-with. In the absence of this provision, we cannot hold that all the matters pending in any court before the addition of Section 2-A in the Act stood abated. To bring the pending suits, appeals or applications within the jurisdiction of the Service Tribunal, abatement of the suits, appeals or applications is a pre-requisite condition.
8. Now coming to the case of the appellant, the services of the appellant were terminated on 21.8.1977. He approached the Labour Court under Section 25-A of the Industrial Relations Ordinance, 1969, which was dismissed, on 30.1.1978. He was successful in appeal and the order of the Labour Court was set aside, on 7.8.1978, by the Punjab labour Appellate Tribunal. This last order was set aside by the High Court, on 10.1.1979. The appellant did not succeed even in the Supreme Court and his appeal was dismissed, on 10.2.1991. He filed review petition, which was also dismissed by the Supreme Court, on 27.10.1992. The appellant filed Constitutional Petition in the Lahore High Court, Rawalpindi Bench, which is said to be still pending. The appellant availed of his remedy upto the Supreme Court. His contention that his other points were not considered and only issue as to whether or not he was a workman, was decided and his appeals were dismissed. In fact, the appellant had challenged the order of termination of his service and it stood finally settled by the Supreme Court. It does not lie with the appellant to contend that his other points were not considered. If this contention is accepted, then no case can be decided for generations. Every time, an appellant would come to state that his other points were not considered and he was entitled to seek fresh remedy. On this score also, the appellant has no case.
9. The newly inserted Section 2-A .in the Service Tribunals Act, 1973 has no retrospective application. Amendment can be made applicable retrospectively if so stated in the Amending Order. The services of the appellant were terminated on 21.8.1977. His review petition before the Supreme Court was dismissed on 27.10.1992. Section 2-A has not been made applicable retrospectively.
10. For all the reasons stated above, we find no merit in appeal and dismiss it in limine.

(K.A.B.) Appeal dismissed.

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