2003 PLP (C (PLC(CS))

Authority/Chief Secretary, Azad Government of the State of Jammu and Kashmir v. Sardar Sikandar Hayat Khan PLD 1982 SC (AJ&K) 112 ref. Raja Muhammad Hanif Khan, Advocate for Appellant. Syed Nazir Hussain Shah Kazmi, Advocate for Respondents Nos. 1 to

3. Date of hearing: 6th March, 2002. KHAWAJA MUHAMMAD SAEED, J.‑‑‑This appeal, with the leave of the Court, is directed against the judgment of the High Court passed on 11‑5‑2001, whereby while accepting the writ petition filed by respondent No. 1, the judgment of the Labour Appellate Tribunal dated 3‑6‑2000, was vacated and a direction was issued to the Labour Appellate Tribunal to decide the appeal of the respondents on merits.

2. The facts culled from the record made available by the parties in the writ petition in the High Court as well as in the present proceedings before us, briefly stated, are that the appellant, an employee of the Habib Bank, was dismissed from service by respondents Nos. 1 to 3, on the ground of misconduct vide order dated 2‑9‑1984. The appellant challenged the dismissal order initially through a departmental representation before the Bank Authorities under the Bank Service Rules, and thereafter he filed a petition before the Labour Court Mirpur, for setting aside the dismissal order dated 2‑9‑1984 and for his reinstatement in the Bank Service. His petition was allowed by the Labour Court vide its order dated 23‑5‑1992. On appeal tiled by the respondents herein, the said order was vacated by the Labour Appellate Tribunal on 29‑5‑1993 and the case was remanded to the Labour Court for fresh decision. The Labour Cour once again allowed the petition of the appellant vide order dated 27‑2‑1997 and passed the order of reinstatement of the appellant in Bank Service. This order was again assailed in appeal by the respondents before the Labour Appellate Tribunal on 29‑4‑1997. The appeal was still awaiting disposal before the said Tribunal when section 2‑A was added through an amendment in the Federal Service Tribunals Act, 1973, (hereinafter to be referred as Act, 1973) on 10‑11‑1998. Under this provision the aggrieved employees of Banks were given right of appeal in Pakistan before the Federal Service Tribunal. After the insertion of section 2‑A in the Act, 1973, all the legal proceedings pending about the grievances of bank employees before any Court or Tribunal, stood abated. In the light of above referred amendment, an application was moved by Khawaja Ali Muhammad, Advocate, who was representing the Bank at that time, before the Labour Appellate Tribunal, which is as follows:‑‑ "

1. That Habib Bank Ltd. is owned and controlled by the Federal Government.

2. That under section 2‑A of Service Tribunals Act only Service Tribunal has the jurisdiction to hear and decide all cases of the employees of Federal Government. It is also laid down that no other Court has jurisdiction to hear and decide the case. It is requested that any legal orders may be passed keeping in view the relevant law."

3. On this application objections were invited from the appellant by the Labour Appellate Tribunal which were accordingly filed by him. The Labour Appellate Tribunal, thereafter, passed the following order:‑‑ "It is stated by the learned counsel for the appellant that an application on behalf of the appellant, to the effect that with the insertion of section 2‑A, in the Service Tribunals Act, it is the Service Tribunal alone which has the jurisdiction to hear and decide the cases, was moved.

2. Today, both the learned counsel appearing for the appellant and respondent, stated that in view of the aforesaid application, the appeal is not competent, as such, the same stands dismissed. "

4. This order passed on 3‑6‑2000 was challenged through a writ petition before the High Court on 29‑7‑2000, by respondent No.1, who in the line of pro forma respondents, impleaded respondents 2 and

3. The writ petition was allowed by the High Court vide judgment under challenge.

5. Raja Muhammad Hanif Khan, the learned counsel for the appellant, argued that the respondents were legally estopped to assail the order of the Labour Appellate Tribunal through a writ petition in the High Court, as respondents themselves had moved an application for appropriate order in view of the newly inserted section 2‑A, before the Labour Appellate Tribunal and, thereafter, the appellant at the time of passing of the order by the Labour Appellate Tribunal, admitted that the appeal preferred by them stood abated. According to him, no party in law can be allowed to play hot and cold in the same breath. He further argued that the High Court travelled beyond the prayer of the respondents in the writ petition by issuing the direction to the Tribunal to decide the appeal of the respondents on merits. According to him after the insertion of section 2‑A in the Act, the appeal preferred by respondents stood automatically abated in view of section 6 of the same Act. He further contended that this amendment was adapted by the Azad Jammu and Kashmir Council on 31‑12‑1998. The grievance petition tiled by his client under the Industrial Relations Ordinance, 1974, (hereinafter to be referred as Ordinance, 1974) was allowed by the Labour Court vide its order dated 27‑2‑1997. He further argued that the respondents, herein, therefore, under the changed circumstances should have invoked the appellate jurisdiction of the Federal Service Tribunal within next 90 days as provided under section 6 of the Act. According to the learned counsel the respondents in total disregard of the law, wrongly invoked the Constitutional jurisdiction of the High Court under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. (hereinafter to be referred as Constitution Act, 1974) and the High Court also misdirected itself by allowing the same through the judgment under challenge in the present appeal. In support of his contention the learned counsel for the appellant placed reliance upon case titled National Bank of Pakistan Principal Office Peshawar v. Anwar‑ul‑Haq 1999 PLC (C.S.) 316 whereby one Anwar‑ul Haq, an employee of the Bank was charge‑sheeted for commission of fraud, misappropriation and breach of trust and after taking proceedings under the disciplinary law was compulsorily retired from his service vide order dated 20‑12‑1984. He filed the grievance petition before the Punjab Labour Court. His grievance petition was accepted by the said Court on 29‑10‑1988. The appellant‑Bank, assailed the judgment by preferring an appeal before the Punjab Labour Appellate Tribunal, which was dismissed in limine on 21‑12‑1988. The appellant‑Bank, thereafter filed a writ petition in Lahore High Court which was abated by the order of the Court due to insertion of section 2‑A in the Act. The Bank, thereafter, filed an appeal before the Federal Service Tribunal which was dismissed on the ground of limitation because the appellate jurisdiction of the Service Tribunal was availed after wasting further 33 days for which no satisfactory explanation was tendered.

6. While controverting the arguments of the learned counsel for the appellant, Syed Nazir Hussain Shah Kaznu, the learned counsel for the respondents, argued that the application was moved on behalf of the Bank by Khawaja Ali Muhammad, the learned counsel of the Bank, at the relevant time for an appropriate legal order in view of insertion of section 2‑A, in the Act, 1973. There was, therefore, no justification for the Labour Appellate Tribunal to record the order of abatement of the appeal filed by the present respondents. He further contended that as order of reinstatement in service has been passed by Labour Court in favour of the present appellant, therefore, against such order appeal is competent before the Labour Appellate Tribunal and the Service Tribunal has got no jurisdictional competence to entertain appeal against such order in view of section 42 of the Ordinance, 1974. The learned counsel for the respondents pressed the findings of the High Court recorded in the following words:‑‑ "In the case of appeal before the Labour Appellate Tribunal against the order of the Labour Court, the provisions of section 2‑A of Service Tribunals Act were attracted notwithstanding the application of the petitioner, which on the face of it is misleading. It was the duty bf the Labour Appellate Tribunal to apply its mind when the application was filed and then decide the matter as the law was clear on the point that the Labour Appellate Tribunal was competent to hear the appeal under section 42 of the I.R.O. and the provisions of section 2‑A were not attracted and the appeal could not be dismissed. The authority cited by the learned counsel for the respondents is not attracted in the case. "

7. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case.

8. It is an admitted fact that in Pakistan, section 2‑A was inserted on 7‑6‑1997 in the Act, 1973. This provision was adapted by the Azad Jammu and Kashmir Council on 31‑12‑1998. The grievance petition filed by the A present appellant under section 30 Of the Ordinance, 1974, was second time decided in his favour by the Labour Court Mirpur on ,27‑2‑1997. At that time section 2‑A was not added in the Act, 1973, therefore, the Bank Authorities had rightly availed the right of appeal under section 42 of the Ordinance, 1974, before the Labour Appellate Tribunal. Their appeal was still awaiting disposal when on 7‑6‑1997, as said earlier, section 2‑A was inserted in the Act, 1973. It is cardinal principle of law that the law is to be taken into consideration as a whole. In case titled Khalid Mehmood Butt and others v. Managing Director AKMIDC and others [Civil Appeal No. 128 of 2000 decided on 8‑2‑2002], this Court after discussing the number of authorities has laid down the following principle for the interpretation of documents having the force of law. The relevant paragraph of the judgment reads as follows:‑‑ "It is the fundamental principle relating to the interpretation of a statute that it should be read as a whole and no part or word of it should be omitted from consideration. It is also an admitted principle of interpretation of statute/rules, that the intention behind the statute/rules must be taken into consideration which can be gathered from looking into the statute/rules as a whole and further that all attempts should be made to reconcile various provisions of the statute for rational meaning avoiding redundancy to any provisions thereof."

9. Section 6 is the part of Act, 1973. The employees of the Departments which falls within the jurisdictional competence of the Council could at that time avail the appellate jurisdiction of the Federal Service Tribunal for the redressal of their grievance. Recently the AJ&K Council Service Tribunal has been established in Azad Jammu and Kashmir and till the establishment of this Tribunal as said earlier, the employees of the Departments under the jurisdictional control of the Council, used to avail the appellate jurisdiction of the Federal Service Tribunal under law which was applicable at that time. Under section 6 of the Act, 1973, all legal proceedings pending before any Court or Tribunal or Authority, stood abated and within next 90 days the aggrieved party who had availed the remedy before any Court or Tribunal, after the abatement of such legal remedy by the operation of section 6 of the Act, 1973, was entitled to avail the appellate jurisdiction of the Federal Service Tribunal within next 90 days. In the present case after the insertion of section 2‑A and the order of dismissal recorded by the Labour Appellate Tribunal on 3‑6‑2000, the Bank should have availed the remedy of appeal under the Act, 1973, before the Federal Service Tribunal. Respondents after the wastage of considerable period, filed a writ petition in the High Court. This remedy under the scheme of law was not available to them. Section 2‑A in fact is a procedural provision which had changed the forum for the remedy. It had not taken away any vested right of the parties. In case reported as Adrian Afzal v. Capt. Sher Afzal (PLD 1969 SC 187), almost identical proposition was under consideration and after discussing number of authorities it was observed by the Court that if the matter is merely of procedural nature it will operate retrospectively. However, if the amendment is of such a nature, that it also affects the existing rights of substantive nature which would cause inconvenience and injustice, then the Court would not give retrospective effect to such procedural amendment. Again the apex Court of Pakistan in the case reported as Nabi Ahmed and another v. Hame Secretary, Government of West Pakistan, Lahore and 4 others (PLD 1969 SC 599); observed that the statutes are presumed to be applicable prospectively unless a clear intention for retrospective effect is shown in the law. Earlier in Muhammad Alam and 3 others v. The State (PLD 1967 SC 259), the same view was taken by the Supreme Court of Pakistan.

10. The learned counsel for the respondents has placed reliance upon the authority of this Court in a case reported as Referring Authority/Chief Secretary, Azad Government of the State of Jammu and Kashmir v. Sardar Sikandar Hayat Khan (PLD 1982 SC (AJ&K) 112), wherein it was observed that the rights of the parties are to be decided according to law which existed at the time of initiation of the action and not according to law which existed at the time of the judgment or order. In the same authority it was observed that if the matter is merely of a procedural nature that would operate retrospectively if it was not otherwise intended by the Legislature. Now while judging the operation of any law, whether it is merely of a Procedural nature or it affects substantive rights of the parties the question is to be decided in the light of the provisions of the relevant statute and no general principle can be laid down in this regard. In the present case the remedy of the Bank employees before any other forum has been prohibited after the insertion of section 2‑A in the Federal Service Tribunals Act, 1973 and they have been allowed to get their service dispute resolved in appeal before the Service Tribunal. No change has been made in the law which could affect the substantive rights of the parties, only a new forum has been created by the insertion of section 2‑A, under section 6 of the Act, 1973, the proceedings before any other forum after the insertion of section 2‑A automatically stood abated. After the insertion of section 2‑A in the Act, 1973, the jurisdiction of all other forums including the High Court dealing with the grievance of the Bank employees, stood closed and the Federal Service Tribunal was given the exclusive jurisdiction in this regard in view of the provisions of section 6 of the Act, 1973. The respondents under section 6 could have preferred an appeal before the Federal Service Tribunal within next 90 days. The respondents could avail the benefit of section 5 of the Limitation Act for the extension in limitation, if some good grounds is available to them. They without any justification filed a writ petition in the High Court which was opposed to the scheme of law and, therefore, was not maintainable. In view of above, while allowing this appeal with cost, the judgment of the High Court dated 11‑5‑2001, being without jurisdictional competence, is set aside. S.A.K./314/SC/AJK Appeal allowed.