2005 PLP 843 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

This appeal, after leave of Court, is filed by General Manager (H) Pak Arab Fertilizers Ltd. Khanewal Road, Multan against the judgment dated 11-2-2000 of the Federal Service Tribunal whereby the appellant's appeal was dismissed on the ground that under section 4 of the Service Tribunals Act, the management or the department had no right to file an appeal and further that such appeal is only maintainable if filed by an aggrieved civil servant.

2. Muhammad Ayub respondent, working as Assistant Manager in the appellant company, his services were terminated on 25-2-1975. He filed grievance petition under section 25-A of Industrial Relations Ordinance, 1969 before Junior Labour Court Multan which was dismissed on 8-4-1975. The respondent went in appeal before Punjab Labour Court, Multan whereupon he was reinstated vide order dated 6-12-1975. The aforesaid order of the Labour Court was challenged by the appellant company before the High Court through writ petition No.54 of 1976. This writ petition was dismissed on 30-4-1999 as having abated due to insertion of section 2-A in the Service Tribunals Act, 1973.

3. After this abatement and u/s 6 of the Service Tribunals Act, the appellant filed an appeal before the Service Tribunal on 12-5-1999, which was dismissed through the impugned order. The finding of the Tribunal was that section 6 was operative from 26-9-1973 for a period of 90 days and that thereafter the section having become inoperative, it was not applicable to the present case.

4. Irrespective of what is the fate of the present appeal, we are of the view that the above verdict of the Tribunal was not in accordance with law and section 6 of the Service Tribunals Act had never become inoperative. Whenever any enactment constitutes a forum of appeal, in the form of Tribunal for some category of employees, the Tribunal stands established for such purpose and hence under proviso to section 6 the establishment of a Tribunal becomes operative and so the provisions of section

6. By insertion of section 2-A, the Service Tribunal stood established for all those employees, the description of whom is given in the section.

5. Coming to the merits of the present case, it would be appropriate to reproduce section 6 of the Service Tribunals Act as follows:-- "Section

6. Abatement of suit and other proceedings.

All suits, appeals or applications 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."

6. The section specifically lays down that upon the establishment of the Tribunal, the causes that abate before any other forum would be the suits, appeals or applications. In the instant case the cause which was held to have abated, was a writ petition and not a suit, appeal or application. We are of the view that under section 6 of the Service Tribunals Act, the writ petitions were never supposed to have abated. The obvious reason is that a writ petition is never provided either under Service Laws or under Labour Laws which both extensively provide for the entire hierarchies of their own. Writ jurisdiction is an independent and extraordinary Constitutional jurisdiction of the High Court and cannot be equated with applications, appeals or suits as described by section 6 above or by the special laws concerned.

7. The pendency of writ petitions and the incorporation of section 2-A in the Service Tribunals Act can be viewed from another angle as well. There are certain employees who are or were not given any right of appeal before the Tribunal. They normally resorted either to the Civil Court or preferred writ petitions under Article 199 of the Constitution, as a first remedy. If during the pendency of such civil suits or writ petitions, section 2-A of the Act came into existence and a Tribunal stood established, such suits or writ petitions, being the first remedy availed, would abate and the plaintiffs or the petitioners, as the case may be, would have a right under section 6 of Service Tribunals Act, to have resorted to the Tribunal within 90 days, provided always that they fall within the categories specified by newly added section 2-A of the Act.

8. But, the situation would be altogether different when an employee, after availing all the remedies provided by Service Laws, Labour Laws or any other law relating to them, and having finally failed to obtain any relief in the given hierarchy, opts to further file, if maintainable, a writ petition under Article 199 of the Constitution. Such a writ petition, independent in itself, cannot be equated with the one filed at the first instance and hence cannot abate. In the instant case, the genuine remedies provided by the Labour Laws had already been exhausted by the parties through the last order dated 6-12-1975 of the Punjab Labour Court, Multan and thus the filing of writ petition before the High Court by the present appellant not being a regular remedy provided by the related laws and being filed in its own independent perspective, could not be said to have abated. By insertion of section 2-A in Act, the legislature provided remedy of appeal as well as forum to those employees only whose cause of action was alive and the remedy had not stood already exhausted, by the time or long before the enactment of section 2-A, The intention of legislature by insertion of section 2-A was never to resurrect a cause of action that had already become dead.

9. In the instant case the remedy stood exhausted on 6-12-1975, long long before, when the Punjab Labour Court, Multan granted relief to the respondent and the writ petition filed by the present appellant being extraneous to the relevant hierarchy, was a cause which, in our view, could not abate. The proper course for the appellant was to have challenged the abatement order dated 30-4-1999 before this Court. It was this omission that lead to an unusual phenomenon of challenging before the Service Tribunal, in essence and for all practical purposes , the order of Punjab Labour Court (Court of appeal) dated 6-12-1975, whereas, the orders liable to be challenged before the Tribunal are those passed by the departmental authority, which, in turn, were never against the appellant company.

9. Consequently we hold that Writ Petition No.54 of 1976, through order dated 30-4-1999, was wrongly held to have abated and the appropriate remedy thereagainst for the appellant company was to have resorted to this Court. The dismissal of writ petition and subsequent resort to the Tribunal, both being illegal and the appellant having not filed any petition or appeal before this Court against the order dated 30-4-1999 of the High Court, the instant appeal is not maintainable and having no substance, is hereby dismissed. S.A.K./G-48/S Appeal dismissed.