1981S39 (PLP)

MUHAMMAD AFZAL ZULLAH, J.-Similar questions of law are involved in these service appeals under Article 212 of the Constitution. They are being disposed of together. All the appeals can be split up in three categories. Civil Appeals Nos. 49 and 50 of 1977 which were filed by Water and Power Develop ment Authority (WAPDA) would fall in one category, appeal No. 55 of 1977 which was filed by a civil servant forms a different category and all the remaining appeals which were filed by the Government would cons titute yet another category The common law points, relate to the interpreta tion of various provisions of the Service Tribunals Act ; and in particular, the provisions which relate to the jurisdiction of the Tribunal to entertain appeals after abatement of proceedings which were pending in different Courts, under the ordinary law. For facility of reference some of the provisions which would cone under discussion are reproduced below :- Service Tribunals Act, 1973 (Came into force on 29th September 1973 in place of Service Tribunals Ordinance, 1973 which had come into force on 15-8-1973). "

3. Tribunals.-(1).................................................................. (2) A Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters.

4. Appeals to Tribunals.-(1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his 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 later, prefer an appeal to the Tribunal) (1) Provided that (a) .............................. (1) Substituted for the words "prefer appeal to the Tribunal having jurisdic tion in the matter" ride Service Tribunals (Amendment) Act (XXXI of 1974) which came into force on 6-5-1974. (b) ........... (c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969. (I) (2) .............................. (a) .............................. (b) .............................. Explanation.-In 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.-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) (2) to such a suit, appeal or application may, within ninety days of the (establishment of the appropriate Tribunal, prefer an appeal to it) (3) in respect of any such matter which is in issue in such suit, appeal or application.

9. Repeal. -The Service Tribunals Ordinance, 1973 (XV of 1973), is hereby repealed." 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.-(l) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act (4) (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 (5) (who are or have been) in the service of Pakistan, including disciplinary matters ; (b) .................................. ; .. (1) Para. (c) added by .Service Tribunals (Amendment) Act (XXXI of 1974) which came into force on 6-5-1974. (2) Substituted in the Act for the words 'any Civil servant who is a party' as in the Ordinance. (3) Substituted for the words and comma "commencement of this Act. prefer an appeal to the appropriate Tribunal" vide Service Tribunals (Amendment) Act (XXXI of 1974) which came into force on 5-5-1974. (4) Inserted and shall be deemed always to have been so inserted by the Constitution (First Amendment) Act, 1974 (XXXIII of 1974), section 12. (8-5-1974). (5) Inserted and shall be deemed always to have been so inserted by the Constitution (First Amendment) Act, 1974, section 12 (8-5-1974). (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' (1) (and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administra tive Court or Tribunal (2) ('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, Parliament by law (3) 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." '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 31st of July, 1974 for a declaration regarding their pay and emoluments. The suits were decreed in their favour on 30th of July 1975. WAPDA filed appeals before the District Court which were withdrawn on 3rd February, 1976 and instead the appeals were filed before the Service Tribunal, Islamabad, which were dismissed on 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 Authority (Amendment) Ordinance, 1975 which came into effect from 30th of September, 1975 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. It creates entitlement only if a suit or appeal was pending at the time of passing. the Service Tribunals Act, 1973. In the present case, no such appeal being pending in September 1973, the section is not applicable". The appeals, it was accordingly observed, were not entertainable. In Civil Appeal No. 55j77 the appellant had joined service in the Department of Civil Aviation, Government of Pakistan in 1964. As a result of departmental action, he was dismissed from service with effect from 2nd August, 1969. His civil suit challenging the dismissal was decreed on (1) Inserted and shall be deemed always to have been so inserted by the Constitution (First Amendment) Act, 1974 (XXXIII of 1974), section 12. (2) Inserted and shall be deemed always to have been so inserted by the Constitution (Fifth Amendment) Mr, 1976 (LXII of 1976) ; section 15. '(3) For such law, see the Provincial Service Tribunals (Extensions of Provisions, of the Constitution) Act, 1974 (XXXII of 1974). 3rd June, 19?

0. However, he was again proceeded against and was removed from service on the 22nd of December, 1970. He again sought remedy through a civil suit which was decreed on 13th February, 1972. The Director-General of Civil Aviation filed an appeal in the District Court, which, it was held on 18th December, 1973, 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 as to 'whether an appeal by a Government Department is competent, as section 4 of the Tribunals' 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 to such a suit or appeal may prefer on appeal to the appropriate Tribunal. It was further observed that `the appeal of the Department in a Court of Law abated on creation of the Tribunal, and the Department filed an appeal to 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. As already noted all the remaining appeals have been filed by 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. 1n Appeal No. 109 of 1976, the departmental action was taken against the respondent on 6th August, 1964. His suit challenging the same was decreed on 13th January, 1973 by the Additional District Judge on original jurisdiction. The first appeal by the Government in the High Court of Sind and Baluchistan at Karachi was deemed to have abated on promulgation of the Service Tribunals Act. The Government then filed an appeal under section 6 of the Act which was rejected on the 20th February, 1975, on a finding that the Tribunal had no jurisdiction to entertain the same. In Civil Appeals Nos. 51 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. J2) it was decreed. However, on first appeal try 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 High 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 :he Tribunal which were dismissed on the earlier stated ground of incompetence. In Appeal No. 53 of 1977, the departmental action was taken on 8th February, 1965. Respondent's suit was dismissed on 30th September, 1969. The first appeal was accepted on 30th October-;' 1971. The Government's second appeal in 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. In appeal No. 112 of 1977, the departmental action way; taken on 14th October, 1967. The respondent's suit was decreed on 14th April, 1976. The Director-General, Pakistan Rangers, filed an appeal on 25th May, 1976 which was rejected on 14th October, 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. It is clear from the foregoing details in Civil Appeals No. 109/76 and 51/53 of 1977 that the Tribunal in each of these cases dismissed the appeal filed by the Government. The main reason, in support of the orders mentioned by the Tribunal was that "the controversy related to the period prior to 1st ,of July, 1969. This Tribunal has no jurisdiction to entertain the appeal." (C. A. 109 of 1976).. Similar was the view taken by the High Court in the case out of which Civil Appeal No. 112/77 arose. While granting the leave the following two points were noted : (a) that the learned Tribunal has erred in law in taking the view that proviso (c) to section 4 (1) of the Service Tribunals Act, 1973, excluding the jurisdiction of the Tribunal it respect of orders trade prior to the 1st of July, 1969, controls the general provisions contained in section 6 of the Act which confers exclusive jurisdiction on the Tribunals in all service matters, and in terms of which all suits and other proceedings pending in other Courts must abate, and (b) that in any case the Tribunal has overlooked the fact that the Federal Government's appeal was filed on 1st April, 1974, whereas the said proviso was inserted on 2nd May, 1974, by amending Act 31 of 1974, and it could not operate retrospectively so as to take away the vested right of appeal which had accrued before its enactment." (C. A. No. 109 of 1976). "Although the first point," it was observed, "seems to be covered by a judgment of this Court cited as Khan Faizullah Khan v. Government of Pakistan (P L D 1974 S C 291), yet the other point does not seem to have come up for decision in any case so far. We would grant leave to appeal to examine both these questions of law." Learned counsel for the Government has contended, that there is no nexus between sections 4 and S of the Tribunals Act-Therefore, the bar in section 4 regarding the period during which the departmental order was passed (before 1st July, 1969) or the party which can file an appeal before the Tribunal (the civil servant) would not apply to the appeals filed under the proviso to section 6-he has relied on Gulsher Klan and another v. The Province of West Pakistan and 1 others (P L D 1975 Lah.722) and has also prayed for reconsideration of the view expressed by the Court in the case of Rana Faizullah Khan : that the amendment made on 6th May, 1974, in section 4 which barred the appeals regarding departmental orders passed before 1st July, 1969, did not operate retrospectively so as to affect the right of appeal which had accrued immediately on the abatement of the proceedings pending before the Courts, that the abatement took place in fact under the amended Article 212 of the Constitution on the establishment of the Tribunal on 22nd February, 1974, this amendment having taken effect retrospectively, the earlier abatements, so-called, under the Service Tribunals Ordinance or the Act, would not prejudice the rights and liabilities created by the Constitution ; that there was no intention to keep alive parallel remedies before the Tribunals as also before the Courts ; that no Tribunal was established within the period prescribed by the Ordinance' and/or the Act, therefore, no appeal could be filed by the Government and as abatement was linked with appeal before the Tribunal, therefore, the proceedings did not abate till the establishment of the Tribunal as envisaged by the Constitution ; and that in any case proviso (c) to section 4 (1) is applicable only to the appeals filed by the civil servants .under section 4 (1) and not to the appeal:, which were filed by a party under the proviso to section

6. In the reply from the respondents side it has been urged, that the orders passed before 1st July, 1969 were taken out of the jurisdiction of the Tribunal, and as the abatement was linked in the purview of section 6 with the jurisdiction 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 6th May, 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 15th August, 1973 ; the Government as a party. had no right then to file an appeal under the proviso to section 6 of the Ordinance and that being so, when the Act came into force on 29th September, 1973, there was nothing left before the Courts which would abate under section 6 of the Act ; therefore, the question of appeal under the proviso thereto would not arise-reliance has been placed in this behalf on Azad Government and another v. Sheikh Muhammad Sadly and another (P L D 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 already accrued, yet this concession would be of no use to the Government as it had no right of appeal-reliance was placed an Pakistan through the Secretary, Ministry of Industries, Karachi v. S. M. Nafrsul Hassan Shah (P L D 1979 Kar. 117) ; and that in any case Government appeals were time barred. Mr. Mohammad Siddiq one of the respondents also advanced arguments to show that the Government had a weak case on the merits. 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. Naisul 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 Tribunal. 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 filed on the 24th of October 1974. 1f this A change would have been brought to the notice of the High Court, the observation that the Service Tribunal had no jurisdiction to hear appeal or to entertain any proceedings "of any kind whatsoever at the instance of the Government", would not have been made. The real controversy underlying all the main questions raised in these eases is as to when, on point of time, the abatement visualised by the relevant Service Tribunal laws had taken place. No doubt, under the Ordinance the abatement would be "forthwith" on the commencement of the said Ordinance on 15th of August, 1973. The Act came into force on 29th of September, 1973. Same language was used in 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, under the mandate of Article 212 of the Constitution. By Constitution (First Amendment) Act, 1974 (Act XXXIII of 1974) it was provided that all proceedings in respect of matters governed by Article 212 which "may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal

shall abate o such establishment". There are no two opinions regarding the policy of law that a conscious effort was made to continue the remedies then being pursued (of course with some changes) under the new service laws. The proviso to section 6 (whether of the Ordinance or of the Act), in pursuance to the same principle provided that where .abatement of a matter took place, under the purview thereof, an appeal to the appropriate Tribunal could be preferred within the stipulated period of 90 days. It is an admitted fact that that' the appropriate Tribunals were not established till several months after the promulgation of the Constitution and the said laws. It appears that on account of these reasons, and the factual position haying been taken note of, appropriate amendment was made in the Constitution ; namely, that the abatement itself, instead of having taken place on the commencement of the Ordinance or the Act, would take place on the establishment of the Tribunal. The Constitution (First Amendment) Act itself came into force on the 8th of May, 1974. Sub-clause (6) of section 12 thereof provided that the amendment of Article 212 of the Constitution. by addition of the provision relating to abatement "shall be deemed always to have been inserted" in the 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 Constitution, would not be recognised and accepted as affecting the rights of the concerned parties in this behalf. It was so envisaged by the amended Article 212 of the Constitution. The hearing in 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 as and when an 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). 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 agreed, was the 22nd of February, 1974. The amendment in section 4 of the Act whereby proviso (c) to subsection (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 I st of July, 1969. All the learned counsel agreed on the point that the right of appeal once conferred could not be nullified unless the law taking away such a right is made to operate retrospectively. 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 6th May, 1974, that party would be entitled to file the appeal, notwithstanding the bar contained in proviso (c). It has already been held that the relevant law did not leave any aggrieved party remedyless on abatement of the proceedings. The right of appeal to the Tribunal automatically 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 that very date, immediately on the abatement, the 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 subsection (1) of section 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). In Civil Appeal No. 55 of 1973, 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 filed 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 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.that the formal orders regarding abatement were passed therein on different dates. It has not been disputed by any learned counsel that the abatement whenever it took place did not require a formal order, to make it a fact. Thus the formality of an order regarding date thereof, becomes insignificant. Accordingly, in these cases the abatement having taken place on the 22nd 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 taken away retrospectively by proviso (c) to subsection (1) of section 4 added by the amendment of 6th May, 1974. The Government could therefore, tile the appeals and the Tribunal was not only entitled but under a duty to entertain and decide the same on merits in accordance with law. The Tribunal failed to exercise jurisdiction vested in it. These appeals accordingly are allowed. The cases are remanded to the Tribunal for decision in accordance with law. In Civil Appeal No. 112 of 1977. the original suit filed by the respondent was pending when the' Constitution (First Amendment) Act came into force. 1t 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 the Service Tribunal. The objection of the present appellant before the High Court with regard to the competence of subsequent proceedings before the ordinary Courts could not be overruled. We allow the appeal, set aside the order of the High Court and direct that the said matter would proceed in accordance 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 be filed by taking due advantage of the provisions contained in the Limitation Act regarding proceedings taken and pursued bona fide before wrong forums. As noted in the opening part of this judgment, the appeals Nos. 49 and 50 fall into a separate category. Suits of WAPDA employees (respondents) were filed on 31st of June, 1974. They were decreed on 30th of July 1975. The WAPDA tiled appeals before the District Court which were withdrawn on 3rd February, 1976. The Water and Power Development Authority (Amendment) Ordinance, 1975 came into force on 30th of September 1975. It 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 incompetent 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 entertained because the suits or appeals before the Civil Courts out of which they arose were not vending at the time of the ,passing of the Act. In such like situations the underlying principle appears to be that when a statute is extended to a territory or class of persons who were originally riot covered by it, regarding those territories and persons when a new statute is enacted `bv 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 for persons. In these cases, the original statute, i. e. 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 niutetis mutandis to the WAPDA employees on and after 30th of September 1975. The 67.A appeals by the WAPDA filed before the District. Court against the decree passed by the learned trial Judge were pending before the District Court on 30th of September 1975. Therefore, they abated on the 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 said provision, on account of natural barrier of time would apply mutaris mutandis. meaning thereby that the period of limitation would commence from the date of the abatement ; namely, 30th of September 1975. The view of the Tribunal that the appeals were not competent because the matter was not pending before the original Courts before the 29th of September 1973, was ex facie erroneous. The relevant date in these cases was the 30th of September 1975 when the Act was extended to the employees of the WAPDA. These two appeals are accordingly allowed and the cases arc remanded to the Service Tribunal for decision on merits. ,In all these cases the parties are left to bear their own costs. In view of our decision regarding the date of the application of the bar contained in proviso (c) to subsection (1) of section 4. it is not necessary in this 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 for us to reconsider in these cases the view in that behalf taken in the case of Khan Faiarllah Khan and reiterated in Islamic Republic of Pakistan through the ; Secretary, Ministry of Defence, Government of Pakistan Rawalpindfand another v. Amjad Ali Mirza (P L D l977S C 182). Order accordingly.