1985 PLP (C (PLC(CS))

Provided that, where the order of removal or reversion has been made by the President, such person may, within the time aforesaid, submit to the President a petition for review of the order." A plain reading of this provision shows that where an action has been taken by the President himself a review would lie against that order to the President but where action is taken by a person authorised by the President an appeal would lie to the President against the order passed by that authorised officer. In the present case dismissal is not challenged. Merely claim for unpaid wages is brought up by the respondent No.3 and the action was launched before the Respondent No.2, a forum of exclusive juris diction to adjudicate this kind of dispute under the Payment of Wages Act. The learned counsel however, contends that after the promulgation of Ordinance XIII of 1978 this forum would not be available to respondent No.3. Respondent No.3 being "a person in Corporation service" would be covered by provisions of Ordinance XIII of 1978 and should seek redress from forums created under that Ordinance. In support of his contention learned counsel has relied on a few cases where the impact and efficacy of the new law has been examined. The first case relied upon by the counsel is unreported judgment in C.P.D. 394 of 1983. In this case an employee of the Rice Export Corporation had filed a Constitution petition against the employer Corporation complaining that the employer were unlawfully deducting his pension which he was getting as a retired Government Officer from his salary in the Corporation. Preliminary objection was raised against the maintainability of the petition on the ground that the petitioner being an employee of a Corporation was to be treated as a Civil Servant within the meaning of section 5 of the Corporation Employees (Special Powers) Ordinance, 1978. Objection was sustained. Dismissing the petition as not maintainable it was held that the remedy available to the petitioner was provided under section 5 of the Ordinance XIII of 1978. It was observed in that case that:‑ "The first point, that has engaged our attention, is the bar created to the entertainment of this petition. The petitioner is an employee of the Corporation, and therefore section 5 of the Corporation Employees (Special Powers) Ordinance No.XIII of 1978 shall apply. By virtue of section 5, the petitioner has remedy before the Service Tribunal. The import and effect of this Ordinance was considered by a Division Bench of this Court in the case of Farid Ahmed v. The Karachi Shipyard and Engineering Works Ltd. reported in P L D 1983 Kar.

576. One of us was a party to that judgment. In that judgment, it has been clearly held that Corporation's employees for the purposes of relief, which could be obtained under the Service Tribunals Act, have the same right and status as the persons in the Civil Service of Pakistan." Another judgment relied upon by the learned counsel and of which reference has been made in the above‑noted writ petition is also of a Division Bench of this Court reported in P L D 1983 Kar. 576 where the petitioner had approached the Court in its constitutional jurisdiction for a relief against dismissal by the Karachi Shipyard Engineering Works Limited, a company registered under the Companies Act, 1913. This petition was also dismissed with the following observa tions : ‑ "The position therefore, is plain to us that since all the provisions relating to person in service of Pakistan and provisions of Service Tribunals Act are applicable to the petitioner, the remedy of this constitution petition is barred. We are also conscious of the provisions of Article 260 of the Constitution which defines service of Pakistan and the Constitution has provided power to the Government to declare any service to be service of Pakistan." In this very case reference is made to an observation made in another Constitution Petition No. 785 of 1978 which was filed by the Pakistan Steel Mills Ltd. against the Sind Employees Social Security Institution and in which the question arose whether the benefits of the employees of Sind Steel Mills were in the nature of Social Security. It related to the employees who were appointed by the Mills during the period January, 1972 and July, 1977. The observations were to the following effect and the provisions of Ordinance XIII of 1978 came to be interpreted:‑ "Under this Ordinance such employees for the limited purpose of obtaining redress against such removal or the demotion are deemed to be civil servants for the purpose of Service Tribunals Act, 1973. In other words for all other purposes they would not be civil servants." I am afraid the detailed facts of this petition are not before me and it is not possible to say in what context the observations came to be made. The observations in the three judgments are made in the peculiar situation of each case. Now let us have a look on section 5 itself. This section has been examined by the different Benches of this Court and its inter pretation has become debatable. One view is that any "person in Corporation Service" shall be deemed to be a civil servant for purposes of the Service Tribunals Act, 1973 (LXX of 1973) and for him the forum for getting relief was the service Tribunals. The other opinion expressed in Constitution Petition No. 785/78 and not concurred by the D.B. in Constitution Petition No. 501/81 was that only such employees of a Corporation who were removed or dismissed from service between the period 1‑1‑1972 and 5‑7‑1977 could be termed as civil servants. Others serving in such Corporation were not to be so treated. Relevant para. from the judgment in 785/78 making out the distinction may be seen: "Under this Ordinance such employee for the limited purpose of obtaining redress against such removal or the demotion are deemed to be civil servants for the purpose of Service Tribunals Act, 1973. In other words for all other purposes they would not be civil servants." In my humble view much of the dust raised can be settled if sections 3, 4, 5 of Ordinance XIII of 1978 are read together and the object for enacting this statute is kept in mind. The object in my humble opinion was to prune out the mushroom growth surplus and unwanted incumbents in these Corporations who were consuming assets of the employer and creating financial problems for the employers. The dismissal and reversion of such employees was to be effected under section

3. Remedy by "Representation" and "Review" against such removal or Reversion was provided under section

4. But for other reliefs (besides re‑instatement or restoration to the post) the aggrieved employee could approach the services Tribunals. For this purpose "Service of Corporation was declared to be service of Pakistan" and employee was to "be deemed to be a civil servant for the purpose of the Service Tribunals Act, 1973 (LXX of 1973)." In this view of the matter the case of the respondent in the present petition would be governed by section 5 of Ordinance XIII of 1978. He is a person whose services have been terminated after the crucial date and before 5‑7‑1977. As he is not seeking relief of re‑instatement section 4 will not apply. He is claiming arrears of salary. By force of section 5 of Ordinance XIII of 1978 he is qualified to claim this relief from the Service Tribunal because:‑ (1) He is a person appointed in the "Corporation service" (during the period from 1‑1‑1972 to 5‑7‑1977). As such belonging to a service. (2) "Declared to be service of Pakistan," and (3) "Would be deemed to be civil servant for the purpose of the Service Tribunals Act, 1973." The respondent has approached a forum which was not competent to entertain his grievance and render the decision being questioned in this petition. The result is that orders dated 30‑9‑1979 and 7‑1‑1980 are held to have been passed without lawful authority and are of no legal effect. This petition is allowed with no order as to costs. M. Y. H. Petition allowed.