1991 PLP 838 (PLC)

(c) Industrial Relations Ordinance (XXIII of 1969)

S. 25-A

Service Tribunals Act (LXX of 1973), S. 4

Constitution of Pakistan (1973), Art. 199

Minor penalty imposed upon civil servant

Labour Court had jurisdiction to entertain and decide dispute between employer and employee relating to minor penalties despite the fact that such employee was deemed to be a civil servant for purposes of Service Tribunals Act, 1973

Constitutional petition against exercise of jurisdiction by Labour Court was dismissed in circumstances. Muhammad Aqil Mirza for Appellants. This petition under Article 199, of the Constitution of Islamic Republic of Pakistan, 1973, assails the judgment of Punjab Labour Appellate Tribunal, dated 24th October, 1989, whereby it accepted the appeal filed by respondent No.l against the order of the Punjab Labour Court No.4, Faisalabad and remanded the case, for decision on merits.

2. Raja Muhammad Fazil, respondent No.l, was working as Line Superintendent-II, in the employment of the petitioners. He was proceeded against departmentally and was awarded the punishment of stoppage of his increment for one year on account of certain irregularities. He after serving a grievance notice, filed an application under section 25-A of the Industrial Relations Ordinance, 1969, challenging the penalty imposed upon him In the written statement, the petitioners raised an objection that respondent No.1 was a civil servant and as the dispute related to terms and conditions of his service, it could only be adjudicated upon by the Service Tribunal and not the Labour Court. This objection found favour with the Labour Court, which dismissed the application of respondent No.l on 15th August, 1989.

3. Aggrieved by this order, respondent No.l went in appeal before the Punjab Labour Appellate Tribunal which held that as only a minor penalty had been imposed by the employer upon the employee, the dispute was not, amendable to the jurisdiction of the Service Tribunal and, therefore, the Labour Court could try the same. This order has now been assailed by the petitioner by filing this petition.

4. After hearing the learned counsel for the parties, I am not; persuaded to take a view different from the Punjab Labour Appellate Tribunal. Although it is correct that respondent No.l is a civil servant by virtue of provisions of section 17(1-B) of the WAPDA Act, 1958 for the purposes of Service Tribunals Act, 1973 and the dispute also pertains to the terms and conditions of his service, but as no Tribunal stands constituted for the purposes of entertaining appeals against minor penalties imposed by the departmental authorities, the jurisdiction of the Punjab Labour Court was not barred. Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, ordains that the jurisdiction of ordinary Courts shall stand ousted in respect of matters to which the jurisdiction of the Administrative Tribunals, extends. This ouster is not all pervasive but is confined to those cases which can be brought to those Tribunals.

5. Section 3(1) of the Service Tribunals Act, 1973, empowers the Government to establish one or more Tribunals for exercising jurisdiction under the Act. If more than one Tribunals are established the Government has to specify in the notification the class or classes of civil servants in respect of whom or the territorial limits within which such Tribunals shall exercise Jurisdiction. Subsection (2) of this section ordains that the Tribunals have exclusive jurisdiction in respect of the terms -and conditions of service of civil servants including disciplinary matters. Subsections (3), (4), (5) and (6) contemplate the setting up of a Tribunals the Chairman of which has to be a person qualified to be a Judge of the High Court. Subsection (7) however provides that notwithstanding anything contained to subsections (3), (4), (5) and (6) a Tribunal established to exercise his jurisdiction in respect of specified class or classes of cases may consist of one or more persons in service of Pakistan to be appointed by the President.

6. Section 4 of the Act confers upon a civil servant right to appeal against any final order by a departmental authority in respect of any terms and conditions of his service to the Tribunal. As regards appeals, against an order imposing punishment or penalty, by a civil servant, subsection (2) provides that in case of penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time scale, the appeal shall lie to a Tribunal referred to in subsection (3) of section 3 namely a tribunal headed by a person qualified to be a Judge of the High Court and in any other case the appeal shall lie to a Tribunal referred to in subsection (7) of that section i.e. to say a Tribunal, consisting of one or more persons in the service of Pakistan to be appointed by the President. Subsection (2) of section 4 when read with section 3 of the Service Tribunals Act, 1973 leave no manner of doubt that the Tribunal contemplated for hearing appeals against minor penalties has to be set up separately by the President under section 3(7) of the Act. At present no such Tribunal stands established and therefore no appeal could be filed by respondent No.l against the punishment of stoppage of his increment of one year which is a minor penalty.

7. This view finds support from the judgments of the Balochistan High Court and the Peshawar High Court in Mujeebullah Aijaz v. Director-General, Telephone and Telegraph Department and 2 others (P L D 1980 Quetta 58) and Mian Amanul Mulk v. N.-W.F.P. through Chief Secretary (P L D 1981 Pesh. 1), as also the judgment of the Federal Services Tribunal, Islamabad in Appeal No.225 (L) of 1986 decided on 29th November, 1988. In view of what has been said above, this petition is found to be without any force and is dismissed in limine. AA./S-1006/L Petition dismissed.