1977 PLP [C (PLC(CS))

The High Court vide same judgment above also held that: "

8. As regards the concept of departmental authority the Petitioners are while serving the Road Transport Board in all matters pertaining to their salary, leave etc. being dealt with by the Road 'Transport Board. Therefore, for them the departmental authority is the same it is different matter that the departmental authority may not be the competent authority and for that the redress is to be sought from the proper quarters and not by resort to article.' 199 of the Constitution." The appellants iii the first instance in contending that they were civil servants relied upon the above observations of the Lahore High Court in the judgment, dated I1‑7‑1975 in Writ Petition No: 1571‑72/S of 1975 as per para 6 reproduced above. It was also contended that the Respondent, to defeat the aforesaid Writ Petitions before the High Court, had also been relying upon the fact that the appellants were Civil Servants. Thus according to the appellants they could not be allowed to deny the status of Civil Servants to the appellants. It was next submitted before us that the Respondents were legally estopped to contend to the contrary. Reliance was also placed on the decision of the Supreme Court of Pakistan in Fayyaz Ali's case (1971 S C M R 454) in which their Lordships after referring to Section 43‑A of the Motor Vehicles Act, 1939 and the case of Rana Muhammad Jamil (P L D 1957 Lah. I) and the case of Irshad Muhammad Mirza v. R. T. C. (P L D 1966 Lab. 632) observed: "This amendment, therefore, cannot be said to have changed the status of the appellant from Govt. Servant to that of the employee of the Via' P. R. T. B." This judgment of the Supreme Court was relied upon by the Lahore High Court in their judgment in Writ Petition No : 1001‑S/75, dated 22nd March 1976. The appellant in particular relied upon the following observation of the Lahore High Court: I proposed to deal first with the cases of those petitioners who entered the Road Transport Service while it was directly run by the Govern ment and they were at the time of entry treated for all purposes as civil servants employed in connection with the affairs of the Province. The Road Transport Board as an entity distinct from the Provincial Government came to be set up on 15th April, 1952 and the Road Transport Board Rules came to be enforced on the 26th May, 1952. There was transfer en‑bloc of employees of the Transport service run by the government for service in the newly set up Board and a provision for it was made by amending Section 43‑A of the Motor Vehicles Act 1939. That provision and its effect on such civil servants as were transferred for service under the Board came to be examined first in Rana Muhammad Jamil v. Punjab Road Transport Board, Lahore P L D 1957 Lah.

1. It was held then that on the strength of the provisions of section 43‑A the employees of the Transport Board were, after the transfer of their service to the Board, to be deemed to be servants of the Board. This law was followed in Irshad Muhammad Mir2a v. Road Transport Corporation West Pakistan P L D 1966 Lab.

632. The matter, came to be considered by the Supreme Court in the case of 47ayyaz Ali Khan v. Government of West Pakistan 1971 S C M R

454. The case of Mr. Fayyaz Ali before the Supreme Court was that although his service stood transferred to the Board no change in his status as a Government servant thereby took place and he continued to be a civil servant enjoying all the legal protections available to a Civil servant. The decision in Rana Muhammad Jamil's case came to be considered by the Supreme Court and it was held while referring to amendment of section 43‑A made the basis for decision in Rana Muhammad Jamil's case that this amendment therefore cannot be said to have changed the status of the appellant from government servant to that of an employee of the Punjab Road Transport Board. There have been several organizational changes brought about by various legislations but none of them has provided that a person who was employed by the Government in the Provincial Transport service was to be considered as an employee of Road Transport Board or Road Transport Corporation". It was held by the Supreme Court that such a government servant while serving the Road Transport Board or the Road Transport Corporation continued to be a civil servant, the law having not changed his position in that respect." The appellants went on to argue that their status of appellant as civil servants at tae time of their transfer to Board was not in dispute and the respondents have produced nothing to establish a change in their status. With these submissions the appellants argued that the Managing Director, of the P. R. T. B. has no power to direct the retirement of the appellants and prayed that the order being without jurisdiction be quashed. The learned counsel for the Board in his turn in the first instance raised the preliminary objection that the appeal as filed on 22‑9‑75 was barred time in as much as it sought to challenge the order, dated 6‑5‑75 According' to the learned counsel, the appellants were bound to move his Tribunal within a month of the passing of the impugned order. Since they chose the wrong forum and even after the High Court order, dated 11‑7‑75 they took more than two months to move this Tribunal which period by no considera tion was reasonable, therefore the appeal was barred by time. On merits the learned counsel for the respondent argued that the, appellants were not Civil Servants and there was nothing on record establish the same. He further argued that the appellants had been transferred from the office of R. T. C., Punjab to the Board alongwith their posts and all through have been treated as employees of the Board to all intents and purposes. They received bonus and the gratuity beside provident fund and pension contributions were made by the Board. Even they earned promotions, confirmations and received punishments, suffered reversion etc. under the orders of Board, without any demur on their part. An affidavit of Mr. M. Salem Syed, Secretary of the Board was filed, to support the above factual position. Reliance was also placed in this behalf on Rana Mohd. Jammi v. Punjab R. T. B and P L D 1966 Lah 632 to support the plea that transferred employees were the Servants of the Board. The respondents in the alternative submitted that assuming without conceding that appellants were Civil Servants as defined in Punjab Service Tribunal Act, 1974 or the Punjab Civil Servants Act, the Managing Director of the Board was not a Departmental Authority and thus the appellants were not entitled to maintain this petition under section 4 of the Punjab Service Tribunal Act, 1974, which reads as under: "

4. Any civil servant aggrieved by any final order, whether original appellate, made by a departmental authority in respect of any of the terms and conditions of his service including disciplinary matter may within thirty days of the communication of such order to hurl, or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal: Provided that . . . . . ." Lastly he argued that in any event the Managing Director of the Board was competent to terminate the deputation of the appellants. He thus pressed for the rejection of this appeal. In reply the appellant submitted that nothing turned upon the orders promotion, reversions, leave etc: within the Board and their and Servants remained unaffected. So far the receipt of gratuity and provident fund was concerned it was received under protest. The appellant in rebuttal also filed counter‑affidavits. Thus it was submitted that the impugned order of 6‑5‑1975 by the Managing Director was a nullity and not binding upon the appellant. In this context the appellant also argued that no question limitation arose as the order of Managing Director was void, ab initio. Reliance was also placed in this behalf upon P L D 1970 Lah.

6. As regard the contention that the M. D. was not a Departmental Authority, the appellant relied upon the observation of the High Court as contained in para. 8 of the judgment, dated 11‑7‑1975 in W. P. No. 1571‑72‑S/75 reproduced above. The appellant also argued that he could not be shuttled out from one forum to another by the contradictory stances adopted by the respondent. It was submitted that the finding of the High Court referred to above be accepted. In reply to Mr. Mirza's last argument the appellant relied upon the High Court judgment in Writ Petition No. 1001‑S/75 which was to the following effect: "It is an order of retirement with payment of gratuity etc. Therefore, such an order cannot be treated as an order bringing to an end the deputation of a civil servant who has his roots elsewhere. Besides, it is open to question whether the Managing Director can so unilaterally return these civil Servants to the Provincial Government. His predecessor's effort to bring to an end the deputation of Laiq Ahmad Khan would bear it out that in this matter he could not so act" After hearing both the parties we are of the view that the appellants' contention must prevail. In the first instance admittedly the appellants at the time of their transfer to the Board enjoyed the status of the Civil Servants. Nothing has been placed before us to show that any change has been subsequently affected converting the status of the appellants as servants of the Board. The Government has not chosen to place before us any definite stand on their behalf. In their report submitted by Secretary Transport to this Tribunal in Appeal No: 312/443 of 1975 it was stated that: "In fact Government does not wish to take any stand on this controversial question and would leave it to the Tribunal to take whatever decision it likes. Govt. would readily accept whatever decision is taken by the Tribunal." In the circumstances, we assume that they have nothing to offer to establish a change in the status of the appellants. In any case it was for the Board to show that a change has been affected subsequently. The mere fact that the appellant has been subjected to certain disciplinary actions by the Board Authorities while serving m the Board was scant justification to hold that the terms and conditions of the appellants as Civil Servants were modified to the extent that they ceased to be Civil Servants for all purposes. In fact from the observations of the Lahore High Court reproduced above it was abundantly clear that the status of the appellant as Civil Servant was almost conceded. We also agree with the contention of the appellant that the ratio of the decision of Fayyaz Ali's case was applicable to the facts of this case. Mr. Mirza, the learned counsel for the Board argued that the case was distin guishable on the ground that it was not proved on the record, although it was, so in Fayyaz Airs case, that the appellants were Civil Servants. However, in our view once the status of the appellants as Civil Servant had been established, it was for the Board to show that the appellant subsequently ceased to be Civil Servants. Since they have not placed on record any conclusive evidence in this i behalf, we are not inclined to agree with the contention of the learned counsel of the Board that the appellants were not Civil Servants. It appears that both the Government and the Board were not clear and the appellants were directed to obtain a declaration, which could not be granted to them by the High Court due to the jurisdictional barriers. However, we find that at all the stages. for instance on 15‑11‑74 in Writ Petitions No. 1050‑S/72 and No. 48‑S/73 and on 11‑7‑1975 in Writ Petition No. 1571 and 1572‑S/75, the status of the appellants as Civil Servants could not be controverted. In particular in the judgment, dated 11‑7‑75, the High Court distinctly observed that "the status of the Civil Servant is definitely claimed and the earlier proceedings in this Court show that it was not refused to the petitioners and for the purpose of this petition their claim could be assumed to be correct". So as to the payment of gratuity bonus and provident fund is concerned, the facts on the record show that the appellants have received the same under protest. Even otherwise these facts were not conclusive to prove that the appellant was not a Civil Servant. The arrangements for such payments of Provident Fund, Pension Contributions and Gratuity between the borrowing and loaning authorities, are usual feature of foreign, service and do not necessarily affect the status of the Civil Servants concerned. As such nothing turns upon the same so far as the issue of the status of the Civil Servant was concerned. We are, therefore, inclined to accept the contention of the appellant that they were Civil Servants. So far as the next contention of the learned Counsel of the Board is concerned that the Managing Director was not a Departmental Authority, in our view the issue could be answered on the ground that the appellants are not aggrieved only by the orders of the Board but also by the order of the Government inasmuch as in an earlier proceedings, the Government refused to accept them back, and thus a confusion arose which ultimately resulted in the passing of the impugned orders by the Managing Director of the Board. The order of the Government were in fact challenged by the appellants before the High Court and thus there is a good deal of force in the contention of the appellants that the order, dated 6‑5‑1975 is ultimate culmination of the controversy as to who was the Departmental Authority in the case of the appellants. Even otherwise, the finding of the High Court in the case of appellants in para 8 reproduced above from decision, dated 11‑7‑75 in Writ Petition No. 1571 and 1572‑S/75, are conclusive enough to settle the controversy in favour of the appellants. We are also persuaded to accept the contention of the appellants that in the absence of any clear definition of the Departmental Authority, contained in the Act, it could be assumed to include the authority which purports to pass an D order in respect of the terms and conditions of a Civil Servant working under him. This view also finds support from the findings of the High Court in paragraph 8 referred to above. In this view of the matter, we have no hesitation in holding that the impugned order passed by the Managing Director Punjab Transport Board was wholly without jurisdiction and nullity in the eye of law inasmuch as he had no powers to direct the retirement of the appellants who were Civil Servants. As regards limitation, we also find that if the order was a nullity, the same was not binding upon the appellant and had to be ignored and no question of limitation arose in such eases. The above conclusion is duly supported by the decision of the Lahore High Court reported as P L D 1970 Lah, p. 6 and the relevant extract from the aforsaid judgment reads as under: "The act or an order which is a nullity, has simply to be ignored and proceedings need not be initiated to get it annulled." Even otherwise we also feel that the question of jurisdiction in this case was not free from difficulty and the W. P. appears to have been filed under bona fide belief that the High Court had the jurisdiction but later the impression proved to be erroneous. Thus there appears to be sufficient cause for condoning the delay and we condone the same. Consequently, both the appeals succeed and the orders passed by the Managing Director, Punjab Road Transport Board, dated 6th May, 1975 are hereby quashed.