P L D 2014 Supreme Court 232 (PLP)

ANWAR ZAHEER JAMALI, J.--C.P.L.A No.2052/2013: By this civil petition, leave to appeal is sought against the order dated 11-11-2013, passed by learned Division Bench of the Lahore High Court, Rawalpindi Bench in I.C.A. No.98 of 2013, whereby the said ICA was dismissed and accordingly the earlier order dated 18-9-2013, passed by learned single Judge in chambers, thereby dismissing Writ Petition No.2108 of 2013 of the petitioner on the ground of bar of jurisdiction under Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973 (in short "the Constitution"), was maintained.

2. The fact that the grievance agitated by the petitioner in his writ petition before the High Court falls within the domain of the Federal Service Tribunal (in short "FST"), is not disputed. However, the learned Advocate Supreme Court for the petitioner has at the outset brought to our notice that since January, 2013, FST is non-functional due to non-appointment of its Chairman in terms of section-3 of the Service Tribunals Act, 1973 (in short "Act of 1973"), and in such circumstances, looking to the grievance of the petitioner, he was left with no other adequate, alternate and efficacious remedy, but to invoke the jurisdiction of the High Court under Article 199 of the Constitution. He further submitted that the bar of jurisdiction under Article 212(2) of the Constitution could operate only, subject to the establishment, availability and functioning of FST, and not otherwise.

3. Considering such grievance of the petitioner, on 9-1-2014, we had issued notice to the Attorney General for Pakistan as well as to the Federal Government/respondents to find out the present position as regards the appointment of the Chairman, FST. In response to it, today Mr.Shah Khawar, learned Additional Attorney General for Pakistan, has informed us that this matter is still in the pipeline, but without any substantial progress, therefore, no definite timeframe can be given on behalf of the Federation to assure the appointment of Chairman FST in near future.

4. Faced with this situation, we find that the petitioner, due to non-availability and non-functioning of FST, was left with no other alternative to agitate his grievance, except by invoking the jurisdiction of the High Court under Article 199 of the Constitution. Indeed, the jurisdiction of the High Court under Article 199 and the bar of jurisdiction under Article 212(2) is through constitutional mandate, but from the language of subsection (2) to Article 212 it is clear that such a bar can only come into operation when the Administrative Court or Tribunal in terms of subsection (1) is "established". The true import of the barring provision with reference to word "established" cannot be confined or limited to the establishment of an Administrative Court or Tribunal on paper, but its physical existence and functioning is sine qua non for attracting such a bar of jurisdiction. Even otherwise a litigant having legal remedy before some Administrative Court/Tribunal, due to non-establishment of such administrative court or Tribunal for any reason cannot be left in vacuum for an indefinite period due to non-availability of proper forum, to agitate his grievance. This view of the matter is fortified from Articles 4 and 10-A of the Constitution, which ensure that all individuals shall enjoy equal protection of law and shall be treated in accordance with law, which is their inalienable right, and every person, for determination of his civil rights and obligations or in any criminal charge against him shall be entitled to fair trial and due process as one of the fundamental rights guaranteed under the Constitution.

5. In order to examine the question of exercise of jurisdiction by the High Court under Article 199 of the Constitution, in the peculiar facts and circumstances of the present case, in a more comprehensive manner, it will be useful to reproduce hereunder Article 199 of the Constitution, conferring jurisdiction to the High Court and Article 212 of the Constitution, providing for establishment of one or more Administrative Courts or Tribunals qua barring jurisdiction in respect of the matters which fall within the exclusive domain of the administrative Court/Tribunal established in terms thereof:- Article-199 of the Constitution: "(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,- (a) on the application of any aggrieved party, make an order- (i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or (ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or (b) on the application of any person, make an order- (i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or (ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or (c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II. (2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged. (3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law. (4) Where- (a) an application is made to a High Court for an order under paragraph (a) or paragraph (c) of clause (1), and (b) the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to public interest or State property or of impeding the assessment or collection of public revenues, the Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorised by him in that behalf has had an opportunity of being heard and the Court, for reasons to be recorded in writing, is satisfied that the interim order- (i) would not have such effect as aforesaid; or (ii) would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction. (4A) An interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with, State property or assessment or collection of public revenues shall cease to have effect on the expiration of a period of six months following the day on which it is made: Provided that the matter shall be finally decided by the High Court within six months from the date on which the interim order in made. (5) In this Article, unless the context otherwise requires,- "person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan; and "prescribed law officer" means (a) in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General, and (b) in any other case, the Advocate-General for the Province in which the application is made." Article-212 of the Constitution: "(i) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act 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 who are or have been in the service of Pakistan, including disciplinary matters; (b) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or (c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law; (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 and all proceedings in respect of any such matter which may be pending before such other court immediately before the establishment of the Administrative Court or Tribunal 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, Majlis-e-Shoora (Parliament) by law 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."

6. In so far as the jurisdiction of the High Court under Article 199 of the Constitution is concerned it is open ended, but subject to certain limitations prescribed therein, one of which is with reference to availability of other adequate remedy to the aggrieved party. As against it the bar of jurisdiction under Article 212(2) is dependent upon the establishment of Administrative Court/Tribunal having exclusive jurisdiction in the matter. In our opinion, key word for determining the scope of this barring provision, for the purpose of present proceedings, is "establishment" of the Administrative Court/Tribunal, as the case may be. Keeping in view this principle, we find that interpretation of the word "establishment" of an Administrative Court or Tribunal cannot be narrowed down to mere completion of paper by way of some appropriate legislation, unless it is established in a manner that it is functional and exercising its jurisdiction in accordance with law, which, in the instant case, is admittedly lacking. In these circumstances, lack of exercise of jurisdiction by the High Court in the present case seems to be contrary to the well accepted principle "ubi jus ibi remedium" (where there is a right there is a remedy) and the spirit of Articles 4 and 10-A of the Constitution, meant to safeguard the rights of every individual/person to be dealt with in accordance with law.

7. The above view of the matter gains further support from the plain reading of section 3 of the Service Tribunals Act, 1973 relating to the establishment of Federal Service Tribunal, which reads as follows:-- "

3. Tribunals.--(i) The President may, by notification in the official Gazette, establish one or more Service Tribunals and, where there are established more than one Tribunal, the President shall specify in the notification the class or classes of civil servants in respect of whom, or the territorial limits within which, or the class or classes of cases in respect of which, each such Tribunal shall exercise jurisdiction under this Act. (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. (3) A Tribunal shall consist of- (a) a Chairman, being a person who is, or has been, or is qualified to be Judge of a High Court ; and (b) such number of members not exceeding three, each of whom is a person who possesses such qualifications as may be prescribed by rules, as the President may from time to time appoint. (4) The Chairman and members of a Tribunal shall be appointed by the President on such terms and conditions as he may determine. (5) The Chairman or a member of a Tribunal may resign his office by writing under his hand addressed to the President. (6) The Chairman or a member of a Tribunal shall not hold any other office of profit in the service of Pakistan if his remuneration is thereby increased. (7) Notwithstanding anything contained in subsection (3), sub-section (4), subsection (5) or subsection (6), a Tribunal established to exercise jurisdiction in respect of a specified class or classes of cases may consist of one or more persons in the service of Pakistan to be appointed by the President." From the above reproduction, it is evident that for the establishment of the Tribunal in its terms, appointment of the Chairman by the President, with prescribed qualification is sine qua non and unless such an appointment in terms of section 3(3)(a) is made, there is no Tribunal in existence, so as to meet the situation described by Article 212(2) of the Constitution and operate as bar of jurisdiction before any other forum.

8. We are, therefore, in agreement with the learned Advocate Supreme Court for the petitioner that the question of bar of jurisdiction of the High Court under Article 212(2) of the Constitution in the instant case will not come into play till the FST is established in terms of section 3(3)(a) (ibid) and it is actually functional so as to attend the grievance of a civil servant under its jurisdiction. This position is not controverted by Mr. Shah Khawar, learned Additional Attorney General.

9. To add force to our view, here a reference to the case of Watan Party and others v. Federation of Pakistan and others (PLD 2012 SC 292) and the order of a larger Bench in Suo Motu Case No.4 of 2010 (Contempt Proceedings against Syed Yousuf Raza Gillani) (PLD 2012 SC 553), both dilating upon the scope of Article 10-A of the Constitution as one of the fundamental right under the Constitution is also useful, as they highlight the concept of "due process of law" and "fair trial".

10. In view of the above, this petition is converted into appeal and allowed in the manner that the impugned judgment dated 11-11-2013, passed in I.C.A. No.98/2013, as well as the judgment of the learned single Judge dated 18-9-2013 in Writ Petition No.2108/2013, are set aside with the observation that the said writ petition shall be entertained and proceeded before the High Court in accordance with law, as until the establishment and functioning of the FST, the bar of Article 212(2) of the Constitution will not be applicable to such proceedings.

11. C.P.L.A No.2081/2013: For the above-stated reasons, this petition, being of similar nature, is also converted into appeal and allowed, consequently impugned judgment dated 11-12-2013, in Writ Petition No.4531/2013, passed by the Islamabad High Court is set aside in the same terms.

12. Before parting with this order, we deem it necessary to direct the Federal Government to expedite appointment of the Chairman, FST in terms of section 3 of the Act of 1973. This process shall be completed positively within 30 days from today. A copy of this order may be sent to the Secretary, Ministry of Law, Justice and Parliamentary Affairs as well as to the Attorney General for Pakistan. MWA/S-4/S Order accordingly