2001 PLP 481 (PLC)

3. The Respondent Establishment in their Reply Statement raised two legal objections; firstly that grievance petition being premature was not maintainable and secondly that after insertion of section 2‑A in Service Tribunal Act, 1973 by amendment in the said Act, the Service Tribunal instead of labour Court got the jurisdiction to hear the grievance petitions.

4. The arguments of the learned counsel of both the parties were heard on the above two legal points and duly considered in the light of the judgment of the learned Labour Court who dismissed both the petitions as not maintainable holding further that Service Tribunal and not the Labour Court had jurisdiction to deal with appellants' cases.

5. Taking up first the question of jurisdiction, reference may be made to the newly inserted section 2‑A of the Service Tribunal Act. It reads as under:‑‑

2‑A. Service under certain corporations, etc. to the Service of Pakistan.‑‑Service under any authority, corporation, body or organization established by or under a Federal Law or which is covered or controlled by the Federal Government or in which the Federal Government has a Controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purpose of this Act."

6. The learned counsel for respondent Karachi Shipyard has placed reliance on 1999 SCMR 2607 in which the implications of the above amendment have been thoroughly discussed. While doing so a number of previous cases in which similar point was considered were also referred to. After detailed survey of these cases it was held:‑‑- "After the insertion of section 2‑A of the Act, the appellant of admittedly filed the appeal before the Tribunal on 3‑9‑1997 i.e. after the date when section 2‑A of the Act, became effective from 10‑6‑1997. Thus, visualised, following the rule of consistency, we hold that the Tribunal was wrong in non‑suiting the appellant, in that, the Tribunal had the jurisdiction to adjudicate upon the grievance raised before it. The question whether the appellant is entitled to any relief is a question relating to the merits of the case. Of course, the Tribunal would decide the same in the light of the pleadings of the parties and the submissions made on their behalf, justly, fairly and in accordance with law. We would, therefore, allow the appeal and remit the case to the Tribunal for decision afresh on merits and in accordance with law, with no order as to costs. " Another case cited in the same context was by the learned counsel for appellant. It was also the case of Supreme Court reported as 1999 PLC (C.S.) 1208 wherein it was held: ‑‑ It is, therefore, quite clear that in order to entitle a person to file an appeal before the Service Tribunal, relating to a grievance in respect of the terms and conditions of service, he must be either a 'civil servant' as defined in the Civil Servants Act, 1973 or has been declared to be a 'civil servant' for the purpose of maintaining the appeal under the Service Tribunals Act. Person who belongs to the category of the I who has been declared as 'civil servant' under section 2‑A of Service Tribunals Act, 1973 for the purpose of availing the remedy before the Service Tribunal in the absence of a corresponding amendment in the Civil Servants Act, 1973, cannot automatically become a 'Civil Servant' within the meanings of Civil Servant Act, 1973." It is clear from above authority that though the appellants by virtue of insertion of section 2‑A in Service Tribunal Act, 1973 were declared as Civil Servants for the purpose of maintaining their appeal under Civil Servants Act, yet without corresponding amendment in the Civil Servants Act, 1973 they could not automatically become "Civil Servants" within meaning of Civil Servants Act.

7. For the purpose of the present case the appellants, after the aforesaid amendment of section 2‑A, became Civil Servants though not within the meaning of Civil Servants Act and had to file appeal relating to terms and conditions of their service before the Service Tribunal and not before the Labour Court.

8. The third case cited at the bar was of Karachi High Court reported as 1998 PLC (C.S.)

627. The relevant para. may be reproduced hereunder with advantage:‑‑ "The implications of the deeming clause in the newly‑inserted section 2‑A immediately would become manifest. They, for all intent and purpose, connote creation of a new category of civil servants under the deeming concept and all exclusions, such as being on deputation, employed on contract or work‑charged basis or being paid from contingencies or being a worker or workman, as defined in the Factories Act, 1934, or the Workmen's Compensation Act, 1923, disappear in the face of the deeming provision. The effect, accordingly, was that, every person who was in the employment of such institutions, as were included in section 2‑A, would be treated/deemed a civil servant who would, if aggrieved, seek his remedies from the Service Tribunal. This indeed was a decree of upstaging of employees in the referred institutions. The object was patent. That was none other than to provide relief to such persons on priority basis. The intent would become further crystalised when it was seen that the word 'Final' has since been deleted from section 4 of the Service Tribunals Act and that amendment, having been brought in the main part of section 4, would make the jurisdiction of the Service Tribunal available to aggrieved servant even where there be no 'final' orders and in actuality only such orders were in the field which were yet to mature and attain finality. " After going through the above authorities I am inclined to the‑ view that every person holding a post in a Corporation, Body or Organization which was owned or controlled by Federal Government would be treated as in service of Pakistan and would be deemed to be a civil servant not as defined in Civil Servants Act, 1973 and consequently the exclusion of worker or workman under Factories Act, 1934 and Workman's Compensation Act, 1923 from definition of Civil Servant as defined in Civil Servants Act, 1973, would not apply to those in the service of Corporation. Besides etc. falling under section 2‑A of Service Tribunals Act, 1973. The upshot of the above discussion is that the findings of the learned Labour Court on two legal points referred to above are correct and are hereby upheld. As a result of the said endorsement of the Lower Court's judgments, both the appeals are dismissed. H. B. T./41/K (L. Trib.) Appeals dismissed.