2008 PLP 472 (CLC)

MAULVI ANWARUL HAQ, J.

The petitioner filed a suit against respondents Nos.2 to 5 and Government of Pakistan (date of institution is not available). I may also note here that during the pendency of the suit Ikram Ali Shah, respondent No.3 died and his L.Rs. were impleaded. In the rather prolix plaint several personal allegations were made against the said private respondents, as to the mala fide of their acts and resulting into damages to the petitioner in the amount of Rs.18,20,000 as detailed in para.12 of the plaint. A prayer was made for decree in the suit amount against the said private respondents only. Later Government of Pakistan was deleted from the array of the defendants. The other respondents filed written statement denying their liability and issues were framed on 13-9-2000. An application was filed by respondent No.2 for rejection of plaint. This application; was resisted. It was dismissed by the learned trial Court on 22-7-2006. The said respondent No.2 filed a revision, which has been allowed by a learned Additional District Judge, Lahore on 23-11-2006, and he has rejected the plaint of the petitioner under Order VII, rule 11, C.P.C.

2. The petitioner states that he had claimed damages for personal acts of the said private respondents and no question of terms and conditions of his service or determination thereof was involved in the suit and the learned Additional District Judge has acted without lawful authority while rejecting his plaint. Learned counsel for the contesting respondent No.2 places implicit reliance on the case of Federal Ministry of Railways and others v. Zafarullah Khan 1988 PLC (C.S.) 602 whereby the learned Karachi High Court upheld the rejection of plaint in similar circumstances.

3. I have gone through the copies of the records. I have already made a reference to the plaint, which does contain allegation against the persons of the private respondents and claim for damages has been made. No relief pertaining to the terms and conditions of service has been prayed for in the said plaint against the employer whose name as already noted by me above, stands deleted. Coming to the contentions of the learned counsel for respondent No.2 I have gone through the said judgment. I may note here that the revision application decided by his Lordship arose out of a suit filed by Zafarullah claiming damages for illegal termination of his services against the Federal Government in the Ministry of Pakistan Railways. His Lordship reproduced Article 212 of the Constitution and observed that since the Service Tribunal has been set up under subsection (2) of section 3 of the Service Tribunals Act, 1973 the suit arising out of the alleged breach of terms and conditions of service would be hit by the bar contained in Article 212(2) read with section 3(2) of the Service Tribunals Act, 1973.

4. Most humbly I find myself in disagreement with the said observations of the learned Karachi High Court. I deem it appropriate to reproduce Article 212 of the Constitution:-- "212. (1) 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 tortuous 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 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." Upon plain reading of the Article 212(1) it authorizes appropriate legislature to provide for the establishment of one or more Administrative Court or Tribunal to exercise exclusive jurisdiction under the said three clearly distinctive heads. It will be seen that obvious distinction stands drawn in the said Article between matters relating to the terms and conditions .of person in the service of Pakistan on the one hand and matters relating to claims arising from tortuous acts of Government, or any person in the service of Pakistan. To my mind, the Service Tribunal established under the Act, 1973 only covers the matters provided for in Article 212(1)(a) of the Constitution and not the matters provided for in Article 212(1)(b). In case the interpretation placed on Article 212 in the said judgment is accepted it can be presumably argued that the Tribunal established for the purpose of said clause (a) for Article 212(1) would also cover the matters provided for in clause (c) thereof.

5. Be that as it may, as noted by me above, the suit does not present a dispute between the employer or employee. No relief was claimed against the Federal Government in the original plaint and in any case the said Government stands deleted as a defendant. Upon proving contents of the plaint the petitioner will be entitled to relief. This writ petition is accordingly allowed and the impugned order, dated 23-11-2006 of the Additional District Judge, Lahore, is declared to be without lawful authority, illegal and is set aside. The result would be that the suit filed by the petitioner shall be deemed to be pending in the Court of learned Senior Civil Judge, Lahore, who shall requisition the record, summon the parties and proceed further to decide the suit in accordance with law. No order as to costs. A copy of this judgment be immediately remitted to the learned Senior Civil Judge, Lahore. M.H./I-1/L Petition allowed.