1983 PLP (C (PLC(CS))

6. With highest regard to the views of the learned Judges of the Sind High Court, we find it extremely difficult to agree with their opinion. It is pertinent to point out that simultaneously with the promulgation of the Ordinance, the Civil Servants Act, was also amended and section 12‑A, which gives similar power to the President in respect of persons to whom the Civil Servants Act, 1973 applies, was inserted. This Section read as follows :‑ Section 12‑A. Certain person to be liable to removal, etc.‑Notwithstand ing anything contained m this Act or in the terms and conditions of a civil servant appointed or promoted during the period from the first day of January, 1.972 to the fifth day of July, 1977, the president or a person authorised by him in this behalf may‑ (a) without notice, remove such a civil servant from service or revert him to. his lower post or grade, as the case may be, on such date as the president or, as the case may be, the person so authorised may, in the public interest, direct, or (b) in a case where the appointment or promotion of such a civil servant is found by the President or, as the case may be, ‑the person so authorised to suffer from a deficiency in the minimum length of service prescribed for promotion or appointment to the higher grade, direct, without notice, that seniority to such case shall count from the date the civil servant completes the minimum length of service in such appointment or promotion, as the case .ray be." It would thus be clear that power under section 3 in respect of the employees of the Corporations is akin to powers in section 12‑A in respect of all civil servants to whom the Civil Servants Act applies. Though the learned Judges of the High Court have given different reasons, our experience of dealing with such cases, show that the Ordinance and section 12‑A of the Civil Servant Act, 1973, were enacted as‑there were large scale complaints that during the period when the political Government was in power, several appointments bad been made in irregular manner on consi deration other than merits. Consequently, the Review Boards were set up which examined the case of all such persons who were employees of the Government controlled corporations or of the Government itself, and on their recommendations, many of these persons were removed from service or reverted to their original ranks by the order of the President or of the persons authorised by the president in this behalf. .

7. Coming to the interpretation of the Ordinance and the arguments of the learned Judges of the Sind High Court, which the learned counsel for the appellants has adopted, we may first of all examine the definition of the phrase "Service of Pakistan" given in Article 260 (1) of the Constitution According to it, "Service of Pakistan" is a service, post or office in connec tion with the affairs of the Federation or the province and also such service as may be declared to be "Service of Pakistan" by or under an Act of Parliament or of a Provincial Assembly. There is no doubt that the service of every Government controlled corporation has been declared to be Service of Pakistan under the Ordinance, nevertheless, this law does not confer any right on the employee of a corporation to become ipso facto a civil servant for all purposes under the Service Tribunals Act, 1973. The definition of the terms `Service of Pakistan" is embodied in Article 260 (1,4 for interpreting the provisions of the Constitution, specially Article 240 which relates to appointment to Service of Pakistan, and condition, of service and Article 63 read with Article 127 which provides for disqualification of a person in service of Pakistan from being a Membe of provincial Assembly or of Parliament Section 5 of Ordinance itself doe not make an employee of a corporation, a civil servant within the definition given in the Civil Servants Act, 1973, Saying plainly, a person who is in the "Service of Pakistan" is not necessarily a civil servant for all purposes.

8. The learned counsel for the appellants, on the strength of the decision of the Sind High Court, referred to above, pointed out that section 5 of the Ordinance specifically provides that a person in the service of a corporation shall be deemed to be a civil servant for the purposes of Service Tribunals Act, 1973, and therefore, he‑ has a right to approach the Tribunal also in respect of the disciplinary action taken against him. The section has no doubt declared the service of a corporation to be a "Service of Pakistan" and further provides that any person in corporation service who is removed from service or reverted to a post or grade under the Ordinance shall be deemed to be a civil servant for the purposes of Service Tribunals Act, 1973, but in the present case, the order of termination of service of the appellants does not show that their services were terminated under the provisions of the said Ordinance. It may not be out of place to reproduce the full text of the Ordinance, which reads as under :‑‑ "Whereas it is expedient to invest the President with certain powers in respect of persons in Corporation service ; And whereas the president is satisfied that circumstances exist which render it necessary to take immediate action Now, therefore, in pursuance of the Proclamation of the Fifth day of July, 1977, read with the Laws (Continuance in Force) Order, 1977 (C. M. L. A. Order No. 1 of 1977), and in exercise of all powers enabling him in that behalf, the president is pleased to make and promulgate the following Ordinance :‑‑ "

1. Short title and commencement.‑(1) This Ordinance may be called the Corporation Employees (Special Powers) Ordinance, 1978. (2) It shall come into force at once.

2. Definition.‑In this Ordinance, unless there is anything repugnant in the subject or context, "person in Corporation service", means every person who is in the employment a corporation or an institution set up, established, managed or controlled by the Federal Government, and includes the Chairman and the Managing Director of, and the holder of any other office in such corporation or institution.

3. Certain persons to be liable for removal or reversion. Notwithstanding anything contained in any law for the time being in force, or in the terms and conditions of service a person in corporation service appointed or promoted during the period from the first day of January, 1972 to the fifth day of July, 1977, may be removed from service, or reverted to his lower post or grade, as the case may be, without notice, by the president, or a person authorised by him in this behalf, on such date as the president, or as the case may be, the person so authorised may, in the public interest, direct.

4. Representation.‑A person who is removed from service or reverted to a lower post or grade under section 3 may, within fifteen days from the date of receipt of order of removal or reversion prefer a representation to the President Provided that, where the order of removal or reversion has been made by the President, such person may, within .the time aforesaid submit to the President a petition for review of the order.

5. Service of Corporation to be service of Pakistan etc.‑Service of a corporation is hereby declared to be service of Pakistan and every person in corporation service who is removed from service, or reverted to a lower post or grade, under this Ordinance, not being a person who is on deputation to a corporation from any province, shall be deemed to be a civil servant for the purpose of the Service Tribunals Act, 1973 (LXX of 1973), It is clear enough that under the Ordinance, only those persons can suffer penalty who are appointed to or promoted during the period 1st January, 1972 to the 5th July, 1977. It is not the case of the appellants that they were appointed during this period. Their services were not terminated under the provisions of section 3 of the Ordinance, but they were penalised under the Efficiency and Discipline Rules applicable to them. The jurisdic tion of this Tribunal would have come into motion only if the appellants had been removed from service under section 3 of the Ordinance. Such removal is to be made by the President or by a person authorised by him to do so. By no standard, the cases of the appellants fall under section 3 of the Ordinance, and consequently the jurisdiction of the Tribunal under section 5 ibid does not extend to these cases.

9. If the interpretation put forward by the Sind High Court is accepted, then all employees of different corporations, such as, Pakistan International Airlines, or Nationalised Industries and Banks and Insurance Corporations, etc. would come under the jurisdiction of this Tribunal, which has never been the case of the Government, nor of any of the employees of these Organisations.

10. For gathering the intention of the Legislature in enacting the Ordinance for the purpose, we have mentioned above it may be advanta geous to refer to the provisions of Water and Power Development Authority Act, 1958. In that Act, in section 17 (1‑A) power of removal or compulsory retirement has been given to the Water and Power Development Authority (WAPDA), without assigning any reason, and in section 17 (1‑B), the service under the Authority has been declared to be I 'Service of Pakistan", and it has been provided without any mention to section 17 (1‑A) that every person holding a post under the WAPDA with the exception of deputa tionists, shall be deemed to be civil servants for the purposes of the Service Tribunals Act, 1978, and unlike the Ordinance it makes no restriction in relation to only those persons against whom action under section 17 (1‑A) ibid is taken. It is for this reason that all the employees of WAPDA employed in any capacity seeks final remedy before this Tribunal. This is not the case with other Government controlled corporations in respect of whom, as already observed, the jurisdiction is limited in respect of only those employees against whom action under section 3 of the Ordinance is taken.

11. The declaration of service of corporation to be a `Service of Pakistan" was necessary, because power to the Service Tribunal against action under section 3 of the Ordinance could be given under Article 212 of the Constitution only if the employees affected by the order were in the "Service of Pakistan". Article 260 which defines the "Service of Pakistan" empowers the law maker to declare any service to be "Service of Pakistan." It was to achieve this end that corporation service was declared to be "Service of Pakistan". Had the corporation service not been declared "Service of Pakistan", then Article 212 of the Constitution would not have been applicable and the persons against whom action under section 3 of the Ordinance had been taken, could not be brought under the jurisdiction of the Service Tribunal. The very fact that different provisions in the shape of section 12‑A had been enacted in the Civil Servants Act, 1973, shows that corporation employees are not civil servants for all purposes, but hold that status only for the purposes of Service Tribunal Act, 1973 and that too, when action against" them is taken under section 3 of the Ordinance.

12. In view of the above discussions, therefore, we hold that the appellants against whom no action under section 3 of the Ordinance has been taken, are not civil servants for the purposes of Service Tribunals Act, 1973; and consequently they cannot invoke the provisions of section 4 thereof to appeal before us against the orders of their removal. Since we have no jurisdiction to entertain these appeals, we dismiss them in limine. Appeals dismissed.