2006 SCMR 1 (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.

Listed petitions have been filed against the judgments, dated 13-4-2004 and 15-7-2005 passed by Federal Service Tribunal, Karachi in Appeal No. 154(K) of 1998 and Appeal No.926(K)CE of 2004.

2. Precisely stating facts of the case are that Sher Khan instituted an appeal in Service Tribunal, Islamabad, challenging the order of respondent dated 28th November, 1997, dismissing him from service. It so happened that during pendency of appeal on account of process of privatization of the United Bank Ltd., Federal Service Tribunal declined to exercise, the jurisdiction. Relevant paras. from C.P. 560-K of 2004 are reproduced herein below:-- "It has been now conclusively held that after the Privatization of the United Bank Limited, FST has lost its jurisdiction and in the light of provisions of sections 28 and 31 of the Privatization Commission Ordinance of 2000 all the pending cases shall now come within the ambit of the jurisdiction of the Honourable High Court. Section 42 of the said Ordinance also provides that the provisions of Privatization Ordinance shall have effect of overriding all other laws. (6) In view of the above facts the appeals stands abated. Appellants may agitate their grievances before the proper legal forum. These appeals are, disposed of accordingly." Similarly in the connected case C.P. No.602-K of 2005 the Tribunal exercised its jurisdiction despite the process of privatization of H.B.L. Relevant para. therefrom is reproduced herein below:-- "For our purpose, relying on the judgment in the above cases against U.B.L., which is a judgment in rem; constituting the precedence for the like cases, we hold that the Tribunal has jurisdiction to hear the cases of H.B.L. pending before the Tribunal prior to the privatization of H.B.L. As such, we allow the request of the appellant for fixation of his appeal for regular hearing. Issue, we allow the request of the appellant for fixation of his appeal for regular hearing. Issue notice to the parties for regular hearing. Adjourned to 15-11-2005."

3. Learned counsel for the petitioner contended that in view of the judgment in the case of Manzoor Ali and 39 others v. United Bank Limited through President 2005 SCMR 1785 the Service Tribunal would continue to exercise its jurisdiction. He also stated that the view expressed in this judgment has been reaffirmed in another judgment announced on 12th May, 2005 in Muhammad Yousaf Qureshi and others v. Messrs United Bank and others C.As. Nos.99, 108, 111 and 114 of 2004 a/w C.Ps. 571-L, 1057-L, 1061-L and 1064-L of 2004.

4. On the other hand learned counsel contended that in the above noted cases, the effect of the earlier judgments in C.P. No.247-L of 1998 and C.Ps. Nos.2767-L, 3030-L of 2000, 157-L and 235 of 2001, wherein it has been held that after the privatization, the Tribunal would have no jurisdiction to decide the cases of the employees whose cases are covered by section 2-A of the Service Tribunals Act, 1973, was not considered.

5. Mr. Shahid Hussain Bajwa, learned counsel for H.B.L. contended that in the matters where there is equal number of the Judges and earlier judgment has not been considered, the later judgment would be considered to have passed incurium. He made reference to the following para. from Salmond on Jurisprudence: "Inconsistency with earlier decision of higher Court. It is clear law that a precedent loses its binding force if the Court that decided it overlooked an inconsistent decision of a higher Court. If for example, the Court of appeal decides a case in ignorancy of a decision of the House of Lords which went the other way, the decision of the Court of appeal is per incurium, and is not binding either on itself (r) or on lower Courts (s); on the contrary, it is the decision of the House of Lords that is binding. The same rule applies to precedents in other Courts, such as the Divisional Court (t)."

6. After having heard the learned counsel for the parties and noticing the above judgments leave to appeal is granted to examine respective contentions of parties counsel.

7. As a question of public importance is involved in these petitions, A therefore, appeals arising out of these petitions are ordered to be fixed before a larger Bench scheduled to hold hearing at Islamabad w.e.f. 12th December, 2005 wherein question inter alia, relating to the validity or otherwise of section 2-A is being considered.

8. Office to prepare the appeal on the present record with liberty to the parties to file additional documents, if need be. M.B.A./S-136/S????????????????????????????????????????????????????????????????????????????????? Leave granted.