' SAYED SAEED ASHHAD, J.--- Petitioners numbering forty have filed these civil petitions for special leave to appeal against the judgment, dated 10-11-2003 of the Federal Service Tribunal passed in Appeal No,693(K) of 1997 and 413 other appeals.
2. The brief facts of the case necessary for deciding these civil petitions for leave to appeal are that 414 employees including the above petitioners of Messrs United Bank Limited were verbally terminated on 15-5-1996. As these employees were workmen/workers within the definition of the above terms as appearing in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and Industrial Relations Ordinance, 1969, therefore, they sent grievance notices to their employer, namely, Messrs United Bank Limited. The grievance notices were not replied to by Messrs United Bank Limited as provided by section 25-A of the Repealed Industrial Relations. Ordinance, 1969, therefore, they filed grievance petitions on 13-8-1996. On 10-6-1997, section 2A was incorporated in the Service Tribunals Act, 1973 whereby all persons holding posts in any authority, corporation, body or organization established by or under a Federal law or which was owned or controlled by the Federal Government or in which the Federal Government had a controlling share or interest were deemed to be civil servants for the purpose of the Service Tribunals Act. The effect of incorporation of section 2A firstly was that all persons/employees serving in any capacity in an authority, corporation, body or organization managed, controlled or run by the Federal Government were required to approach the Service Tribunal for redress of their grievances relating to the terms and conditions of their service; and secondly, that all suits/appeals/applications pending in the High Court, District Courts, Civil Courts or the Labour Courts stood abated and the persons who had preferred such suits/appeals/applications were required to file fresh appeals before the Service Tribunal. In pursuance of the above provisions, the petitioners and several employees of Messrs United Bank Limited filed appeals on 8-9-1997 before the Federal Service Tribunal. On behalf of Messrs United Bank Limited, objection was raised with regard to the maintainability of the appeals on the grounds; firstly, that the Service Tribunal had no jurisdiction to entertain the appeals of the petitioners as they had ceased to be civil servants after privatization of Messrs United Bank Limited on 19-10-2002 and notification to this effect was issued on 9-10-2003 as the Federal Government had sold 51 % of the shares to private party; and secondly, that the appeals were barred by limitation as the affected employees in question were required to file appeals within 90 days to be commuted from 7-6-1997 the day on which the Service Tribunals (Amendment) Act (XVII of 1997) was assented to by the President of Pakistan. The Federal Service Tribunal after hearing the arguments of the learned counsel for the parties proceeded to decide only the issue of its jurisdiction to proceed with the matter and came to the conclusion that after privatization of Messrs United Bank Limited by sale/transfer of 51% of its shares by the Government to private concern, United Bank Limited ceased to be an authority, corporation, body or organization managed, run or controlled by the Federal Government thus, depriving its employees/persons holding posts therein from the limited status of civil servants for approaching the Service Tribunal. The Tribunal further observed that after privatization of Messrs United Bank Limited, the Federal Government was required to specify or notify an authority before whom the employees, whose appeals were pending before it, would be required to approach for redressal of their grievances; that the entire lot of 414 appeals stood abated and the petitioners would be required to seek remedy from the forum from which they used to get their grievances redressed prior to incorporation/ insertion of section 2A in the Service Tribunals Act.
3. The petitioners having felt aggrieved and dissatisfied with the judgment of the Federal Service Tribunal filed the above civil petitions for leave to appeal.
4. We have heard the arguments of Miss Wajahat Niaz, Advocateon-Record on behalf of the petitioners and Mr. Kamal-ud-Din Azfar, Advocate Supreme Court on behalf of Messrs United Bank Limited.
5. Miss Wajahat Niaz, Advocate-on-Record assailed the order of the Federal Service Tribunal and submitted that till such time as section 2A remained on the Statute Book, the petitioners would continue to be deemed civil servants and would be within their right to approach the Service Tribunal for redress of their grievances relating to the terms and conditions of their service. She further submitted that the cause of action had accrued to the petitioners before 19-10-2002, the day when Messrs United Bank Limited was privatized by disposing/selling 51% of its shares to a private party and at the time when the cause of action had accrued to the petitioners, they had acquired rights to approach the Federal Service Tribunal and such a vested right could not be taken away with retrospective effect so as to deprive the petitioners of their right to approach the Service Tribunal.
6. Mr. Kamal-ud-Din Azfar; Advocate Supreme Court on the other hand supported the judgment of the Federal Service Tribunal and submitted that it had given a legal, just and proper finding in coming to the conclusion that the petitioners holding posts in Messrs United Bank Limited had ceased to become civil servants after United Bank Limited was privatized by the Federal Government. He further submitted that the very requirement for the petitioners to be civil servants for approaching the Service Tribunal for redress of their grievances relating to the terms and conditions of their service was that they would be holding posts in an authority, corporation, body or organization, owned, managed or run by the Federal Government and the moment the Federal Government ceased to have the exclusive right of ownership, management or running of an authority, establishment or corporation, the employees or persons working therein could no longer be held to be the civil servants in pursuance of section 2A of the Service Tribunals Act.
7. The Parliament enacted Service Tribunals Act, 1973 to provide for establishment of Service Tribunals to exercise jurisdiction in respect of matters relating to the terms and conditions of service of civil servants. These Tribunals were established by the Service Tribunals Act, 1973 (hereinafter referred to as the "Act of 1973"). The Preamble' of the Act, 1973 lays down the reasons for establishment of the administrative Tribunals to be called Service Tribunals having exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants and for matters connected therewith and ancillary thereto. The Service Tribunals were established by Act LXX of 1973 by the Parliament in exercise of the powers given to it by Article 212 of the Constitution of Islamic Republic of Pakistan. In pursuance of that power, the Legislature provided for the Service Tribunals to exercise jurisdiction in respect of matters enumerated in Article 212(1)(a) and (b). Initially, the civil servants who could approach the Service Tribunal for redress of their grievances relating to the violation of any of the terms and conditions of their service were the civil servants within the meaning of Civil Servants Act, 1973 (LXXI of 1973) (hereinafter referred to as the "Civil Servants Act"). The object of establishment of the Service Tribunals in accordance with the requirement and provisions of Article 212 of the Constitution was to provide a special forum for the civil servants for rectification of the wrongs done to them in connection with any of the terms and conditions of their service as prior to the establishment of the Service Tribunals, there was no special forum where the civil servants could approach for rectification of the wrongs and redress of the grievances arising to them in connection with violation of the terms and conditions of their service. Originally, only such civil servants as defined' in section 2(b) of the Civil Servants Act could approach the Service Tribunal for rectification of the wrongs and redress of the grievances arising to them as above. All the categories of officers/employees who were not covered by the definition of civil servants as originally appearing in section 2(b) of the Civil Servants Act could not invoke the jurisdiction of the Service Tribunal. Such officers/employees were those who were rendering service in the statutory authorities, corporations, bodies or organizations managed, controlled or run by the Government. Such employees could be divided into two categories. The first category of officers/employees belonged to the authorities, corporations, bodies or organizations who had framed statutory rules of service duly approved by the authority competent to approve such statutory rules. The other category of officers/employees belong to such corporation who did not have statutory rules of service. The officers/employees belonging to the first category usually invoked the Constitutional jurisdiction of the High Courts under Article 199 of the Constitution of Islamic Republic of Pakistan as violation relating to any of the terms and conditions of their service was considered to be a violation of law at the instance of public functionaries falling within the scope of Article 199 of the Constitution. The other category of officers/ employees of authorities, corporations, bodies or organizations was that for whom no statutory rules of service were framed.
These officers/ employees could further be divided into officers class and those who were covered by the definition of workman or worker as given in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and Industrial Relations Ordinance, 1969. The officers/ employees not falling within the definition of workman and worker used to approach the Civil Courts for redress of their grievances as they were governed by the law of master and servant.
The employees who were covered by the definition of workman and worker used to approach the Labor Court for redress of their grievances. Subsequently, it was decided to place the employees/persons working in all the authorities, corporations, establishments, bodies or organizations managed, controlled or run by the Federal Government on the same footing irrespective of the existence or otherwise of the Statutory Rules of service by providing special forum for rectification of the wrongs and redress of grievances arising out of the violation of the terms and conditions of their service. For achieving the desires objective, the Legislature incorporated section 2A in the Service Tribunals Act whereby all employees/persons holding posts in the authorities, corporations, bodies or organizations managed, controlled or run by the Federal Government were deemed to be civil servants for the purpose of invoking the jurisdiction of the Service Tribunals for rectification of the wrong and redress of their grievances relating to the terms and conditions of their service.
8. From perusal of Article 212 of the Constitution, Preamble of the Civil Servants Act, 1973, definitions of the civil servant as provided in the Civil Servants Act and the Service Tribunals Act, it is abundantly clear that the Legislature had intended to provide specific and particular forum for all the employees of statutory authorities, corporations, bodies or organizations managed, run and controlled by the Federal Government B for uniformity in dispensation of justice to such employees.
Thus, such employees after incorporation of section 2A could no longer invoke the jurisdiction of the High Court under Article 199 of the Constitution, the plenary jurisdiction of the Civil Courts as well as of the Labour Courts. The essential condition for invoking the jurisdiction of the Service Tribunal was that a person should be covered by the definition of section 2A of the Service Tribunals Act, 1973 inserted by the Service Tribunals (Amendment) Act (XVII of 1997). Similarly, the essential condition for the Service Tribunal for conferment and exercise of jurisdiction: was that the person invoking the jurisdiction should be a civil servant within the meaning of section 2A of the Service Tribunals Act. The Service Tribunal had no jurisdiction to entertain an appeal by a person who was not covered by the definition of civil servant as provided by section 2A of the Service Tribunals Act. After incorporation of section 2A, the employees working in Messrs United Bank Limited as well as all other nationalized or Government managed banks became civil servants by deeming section 2A of the Service Tribunals Act and started approaching the Service Tribunal for violation of the terms and conditions of their service.
9. Messrs United Bank Limited was privatized by the Privatization Commission in pursuance of the provisions of the Privatization Commission Ordinance, 2000 wherein the Government had empowered the Privatization Commission to carry out the privatization programme after approval by the Cabinet. One of the modes of privatization is by sale of shares/interest of the Government to any private party or to more than one private party as provided by section 25(b) of Privatization Commission Ordinance. Such privatization of Messrs United Bank Limited was completed on 19-10- 2002 and notification was issued in the official Gazette on 9-10-2003 whereafter, Messrs United Bank Limited ceased to be an authority, corporation, body or organization managed, controlled or run by the Federal Government. Consequently, all persons employed in Messrs United Bank Limited also ceased to be the civil servants. The petitioners and several other employees of Messrs United Bank Limited had approached the Federal Service Tribunal for redress of their grievances relating to their illegal termination by verbal order, dated 15-5-1996. At the time when they had approached the Service Tribunal, they were civil servants within the meaning of section 2A of the Service Tribunals Act and the Federal Service Tribunal was justified in entertaining their appeals. However, the moment Messrs United Bank Limited was privatized, the petitioners and all other employees ceased to be civil servants. The essential condition for exercise of jurisdiction by the Service Tribunal i,e,, the person invoking the jurisdiction was a civil servant ceased to exist as the petitioners and all other employees became employees of a privately managed bank and could not by any stretch of imagination be deemed to be civil servants in view of section 2A of the Service Tribunals Act. As the essential condition for exercise of jurisdiction by the Service Tribunal did not exist the Service Tribunal was not legally competent to proceed with the matters of the petitioners and all other employees. The appeals filed by the petitioners stood abated on the day when they ceased to be the civil servants. They were required to approach the proper forum for the rectification of the wrongs and redress of their grievances. In case of the employees who would not be covered by the definition of workman and worker as given in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and the I.R.O., 1969 required to invoke the jurisdiction of the Civil Courts as they would be governed by the law of master and servant. In case of employees who would come within the definition of workman and worker as defined in the Standing Order Ordinance and the I.R.O., 1969 were required to invoke the jurisdiction of the Labour Courts in view of the provisions of Labour laws.
10. It is to be noted that after promulgation of the Service Tribunals Act, all suits, appeals and applications filed by the civil servants in Courts and other Forums were made to abate by section 6 of the Service Tribunals Act. Proviso to section 6 conferred a right to the parties in such suits, appeals and applications to file an appeal before the Service Tribunal within ninety days of the establishment of the Tribunal in respect of any matter which was in issue in such suits, appeals or applications. Similarly on incorporation of section 2 in the. Service Tribunals Act, all petitions, appeals, suits and applications pending before various Courts, Tribunals or forums were found to have become in fructuous or stood abated and all the parties who had filed such suits, appeals and applications were required to approach the Service Tribunal in respect of the subject-matter and issues involved in such petitions, appeals, suits and applications. This was not done on account of any specific provision but was the result of operation of law whereby all the parties who had filed such suits, appeals and applications were declared civil servants by section 2A of Service Tribunals Act, thus, conversely, after withdrawal of the status of civil servant and ceasing to become civil servant as per deeming section 2A, the appeals filed by the petitioners would stand abated on the day when privatization of Messrs United Bank Limited was finalized and its management and control was taken over by C a private party. The petitioners and all the persons employed in Messrs United Bank Limited would be governed by the ordinary law of master and servant if not falling within the definition of workman or worker who would be governed by the Labour Laws. The forum available to the officers not falling within the definition of workman and worker would be the Civil Courts and for the persons covered by the definition of I.R.O., 1969 would be the Labour Courts. Continuation of proceedings by the Service Tribunal in respect of the petitioners would amount to usurpation of the jurisdiction of the Civil Courts and the Labour Courts which exercise would be illegal as no Court or Tribunal can assume jurisdiction which does not vest in it. As the condition for exercise of jurisdiction by the Tribunal could not be fulfilled, the Tribunal would not be competent to proceed with the appeals of the petitioners and other employees.
11. Apart from the above disabilities, continuation of the proceedings before the Service Tribunal in relation to the appeals filed by the petitioners would also be violative of the provisions of Article 212(1) clauses (a) and (b) of the Constitution inasmuch as the Service Tribunal established in pursuance of the provisions of Article 212 of the Constitution has limited jurisdiction in the matters relating to the violation of the terms and conditions of service of the civil servants/persons in the service of Pakistan as defined in the Civil Servants Act and section 2A of the Service Tribunals Act. It cannot entertain appeals filed by persons not falling within the definition of civil servants or proceed with the appeals of such persons who were civil servants at the time of filing of appeals but before the same could be disposed of finally had ceased to be civil servants.
12. For the foregoing reasons and discussions, it is established beyond any doubt that the Service Tribunal does not have the jurisdiction to proceed with the appeals of the petitioners and as a matter of fact, all these appeals stood abated on the day when privatization of Messrs United Bank Limited was finalized. The impugned judgment of the Federal Service Tribunal does not suffer from any illegality, infirmity or . Material irregularity to warrant interference. These petitions for leave to appeal are found to be without any substance. Accordingly, they are dismissed and leave to appeal refused.
(Sd.) Saiyed Saeed Ashhad, J ' I have appended my separate note (Sd.) Rana Bhagwandas; J ' I concur with the findings arrived at by H.J.2 by his separate note.
(Sd.) Hamid Ali Mirza, J (Sd.) Saiyed Saeed Ashhad, J ' RANA BHAGWANDAS, J.--- 13. I have had the privilege of perusing the proposed judgment composed by my learned brother Saiyed Saeed Ashhad, J. With due deference and utmost reverence for my learned brother, I am unable to agree with the conclusion drawn by the learned, author. My reasons for recording opinion of my own are as under.
14. Admittedly on 10-6-1997, when section 2A was incorporated in the Service Tribunals Act, 1973 (hereinafter referred to as the Act), petitioners' grievance petitions were subjudice before the relevant Labour Court. It was only on account of insertion of section 2A with effect from 10-6-1997 in the Act that they were declared to be the civil servants by deeming clause for the purpose of enforcement of their rights before the Federal Service Tribunal (hereinafter referred to as the Tribunal). In these circumstances, they were obliged to invoke the jurisdiction of the Tribunal for the redress of their grievance. To their great misfortune, for reasons not ascertainable from the record, their appeals remained pending for a long period when privatization process in respect of 51 % share holding of the Federal Government in the United Bank Limited (hereinafter referred to as the Bank) took place and was notified in the official Gazette on 10-2-2003.
15. Notwithstanding the fact that Federal Goverrnnent, through Privatization Commission, disinvested 51% share holding in the Bank in favor of a private person, the fact remains that the fate of the grievance of the petitioners must be determined on the basis of rights accrued to them when they lawfully invoked the jurisdiction of the Tribunal. On factual plane, I am in a manner of doubt whether, after the privatization of 51% share holding in the Bank in favor of a private party, entire management and control of the Bank was handed over to the new purchaser immediately because it is not discernable from the record as to whether, entire payment for the purchase of shares was made to the Federal Government, requisite transfer/sale deed was duly executed and all other modalities were completed on the date of notification. In the absence of any material document on record, it is hard to record a finding of fact that by offering to disinvest 51% shares of the Bank in favor of a private person whether the Federal Government completely lost its interest in the management and affairs of the Bank. Evidently, Federal Government still retained 49% shares in the Bank. Likewise, it is difficult to accept that merely on account of change of ownership the petitioners would automatically lose the status of civil servant for the purpose of invoking their remedy before the Tribunal. Since a forum was provided to them through the insertion of section 2A in the Act by the Legislature, until and unless their right to approach the Tribunal for undoing the wrong and injustice meted out to them was done away with E by another legislative instrument, I am not inclined to hold that they ceased to be the civil servants for the determination of their plea against wrongful dismissal from service or that their remedy fell beyond the jurisdiction of the Tribunal. Respondents have not placed on record a copy of the actual transfer/sale-deed between the Privatization Commission of Pakistan and new purchaser to find out the actual terms and conditions on which the sale of shares took place. Ordinarily, in such eventualities, rights and privileges vesting in the employees of an organization are safeguarded and protected even under the new management, therefore, it would be unfair and unjust to infer that, on account of subsequent development in respect of share holding in the Bank, petitioners could be lawfully deprived of their valuable right to seek the enforcement of their terms and conditions of service accruing to them long before the supposed takeover of the management by a private party.
16. It is evident from the record and the plea raised by the respondent-Bank that the act of privatization took legal shape on 10-2-2003. Admittedly, petitioners' appeals were pending before the Tribunal since 9-9-1997. The act of privatization, primarily and essentially, being an act of administrative nature, in my view, would not affect the pending lis as it is neither expressly nor impliedly so demonstrated by the Legislature. Had the petitioners' appeals been finally decided before the act of privatization, the question of jurisdiction of the Tribunal could not have been pressed into service at all. To my mind, change in the circumstances regarding holding of shares in the respondent-banking company would not operate to prejudice the right of appeal before the Tribunal conferred upon them by statute. This right being a substantive right of appeal would not be affected by change of controlling shares because even otherwise Federal Government would continue to hold and possess a valuable interest in the affairs and management of the Bank by reason of its share holding to the extent of 49%. The expression "controlling shares or interest" employed in section 2A would be construed disjunctively and not in conjunction. On this analogy as well, if the Federal Government still retains interest in the respondent-Bank a valuable right, conferred on the petitioners through legislative enactment, cannot be wiped out through an administrative act.
17. The case can be examined from another angle. Pendency of the appeals before the Tribunal requires serious consideration. Inaction and lack of decision in respect of terms and conditions of the petitioners would surely amount to an act of lapse and omission. Access to inexpensive justice and expeditious trial of a lis is a fundamental right guaranteed to every citizen. If the Tribunal did not decide the lis of the petitioners for about six years, the petitioners cannot be made to suffer for the act/omission/lapse on the part of the Court. Courts of law and Tribunals vested with exclusive jurisdiction are always under a duty to decide a lis with utmost speed, without sacrifyhig the cause of justice. Since the petitioners' appeals were subjudice before the Tribunal, in law, they cannot be condemned for no fault on their part and on account of scandalous delay occasioned by an act of the Court. This principle is well-settled and there is a chain of authorities on this principle of law. A reference may be had to Muhammad Talha Adil v. Muhammad Lutfi 2005 SCM R 720 in which earlier precedents were also duly considered.
18. The principle of law concerning the effect of appeal of laws finds place in Article 264 of the Constitution, which inter alia, unequivocally ordains in clear, language as under:- "264. Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution,--
(a) .................................................................................
(b) .................................................................................
(c) ....................
(d) .................................................................................
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; ' and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed."
' This constitutional provision is pari materia and in line with the language used in section 6 of the General Clauses Act (X of 1897).
' The right of appeal is not merely a matter of procedure but it is a substantive right. The institution of the suit carries with the implication that all rights of appeal then enforced are preserved by parties thereto till the rest of the career of the suit. A statutory right of appeal is a vested right and accrues to the litigants and exists as on and from the date the lis commences and although it may be actually exercised when the adverse order is pronounced. Such right is to be governed by law prevailing at the date of the institution of the suit or proceedings and not by the law, which prevails at the date of its decision or at the date of the filing of the appeal unless of course the amending law provides otherwise. It is well-settled principle of interpretation of statutes that in absence of a stipulation to the contrary any change in law affecting substantive rights has to have prospective effect. This doctrine of law appears to have been enunciated, for the first time, by the Privy Council iri The Colonial Sugar Refining Co. Ltd. v. Irving LR (1905) AC 369. This was followed in F.B. Ali v. State PLD 1975 SC 506; Sutlej Cotton Mills Ltd. v. Industrial Court PLD 1966 SC 472; Shohrat Bano v. Ismail 1968 SCM R 574; Garikapati v. Subbiah Chaudhry AIR 1957 SC 540; P.I.A. Corporation v. Pak. Saaf Dry Cleaners PLD 1981 SC 553; Nazir Begum v. Qamarunnisa 1982 CLC 2271 and Muhammad Ibrahim v Surrayiaun Nisa PLD 1992 SC 637.
' The view taken by this Court is in line with law laid down by this Court in Mian Rafiud Din v. Chief Settlement and Rehabilitation Commissioner PLD 1971 SC 252 at pages 306 and 313 wherein it was observed as under:-- ' "It is well-settled that when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun and not the law that existed at the date of the judgment or order. This is, however, subject to the exception that the new law shall apply if it is a mere rule of procedure or if it has been applied retrospectively to pending proceedings. This rule, as stated in Craies on Statute Law, Sixth Edition, page 400 is as follows:-- "It is general rule that when the. Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. But there is an exception to this rule, namely, where enactments merely affect procedure and do not extend to rights of action."
' At page 313 learned author Judge elaborated as under:- "No legislative enactment, according to the universally accepted Principle, should be held to be redundant or superfluous, and effort must be made by Courts to give effect to every enactment."
' Similarly, in Idrees Ahmad v. Hafiz Fida Ahmad Khan PLD 1985 SC 376, this Court observed as under:-- "General Clauses Act (X of 1897)--- ' S. 6---Repeal of a statute-Right of appeal under repealed enactment is such a right, which survives the appeal unless repealing enactment, either expressly or by necessary implication, curtails such right in any manner.
' The proposition that all the rights to remedy by way of appeals otherwise under an enactment stand vested and accrued in the litigating parties on the date of the commencement of the lis is, therefore, not open to challenge, unless of course the repealing enactment, either expressly or by necessary implication, curtails such rights in any manner."
' In State of Bombay v. Messrs Supreme General Films Exchange Ltd. AIR 1960 SC 980 Supreme Court of India held as follows:--- ' "An impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only; it impairs or imperils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment."
' In Referring Authority/Chief Secretary, Azad Government of the State of Jammu & Kashmir v.
Sardar Sikandar Hayat PLD 1982 SC (AJ&K) 1120 rule laid down by the Court reads as under:-- ' "A right of appeal is not merely a matter of procedure but is a vested right and cannot be taken away by repeal or amendment of statutes conferring right of appeal."
19. Although there is no legislative enactment taking away the jurisdiction of the Tribunal in type of cases in hand, the general principle of law is that when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun unless the new statute has clear intention to vary such rights. Where the Legislature has made its intention clear that the amending Act should have a retrospective operation, there is no doubt that it must be so construed even though consequence may entail hardship to a party. Refer State v. Muhammad Jamil PLD 1965 SC 681. IN In Gul Hassan & Co. v. Allied Bank of Pakistan 1996 SCM R 237 this Court reaffirmed the principle of law observing that it is well-settled principle of interpretation of statutes that where a statute affects a substantive right, it operates prospectively unless "by express enactment or necessary intendment" retrospective operation has been given.
Earlier this principle was laid down in Muhammad Ishaq v. State PLD 1966 SC (Pak.) 256; and Muhammad Jamil's case (supra). This principle was affirmed in Abdur Rehman v. Settlement Commissioner PLD 1956 SC 362. While reinforcing the principle in Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187, it was observed that, however, statute, which is a procedural in nature, operates retrospectively unless it affects an existing P right on the date of enactment or cause injustice or prejudice to a substantive right.
' As pointed out hereinabove, there is no legislative enactment taking away the right of appeal of the petitioners or the jurisdiction of the Tribunal materially affecting the fate of pending appeals, analogy can be drawn from the principle of law laying down that if an amending Act does not affect the rights in a pending case, it is hard to accept that an administrative act would operate to deprive a Court or a Tribunal of exclusive jurisdiction of its authority to decide the lis on the basis of the rights available on the date of institution of a cause.
20. As the refusal of Tribunal to exercise jurisdiction has resulted in miscarriage of justice, it is incumbent upon this Court to correct an erroneous view taken by the Tribunal. A reference in this context may be made to Azam Sarfraz v. Government of Pakistan 2005 SCM R 590. Though the facts of the reported case may be distinguishable, analogy can always be drawn from the conclusion arrived at by this Court in the precedent case.
21. For the aforesaid facts, circumstances and reasons, I am of the considered view that learned Tribunal committed a grave error of law by T non-suiting the petitioners after more than six years of assuming the jurisdiction for lack of jurisdiction.
22. Consequently, I would convert these petitions into appeals and, on acceptance, set aside the impugned judgment. Resultantly, the appeals are remanded to the Tribunal for a decision on merits within four weeks of the receipt of this judgment.
(Sd). Rana Bhagwandas, J ' HAMID ALI MIRZA, J.--- I agree with the findings of my learned brother, Rana Bhagwandas, J., consequently the petitions are converted into appeals and remanded to the Tribunal for decision on merits.
(Sd.) Hamid Ali Mirza, J ' ORDER OF THE COURT ' By majority, these petitions are converted into appeals and on acceptance, we set aside the impugned judgment. Resultantly, the appeals are remanded to the Tribunal for a decision on merits within four weeks of the receipt of this judgment.
(Sd.) Rana Bhagwandas, J (Sd.) Hamid Ali Mirza, J (Sd.) Saiyed Saeed Ashhad, J