' MUHAMMAD NAWAZ ABBASI, J.--- This appeal by leave of the Court has been directed against the judgment dated 4-1-2000 passed by the Federal Service Tribunal, Islamabad whereby the appeal filed by the respondent, seeking reinstatement in service, was dismissed.
2. The respondent being employee of the Special Communication Organization, a component of Pakistan Army was proceeded against for the charge of fraudulently managing approval of P.C.O.
In the name of his son at Mangla Hamlet was involved in the activities adverse to the interest of Defence Organization. In consequence to an inquiry, he was found guilty of the charge and was dismissed from service. The main grievance of the respondent in appeal before the Federal Service Tribunal was that he was dismissed from service without holding a proper inquiry and providing an opportunity of hearing so much so he was not heard by the appellate Authority. The appellants seriously contested the appeal and raising preliminary objection to the maintainability of the appeal under section 4 of the Federal Service Tribunals Act, 1973 pleaded before the Tribunal that Special Communication Organization is an integral part of the regular army and its civilian employees in terms of section 2(1)(c) of Pakistan Army Act, 1952 are not as such civil servants in terms of Civil Servants Act, 1973 to avail the remedy of appeal before the Tribunal. The case of respondent on the other hand, was that he being a civilian employee of the Organization was not subject to the Army Act and was a civil servant. The Tribunal, however, having formed the opinion that respondent was a civil servant in terms of the Civil Servants Act, 1973 and Government Servants (E&D) Rules, 1973, were applicable to him, allowed the appeal. The operative part of the judgment of the Service Tribunal is reproduced hereunder:-- "11 The net result of above discussion would be that the appellant could not be considered to be in active service vis-a-vis procedure to be adopted for awarding of major penalty of dismissal from service rather if at all such a penalty was to be enacted then he was to be subjected to the procedure as laid down under the Government Servants (E&D) Rules, 1973. It is a fundamental principle of law that when a person is accused of a charge and that too of serious nature like fraud, he has to be given an opportunity of being heard and for that purpose a charge-sheet accompanied by statement of allegations is to be issued to him, reply thereto to be taken from him, thereafter an Inquiry Officer or Inquiry Committee is to be appointed/ constituted for holding discrete regular inquiry into all such 'allegations by giving an opportunity to the accused to cross- examine the witnesses and to produce evidence in defence, thereafter a show-cause notice is to be issued to him which is to be responded by the accused and lastly right of personal hearing is also to be granted meaning thereby the procedure as envisaged under rule 6 of Government Servants (E&D) Rules, 1973 is to be applied in letter and spirit. Holding of Court of inquiry simpliciter cannot absolve the respondents authority to doing away with all the aforementioned prerequisites as doing so would be tantamounting to accused being condemned unheard. As the appellant was not dealt with under Government Servants (E&D) Rules, 1973 vis-a-vis proving the charges against him, hence the appeal is accepted and the impugned order is set aside. The appellant is to be reinstated with the direction to the respondents to hold a full-fledged/regular inquiry afresh in accordance with law in the light of our above observations especially as countenanced under rule 6 of Government Servants (E&D) Rules, 1973. The intervening period is to be treated leave of any kind due. The matter of grant or otherwise of back benefits is to hinge upon the fate of fresh inquiry."
3. Leave was granted in this appeal vide order dated 16-4-2001 in the following terms:- ' In this petition leave to appeal has been sought against the judgment dated 4-11-2000 passed by the Federal Service Tribunal, Islamabad whereby Appeal No,42(R)/C.S. Of 2000 filed by the respondent against his dismissal from service was allowed and he was reinstated in service.
' Briefly stated facts of the case are that after his retirement as Lance Naik from Pakistan Army the respondent was appointed as Lower Division- Clerk in the Headquarters of Special Communication Organization (Defence) on 31-8-1988. During his service, he was found guilty of misconduct, therefore, after conducting inquiry, his services were terminated on 1-11-1999, as such, he preferred departmental appeal, which was rejected on 31-12-1999. Consequently, he filed appeal before the Federal Service Tribunal, Islamabad- which has been allowed vide impugned order as such instant petition has been filed.
' Learned counsel appearing on behalf of the petitioners contended that the respondent was not a civil servant as he was directly connected with the operational affairs of the Pakistan Army as such, his services were governed by the Pakistan Army Act, 1952. To strengthen their argument, they placed reliance on Muhammad Yousaf v. Secretary, Ministry of Defence 1997 PLC (C.S.) 852 and.
Federation of Pakistan v. Khurshid Ahmad 1999 SCMR 664.
' We have heard the learned counsel and have also gone through the impugned order. A perusal whereof indicates that the learned Federal Service Tribunal was itself of the opinion that as far as the, minor offences were concerned those were governed by the Pakistan Army Act, 1952 whereas so far as the Major Acts were concerned, the respondent would be dealt with under the provisions of Government Servants (Efficiency and Discipline) Rules, 1973, paragraph 10 of the impugned judgment being relevant is reproduced hereinbelow:-- "In our analysis, only such civilians shall be treated to be on "active service" who are assisting the army in defence matters which includes the communication service for the purposes of defence.
Conversely the civilian employees in any Organization under the Army who- are not performing the operational duties in relation to the defence or not acting in aid of such duties, will not be treated as a class of persons who perform duties 'connected with the defence of the State. Another aspect of the matter is that as per terms and conditions of such civilian employees, it has been included therein that they shall be subject to Army Act for certain purposes like awarding of minor punishment under the Pakistan Army Act. This is special provision applicable to the civilian employees of the SCO. It is, therefore, held that civilian employees of the SCO are subject to the Pakistan Army Act in the matter of minor punishment and such other matters for which this Act has, been expressly made applicable. The E&D Rules under the Civil Servants Act, have been framed but there are a large number of other Organizations and statutory bodies who have also adopted such rule. The application of the Army Act for the purpose of minor punishment and other allied matters relating to good order and efficiency and discipline is thus, lawful in the case of civilian employees working under the SCOR in AJK. The Telephone and Telegraph system has been entrusted to Army and is being managed by SCO. It was, therefore, desirable that certain provisions of Army Act and rules were made applicable to the 'civilian employees of SCO for the efficient functioning of SCO. But the application of Pakistan Army Act, to such civil employees in the matter of minor punishment and certain aspects of discipline does not convert their services as to bring the same at par with those of the members of defence service which ordinarily included Army, Navy and the Air Force, and may also include such civilian employees who perform duties in relation to the defence of the State.
' The net result of above discussion would that the appellant could not be considered to be in active service vis-a-vis procedure to be adopted for awarding of major penalty of dismissal from service rather if at all such a penalty was to be exacted then he was to be subjected to the procedure as laid down under the Government Servants (E&D) Rules, 1973.
' In view of the above contradiction in the judgment itself as well as after having gone through the judgments reported as. Muhammad Yousaf v. Secretary, Ministry of Defence 1997 PLC (C.S.) 852 and Federation of Pakistan v. Khurshid Ahmad 1999 SCMR 664, relied upon by the learned counsel for the petitioners, we are inclined to grant leave to appeal to consider as to whether the respondent was a civil servant and was liable 'to be dealt with under the Government Servants (Efficiency and Discipline) Rules, 1973 or he was to be dealt with under the Pakistan Army Act, 1952 for the purpose of disciplinary action. Leave is accordingly granted. Pending decision of the appeal, operation of the impugned order is suspended."
4. The Special Communication Organization is certainly an Organization of Pakistan Army and in addition to the members of regular Army, the civilians are also employed in the Organization, therefore, the essential question requiring determination in the instant case would be whether an employee of the Organization who is not otherwise subject to the military law, would become subject to Pakistan Army Act, 1952, by virtue of section 2(1)(c) read with section 7 of this Act.
5. The contention of learned counsel for the appellants is that the person not otherwise subject to Pakistan Army Act, would become subject to this Act who on active service in camp or on the march or at any Frontier Post specified by the Federal Government are employed by or in the service of or is a follower of or, accompany or portion of the Pakistan Army are deemed to be on active service during the period, they are attached or form part of force which is engaged in any military operation as defined in section 8(1) of the (ibid) Act. The Special Communication Organization is a force and by virtue of its functions, being engaged in military operations, is on active service in terms of notification, therefore, the respondent a civilian employee of the Organization, was part of the force and was not a civil servant to avail the remedy of appeal before the Service Tribunal under section 4 of the Federal Service Tribunals Act, 1973. The learned counsel for the respondent on the other hand has argued that the respondent was employed in the Organization as civil telephone operator and was not on active service to be treated subject to the Pakistan Army Act by virtue of section 2(1)(c) read with section 7 of this Act. The learned counsel without disputing the status of Special Communication Organization as a component of the Pakistan Army, submitted that the respondent being civilian employee would be governed by the service laws applicable to the civil servants and since he was removed from service without giving him a show-cause notice or of a charge-sheet and holding of a regular inquiry or giving an opportunity of hearing, therefore, the impugned judgment was unexceptional. The proposition as to whether the respondent would be governed by Civil Servants Act, 1973 or Pakistan Army Act, 1952, would need examination in the light of relevant provisions in the Pakistan Army Act. Section 2(1)(c) of Pakistan Army Act proyides as under:- "2(1)(c). Person not otherwise subject to this Act, who on active service, in camp, on the march or at any Frontier Post specified by the Federal Government by notification in this behalf, are employed by, or are in the service of or are followers of, or accompany or portion of the Pakistan Army."
6. The expression "active service" used in section 2(1)(c) (supra) has been defined in section 8(1) of Pakistan Army Act asunder:-- "(1) "active service", as applied to a person subject to this Act, means the time during which such person is attached to, or forms part of a force which is engaged in operations against an enemy, or is engaged in military operations in, or is on the line of march to a country or place wholly or partly occupied by an enemy, or is attached to or forms part of a force which is in military occupation of a foreign country."
' The term 'active' means in action and 'service' in the meaning of employment, is civil service, military service or public service and expression 'on active service' in relation to the military services, means a person who is engaged in any military operation as defined in section 8(1) of the Act.
7. In the light of above definition of "on active service" a person who is member of military service and is subject to the Pakistan Army Act is deemed to be on active service but a person who is not otherwise subject to this Act and is a civilian employee in an Organization of Army, is considered to be on active service at the time during which he is attached or forms part of the force in the manner as described in subsection (1) of section 8 (ibid) and thus, a civilian employee in Defence Organization while attached with the force which is an active force, being engaged in any military operation, will be deemed to be on active service. The Federal Government with reference to an area in which any person or class of persons may be serving or with reference to any provision of Army Act or any other law for the time being in force in exercise of its powers under section 7 of the Army Act, may by notification direct that such persons are on active service and the active service in terms of notification under section 7 of the Act, is not distinct and different to the active service mentioned in subsection (1) of section 8 of the Army Act. Section 7 .Of the Act provides that the Federal Government may by a notification with reference to an area or any provision of Army Act or any other Law for the, time being in force, direct that any person or class of persons subject to the Army Act shall be deemed to be on active service and active service under section 8(1) (ibid) means as applied to all those persons are subject to the Army Act who being attached to or form part of the force or are attached with force which is engaged in military operations. There is complete harmony of section 8(1) with section 7, which read as under:-- "7. Power to declare persons to be on active service.--- Notwithstanding anything contained in clause (1) of section 8, the Federal Government may, by notification, direct that any person or class of persons subject to this Act shall, with reference to any area in which they may be serving or with reference to all or any of the provisions of this Act or of any other law for the time being in force, be deemed to be on active service within the meaning of this Act."
8. The plain reading of the different provisions in Pakistan Army Act, 1952, referred hereinbefore, may without any conflict, lead to an inference that only a person who is subject to the Pakistan Army Act who is engaged in any military operation, is on active service. The expression "Active Service" has been used in these provision with reference to the persons subject to the Army Act and section 7(ibid) wherein it is provided that Federal Government may direct by issuing a notification that a person or class of persons subject to this Act, with reference to any area in which they may be serving or with reference to all or any of the provisions of this Act or any other law for the time being in force, shall be deemed to be on active service, within the meaning of the Act notwithstanding anything contained in section 8(1) of the Act would create no distinction. It is, therefore, quite clear that for the purpose of section 7 (ibid), a person who is subject to the Act, even if is not engaged in any of the military operation he would be treated on active service, if the Federal Government by notification, directs that such person or class of persons will be deemed to be on active service in the area in which they are serving or with reference to any provision of the Army Act or any other law for the time being in force. The effect of the issue of notification, under section 7 of the Act is that all those persons who are mentioned in section 2(a)(b) and (bb) and are subject to Pakistan Army Act, serving anywhere are deemed to be on active service within the meanings of the Act and any other person who is serving with a person on active service, would also be deemed to be on active service within the meanings of section 2(1)(c) read with section 7 of the Pakistan Army Act, 1952. The expression active service has been used in the different provisions of Pakistan Army Act with reference to a person who is in military service in terms of section 2(a)(b)(bb) of the Army Act and is subject to this Act. The careful examination of section 2(1)(c) would convey the meaning that a person not otherwise subject to the Army Act, if is accompanying a portion of Army or a person on active service, would be deemed to be on active service and a persons who is on active service is deemed to be subject to Pakistan Army Act. The result is that the civilian employees in any defense organization which is attached with a force which is on active service while engaged in military operation, would be deemed to be on, active service. The interpretation of the expression 'subject to this Act" with reference to section 2(1)(c) will be read in respect of a person who is not otherwise subject to the Pakistan Army Act when he is attached with a person or persons on active service who are engaged in military operation. The intention was to bring all those persons within the ambit of Pakistan Army Act, who being not otherwise subject to Army Law have directly and indirectly formed part of the force because of their attachment with the persons or class of persons who while engaged in military operations were on active service. The intention and the purpose behind section 2(1)(c) of the Act in the light of above discussion, was to be collected 'from the cause and necessity of the enactment of this provision. The notification under section 7 of the Army Act, 1952 was issued by the Federal Government in the following manner on 3-1-1975 is still holding the field:-- "In exercise of the powers conferred by section 7 of the Pakistan Army Act, 1952 (=Ca of 1952) and in supersession of this Ministry's Notification No,4852/325/PSIA/4484/D-2(A)/71, 23rd November, 1971, the Federal Government is pleased to direct that persons subject to the said Act, shall, with reference to any area in or outside Pakistan in which they may be serving and with reference to all the provisions of the said Act, and of any other law for the time being in force, be deemed to be on active service within the meaning of that Act."
9. The expression "active service" was used in this notification in context to the persons who are subject to the Pakistan Army Act and careful reading of the notification in the light of the provisions of section 2(1)(c) read with sections 7 and 8(1) of the Act, it would be clear that all those persons who are not otherwise subject to the military laws and do not directly fall within the ambit of. Army Act, would be deemed to be on active service who are employed by or are in service or are followers of, or are accompanying any portion of the regular Army on active service, in camp, or on the march or at any frontier post specified by the Federal Government under section 7 of the (ibid)
Act.
' The respondent was serving in the Special Communications Organization which is an integral part of Pakistan Army and was not a regular member of Armed forces but was attached with the force on active service being engaged in military operation, therefore, he would be deemed to be on active service by virtue of section 2(1)(c) read with section 8(1) and the notification issued under section 7 (ibid). This Court in Federation of Pakistan and 2 others v. Khurshid Ahmad and another 1999 SCMR 664 observed as under:-- "14. We now turn to section 2(1)(c) of the Act to determine whether in the circumstances, it was necessary for the respondent who was otherwise not subject to the Act, to be on 'active service' in camp, on the march or on a frontier post, specified by the Federal Government by notification in this behalf, in order to make him a person subject to the Act. On a careful examination of the language of clause (c) of subsection (1) of section 2 (ibid), we are of the view that the words 'active service', in camp, on march or on a frontier post specified by the Federal Government do not refer to a person not otherwise subject to this Act but refer to any portion of Pakistan Army used in the latter part of that subsection. If we read section 2(1)(c) of the Act as suggested by the learned counsel for the respondent and as interpreted by the learned Judges of the High Court then in order to make a person not otherwise subject to the Act, a person subject to the Act, he should be on active service, in camp, on march or on any frontier post specified by the Federal Government by notification in this behalf and employed by or in the service of or is a follower of or accompanying any portion of Pakistan Army. We have already reproduced the definition of `active service' given in section 8(1) of the Act. The concept of `active service' both under section 8 (1) and section 7 of the Act, is applicable only to persons subject to the Act, meaning thereby persons constituting the regular force of the Army. No doubt, civilian employees of Army and others not subject to Act, are rendered subject to the Act in certain circumstances but there is no concept in the Act to treat such persons on active service. On a careful consideration of provisions of section 2(1)(c) of the Act, we are of the considered view that the words 'on active service' in camp, on the march or at any frontier post' in clause (c) to subsection (1) of section 2 (ibid), refer to any portion of the Pakistan Army. In our view, section 2(1)(c) is to be read as "a person not otherwise subject to this Act, are employed by, or are in the service of or are followers of or accompanying any portion of the Pakistan Army, on active service, in camp, on march or on a frontier post specified by the Federal Government by notification in this behalf". It is only by reading of the provision in the manner indicated by us that the provision will give meaning which will harmonise with the object of the Act otherwise it would lead to absurdity. The expression 'active service' in camp, on the march or at any frontier post specified by the Federal Government cannot possibly refer to a person other than those which are mentioned in clauses (a), (b) and (bb) to subsection (1) of section 2 of the Act as there is no concept in the Act that persons who are not subject to the provisions of the Act can also be on active service or in camp or on march or at any frontier post independently. These conditions can only be satisfied if a person not otherwise subject to the Act is accompanying a portion of Pakistan Army or a person who is on active service or in camp or on march or on frontier post specified by the Federal Government."
' While making the above observations, the Court has discussed the ration of the case of O.K.A. Nair v. Union of India AIR 1976 SC 1179 and Gopal Upadhyaya v. Union of India AIR 1987 SC 413, in the later case it was held as under:- "In enacting the Army Act, 1950, insofar as it restricts or abrogates any of the fundamental rights of the members of the Armed Forces, Parliament derives its competence from Article 33 of the Constitution. Section 2(1) of the Act enumerates the persons who are subject to the operation of this Act. According to sub-clause (i) of this section, persons governed by the Act, include 'persons not otherwise subject to military law who, on active service, in camp, on the march or at any frontier post, specified by the Central Government by notification in this behalf, are empowered by, or are in the service, or are followers of, or, are accompany any portion of the regular army'.
' The members of the unions represented by the appellants fall .Within this category. It is their duty to follow or accompany the Armed Personnel on active service, or in camp or on the march.
Although they are non-combatants and are in some matters governed by the Civil Service Regulations, yet they are integral to the Armed Forces. They answer the description of the `members of the Armed Forces' within the contemplation of Article 33. Consequently, by virtue of section 21, Army Act, the Central Government was competent by notification to make rules restricting or curtailing their fundamental rights under Article 19(1)(c)."
10. The non-combatant civilian employees of an Organization or an establishment of Pakistan Army which is part of the defence, who are not subject to the Pakistan Army Act cannot be ordinarily brought within the purview of this Act but the persons who are not otherwise subject to the Act while in the employment or in the service of an Organization of Pakistan Army, which is engaged in any military operation and is on active service as discussed hereinabove, would be deemed to be on active service and would become subject to the Army Act. The learned counsel for the respondent has not been able to distinguish the case of respondent and satisfy us that at the relevant time he was not on active service. This is correct that the civilian employees in defence are generally excluded from the purview of the Army Act, 1952 but the civilian employees attached with a portion of Pakistan Army on active service being engaged in military operation would become subject to the Act by virtue of section 2(1)(c) read with section 7 of the Act and the notification issued thereunder. The respondent was employed in Special Communication Organization, which is a part of Pakistan Army and is on active service, therefore, he would also be deemed to be on active service and at the relevant time would not be treated as civil servant for the purpose of Civil Servants Act, 1973, to avail the remedy of appeal under Federal Service Tribunals Act, 1973 before the Federal Service Tribunal. The jurisdiction of the Tribunal is confined to the matters relating to the terms and conditions of civil servants being governed by the service laws and respondent being subject to Army Act, was not a civil servant to maintain appeal before the Tribunal.
11. In the light of foregoing discussions, we set aside the judgment of the Service Tribunal and allow this appeal. There will be no order as to costs.