' This writ petition is directed against the order dated 23-12-2004 passed by the D.I.G. Police D.G.
Khan Range D.G. Khan, whereby the petitioner was posted on deputation to the Punjab Constabulary Farooq Abad.
2. It is contended by learned counsel for the petitioner that according to the seniority list and notification of the I.G. The senior most police officials were to be deputed to Punjab Constabulary Farooq Abad for 2 1/2 years but names of juniors as petitioner and others were also included with mala fide intention, as such the impugned order has been passed in clear violation of the I.G.
Notification and is liable to be quashed.
3. The learned Additional Advocate-General has supported the impugned order on the, ground that the deputation for Punjab Constabulary was made according to the seniority. Of Head Constables. In support of his contention, the learned Additional Advocate-General has relied upon para. (v) of Standing Order No.9 of 2001 (Transfer of Lower Subordinates from Punjab Constabulary to Districts/Ranges), which is reproduced below:-- "For transfer to PC, the Range D.Is.G./CPO will develop a fair and rational system of rotation whereby it becomes mandatory for every eligible officer (HC to IP) to serve in Punjab Constabulary for the given period. The system of seniority amongst the eligible' officers shall be strictly followed while making selection in each rank. However, a minimum gap of 3 years shall be observed between two postings to Punjab Constabulary the period to be computed from the date the officer had reported back on transfer from Punjab Constabulary to District/Range/Other Unit".
4. As per record the petitioner was enlisted as constable on 16-4-1987. He qualified lower school course in the term ending April, 1992 and his name was brought on list C-1 w.e.f. 1-5-1992. He was promoted as Offg-HC w.e.f. 19-12-2000 and confirmed as HC w.e.f. 20-9-2001. He qualified Intermediate (H.Cs) school course. As such according to the seniority of Head Constables, he was eligible to be deputed/transferred to Punjab Constabulary, Farooq Abad and has rightly been transferred and posted on deputation to Punjab Constabulary, Farooq Abad. It is held that the order passed by the DIG Police, D.G. Khan Range D.G. Khan is within jurisdiction and there is no illegality, warranting interference of this Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The petition is without substance, which stands dismissed.
Petition dismissed.
2005 PLC (C.S.) 708 [Supreme Court of Pakistan] Present: Sardar Muhammad Raw Khan and Falak Sher, JJ GENERAL MANAGER PAK ARAB FERTILIZERS LTD.
KHANEWAL ROAD, MULTAN versus MUHAMMAD AYUB Civil Appeal No.796 of 2000, decided on 10th February, 2005.
(On appeal from the order dated 11-2-2000 passed by Federal Service Tribunal, Lahore in Appeal No.548-L of 1999).
(a) Service Tribunals Act (LXX of 1973)--- ----Ss.2-A & 6---Appeal before Service Tribunal after abatement of writ petition due to insertion of S.2-A in Service Tribunal Act, 1973---Appeal filed on 12-5-1999 was dismissed by Tribunal on the ground that S.6 of Service Tribunal Act, 1973 was operative from 26-9-1973 for a period of 90 days,, which thereafter having become inoperative would not be applicable to such appeal---Validity--- Section 6 of. Service Tribunals Act, 1973 had never become inoperative---Whenever any enactment constituted a forum of appeal in the form of Tribunal for some category of employees, Tribunal stood established for such purpose, thus, under proviso to S.6 of Service Tribunals Act.1973, establishment of Tribunal became operative and so the provisions of S.6 thereof---Byinsertion of S.2-A in Service Tribunals Act, 1973, Tribunal stood established for all such employees, the description of whom was given therein---Impugned judgment, held, was not in accordance with law. [p. 711] A
(b) Service Tribunal Act (LXX of 1973)--- ----S.6---Constitution of Pakistan (1973), Art. 199---Abatement of Constitutional petition before High Court after establishment of Service Tribunal---Validity---Causes which abated before any other forum wbuld be suits, appeals or applications-Constitutional petition would never abate as same could not be equated with suits, appeals and applications---Reasons stated. Section 6 of Service Tribunals Act, 1973 specifically lays down that upon the establishment of the Tribunal, the causes that abate before any other forum would be the suits, appeals or applications. In the present case, the cause which was held to have abated, was a writ petition and not a suit, appeal or application. Under section 6 of Service Tribunals Act, 1973, the writ petitions were never supposed to have abated. The obvious reason is that a writ petition is never provided either under Service Laws or Labour Laws, which both extensively provide for the entire hierarchies of-their own. Writ jurisdiction is an independent and extraordinary Constitutional jurisdiction of the High Court and cannot be equated with applications, appeals or suits as described by section 6 above or by the special laws concerned. [p. 712] B
(c) Service Tribunals Act (LXX of 1973)--- ----Ss. 2-A & 6---Constitution of Pakistan (1973), Art 199---Civil Procedure Code (V of 1908), S.9--- Pendency of suits or Constitutional petition before the High Court at the time of insertion of S.2-A in Service Tribunals Act, 1973---Effect---Intention of legislature by insertion of S.2-A in Service Tribunals Act, 1973 was never to resurrect an already dead cause of action, but was to provide remedy of appeal as well as forum only to such employees, whose cause of action was alive and had not already exhausted remedies available under related law by the time or long before such insertion---Such suits or Constitutional petitions if being availed as a first remedy, would abate after such insertion-Employee after availing all remedies provided under related law and having finally failed to obtain relief in given hierarchy, if opted to file Constitutional petition, then same, in itself, could not be equated with the one filed at the first instance and would not abate--- Princ iples .
There are certain employees, who are or were not given any right of appeal before the Tribunal.
They normally resorted either to the Civil Court or preferred writ petitions under 199 of the Constitution as a first remedy. When during the pendency of such civil suits or writ petitions, section 2-A of Service Tribunals Act, 1973 came into existence and a Tribunal was established, such suits or writ petitions being the first remedy availed, would abate and the plaintiffs or petitioners, as the case may be, would have a right under S.6 of Service Tribunals Act, 1973 to resort to Tribunal within 90 days, provided always that they fell within the categories specified by newly-added section 2-A of the Act. [p. 712] C But situation would be altogether different when an employee, after availing all the remedies provided by Service Laws, Labour Laws or any other law relating to them, and having finally failed to obtain any relief in the given hierarchy, opts to further file, if maintainable, a writ petition under Article 199 of the Constitution. Such a writ petition, independent in itself, cannot be equated with the one filed at the first instance and hence cannot abate. [p. 713] D By insertion of section 2-A in the Service Tribunals Act, the legislature provided a regular remedy of appeal as well as forum to those employees only whose cause of action was alive and the remedy had not stood already exhausted by the time or long before the enactment of S.2-A. The intention of legislature by insertion of S. 2-A was never to resurrect a cause of action that had already become dead. [p. 713] F
(d) Service Tribunals Act (LXX of 1973)--- ----Ss. 2-A and 6---West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance (VI of 1968), S.O. 15---Industrial Relations Ordinance (XXIII of 1969), S.25-A---Constitution of Pakistan (1973), Arts. 199 & 212(3)---Constitutional petition before High. Court---Dismissal from service---Junior Labour Court dismissed grievance petition of employee, but Labour Court reinstated him in service by accepting his appeal---Constitutional petition filed by employer against such decision had abated due to insertion of S.2-A in Service Tribunals Act, 1973---Service Tribunal dismissed appeal filed by employer---Validity---Parties had already exhausted genuine remedies provided under Labour Laws through last order of Labour Court (Court of Appeal)--- Filing of Constitutional petition by employer was, thus, not a regular remedy provided under related laws and being tiled in its own independent perspective and being extraneous to relevant hierarchy, could not abate---Employer in essence challenged before Tribunal order of Labour Court (Court of Appeal), whereas orders liable to be challenged before Tribunal were those passed by departmental authority, which was never against employer---Constitutional petition had been wrongly held to have abated---Proper course for employer was to have challenged abatement order before Supreme Court---Dismissal of Constitutional petition by the High Court and subsequent resort to Tribunal both were illegal---Supreme Court dismissed appeal being not maintainable. [p. 713] E, G & H.
Javed Altaf, Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for appellant.
Respondent in Person.
Ms. Naheeda Mehboob Elahi, DAG for State. Date of hearing: 10th February, 2005.
' SARDAR MUHAMMAD RAZA KHAN, J.---This appeal, after leave of Court, is filed by General Manager
(H) Pak Arab Fertilizers Ltd. Khanewal Road, Multan against the judgment dated 11-2-2000 of the Federal Service Tribunal whereby the appellant's appeal was dismissed on the ground that under section 4 of the Service Tribunal Act, the management or the department had no right to file an appeal and further that such appeal is only maintainable if filed by an aggrieved civil servant.
2. Muhammad Ayub respondent, working as Assistant Manager in the appellant company, his services were terminated on 25-2-1975. He filed grievance petition under section 25-A of Industrial Relations Ordinance 1969 before Junior Labour Court Multan which was dismissed on 8-4-1975. The respondent went in appeal before Punjab Labour Court, Multan whereupon he was reinstated vide order dated 6-12-1975. The aforesaid order of the Labour Court was challenged by the appellant company before the High Court through Writ Petition No.54 of 1976. This writ petition was dismissed on 30-4-1999 as having abated due to insertion of section 2-A in the Service Tribunals Act, 1973.
3. After this abatement and under section 6 of the Service Tribunals Act, the appellant filed an appeal before the Service Tribunal on 12-5-1999, which was dismissed through the impugned order. The finding of the Tribunal was that section 6 was operative from 26-9-1973 for a period of 90 days and that thereafter the section having become inoperative, it was not applicable to the present case.
4. Irrespective of what is the fate of the present appeal, we are of view that the above verdict of the Tribunal was not in accordance with law and section 6 of the Service Tribunals Act had never become inoperative. Whenever any enactment constitutes a forum of appeal, in the form of Tribunal for some category of employees, the Tribunal stands established for such purpose and hence under proviso to section 6 the establishment of a Tribunal becomes operative and so the provisions of section 6. By insertion of section 2-A, the Service Tribunal stood established for all those employees, the description of whom is given in the section.
5. Coming to the merits of the present case, it would be appropriate to reproduce section 6 of the Service Tribunals Act as follows:-- "Section 6. Abatement of suit and other proceedings.---All suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Act shall abate forthwith: Provided that any party to such a suit, appeal or application may within ninety days of the (establishment of the appropriate Tribunal, prefer an appeal to it), in respect of any such matter which is in issue in such suit, appeal or application."
6. The section specifically lays down that upon the establishment of the Tribunal, the causes that abate before any other forum would be the suits, appeals or applications. In the instant case the cause which was held to have abated, was a writ petition and not a suit, appeal or application. We are of the view that under section 6 of the Service Tribunals Act, the writ petitions were never supposed to have abated. The obvious reason is that a writ petition is never provided either under Service laws or under Labour laws which both extensively provide for the entire hierarchies of their own. Writ jurisdiction is an independent and extraordinary Constitutional jurisdiction of the High Court and cannot be equated with applications, appeals or suits as described by section 6 above or by the special laws concerned.
7. The pendency of writ petitions and the incorporation of section 2-A in the Service Tribunal Act can be viewed from another angle as well. There are certain employees who are or were not given any right of appeal before the Tribunal. They normally resorted either to the Civil Court or preferred writ petitions under Art. 199 of the Constitution, as a first remedy. If during the pendency of such civil suits or writ petitions, section 2-A of the Act came into existence and a Tribunal stood established, such suits or writ petitions, being the first remedy availed, would abate and the plaintiffs or the petitioners, as the case may be, would have a right under section 6 of Service Tribunal Act, to have resorted to the Tribunal within 90 days, provided always that they fall within the categories specified by newly Added section 2-A of the Act.
8. But, the situation would be altogether different when an employee, after availing all the remedies provided by Service Laws, Labour Laws or any other law relating to them, and having finally failed to obtain any relief in the given hierarchy, opts to further file, if maintainable, a writ petition under Article 199 of the Constitution. Such a writ petition, independent in itself, cannot be equated with the one filed at the first instance and hence cannot abate. In the instant case, the genuine remedies provided by the Labour Laws had already been exhausted by the parties through the last order dated 6-12-1975 of the Punjab Labour Court, Multan and thus the filing of writ petition before the High Court by the present appellant not being a. Regular remedy provided by the related laws and being filed in its own independent perspective, could not be said to have abated. By insertion of section 2-A in Act, the legislature provided remedy of appeal as well as forum to those employees only whose cause of action was alive and the remedy had not stood already exhausted, by the time or long before the enactment of section 2-A. The intention of legislature by insertion of section 2-A was never to resurrect a cause of action that had already become dead.
9. In the instant case the remedy stood exhausted on 6-12-1975, long long before, when the Punjab Labour Court, Multan granted relief to the respondent and the writ petition filed by the present appellant being extraneous to the relevant hierarchy, was a cause which, in our view, could not abate. The proper course for the appellant was to have challenged the abatement order dated 30- 4-1999 before this Court. It was this omission that led to an unusual phenomenon of challenging before the Service Tribunal, in essence and for all practical purposes , the order of Punjab Labour Court (Court of appeal) dated 6-12-1975, whereas, the orders liable to be challenged before the Tribunal are those passed by the departmental authority, which, on turn, were never against the appellant company.
9. Consequently we hold that Writ Petition No.54 of 1976, through order dated 30-4-1999, was wrongly held to have abated and the appropriate remedy thereagainst for the appellant company was to have resorted to this Court. The dismissal of writ petition and subsequent resort to the Tribunal, both being illegal and the appellant having not filed any petition or appeal before this Court against the order dated 30-4-1999 of the High Court, the instant appeal is not maintainable and having no substance, is hereby dismissed.