1. ' SAIYED SAEED ASHHAD, C.J.---In this Constitutional petition, the petitioner has sought the following relies: "Wherefore it is prayed that this Hon'ble Court may be pleased to declare the impugned order of respondent No.1 as without jurisdiction, without lawful authority and of no legal effect and set aside the same."
2. ' The grievance of the petitioner is with regard to the order dated 5-10-1999 of respondent No.1, whereby while allowing withdrawal of the application of respondent No.2 under sections 22-A(8)(g) and 32(2) of the Industrial Relations Ordinance, 1969, (hereinafter referred to as I.R.0) respondent No.1 made observation that respondent No.2 would retire on 4-10-1999 on attaining the age of 60 years which date of retirement was not acceptable to the petitioner.
3. ' Brief facts leading to this petition are that the respondent No.2 was employed by the petitioner as Traffic Inspector. Grade-II. In 1996, he asked for change of the date of birth from 4-10-1938 to 4-10- 1939 and vide order dated 4-9-1996, the change was allowed. Subsequently, it came to the knowledge of the petitioner that the date of birth of respondent No.2 as 4-10-1938 was recorded in his service record on the basis of matriculation certificate, therefore, letter dated 4-9-1996 was withdrawn vide letter dated 27-2-1997. Feeling aggrieved and dissatisfied with the said letter respondent No.2 filed a grievance petition before the Sindh Labour Court which stood abated after insertion of section 2-A in the Service Tribunals Act 1977. The petitioner had issued retirement notice dated 4-6-1997 according to which the respondent No.2 was to retire on 4-10-1998. The respondent No.2 filed Appeal bearing No.270-K of 1997 before the Federal Service Tribunal Karachi which is still pending. Meanwhile, respondent No.2 filed another case in respect of same issue/grievance under section 22-A(8)(g) of the I.R,O. Bearing No.4-A(178) of 1998-K before respondent No.
1. Respondent No.1 passed status quo order on the interlocutory application of respondent No.2. The case was fixed on 13-10-1999, when respondent No.2 on , 5-10-1999, filed application for antedating his case and disposal thereof as it had become infructuous. Respondent No.1 antedated the case and without issuing notice to the petitioner disposed of the same holding that the date of retirement of respondent No.2 would be 4-10-1999 as was claimed by him. It is case of the 'petitioner that this order was absolutely illegal, without jurisdiction, lawful authority, of no legal effect and void ab initio and as there was no adequate, alternate and efficacious remedy available to the petitioner it had to resort to Article 199 of the Constitution of Islamic Republic of Pakistan.
4. ' We have heard Mr. Qamar Abbas Advocate for the petitioner and Ch. Rasheed Ahmed Advocate who appeared -for respondent No.2. We have also perused the material on record and the relevant provisions of law applicable to the facts and circumstances of the case.
5. ' Mr. Qamar Abbas Advocate for the petitioner submitted. That the impugned order of the respondent No.1 was illegal and void ab initio as the respondent No.1 in passing the same has assumed the jurisdiction which did not vest in him. He further submitted that there was dispute between the petitioner and respondent No.2 with regard to his date of birth and consequent date of retirement, and according to the petitioner the date of birth of respondent No.2 was 4-10-1938 as per matriculation examination certificate submitted by him whereas the respondent No.2 claimed his date of birth as 4-10-1939. He further submitted that according to the record of the petitioner the respondent No.2 was to retire on 4-10-1998 while respondent No.2 claimed that he would retire on 4-10-1999 which contention was contrary to the facts on record and was not accepted by the petitioner. He further submitted that respondent No.1 had no authority to order change in the date of birth of respondent No.2 as well as retiring date and by doing so he has assumed jurisdiction which did.Not vest in him.
6. ' Ch. Rasheed Ahmed Advocate for respondent No.2 submitted that the respondent No.2 had submitted application along with birth certificate to the petitioner wherein his date of birth was shown as 4-10-1939 and letter was received from the Assistant Traffic Manager stating therein that the competent authority had agreed to change the date of birth from 4-10-1938 to 4-10-1939, but subsequently the petitioner vide their letter dated 27-2-1997, informed respondent No.2 that the order changing his date of birth was cancelled and withdrawn and that he would attain the age of superannuation on 4-10-1998. He further submitted that the order dated 27-2-1997 was void ab initio as the respondent No.2 was not provided opportunity of hearing and the same was passed to his disadvantage at his back thereby violating the principle of natural justice and such order could not be given effect to. He further submitted that as the petitioner was going to retire respondent No.2 on the basis of the illegal and void order dated 27-2-1997 respondent No.2 had no option but to file application under Section 22-A(8)(g) of the I.R.O. Before respondent No.1 in as much as the petitioner wanted to get rid of respondent No.2 on account of his trade union activities for the welfare of the workers working in the establishment of the petitioner and had refused to bow down to the demand of the Deputy Manager Traffic who had asked him to resign from the membership of KPT labour union and on his refusal he was threatened of dire consequences. He further submitted that the above facts prompted the petitioner to withdraw and cancel the order dated 4- 9-1996 and to pass the order dated 27-2-1997 withdrawing the earlier order of acceptance of date of birth of respondent No.2 as 4-10-1939 and declaring the same as 4-10-1938. He further submitted that it was established that the petitioner resorted to unfair labour practice by pressurizing and coercing respondent No.2 to desist from his trade union activities which could be challenged before the respondent No.1 and as such the impugned order did not suffer from any illegality or exercise of excess jurisdiction and was not required to be interfered with.
7. ' We have considered the arguments of the learned counsel for the parties and perused the material on record. It is pertinent to note that the order dated 27-2-1997 was assailed by the respondent No.2 before the Vth Sindh Labour Court Karachi by filing grievance petition under section 25-A of the I.R.O. Which was dismissed as having abated after incorporation of section 2-A in the Federal Service Tribunal Act. Thereafter, respondent No.2 filed appeal before the Federal Service Tribunal at Karachi challenging the order dated 27-2-1997 and praying for declaration that he would attain the age of superannuation on 8-10-1999 and he ought not to be allowed to retire by the petitioner till disposal of his appeal. Ch. Abdul Rasheed was unable to satisfy us as to how respondent No.2 could resort to invoke the jurisdiction of more than one forum/Tribunal for redress of one grievance. The impugned order dated 27-2-1997 had already been challenged by him before the Service Tribunal which is the proper forum to decide the issues relating to the change in the date of birth and the consequent date of retirement of respondent No.2 as these related to the terms and conditions of a civil servant which the respondent No.2 is, in view of the provisions of section 2-A of the Service Tribunals Act. The contention of Ch. Rasheed that charges of unfair labor practice were levelled against the petitioner which could be enquired/investigated solely by respondent No.1 is without any substance in view of the principle that a civil servant would not be allowed to bypass the jurisdiction of the Service Tribunal by adding/raising a ground of violation of fundamental rights as propounded A by the Supreme Court in the.Case of I.A. Sherwani, reported in 1991 SCM R 1041. If the Services Tribunal in exercise of its jurisdiction can deal with the issue of violation of fundamental rights then it can certainly deal with the issue of unfair labour practice while proceedings with an appeal of a civil servant against violation of his terms and conditions of service. Respondent No.1 in exercise of the jurisdiction under section 22-A(8)(g) of I.R.O. Would not have the jurisdiction to decide the .Question of date of birth and the date of retirement of respondent No.2, who is a civil servant as such question of retirement was to be decided solely by the Service Tribunal. Respondent No.2 as petitioner before the respondent No.1 had submitted application wherein he had prayed that the petition be disposed of as the same had become infructuous due to the fact that the petitioner actually got retired on 4-10-1999. The actual prayer made in the above application was for antedating the case from 13-10-1999 to 5-10-1999 and without issuing notice of the said application to the petitioner, the respondent No.1 passed the impugned order whereby he held that the petitioner had retired on 4-10-1999 on attaining the age of superannuation which was contrary to the stand taken by the petitioner according to whom the date of birth of respondent No.2 was 4-10-1938 and he would have retired on 4-10-1998.
8. Respondent No.1 could not have legally given a finding to the above effect. The petitioner had not been given opportunity of hearing and to submit as to whether they had agreed that the date of birth of respondent No.2 was 4-10-1939 and that he would 'retire on attaining the age of superannuation on 4-10-1999. In the presence of these facts the impugned order cannot be said to be proper and valid order as it was passed in violation. Of provisions of law, the pronouncement made by the Supreme Court and the principle of natural justice and is void order having no force in the eye of law.
9. ' Accordingly, we allow this petition, set aside the impugned order and dismiss case No.4A(178) of 1998 pending before respondent No.
1. The question relating to the date of birth of respondent No.2 and the date of retirement will be decided by the Service Tribunal where the appeal of respondent No.2 relating to determination of the above issues is pending.