' FAISAL ARAB, J---1. The plaintiff was employed for three years as head of Defendant's Fund Management Division under a contract dated 24-4-1998. Under the said contract the plaintiff was entitled to Performance Bonus for the year 1999 and 2000, which was to be calculated at the close of every financial year as equivalent to 10% of basic annual salary for every 1% increase in the value of funds. The plaintiff calculated the amount of Bonus at Rs .6,911,000 whereas the Defendant worked out Plaintiff's entitlement at Rs,3,277,627. This led to filing of the present suit by the Plaintiff for recovery of balance of Rs,3,633, 373 claimed by him as unpaid Bonus.
2. The defendant moved application CMA No,8742 of 2004 under Order VII Rule 11 CPC seeking rejection of the plaint on the ground that the plaintiff being a civil servant, this court has no jurisdiction to try this suit.
3. It is contended by the learned counsel for the defendant that plaintiff's claim for Bonus which the plaintiff claims to have remained unpaid arises from the terms and condition of his service. The learned counsel therefore, without touching upon the merits of plaintiff's claims, contended that under the provisions of section 2-A of the Service Tribunals Act 1973, the plaintiff is deemed to be a civil servant and as such the present suit is barred under Article 212 of the Constitution of Pakistan.
In support of his contention, the learned counsel for the defendant relied upon judgment of the Supreme Court in the case of National Investment Trust Ltd. v. Sami Ulla reported as 2001 SCMR 116 wherein the plea of the defendant that its employees are not civil servants was rejected and the employees of defendant were declared to be civil servants by virtue of deeming provision of section 2-A of The Service Tribunals Act, 1973.
4. The judiciary consists of various types of Courts, with the highest at the apex as ultimate Court of Appeal. Outside this pyramid there are other Special Tribunals. The functions of each Court or Tribunal are defined under the Constitution or the laws made under the Constitution. The Constitution or the laws, as the case may be, also specify the subjects with which these Courts or Tribunals are to deal with. Under such multiple system, limitations are inherent so that one Court or Tribunal may not encroach upon the defined field or subject of the other. In numerous judicial pronouncements it has been time and again held that functions of each Court or Tribunal are circumscribed within the four corners of their defined jurisdiction.
5. The object of the legislature that there has to be exclusive forum for dealing with the matters arising out of terms and condition of service of a civil servant is evident from the specific provision that has been made in the Constitution in the form of Article 212 of the Constitution. Its relevant portions, for the purposes of the present case, are as follows:- 212.--(1) Notwithstanding anything herein before contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--
(a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters;
(b) ..
(c)
(2) Notwithstanding anything herein before contained; whereby any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal other than an appeal pending before the Supreme Court, shall abate on such establishment.
6. From the preamble of the Service Tribunals Act 1973 also it is quite evident that in matters of terms and condition of service of a civil servant the Tribunals shall exercise exclusive jurisdiction.
The preamble of Service Tribunals Act reads as follows:-- 'Whereas, it is expedient to provide for the establishment of Administrative Tribunals, to be called Service Tribunals, to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, and for matters connected therewith or ancillary there to
7. From the above discussion it is evident that a Civil Servant's grievances arising from his terms and conditions of service, be it statutory or contractual, are to be brought before the Service Tribunal for adjudication.
8. The plaintiff's counsel though admitted that plaintiff's claim arises from his terms and conditions of service, he nevertheless contented that Section 2-A of the Service Tribunals Act 1973 has no application to plaintiff's case as he is no more in the employ of the defendant. He submitted that the plaintiff was employed for a period of three years only which term expired before filing of the present suit and therefore the plaintiff cannot be treated as a civil servant.
9. On the other hand the defendant's counsel referred to the definition of "Civil Servant" as provided in Section 2(a) of The Service Tribunals Act, 1973 and submitted that even a person who has been a civil servant in the past is also to be treated as "Civil Servant". He is absolutely right as the words "has been" in the definition, which also appear in Article 212 (1) (a) of the Constitution, clearly mean that a person who though no more a civil servant but has been one in some point of time, is also to be regarded as civil servant for the purposes of the application of the Service Tribunals Act, 1973.
10. The plaintiff's counsel next argued that no order has been passed by the defendant which could have been taken to the Service Tribunal for decision. The word "order" appearing in section 4 of the Service Tribunals Act has wider connotation. It includes any communication which could adversely affect a civil servant. If such a wide meaning to the word "order" is not given, then unless a communication is titled as "order" a civil servant would find himself disabled from challenging the same which he considers to have infringed upon his rights secured under terms and conditions of his service. In the present case the communication of Board's decision vide defendant's letter dated 29-10-2001 is sufficient to term it as an "order" as contemplated under Section 4 of the Service Tribunals Act.
11. The plaintiff's counsel then argued that under the provisions of Section 4 of the Service Tribunals Act, 1973, there has to be a "final order" passed by the departmental authority regarding any of the terms and conditions of service, which alone would have entitled him to invoke the jurisdiction of the Service Tribunal and as final decision was yet to be taken in plaintiff's case, he was disabled from invoking the jurisdiction of Service Tribunal. The plaintiff's counsel therefore argued that the plaintiff having left with no other alternative had to file the present suit for recovery of unpaid Bonus. In support of his contention that there exists no final order which the plaintiff could have challenged before the Service Tribunal, he referred to defendant's letter dated 1-10-2002 filed as annexure "I" to the plaint wherein in response to plaintiff's legal notice dated 18-9-2002, the defendant has stated "We acknowledge receipt of your letter dated September, 2002, contents of which are being examined by us. We shall soon be in a position to give you detailed reply". While referring to annexure "I", the plaintiff's counsel explained that as the plaintiff did not receive any reply as promised by the defendant, no final order existed which could be challenged before the Service Tribunal.
12. The defendant's counsel responded to this argument by referring to defendant's letter dated 29- 10-2001 filed as annexure "B" to the plaint through which the plaintiff was informed of the decision of defendant's Board approving plaintiff's entitlement to Bonus with a precise amount of Rs,3,277,627.
The defendant's counsel stated that letter dated 29-10-2001 was final decision determining the quantum of plaintiff's entitlement of Bonus and therefore it is to be treated as final order. He also referred to annexure "D" and "F" filed with the plaint in which the defendant reaffirmed the quantum of Bonus at Rs,3277,6727 based on the decision of its Board dated 29-10-2001.
13. No doubt vide letter dated 1-10-2002 defendant promised to respond to plaintiff's legal notice dated 18-9-2002, which it never did, but this does not mean that Board's decision dated 29-10-2001, communicated by the defendant to the plaintiff, in any way, is to be considered as provisional. All that the defendant did through letter dated 1-10-2002 that it promised to respond to legal notice but choose not to. Failure to respond to a legal notice may not have any impact on the merits of ones stand, but this certainly does not wipe out the existence of the defendant's decision, right or wrong, communicated to the plaintiff in absolute terms vide its letter dated 29-10-2001. The plaintiff's reliance on defendant's letter dated 1-10-2002 in order to demonstrate that defendant was yet to take decision on plaintiff's entitlement to Bonus is therefore misplaced.
14. The plaintiff's Advocate has cited the case of Safdar Hussain v. Conservator of Forest reported in 2002 PLC (C.S.) 1527. In the said judgment it was held "Any matter that is to be challenged by way of an appeal has to have a final order passed. If no such final order exists and merely an enactment or a general act and its vires are challenged then this Court would have jurisdiction". In the present case there existed a complete and final order in the form of decision of defendant's Board communicated to the plaintiff vide letter dated 29-10-2001 and therefore the said case has no application to the fact of the present case. The said case also does not apply for the reason that in the cited case it was held that where no final order exists but where vires of Rules or Regulations are challenged then jurisdiction under Article 199 can be exercised by the High Court. The High Court therefore exercised its extraordinary jurisdiction under Article 199 for the reason that vires of Rules and Regulations of service were under challenge in the said case which is not the case in the present suit. The cited case is therefore clearly distinguishable.
15. It was lastly contented by the counsel for the plaintiff that in the present case even the evidence of the plaintiff has been recorded and it is too late in the day to consider defendant's application under Order VII Rule 11 C.P.C. Simple answer to this is that it is never too late to bury a stillborn child.
No useful purpose would be served by further putting the parties to the trouble or regular trial in order to come to the inescapable conclusion that this Court has no jurisdiction to try this suit.
16. From the above discussion it is evident that plaintiff is a civil servant as defined under Section 2- A of the Service Tribunals Act, 1973 and his remedy lay before the Service Tribunal. In the circumstances the CMA No,8742 of 2004 filed under Order VII Rule 11 C.P.0 is allowed and the plaint is rejected as the suit is barred under Article 212 of the Constitution. Costs shall follow the event.
Plaint rejected.