Writ Petitions Nos. 4947/2006, 5031/2006 and 7624/2006 shall be disposed of by this order.
2. The petitioners and respondents in the petitions contested Local Government Elections held in August 2005 for various offices and succeeded and were duly notified as returned candidates.
Their elections were challenged through election petitions. The Election Tribunals ordered recount of votes but without recording evidence and without answering any issue framed in this context.
Aggrieved of the orders passed by the Election Tribunals the petitions were filed which were admitted to hearing on 19.5.2006, 22.5.2006 and 13.7.2006.
3. Learned counsel for the parties have been heard today.
4. Learned counsel for petitioners contended that the Election Tribunal could not have ordered recount of ballot paper without recording of evidence and order was passed without taking into account material which was brought on record on the aforesaid election petitions. According to learned counsel, the election petitions are to be heard as nearly as possible in accordance with the provisions of Civil Procedure Code which requires filing of written statements, framing of issues, recording of evidence, oral as well 5.The respondent was not satisfied with the foregoing outcome and accordingly filed a review petition before the Honourable Supreme Court. That too was dismissed on 28.2.2002 with the following observations: "He, however, submitted that he has already filed a suit about which observation has also been made in the judgment under review for the recovery of damages and apprehends that due to the findings recorded in the impugned judgment of the Tribunal and judgment under review the decision in the said suit may not be prejudiced.
The apprehension is misplaced and un-founded as in the judgment under review nothing has been said about the merits of this suit. It may be observed here that the said civil suit shall be decided on its own merits on the basis of material brought on record independently un-influenced by any finding or observation made in the impugned judgment of the Service Tribunal or the judgment under review of this Court.
Subject these observations, this petition is found to have no merits and the same is hereby dismissed."
6. It is plain that both the aforenoted judgment and order in review petition by the Hon'ble Supreme Court acknowledge and recognize the respondent's pending suit for damages and specifically visualize that the same is decided on its own merits uninfluenced by any findings or observations made in the proceedings emanating from the service appeal filed by the respondent. It may also be observed that a past and closed transaction occurs as a consequence of a legal bar to further proceedings like limitation of res-judicata and is not itself a self standing ground of non- maintainability of a suit.
7. The only legal bar to the maintainability of the petitioner's suit that was pleaded for the petitioner before the learned Courts below and is stated in the contents of this revision petition emanates from the provisions of Section 2-A of the Service Tribunal Act, 1973 whereby the respondent is deemed to be a civil servant having an exclusive statutory remedy before the learned FST.
Consequently, the suit filed by the respondent is claimed to be barred. The considerable learning and effort devoted by the learned counsel for the petitioner to the said plea has, however, been rendered futile by the recent judgment of the Honourable Supreme Court in Muhammad Mubeenus-Salam and others v. Federation of Pakistan etc. (PLD 2006 SC 602). By this judgment Section 2-A of the Service Tribunals Act, 1973 has been held to be partially ultra vires of Articles 240 and 260 of the Constitution, inter alia, because the employees of autonomous bodies and corporations cannot by a deeming clause be treated as civil servants as defined in Section 2(1)(b) of the Civil Servants Act, 1973 nor can such employees, be treated as being engaged in the affairs of the Federation. Consequently, such employees including those employed by public sector banks, have no remedy available before the FST. Accordingly, the arguments of the learned counsel for the parties about which aspects of or the while of the respondent's case fall within the jurisdiction of learned FST has become on academic exercise. Under the foregoing ruling in the Mubeen us Salam case, the remedy of the respondent before the learned FST, as attributed by the petitioner, has been abolished by the Apex Court. Consequently, the mainstay of the petitioner's objection to the jurisdiction of the learned civil Court base upon the provision of Section 2-A of the Service Tribunals Act, 1973 has disappeared. Neither the legal bar of jurisdiction nor the consequential plea of past and closed transaction is available to the petitioner. The only forum available for the respondent to agitate his claim for compensation, regardless of its merits, as before the competent civil Court. In this respect the impugned judgment dated 22.4.2004 by the learned Civil Judge has therefore arrived at the correct conclusion. In the result this civil revision is dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.