Qazi Muhammad hussain siddiqui, member- By this single common order we shall dispose of the above listed Misc. Petitions as these are based on common question of fact and. Law.
2. The Petitioners Appellants were employees of Pakistan International! Airlines Corporation (P I AC.). The Petitioners/Appellants at Sr Nos.-5 and 6 were compulsorily retired from service Whereas Petitioners/Appellants at Sr.. No 3 and 4 were dismissed from service under Removal from Service (Special Powers) Ordinance 2001, whereas no law was . Mentioned for compulsory ., retirement of Petitioners/Appellants at Sr , Nos, 1 and 2 The - Petitioners/Appellants filed above-mentioned Appeals before this Tribunal u/s 4 read with section. 2-A of Service Tribunals Act. 1973 for setting aside the impugned orders and reinstating them in service The Appeals were admitted for hearing but in view of Supreme Court Judgment dated 27 06 2006 m Civil Appeals No, 792' to 816/2005 etc, of Muhammad Mubeen-ul-lslam and others v Federation of Pakistan though Secretary, Ministry of Defence and others, reported in, 2006 P.SC/ 1081 all the six Appeals abated. Such informal abatement of Appeals was given to the Petitioners/Applicants individually, by the Assistant Registrar of the Tribunal.
Now. The Petitioner/Appellants have filed the above listed Misc Petitions on. The ground that their appeals have not abated by the Judgment of the Hon'ble 'Supreme Court of Pakistan Ind i"equ<- "m-d ,it/7 these be disposed of on merits after regular hearing.
4 " We have heard the learned counsel for the parties.
5. The Learned Counsel for the Appellant has argued as under:-
(i) That as per Judgment of the Hon'ble Supreme Court. Died 27 06:2006, section 2-A of. The Service Tribunals Act: 1973. Is .Partially ultra w/o-. o provisions of /40 and 260 of the Constitution/ as such the service' of the Pet/.Oners/Appellants . 'being ' service of Pa2-su-.r unde Article 260 o/i/o Constitution, they are civil servants, entitled to seek remedy from the Federal Service Tribunal.
(ii) That the Petitioners/Appellants have vested right under section 10 of the Removal from Service .
(Special Powers) Ordinance 2000 to seek remedy from Service Tribunal against the impugned Orders under the said Ordinance That the service under Corporation (P.I.A.C ) has been declared under section 4 of the Chief Executive s^Order No 6 of 2001 to be service of Pakistan and every person holding a post under the. Corporation (except a deputationist shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973, that right of Appeal before the Service Tribunal Act, 1973, has also been provided to the aggrieved person under the said Order of the Chief Executive No. 67 of 2001. The learned Counsel for the Petitioners/Appellants vehemently argued that Chief Executive's Order No. 6 has acquired validity under Article 270-AA of the Constitution of Pakistan hence the Petitioners/Appellants have a vested right , to seek remedy before the Service Tribunal under section 4 of the said Order No. 6 of 2001.
6. The Learned Counsel for the Respondents has contended that the question of service of Pakistan has been exhaustively dealt with by the Hon'ble Supreme Court in its Judgment dated 27.6.2006 referred to above, that in view of said Judgment employees of commercial Organizations like P.I.A.C. Having no Statutory Rules as required under Article 240 of the Constitution of Pakistan, cannot be treated as civil servants by deeming clause on legal fiction under section 2- A of the Service Tribunals Act, 1973; that the Appellants are not civil servants as defined in section 2(1 )(b) of the Service Tribunals Act, 1973, hence their Appeals have been abated; that, as per para 108 of the Supreme Court Judgment dated 27.6.2006, the Petitioners/Appellants shall have no remedy before the Tribunal functioning, under Article 212 of the Constitution. He elaborated the matter by stating that under Article 212 of the Constitution Service Tribunal was created to exercise exclusive jurisdiction, inter-alia, in respect of the matters relating to the terms and conditions of persons (who are or have been) in the service of Pakistan, including disciplinary matter; that by inducting section 2-A in the Service Tribunals Act, the service of the employees of certain Corporation was also declared to be service of Pakistan, hence such employees were given right to seek remedy from the Service Tribunal; that by introducing section 2-A in the Service Tribunals Act, 1973 the door of Service Tribunal was also opened for the employees of Corporations but the door of Service Tribunal was closed to the employees of Corporation by the Hon'ble Supreme Court by holding section 2-A ultra-vires partially, leaving a scope for disposal of the pending appeals of the employees of Corporation having Statutory Rules of terms and conditions of their. Service; that the Petitioners/Appellants being employees of P.I.A.C., which is a Commercial Organization having no Statutory Rules of their service, have been barred from knocking the doors of the Service Tribunal for remedy and their pending cases also cannot be disposed of by the Tribunal for want of Statutory Rules of Service.
7. About Removal from Service (Special Powers) Ordinance, 2001 learned Counsel for the Respondents has stated that it was in the capacity of civil servant under section 2-A of Service Tribunals Act, 1973 that the Petitioners/Appellants were given the right of Appeal before the Service Tribunal under section 10 of the said Ordinance but (the learned Counsel argued) the status of civil servant given to them under section 2-A of Service Tribunals Act, 1973 has since been taken away, the door of Service Tribunal closed against them, cannot be re-opened by Removal from Service (Special Powers) Ordinance, 2001 which is a legislation subordinate to the Constitution.
8. While rebutting the arguments of the learned Counsel for the Petitioners/Appellants regarding status of the Petitioners/Appellants of civil servant under the Chief Executive's Order No. 6 Of 2001 the Learned Counsel for the Respondents has not denied its validity, under Article 270- AA of the Constitution of Pakistan but he has contended that such validity amounts to condonation of the acts done under the said Order. He has argued that such validity is not for acts Corum-non-judice, mala i.e, ultra-vires of the provisions of the Constitution: that since the status of civil servant given to the employees of Corporation under section 2-A was ultra- vires as per Judgment of the Hon'ble Supreme Court dated 27.6.2006, the status of civil servant given to be employees of P I AC. Under Chief Executive's Order No. 6 of 2001 shall also be treated to be ultra-vires in terms of Judgment of the Hon'ble Supreme Court in as much, as the language of section 2-A and section 4 of the Chief Executive Order No. 6 of 2001 is identical with each other. The learned Counsel argued that the language of section 2-A of the Service Tribunals Act, 1973 and section 4 of the said Order No. 6 of 2001 being same by necessary implication, the status of civil servant given to the employees of .P.I AC. By Chief Executive Order No. 6 of 2001 has become redundant,, therefore, the Petitioners/Appellants whose services had not been dispensed with under Executive Order No. 6 of 2001, are barred from approaching the Service Tribunal for relief against the Orders impugned in their appeals. In support of his arguments, besides the Supreme Court Judgment dated 27.6.2006 the learned Counsel for the Respondents has relied on 2006, P.S.C. 1081 (Muhammad Muheeb-us- Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence, Government of Pakistan and others), 1994 SCMR 2232 (Mrs. Anisa Rehman v. P.I.A.C and another), PLD 1992 SC 531 (Raziuddin v. Chairman, P.I.A.C), 2001 SCMR 934 (Pakistan International Airlines Corporation [P.I.A.C.] through Chairman and others v. Nasir Jamal Malik and others), PLD 1988 Supreme Court 416 (Miss Benazir Bhotto v. Federation of Pakistan and another), PLD 1989 Supreme Court 26 (Federation of Pakistan and another v. Malik Ghulam Mustafa Khar), PLD 1998 Supreme Court 1445 (Mehran AH and others v. Federation of Pakistan and others), PLD 2001 Supreme Court 607 (Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others), PLD 1971 Lahore 748 (A George v. Pakistan International Airlines Corporation), PLD 1984 Lahore 69 (Iftikhar Ahmad v the Muslim Commercial Bank Ltd. And another).
9. We have carefully considered the above arguments of both sides and perused the authorities, which deal with the status of employees being civil servant or not, statutory rules and the powers of the superior Courts and Tribunals to declare any legislation ultra-vires. Section 2A of the Service Tribunal Act, 1973 as well as the relevant portions of the judgment of the Hon'ble Supreme Court dated 27.6.2006 are reproduced as under:- "[2-A. Service under certain corporations, etc. To be service of Pakistan:- Service under any authority, corporation, body or organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purposes of this Act]."
Paras-108 and 109 of the Hon'ble Supreme Court's judgment:
108. The threadbare discussion' on the subject persuades us to hold:-
(1) Section 2-a of the STA, 1973, is, partially, ultra vires, of Articles 240 and 260 of the Constitution, to the extent of the category of employees, whose terms and conditions of service have not been determined by the Federal. Legislature and by a deeming clause they cannot be treated civil servants as defined under Section 2(1 )(b) of the C.S.A., 1973, and they are not engaged in the affairs of the Federation.
(2) Section 2-A of the STA, 1973 cannot be enforced in the absence of amendment In the definition of the civil servant under Section 2(1)(b) of the C.S A, 1973.
(3) The cases of the employees under section 2-A, S.T.A., 1973, who do not fall within- the definition of civil servant as defined in Section 2(1 )(b) of the C. S.A., shall have no remedy before the Service Tribunal, functioning under Article 212 of the Constitutional and they would be free to avail appropriate remedy.
109. Now the question is as to what would be the effect of this judgment on the cases pending below this Court and Federal Service Tribunal. In this behalf it may be noted that following the rule of past and closed transactions, had down in the case of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445), it is directed as follows:-
(a) The case which have been decided finally by this Court in exercise of jurisdiction under Article 212(3) of the Constitution shall not be opened and if any Review petition, Misc. Application or Contempt Application, filed against the, judgment is pending, it shall be heard ' independently arid shall not be affected by the ration of this judgment.
(b) The proceedings instituted either by an employee or by an employer, pending before this court, against the judgment of the Service Tribunal, not covered by category (a) before this Court or the Service Tribunal shall stand abated, leaving the parties to avail remedy prevailing prior to promulgation of Section 2-a of the STA, 1973.
(c) The cases or proceedings which are not protected or covered by this judgment shall be deemed to have abated and the aggrieved person may approach the competent forums for redressal of their grievances within a period of 90 days and the bar of limitation provided by the respective laws, shall not operate against them till the expiry of stipulated period.
(d) The cases in which the order of Service Tribunal has been implemented shall remain intact for a period of 90 days or till the filing of appropriate proceedings, whichever is earlier.
(e) The Service Tribunal shall decide pending cases under Section 2-A of the STA, 1973 in view of the above observations. However, if any of the cases is covered by clause 'c' (ibid), a period of 90 days shall be allowed to aggrieved party to approach the competent forum for the redressal of its grievance."
10. A. Perusal of the above-mentioned paragraphs of the judgment of the Hon'ble Supreme Court clearly show that an employee of a Commercial organization like PIAC, having no statutory rules is not a civil servant as defined under section 2(1)(b) of the Civil Servants Act, 1973. The appellants/petitioners had filed their appeals as civil servants under section 2A, but their such position has -been demolished in view of the judgment of the Hon'ble Supreme Court and they are definitely not civil servants under section 2(1 )(b). It is correct that section 2A of the Service Tribunal Act, 1973 is partially held ultra vires but the P.I.A.C. Having no statutory rules, its employees cannot be treated as civil servant and for that reason their pending cases could not be disposed of by this Tribunal as the same stand abated.
11. So far as the appear under section-10 of the Removal from Service (Special Powers) Ordinance, 2000 is concerned, such appeals had also been filed by Appellants/petitioners in their capacity as civil servants under section 2A of the Service Tribunal Act, 1973, but their such position having been done away with, they cannot approach the Service Tribunal for remedy , as under Article 212 the Service Tribunal has exclusive jurisdiction in respect of the terms and conditions of civil servants only as defined under section-2(1)(b) of the Civil Servants Act, 1973 . The learned counsel for the Respondents has rightly stated that the door of the Tribunal closed by the Hon'ble Supreme Court under the constitutional provisions of Articles-240 and 260, cannot be re-opened by a subordinate legislation like Removal from Service (Special Powers) Ordinance, 2000.
12. Reverting to the status of the employees of the P.I.A.C. And that of a civil servant under Chief Executive's Order No. 6 of 2001 and the right of appeal of such civil servants before the Service Tribunal, it will be advantageous to reproduce the relevant Article-4 of the said order:- "4. Service under Corporation to the service of Pakistan: Service under the Corporation is hereby declared to be the Service of Pakistan and every person holding a post under the Corporation, not being a person who is on deputation to the Corporation, shall be deemed to be a civil servant for the purposes of the Service Tribunal Act, 1973 (LXX of 1973), Any person aggrieved by an order, made under Article 3 of this Order, may, within thirty days of the order, prefer appeal to the Service Tribunal established under the said Act and the provisions of that Act shall, mutates mutandis, apply."
A, comparison of above Article-4 of the Chief Executive's Order No. 6 of 2001 with section 2-A of the Service Tribunal Act, 1973 shows that, the language of both of these are identical in all material particulars, therefore, we agree with the learned counsel for the Respondents that by necessary implication, the status of the employees of the P.I.A.C. With their right of appeal before the Service Tribunal has been rendered redundant. We are at a loss to understand how Article-4 of the Chief Executive Order No. 6 of 2001 override the judgment of the Nine Hon'ble Judges of the Supreme Court striking down section 2-A as being ultra vires of the Constitution.
13. It may be pointed out here that the Hon'ble Supreme Court has, in view of its judgment dated 27.6.2006, dismissed the Civil Petition No. 434 of 2006 (Managing Director, P.I.A.C. And others v. Dr. Bashir Ahmed and others) vide order dated 15.8.2006 and Civil Petition No. 189 of 2006 (Managing Director/Chief Executive, P.I.A,, Karachi v. Waqar Masood Syed and others) vide order dated 18.8.2006.
14. In the above view of the matter, we cannot grant the request of the Appellants/Petitioner to continue with the proceedings of their appeals on merits. These appeals already stand abated in view of the judgment of the Hon'ble Supreme Court. The Misc. Petitions are, therefore, dismissed, but with no order as to cost.
15. Parties be informed accordingly.