JUSTICE (R) TANVIR BASHER ANSARI, CHAIRMAN - This is a petition for implementation of the judgment of this Tribunal dated 8.5.2007 passed in Appeal No. 1410(R)/CS/2005 whereby the termination order of the Petitioner passed vide Notification dated 31.3.2005 was set aside and the respondents were directed to reinstate him in service with effect from the date of the impugned order with all consequential benefits subject to an affidavit by the appellant to the effect that he was not gainfully employed during the intervening period. The petitioner/appellant reported for duty on 23.5.2007 but the respondents refused to allow him to resume duty. The petitioner, in compliance with the direction of this Tribunal also submitted the necessary affidavit to the effect that he was not gainfully employed during the intervening period.
2. The respondents challenged the judgment of this Tribunal before the Hon'ble Supreme Court. The C. P.L.A. Filed by the respondents has since been dismissed by the Hon'ble Supreme Court on 4.12.2007. If is, however, not disputed that no injunctive order against the judgment of this Tribunal was issued by the Hon'ble Supreme Court at any stage.
3. The respondents filed written objections against the petition for implemenL. Tion of the said judgment. It is contended therein that the Hon'ble Supreme court vide order dated 3.11.2006 in Civil Petition No. 832 of 2006 in case titled Muhammad Ashraf v. WAPDA has made the following observations:--- ".......... We therefore, without going into the question regarding the validity or otherwise of the order passed by the Tribunal, dismiss this petition with the observation that the petitioner may, if so advised, approach the departmental authorities in the matter. Dismissed."
Pursuant to this order of the Hon'ble Supreme Court this Tribunal on 22.11.2006 proceeded to dismiss the M.P. For implementation (No. 450-A/2004 in Appeal No. 207/(L)CS/2003 - Sha Maqbool Ahmed v. Income Tax Department) and further directed that all other M.Ps. Of same nature be also dismissed as not competent.
It is urged on behalf of the respondents that the petition for implementation is not maintainable and is liable to be dismissed.
4. Briefly stated that facts are as under:- The services of the petitioner were terminated vide the impugned order/Notification dated 31.3.2005. He filed a departmental appeal on 13.4.2005 which was not responded to within the statutory period. The petitioner filed appeal No. 1410(R)CS/2005 on 9.7.2005.
5. This Tribunal vide judgment dated 8.5.2007 accepted the appeal of the petition in the following terms:- "In view of the foregoing, the appellant's termination was ab initio illegal and devoid of justice in violation of the principle of locus poenitentiae. We, therefore, accept the appeal, set aside the termination orders and direct the respondents to reinstate him with effect from the date of the impugned order with all consequential benefits subject to an affidavit by the appellant and its administrative processing under law to the effect that he was not gainfully employed during the intervening period."
6. Mr. Abdur Rahim Bhatti, Advocate for the petitioner/appellant contends that the Hon'ble Supreme Court in the other dated 3.11.2006 passed in the case of Muhammad Ashraf V. WAPDA did not hold that the Federal Service Tribunal had no power to implement its own decisions. It is submitted that the respondents are misconstruing the said order passed by the Hon'ble Supreme Court. He further submits that pursuant to this order the case came up for hearing before this Tribunal in M.P. No. 450-A/2004 in Appeal No. 207(L)CS/2003 titled Shaikh Maqbool Ahmed v. Income Tax Department wherein an order was passed on 22.11.2006. The said M.P. Which was for implementation, was dismissed directing the said petitioner to approach the departmental authorities in the matter. On the administrative side it was ordered that all the Misc. Petitions pending in the Tribunal for implementation of its decisions be decided in a similar manner. The learned Counsel for the appellant submits that the afore-said decision which was judicial as well as administrative in nature was the result of lack of proper assistance on behalf of the petitioner in the said case and was also based upon a misconstruction of the order of the Hon'ble Supreme Court mentioned supra. In support of the proposition that the Tribunal is fully competent to implement its own decisions, the learned counsel has referred to the following judgments:-
(i) 2002 SCMR 1034 - Abdul Hafiz. Abbasi v. Managing Director, PI AC. The ratio of the said dictum of the Hon'ble Supreme Court is as under:- "Constitution of Pakistan (1973), Art. 212(3)-Appeal-Termination of service-Service Tribunal ordered the re-instatement of employees, but employer did not take them on duty thus, deprived them from salary for such period-Validity-Employer had an obligation to honour the judgment of Service Tribunal and reinstate the employees or if employer had any reservation in not implementing the judgment, then a stay order should have been obtained from the Supreme Court- -Employer had not obtained any stay order, thus, judgment of Service Tribunal remained operative-Supreme Court directed that employees be reinstated with effect from the date of passing of judgment of Service Tribunal with all back benefits."
(ii) PLD 1996 S.C. (AJ&K) 29 - Ch. Sadiq Ali (Retd.) Assistant Engineer/SDO, P.W.D. v. The Chief Secretary, Azad Jammu and Kashmir Government and another Ratio:- ".... Where jurisdiction was conferred on Court or Tribunal to pass an order, power to have that order implemented was implicit in that jurisdiction."
(iii) 2003 PLC(CS) 1186 (Lahore High Court) Malik Fazal Abbas v. Secretary to the Government of Punjab, Excise and Taxation Department and 2 others.
Ratio:- "..... Petitioner/civil servant through Constitutional petition had challenged inaction of the Authorities by not complying with order passed by Service Tribunal-Petitioner prayed the High Court to issue an appropriate writ for enforcement of the order of Service Tribunal--- Validity-Service Tribunal being a "Civil Court" within the meaning of S. 5(2) of Punjab Service Tribunals Act, 1974, for the purpose of deciding appeal, it had all the powers of a "Civil Court" provided under C.P.C.-Section 36, C.P.C. Had provided that all provisions of C.P.C. Relating to execution of decrees would be applicable for execution of orders as well-Service Tribunal would have all I powers of Civil Court to bring issue before it to its logical end like Civil Court-Service Tribunal could get its order enforced/executed-Petitioner having alternate and efficacious remedy before Service Tribunal, available to him under law, Constitutional petition was not maintainable."
(iv) Order dated 24.1.2003 passed in CPLA No. 1915 of 2002 - Federation of Pakistan v. Gohar Riaz:- "...... Learned Standing Counsel fairly concedes that order of Service Tribunal reinstating the respondent (appellant) has not been implemented so far. Impugned order was rendered as far back as 9.2.2002, whereas the petition was filed on 12.11.2002. Before proceeding further with hearing of the petition, in all, we accept in all fairness that the judgment passed by the competent Tribunal constituted under the provision of Article 212 of the Constitution shall be honoured."
(v) Order dated 25.3.2002 passed in C.P. No. 426 of 2003 - Federation of Pakistan v. Salimullah Khan:- "It is to be noted that so far no stay order has been passed in favour of the petitioner department rather while granting leave to appeal in the petition of the respondents it has been stated vide order dated 10.3.2002 that till the disposal of the appeal, the impugned order/judgment of Service Tribunal to the extent of reinstatement of the respondent Salimullah Khan in service shall remain in force. Therefore, for such reason it was the obligation of the department to have reinstated him into service.
Therefore, instead of granting leave to appeal, we adjourn this case with the direction to the department to implement the order of the Service Tribunal as early as could be possible, thereafter instant petition will be enlisted for hearing alongwith the appeal arising out of Civil Petition No. 385 of 2003."
(vi) PLJ 2004 Tr. C. (Service) 183 - Zahooruddin Sheikh v. Pakistan Atomic Energy Commission.
"....... If judgment (passed by the Federal Service Tribunal) was not implemented and leave to appeal was either not filed or declined, there is no escape route for the department but to implement the judgment in letter and spirit.
Implementation-Jurisdiction of-where a law confers jurisdiction, it also grants power of doing all such acts as are of legitimate and are necessary for its execution. Thus Tribunal has powers to execute its own judgments as power flows from the jurisdiction itself."
This judgment is rendered by the two-Member Bench of this Tribunal including the Chairman.
(vii) The learned Counsel has further referred to 1989 PLC (CS) 398, another judgment of this Tribunal titled Ahmad Nawaz Khan V. Senior Accounts Officer (Admn.) Pakistan Railways:- ".... Execution/implementation of Service Tribunal's order-Service Tribunal is ' empowered to order implementation of its orders-Service Tribunal deemed to be a Civil Court for purpose of deciding an appeal having same powers are vested in such Court under provisions of Civil Procedure Code, 1908."
(viii) 1999 PLC (CS) 443) - Masood Ahmed Changwani V. Secretary Establishment Division and others.
Decided by a four-Member Bench of this Tribunal headed by Chairman:--- While granting leave to appeal, operation of judgment of Tribunal having not been suspended by Supreme Court, mere leave to appeal could not defeat implementation process of order passed by Service Tribunal."
(ix) 2006 T.D. (Service) 63 - (1) Abdul Razzaq (2) Israr Ahmed v. Senior Member, Board of Revenue, Punjab, Lahore:- "..... Service Tribunal noting obduracy of the department and sending copy of its judgment to Chief Secretary for appropriate disciplinary action against official responsible for such contumacy and obduracy."
(x) PLD 2005 Karachi 316 - Messrs Yousuf Sons and another v. Muhammad Khalid and others.
"..... S. 151---Inherent powers of Court--Scope-Court, to seek implementation of its order, to meet the ends of justice and to ensure the supremacy of law, can follow any course, which is not prohibited by law, and for that purpose inherent powers of the Court conferred by S. 151 C.P.C. Could be exercised by it."
Last but not the least it is contended by the learned Counsel for the petitioner that the respondents had challenged the judgment passed by this Tribunal before the Hon'ble Supreme Court and the CPSLA filed in this behalf has since been declined by the Hon'ble Supreme Court. It is submitted that the judgment of this Tribunal shall thus be deemed to have merged in the Supreme Court's judgment and that in any event assuming without conceding that the Tribunal did not have any independent power to implement its judgment yet in view of the above, the Tribunal would be duty bound to act in aid of the Supreme Court under Article 190 of the Constitution of Islamic Republic of Pakistan.
7. In support of the contention that a Miscellaneous Petition for implementation is competent and that the Tribunal does not become functus officio after rendering the final judgment on merits, the learned Counsel for the petitioner his placed on- the record copy of C.P. No. 845 of 2007 alongwith a copy of the order passed thereupon by the Hon'ble Supreme Court of Pakistan.
8. The learned Counsel for the respondents has vehemently argued that the Hon'ble Supreme Court has vide order dated 3.11.2006 dismissed the petition filed by the petitioner in that case and directed him to approach the Departmental Authorities for implementation of its orders. It is further stressed that this Tribunal had, in the light of the said judgment, dismissed all M.Ps For implementation that were pending at all the Benches of this Tribunal. It was further argued that the Tribunal had no jurisdiction to entertain any M.P. After decision of appeal on merits as the Tribunal becomes functus officio. The order of the Hon'ble Supreme Court dated 3.11.2006 and that of this Tribunal dated 22.11.2006 are reproduced as under:--- Order dated 3.11.2006 Of the Hon'ble Supreme Court: "This petition has been directed against the order dated 13.7.2006 passed by the Service Tribunal arising out of a miscellaneous application which was . Filed after disposal of the main appeal, containing the grievance that judgment of Tribunal was not implemented in letter and spirit.
Learned Counsel for the petitioner when confronted that how the miscellaneous application was competent before the Tribunal, he has not been able to satisfy us that after disposal of the main appeal, the miscellaneous application would be maintainable before the Tribunal. We therefore, without going into the question regarding the validity or otherwise of the order passed by the Tribunal, dismiss this petition with the observation that the petitioner may, if so advised, approach the departmental authorities in the matter. Dismissed."
Order dated 22.11.2006 of the Federal Service Tribunal: "Photo copy of apex Court's order dated 3.11.2006 in C. P. No. 832 of 2006 titled Muhammad Ashraf - Petitioner V. WAPDA through its Chairman, WAPDA House, Lahore, makes the following readings:- "This petition has been directed against the order dated 18.7.2006 passed by the Service Tribunal arising. Out of a miscellaneous application which was filed after disposal of the main appeal, containing the grievance that judgment of Tribunal was not implemented in letter and spirit.
Learned Counsel for the petitioner when confronted that how the miscellaneous application was competent before the Tribunal, he has not been able to satisfy us that after disposal of the main appeal, the miscellaneous application would be . Maintainable before the Tribunal. We therefore, without going into the question regarding the validity or otherwise of the order passed by the Tribunal, dismiss this petition with the observation that the petitioner may, if so advised, approach the departmental authorities in the matter. Dismissed."
In view of the above observations by the apex Court on 3.11.2006, for be it. From us to ignore the dicta above-quoted and the result is that M.P. No. 450-A/2004 in Appeal No. 207(L)CS/2003, seeking . Implementation of FST -order dated 26.4.2004, is dismissed and the petitioner informed of his remedy in line with the apex Court's observations in the last two sentences of the judgment/order dated 3.11.2006 i.e. 'an approach by the Appellant/Petitioner to the departmental authorities in the matter.
Office here is directed to send a copy each to the Registrar at the Principal Seat as also A.R. At Karachi Seat for following apex Court's judgment dated 3.11.2006 in C.P. No. 832 of 2006 in relation to all the M.Ps. Pending in the Tribunal at the three centers namely Islamabad, Karachi and Lahore for implementation of the judgments/orders of Federal Service Tribunal, before the departmental authorities in the matter and not by any Bench of the Federal Service Tribunal or any one of the seat afore-referred.
M.P. No. 450-A/04 stands disposed of as above! With no order as to costs.
Parties may be informed accordingly."
9. It is further contended that the respondents are contemplating to seek review of the judgment dated 4.12.2007 passed by the Hon'ble Supreme Court and contends that for these reasons implementation may be pended till the review petition is filed and injunctive order obtained. It has been further urged that leave has been granted by the Hon'ble Supreme Court in the case of Muhammad Yousaf V. Divisional Superintendent, Pakistan Railways 2002 SCMR 663 and that before a final judgment of the Hon'ble Supreme Court the order upon the question of implementation by this Tribunal may be kept in abeyance. Further reliance is placed upon the decision dated 24.1.2007 passed by this Tribunal in M.P. No. 1714 of 2P06 in Appeal No. 1166(R) of 1998. It is contended that the said Misc. Petition for implementation was adjourned sine die on account of leave grant order passed in 2002 SCMR 663 supra.
10. We have heard the learned counsel for the parties and examined the law on the subject.
11. It requires no reiteration that the Service Tribunal both at the Federal as well as Provincial level have been established by the appropriate legislature under Article 212(1) of the Constitution of Islamic Republic of Pakistan, 1973 to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of persons who are or have been in the service of Pakistan including disciplinary matters. The Service Tribunals are therefore, vested with vast powers to grant full redress and to do complete justice, to an aggrieved party. The necessary corollary of this exclusive jurisdiction is the fact that the jurisdiction of all other Courts or Tribunals is expressly ousted in respect of any matter to which the jurisdiction of the Administrative Court or Tribunal extends.
Under Article 212(3) an appeal against the judgment, decree, order or sentence of an Administrative Court or Tribunal lies only to the Supreme Court and this is further hedged by the consideration that the same shall lie before the Supreme Court only if case involves a substantive question of law of public importance.
12. In order to give effect to the mandate as enshrined in Article 212 of the Constitution, Civil Servants Act, 1973 and the Service Tribunals Act, 1973 were promulgated by the appropriate legislatures for the construction and functioning of the Federal as well as the Provincial Tribunals respectively.
The powers of the Tribunals are enunciated in Section 5 of the Service Tribunals Act, 1973.
"5. Powers of Tribunals:
(i) A Tribunal may, on appeal confirm, set aside, vary or modify the order appealed against.
(ii) A Tribunal shall, for the purpose of deciding any appeal be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure 1908 (Art. V.
Of 1908) including the powers of:-
(a) Enforcing the attendance of any person and examining him oath;
(b) Compelling the production documents; and of
(c) Issuing commission for the examination of witnesses documents. And
13. A perusal of this provision would make it manifest that the Tribunals have not only been invested with vast and overwhelming powers in deciding an appeal before it, it has also been conferred with the powers of a Civil Court as vest in such Court under the Code of Civil Procedure 1908. There is nothing in the said Section to limit or curtail the powers of the Tribunal to any extent whatsoever.
The intention of the legislature is explicit. The exclusive jurisdiction would necessarily entail the inherent power of doing complete justice from the commencing of the lis before the Tribunal upto its logical conclusion i.e. The practical implementation/execution of its judgment having the full backing of powers of execution as are vested in a Civil Court. Any other interpretation of the power of the Tribunal which would have a diminishing effect would be contrary to the intendment of exclusivity of jurisdiction of the Tribunals as envisaged by the Constitution.
Section 5(2) provides that a Tribunal shall be deemed to be a Civil Court. It shall have the same power under the Code of Civil Procedure. Indeed this is a deeming clause but howsoever strictly we choose to interpret this clause, we must end up with concluding that the powers of a Civil Court under the 6.P.C. Conferred upon the Tribunal are real and actual rather than being illusory only. This is supported by the dictum of the Hon'ble Supreme Court in 1996 SCMR 645 - Syed Imran Raza Zaidi, Superintending Engineer, Public Health Engineering Circle-1, Gujranwala v. Government of the Punjab through Services General Administration and Information Department, Lahore.
Once having come to this conclusion, there is no difficulty in having positive recourse to all the provisions of the Code of Civil Procedure.
14. We are also backed by Art. 212(3) of the Constitution which contemplates the making of a judgment, decree, order or sentence by an Administrative Court or Tribunal. It needs no gain saying that when an Administrative Court or Tribunal is empowered to pass or make the afore-said, it also has the power to implement and/or execute the said judgments, decrees, orders or sentences.
Section 5(2) is in the nature of legislation by incorporation or by reference. The Administrative Courts or' Tribunals shall be fully competent , to exercise power as detailed in order XXI of Code of Civil Procedure in matters relating to execution of judgments, decrees or orders. Section 36, C.P.C.
Provides that all provisions of C.P.C. Relating to execution of decrees would be equally applicable for execution of orders as well. Section 36, C.P.C. Is reproduced as under:- "36. Application to orders: The provisions of this Code relating to the execution of decrees shall, so far as they are applicable be deemed to apply to the execution of orders?
The provisions of C.P.C. As hereinbefore mentioned apart, the inherent powers saved under Section 151, C.P.C. Would also be relevant for determining the power of implementation of the Administrative Court or Tribunal. Section 151, C.P.C. Is reproduced as under: 151.. Savina of inherent powers of the Courts: "Nothing in this Code shall be deemed to limit or otherwise effect the inherent power of the Court to make such orders as may be necessary in the ends of justice or to prevent abuse of the process of the Courts."
15. The question of the power of implementation of the administrative tribunal came up for decision of this Tribunal in the case of Ahmad Nawaz Khan v. Senior Accounts Officer (Admn.) Pakistan Railways, Lahore.- 1989 PLC(CS) 398. A two Member Bench of this Tribunal held that the judgment/order passed by the Administrative Tribunal fell within the purview of the term "decree" as defined in the Code of Civil Procedure. Decree under Section 2(2) ibid means the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. Although a judgment or order passed by an Administrative Tribunal should not be accompanied by the drawing up of a formal decree yet read with Section 36, C.P.C. The powers of implementation of a judgment or order shall be same which may be exercised a executing a formal decree. It was held in the said judgment of the Tribunal that the Tribunal has all the powers of execution as given in the C.P.C. This view was again reiterated in the case of Zahooruddin Sheikh v. Pakistan Atomic Energy Commission, PLJ 2004 Tr. C. (Service) 183 passed by a two-Member Bench of this Tribunal including the then Chairman. After discussing the powers of the Tribunal it was held that the Tribunal was fully clothed with the powers of implementation of its own judgments.
16. The Hon'ble Supreme Court in a number of cases held that this Tribunal has the power of implementation. Reference is made to the case of Abdul Hafiz Abbasi V. Managing Director, PIAC - 2002 SCMR 1034. Their Lordship of the Supreme Court held that-- "After passing of judgment dated 29.5.2001 by Federal Service Tribunal, PIAC had the Obligation to honour it and reinstate the employees Abdul Hafiz Abbasi and others or if PIAC had any reservation in not implementing the judgment then a stay order should have been obtained by them from this Court. Admittedly no stay order obtained by PIAC, therefore, the judgment of FST remained operative."
The legal obligation for the department to abide by the judgment of the Service Tribunal unmistakably indicates the corresponding power of the Tribunal to enforce its own judgment.
17. This very question of power of implementation arose in Ch. Sadiq Ali (Retd.) Assistant Engineers/SDQ P.W.D. v. Chief Secretary AJ&K Government - PLD 1996 S.C. AJ&K-29.
Regarding jurisdiction of the Tribunal to implement its own decision, it was categorically held as under:-- "..... In my view the Service Tribunal is possessed with adequate powers to see that its orders are implemented. It is an accepted principle of law that when a jurisdiction is conferred on a Court or Tribunal to pass an order the power to have the order implemented is implicit in that jurisdiction."
Reliance was further placed upon Interpretation of Statutes by Maxwell, 1962 Edition, at page 350 which is reproduced as under-- "Implied Powers and Obligations: Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution."
18. We have also taken note of copies of various orders passed by the Hon'ble . Supreme Court while disposing of various CPLAs while upholding the powers of implementation of the Service Tribunal.
19. We have also -been referred to the legal opinion dated 2,3.2006 issued by the Attorney General of Pakistan to the Secretary Establishment Division, Government of Pakistan, Islamabad, as under:- "OFFICE OF THE ATTORNEY GENERAL FOR PAKISTAN Supreme Court Building, Islamabad.
No. (5)2006 AGP Dated 2.3.2006 The Secretary, Establishment Division, Government of Pakistan, Islamabad.
It has been observed that orders passed in service matters by the Federal Service Tribunal decided against the Government are not implemented as per directions given in the respective orders. The Government Departments postpone the implementation of the orders of the Federal Service Tribunal on the grounds that. CPLA is preferred against the orders and wait for the disposal of the matter by the Hon'ble Supreme Court of Pakistan. The Government Departments are hereby informed that unless the order of the FST is suspended specifically by an order of the Supreme Court, the same must be implemented forthwith. However a clause may be added in the implementation orders that it . Shall be subject to the final decision of the matter by the Hon'ble Supreme Court of Pakistan. This eventuality of informing the government departments has arisen because recently the Hon'ble Supreme Court of Pakistan has started taking a very serious note of this fact and in some of the cases heavy costs up to Rs. 50,000/- has been imposed by the Hon'ble Supreme Court of Pakistan simply for the reason that the government department has not implemented the orders during the pendency of the CPLA without there being any order of suspension of the orders appealed against.. The matter must be attended to urgently in order to avoid any further financial loss to the national exchequer. Thus all the matters which are decided by the FST or which are pending in the Hon'ble Supreme Court of Pakistan against any order passed by the FST directing the reinstatement or granting some other relief to a civil servant be complied with forthwith unless the order appealed against is specifically suspended by the Hon'ble Supreme Court of Pakistan for necessary action.
2. The Secretary Establishment is further requested to convey this message to all the commercial departments of the government in respect of which the service matters crop up before the F.S.T. Or before the Hon'ble Supreme Court of Pakistan for necessary action.
With best regards.
Sincerely, Sd/- (NASIR SAEED SHEIKH)
Deputy Attorney General"
We understand that this advice was also circulated to all concerned. It is quite ironical for the respondents to plead to the contrary.
20. In addition to the powers of implementation referred to hereinbefore, ESTACODE itself specifically provides the manner inter alia of implementation alongwith consequences on failure to implement. Reference is made to S. No. 10 at page 1289 of ESTACODE 2000 edition, which is reproduced below:-- implementation of judgments/orders passed by the Federal Service Tribunal:- SI. No. 10: On acceptance of an appeal by the Federal Service Tribunal, a written order is communicated to the concerned parties and respondent Ministries/Divisions/Departments. On receipt, the judgment is to be examined on top priority basis, with a view to filing a Civil Petition for Special Leave to Appeal (CPSLA) before the Supreme Court of Pakistan for which 60 days time is available to the aggrieved parties. In case, it is decided in consultation with the Law and Justice Division that an order passed by the Tribunal does not involve any substantial question of law of public importance for moving a CPSLA before the Supreme Court of Pakistan, the order should be implemented forthwith under intimation to the Registrar, Federal Service Tribunal, Islamabad.
2. The Ministries/Divisions are also requested kindly to inform the departments under their administrative control to follow the above instructions: SI. No. 11: It is brought to the notice of the Ministries/Divisions/Departments that the Federal Service Tribunal was constituted in 1973 and enjoys the powers of a Civil Court l s under the Civil Procedure Code and can, if it so "desire initiate proceedings against the 'defaulting Ministries/Divisions/Departments for I non-implementation of its orders if they have not been appealed against in the higher Courts. It is, therefore, mandatory for the Ministries/Divisions/Departments to implement the Federal Service Tribunal's orders whenever appeals have not been filed and strict compliance with this legal provision is requested forthwith.
3. The Tribunal has also complained about the lack of assistance being rendered by the Ministries/Divisions/Departments of having their view points represented by officials of the contesting Ministry/Division/Department at very low level and for was contacting Government Counsel/Advocate who is supposed to defend the Government position. Many instances relating to some Ministries and Departments have been cited by the Chairman, Federal Service Tribunal which are being separately addressed on the subject.
4. In view of the above the attention of the Ministries/Divisions/Departments is invited to the Establishment Division's policy O.Ms. No. 10/14/92-Lit. 1, dated 4.5.1993, 2/19/93-Lit.3, dated 28.5.1994 .And 1/23/94-Lit-2, dated 3.11.1994 which stress that:---
(a) the government departments should assure that no case goes unrepresented before any Court/Tribunal. A responsible officer well conversant with the case, alongwith government counsel should always be deputed to represent the Government and assist the Court/Tribunal on the basis of departmental record and the policy stand taken in the case;
(b) where a judgment is passed against the Government the possibility of filing an appeal against it should be examined well within time in consultation with the Law and Justice Divisions; and
(c) where a judgment is not desired to be challenged the same should be implemented forthwith.
5. The Ministries/Divisions/Departments are requested to strictly comply with the Government instructions referred to above. The Government functionaries found negligent or responsible' for mishandling the cases, should invariably be proceeded against under the E&D Rules."
21. We are also conscious of the fact that in the instant case the respondents had filed Petition for Leave to Appeal before the Hon'ble Supreme Court. The learned Counsel for the appellant has produced a copy of the order dated 4.12,2007 passed in the said C.P.L.A. Bearing No. 645 of 2007, dated 4.12.2007. We have perused the said order in detail. The necessary excerpt from the said judgment is reproduced as under:- "......... His (Fit. It. Furrukh Rashid) appointment was not only valid on the basis of merit alone but also on the basis of quota based policy if it had been worked out correctly. It is important to note that appointment of respondent No. 1 as ASP" was never challenged nor made contingent upon any future development. The' appointment letter issued to him was riot protested by any one. It.
Muquddas who filed ICA and Civil 'Petition before this Court has, in fact, agitated his own right of appointment based on the principle of quota policy. It was held in the case of Pakistan International Airlines Corporation V. Inayat Rasool (2003 SCMR 1128) that order having taken legal effect and created certain rights in favour of an individual cannot be withdrawn or rescinded to the detriment of those rights. Certainly vested right was created in favour of the respondent. There is no justification to ignore the opinion of the Law & Justice Division. That principle of locus poenitentiae was pertinently involved in favour of respondent No. 1 and the opinion of learned Attorney General for Pakistan was not only supportive of the above view but also contained an emphatic observation that respondent No.1 deserved reinstatement both on the ground of legitimate expectation and constitutional right of equity. Learned DAG though argued at length but could not point out any illegality or infirmity in the impugned judgment warranting interference by this Court. We also do not find any ground to interfere with the impugned judgment which being well reasoned and based upon cogent reasons is maintained. The petition being devoid of merit is dismissed and leave to appeal refused."
It is thus manifest that the Hon'ble Supreme Court had affirmed the judgment passed by this Tribunal in Appeal No. 1410(R)CS/2005 upon merits while declining to grant leave to the department. The judgment of this Tribunal lies thus merged in the judgment of the Hon'ble Supreme Court. Besides the afore mentioned powers of implementation vesting in this Tribunal, we are fortified in our view that the Tribunal has further been obliged To implement the judgment under Articles 189 and 190 -of the Constitution of Pakistan, 1973.
22. We thus find that there is a consensus of judicial opinion that administrative Courts of Tribunals enjoyed full powers to implement and execute all its judgments and orders.
23. This shall bring us to the order dated 3.11.2006 passed by the Hon'ble Supreme Court in the case of Muhammad Ashraf V. WAPDA referred to by the learned Counsel for the respondents and also on the basis of which order dated 22.11.2006 was passed by this Tribunal. The said order of the Hon'ble Supreme Court is reproduced as under:- "This petition has been directed against the order dated 18.7.2006 passed by the Service Tribunal arising out of a miscellaneous application which was filed after disposal of the main appeal, containing the grievance that judgment of Tribunal was not implemented in letter and spirit.
Learned counsel for the petitioner when confronted that how the miscellaneous application was competent before the Tribunal, he has not been able to satisfy as that after disposal of the main appeal, the miscellaneous application would be maintainable before the Tribunal, we therefore, without going into the question regarding the validity or otherwise of the order passed by the Tribunal, dismiss this petition .With the observation that the petitioner my, if so advised, approach the departmental authorities in the matter dismissed."
24. In order to appreciate the correct import of the said order was have summoned the record of Appeal No. 644(R)CS/2002 wherein M.P. No. 212712004 was decided through order dated 18.7.2006.
25. The appellant Muhammad Ashraf in Appeal No. 644(R)CS/2002 claimed that the Selection Grade-16 w.e.f 1.12.1987 was wrongly withdrawn and that he was entitled to the benefits of the Selection Grade and move order from the date of its withdrawal. It was also contended that he was discriminated against as a number of other similarly placed employees were allowed to retain the Selection Grade. The appeal was decided vide judgment dated 27.5.2004/1.6.2004 through which his claim regarding protection of Selection Grade was rejected. It was however, observed that the respondents would make verification regarding the protection of Selection Grade to some juniors of the appellant and if that was the case the appellant was a liberty to approach the Tribunal again.
It was for implementation of this latter direction that the appellant in Appeal No. 644(R)CS/2002 filed a Miscellaneous Petition No. 2127 of 2004 alleging that some junior officials of the appellant have been adjusted in other projects and' have also been allowed to retain the Selection Grade..
This application for implementation was dismissed on 18.7.2006 by this Tribunal. The appellant Muhammad Ashraf further challenged this order dated 18.7.2006 before the Hon'ble Supreme Court in CPLA 832 of 2006 upon which the Hon'ble Supreme Court passed its order dated 3.11.2006 reproduced hereinabove. We have examined the said order and find that the M.P. Was dismissed on merits and. Not on account of any lack of jurisdiction to implement its judgment. The M.P. Was dismissed in the peculiar circumstances of the case and it is not apt to say that in all cases the Tribunal becomes functus officio after rendering a judgment. Obviously the power of implementation inheres in the powers of the Tribunal to do complete justice. In view of this power a Misc. Petition for implementation of judgment of the Tribunal has of necessity to be filed after the pronouncement of the judgment and it is naive to suggest that for an application for implementation also the Tribunal becomes functus officio after pronouncement of a judgment.
We are referred to the order of the Supreme Court passed in C.P. No. 845 of 2007.
We have examined copy of the said CPLA and find that one of the grounds taken therein was that the Misc. Petition filed after the disposal of the appeal was not competent as the Tribunal has become functus officio. The Hon'ble Supreme Court did not find this contention to be either a question of law or that of public importance.
26. The narration of the afore-said facts would show that at no stage the question of jurisdiction of the Tribunal regarding the power of implementing its judgment was ever raised. The Petition for implementation (M.P. No. 2127 of 2004) was not competent before the Tribunal in view of the main judgment dated 27.5.2005/1.6.2004 passed in Appeal No. 644(R)CS/2002 inasmuch as the Tribunal had decided, while disposing of the said appeal that if the appellant was dissatisfied by the order of respondents WAPDA after remand, he was at liberty to approach the Tribunal. Obviously reference was made to prefer a fresh appeal rather than a Petition for implementation.
27. We have minutely examined the order dated 3.11.2006 passed by the Hon'ble Supreme Court and are unable to subscribe to the conclusion drawn by the respondents from it that this Tribunal has no jurisdiction to implement its own judgment. The question of jurisdiction of the Tribunal for implementation was not raised or decided. The appellant was directed to approach the departmental authorities in the matter in the peculiar circumstances of that case as enunciated in the judgment of 27.5.2006/1.6.2006.
28. Later this judgment was referred to a Bench of this Tribunal during the hearing of M.P. No. 450- A/2004 in Appeal No. 207(L)/CS/2003 Sh. Maqbool Ahmed v. Income Tax Department. As per the record the petitioner/appellant was not assisted by a counsel and he had appeared in person.
After going through the record in Appeal No. 644(R)CS/2002 including the record of M.P. No. 2127/2004 moved in that appeal we are affirmed in our view that the learned Bench of this Tribunal was not ably assisted in comprehending the order of the Hon'ble Supreme Court dated 3.11.2006.
We find that the lack of assistance on that occasion has resulted in order dated 22.11.2006 which had the effect not only of dismissing the M.P. No. 450-A/2004 but also resulted in specific directions in relation to all the Misc. Petitions for implementation pen ding in the Tribunal at all the three centers namely Islamabad, Lahore and Karachi to be rendered infructuous with a common direction to the petitioners to approach the respective departmental authorities in the matter.
Obviously this lack of assistance to the learned Bench of this Tribunal resulted in grave miscarriage of justice. We are constrained to recall the order dated 22.11.2006 as the same is a result of gross misconstruction and misapplication of law although occasional for the reasons hereinbefore specified.
There is also no force in the submission of the learned Counsel for the respondent that the respondent is contemplating to seek review of the judgment dated 4.12.2007 passed by the Hon'ble Supreme Court and that for this reason the implementation may be kept in abeyance. The filing of the review if at all shall have no effect upon the judgment dated 8.5.2007 passed by this Tribunal in Appeal No. 1410(R)/CS/2005 unless and until the Supreme Court is pleased to issue an injunctive order against the same. The respondents can also derive no benefit from the leave grant order passed by the Hon'ble Supreme Court in the case of Muhammad Yousuf v. Divisional Superintendent, Pakistan Railways 2002 SCMR 663. The leave granting order was made on 10.1.2002.
The Hon'ble Supreme Court vide judgment cited as 2002 SCMR 1034 - Abdul Hafiz Abbasi v.
Managing Director, PIAC decided on 12.2.2002 held that the employer had an obligation to honour the judgment of Service Tribunal and that if the employer had any reservation in not implementing the judgment, then a stay order should have been obtained from the Supreme Court.
It is this latter judgment of the Supreme Court passed in Civil Appeals Nos. 2117 to 2134 of 2001 and Civil Appeal No. 12 of 2002 which shall hold the field. For a parity of reasons no reliance can be placed upon the order passed by this Tribunal in M.P. No. 1714 of 2006 in Appeal No. 1166(R) of 1998 as the same is based on 2002 SCMR 663 supra.
29. For all that has been discussed herein we once again affirm, in line with the dictum of the Hon'ble apex Court is supported by judgments of the Hon'ble Lahore High Court and detailed judgments passed in this behalf of this Tribunal itself that the administrative Courts or Tribunals have full powers of implementation of its judgments.
30. We, therefore, overrule the objection raised by the respondents and direct the respondents to implement the judgment dated 8.5.2007 and reinstate the petitioner with effect from the date of the impugned order with all consequential benefits within 15 days of the receipt of the order of this Tribunal with compliance report to the Registrar of this Tribunal as well as Registrar Supreme Court.
31. Parties be informed accordingly.