' IFTIKHAR MUHAMMAD CHAUDHRY, Above listed petitions for leave to appeal have been filed against the judgments passed by the Federal Service Tribunal. As common question of law is involved in all these matters, we intend to dispose them of by means of instant common judgment.
2. There is no need of detailed marshalling of the facts of each case, however, summary of the same is as under:--
(a) The respondents in CP No, 1863 of 2009 & CP Nos. 62-64 of 2010 were employees of Allama Iqbal Open University, Islamabad [hereinafter referred to as `AIOU']. Proceedings were initiated against them under Removal from Service (Special Powers) Ordinance, 2000 [hereinafter referred to as `RSO, 2000'] and respective major penalties were imposed upon them, against which they preferred departmental representations, which were not responded, therefore, they filed appeals before the Service Tribunal, which have been allowed by means of impugned judgments, as a result whereof the relief so claimed were extended to them.
(b) The respondent No, 1 in CP No, 2191 of 2005 was the employee of SME Bank when disciplinary proceedings were initiated against her under RSO, 2000 and ultimately the major penalty of compulsory retirement was imposed upon her. Her departmental representation was not responded to, as such she approached the Federal Service Tribunal by way of filing Service Appeal, which was allowed and she was reinstated into service.
(c) The petitioners in CP No, 804-K of 2009 and CP Nos. 12-K & 13-K of 2010 were employees of Pakistan Steel Mill. They were charged for misconduct and proceedings were conducted under RSO, 2000. After conclusion of the inquiry proceedings respective penalties were imposed upon them. Ultimately, they approached the Federal Service Tribunal for redressal of their grievances by filing Service Appeals, which were partially accepted restoring them to their original positions, however, the relief of back benefits was not extended to them.
(d) The petitioner in CP No, 1247 of 2009 was employee of SME Bank. He was proceeded against under RSO 2000 on account of misconduct and major penalty of demotion was imposed upon him.
His departmental representation remained unresponded, thus he filed Service Appeal before the Federal Service Tribunal, which was dismissed by means of impugned judgment.
3. The above factual aspects of the matter divulge that there are two categories of cases; firstly, the cases where the Tribunal has extended benefit to the employees and the Departments have approached this Court and secondly, the cases where the Tribunal has denied the relief to the employees, so they have come up before this Court for redressal of their grievances.
4. At the outset, learned counsel for the respective Departments raised an objection with respect to maintainability of Service Appeals by the employees (either petitioner or respondent in the present cases) before the Federal Service Tribunal to the effect that ' the Service Tribunal has no jurisdiction to grant relief to the employees of Departments/ Corporations, having non-statutory rules, despite of the fact that they ,were proceeded against under the RSO, 2000, According to them the question of jurisdiction can be raised at any .Time. Irrespective of the fact that it had not been raised at preliminary stage. Since it is a pure question of law, involving interpretation of Section 10 of the RSO, 2000 viz. Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, we do not feel it appropriate to note, down the other respective submissions, on factual side, of the learned counsel for the parties, being not of prime consideration:
5. Before dilating upon the above contention of the learned counsel, it Would be advantageous to reproduce Section 10 of the RSO, 2000, which reads as under:-- ' "Appeal:- Notwithstanding anything contained in any other law for the time being in force, any person -aggrieved by any final order under Section 9 may, within 30 days of the order, prefer an appeal to the Federal Service Tribunal established under the Service Tribunal Act, 1973: ' Provided that where a representation has been preferred under Section 9 but no decision has been received by or communicated to, the applicant Of, as the case may be, petitioner, within a, period of sixty days of its submission to the prescribed authority, he may prefer appeal to the Service Tribunal within thirty days of the expiry 'of the aforesaid period."
' Similarly, Article 212 of the Constitution, is reproduced hereinbelow:-- I "Administrative Courts and Tribunals.
(1) Notwithstanding anything hereinbefore 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) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(2) Notwithstanding anything herein before contained, where 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: ' Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Majlis-e-Shoora (Parliament) by law extends the provisions to such a Court or Tribunal.
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal.
6. A careful perusal of Section 10 of the RSO, 2000, reveals that any person aggrieved by any final order, under Section 9 of the RSO, 2000 can prefer an appeal within thirty days of the order, before the Federal Service Tribunal; established under the Federal Service Tribunal Act, 1973; whereas, under Article 212(1) of the Constitution, the Federal Service Tribunal, being a forum of exclusive jurisdiction, is empowered to hear the cases in respect of matters relating to the terms and conditions of persons, who are or have been in the service .Of Pakistan, including the disciplinary matters. Admittedly, the RSO, 2000, as per its preamble, was promulgated keeping in view the prevailing circumstances, in the public interest and further for good governance to provide for measures, inter alia, dismissal, removal etc. Of certain persons from Government service and Corporation service.
7. It may also be borne in mind that earlier, this Court had an opportunity to examine the validity of Section 2-A of the Service Tribunals Act, 1973 in Muhammad Mubeen-usSalam v. Federation of Pakistan (PLD 2006 SC 602). Under the provision of Section 2-A of the. Service Tribunals Act, 1973, the scope of definition of 'civil servant' for the purpose of Service Tribunals Act, 1973 was enlarged by extending its. Definition to the effect that the 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 was declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization was deemed to be a civil servant. In the same case after examining the judgments from, the different jurisdiction,' including of this Court, it was concluded as follows:-- "50. A plain reading of above definition indicates that this prevision has impliedly included in the definition of civil servant, such persons, who stand excluded by means of clauses (i), (ii) and (iii) of section 2(1)(b) of the CSA, 1973. It may be recalled that there are a number of persons who are serving as deputationists, contingency staff as well as workmen in connection with the affairs of the Federation of Pakistan who could not otherwise avail remedy for the redressal of their grievance before the Service, Tribunal but by enacting section 2-A in STA, '1973, persons working under any authority, Corporation, body or organization established by or under a Federal law, etc. Have been made eligible to seek remedy before the Service Tribunal, notwithstanding the fact whether they are workers, workmen, permanent or temporary, holding a post on contract, etc. Prima facie, this provision of law, i.e, Section 2-A of the STA, 1973 has not advanced the cause of employees of Corporations, etc. By providing them remedy before the Service Tribunal because initially in the case of a Corporation/body, etc: if it has statutory backing, and rules are framed thereunder, its employees other than the workers, used to invoke the jurisdiction of the High Court ,under Article 199 of the Constitution i.e, a remedy which is always considered to- be speedy, expeditious and inexpensive; whereas the employees governed by the relationship of master and servant rule used to approach the Civil Court for the redressal of their grievance while workers. And the workmen were eligible to seek remedy before the local Labour Courts, functioning under the new dispensation of Industrial Relations Ordinance, 2002, at the Divisional level with a right of appeal before the respective High Courts and appeal under Article 185(2) or a petition for leave to appeal under Article 185(3) of the Constitution before this Court, under which this Court enjoys vast jurisdiction, as compared to limited jurisdiction under Article 212(3) of the Constitution.
86. It is important to note that intention of the framer of the Constitution had never been to provide a forum of the Service Tribunal to the employees of the Government controlled Corporations, in terms of section 2-A of the STA, 1973. Had it been so, it could have incorporated the same in Article 212(1)(a) of the Constitution as provided under Article 323A of the Constitution of India, which reads as under:-- "212A. (1) Parliament may, by law, provide for the adjudication or trial by administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any Corporation owned or controlled by the Government. (Emphasis provided).
' Thus, with reference to above. Article of the Constitution of India. The argument put forward by Mr. Lftikhar Gillani, learned Sr. ASC that section 2-A creates a new and distinct class of Government servants, which is neither covered by the definition of 'civil servant' nor by the definition of 'service of Pakistan', seems to be correct. Therefore, for this reason alone section 2-A of the STA, 1973 becomes -ultra vires of the Constitution because the employees of Government controlled Corporations etc. Are not covered by the definition of 'service of Pakistan' as provided under Article-260 of the Constitution nor their cases can be taken up under Article 212(1)(a) of the Constitution, as such the Federal Service Tribunal has no jurisdiction to grant them relief in terms of Article 212(I)(a) of the Constitution because under this provision of the Constitution, administrative Tribunals are set up for the purpose of exercising jurisdiction in respect of the terms and conditions of service of those persons, who are in the service of Pakistan.. The terms and conditions of service of those employees, however, are required to be specified under Article 240 of the Constitution by or under Act of the Parliament. Thus, the conclusion would be that only those persons, who are in the service of. Pakistan, as discussed hereinabove, and if their terms and conditions are governed either by a statute or statutory rules; it terms of Article 240 of the Constitution, can seek remedy before the Service Tribunals, It can be, therefore, said in other words that as the persons, who are in service of Pakistan but whose terms and conditions of service are not governed by a statute or statutory rules, cannot invoke the jurisdiction of the Federal Service Tribunal ' Subsequent thereto, conclusion noted hereinabove was further explained in the case of Muhammad Idrees v. Agricultural Development Bank of Pakistan (PLD 2007 SC 681); operative para therefrom is also reproduced hereinbelow for convenience:-- "9. We will like to observe that concept of abatement is not capable of exact definition. It may be noted that our direction for abatement of the cases was not under Section 6 of the Service Tribunals Act.
1973. The basis of the direction was our conclusion flowing from the determination made by this Court that in cases services of an employee were not governed by statutory rules he could not invoke Section 2-A and as a corollary it follows as a matter of course that in such cases the Service Tribunal had no jurisdiction..
On the strength of above judgments it can safely be concluded that except the employees, whose services are governed by the statutory rules, others would not fall within the definition of civil servants.
8. After passing of the above judgments, another important question cropped up in respect of employees of such institutions, who fall within the definition of a 'person' performing functions in connection with affairs of the Federation as provided in Article 199(5) of the Constitution. In the case of Pakistan Telecommunication Company Ltd. v. Muhammad Zahid (2010 SCM R 253), it has been held that "the Pakistan Telecommunication Authority invested with an effective rule over the functions of the PTCL and exercisable by such Authority as envisaged by Sections 4 and 5 of the Pakistan Telecommunication (Re-organization) Act, 1996 headed by its Chairman with its constituting directors and all to be appointed by the Federal Government under Section 3 of the Act relating to the Telecommunication undisputedly is the subject which pertain to one of the important affairs of the Federation dischargeable now through the PTCL hence; such entity involved in the same exercise of the sovereign powers, essentially falls within the context of 'person' as defined in clause (5) of Article 199 of the Constitution, therefore, for the above reasons the grievance of the private respondents was amenable to the writ jurisdiction of the High Court". This view has further been re-affirmed recently in Civil Appeal No 172-K of 2009. Etc. Titled as Pakistan International Airline Corporation v: Tanweer-ur-Rehman relevant paras wherefrom are reproduced hereinbelow for convenience:
19. However, this question needs no further discussion in view of the fact that we are not of the opinion that if a corporation is discharging its functions in connection with the affairs of the Federation, the aggrieved persons can approach the High Court by invoking its Constitutional jurisdiction, as observed hereinabove. But as far as the cases of the employees, regarding their individual grievances, are concerned, they are to be decided on their own merits namely that if any adverse action has been taken by the employer in violation of the statutory rules, only then such action should be amenable to the writ jurisdiction. However, if such action has no backing of 'the statutory rules, then the principle of Master and Servant would be applicable and such employees have to seek remedy permissible before the Court of competent jurisdiction.
25. Thus, in view of discussion made hereinabove, we are persuaded to hold that although the appellant-Corporation is performing functions in connection with the affairs of the Federation but since the services of the respondents-employees are governed by the contract executed between both the parties, . As is evident from the facts narrated hereinabove, and not by the statutory rules framed under Section 30 of the Act, 1956 with the prior approval of the, Federal Government, therefore, the will he governed by the principle of Master and Servant.-
9. The principle perceived from the above judgments is that the. Employees of those - organizations,: which are discharging functions in connection with the affairs of Federation, can approach the learned High Court under Article 199 of the Constitution but subject to the condition if their services are protected under the statutory rules.
10. Now coming towards the definition of a person in `corporation service' or a person in 'government service', as defined in Section 2(c) and (d) of the RSO, 2000. Such persons can be subjected to the RSO, 2000 but keeping in view the definition of the 'civil servant' under the Civil Servants Act, 1973 as well as the dictum laid down in Muhammad Mubeen-us-Salam's case (ibid), only those employees can approach the Service Tribunal, who fall within the definition of 'civil servant% holding posts in connection with the affairs of the Federation. As far as the remaining categories of employees, including the contractual ones, are concerned, if they are aggrieved of any adverse action, the Service Tribunal is not the appropriate forum for redressal of their grievance,- in view of above conclusion, because it is a forum constituted under Article . 212 of the Constitution for the redressal of grievance of those employees, whose terms and conditions are settled under Article 212(1)(a) of the' Constitution. Similarly, any action taken against such persons shall not be questionable before the Service Tribunal as it is not meant to provide a forum to the employees, who services are governed by non statutory rules or who do not fall within the definition of a person in 'government service' as defined in Section 2(d) of the RSO, 2000. Admittedly, in the present case the employees of AIOU, SME Bank and Pakistan Steel Mill, who approached the Service Tribunal for redressal of their grievance, were not enjoying the protection of statutory rules, therefore, the Service Tribunal had no jurisdiction to adjudicate upon such matters and they will be governed by the principle of Master and Servant.
' In view of above conclusion, Civil Petitions N.Os. 2191/ 2005, 1863/2009, 62-64/2010 are converted into appeal and allowed; resultantly, the judgments impugned therein are set aside. Conversely, Civil Petitions Nos. 804-K/2009, 1247/ 2009, 12-K & 13-K/2010 are dismissed with no order as to costs.