The appellant who was a servant of Murree Improvement Trust, Murree was proceeded against departmentally under the Punjab Removal from Service (Special Powers) Ordinance, 2000 and was ultimately punished vide order dated 3.12.2003 by way of imposing penalty of dismissal from service.
2. Admittedly Murree Improvement Trust was constituted under Section 3 of the Improvement Act, 1922. Section 3 of the Said Act provides that Improvement Trust so constituted shall be a corporate body and have perpetual succession and a common seal, and shall by the said name sue and be sued. In view of the above noted provision of Improvement Act, Murree Improvement Trust is a body corporate and its employees are not civil servants.
3. During the pendency of this appeal, the hon'ble Supreme Court of Pakistan in the case of Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another Vs M.
Tufail Hashmi (2010 SCM R 1484) held that the employees of Corporate Bodies/Corporation being not civil servants could not approach before the Service Tribunal constituted pursuant to the provision of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 for the redressal of their grievance in disciplinary matters despite such employees having been allowed right of appeal before this Tribunal under the Removal from Service (Special Powers) Ordinance, 2000 (Federal).
4. The controversy in this appeal revolves around the interpretation, applicability/non-applicability of the law declared by the apex Court in the case of Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another Vs M. Tufail Hashmi (2010 SCM R 1484). For the facility and ready reference following relevant Paras from the said judgment are reproduced below:-- "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-us-Salam 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 provision 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 Relation 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 pertinent 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 323 of the Constitution of India, which reads as under:-- 323A (1) Parliament may, by law, provide for the a judication 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. Iftikhar 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(1)(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, in 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 hereinabove for convenience:-- "9We 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 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."
"10Now 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 the 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 the above conclusion, Civil Petitions Nos.2191 of 2005, 1863 of 2009, 62-64 of 2010 are converted into appeal and allowed; resultantly, the judgments impugned therein are set aside.
Conversely, Civil Petitions Nos.804-K of 2009, 1247 of 2009, 12-K and 13-K/2010 are dismissed with no order as to costs."
5. When confronted learned Counsel for the appellant argued that though the appellant was not a civil servant within the meaning of Section 2(1)(b) of Punjab Civil Servants Act, 1974 or Section 2(1)
(b) of Punjab Service Tribunals Act, 1974 who is the employee of statutory body yet the fact remains that his services were governed by statutory rules framed under the relevant laws, therefore, he has a right of approaching this Tribunal in the light of conclusion arrived at by the apex Court in Para-10 of the above noted judgment as reproduced above and the above noted judgment of the apex Court neither exclude the jurisdiction of this Tribunal nor this Tribunal is estopped from deciding this appeal. In support of his contention, learned Counsel for the appellant also placed reliance on the case or Muhammad Mubeen-usSalam and others Vs Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 SC 602) and Muhammad Idrees Vs. Agricultural Development Bank of Pakistan and others (PLD 2007 SC 681).
6. On the other hand, learned Deputy District Attorney has opposed this appeal by arguing that in view of declaration by the apex Court in AIOU case noted above, only civil servant can approach this Tribunal and the employees of Corporate Bodies whether their services are governed by statutory rules or not being not civil servants cannot seek redressal of their grievance from this Tribunal which is the creation of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 conferring exclusive jurisdiction on the Service Tribunal 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, therefore, the appellant being the employee of Corporate Body despite availability of right of appeal either under the Punjab Removal from Service (Special Powers) Ordinance, 2000 or Punjab Employees Efficiency, Discipline and Accountability Act, 2006 cannot file this appeal before this Tribunal, hence this appeal be dismissed for want of jurisdiction in the light of above noted judgment, relevant law as well as judgments noted above of the apex Court in AIOU case.
7. After considering the arguments and perusing the relevant law and the judgments referred to above, this Tribunal has come to the following conclusions:--
(i) Admittedly appellant is not a civil servant but is the employee of Corporation/Corporate Body;
(ii) Though the services of appellant are governed by statutory rules promulgated by the Governor of Punjab in exercise of the powers conferred on him under the relevant law yet the question is where rules of service of the employees of Corporation/Corproate Bodies are governed by statutory rules whether the same bring such employees within the definition of persons in the service of Pakistan as contemplated under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 when admittedly the employees of Statutory Bodies are not included in said Article.
In this respect, one has to look into the judgment of apex Court in Muhammad Mubeen-us-Salam's case (PLD 2006 SC 602). Relevant Portion in Para-86 of the said judgment as reproduced above is very material. Underlines of the said Para require that the terms and conditions of only such employees of Corporate Bodies or Corporation shall be considered as statutory which are specified under Article 240 of the Constitution of Islamic Republic of Pakistan, 1973 or under Act of the Parliament or by statutory rules in terms of Article 240 of the Constitution of Islamic Republic of Pakistan, 1973 whereas in the present case the terms and conditions of appellant was governed by the subordinate legislation through rules, therefore, it can safely be concluded that though the terms and conditions of service of appellant were governed by the rules framed by the Governor but these rules cannot be considered as statutory rules in terms of Article 240 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, they cannot seek remedy before the Service Tribunal.
(iii)Another important point is that the apex Court in both the judgments i.e. Muhammad Mubeen- us-Salam's case and AIOU case accepted the principle that as the employees of statutory bodies or corporation were not included within the meaning of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 as against the provisions of Article 323-A of the Indian Constitution whereby the employees of any corporation owned or controlled by the government were included alongwith the employees of State or Union for the purpose of seeking remedy through Administrative Tribunals which clearly indicates that the employees of Statutory body/Corporation cannot approach this Tribunal constituted under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 for the redressal of their grievance whether relating to the determination of terms and conditions of their service or disciplinary matters irrespective of the fact that their services were governed by Statute or not otherwise the apex Court would not have referred to the provision of Article 323-A of the Indian Constitution for excluding the employees of Corporation or Corporate Bodies from the ambit of Service Tribunal constituted under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
(iv)So far as the view of hon'ble Supreme Court of Pakistan in the above noted judgments that employees of Corporation or Corporate Bodies whose services were governed by the Statutes or statutory rules could approach the Service Tribunal is concerned, same be read with reference to the provisions as contained in Section 2-a of the Federal Civil Servants Act whereby the employees of Statutory Bodies or Corporation owned or controlled by the Federal Government were treated as civil servant by deeming clause whereas neither any similar amendment was ever made in the Punjab Civil Servants Act nor such type of employees were included in the definition of civil servant under Section 2(1)(b) of the Punjab Civil Servants Act, therefore, this Tribunal cannot agree with the contention of learned Counsel for the appellant that as the services of appellant were governed by the statutory rules, he despite being employee of Corporation/Corporate Body could approach this Tribunal for the redressal of his grievance either under the Punjab Removal from Service (Special Powers) Ordinance, 2000 or Punjab Employees Efficiency, Discipline and Accountability Act, 2006.
8. In the light of above discussion, this Tribunal feels that even if the services of appellant are deemed to be governed by some statutory rules, he being employee of Corporation/Corporate Body and this Tribunal having been created under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 which confer exclusive jurisdiction on this Tribunal 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 and not of the employees of Corporation or Corporate Body like of Article 323- A of Indian Constitution, therefore, neither jurisdiction of this Tribunal could be extended for redressal of grievance to the employees of Corporation, Corporate Body, Autonomous Body, Authority, Statutory Body or any other organization or Institution set up, established, owned or controlled by the Provincial Government etc as defined either in Punjab Removal from Service (Special Powers) Ordinance, 2000 or Punjab Employees Efficiency, Discipline and Accountability Act, 2006 nor this Tribunal could come to the rescue of such like employees by entertaining this appeal under Punjab Removal from Service (Special Powers) Ordinance, 2000 or Punjab Employees Efficiency, Discipline and Accountability Act, 2006 which is accordingly dismissed for lack of jurisdiction.
9. Before parting with this judgment, I would like to request worthy Chief Minister of Punjab to come to the . rescue of those employees like the present one who despite being in corporation service or the body corporate constituted under the provincial law but having no legal protection for the redressal of their grievance after the above noted judgment of the apex Court in Allama Iqbal Open University Islamabad Case, therefore taking immediate step to fill the vacuum to establish new Tribunal exclusively meant for such employees or provide forum of appeal to such employees before Punjab Labour Appellate Tribunal already constituted in the Punjab under the Industrial Relations Ordinance/Act, 2010 by appropriately amending through Ordinance the provisions of Section 19 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 relating to institution of appeal by employees or persons in the service of corporation or corporate body instead of this Tribunal constituted under the Punjab Service Tribunals Act, 1974. Such change is only possible by the personal attention of the worthy Chief Minister, Punjab who is already out to redress the grievance of depressed persons and being exploited by the vested interest, especially the Heads of these corporations or corporate bodies. The immediate step, if taken by the worthy Chief Minister in this respect would also promote the image of present Government among the masses. The Registrar of this Tribunal shall therefore ensure that copy of this judgment is sent to the worthy Chief Minister, Punjab for his personal consideration. Similarly copy of this judgment be also sent to the Secretary to Government of Punjab, Law & Parliamentary Affairs Department for proposing necessary legislative measures.