' TASSADUQ HUSSAIN JILLANI, J.---Through this appeal by leave of the court Pakistan Red Crescent Society, Provincial Branch has challenged the judgment dated 30-12-2009 vide which respondent Zia Ullah Khan Niazi's appeal, who was at the relevant time serving as Assistant Secretary of the appellant Society was allowed and the order passed by the competent authority imposing major penalty of removal from service was set aside and he was reinstated and awarded minor penalty of censure.
2. Learned counsel for the appellant in support of this appeal submitted that the learned Service Tribunal did not have jurisdiction to proceed with the appeal as the appellant was not performing functions in connection with the Federation or Province and therefore, respondent was not a civil servant; that this Court in several judgments have laid down that employees of the appellant Red Crescent Society are not civil servants and therefore, the Service Tribunal could not have entertained the appeal not to speak of accepting the same. In support of the submissions made, learned counsel relied on Ziaullah Khan Niazi v. Chairman Pakistan Red Crescent Society (2004 SCM R 189 at page 191), Pakistan Red Crescent Society v. Nazir Gillani (PLD 2005 SC 806 at page 814), Sajjad Hussain Bukhari v. Treasurer of Charitable Endowment for Pakistan (2005 SCM R 65), Muhammad Mubeen-usSalam v. Federation of Pakistan (PLD 2006 SC 602), Executive Council Allama Iqbal Open University v. M. Tufail Hashmi (2010 SCM R 1484) and Chairman State Life Insurance Corporation v. Hamayun Irfan (2010 SCM R 1495 at page 1503).
3. Learned counsel for the respondent, on the other hand, defended the impugned judgment by submitting that the question of jurisdiction was specifically adverted to by the learned Service Tribunal in para 12 of the impugned judgment and the Tribunal proceeded to decide the appeal as it found that this Court had remanded the case to the Tribunal for a fresh decision and that the case had to be decided on merit alone. Referring to the judgment of this Court in the earlier round of litigation, learned counsel added that Civil Appeals Nos. 1555, 1558, 1559, 1560, 1564, 1990 and 2734 to 2736 of 2006 were allowed by this Court on 16-10-2008 and the cases were remanded to the Federal Service Tribunal for a decision afresh, which order by implication had decided the question of jurisdiction and this Court may not like to review the said aspect. He further contended that the appellant Organization is a corporation and respondent official is a "person in corporation service" within the meaning of section 2(c) of the Removal from Service (Special Powers)
Ordinance, 2000, section 10 of which grants right of appeal to a person aggrieved of an order passed by such a corporation.
4. Having heard learned counsel for the parties at some length, we are mindful of the fact that the impugned judgment was passed by the learned Federal Service Tribunal on a remand order passed by this Court in Civil Appeals Nos. 1555, 1558, 1559, 1560, 1564, 1990 and 2734 to 2736 of 2006, the operative part of which reads as follows:- ' In this view of the matter, these appeals are allowed. Impugned judgments passed by the Federal Service Tribunal, Islamabad are set aside. Consequently, the appeals before the Service Tribunal, in these cases shall be deemed to be pending for a decision afresh, in accordance with law. No order as to costs."
5. The tenor of the afore-referred order passed by this Court indicates that the Tribunal had to decide the appeal afresh and "in accordance with law". The law includes the question of jurisdiction and the court ought to have decided the same in the first instance rather than relying on merely the remand order of this Court to assume jurisdiction. While adverting to the question of jurisdiction, we find that in Ziaullah Khan Niazi v. Chairman Pakistan Red Crescent Society (2004 SCM R 189) (the case of respondent himself) the court categorically observed about the appellant Society as follows:-- "We have heard the learned counsel for the parties at some length. We find that the respondent- Society was constituted by the provisions of section 2 of. The Pakistan Red Crescent Society Act (XV of 1920) (hereinafter referred to as the Act). Its operational area covers the whole of Pakistan. The President of Islamic Republic of Pakistan is the President of the Society as provided by section 3 of the Act. By section 4 of the Act it is a body corporate having perpetual succession and a common seal with power to hold and acquire property, movable and immovable and may sue or be sued by the name of the Society. As enumerated in the General Principles of Society, its object and principal aims include the prevention and alleviation of the suffering with complete impartiality both at national and international level and to render voluntary aid to the sick and wounded of the armed forces in times of war in accordance with spirit and conditions of the Geneva Conference and the Treaties of Red Cross to which Pakistan has given its adhesion. The Act, being an existing law was amended by the Central Legislature/ Parliament from time to time. The Society cannot be treated as a person performing functions in connection with the affairs of the province. Therefore, the employees of the Society cannot be treated as civil servants of the. Province of Punjab, by any stretch of imagination. They cannot invoke the jurisdiction of the Punjab Service Tribunal merely on the ground that they are employed in the provincial branch of the Society. The impugned judgment of the Tribunal suffers from defect of jurisdiction."
6. Adverting to the forum of relief, the court in para 8 of the said judgment held as follows:-- "However, the petitioner may, if so advised, move the appropriate forum through appropriate proceedings, in accordance with law, for the redress. Of his grievance. The forum concerned shall give due consideration for condonation of delay occurred in pursuing, by the petitioner, his remedies before the Tribunal and this Court."
7. In Pakistan Red Crescent Society v. Nazir Gillani (PLD 2005 SC 806 at page 814) this Court reiterated the view taken in the afore-referred judgment and again the petition was that of the appellant Society, which was allowed and it was candidly observed as follows:-- "A careful perusal of the above mentioned observations would reveal that it has been decided in a categoric manner that the Pakistan Red Crescent Society cannot be treated as a person performing function in connection with the affairs of the Federation or Province. We are conscious of the fact that the President of Pakistan is the President of the Pakistan Red Crescent Society and Ministry Health, Government of Pakistan, is the ex officio Vice-President but it would have no substantial bearing on the legal character of the Society because no budget allocation has been made by the Federal Government and no share capital is involved. The Pakistan Red Crescent Society generates its income from the donation made by public and allocation from International Agencies having a charitable character. Occasionally the Pakistan Red Crescent Society may get some "grant" and "aid" from Government but it cannot be equated to that of "regular budget allocation" and thus its independent entity remains unaffected. Besides that the Managing Body patrons are required to contribute Rs,10,000, Life Time Members Rs,500 and the Annual Members and Associate Members contribute Rs,12 and Rs,2 per annum respectively. The Society may request for foreign assistance and donation usually made by various Governments at the time of emergency. Besides that to raise funds, the Society holds Red Cross weeks, raffles Meena Bazzar and general appeals soliciting public donations. It is pertinent to point out that under section 5 of the Act the management and control of the affairs of the Society exclusively vests in the Managing Body. Basically the Society has its genesis in Geneva Convention which was initially held on October 26, 1863 which was followed by Hague Convention and it was universally agreed that Red Cross/Red Crescent Societies are going to be absolutely non-political and they would have access to take care of the sick and wounded without any hindrance. In the light of what has been mentioned hereinabove, the only inescapable conclusion would be that Federal or Provincial Governments have nothing to do with the affairs of the Society ad vice-versa."
8. Again in Sajjad Hussain Bukhari v. Treasurer of Charitable Endowment for Pakistan (2005 SCM R 65) a similar view was taken and it was held that charitable organizations are not governmentally organizations performing any functions of the Federation or of the Provincial Government.
9. In Muhammad Mubeen us Salam v. Federation of Pakistan (PLD 2006 SC 602) it was held that organizations which do not have statutory rules were not amenable to the jurisdiction of the Federal Service Tribunal.
10. The afore-referred view was again reiterated in Executive Council Allama Iqbal Open University v. M. Tufail Hashmi (2010 SCM R 1484) wherein at page 1493 it was observed that "on the strength of the above judgments it can safely be concluded that except the employees, whose services are governed by statutory rules, others would not fall within the definition of civil servants."
11. In Chairman, State Life Insurance Corporation v. Hamayun Irfan and others (2010 SCM R 1495) the earlier view taken in the judgment to which reference has been made above was reiterated and the court observed as follows:-- "All the aforesaid ingredients are fulfilled and complied with by the competent authority, therefore, the regulations in question have status of statutory regulations. The judgments cited by the learned counsel of the appellants are distinguished on facts and law in the cited case Pakistan Red Crescent Society and another v. Syed Nazir Gillani (PLD 2005 SC 806), section 5 of the Pakistan Red Crescent Society Act (XV of 1920) is reproduced hereunder to find out the status of the rules framed therein:--- "5. Power to make Rules. The Managing Body shall within 6 months of its constitution make rules for the management, control and procedure of the Society. The rules may provide among other matters, for the following namely "
12. For what has been discussed above, we are of the view that the learned Tribunal passed the impugned judgment merely because this court had remanded the case to it to be decided in accordance with law and misdirected itself in deciding the question of jurisdiction. Respondent was not civil servant who could agitate his grievance by way of appeal before the Service Tribunal.
In the afore-referred circumstances, this appeal is allowed and the impugned judgment is set aside with no order as to costs.