The present CM application has been filed by the petitioner with the prayer that order dated 14.12.2011, whereby, the petitioner's appeal was dismissed on merits, passed by this Tribunal in Appeal No, 311/2010 titled 'Muhammad Nawaz Vs. Additional IG of Police, PHP, Lahore & others" may be recalled on the ground that the Tribunal can not function because the Tenure of the Chairman of Punjab Service Tribunal has already expired on 10.12.2012 and the said post is still lying vacant.
2. This C.M. application was fixed for hearing on 20.12.2012, but the counsel for the petitioner requested for adjournment in order to prepare arguments and accordingly, proceedings were adjourned for 21.12.2012, The counsel for the appellant again did not appear on the said date and the proxy counsel requested for another adjournment as the learned counsel for the petitioner has gone to Faisalabad. Therefore, in the interest of justice, proceedings were adjourned for 22.12.2012.
Once again, the counsel for the appellant did not appear on this date, however, on the request of proxy counsel, last opportunity was given to the counsel for the petitioner to argue the case on the next date on hearing (23.12.2011). The Registrar of the Punjab Service Tribunal was directed to be present with record. District Attorney, Mr. Robin Inayat Bhatti was also directed to give his point of view on this CM.
3. The learned counsel for the petitioner argued that in the absence of Chairman, the Tribunal can not function. In support of his contention he referred to Section 3(3) of Punjab Service Tribunal Act, 1974, which reads as under:--
(3) A Tribunal shall consist of -- (a)A chairman, being a person who has been or is qualified to be judge of a High Court; and (b)two members each of whom is a person who possesses such qualification as may prescribed by rules.
He stated that since the post of Chairman is still lying vacant, hence, the Tribunal is incomplete and cannot be functional.
4. The Registrar Mr. Shabbir Ahmad of this Tribunal placed on record a copy of order No, PST/ Reg/ Admin/4158/2011 dated 10.12.2011 in respect of Winter Vacation w,e,f, 24.12.2011 to 31.12.2012 and contended that in the absence of Chairman, the PST remains nonfunctional. The Registrar also produced a Full Court Judgment of the Honourable Supreme Court of Pakistan reported in PLD 1978
(SC) 40 titled Zulfiqar Ali Bhtto Vs. The State.
5. The counsel for the petitioner further stated that as per past practice, in the absence of Chairman, the Tribunal used to remain nonfunctional. However, the learned counsel for the petitioner was reminded that during 2008, when the post of the Chairman, PST was lying vacant, all the Learned Members of the Punjab Service Tribunal regularly used to attend their Court work. The counsel for the petitioner remained silent on this account. The learned counsel for the petitioner was also reminded that he is regularly attending and arguing his cases in the Court, and even three cases were also accepted on merit, why he did not raise objection that the Court is non- functional in the absence, of the Chairman, PST. The counsel for the petitioned could not satisfy the Court on this account.
6. The District Attorney placed on record a citation of Honourable Supreme Court of Pakistan reported as 2000 PSC 1107 titled as "Khalid Siddiqui Vs. Secretary Excise & Taxation Department, Gout. of Punjab, Lahore" on the Constitution of PST, which is quorum oriented.
7. I have considered the arguments of the learned District Attorney and the learned counsel for the petitioner and perused the record available.
8. The attention of the counsel representing the petitioner was invited to the judgment of Full Court of Honourable Supreme Court of Pakistan dated 08.12.1977, reported as PLD 1978 (SC) 40 titled as 'Mr. Zulfiqar Ali Bhutto Vs. The State". The Counsel for the petitioner vehemently stated that said judgment is an extra-judicial order, which is not quoted in any Court of law. The counsel was repeatedly asked to produce any judgment or Court order in support of his contention, but he could not produce any documentary evidence in support of his contention. I am of the view that any decision of the Honourable Supreme Court of Pakistan shall be binding on all other Courts in Pakistan. Therefore, Judgment of the Apex Court is binding on each & every organ of the State by virtue of Articles 189 & 190 of the Constitution of Pakistan, 1973, unless there is "obiter-dicta", which has not been given in this Judgment referred above. When, it was asked to the counsel for the petitioner to quote a single. judgment of the Apex Court that due to temporary vacation of the office of the Chairman, the Tribunal becomes non-functional, the counsel for the petitioner could not refer any decision or judgment of the Apex Court. I am also surprised under what circumstances the learned counsel for the petitioner declared the Full Bench Judgment of the Honourable Apex Court as "Extra-Judicial" and is not quoted in any Court. Superior Courts derive their strength from the supreme law (Constitution), whereas, the PST obtains strength from the subordinate law (Act). Therefore, it is binding by all means on the Punjab Service Tribunal to follow the decision of the Apex Court in letter &
9. Perusal of the citation of the Honourable Supreme Court of Pakistan reported as 2000 PSC 1107 titled as "Khalid Siddique Vs. Secretary Excise & Taxation Department, Govt. of Punjab, Lahore, on the validity of bench reveals/spells out about the Bench Of the Service Tribunal comprising Chairman and one Member heard the appeal, but before order could be passed, one Member of the Bench retired and the order was passed by the Chairman of the Bench long after such retirement of the Member. On the retirement of one of the two members of the Bench the Tribunal so constituted would cease to exist. When one of the Member retired and the other member announced judgment after such retirement of member, the judgment pronounced has no legal effect.
10.The perusal of the order No, PST/Reg/Admin/4158/2011 dated 10.12.2011 in respect of Winter Vacation the learned Ex-Chairman has clearly written that Learned Member-II, PST shall remain available during winter vacations for taking up matters of urgent nature. If, for the sake of arguments, the Tribunal can not function in the absence of Chairman, then the learned Ex- Chairman should have not deputed the learned Member-II, PST for taking up the matters of urgent nature. It is, therefore, easily concluded that the PST is functioning even in the absence of the Chairman, PST.
11.The perusal of Section 3(3) of the Punjab Service Tribunal Act, 1974, it conveys the Constitution of the PST as under:-- A Tribunal shall consist of:-- (a)A chairman, being a person who has been or is qualified to be judge of a High Court; and (b)two members each of whom is a person who possesses such qualification as may prescribed by rules.
It clearly implies that after the creation of the said posts, the Punjab Service Tribunal shall come into existence, and would start functioning after these appointments are made, the Tribunal's functioning is not c affected due to temporary vacancy. Therefore, the composition of the PST simultaneously do not convey the meaning of decomposition of the PST. Moreover, it has not been mentioned in the entire PST Act, 1974 specifically about the non-functionality of the PST. Therefore, the apprehension expressed by the counsel for the petitioner about the Full Bench Judgment dated 08.12.1977 in which question of law/principle of law has already been decided by the Honourable Apex Court has no legal backing and resultantly remark given about the non-functional of the PST after the exit of the Chairman, PST is misplaced. Moreover, there is no exclusive notification that PST shall remain non-functional in the absence of the Chairman. Therefore, the Tribunal, which is not "Quoram" oriented will remain "Functional" even in the absence of the Chairman, PST.
12.In view of the above, mentioned discussion, and perusal of the judgment of the Honourable Supreme Court of Pakistan dated 8th December, 1977, the epitome of the Judgment is that there is a distinction between a vacancy in any office, and its abolition. The existence of a vacancy implies that the office exists. In order to bring. Punjab Service Tribunal into existence, there should be created the office of the Chairman of the PST and the prescribed number of Members. If these offices have been created, then the Punjab Service Tribunal have properly come into existence and would be able to start functioning as soon as appointments to these offices or to some of them have been made. Any temporary vacancy in any of these office would not affect the Constitution and jurisdiction on the Punjab Service Tribunal. The Punjab Service Tribunal would be only affected, if the office of the Chairman of the PST is abolished. Therefore,' the Constitution and continuity of the PST is not affected by a temporary vacancy in the office of the Chairman, PST or any of Members from among the prescribed strength of the PST. It would be affected only if the office of the Chairman is abolished.
13.In view of the above discussion, this Tribunal dismiss the CM of Muhammad Nawaz, petitioner.
As a consequence order passed by this Tribunal of dismissing the appellant's titled appeal is declared as valid/lawful.