Sayed Mehar Hussain Shah, Member.--As common question of law is involved in the above appeals, as such, said appeals shall be disposed of by this single/ common order with leading Appeal No, 33(K)CE/06 filed by appellant Syed Agha Zia-ul-Usman
2. When the appeal was fixed before the Tribunal for preliminary hearing on 08.08.2011 and 09.08.2011, learned Counsel for the appellant was asked to satisfy the Tribunal on the point of maintainability of the appeal as to whether the appellant is considered to be "Civil Servant" or not, in view of the latest judgment dated 18.06.2011 passed by Full Bench of this Tribunal in Appeal No, 65(L)CS/2005 (Zulfiqar Ali & others vs. National Bank of Pakistan).
3. Mr. Latifur Rehman Survery, Advocate for the appellant and other learned Counsel for the appellant were heard and all the above appeals were reserved for order. Learned Counsel for the appellant while arguing the matter relied on PLD 1964 SC 266. Further he relied on Section 6 of General Clauses Act and contended that even after Section 2-A has been repealed, the cases of KPT shall continue before FST. Mr. Muhammad Siddique Ghouri, Advocate for the appellants in support of his contentions has relied on NLR 2003 Labour Page 73. Mr. Abrar Bukhari while arguing the matter has relied on 2009 TD Labour 42. He further contended that as per Section 79(b) of Karachi Port Trust, all the employees of KPT are considered to be civil servants. He also relied on 1988 SCM R 810 KPT Vs. Zafar Zaid Ahmed's case wherein it has been held that FST has the exclusive jurisdiction to entertain the appeals. He also contended that RSO cases would fall within the jurisdiction of F.S.T, Ch. M. Latif Saghar, Advocate also supports the arguments of Mr. Survery and added that this Tribunal has jurisdiction and appeal is maintainable before this Tribunal. Petitioner/ Appellant Mrs. Yasmin contends that she is only asking for implementation of the FST's Judgment.
Mr. Liaquat Hussain Counsel for the appellant adopts the arguments of Mr. Latifur Rehman Survery and Ch. Muhammad Latif Saghar, Advocate. Mr. Mansoorul Haq Solangi, Advocate for the appellant in Appeal No, 290(K)CE/05, has argued the appeal and in support of his arguments, placed reliance on PLD 1973 SC 236, PLD 1990 SC 612, PLD 2006 SC 602, SBLR 2010 SC 303 and SBLR 2010 SC 322.
4. M/s. Javed Asghar Awan and Shoukat Ali Choudhry, learned Counsel for the respondents on the other hand while arguing on behalf of the respondents relied on Full Bench. Order of FST in Appeal No, 65(L)CS/2005 (Zulfiqar Ali & others vs. National Bank of Pakistan) pointing out para-14 therein.
He further contended that as per KPT Rules of 2011, clause (c) (2nd page) of which clearly speaks that "employees/Officers of KPT are not "Civil Servants". He contended that as per Tanveer-ur- Rehman's case matters could only be litigated before the Hon'ble High Court as well as other relevant forums. He also contended that there were about 19 appeals withdrawn by the appellants which may be taken into consideration. He further states that in some of the appeals, prayer is regarding the settlement of dues and for the settlement of dues, as per recent I.R.O.2010, a worker may bring his grievance to the Labour Court and not FST. The Federal Service Tribunal has no jurisdiction as per Section 41 of Sindh Service Industrial Act, 2010. He also relied on Section 14 of the Sindh Service Industrial Act, 2010. As per Section 62 of I.R.O. the appellants can litigate before the Hon'ble High Court and other labour forums and not before FST. He while concluding his arguments contended that this Tribunal has no jurisdiction to entertain the above appeals as the appellant(s) is not "Civil Servant" and appeals are liable to be abated in view of the judgment passed by Full Bench of this Tribunal, supra. Ms. Riffat Mughal, Mr. Naseer Ahmed, Mr. Fahim Iqbal and Muhammad Safdar, Advocate for the respondents in other appeals adopted the arguments of M/s. Javed Asghar Awan and Shoukat Ali Choudhry.
5. We have considered the arguments advanced on behalf of both the parties and perused the material placed on record of each appeal.
6. The point in issue is regarding the maintainability of the instant appeal and that of the appellant being "Civil Servant". It is an admitted fact that employees of Corporations and other departments i,e, autonomous and semi-autonomous bodies started approaching this Tribunal after the insertion of Section 2A in the Service Tribunals Act, 1973 on 10.06.1997. It is not denied that such decision had retrospective application in view of the judgment reported in 1999 SCM R 197. Thus the status of "Civil Servants" was deemed to have been given to the said employees by way of amendment and not otherwise. It would be pertinent to mention here that the Parliament amended the Service Tribunals Act, 1973 by repealing the earlier amendment, but it went much ahead and omitted the section, as if it had never existed. When the status of the employees is measured on the scale of section-2(1)(b) of the Civil Servants Act, 1973, we find that they do not measure up to the definition of a "Civil Servant" contained therein. Obviously, the employees of the respondent-KPT are governed by their own set of service regulations. They are neither members of an All Pakistan Service nor of a civil service of the Federation nor do they fulfill the requirement of holding a civil post in connection with the affairs of the Federation. In this connection, we like to reproduce hereunder the definition of "Civil Servant" given in the Civil Servants Act, 1973:-- "Civil Servant" means a person who is a member of an All Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but dots not include--
(i) .....................
(ii) ...................
(iii) .................
Definition of "Civil Servant" given in the Service Tribunals Act, 1973 is also relevant, which is reproduced hereunder:-- "[(a) "Civil Servant" means a person who is, or has been a civil servant within the meaning of the Civil-Servants Act, 1973 (LXXI of 1973) [and shall include a person to be a civil servant under Section 2A; and] "
7. Further a Full Bench of this Tribunal at Islamabad in its judgment dated 18.06.2011 in Appeal No, 65(L)CS/2005 has also dilated upon the definition of "Civil Servant" given in Civil Servants Act, 1973 as well as Service Tribunals Act, 1973. We like to reproduce hereunder relevant paras-17, 21 & 22 of the said judgment:-- "17. From the above resume it is established that a civil servant means a person who is a member of an All-Pakistan Service or of a civil service of the Federation. In the present case the appellants were not civil servants nor they were members of the civil service of the Federation since they were not performing any functions of the Federation. Article 240 of the Constitution provides the mode of appointment to the Service of Pakistan. It does not relate to any other service like banking service, service in any corporation or statutory body set up by the government. Similarly Article 260 of the Constitution also elaborates the term service of Pakistan. It says that service of Pakistan means any service in connection with the affairs of the Federation and any other service declared to be service of Pakistan by any law. Only rules were framed governing their service. It was not material that they were statutory or non-statutory. The law under which NBP was established did not state specifically that its employees were civil servants as was done in the cases of WAPDA employees. Reference has been given above.
21. The appellants have submitted that Service Tribunal had given them a forum for the redressal of their grievances and this forum is being denied to them resulting into grave injustice with them.
This is a Tribunal of limited jurisdiction. It has to remain within the parameters of law under which it is established. If the appellants have any grievance that they and their contemporaries in other autonomous departments do not have forum for settlement of their complaints in matters relating to terms and conditions of their service, they may approach the appropriate authorities for establishment of a forum to look into their grievances and their resolution. But as far as Service Tribunal is concerned its scope is restricted to civil servants only and to such employees who are specifically declared to civil servants by a special legislation.
22. This argument of the appellant that they are holders of public office, as such, they are civil servants has also no force. Whereas a civil servant may hold a public office but every person holder a. public office is not a civil servant. Holders of public office/ service may even be elected whereas a civil servant cannot be elected under our laws. The National. Accountability Ordinance, 1999 defines holder of a public office. Similarly Pakistan Penal Code also defines only public servants. Its Chapter IX relates to offences relating to public servants. An employee of an autonomous body may thus be a public servant but as observed above every public servant is not a civil servant. The definition of civil servant has been given in the Civil Servants Act, 1973 and Articles 240 and 260 of the Constitution. We cannot deviate from this definition. Thus any person employed in any corporation or banking institution, created or established under a statute, shall not be treated a civil servant unless in clear terms he is declared so notwithstanding that the causes of action had accrued in their favour before the omission of Section 2-A from the main Act i,e, Service Tribunals Act, 1973".
Thus any person employed in any corporation, autonomous, semi-autonomous body or banking institution, created or established under a statute, shall not be treated a "Civil Servant" unless in clear terms he is declared so notwithstanding that the causes of action had accrued in their favour before the omission of Section 2-A from the main Act i,e, Service .Tribunals Act, 1973. Whether the rules are statutory, it has no effect on the status of the appellant being "Civil Servant". In Civil Appeal No, 1150 of 2009 decided on 29.10.2010, it was held by the Hon'ble Supreme Court that the remedy of employees of a corporation, who were otherwise not "Civil Servants", but were governed by statutory rules, was by way of Constitutional Petition and not through appeal before the Service Tribunal.
8. In view of what has been discussed above, it is held that as the appellant does not fall within the definition of "Civil Servant", therefore, this Tribunal has no jurisdiction to entertain the above appeal and, therefore, the are disposed of for want of jurisdiction. The appellant, if so advised, may seek remedy in the appropriate forum. No order as to costs.
9. This order shall, mutatis-mutandis, apply to remaining appeals listed at Serial Nos, 2 to 65 above.
10. Misc. Petitions at Serial Nos, 66 & 67 above for implementation of the judgment of this Tribunal are also disposed of for want of jurisdiction. The Petitioners, if so advised, may seek remedy in the appropriate forum.
11. Parties be informed accordingly.