CH. MUHAMMAD IBRAHIM ZIA, C.J.---Through the present appeal by leave of the Court the legality and correctness of the judgment of the High Court has been called in question whereby while accepting the writ petition filed by respondent No,1 herein, setting-aside the judgments of the Labour Court dated 28.3.2002 and the Labour Appellate Tribunal dated 20.3.2006, the case has been remanded for decision afresh after recording evidence of the parties.
2. The relevant facts necessary for disposal of this appeal as depicted from record are that: respondent No,1 was inducted into service as an officer grade-2 in 1990 in the Industrial Development Bank Limited (IDBL). He was transferred to IDBL Branch Allama Iqbal Road at Mirpur.
Thereafter, he was transferred to another Branch at Mirpur but again transferred to the Branch Allama Iqbal Road Mirpur. From May, 1997 to July, 1998 the respondent remained working at Mirpur.
After passage of more than one year, the Senior Vice President, respondent No,4 herein suspended the respondent No,1 from service vide order No,HR&ED/HD/Staff/4504/99 dated 10.9.1999. He was charge sheeted on 19.10.1999 on the allegation of involvement in the fictitious transactions levelled by the manager of the time while placing second supervision signatures on the cheques.
Respondent No,1 refuted the allegations levelled in the charge sheet, consequently a committee was constituted vide order dated 27.11.1999 to probe into the matter. Ultimately, after necessary inquiry proceedings, the respondent was dismissed from service vide order dated 30.3.2000. On 5.4.2000, the respondent filed an appeal/review which was rejected vide order dated 22.6.2000. An application under section 30 of the Industrial Relations Ordinance, (IRO) was filed by the respondent seeking quashment of the order passed by respondent No,4 herein on 30.3.2000. The Labour Court dismissed the application on the ground of jurisdiction vide order dated 28.3.2002.
The appeal was preferred before the Labour Appellate Tribunal on 13.4.2002 also failed vide order dated 20.3.2006. Both the orders of the Labour Court dated 28.3.2002 as well as the Labour Appellate Tribunal dated 30.3.2006 were called in question through the writ petition before the High Court which has been accepted through the impugned judgment, hence, this appeal by leave.
3. In this appeal arguments of the counsel for the parties on merits were heard, however while drafting the proposed judgment, some important constitutional propositions also came under consideration, therefore, for fresh arguments notices were issued to the counsel for the parties as well as the eminent lawyers from the Bar.
4. Mian Sultan Mehmood, Advocate, the counsel for the appellant in his arguments reiterated the grounds incorporated in the memo. of appeal. He seriously objected to the impugned judgment of the High Court on the ground that the Industrial Development Bank of Pakistan Ordinance, 1961 and the Rules made thereunder, have been adapted in the Azad Jammu and Kashmir. The terms and conditions of the employees of the IDBL are governed by the statutes. The Banking is included in the Azad Jammu and Kashmir Council's Legislative List, therefore, for the purpose of the terms and conditions of the Azad Jammu and Kashmir Council's civil servants, the Civil Servants Act, 1973 and the rules made thereunder are applicable and the Azad Jammu and Kashmir Government has constituted its own. Service Tribunal. In Pakistan due to amendment in section 2A of the Service Tribunals Act, 1973, not only the civil servants of the Government departments but also the other employees of the corporate bodies and organizations have been included in the definition of the civil servants for the purpose of remedy of appeal before the Service Tribunal. The proposition as is involved in the case in hand came under consideration of the apex Court of Pakistan in the case reported as Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary Ministry of Defence and others [PLD 2006 SC 602] and this Court in the case reported as Zulfiqar Ali Mallick v. Zonal Chief Habib Bank Limited and 6 others [2004 SCR 341]. The proposition is further clarified by the apex Court of Pakistan in the case reported as Muhammad Idrees v.
Agricultural Development Bank of Pakistan and others [PLD 2007 SC 681]. Now it has been conclusively resolved that all the employees whose services are governed by the statutory rules fall in the definition of the civil servants and remedy of appeal is available only before the Service Tribunal. The employees of such bodies do not fall within the domain of the Industrial Relations Ordinance, hence remedy cannot be sought from the Labour Court. The impugned judgment of the High Court is contrary to law and the principles enunciated by the apex Court of Pakistan as well as this Court. However, the learned counsel frankly conceded that the employees of the Industrial Development Bank Limited do not fall within the scope of the person in service of the Azad Jammu and Kashmir as defined in the Azad Jammu and Kashmir Interim Constitution Act, 1974, however argued that it makes no difference because the Industrial Relations Ordinance has been adapted and the laws governing the terms and conditions of the service of its employees have also been adapted in the Azad Jammu and Kashmir. He further argued that even otherwise the respondent's grievance before the Labour Court was not maintainable because he does not fall within the definition of the workman as defined in the Azad Jammu and Kashmir Industrial Relations Ordinance.
5. From amongst the amicus curiae, Mr. Khalid Rasheed Chaudhry, Advocate, supported the version of the appellant's counsel and argued that as the Civil Servants Act, 1973 as well as the Service Tribunals Act, 1973 have been adapted by the Azad Jammu and Kashmir Council, thus, under the adapted laws, the employees of the corporation and corporate bodies whose services are regulated by the statutes are included in the definition of the civil servant for the purpose of appeal. Therefore, remedy can only be sought before the Service Tribunal and the respondent does not fall within the domain of the Labour Court or the Labour Laws. He further argued that as the Banking is included in the Azad Jammu and Kashmir Council's legislative list and under the provision of section 31 subsection 2(a) of the Constitution Act, 1974, only the Azad Jammu and Kashmir Council is competent to legislate in the matter. The Industrial Relations Ordinance has not been passed by the Azad Jammu and Kashmir Council therefore, even from this angle the respondent cannot seek remedy under the provisions this Ordinance.
6. Conversely, Mr. M. Riaz Tabassum, Advocate, the counsel for the respondent forcefully defended the impugned judgment of the High Court and submitted that the respondent falls within the definition of the workman as he is not the person falling in the definition of "in service of the Azad Jammu and Kashmir". Therefore, the provision of the Civil Servants Act, 1976 or the laws made by the Azad Jammu and Kashmir Council or the Legislative Assembly relating to the terms and conditions of the person in service of Azad Jammu and Kashmir do not apply to the employees of IDBL as an establishment working in the Azad Jammu and Kashmir. The respondent falls within the domain of the I.R.O which law has got the constitutional protection under section 51 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter to be called as Constitution Act).
The High Court has rightly passed the impugned judgment, hence, the appeal is not maintainable.
7. Messrs Muhammad Reaz Alam and Sheikh Masood Iqbal, Advocates, who appeared as amicus curiae, also argued at some length. Both have submitted that according to the provisions of the Constitution Act, 1974, the terms and conditions of the person in service of Azad Jammu and Kashmir have to be regulated by the law either made by the Legislative Assembly or the Azad Jammu and Kashmir Council. The service of Azad Jammu and Kashmir has been defined by the Constitution Act, 1974 which means any post or office functioning in connection with the affairs of the Azad Jammu and Kashmir including the Azad Jammu and Kashmir Council. As the employees of the IDBL are not holding the posts in connection with the affairs of the Azad Jammu and Kashmir or the Azad Jammu and Kashmir Council, thus, neither the Azad Jammu and Kashmir Council nor the Legislative Assembly can regulate their services by law. Same like under the provision of section 47 of the Constitution Act, 1974 the Service Tribunal can only be established in the Azad Jammu and Kashmir relating to the terms and conditions of the person who is or has been in service of the Azad Jammu and Kashmir. As the employees of the IDBL do not fall within the definition of "in service of Azad Jammu and Kashmir", thus irrespective of the fact whether their services are regulated by the statutory rules or not, the remedy of appeal before the Service Tribunal as a civil servant is not available to them. However, the remedy before the Labour Court under the Labour Laws is not confined to the employees who are holding the posts in connection with the affairs of the Azad Jammu and Kashmir rather it includes any establishment. Thus, whether the remedy before the Labour Court is available or not is the question to be determined by the competent forum according to law dealing with the subject matter.
8. Sheikh Masood Iqbal, one of the amicus curiae, further argued that as the IDBL is a company as defined under section 31 of the Companies Ordinance, 1984 therefore, the remedy before the Service Tribunal cannot be available to its employees. He placed reliance upon the cases reported as Sadiq Hussain v. Nisar Ahmed and 2 others [2003 YLR 2918], Muhammad Rashid Chaudhry v.
Chairman AKLASC and others [1993 PLC (C.S.) 1201], Muhammad Tariq Badar and another v.
National Bank of Pakistan and others [2013 SCMR 314] and Zulfiqar Ali Mallick v. Zonal Chief Habib Bank Limited and 6 others [2004 SCR 341], Chief Administrator Auqaf Azad Jammu and Kashmir and others v. Sain Ghulam Ahmed Nisar and others [PLD 2012 SC (AJ&K) 21] and Fayyaz Sulehria and others v. Labour Court and others (Civil Appeal No,88/2008 decided on 4.10.2012.
9. We have heard the counsel for the parties as well as the eminent lawyers who appeared as amicus curiae. The very basic and vital proposition involved in this case is the scope of the remedy provided for the person holding the post in connection with the affairs of the Azad Jammu and Kashmir before the Service Tribunal. In this context, the provisions of the Constitution Act, 1974 are of vital importance which provide the basis. The term "Service of Azad Jammu and Kashmir" has been defined in section 2 of the Constitution Act, 1974 as following:- "2.(1) 'Service of Azad Jammu and Kashmir' means any service, post or office in connection with the affairs of Azad Jammu and Kashmir, including the Council, but does not include service as Chairman of the Council, President, Speaker, Deputy Speaker, Prime Minister, Ministers, Federal Minister in-charge of the Council Secretariat or Advisor appointed under Section 21. Parliamentary Secretary, Advisor to the Prime Minister or a member of the Assembly or member of the Council;"
This definition is of vital importance because all the matters regarding the terms and conditions of civil servants providing the forum for remedy revolves around this basic definition. Under section 47(a) of the Constitution Act, 1974, the Azad Jammu and Kashmir Council and the Legislative Assembly have been authorized to make laws for establishment of the administrative Courts and Tribunals (relating to the respective domain) to exercise exclusive jurisdiction in the matters relating to the terms and conditions of the persons who are or have been in service of Azad Jammu and Kashmir, including the disciplinary matters. The statutory provision reads as under:- "47. Administrative Courts and Tribunals:- (1) Notwithstanding anything herein before contained, the Council in respect of matters to which its executive authority extends, and the Assembly, in respect of matters to which the executive authority of the Government extends, 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 Azad Jammu and Kashmir including disciplinary matters....
(b) ................................................................................................................................
(c) ................................................................................................................................
(2). Notwithstanding anything herein before contained, where any administrative Court or Tribunal is established under subsection (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 shall abate on such establishment.
(3) ................................................................................................................................
Under clause (a) of section 47 of the Constitution Act, once again the scope of legislature is confined to the terms and conditions of the persons who are or have been in the service of the Azad Jammu and Kashmir.
Same like another very basic provision dealing with the service is section 49 of the Constitution Act, 1974 which reads as follows:- "49. The Services.- (1) Subject to this Act, the appointment of persons to, and the terms and conditions of service of persons in the service of Azad Jammu and Kashmir may be regulated by law.
(2) Until an Act of the Council in respect of persons in service of Azad Jammu and Kashmir employed in connection with the affairs of the Council, or an Act of the Assembly in respect of such persons employed in connection with the affairs of the Government makes provision for the matters referred to in subsection (1), all rules and orders in force immediately before the commencement of this Act, shall continue in force and may be, amended from time to time by the Council or, as the case may be, the Government."
Once again in this statutory provision the matter is confined to the terms and conditions of the service of the persons in the service of the Azad Jammu and Kashmir.
10. From the above referred Constitutional provisions, there remains no ambiguity that the Azad Jammu and Kashmir Council or the Legislative Assembly can legislate for establishment of the Administrative Courts or Tribunals regarding the matters of terms and conditions of the persons who are or have been in the service of the Azad Jammu and Kashmir.
11. According to the statutory provisions relating to the establishment of the IDBL, as adapted in the Azad Jammu and Kashmir, the employees of the IDBL are not holding the posts in connection with the affairs of the Azad Jammu and Kashmir. For further elaboration of the proposition, it will be relevant to refer here the definition assigned to the term "civil servant" under the provision of section 2 clause (b) of the Azad Jammu and Kashmir Civil Servants Act, 1976:- "2(b) "Civil Servant" means a person who is appointed to any service or holds a civil post in service of Azad Jammu and Kashmir employed in connection with the affairs of the State."
Once again, in the above referred provision, it has been mentioned that the civil servant means a person who is appointed to any service or holds the civil post in service of the Azad Jammu and Kashmir.
12. As the counsel for the appellant has very wisely conceded that the employees of the IDBL are not holding the posts in the service of the Azad Jammu and Kashmir, thus, there remains no ambiguity in this background that the employees of the IDBL do not fall within the definition of the persons holding the civil posts in connection with the affairs of the Azad Jammu and Kashmir or the Azad Jammu and Kashmir. In this background, irrespective of the fact that what is the effect of amendment of section 2A of the Service Tribunals Act, 1973, according to the stated scope as determined by the Constitution Act, 1974, the Azad Jammu and Kashmir Legislative Assembly and the Council can legislate for establishment of the Administrative Courts or Tribunals relating to the matters of terms and conditions of the persons who are or have been in the service of Azad Jammu and Kashmir and not beyond that. Therefore, it can be safely held that the employees of the IDBL do not fall within the definition of the persons holding the civil posts in connection with the affairs of the Azad Jammu and Kashmir. Therefore, the question of availing the remedy of appeal by them before the Service Tribunal does not arise.
13. In the light of the facts and circumstances of this case, the employees of the IDBL do not fall within the scope of the persons holding the posts or service in connection with the affairs of the Azad Jammu and Kashmir, thus, for determining the terms and conditions of these persons neither the Azad Jammu and Kashmir Legislative Assembly nor the Council is empowered to legislate. Our this view finds in support from the principle of law enunciated by this Court in a case reported as Messrs Jabbeer Hotel Mirpur and others v. Kashmir Council and others [2001 PLC (C.S.) 11] wherein it has been observed as under:- "24. In fact the constitutional position is that the Azad Jammu and Kashmir Council and the Azad Jammu and Kashmir Legislative Assembly are not empowered to legislate in respect of officers of the EOB Institution. Legislative powers of the Council and the Assembly are laid down in section 31.
Subsection (1) is relevant here. `31. Legislative Powers.- (1) Subject to succeeding provisions of this Section, both the Council and the Assembly shall have the power to make laws--
(a) for the territories of Azad Jammu and Kashmir;
(b) for all State subjects wherever they may be; and
(c) for all officers of the Council or as the case may .be the Government, wherever they may be."
25. This provision manifestly lays down that the powers to make laws outside Azad-Jammu and Kashmir is restricted only to State subjects wherever they may be and to officers of the council and of the Government wherever they may be. The officers of the EOB Institution are not officers of the Council or the Government. Therefore, the Council or the Assembly cannot legislate for them. It means in other words that law cannot be framed so as to confer powers or functions on the employees of the EOB Institution by the Legislative bodies of Azad Jammu and Kashmir."
14. So far as the appellant's objections regarding the competency of the petition before the Labour Court; and that the respondent does not fall within the definition of the workman, are concerned, all these propositions relate to the Labour Court and in the instant appeal such proposition cannot be resolved in vacuum. The appellant has statutory right to raise all these points before the proper forum and the Labour Court according to the statutory provisions has to attend and resolve the same according to law.
15. In the light of the hereinabove stated constitutional as well as the statutory provisions, we have reached the conclusion that the employees of the IDBL are not the persons holding the posts or office functioning in connection with the affairs of the Azad Jammu and Kashmir. Therefore, they do not fall within the definition of the civil servant according to the constitutional provisions as well as the law enforced in the Azad Jammu and Kashmir. Mere on the strength of amendment of section 2A in the Federal Service Tribunals Act, 1973, they cannot be deemed the persons dealing with the affairs of the Azad Jammu and Kashmir. Hence, according to the special Constitutional status, in the Azad Jammu and Kashmir, the remedy of appeal for them before the service Tribunal is not available.
16. So far as the case law referred to and relied upon by the parties is concerned, as in none of the referred cases, the proposition has been appreciated in the light of the special provision of the Constitution Act, 1974 and the law relating to the civil servants as in force in the Azad Jammu and Kashmir, hence, having no application need not be discussed separately.
With the conclusion drawn hereinabove, this appeal stands disposed off. No order as to costs.