Asim Akram, Member.--In the appeal at hand, the appellant has challenged the order dated 31.08.2020 wherein it is stated that appellant is discharged from service w.e.f. 03.09.2020 (hereinafter referred to as impugned order) due to abolishment of post Against the impugned order the appellant filed a departmental appeal on 30.09.2020. Upon receiving no reply from the respondents, the appellant preferred the service appeal at hand on 30.12.2020.
2. According to the memo of appeal, it is contended that vide order dated 3I.O8.2020, the appellant was transferred from Headquarter, Frontier Works Organization (FWO), Rawalpindi to Diamer Bhasha Dam, Taskforce, Chilas. The appellant submitted an application, the same day, for cancellation of the said transfer order. To his utter surprise he received the impugned order whereby the post was abolished and he was relived from service w.e.f. 03.09.2020. The counsel for the appellant said that revilement of the appellant is a penalty for his application for cancellation of his transfer order. It is further contended that the appellant was serving as Data Control Officer (BS-16) which is a permanent post and cannot be abolished without prior approval of the President of Pakistan. Further to clarify the status of employees of FWO, the appellant has referred to judgments in Appeals No. 373 to 376, 380, 386, 395, 407 and 408(R)CS/1996 and Appeal No. 162(R)CS/1997 of the Tribunal and CPLA No. 2964 to 2967 of 2004 by Supreme Court of Pakistan. The learned counsel for the appellant contended on the grounds referred above that the appeal at hand be accepted and impugned order be set aside.
3. The learned counsel for the respondents has contested the appeal primarily on the question of jurisdiction of this Tribunal. He contended that the appellant was employed from time to time on project-to-project basis and was not a regular employee of FWO which is a part of Pakistan Army established to construct specialized assignments. Management and work force of FWO is uniformed persons whereas some civilians are employed on contract bases for specific time and project, who are not regular employees. On this score, the appellant does not fall within the definition of civil servants and as such the Tribunal lack jurisdiction to entertain the subject appeal.
The learned counsel for the respondents has also unveiled some sensitive documents in chambers which describes anti-state propaganda by the appellant. The learned counsel further contended that the appellant has been relived from service with all benefits due to abolition of the post and no penalty has been imposed upon him. In such view of the matter, the learned counsel prayed for dismissal of the appeal at hand.
4. Arguments heard and record perused.
5. Before proceeding further, we would like to define the status of the respondent i.e., FWO. In this regard, we may like to refer a letter issued by the Federal Board of Revenue dated 26.11.2014 with the subject "Ascertainment of Legal Status of Frontier Works Organization (FWO) for Entitlement of Exemption of Income Tax" which is annexed as Annex-L page-39 of the appeal. The relevant portion of the said letter is read as under:
3. M/s FWO was re-organized after merger of FWO and Lowari Tunnel Origination, duly sanctioned by the President, as conveyed vide letter No. (1838/10/Engr 5/12/18/R/1)-311178 of Ministry of Defence, Government of Pakistan dated 10.10.1978. This executive order was later on affirmed by the 8th amendment of the Constitution of Pakistan.
6. The said letter clarifies the creation of FWO and its legal status. It is vibrant that FWO is the Organization created by executive order which was later on validated by the Parliament. In another annexure attached as Annexure-M, page 41 of the appeal which are minutes of 178th meeting of FWO Project Board dated 11.3.2014 wherein it is stated as under: i. The FWO is a defence related Federal Government entity under administrative control of GHQ and Ministry of Defence. Therefore, the Project Board of FWO is not competent to approve any policy which is contrary to rules /orders of central Government as provided in pars 3(b) Ministry of Defence letter No. 18/03/39/Engr-5/271/R/D-13 dt 12.09.1974.
The minutes of the meeting referred above clearly states that the FWO is under command and controlled of GHQ, which is Headquarter of Pakistan Army, and is not an independent organization under Ministry of Defence.
FWO is an organization created to develop infra structure for support of army and of national importance and cannot be assigned to civil and foreign construction firms. Its primary task was construction of Karakoram Highway to link Pakistan with China. Later on, it constructed number of sensitive military infrastructure as well as of national importance.
7. To clarify the status of FWO's employees, uniformed as well as civilians, we would like to reproduce the Section 2(1)(c) of Pakistan Army Act, 1952 (Act): 2(1)(c), Person not otherwise subject to this Act, who on active service, in camp, on the march or at any Frontier Post specified by the Federal Government by Notification in this Behalf, or employed, or are in the service of or are followers of, or accompany or portion of the Pakistan Army.
The expression "Active Service" used in the Section 2(1)(c) has been Defined in Section 8(1) of the Pakistan Army Act which read as under: "(1) "active service", as applied to a person subject to this Act, means the time during which such person is attached to, or forms part of a force which is engaged in operations against an enemy, or is engaged in military operations in, or is on the line of march to a country or place wholly or partly occupied by an enemy, or is attached to or forms part of a force which is in military occupation of a foreign country."
8. The supra definations given in the Act describe status of civilian personal in military organizations and their services. The persons employed by the organizations, in direct control of army and are engaged in providing services to army, are in active service within the meaning of Pakistan Army Act, 1952. The term Active Service has been explained by Hon'ble Supreme Court of Pakistan in its judgment in civil appeal titled Secretary, Ministry of Defence and another vs. Zahoor Ahmed Javed (2009 PLC (CS) 141) wherein the Apex Court has held: 6........... The term 'active' means in action and 'service' in the meaning of employment, is civil service, military service or public service and expression 'on active service in relation to the military services, means a person who is engaged in any military operation as defined in Section 8(1) of the Act.
7. In the light of above definition of "on active service" a person who is member of military service and is subject to the Pakistan Army Act is deemed to be on active service but a person who is not otherwise subject to this Act and is a civilian employee in an Organization of Army, is considered to be on active service at the time during which he is attached or forms part of the force in the manner as described in subsection (1) of Section 8 (ibid) and thus, a civilian employee in Defence Organization while attached with the force which is an active force, being engaged in any military operation, will be deemed to be on active service........
The Honble Supreme Court further held that: "10. The non-combatant civilian employees of an Organization or an establishment of Pakistan Army which is part of the defence, who are not subject to the Pakistan Army Act cannot be ordinarily brought within the purview of this Act but the persons who are not otherwise subject to the Act while in the employment or in the service of an Organization of Pakistan Army, which is engaged in any military operation and is on active service as discussed hereinabove, would be deemed to be on active service and would become subject to the Army Act. The learned counsel for the respondent has not been able to distinguish the case of respondent and satisfy us that at the relevant time he was not on active service. This is correct that the civilian employees in defence are generally excluded from the purview of the Army Act, 1952 but the civilian employees attached with a portion of Pakistan Army on active service being engaged in military operation would become subject to the Act by virtue of section 2(1)(c) read with section 7 of the Act and the notification issued thereunder. The respondent was employed in Special Communication Organization, which is a part of Pakistan Army and is on active service, therefore, he would also be deemed to be on active service and at the relevant time would not be treated as civil servant for the purpose of Civil Servants Act, 1973, to avail the remedy of appeal under Federal Service Tribunals Act, 1973 before the Federal Service Tribunal. The jurisdiction of the Tribunal is confined to the matters relating to the terms and conditions of civil servants being governed by the service laws and respondent being subject to Army Act, was not a civil servant to maintain appeal before the Tribunal."
9. From the judgment referred above, it is clear that FWO is a Military Organization and its employees, the civilian, who provide support to military operations are in active service of army within terms of Section 2(1)(c) read with Section 8 of the Pakistan Military Act, 1952. The civilian employees of FWO engaged in military operations does not fall within the scope of civil servant as defined in Section 2(1)(b) of the Civil Servants Act, 1973. In this regard, the judgment of the Tribunal as well as of the Hon'ble Supreme Court referred by the appellant are distinguishable as the issue of jurisdiction of the Tribunal has neither been raised nor discussed in any of them.
10. In the appeal at hand, the appellant being a contractual civil employee of FWO was at the time of his discharge from service Posted in headquarter. The headquarter of FWO provide support to military operations alongwith other operations of national importance. While providing support to military operations the appellant was in active service of army and could not be treated as civil servant as defined in Civil Servants Act, 1973 to avail the remedy of appeal before this Tribunal. In the circumstances, the appeal at hand is beyond the jurisdiction of the Tribunal and stands dismissed for want of jurisdiction.