1. ' MUHAMMAD HALEEM, C.J.--The question which arises for consideration is whether the appellants in these appeals were civil servants for rendering them eligible to file appeals against the orders of the departmental authorities under the Service Tribunals Act in the context of the fact that the High Court had rejected their writ petitions holding them to be civil servants within the meaning of section 3 read with section 5 of the Corporation Employees (Special Powers) Ordinance, 1978.
2. ' In Civil Appeal No, 74-K of 1984, the appellant was a permanent employee of the Trustees of the Port of Karachi, a statutory body, established under the Karachi Port Trust Act VI of 1986 (respondent No, 2 herein), and performed the duties of a Junior Outdoor Clerk. On 26th of October, 1978, he was served with a charge-sheet by the Traffic Manager, Karachi Port Trust, for having accepted illegal gratification on 31st August, 1978, from one of the parties. The appellant gave a statement prior to the holding of the enquiry which was treated as his reply to the charge-sheet.
3. Thereafter an enquiry was held and the Enquiry Officer by his report dated 26th August, 1980, held him guilty and thereupon he was served with a show-cause notice dated 18th December, 1980, as to why he should not be removed/dismissed from service. He submitted his reply to it. However, by an order dated 10th December, 1981, he was removed from service. His grievance was that without the approval of the Board of Directors he could not be removed from service, as there was a violation of section 23 of the Act. The appellant challenged his removal in the High Court of Sind through Constitution Petition No, 1128 of 1981, which was dismissed in limine for the same reasons which prevailed with the High Court in dismissing Constitution Petition No, 501 of 1981 (Farid Ahmad v. Karachi Shipyard & Engineering Works Limited and others, PLD 1983 Kar. 576).
4. ' In Civil Appeal No, 75-K of 1984, the appellant was an employee of the Trustees of the Port of Karachi, a statutory body, established under the Karachi Port Trust Act VI of 1986, and performed the duties of a Junior Outdoor Clerk. He was served with a charge-sheet on 26th October, 1978, for having committed an act of misconduct on 31st August, 1978. He also made an oral statement before the holding of the enquiry which was treated as his reply to the charge-sheet. An enquiry was thereafter held. He was found guilty as would appear from the report of the Enquiry Officer dated 26th August, 1980. He was thereafter served with a show-cause notice on 18th of December, 1980, to which he gave a reply. However, as he failed to convince the competent authority, he was removed from service by order dated 9-12-1981. His grievance is also that his removal was without approval of the Board of Directors, and therefore he could not be removed from service, as there was a violation of section 23 of the Act. He then challenged his removal from service through Constitution Petition No, 1129 of 1981, which was dismissed for the same reasons as in Constitution Petition No, 501 of 1981, Farid Ahmad v. Karachi Shipyard and Engineering Works and others (PLD 1983 Kar. 576).
5. ' In Civil Appeal No, 176-K of 1985, the appellant was a 3rd Engineer in the National Shipping Corporation and on the. Promulgation of the Pakistan National Shipping Corporation Ordinance, 1979, the Government of Pakistan exercising the powers under section 7 of the said Ordinance amalgamated the National Shipping Corporation and Pakistan Shipping Corporation with effect from 1-1-1979 to form a new Corporation designated as the "Pakistan National Shipping Corporation." It is next declared as a statutory Corporation under section 5 of the Ordinance.
6. Further under the provisions of the Ordinance, the appellant became a full-fledged employee of the Pakistan National Shipping Corporation with effect from 1-1-1979 with the same terms and conditions as existed before. His services were terminated by notice dated 25th September, 1983, under para 9 of the National Shipping Corporation (Established Officers) Regulation, 1965 on the ostensible ground of reviewing the manning, position of the fleet. He filed an appeal against this order releasing him from service before the Service Tribunal but the same was dismissed on 16th of July, 1984 by the Service Tribunal on the ground: "From whatever angle we may see, the employees of the Corporation, in spite of being in the 'Service of Pakistan', are not "civil servants" within the meaning of section 2(a) of the Service Tribunals Act (LXX of 1973) read with section 2(a) of the Civil Servants Act (LXXI of 1973), and as such, they cannot invoke the jurisdiction of this Tribunal."
7. ' The appellant in Civil Appeal No, 124-K of 1986 is an employee of the Printing Corporation of Pakistan Limited, respondent No, 1 herein, since 17th of May, 1949, and performed the duties of a Lower Division 'Clerk and later promoted as Upper Division Clerk in 1963. As he hadobtained an M.A.
8. Degree in 1967 and had earned four advance increments on account of higher qualification, he protested against the promotions of non-matriculates and matriculates for higher posts while he was ignored. He was even recommended in 1978 for being appointed as Personnel and Labour Officer, but the recommendation was withheld. He nonetheless protested and made representations until finally he was informed by respondent No, 2 by letter dated 30th of May, 1983, that his case had been turned down and that he was warned not to represent his case further. He thereupon filed an appeal before the Federal Sevice Tribunal, Karachi, which was dismissed on 5- 5-1985 for the reasons given in the case of Joseph v. Secretary, Ministry of Communication, Government of Pakistan, 1983 PLC (C.S.) 600.
9. ' In Appeal No, 228-K of 1986, the appellant was serving as Chief Manager at Islamabad in the House Building Finance Corporation "a body corporate" under the House Building Finance Corporation Act, 1952. He was served with a charge-sheet on 14-11-1982 for misconduct and thereupon an enquiry was held and by the report of the Enquiry Officer dated 21st of May, 1982, he was found guilty of all other charges except one. A show-cause notice dated 3-1-1984 was served on him as to why major penalty of removal from service of the Corporation should not be imposed to which he gave a reply on 1-2-1984, but his explanation was not accepted and he was, by order dated 31st March, 1984, awarded a punishment of reduction to the lower post of Manager, that is, Grade II for a period of three years. He preferred a departmental appeal on 26-4-1984 which was rejected on 19-11-1985. He then filed an appeal on 23-12-1985 before the Federal Service Tribunal which was dismissed on 12-2-1986 as being incompetent for the reason that he was "not a civil servant under section 2(1)(b) of the Civil Servants Act, 1973."
10. ' In Civil Appeal No, 228-K of 1986, the learned counsel for the appellant conceded that the appeal was rightly held to be incompetent but the appellant is left without any remedy in view of the judgment of the High Court of Sind in Farid Ahmad's case wherein it was held that service of a Corporation is service of Pakistan within the meaning of section of the Corporation Employees (Special Powers) Ordinance, 1978. The learned Counsel for the appellants in Civil Appeals Nos. 74-K and 75-K of 1984 also adopted the same view. The learned counsel for the appellants in Civil Appeals Nos. 176-K of 1985 and 124-K of 1986 also held the same stand.
11. In terms of the leave granting order, we are called upon to interpret the provisions of the Corporation Employees (Special Powers) Ordinance, 1978. A reading of the preamble of this Ordinance makes it abundantly clear that the purpose of enacting this Ordinance was to invest the President with certain powers in respect of Corporation service which he did not possess before its promulgation. "Person in Corporation service" is defined in section 2 to mean every person who is in the employment of a corporation or an institution set up, established, managed or controlled by the Federal Government, and includes the Chairman and the Managing Director of, and the holder of any other office in such corporation or institution.
12. ' There cannot be any doubt that the word "corporation" refers to A statutory corporation or such institutions which arc qualified by the words "set up, established, managed or controlled by the Federal Government". It seems clear that the purpose for enacting the Ordinance was to treat persons in corporation service or such institutions as were set up, established, managed or controlled by the Federal Government at par with the civil servants in regard to the exercise by the President of the power of removal from service or reversion to a lower post or grade.
13. ' Section 3 of the Ordinance contains a non obstante clause namely: "Notwithstanding anything contained in any law for the time being in force, or in the terms and conditions of service", purposely designed to remove any impediment created by any law governing the terms and conditions of corporation service. Further this section provides the critical period between the first day of January, 1972 and the fifth day of July, 1977 of appointment or promotion of a person in corporation service in regard to whom the power could be exercised by the President to remove or revert to a lower post or grade in the public interest.
14. ' Section 4 provides a remedy of representation against removal or reversion, if it is by the President, to the President or where the Order of removal or reversion is not passed by the President then a remedy by way of a review to the President. However, what is significant is that this remedy applied only to a person in service of corporation who is removed or reverted under section 3 and not for the violation of any law or regulation governing the terms and conditions of a person in service of corporation. Necessarily, therefore, it connotes an action of the kind mentioned under this Ordinance and to no other.
15. ' By section 5 of the Ordinance, service of corporation is declared to be the service of Pakistan and every person in corporation service is deemed to be a civil servant for the purpose of the Service Tribunals Act, 1973.
16. The service of Pakistan is defined in Article 260 of the Constitution. It not only means any service, post or office in connection with the affairs of the Federation or of a Province but also any other service declared to be a service of Pakistan by or under an Act of Parliament or of a Provincial Assembly. As the Parliament was in abeyance, the President by this Ordinance declared the service of corporation to be a service of Pakistan in conformity with the powers assumed which were not otherwise available for dealing, with the persons in the service of corporation. And also through a legal fiction to give to the person in service of Pakistan the status of a civil servant so as to make it consistent with clause (b) of section 2 of the Civil Servants Act, 1973, to enable him to avail of a remedy by way of an appeal to the Service' Tribunal under the Service Tribunals Act which by its definition clause 2(a) defines a "civil servant" to mean a person who is or has been a civil servant within the meaning of Civil Servants Act, 1973.
17. ' Having examined the several sections of the Ordinance it becomes clear that when an action is taken for removal or reduction to a lower post or grade of a person in corporation service appointed. Or promoted within a prescribed period under section 3 of the Ordinance, it is .Only then that the person in service of Corporation by a legal fiction is given the status of a civil servant for the purpose of invoking the remedy by way of an appeal before the Service Tribunal. Besides this remedy the other two remedies by way of representation and review are provided in the same situation.
18. ' There are other legislations v.-hereunder persons serving in statutory corporations arc given the status of civil servants for the purpose of availing the remedy by way of an appeal under the provisions of the Service Tribunals Act. One such example is furnished by section 17(1B) of the West Pakistan Water and Power Development Authority Act, 1958, where service under the Authority is declared to be service of Pakistan and every person holding a post under the Authority is deemed to be a civil servant for the purpose of the Service Tribunals Act, 1973. The language of the above provision and that of section 5 of the Ordinance' is in pari materia so as to achieve the common purpose. The declaration, therefore, has to he read subject to the limitation in section 5 of the Ordinance occurring thereafter.
19. ' In Farid Ahmad's case, the High Court has held: "In the first part of the section, status of corporation employees has been determined; that they shall have the same right as persons in service of Pakistan in their service matters and the latter- part of section 5 attempts to achieve another object by providing remedies to those persons who had been removed under section 3."
20. ' The first part of this statement in our view is erroneous where it says that the persons in corporation service "shall have the same right" as persons in service of Pakistan in their service matters as the High Court failed to notice the pivotal words "who is removed from service, or reverted to a lower post or grade under this Ordinance". The declaration of service of Pakistan is limited to persons who within this category and that too only for the purpose of enabling them to a .Ail of a remedy and to no other. If the interpretation given by the High Court is adopted then even the service of WAPDA becomes a civil service to all intents and purposes which it is not. In our view, the declaration mentioned in Article 260 of the Constitution cannot be construed in the manner in which the High Court has done as it was only intended to give that status to persons in corporation service. For achieving a certain statutory purpose mentioned in the Ordinance.
21. ' The Federal Service Tribunal in Joseph's case has rightly distinguished Farid Ahmad's case holding as under: "There is no doubt that the service of every Government controlled corporation has been declared to be Service of. Pakistan under the Ordinance, nevertheless, this law does not .Confer any right on the employee of a corporation to become ipso facto a civil servant for all purposes under the Service Tribunals Act, 1973. The definition of the terms "Service of Pakistan" is embodied in Article 260(1) for interpreting the provisions of the Constitution, specially Article 240 which relates to appointment to Service of Pakistan, and conditions of service and Article 63 read with Article 127 which provides for disqualification of a person in service of Pakistan from being a Member of Provincial Assembly or of Parliament. Section 5 of Ordinance itself does not make an employee of a corporation; a civil servant within the definition given in the Civil Servants Act, 1973. Saying plainly, a person who is in the "Service of Pakistan" is not necessarily a civil servant for all purposes."
22. ' And further: "It is clear enough that under the Ordinance, only those persons can suffer penalty who are appointed to or promoted during the period 1st January, 1972 to the 5th July, 1977.It is not the case of the appellants that they were appointed during this period. Their services were not terminated under the provisions of section 3 of the Ordinance, but they were penalised under the Efficiency and Discipline Rules applicable to them. The jurisdiction of this Tribunal would have come into motion only if the appellants had been removed from service under section 3 of the Ordinance.
23. Such removal is to be made by the President or by a person authorised by him to do so. By no standard, the cases of the appellants fall under section 3 of the Ordinance, and consequently the jurisdiction of the Tribunal under section 5 ibid does not extend to these cases.
24. Accordingly, it becomes clear that where an action is not taken under section 3 of the Ordinance, the employees of the Corporation and those institutions controlled by the Government continue to be governed by their own terms and conditions as provided by or under any law or regulation.
25. Therefore, Article 212 of the Constitution is not an impediment for them to seek relief from the High Court if they feel aggrieved by an illegal order of removal or dismissal or imposition of any other penalty by or under any law or regulation. The appellants in all these appeals were not dealt with under this Ordinance and, therefore, they are not hit by Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973.
26. ' While upholding the order of the Tribunal, we would dismiss these appeals, but with no order as to costs.