' SYED ALLY MADAD SHAH (CHAIRMAN).--All these appeals are directed against different orders of minor penalty imposed on the appellants herein under the provisions of Government Servants (Efficiency and Discipline) Rules, 1973. Seemingly, they involve the question of jurisdiction of the Tribunal magnified hereinbelow.
2. Arguments have been heard on the question of jurisdiction only. It is, therefore, not necessary to enumerate_ facts of each case as only the question of jurisdiction of the Tribunal is proposed to be decided by this judgment.
3. Under the Government Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred to as the E&D Rules) the penalties envisaged thereunder are classified under Rule 4 thereof. They are as follows:-
(a) Minor penalties:
(i) Censure;
(ii) withholding, for a specific period, promotion or increment, other than for unfitness for promotion or financial advancement in accordance with the rules or orders pertaining to the service or post;
(iii) stoppage, for a specific period, at an efficiency bar in the time-scale, otherwise than for unfitness to cross such bar;
(iv) recovery from pay of the whole or any part of any pecuniary loss caused to Government by negligence or breach of orders;
(b) Major penalties:
(i) reduction to a lower post or time-scale, or to a lower stage in a time-scale;
(ii) compulsory retirement;
(iii) removal from service; and
(iv) dismissal from service.
' The Service Tribunal stands established under the Service Tribunals Act, 1973. The Act stands spread over ten Sections. Section 1 thereof relates to the title of the Act, its commencement and application. Section 2 contains definitions of the terms 'civil servant' and 'Tribunal'. Section 3 provides for the establishment of the Tribunals. Section 3-A was added by Ordinance No,IX of 1978, promulgated on 18-3-1978, and it provides for the constitution of Benches of the Tribunal and their jurisdiction. Section 4 provides for appeals to the Tribunal. Section 5 enumerates powers of the Tribunal. Section 6 relates to abatement of suits and other proceedings. Section 7 caters for the applicability of Sections 5 and 12 of the Limitation Act. Section 8 provides for the making of the Rules for carrying out the purposes of the Act. Section 9 repeals the Service Tribunals Ordinance, 1973.
4. Sections 3, 4 and 5 of the Service Tribunals Act, 1973 (hereinafter mentioned as the Act), are relevant for determination of the question of jurisdiction of the Tribunal in the appeals against the orders of minor penalties imposed under the E & D Rules. They are reproduced for the sake of better appreciation of their interpretation and applicability.
"Section 3 - Tribunals.-(1) The President may, by notification in the official gazette, establish one or more Service Tribunals and, where there are established more than one Tribunal, the President shall specify in the notification the class or classes of civil servants in respect of whom or the territorial limits within which, or the class or classes of cases in respect of which, each such Tribunal shall exercise jurisdiction under this Act.
(2) a Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters.
(3) A Tribunal shall consist of -
(a) a Chairman, being a person who is, or has been, qualified to be Judge of a High Court; and
(b) such number of members not less than three, each of whom is a person who possesses such qualifications as may be prescribed by rules, as the President may from time to time appoint.
(4) The Chairman and members of a Tribunal shall be appointed by the President on such terms and conditions as he may determine.
(5) The Chairman or a member of a Tribunal may resign his office by writing under his hand addressed to the President.
(6) The Chairman or a member of a Tribunal shall not hold any other office of profit in the service of Pakistan if his remuneration is thereby increased.
(7) Notwithstanding anything contained in subsection (3), subsection (4), subsection (5) or subsection (6), a Tribunal established to exercise jurisdiction in respect of a specified class or classes of cases may consist of one or more person in the service of Pakistan to be appointed by the President.
3-A. Benches of the Tribunal.-(1) The powers and functions of the Tribunal may be exercised or performed by Benches consisting of not less than two members of the Tribunal. Including the Chairman, constituted by the Chairman.
(2) If the members of a Bench differ in opinion as to the decision to be given on any point,-
(a) the point shall be decided according to the opinion of the majority;
(b) if the members are equally divided and the Chairman of the Tribunal is not himself a member of the bench, the case shall be referred to the Chairman and the decision of the Tribunal shall be expressed in terms of the opinion of the Chairman, and
(c) if the members are equally divided and the Chairman of the Tribunal is himself a member of the bench, the opinion of the Chairman shall prevail and the decision of the Tribunal shall be expressed in terms of the opinion of the Chairman.
Section 4. Appeals to Tribunals.-(1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, (or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal): Provided that -
(a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Ordinance, 1973, or any rule against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred;
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to he promoted to a higher grade; (c)no appeal shall lie to a Tribunal against an order or decision of adepartmental authority made at any time before the 1st July, 1969.
2. Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred - (a)in the case of a penalty of dismissal from service, removal fromservice, a compulsory retirement or reduction to a lower post or time-scale or to a lower stage in a time-scale, to a Tribunal referred to in subsection (3) of Section 3; and (b)in any other case, to a Tribunal referred to in subsection (7) ofthat section.
' Explanation.- In this section, "departmental authority' means any authority other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants.
Section 5. Powers of Tribunals.-(1) A Tribunal may, on appeal, confirm, set aside, vary or modify the order appealed against.
(2) A Tribunal shall, for the purpose of deciding any appeal, be deemed to be a civil Court and shall have the same powers as arc vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908), including the powers of -
(a) enforcing the attendance of any person and examining him on oath;
(b) compelling the production of documents; and
(c) issuing commission for the examination of witnesses and documents."
' The provisions for jurisdiction of the Tribunal against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant are expressly contained in subsection (2) of section 4, reproduced above. It provides that appeal in the case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time scale or to a lower stage in a time scale shall he preferred to a Tribunal referred to in subsection (3) of Section 3; and in any other case to a Tribunal referred to in subsection (7) of that section. Reading this provision along with Rule 4 of the E & D Rules enumerating the penalties reproduced above, it would appear that the penalties mentioned in clause (a) of subsection (2) of Section 4 of the Act are classified as major penalties and there is no mention of the minor penalties and it is understood that they fall in the category of (in any other case") provided for in clause (b) of subsection (2) of Section 4 of the Act. There is no difference of opinion from any side up to this extent.
5. The crucial question that arises is:- what is the appellate forum against an order or a decision of a departmental authority imposing one or more minor penalties envisaged in clause (a) of Rule 4 of the E & D Rules. The learned counsel for the appellants, except Mian Mahmood Ilussain, Advocate, representing the appellant in Appeal No,336(R)/1986, have made reference to the provisions of Sections 3, 4 and 5 of the Act and urged, in one form or the other, that the Service Tribunals Act, 1973 stands enacted under the provisions of Article 212 of the Constitution, which provides for establishment of one or more Tribunals to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters, and section 3 of the Act caters for the establishment of such a Tribunal or Tribunals. They have made pertinent reference to subsection (2) of section 3 of the Act and laid emphasis on its provisions that the Tribunal established under the Act does have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters, without any restriction or limitation. They have further urged that although relief of appeal against an order or decision of a departmental authority imposing a minor punishment or penalty stands desecrated in providing appellate forum for, yet the appeal would lie to the Tribunal referred to in subsection (3) of Section 3 of the Act, for the reason that it is the only Tribunal established under Section 3 of the Act, having, under subsection
(2) thereof, exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters, and particularly in the circumstances that no other Tribunal envisaged under. Subsection (7) of Section 3 of the Act has been established to provide forum for appeals in the matters referred to in clause (b) of subsection (2) of Section 4 of the Act. Mr.M.S.Siddiqi, Advocate, appearing in Appeals No,302(R)/1985 and 336(P)/1987, has made reference to Article 177 of the Treatise on Statute Law by Crawford (1940 edition) and made reference to the views of the Author on the effect of Statute (at pages 286 to 290) on the Principles of Interpretation of Statutes that the interpretation should be such that it provides justice and does not defeat it; the Statute is made effective and its consequences should not be destructive of the intent of the legislature. He has made reference to several authorities listed below:
(1) PLD 1967 Dacca 216; (2) PLD 1963 SC 382; (3) PLD 1983 SC 100 and (4) 1982 SCMR 583.
' Mr.Fazal Elahi Siddiqi, Advocate, appearing in Appeal No,297(R)/1985, has also made reference to the notification of the establishment of the Tribunal under Section 3 of the Act dated 22-2-1974 and advanced the argument that this is the only Tribunal which has jurisdiction for all the purposes envisaged under the Act, including appeals against orders/decisions of minor penalties. According to him, provisions of subsection(7) of Section 3 of the Act would apply only when more than one Tribunals are established. He has relied upon a case reported in PLD 1980 Quetta 58. Of course, Mian Mahmood Hussain, Advocate, representing the appellant in Appeal No,336(R)/1986, has opined otherwise that the appeal against the order of minor penalty lies only to the Tribunal envisaged under subsection (7) of Section 3 of the Act and not to the Tribunal established under subsection (3) of section 3 of the Act.
6. The learned counsel for the respondents has argued in favour of the jurisdiction of the Tribunal in the cases of appeals against minor penalties. He has referred to the exclusive jurisdiction of Tribunal under Article 212 of the Constitution. He has submitted that no other Tribunal has been established to provide forum for the appeals against the minor penalties, and therefore, this Tribunal is the only Tribunal having jurisdiction even in the cases of minor penalties. He has argued that the principles of interpretation of Statutes enjoin that the conflicting provisions of Statute may be reconciled in interpreting them. He has referred to a case reported in 1986 SCM R 18.
7. Subsection (2) of Section 4 of the Act provides, without any ambiguity, two forums for appeals against orders or decisions of departmental authorities imposing departmental punishments or penalties on civil servants. It lays down that in the case of major penalties, appeals shall lie to a Tribunal referred to in subsection (3) of Section 3 of the Act, and in any other case, which impliedly includes the orders or decisions imposing minor penalty, to a Tribunal referred to in subsection (7) of Section 3 of the Act. There are no two opinions on this proposition. It has, however, been argued that since no Tribunal envisaged in subsection (7) of Section 3 of the Act has been established, this Tribunal, being the only Tribunal, established under Section 3 of the Act, having exclusive jurisdiction in respect of matters relating to the terms and conditions of service of the civil servants, including disciplinary matters, does constitute appellate forum also in the cases of minor penalties covered by clause (b) of subsection (2) of Section 4 of the Act. This Tribunal was established under Notification No, SRO.243 (1)/74, dated 22nd February, 1974. It reads as under: "In exercise of the powers conferred by Section 3 of the Service Tribunals Act, 1973 (LXX of 1973), the President is pleased to establish a Service Tribunal consisting of the following Chairman and Members, namely -
(a) Mr.Shah Nawaz Khan, presently Joint Secretary, Law Division, Islamabad. -- Chairman.
(b) Mr.G.D.Memon, presently, Chairman, Sind and Baluchistan Public Service Commission, Karachi.- -Members.
(c) Mr.S.Barkat Ahmad, presently Officer on Special Duty, Food and Agriculture Division, Islamabad. --Member.
Sd/- VAQAR AHMAD, SECRETARY"
' It appears from the composition of the Tribunal that it consists of a Chairman and Members referred to in subsection (3) of section 3 of the Act, and is not the Tribunal envisaged under subsection (7) of section 3 of the Act. Section 3 of the Act is the only enabling provision for establishing one or more Service Tribunals and, therefore, reference in the aforesaid notification of establishment of the Service Tribunal dated 22-2-1974 only to section 3 does not necessarily make it a Tribunal contemplated under subsection (7) of Section 3 of the Act. Jurisdiction of the Tribunal is outlined in Section 4 of the Act, reproduced above. Under subsection (1) thereof, the Tribunal has been conferred exclusive jurisdiction in respect of a final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of service of a civil servant, with two exceptions contained in clauses (b) and (c) of the proviso to subsection (1) that no appeal shall lie to the Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to, or to hold a particular post or to be promoted to a higher grade, and also against an order or decision of the departmental authority made at any time before the 1st July, 1969. In the cases of disciplinary matters, the Tribunal exercising jurisdiction under subsection (1) of Section 4 of the Act has appellate jurisdiction also in the cases of penalties of dismissal from service removal from service, compulsory retirement or reduction to a lower post or time scale or to a lower stage in the time scale which are major penalties, as aforesaid, and the jurisdiction in any other case in disciplinary matters stands conferred on a Tribunal referred to in subsection (7) of section 3 of the Act. If the intention of the legislature had been to confer jurisdiction in matters of minor penalties on a Tribunal other than that referred to in subsection (7) of section 3, in the absence of such Tribunal as convassed by the learned counsel for the appellants, such intention could have found reflection in one form or the other. Of course, in the absence of a Tribunal referred to in subsection (7) of section 3 of the Act, there is no appellate forum in the cases of minor penalties imposed by the departmental authorities, but that vacuum does not confer appellate jurisdiction on a Tribunal referred to in subsection (3) of section 3 of the Act. Bifurcation of the appellate jurisdiction in the disciplinary matters, as provided under subsection (2) of section 4 of the Act, one conferred on the Tribunal referred to in subsection (3) of section 3 of the Act and another on the Tribunal referred to in subsection (7) of the same section 3, seems to have a purpose behind it, as the orders/decisions of departmental authorities imposing departmental punishments of grave nature have been made appealable to a Tribunal headed by a person who is or has been or is qualified to be a Judge of a High Court and such number of Members possessing such qualifications as may be prescribed by the President; whereas appellate jurisdiction in cases of minor penalties has been conferred on another Tribunal consisting of one or more persons in the service of Pakistan, as may be appointed by the President. In the absence of the appellate forum in the cases referred to in clause (b) of subsection (2) of Section 4 of the Act, the civil servants seeking relief in such cases may seek relief from the competent Courts established under general law of the land as exclusion of jurisdiction of those forums under Article 212 of the Constitution is only to the extent of the jurisdiction conferred on a Tribunal. It may be mentioned that initially the law for establishing Service Tribunals was promulgated in the form of "The Service Tribunals Ordinance, 1973" (hereinafter mentioned as the Ordinance), which was repealed on the enactment of the Act. It would appear from bare reading of clause (b) of proviso to Section 4 of the Ordinance that no appeal lay against a departmental punishment/penalty except that of dismissal from service, removal from service or compulsory retirement. Herein is indicated the intention of the legislature that initially no appellate forum was provided for challenging an order/decision of the departmental authorities imposing minor penalties but an appellate forum of the Tribunal other than the Tribunal conferred jurisdiction in respect of the terms and conditions of service of a civil servant has been provided under the Act and since that forum has not been established, relief of appeal in such cases stands withheld and jurisdiction is not conferred on this Tribunal by any process of interpretation of Statutes.
8. Reference may now be made to the case law cited by the learned counsel for the appellants.
One of the cases cited by the learned counsel, Mr.M.S.Siddiqi, is that of Imtiaz Ahmad v. Ghulam All and others, reported in PLD 1963 SC 382. It was an election matter and it was observed by Their Lordships that where a right or liability is created by a Statute, which gives a statutory remedy for enforcing it, the remedy provided by that Statute must be availed of. This observation was made in the context of the exercise of writ jurisdiction in such a case. The principle enunciated in that case is applicable to the question involved in these cases only to the extent that the remedy of appeal in the cases of minor penalty provided under clause (b) of subsection (2) of Section 4 of the Act, is to be availed of, but that remedy can he availed of only before the forum provided thereunder. The second case cited by the same learned counsel is that of Sultan Ahmed Chowdhury v. Mustafizur Rehman Choudhury and another, reported in PLD 1967 Dacca 216. He made reference to placitum 'B' relating to Section 15 of the Civil Procedure Code. It was held in that case that although Section 15 of the Civil Procedure Code lays down that a suit shall be instituted in the Court of the lowest grade, yet it does not oust the jurisdiction of any court of a higher grade and, therefore, suit filed in the Court of higher jurisdiction should not fall on the ground that it was not instituted in the Court of lowest grade; but no such question of lowest or higher grade tribunal is involved in these cases and the case cited above is not relevant. The third case relied upon by the same learned counsel is that of Haji Kadir Bux and others v. Government of Sind and others, reported in 1982 SCMR 582. It was a case involving question of limitation in preferring appeals before the Service Tribunal but the question of jurisdiction of the Tribunal, as agitated in these cases, was not involved in that case and it is not applicable to the question of appellate forum in the cases of a minor penalty imposed under the E & D Rules.
9. Mr.Fazal Elahi Siddiqi, Advocate, representing the appellant in Appeal No,297(R)/1985, has placed reliance on a case Mujeebullah Ejaz v. Director-General, T&T and others, reported in PLD 1980 Quetta 58. The question of jurisdiction involved in these appeals did receive consideration in that case which was decided by a Full Bench of the High Court of Baluchistan. The question of jurisdiction of the Service Tribunal established under the Service Tribunals Act, 1973 is discussed at paragraph 15 of the judgment and the conclusions arrived thereon are summarized in paragraph
16. The relevant extracts of paragraphs 15 and 16, are reproduced below:- "15. Xx xx xx xx xx xx Section 3 of the Service Tribunals Act contemplates two classes of Tribunals.
Subsection (3) of section 3 contemplates a Tribunal consisting of a Chairman and two Members.
The said section also lays down the qualifications of person who may he appointed the Chairman or the Members. Subsection (7) of section 3 contemplates creation of a Tribunal established for exercise of jurisdiction in respect of a specified class or classes of cases. Such Tribunal may consist of one or more persons whose only qualification need he, that he is in service of Pakistan. Under subsection (2) of Section 4 of the Service Tribunals Act, an appeal, against a penalty of dismissal, removal, compulsory retirement, reduction to a lower post or time-scale, would lie before the Tribunal constituted under subsection (3) of section 3, but in all other cases appeal would iie to the Tribunal that is referred to in subsection (7) of section 3 of the Service Tribunals Act. We have been informed at the bar by the learned Advocate-General and the Advocate appearing in the cases that the Tribunal contemplated under subsection (7) of section 3 of the Service Tribunals Act has not yet been constituted." xx xx xx
16. Analyzing the relevant provisions, it would appear that an appeal shall not lie to the Tribunal in the following cases:-
(1) xx xx xx
(2) xx xx xx
(3) xx xx xx
(4) When the punishment imposed is other than the punishment of dismissal, removal, compulsory retirement or reduction to a lower post or time-scale;
(5) xx xx xx"
10. The same question of forum of appeal in the cases envisaged under clause (b) of subsection
(2) of Section 4 of the Act was also examined by a Full Bench of the Peshawar High Court in the case of Mian Amanul Mulk v. N.-W.F.P., reported in PLD 1981 Flesh. 1, and the view propounded by the Full Bench of the Baluchistan High Court in the aforesaid case, Mujeebullah Ejaz v. Director-General, T&T and others, reported in PLD 1980 Quetta 58, that the Service Tribunal established under subsection (3) of Section 3 of the Act did not have appellate jurisdiction in the cases of minor penalties, was adopted.
11. In view of interpretation of relevant provisions of the Act fortified by the decision on the question by the Full Bench of the Baluchistan High Court and the Peshawar High Court, referred to above, the decision would be that the appeals against the orders of minor penalties do not lie to this Tribunal.
All the appeals are, therefore, dismissed for want of jurisdiction. MISBAHULLAH KHAN (MEMBER).--I agree with the learned Chairman. I will, however, give my own reasons separately.
' SALAHUDDIN CHAUDHRY (MEMBER).--I have had the benefit of going through the judgment proposed to be delivered by the learned Chairman and concurred by my learned brother Misbah Ullah Khan, Member. I am in respectful disagreement with the views expressed and the conclusions reached in the judgment and with the respect, hold a contrary view.
13. Under sub-clause (a) of clause (1) of Article 212 of the Constitution of Islamic Republic of Pakistan the appropriate legislature is empowered to provide for the establishment of one or more administrative Tribunals to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of persons who are or have been in the service of Pakistan including disciplinary matters. Clause (2) of the said Article excludes the jurisdiction of every other Court when an administrative Court or Tribunal is established under clause (1) of Article 212. It follows, therefore, that the only forum to which a person in the service of Pakistan can approach to seek redress of any grievance arising out of matters relating to his terms and conditions of service including disciplinary matters, is the Tribunal established by the appropriate legislature.
14. To provide for the establishment of Service Tribunals, the Parliament enacted the Service Tribunals Act, 1973, subsection (1) of section 3 of which envisages the establishment of one or more Tribunals. For the sake of convenience the said section 3(1) is reproduced below:- "3. Tribunals.-(1) The President may, by notification in the official gazette, establish one or more Service Tribunals and, where there are established more 'than one Tribunal, the President shall specify in the notification the class or classes of civil servants in respect of whom or the territorial limits within which, or the class or classes of cases in respect of which, each such Tribunal shall exercise jurisdiction under this Act."
' A plain reading of the language of the above provision will show that the establishing of more than one Tribunal is not mandatory. The words used are one or more". It is thus clear that the Act does envisage the situation where only one Tribunal may be established. No doubt the latter part of the above subsection provides for the assigning or specifying of jurisdiction separately for each Tribunal on the basis of territory or classes of civil servants or classes of cases. But the occasion for separately specifying the jurisdiction will arise only "where there are established more than one Tribunal." It follows, therefore, that the legislature left it to the discretion of the President to establish one or more Tribunals depending upon administrative or other considerations. At present there exists only one Tribunal established by the President in exercise of the powers conferred by section 3 of the Service Tribunals Act, 1973, vide notification, dated the 22nd February, 1974. No other Tribunal including the one envisaged in sub-clause (7) of section 3 has been established. Reading the provisions of sections 3 and 4 together, there can be no dispute that the Tribunal already established has the jurisdiction to deal with all appeals arising out of matters relating to terms and conditions of service like seniority, right to be considered for promotion, pay fixation etc. And cases of disciplinary proceedings involving major penalties. The question for consideration is: Does the jurisdiction of the Tribunal established under subsection (1) read with subsection (3) of section 3 stand ousted in respect of cases involving minor penalty leaving no forum from where a civil servant who has illegally or wrongly been punished by the imposition of a minor penalty, could seek redress?
15. No doubt it has been provided in clause (b) of subsection (2) of section 4, that matters relating to minor penalties are to be dealt with by a Tribunal established under subsection (7) of section 3, there is nothing in the Act to bar the jurisdiction of the Tribunal established under subsection (1) read with subsection (3) of section 3 to hear appeals against orders imposing minor penalty where a Tribunal under subsection (7) of Section 3 has not been established. It may be mentioned here even at the risk of repetition that under the Service Tribunals Act, 1973 the establishing of more than one Tribunal is not mandatory. As already stated, clause (2) of Article 212 of the Constitution bars the jurisdiction of every Court once a Tribunal is established under clause (1)(a) of the said Article.
In case the legislature intended to oust the jurisdiction of the Tribunal established under subsection
(1) read with subsection (3) of section 3 of the Service Tribunals Act, 1973 in respect of minor penalties without there being in existence a Tribunal under subsection (7) of section 3, then that ouster shall be ultra vires of the Constitution itself inasmuch as no other Court shall have jurisdiction to intervene although Article 212 envisages a Tribunal that will have the jurisdiction to deal with all disciplinary matters irrespective of the quantum or nature of penalty involved. It would not be logical to say that no remedy would be available to a person on whom a minor penalty has been imposed as there is no Tribunal established under subsection (7) of section 3 of the Service Tribunals Act, 1973.
16. The spirit of Article 212 of the Constitution was to provide a speedy remedy to persons in the service of Pakistan by establishing Tribunals which could deal with their grievances arising out of their terms and conditions of service including disciplinary matters. Keeping that in view, it would be reasonable to interpret the relevant provisions of law to mean that "civil servants" on whom 'minor penalty' has been imposed would be subject to the jurisdiction of the Tribunal if one is established under sub-rule (7) of section 3 and where it has not been established, to the one established under subsection (3) read with subsection (1) of section 3 of the Service Tribunals Act, 1973. It is a cardinal principle of interpretation that where two meanings can be attributed to a provision in law, the one advancing the remedy shall have to be preferred.
17. For the aforesaid reasons, therefore, I am of the view that this Tribunal I I has the jurisdiction to hear appeals from orders imposing minor penalty as well.
' MISBAH ULLAH KHAN (MEMBER).-I am in respectful agreement with the conclusion arrived at by the learned Chairman that a Tribunal established under subsection (3) read with subsection (4) of section 3 of the Service Tribunals Act, 1973, has no jurisdiction in respect of cases involving disciplinary action where penalty imposed is not of dismissal from service, or of J removal from service or of compulsory retirement or of reduction to a lower post or time scale or to a lower stage in a time scale. The learned Chairman has given such reasons as are not open to any exception, nor it appears necessary to reiterate them. However, in view of the importance of the question I want to add a few wards of my own.
19. It is settled principle of interpretation of statutes that no provision can be read in isolation when construing any sections of any Act of Parliament. On the other hand in such as case the entire law is to be read as one instrument. Now subsection (3) of section 3 contemplates a Tribunal which is headed by a Chairman possessing qualification for appointment of a Judge of a High Court, in case he is not serving or a retired Judge. Not less than three Members along with Chairman constitute the Tribunal. The Members also are required to possess such qualifications' as may be prescribed by the Rules. Subsection (7) however, is an exception wherein it is provided that certain classes of cases may be brought within the jurisdiction of one or more persons in the service of Pakistan who may be appointed by the President. Thus, under this subsection length of service or any other qualification is not necessary. The only requirement is that persons appointed to form the Tribunal under subsection (7) should be those who are in the service of Pakistan. It is thus clear that the constitution of the two Tribunals materially differ. The logic behind this arrangement is understandable. The law makers did not want to burden the Tribunal possessing the qualifications laid down in subsection (3) of section 3 to deal with cases which are of special nature or are of less importance. Clause (h) of subsection (2) of section 4 on the other hand, specifically lays down that the cases not involving major penalties of dismissal, removal, compulsory retirement etc., are to be dealt with by the Tribunal established under subsection (7) of Section 3.
20. The question which in my view desires consideration is whether in the absence of Tribunal contemplated by subsection (7) of section 3, the Tribunal constituted under subsection (3) ibid shall have jurisdiction in respect of cases coming within the ambit of clause (b) of subsection (2) of section 4. The arguments on behalf of the appellants appear to be that where no Tribunal under subsection (7) of section 3 is established that the Tribunal constituted under subsection (3) of that section shall have the jurisdiction in respect of matters falling under clause (b) of subsection (2) of section 4. This interpretation amounts to violating the language of the law itself. Had there been no Tribunal established under subsection (3) of section 3 then obviously the ordinary Courts of civil jurisdiction or the High Courts in exercise of their extraordinary jurisdiction under Article 199 would have the power to decide the dispute. But when in respect of certain matters a Tribunal has been established the residue is to remain with the civil Courts or the High Courts as the case may he and not with the Tribunal established for a distinct purpose. It is a generally accepted law that if a special Tribunal is to he constituted to adjudicate upon the rights created by a law and if that Tribunal functions then in that event the jurisdiction of the civil Court shall stand ousted. But if that special Tribunal never comes into being, the jurisdiction of the civil Court could not he ousted.
21. The general principle is that in all matters involving civil rights the Courts contemplated under section 9 of Code of Civil Procedure have the jurisdiction. That jurisdiction is to be guarded and not to be easily done away. The position now is whether in the absence of a Tribunal contemplated under subsection (7) of section 3 the civil Court or the High Court will have the jurisdiction or whether the jurisdiction will he that of a Tribunal constituted under subsection (3) of section 3. The principle which has been enunciated above leaves no room for doubt that when there is no Tribunal of special jurisdiction then power of adjudication rests with the civil Courts and the residuary power cannot he transferred to a Tribunal constituted for a different purpose in preference to the civil Courts.
22. The above reasons arc in addition to the reasons given by the learned Chairman and agreeing with him, I dismiss all these appeals without any order as to costs. ORDER OF THE TRIBUNAL ' By virtue of clause (a) of subsection (2) of section 3-A of the Service Tribunals Act, 1973, all the appeals stand dismissed.