' SALAHUDDIN CHAUDHRI (MEMBER).--The appellant, Nasim Malik, was Cargo Manager, P.I.A.C. In Pay Group VIII at Rawalpindi. In August, 1982, he was posted to Oman as Manager, P.IA. He had hardly served for a period of eight months and ten days in Oman when he was recalled to Pakistan and he accordingly reported at the Pakistan International Airlines Corporation Headquarters, Karachi, on the 19th of June, 1983.
2. Shortly thereafter the Managing Director informed him that the Management wanted him either to resign from service or he will have to face dismissal from service under M.L.R.
52. To bring this development to the notice of the Managing Director, Pakistan International Airlines Corporation, the appellant addressed a letter to him on the 25th of July, 1983, and also requested for an interview. The relevant paras of the said letter are reproduced hereunder:-- "(1) It is respectfully submitted that I have been instructed by Director Marketing that in compliance of a decision of the Management I should either submit my resignation from the service of the Corporation or face removal from the service of the Corporation under Martial Law Regulation No,
52. I have not been advised of the reasons for this harsh and abrupt decision, which has followed my premature recall from posting abroad.
(2) This decision has come to me as a big shock as for the last 18 years I have served the National Airline honestly and diligently. According to the best of my knowledge and belief I have not been involved in any misconduct or any other conduct prejudicial to the interest of the Corporation or the country which should warrant my removal from the service of the Corporation. It is possible that I have become the victim of some unfair and unverified reporting, and if a proper and independent investigation is carried out my position would be clarified."
' During the interview, it is claimed by the appellant the Managing Director confirmed what had been conveyed by the Director Marketing.
3. On the 1st of August, 1983, the appellant tendered his resignation which is in the following words:- - "Director Marketing, . P.IA., Karachi Airport. Sir, ' I respectfully refer to my application dated 25th July, 1983, and my subsequent interview with the Managing Director on 31st July, 1983, for which I am grateful to the Managing Director, Director Administration and yourself.
' According to the best of my knowledge and belief I am neither involved in any misconduct nor accused of any corruption or inefficiency. However, in view of my circumstances, I hereby submit my resignation, and for this purpose serve upon the Corporation three (3) months' notice, as required under the rules. At the end of this notice, my resignation may kindly be made effective.
' As earlier submitted, on account of my premature recall from foreign posting I have been destroyed financially. As an officer who has served the Corporation honestly and who has neither any household effects nor any resources my prime objective for sustenance is to seek a reasonable and respectable rehabilitation. For this purpose, I require free and rebated passages available to me and my family for the year 1983, and the same may kindly be approved.
' In view of the circumstances of this resignation, and also the fact that I have been restrained from earning my pension, I may kindly be given compensation amounting to ten (10) months wages as awarded to those employees who were recently made redundant.
' I once again wish to thank the Managing Director, Director Administration, yourself, my superiors and colleagues for their kindness, from time to time, and pray for the greater success of the Corporation."
' This resignation was accepted vide Pakistan International Airlines Corporation's letter, dated the 16th of August, 1983. Thereafter, the appellant made some unsuccessful representations for his reinstatement and finally on 18-2-1984 he approached the Wafaqi Mohtasib (Ombudsman) with a complaint requesting for an order of reinstatement. On 12-3-1984 when his complaint was pending with the Wafaqi Mohtasib (Ombudsman), he again approached the Pakistan International Airlines Corporation with the request that his resignation may be converted into termination/dispensation of service with effect from the date of his resignation. This request was acceded to and the services of the appellant were terminated by order dated 18-3-1984.
4. The complaint of the appellant before the Wafaqi Mohtasib (Ombudsman) became unsuccessful for want of jurisdiction in so far as it related to his request for reinstatement but, at the same time, through his good office the appellant was able to receive the retirement benefits from the Pakistan International Airlines Corporation.
5. With effect from the 15th of November, 1984, the Pakistan International Airlines Corporation Act, 1956 was amended and inter alia following subsections (2) and (3) in section 10 thereof were added by Ordinance No, LIII of 1984.
"(2) Notwithstanding anything contained in subsection (1) or any law, settlement or award for the time being in force, or any rules or regulations framed under this Act, or any rules, regulations, orders or instructions issued by the Corporation, or in the terms and conditions of service of any person employed by, or serving under the Corporation, the Corporation may at any time retire or remove from its service any person without assigning any reason, after giving him an opportunity of being heard and not less than ninety days' notice or pay for the period by which such notice falls short of ninety days; and, subject to subsection (3), no such order of retirement or removal shall be called in question before any Court or Tribunal or other Authority.
' Service under the Corporation is hereby declared to be service of Pakistan, and every person holding a post under the Corporation, not being a person who is on deputation to the Corporation, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973 (LXX of 1973)."
(3)Nothing happened thereafter for some time but on 12-3-1986 the appellant addressed a departmental appeal to the Chairman, Pakistan International Airlines Corporation, against his resignation claiming that the same was not voluntary and having been obtained through duress and coercion it was a nullity in the eye of law. His departmental appeal was rejected by letter dated 6-4-1986 in the following words:-- "Please refer to your application dated 12-3-1986 addressed to Chairman, P.I.A.C., Rawalpindi for reinstatement in service.
(2) It is regretted to inform you that your request for reinstatement in service with compensatory benefits has not been acceded to by the Management."
' Aggrieved by this order the present appeal was filed before the Tribunal under section 4 of the Service Tribunals Act, 1973 read with subsection (3) of section 10 of the Pakistan International Airlines Corporation Act, 1956.
6. In this appeal the appellant has reiterated that resignation was obtained from him under duress and coercion and as such it was a nullity in the eye of law. The appellant claimed that shortly after return from Oman he was abruptly given the choice either to resign from service or to face action under M.L.R.
52. It has been added by him that in spite of his several representations/appeals, no one was prepared to listen to him nor anyone explained to him as to why he was being asked to tender his resignation and for which misconduct he was threatened for action under M.L.R.
52.
7. One of the preliminary objections raised by the respondents is that this Tribunal has no jurisdiction to entertain the appeal because the impugned action had been taken against the appellant long before the jurisdiction was conferred on the Tribunal by Act LIII of 1984 which amended the Pakistan International Airlines Corporation Act with effect from 15-11-1984. The learned counsel has argued that the amendment made in the Pakistan International Airlines Corporation Act, 1956 has no retrospective effect and, therefore, the Tribunal having no jurisdiction at the time of passing the impugned order cannot reaper the controversy.
8. Proceeding to deal with this objection, we may first refer to clause (2) of Article 212 of the Constitution of Islamic Republic of Pakistan which reads as follows:-- "(2) Notwithstanding anything hereinbefore contained, when any Administrative Court or Tribunal is established under clause (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 (other than an appeal pending before the Supreme Court), shall abate on such establishment."
A plain reading of the above clause shows that when an Administrative Tribunal or Court is established no other Court can exercise jurisdiction in matters relating to the terms and conditions of a civil servant to which category the appellant was brought by amending the Pakistan International Airlines Corporation Act, 1956. The Tribunal in the case of the Pakistan International Airlines Corporation employees shall be deemed to have been established with effect from 15-11- 1984 when the Act was amended. In this respect we may refer to the case of Federation of Pakistan v. Muhammad Siddiq PLD 1981 Supreme Court 249. In this case the relevant part of the judgment is at page 261 dealing with Appeals Nos. 49 and 50 of the WAPDA employees. Like the Pakistan International Airlines Corporation employees, the Water and Power Development Authority employees were made civil servants by amending the WAPDA A ct with effect from 30-9-1975. In respect of the employees of the WAPDA the Honorable Supreme Court made the following observations:-- The Water and Power Development Authority (Amendment) Ordinance, 1975 came into force on 30th of September, 1975. It was declared that the service under the WAPDA would be the service of Pakistan for the purposes of the Act (Service Tribunals Act). The service appeals filed by the WAPDA were dismissed by the Service Tribunal as incompetent on the assumption that the Amendment Ordinance having come into force on 30th September, 1975, the appeals filed before the Tribunal could not be entertained because the suits or appeals before the Civil Courts out of which they arose were not pending at the time of the passing of the Act. In such like situation the underlying principle appears to be that when a statute is extended to a territory or class of persons who were originally not covered by it, regarding those territories and persons when a new statute is enacted 'by reference' to the original statute, the date of commencement given in the original statute is synchronized with the date on which the said statute is extended to the new territories and/or persons. In these cases, the original statute, i,e, the Act was enacted on 29th of September, 1973.
The Water and Power Development Authority (Amendment) Ordinance, 1975 whereby the Act was extended to the WAPDA employees came into force on 30th of September, 1975. Therefore, the Act would apply mutatis mutandis to the WAPDA employees on and after 30th of September, 1975. The civil appeals by the WAPDA filed before the District Court against the decrees passed by the learned trial Judge were pending before the District Courts on the 30th of September, 1975.
Therefore, they abated on the said date.................................
On the same analogy, the date when the Pakistan International Airlines Corporation Act was amended, the Service Tribunals Act, 1973 became applicable to the employees of the Pakistan International Airlines Corporation. Now, the definition of "civil servant" given in clause (a) of section 2 of the Act covers also those persons who had been "civil servants" within the meaning of the Civil Servants Act, 1973. Applying the amending Ordinance with reference to the Service Tribunals Act and the definition of the civil servant given therein, the logical conclusion would be that all those persons who are or were the employees of the Pakistan International Airlines Corporation, would be deemed to be civil servants for the purposes of the Service Tribunals Act, 1973. The appellant, therefore, shall be deemed to be a civil servant for the purposes of Service Tribunals Act, 1973, and as such he can approach the Tribunal by way of appeal under section 4 of that Act. The specific point had come up before this Tribunal in the case of Shahid Burkie v. Chairman, Pakistan International Airlines Corporation and another in Appeal No, 155(K) of 1986 and the learned Member made the following observations:-- "A combined effect of the above provisions would be that although the Service Tribunals Act, 1973 was promulgated on September 29, 1973, it conferred a right of appeal to the Tribunal against any order passed by a departmental authority after the 1st of July, 1969 (This is the date given in section 4 of the Act). It is thus quite clear that the Service Tribunals Act provided a right of appeal not only against the order passed after the promulgation thereof but also against any order passed prior thereto but after the 1st July, 1969, within thirty days of the communication of such order or within six months of the establishment of the appropriate Tribunal, whichever is later. I, therefore, hold that in the case of the employees of the P.IA.C this Tribunal shall be deemed to have been established on the 15th of November, 1984 and as such any order passed after the 1st July, 1969 and before the 15th November, 1984, could be brought before this Tribunal within six months from the 15th November, 1984."
In view of the above facts we are not inclined to accept objection of jurisdiction raised by the learned counsel for the respondents.
9. The other preliminary objection relates to the limitation. The impugned order accepting the resignation, was passed on 16-8-1983. Against this order the appellant made a belated appeal on 12-3-1986. This was rejected, as already stated, on 6-4-1986. No doubt the departmental appeal was barred by time but the same was not dismissed on that ground which would mean that it was dismissed on merits. In the case of Muhammad Yousaf v. Member, Central Board of Revenue 1970 SCMR 170 it was held by the Honourable Supreme Court that where an appeal is decided by the appellate authority which was conscious of question of limitation, the decision on merits implies that the delay was condoned. In this case also since the appeal has been decided on merits, we have to presume that condoning the delay, the Chairman, Pakistan International Airlines Corporation had rejected the appeal of the appellant on merits. From the date of rejection of departmental appeal, the present appeal was filed within 30 days and as such it is quite within time.
10. It was also contended as a preliminary objection that the appellant having himself tendered the resignation, he was now estopped from challenging the same. Needless to say, that the rule of estoppel is a rule of evidence. The appellant shall be estopped from challenging his own resignation if it was voluntary. However, when it is the main-stay of the appellant's case that the resignation was obtained through duress and coercion, the question of estoppel would not arise: for any act done under duress and coercion is a nullity in law and has no foundation whatsoever. If the appellant succeeds in proving that the resignation was obtained through duress and coercion he has to succeed. The learned counsel for the respondents has relied on a number of cases on the question of limitation and jurisdiction but in view of the clear enunciation of law by the honorable Supreme Court, as reproduced above, we do not think it necessary to refer to them.
Needless to say, that on the question of limitation, reference was mainly made to the cases in which condo nation of delay was prayed for. In the present case, the appellant does not claim condo nation but his stand is that his appeal having been filed within 30 days of the final appellate order of the Chairman, Pakistan International Airlines Corporation, the appeal was within time.
11. We now come to the merits of the case. It has already been mentioned in para. 2 above that after his return from Oman, the appellant was conveyed the Management's decision that he should either submit his resignation or be prepared to face action under M.L.R.
52. On the 25th of July, 1983 i,e, before the appellant actually tendered his resignation, he brought this fact to the notice of the Managing Director through an application, extracts from which have already been reproduced in the said para. This shows that the position taken before us by the appellant now, had been taken by him immediately on return from abroad and the irresistible conclusion is that he had been asked to tender his resignation. Apart from this, the letter of resignation itself shows that this was not an unconditional resignation but was the result of some pressure which was being brought to bear on the appellant. For the facility of reference we have already reproduced in the beginning of this order the letter of resignation tendered by the appellant.
12. Another aspect of the case is that after tendering the resignation the appellant immediately started making representations and seeking interviews with the higher authorities to know the reason for which he was being asked to tender the resignation under threat of proceedings under M.L.R.
52. It is strange that no reply in this respect in writing was given to him. These facts by themselves establish mala fides on the part of the Pakistan International Airlines Corporation Authorities.
13. For the reasons stated above, therefore, we are firmly of the view that the resignation obtained from the appellant was so obtained under duress and coercion and as such had no legal effect and the orders passed thereon are ab initio void. We, therefore, allow this appeal and direct the reinstatement of the appellant with effect from the date from which his resignation was accepted.
He will also be entitled to the consequential benefits of reinstatement.
14. No order as to costs.
15. Parties to be informed accordingly.