' A.IMAL MIAN, J.---Leave to appeal was granted from the judgment dated 20-12-1987 passed by the Federal Service Tribunal, Islamabad, hereinafter referred to as the Tribunal, in Appeal No,322(R)/1985 filed by the respondent, which was allowed and his termination order dated 6-8- 1984 was set aside to consider the question, whether the Tribunal had no jurisdiction to hear the appeal as the provisions of subsections (2), (3) and (4) of section 10 of Pakistan International Airlines Corporation Act, 1956, hereinafter referred to as the Act, incorporated by Ordinance No,111 of 1984, had no retrospective effect.
2. The facts to be noted arc that the respondent while working as Sales Officer in the appellant's Sales Office, Rawalpindi, was served with a charge-sheet dated 31-5-1984 alleging that he sold a used ticket in the name of Mrs.Komalia Afia to passenger Ashfaq Ahmed on charging of Rs, 900.
The above charge-sheet was replied to by the respondent through his letter dated 3-6-1984. After that the Inquiry Officer was appointed, who found the respondent as guilty. Thereupon a second show cause notice dated 19-6-1984 was served upon the respondent which was replied to by the respondent on 21-6-1984. Thereupon, the respondent was heard by the Director Marketing on 10-7- 1984. After that the Director passed an order, which was conveyed to the respondent through a letter dated 6-8-1984, terminating the respondent's services with immediate effect alongwith normal terminal benefits, as the reply was found un-satisfactory. Against the above order, the respondent filed a departmental appeal which was dismissed. Thereupon, the respondent served a grievance notice dated 4-11-1984 under Section 25-A of the Industrial Relations Ordinance, 1969, hereinafter referred to as the Ordinance. It seems that on 15-11-1984 aforesaid subsections (2), (3) and (4) were incorporated in section 10 of the Act by aforesaid Ordinance No, III of 1984. Under the above newly-incorporated subsection (3), it was provided "that the service under the Corporation is hereby declared to be the 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 purpose of the Service Tribunals Act, 1973 (LXX of 1973)". However, the respondent filed a petition under Section 25-A of the Ordinance before the Punjab Labour Court No,6, Rawalpindi, on or about 8-1-1985. To the above petition, the appellant filed a reply dated 2-3- 1985 which inter alia contained four preliminary objections, which read as follows:-- "(1) That Pakistan Essential Services (Maintenance) Act 1952 is applicable to the respondent Organization by virtue of para 10 of Martial Law Regulation No, 52, therefore, this learned Court has no jurisdiction to entertain and try this petition.
(2) That the petitioner was drawing wages in Pay Group therefore the Industrial Relations Ordinance 1969 is not applicable to the petitioner and the petition is not competent.
(3) That the petitioner fell within the definition of Civil Servant and was not a worker or workman, therefore, the petition before this learned Court is not maintainable.
(4) That the Labour Court has no jurisdiction to entertain and try this petition."
' It appears that apart from raising above written objections which inter alia included the averment that the respondent was a civil servant, same objection was raised orally before the Labour Court which passed the following order on 14-10-1985:-- "By virtue of subsection (3) of section 2 of Ordinance No, LIII of 1984, the P.I.A. Corporation Act 1956 has been amended and the service under the Corporation has been declared to be the service of Pakistan and every person holding a post under the Corporation, not being a person on deputation to the Corporation, is to be deemed as a Civil Servant for the purposes of the Service Tribunal Act 1973. It is not the case of the petitioner that he is a deputationist, hence the remedy of the petitioner against termination of his service lies before the Service Tribunal and not before this Court.
' The grievance petition is accordingly ordered to be returned to the petitioner for want of jurisdiction of this Court to be presented before the proper forum."
' The respondent presented service appeal on 15-10-1985 i.e, on the following day of the passing of the above order alongwith an application for condonation of delay under Section 5 of the Limitation Act. Before the Tribunal the appellants filed written objections in which two objections were raised, namely, that the appeal was time-barred and that at the time of termination of the respondent's services the Pakistan Essential Services (Maintenance) Act, 1952, was applicable. The Tribunal, after hearing the parties, through a detailed judgment under appeal concluded as follows:- "The above analysis has shown that the finding of the guilt recorded against the appellant is not based on valid evidence. Charges against the appellant could not be substantiated have called for imposition on him of any punishment much less punishment of dismissal from service, which is a capital punishment in the Service Laws and can be imposed only when it is proved beyond any reasonable doubt that the accused has committed capital offence. I am therefore led to the conclusion that on (sic) plane also, the impugned order is totally unjustified, unwarranted and cannot be sustained."
' As a result of the recording of the above finding, the respondent's appeal was allowed and he was reinstated by the Tribunal through the judgment under appeal. The appellants, therefore, filed the above appeal with the leave of this Court on the question referred to hereinabove.
3. In support of the above appeal, Raja Muhammad Akram, learned A.S.C. Appearing for the appellants, has vehemently contended that as at the time of the passing of the termination order on 6-8-1984 subsection (3) of section 10 of the Act was not by then incorporated, the respondent could not have filed appeal before the Tribunal. In support of his above submission, he has relied upon the following cases:-
(i) Muhammad Afzal v. Board of Revenue, West Pakistan and another (PLD 1967 SC 314).
(ii) Nabi Ahmed and another v. Home Secretary Government of West Pakistan, Lahore and 4 others (PLD 1969 SC 599).
(iii) Federation of Pakistan v. Muhammad Siddiq (PLD 1981 SC 249).
(iv) Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners (PLD 1981 SC 553).
(v) Idrecs Ahmad and others v. Hafiz Fida Ahmad Khan and 4 others (PLD 1985 SC 376).
(vi) The Colonial Sugar Refining Company Limited v. Irving (1905 A.C. 369).
' On the other hand, Mr.M,Bilal, learned A.S.C. Appearing for the respondent, besides urging that the above cases have no application and that the appeal filed by the respondent before the Tribunal was competent, has submitted that it is on the objection of the appellant that the learned Labour Court passed the aforesaid reproduced order dated 14-10-1985 and, therefore, it is not open to the appellants to raise the above plea particularly when the same was not even raised before the Tribunal.
4. The above submission of Mr. M. Bilal seems to be factually correct. We have already reproduced the preliminary objections raised by the appellants before the Labour Court. It is evident from the above-quoted para 3 of the preliminary objections that it was asserted by the appellants that the respondent was a civil servant. It is also apparent from the order passed by the Labour Court on 14- 10-1985 that the same was passed at the behest of the appellants. It is also manifest from the objections filed by the appellants to the respondent's memo of appeal before the Tribunal that no objection was raised before the Tribunal as to its jurisdiction. In the background of the above factual aspect, in our view, it will not be just and proper to non-suit the respondent on the above ground.
5. Even otherwise, the above submission is devoid of any force. In this regard, it may be observed that out of the above-cited cases, the judgment of this Court in the case of Federation of Pakistan v. Mohammad Siddiq is applicable on all fours to the present case. It may be advantageous to quote the following observations from the above judgment:- "As noted in the opening part of this judgment, the appeals Nos. 49 and 50 fall into a separate category. Suits of WAPDA employees (respondents) were filed on 31st of June, 1974. They were decreed on 30th of July 1975. The WAPDA filed appeals before the District Courts which were withdrawn on 3rd February, 1976. 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 (excepting few exclusions) for the purpose of the 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 situations 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 synchronised 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 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 Court on 30th of September, 1975. Therefore, they abated on the said date. That being so, the WAPDA had the right to file appeals before the Tribunal under the proviso to section 6 of the Act. Of course, the said provision, on account of natural barrier of time would apply mutatis mutandis, meaning thereby that the period of limitation would commence from the date of the abatement; namely, 30th of September, 1975. The view of the Tribunal that the appeals were not competent because the matter was not pending before the original Courts before the 29th of September 1973, was ex facie erroneous. The relevant date in these cases was the 30th of September 1975 when the Act was extended to the employees of the WAPDA. These two appeals are accordingly allowed and the cases are remanded to the Service Tribunal for decision on merits."
6. A perusal of the above-quoted passage from the above judgment indicates that similar submission which has been made by Raja Mohammad Akram was repelled and it was held that after the incorporation of similar provision by the West Pakistan Water and Power Development Authority (Amendment) Ordinance (XVI of 1975) which came into force on 30-9-1975, civil appeals before District Courts relating to WAPDA employees abated in view of Section 6 of the Service Tribunal Act, 1973, though the impugned orders were passed prior to 30-9-1975. In this regard, reference may also be made to clause 2 of Article 212 of the Constitution, which reads as follows:- "(2) Notwithstanding anything hereinbcfore contained, where 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: ' Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Majlis-e-Shoora (Parliament) by law extends the provisions to such a Court or Tribunal."
' The effect of the above-quoted sub-clause (2) of above Article and section 6 of the Service Tribunal Act, 1973, was that upon the establishment of the Tribunal, no other Court had jurisdiction in the service matters covered by the aforesaid Service Tribunal Act.
7. At this juncture, it may be pertinent to reproduce subsections (2), (3) and (4) which were incorporated in the Act by Ordinance No,LIII of 1984, which read as follows:- "2. Amendment of Section 10, Act XIX of 1956.- - In the Pakistan International Airlines Corporation Act, 1956 (XIX of 1956), section 10 shall be renumbered as subsection (1) of that section and, after subsection (1) renumbered as aforesaid, the following new subsections shall be added, namely:-
(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 service 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.
(3) 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 on deputation to the Corporation, shall be deemed to be a civil servant for the purposes of the Service Tribunal Act, 1973 (LXX of 1973).
(4) Nothing contained in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968 (W.P. Ordinance No, VI of 1968), or the Industrial Relations Ordinance, 1969 (XXIII of 1969), shall apply to or in relation to the Corporation or any of the officers, advisers and employees appointed by it."
8. In our view, the effect of declaring service under the Corporation as the service of Pakistan and by deeming provision making an employee of the Corporation a civil servant for the purposes of the Service Tribunal Act, 1973, and in view of clause 2 of Article 212 of the Constitution, no other Court could entertain respondent's above appeal on the day when it was filed on 15-10-1985 as the above provisions came into force in November, 1984.
9. The remaining above-cited cases are not applicable to the present case, which inter alia laid down that the right of appeal is a creation of statute, it cannot be taken away nor it can be claimed in the absence of express provision and that a person is entitled to the remedies in the form of appeal etc. Which were available to him when he initiated legal proceedings in the absence of a contrary intention expressly or by necessary intendment in the relevant statute. In the instant case, in view of the above constitutional and statutory provisions, the above principles of law cannot be pressed into service.
10. We may point out that the objection of the appellant that in view of the application of the provisions of the Pakistan Essential Services Act, 1952, to the appellant Corporation, the respondent was not entitled to approach the Labour Court or the Service Tribunal, was also not sustainable in law. In the case of Karachi Electric Supply Corporation Ltd, v. National Industrial Relations Commission (PLD 1982 SC 113) and the case of Karachi Electric Supply Corporation Ltd. v. National Industrial Relations Commission and another (PLD 1982 SC 125), it was held by this Court that any breach of the provisions of the above Act would entitle a party to institute proceedings as provided in Section 7 of the said Act. The above judgments were construed as having laid down that the person who is subject to the application of the provisions of the said Act could not approach any other forum, but this Court in a recent case, namely, Pakistan Television Corporation v. M.Babar Zaman and others (1989 SCM R 1549) has clarified the above position as follows:-- ' 'The provisions of the Act and their examination in K.E.S.C's case establish a distinction between the regulatory powers (exercisable by the Federal Government or an authority specified by it under section 6 of the Act), punitive powers (exercisable by a servant of the Government empowered to file a criminal complaint in writing under section 7 of the Act) and the adjudicatory powers in other respects left untouched by the Act. The regulatory power was held in that decision not to extend, encroach upon or affect in any manner the adjudicatory set up. When it is provided in section 7-A of the Act that "the provisions of this Act shall have effect, notwithstanding anything to the contrary contained in the Industrial Relations Ordinance, 1969 (XXIII of 1969) or any other law" the impact is created only to the extent of contrariety and not in the domain where there is no contrariety.
Section 3 applies the Act to every employment under the Federal Government and in spite of the Act there is an established adjudicatory system of Service Tribunals for Civil Servants. Similarly, those who fall in the category of workmen and are not exempted from application of Industrial Relations Ordinance can have recourse to the Labour Courts. Those who are excluded from the Labour Courts also can resort to Constitutional jurisdiction if the rules governing them happen to be statutory as recognized in the case of the Principal, Cadet College Kohat and another v.
Muhammad Shoaib Qureshi PLD 1984 SC 170."
' From the above-quoted observation. It is evident that on 15-10-19851 when the respondent filed the service appeal, he could press into service jurisdiction of the Tribunal, and the application of the provisions of the aforementioned Act to the appellant Corporation was no bar.
11. As regards the merits of the case, Raja Mohammad Akram, is unable to demonstrate that the above-quoted finding on merits recorded by the Tribunal suffers from any legal infirmity.
' The appeal has, therefore, no merits. It is accordingly dismissed. However, there will be no order as to costs.