1. According to the contents of the plaint, the plaintiff in this case was appointed as Senior Law Officer in Grade-III with defendant No. l Karachi Electric Supply Corporation. Limited, hereinafter referred to as 'the K.E.S.C.', in July, 1982. On 19-12-1993 during an open Katchehri held by the then Prime Minister of Pakistan. The plaintiff claims to have submitted an application urging his grievance of denial of promotion to him by the management of K.E.S.C. Consequently, directive was issued by Prime Minister's Secretariat for appointment of the plaintiff as Deputy Managing Director Grade-VI in the establishment of K.E.S.C. Subsequently, the Board of Directors of K.E.S.C. In its meeting held on 26-1- 1994 resolved to create/regularise a post of Deputy Managing Director in Grade-VI and appointed the plaintiff to the said post. It is further the case of the plaintiff that his appointment as Deputy Managing Director was confirmed by the Chairman and Managing Director of K.E.S.C. With effect from 26-7-1994 upon completion of six months' service. The plaintiff officiated as the Managing Director for various periods till 10-12-1996 when Defendant No.3 (now deceased) was appointed as Managing Director of K.E.S.C. According to the plaintiff, attitude of Defendant No.3 from the day he took over as Managing Director was hostile towards the plaintiff and after sometime the plaintiff was asked to quit the service failing which disciplinary proceedings were threatened. The plaintiff addressed a letter dated 15-3-1997 to Defendant No.3 pointing out the various acts of mala fides and pointed out further the defects in the various policy decisions taken by Defendant No.3. Such letter caused annoyance to defendant N0.3 who manoeuvered a decision by the Board of Directors of defendant No.2, Managing Agents of K.E.S.C. For abolition of the post of Deputy Managing Director. The decision about the abolition of post of Deputy Managing Director was communicated to the plaintiff through a letter dated 27-3-1997. In such background, the present proceedings have been filed by the plaintiff with the following prayer: "(a) A declaration to the effect that the impugned letter dated 27-3-1997 issued by Defendant No. 3 is illegal, arbitrary, ab initio, void, ultra vires, coram non judice, mala fide and of no legal effect.
(b) Permanent injunction restraining the defendants above named, their agents, employees, servants, successors-in-interest and/or any other person or persons claiming through or under them from giving effect to the impugned letter dated 27-3-1997 and/or from interfering in the discharge of the duties of the Plaintiff as Deputy Managing Director of Defendant No. 1 and from taking adverse action of any nature whatsoever including termination, suspension, demotion, dismissal and/or withholding, withdrawing facilities of Deputy Managing Director of the Plaintiff."
2. Alongwith the plaint, an application for interim injunction was filed seeking relief of restraint against the defendants from giving effect to the letter dated 27-3-1997 and from interfering with performance of duties by the plaintiff as the Deputy Managing Director of K.E.S.C. By way of ad interim order the defendants were restrained from taking any steps prejudicial or detrimental to the terms and conditions of service of the plaintiff. During hearing of the injunction application, on 11-6-1997, the learned counsel for the defendants raised an objection that on account of amendment in Service Tribunals Act, 1973, by way of Act XVII of 1997 read with Article 212 of the Constitution, the present proceedings had abated. I have heard both the learned counsel on the limited question as to effect of the Service Tribunals (Amendment) Act (XVII of 1997).
3. Mr. Ikram Ahmed Ansari, on behalf of the defendants, has urged that K.E.S.C. Is, admittedly, a body controlled by the Federal Government. Resultantly, after promulgation of Act XVII of 1997 which received assent of the President of Pakistan on 7th June, 1997, the plaintiff has become civil servant within the meaning of the Service Tribunals Act, 1973. It is contended that the plaintiff, through the present proceedings, has sought enforcement of the terms and conditions of his service which can be agitated before the Service Tribunal alone. It is further urged that by virtue of Article 212 of the Constitution after establishment of Service Tribunal, a civil servant cannot agitate his grievances relating to terms and conditions of his service before any other forum including this Court nor can an injunction be granted relating to such matters. The learned counsel for the defendants has also referred to section 6 of the Service Tribunals Act, 1973 and submits that the present proceedings have abated with effect from the date of the plaintiff having become a civil servant by virtue of Act XVII of 1997. The provisions of section 6 of the Service Tribunals Act, 1973, according to Mr. Ansari, have to be read with such adaptation so as to read the date of commencement of the 1973 Act as 7th June, 1997 in the present case.
4. Elaborating his submissions, the learned counsel for the defendants referred to the case of Abdul Bari v. Government of Pakistan (PLD 1981 Kar.. 290) and submits that ouster contemplated by Article 212 of the Constitution curtails the jurisdiction of this Court totally in respect of the subject-matter committed to the Service Tribunal. Article 212 of the Constitution does not leave any scope for exercise of jurisdiction concurrently by the Civil Courts and the Tribunal in regard to any, matter relating to terms and conditions of service of a civil servant. The provisions of the Service Tribunals Act which were cited by the learned counsel for the defendants and are relevant to the question involved in the present case, may here be reproduced with advantage: "Section 2(a) "Civil servant" means a person who is, or has been, a civil servant within the meanings of the Civil Servants Act, 1973 and shall include a person declared to be a civil servant under section 2A and
(b) ------------------------------------ Section 2A. Service under certain corporations, etc. To be service of Pakistan. Service under any authority, corporation, body or organisation established by or under a Federal Law or which is owned or controlled by the Federal Government or in which the. Federal Government has a controlling share of interest is hereby declared to be service-of Pakistan and every person holding a post under such authority, corporation, body or organisation shall be deemed to be a civil servant for the purpose of this Act. "
5. Section 6: Abatement of suits and--other proceedings: All suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal--pending in any Court immediately before the commencement of this Act shall abate forthwith: Provided that any party to such a suit, appeal or application may, within ninety days of the (establishment of the appropriate Tribunal, prefer an appeal to it) in respect of any such matter which is in issue in such suit, appeal or application."
6. In reply, the learned counsel for the plaintiff has urged that the plaintiff, in the present case, cannot file an appeal before, Service Tribunal since defendant No. 1 by the impugned order had determined the fitness or otherwise of the plaintiff to hold the post of Deputy Managing Director and therefore his case is covered by proviso (b) to section 4 of the Service Tribunals Act, 1973. The learned counsel for the plaintiff has further contended that posting of the plaintiff as Deputy Managing Director in the service of K.E.S.C. And to hold such post was part of the terms and conditions of his service and, therefore, with reference to section 10 of the Civil Servants Act, it is urged by him that having been recruited specifically to serve as Deputy Managing Director, the plaintiff cannot be posted elsewhere or in a different capacity. In the submission of learned counsel for the plaintiff, the present proceedings fall outside the scope of jurisdiction of the Tribunal and therefore do not abate. In support of his submissions, Mr. Abul Inam has referred to the judgments in the cases of Mujeebullah Aijaz v. D.-G. Telephone and Telegraph Department PLD 1980 Quetta 58 and Afzal Hussain Syed v. Punjab Government and others PLD 1980 Lah. 697.
7. It may be observed that the to judgments cited by the learned counsel for the plaintiff were considered by Full Bench of this Court in the case of Abdul Bari v. Government of Pakistan (supra) and a dissenting view was expressed therein. The learned counsel for the plaintiff ought to have been careful and should have pointed out such position. The following dictum laid down in the case of Abdul Bari completely meets the arguments raised on behalf of the plaintiff: "But the situation under Article 212 is entirely different. The ouster contemplated under that Article is of the Constitutional nature and, therefore, of necessity curtails the jurisdiction of the High Court totally in respect of the subject-matter committed to the Service Tribunals. The second important reason is that the plain reading of the provisions of clause (2) of Article 212 leaves no manner of doubt that these provisions did not envisage concurrent jurisdiction of the Civil Court and the Tribunal in regard to any matter on any ground in respect of the terms and conditions of service.
8. The situation contemplated in the said provisions is that the jurisdiction conferred on the Service Tribunals and the jurisdiction vested in the Civil Courts in respect of the terms and conditions of service of civil servants is mutually exclusive, so that the field covered by the jurisdiction of the Service Tribunal is totally outside the jurisdiction of the Civil Courts including the High Court."
9. It was then, rather feebly, urged that the order dated 27-3-1997 was passed by an authority which was not competent to issue such directives. The learned counsel, on the basis of such submission, has urged that an order passed without jurisdiction can be set at naught by this Court. Such objection was considered in detail and repelled by a Division Bench of this Court in the case of Iqan Ahmed Khurram v. Government of Pakistan (PLD 1979 Kar.. 610) which judgment was cited with approval by Full Bench of this Court in the case of Abdul Bari v. Government of Pakistan (supra) and it was held that the orders which are mala fide, ultra vires or coram non judice are within the ambit of the Service Tribunal.
10. Adverting back to the question, if the plaintiff can agitate his grievances before the Service Tribunal, it may be observed that through order dated 27-3-1997, defendant No. 1 has abolished the post 'of Deputy Managing Director and has not determined the fitness or otherwise of the plaintiff to hold such post. In the plaint, it has been asserted that the defendant No. 2 being subservient to defendant No. 1 is not legally competent to abolish the post of Deputy Managing Director which, in any event, could not be done without affording him an opportunity of being heard. A perusal of letter dated 27th March, 1997 shows that the defendants did not advert to suitability or otherwise of the plaintiff to be retained as Deputy Managing Director, K.E.S.C., but have abolished the post altogether. Obviously, such order does not fall within the ambit of proviso (b) to section 4 of the Service Tribunals Act, 1973. The plaintiffs has not been posted or required to work in a position less favourable than that to which he would have been entitled but for the impugned order. The First proviso to section 10 of the Civil Servants Act also is not attracted to the case of the plaintiff, violation whereof, in any event, can be redressed by the Service Tribunal alone. The non-obstante clause in Article 212 of the Constitution curtails and ousts the jurisdiction of this Court in respect of matters falling within the jurisdiction of Service Tribunal. The plaintiff has also expressed apprehension in the plaint that his services would be terminated as the next step and the impugned order was merely an intermediary action. I may observe that even with regard to threatened action jurisdiction of this Court is barred since interlocutory order merges with final order and can be challenged before the Service Tribunal when the final order is eventually passed.
11. As has been observed in the Full Bench judgment to Abdul Bari v. Government of Pakistan (supra) the test for ouster of jurisdiction is whether the particular matter relating to terms and conditions of a civil servant is within the jurisdiction of the Service Tribunal. Then if such a matter can ultimately be brought before the Service Tribunal the ouster of jurisdiction of other Courts is absolute irrespective of the stage when the challenge can be brought before the Service Tribunal. In my view, therefore, the question raised by the plaintiff in the present proceedings can be challenged before the Service Tribunal.
12. As to the next contention regarding applicability of section 6 of the Service Tribunals Act, 1973, the learned counsel for the plaintiff has referred to judgment of the Supreme Court in WAPDA v. Akhtar Khalid (1980 SCMR 443). The contention of the learned counsel for the defendant is that under similar legislation promulgated on 30th September, 1975 being West Pakistan Water and Power Development Authority (Amendment) Act, 1975 the service under WAPDA was declared to be the service of Pakistan and every person holding a post under the Authority was to be deemed as civil servant for the purpose of the Service Tribunals Act, 1973. The question of applicability of section 6 of the Service Tribunals Act, 1973 to the proceedings initiated by WAPDA employees which were already pending, came up for consideration before the Hon'ble Supreme Court in the above--- referred case of WAPDA v. Akhtar Khalid (supra) and the dictum laid down by the apex Court which is binding on this Court by virtue of Article 189 of the Constitution is as follows: "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 these 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 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 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 the would apply mutatis mutandis, meaning thereby that the period of limitation would commence from the date of the abatement; namely, 30th of September, 1975. "
13. The learned counsel for the defendants, relying upon the above---referred dictum of the Supreme Court has urged that the present proceedings have abated by fiction of law and cannot continue any further.
14. The above-quoted dictum laid down by the Supreme Court is fully' applicable to the present case.
15. Defendant No. 1 company is admittedly an organisation controlled by the Federal Government and the controlling share therein is held by the Federal Government. The plaintiff being in the service of defendant No. 1, has to be deemed and treated as a civil' servant for the purpose of Service Tribunals Act, 1973. The relevant date for the purpose of section 6 of the Service Tribunals Act in the present case has to be read as 7th June, 1997 when Act XVII of 1997 received assent of the President of Pakistan. The provisions of section 6 would apply mutatis mutandis to the present case and the period of limitation therein would commence from 7th June, 1997 on which date all the cases falling within jurisdiction of Service Tribunals which had earlier been filed by persons in the service of organisations and bodies etc., working under the control of Federal Government, abated.
16. As a result of the above discussion, the objection raised by the learned counsel for the defendant is sustained. The suit having abated as above, the pending application also stands dismissed.
17. However, the parties shall bear their own costs.