1. ' By this order I propose to dispose of the legal objections in respect of maintainability of the abovementioned suits by virtue of insertion of section 2-A in the Service Tribunals Act, 1973, (Act XVII of 1997). It would be pertinent to mention here that the learned counsel appearing for the parties were, vide order dated 10-4-1997, put on notice to satisfy the Court in respect of maintainability of these suits.
2. ' The facts relevant for the purpose of decision of the above question are that the plaintiffs in the afforested suits were employed by the defendant No,1 on different dates and positions as mentioned in the respective plaints of the said suits. The grievance of the plaintiffs in all the suits is somewhat identical with the exception of Suit No, 317 of 1997 wherein the plaintiff has, inter alia, sought a declaration to the effect that the show-cause notices issued to him by the defendant No,1 are of no legal effect and liable to be struck down and that according to the Service and Discipline Regulations, 1985 and bilateral agreement entered into between the defendant No, 1 and its Senior Staff Association, he has become entitled to and has attained the status of General Manager in Pay Group X and thus entitled to all the benefits attached to the said Pay Group. In so far as remaining suits are concerned the grievance of the plaintiffs is that they were legally and competently recruited in the service of defendant No,1 to different positions and the said defendant under the instruction and directions of defendants Nos. 2 and 3 is contemplating to terminate the employment of the plaintiffs and/or has already issued letters of termination in a mala fide and illegal manner.
3. ' In all the suits applications under Order 39, Rules 1 and 2, C.P.C. Were filed by the plaintiffs and interim orders of injunction were passed against defendant No, 1 in all the suits restraining it from taking any further action prejudicial to the terms and conditions of the services of the plaintiffs and/or operation of the impugned orders of termination was suspended.
4. ' Defendants were served with the notices and summons of the suits and defendant No,1 filed counter-affidavit to injunction application wherein it was, inter alia, contended that relationship between the plaintiffs and defendant No, 1 is that of master and servant and as such the suits filed by the plaintiffs are not maintainable. However, the defendant No, 1 failed to file written statement in all the suits and as such they were debarred from filing the same by the Additional Registrar
(OS) of this Court. Applications for setting aside the said order are still pending hearing.
5. ' Consequent upon insertion of section 2-A in the Service Tribunals Act, 1973, applications under Order 7, Rule 11, C.P.C. Have been filed by the defendant No, 1 in all the suits for rejection of plaint on the ground that in view of addition of section 2-A in the Service Tribunals Act, 1973, the plaintiffs are deemed to be civil servants and as such this Court has no jurisdiction to proceed with these suits and for redressal of their grievances, if any, the plaintiffs can approach the Service Tribunals which now has exclusive jurisdiction in such matters.
6. ' In respect of legal objection pertaining to maintainability of these suits in view of recent amendment in the Service Tribunals Act, 1973, I have heard the learned counsel for the parties. Mr. K.M. Nadeem, learned counsel for the plaintiff in Suit No, 374 of 1997, has argued the matter at length and the other learned counsel appearing for the plaintiffs in connected suits have more or less adopted the arguments of Mr. K.M. Nadeem. Contentions of Mr. K.M. Nadeem are three-fold:
(a) What is the impact of amendment (insertion of section 2-A in the Service Tribunals Act, 1973) made in the law during the pendency of case before a Court of law;
(b) In a case where mala fides are alleged jurisdiction of ordinary Courts of law is not ousted; and
(c) What is the effect of absence of terms and conditions of service in relation to employees of defendant No, 1 as required by Article 240 of the Constitution of Islamic Republic of Pakistan, 1973 and sections 30 and 31 of Pakistan International Airlines Corporation Act, 1956.
7. ' It has been urged by Mr. K.M. Nadeem that provisions of section 2-A ibid are prospective in nature and not retrospective. Such being the position, according to the learned counsel, suits filed by the plaintiffs before this Court do not abate. In support of his contention the learned counsel has relied upon the following reported cases:
(1) Province of East Pakistan v. Sharafatullah and 87 others (PLD 1970 SC 514).
(2) Abdul Khaliq through Legal heirs v. Bashir Ahmed and others (1987 SCMR 1029) and
(3) The Chief Land Commissioner, Sindh and others v. Ghulam Hyder Shah and others (1988 SCMR 715).
8. With regard to determination as to whether a statute is retrospective or prospective in nature the principle of interpretation of statute is as to whether the matter under consideration is a matter of procedure only and if that be so the provisions would be retrospective. On the other hand, if it be more than a matter of procedure and if it touches a right in existence at the time of passing of the statute, then it is a settled principle of law that such Legislation/statute would not operate retrospectively unless the Legislature had either by express enactment or by necessary implication given such Legislation/enactment retrospective effect. As to what are the matters of procedure it may be observed that the matters relating to the remedy, the mode of trial, method of taking evidence and forms of action are all matters relating to procedure. Thus, a statute purporting to transfer jurisdiction over certain causes of action is to operate retrospectively as such a statute merely changes a forum available for adjudication of a dispute. Reliance in this connection is placed on the case of Adnan Afzal v. Capt. Sher Afzal reported in PLD 1969 SC 187.
9. ' Section 2-A which has been inserted in the Service Tribunals Act, 1973 by Act XVII of 1997 provides that "service under any authority, corporation, body or organization 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 declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purpose of this Act". If the provisions of section 2-A are examined in the light of my above observations there can be no escape from the conclusion that only forum for adjudication of disputes in respect of terms and conditions of service of employees of authority, corporation, body or organization owned or controlled by the Federal Government has been changed as in respect of such disputes a Service Tribunal established under the Service Tribunals Act, 1973, shall have exclusive jurisdiction to entertain such disputes as provided under section 4 of the Service Tribunals Act, 1973. Such being the position, provisions of section 2-A of the Service Tribunals Act, 1973, in my view, shall have retrospective effect.
10. ' It may further be stated that the controversy as to whether the provisions of section 2-A of the Service Tribunals Act, 1973, are retrospective or prospective in nature has been set at rest by the honorable Supreme Court of Pakistan in an unreported judgment in the case of Syed Aftab Ahmed v. K.E.S.C. (Civil Petition No, 1305-K of 1997) and others wherein it has been held that provisions of newly added section 2-A in the Service Tribunals Act, 1973, are applicable retrospectively and it is needless to state that under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, any decision of the honourable Supreme Court of Pakistan to the extent that it decides a question of law or is based upon or enunciates a principle of law has binding effect on all other Courts in Pakistan which of course includes this Court as well.
11. ' In view of the above, I am of the considered opinion that the impact of amendment (insertion of section 2-A id the Service Tribunals Act, 1973) made in the law during the pendency of the suits in hand is that the same stand abated.
12. ' The second contention of Mr. K.M. Nadeem is that the contemplated action of defendant No,1 in respect of termination of employment of the plaintiffs and/or orders of termination simplicitor of some of the plaintiffs in these suits are mala fide inasmuch as all the plaintiffs in the suits .In hand were legally and competently employed in the service of defendant No,1 and as such their termination from service or contemplated action of termination of service of the plaintiffs without assigning any reason is not only without any legal justification but is also mala fide. In support of such contention the learned counsel has relied upon the following reported cases:
(1) The Federation of Pakistan v. Saeed Ahmad Khan and others (PLD 1974 SC 151).
(2) Brig. (Retd.) F.B. Ali and another v. The State (PLD 1975 SC 506);
(3) Abdul Rauf and others v. Abdul Hamed Khan and others (PLD 1965 SC 671);
(4) Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (PLD 1965 SC 698);
(5) Nurul Haq v. Islamic Republic of Pakistan (PLD 1984 SC 75);
(6) Federation of Pakistan and another v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26);
(7) Pir Sabir Shah v. Federation of Pakistan and others (PLD 1994 SC 738);
(8) M.C.B. Staff Union of Pakistan v. Federation of Pakistan (1997 PLC 771).
13. ' Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, is to the following effect:-- "212. Administrative Courts and Tribunals.---(1) Notwithstanding anything hereinbefore contained the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--
(a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters;
(b) .......................................................................................
(2) Notwithstanding anything hereinbefore 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: Pursuant to the powers conferred by the Parliament, Administrative Tribunals to be called the Service Tribunal under the Service Tribunals Act, 1973, were established and in view of Article 212 of the Constitution such established Tribunals have exclusive jurisdiction to entertain matters enumerated in Article 212(1)(a) of the Constitution to the ouster of jurisdiction of all other Courts. In none of the judgments cited by Mr. K.M. Nadeem effect of Article 212 of the Constitution came under consideration before the Court and in fact in the case of Federation of Pakistan and another v.
14. Malik Ghulam Mustafa Khar (supra) the honorable Supreme Court of Pakistan has held that: "17. There is a presumption against the ouster of jurisdiction of the Superior Courts and any law which has the effect of denying access to them has to be narrowly construed for the reason that these are the for a created by the people for obtaining relief from oppression and redress for the infringement of their rights. But then where the ouster clause is clear and unequivocal, admitting of no other interpretation, the Courts unhesitatedly give effect to it. Thus, in State v. Zia-ur-Rehman (PLD 1973 SC 49) after reviewing the case-law on the subject Hamoodur Rahman, C.J. Observed:-- "These decisions do indicate that where the jurisdiction of the Courts to judicially review any executive act has been competently taken away, then the Court will not be able to assert its jurisdiction to do so under any circumstances but this must, in my opinion, depend upon the nature of the jurisdiction sought to be ousted and the nature and extent of the ouster itself. If the language used is such that it leaves no room for doubt as to the intention of the Legislature to oust the jurisdiction of the Courts in all circumstances, then that will have to be given effect and even acts performed without jurisdiction or mala fides will not be open to judicial scrutiny. But the Courts having the right to interpret the law will in each given case decide the precise nature of the ouster clause and the extent to which the jurisdiction of the Courts has been ousted, keeping in mind the principle consistently affirmed by all Courts that provisions seeking to oust the jurisdiction of superior Courts are to be construed strictly with a pronounced leaning against ouster."
15. From the dicta laid down by the Supreme Court of Pakistan in the case of Malik Ghulam Mustafa Khar (supra) it is settled that where the Legislature has ousted the jurisdiction of a forum specifically such forum is devoid of having any jurisdiction in the matter even in a case where action of the executive authority is challenged on the ground of same being mala fide, ultra vires or coram non judice. The judgments cited by the learned counsel being distinguishable are of no help to the case of the plaintiffs. In view of the ratio laid down in the case of Malik Ghulam Mustafa Khar (supra) and in Abdul Bari v. Government of Pakistan and 2 others (PLD 1981 Karachi 290) all grounds of attack including the ground of mala fides, ultra vires or coram non judice are to be urged before the Service Tribunal alone and Civil Courts including High Court has no jurisdiction to entertain matters covered under Article 212 of the Constitution.
16. ' In view of my above findings to the effect that impact of amendment made in the Service Tribunals Act, 1973, whereby section 2-A has been inserted therein is that these suits have abated and that, on the grounds of mala fides action of defendant No,1 cannot be challenged before Civil Courts including the High Court, I do not feel obliging to discuss the third proposition advanced by Mr. K.M. Nadeem.
17. ' All other Advocates appearing for the plaintiffs in the aforesaid suits have adopted the arguments of Mr. K.M. Nadeem. Mr. Khalid Hamid learned counsel for the plaintiffs in Suits Nos. 317, 323, 324, 336, 354, 355 and 370 (all of 1997) has urged that applications under Order 7, Rule 11, C.P.C. Filed by the defendant No,1 in these suits cannot be entertained and are liable to be dismissed as defendant No,1 in view of having been debarred from filing the written statement have no right to participate in the proceedings. In my view, contention of Mr. Khalid Hamid is devoid of any force for two simple reasons. Firstly, even if the contention of Mr. Khalid Hamid is accepted and defendant's application under Order 7, Rule 11, C.P.C. Does not merit consideration, the fact of the matter is that the plaintiffs in these suits were, vide order dated 10-4-1997, directed to satisfy the Court in respect of maintainability of the suits in view of amendment made in the Service Tribunals Act, 1973, whereby section 2-A declaring the plaintiffs as civil servants was inserted. Secondly, it has been held in the case of Police Department through Deputy Inspector-General of Police v. Javed Israr and 7 others (1992 SCMR 1009) that in a case where the defendant has failed to file its written statement, the defendant has a right to take part in the proceedings as of right. Under the circumstances, there is no force in the contention raised by Mr. Khalid Hameed.
18. ' The upshot of the above discussion is that all the above suits stand abated in view of section 2-A of the Service Tribunals Act, 1973 and all applications under Order 7, Rule 11, C.P.C. Filed by defendant No,1 in the above suits stand allowed in above terms. Interim orders passed earlier on injunction applications of the plaintiffs are vacated and the injunction applications filed by the plaintiffs in all the suits are dismissed. In view of above findings no orders are called for on applications filed by the defendant No, 1 under rule 158 of the Sindh Chief Court Rules (OS) as the same have become infructuous.