1. ' The plaintiff in this case is an employee of defendant No, 1 Pakistan State Oil Company Limited, hereinafter referred to as the P.S.O.' and has filed this suit with the following prayer:-- "It is, therefore, respectfully prayed that this Humble Court may be pleased to pass judgment and decree in favour of plaintiff against the defendant and;
(i) declare that the defendant No, 2 has no authority to act as Managing Director of defendant No, 1 company;
(ii) declare that the acts of the defendant No, 2 of extending threats to the plaintiff for his termination/dismissal from service are illegal and without lawful authority;
(iii) grant permanent injunction restraining the defendants, their servants, agents, representatives, subordinates and persons acting for and on their behalf from terminating, dismissing, dispensing with, removing the plaintiff from service in any manner and from forcing plaintiff to tender resignation and from enjoying the plaintiff's service facilities/benefits."
2. ' Along with the plaint, an application for interim injunction was also filed and by way of ad interim order, the defendants were directed not to take any action prejudicial to the terms of service of the plaintiff. After issuance of noice, counter-affidavit was filed on behalf of the defendants opposing the grant of interim injunction. Besides, two applications were filed on behalf of the defendants, one of them being under Order 7, Rule,11, C.P.C. Seeking rejection of plaint on the ground that the suit is barred under sections 21(b) and 56(d) of the Specific Relief Act. The defendants have sought rejection of plaint on the additional ground that the declaration sought in prayer clause (1) cannot be granted in terms of section 42 of the Specific Relief Act. It is further pleaded that the suit is barred under the provisions of Act XVII of 1974. After issuance of notice, counter-affidavit has been filed by the plaintiff refuting the contents of application under Order 7, Rules 11, C.P.C. This matter was put up during vacations in pursuance of Order dated 30th May, 1997 passed by my learned brother Rasheed A. Rizvi, J. And on 11-6-1997 during hearing, the learned counsel for the defendants had urged that by virtue of insertion of section 2A in the Service Tribunal Act, 1973, the plaintiff had become a civil servant for the purpose of the said Act. Resultantly, the present proceedings stated by virtue of section 6 of the Service Tribunals Act, 1973. On behalf of the plaintiff, it is urged that the amendment introduced through Act XVII of 1997 cannot apply retrospectively to affect the proceedings which are already pending; secondly, plaintiff cannot agitate his grievance before the Service Tribunal for want of any final order which is pre-condition for exercise of jurisdiction in terms of section 4 of the Service Tribunals Act, 1973; and thirdly, for the purpose of application under Order VII, Rule 11, C.P.C., the contents of plaint alone can be considered by the Court.
3. ' I may reproduce here, for the sake of reference, the relevant provisions of the Service Tribunals Act, 1973:-- ' Section 2(a).--"Civil Servant" means a person who is, or has been , a civil servant within the meaning of the Civil Servants Act, 1973 and shall include a person declared to be a civil servant under section 2-A and (b)
4. ' Section 2-A.--Service under certain corporations, etc. To be service of Pakistan.---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 hereby 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."
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. ' The learned counsel for the defendant has also referred to Articles 212(1)(a) and 212(2) of the Constitution which is to the following effect:--
212. Administrative Courts and Tribunals.---(1) Notwithstanding anything hereinbefore contained the appropriate Legislature may be 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)
7. (c)
(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: ' As to the status of the defendant No,1 Company both the learned counsel are ad-idem to contend that it is a company defined in section 2(4) of the Marketing of Petroleum Products (Federal Control) Act, 1974 and is controlled by the Federal Government.
8. ' To substantiate his contentions, the learned counsel for the defendants referred exhaustively to the various provisions of the Marketing of Petroleum Products (Federal Control) Act, 1974 and judgment in the case of Water and Power Development Authority v. Akhtar Khalid reported in 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 abovereferred case of WAPDA v. Akhtar Khalid 1950 SCMR 443 (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 under-lying 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 of 30th 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."
9. ' 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. As regards objections to the effect that the plaintiff cannot take his grievance to the Service Tribunal, the learned counsel for the defendants has referred to a Full Bench judgment of this Court in Abdul Bari v. Government of Pakistan and 2 others (PLD 1981 Karachi 290) and an unreported judgment dated 18-3-1997 by a Division Bench (of which I was one of the members) in Asif Ali Khoja v. Government of Sindh and another High Court Appeal No,38 of 1997 (1997 PLC (C.S.)
10. 776). It has further been pbinted out that by virtue of amendment in section 4 of the Service Tribunals Act, 1973 through Act XVII of 1997, every order passed by the departmental authority has been made appealable before the Service Tribunal and the requirement of "Final ' order having been passed has been omitted.
11. ' The learned counsel for the plaintiff, in support of his submission has referred to the following cases:--
(1) Mujeebullah Aijaz v. Director-General, Telephone and Telegraph Department and 2 others (PLD 1980 Quetta 58);
(2) Mian Amanul Mulk v. N.-W.F.P. Through Chief Secretary (PLD 1981 Peshawar 1);
(3) The Superintending Engineer (E), WAPDA, Faisalabad and others v. Raja Muhammad Fazil, Line Superintendent, WAPDA, Faisalabad and 2 others (1991 PLC (C.S.) 838);
(4) I.A. Sharwani and others v. Government of Pakistan (1991 SCMR 1041);
(5) Chairman, WAPDA and another v. Syed Jamil Ahmed (1989 PLC (C.S.) 101);
(6) S. Irshad-ur-Rehman v. Government of Pakistan (1993 PLC (C.S.) 39);
(7) Muhammad Aslam Khan v. Government of Pakistan (1993 PLC (C.S.) 345);
(8) Muhammad Azim Jamali and 11 others v. Government of Pakistan (1992 PLC (C.S.) 637).
12. ' I do not consider it necessary to refer all the cases cited by Mr. Khalid Javed on behalf of the plaintiff. However, I may observe that while some of the cases cited by him were based upon cause of action occurring prior to 1-7-1969 and therefore, beyond the jurisdiction of the Service Tribunal; the dictum laid down in the remaining cases is that the Bar of jurisdiction applies only to those cases which fall within the jurisdiction of the Service Tribunal. The judgments in the cases of Mujeebullah Aijaz and Mian Amanul Mulk were considered by the Full Bench of this Court in Abdul Bari v. Government of Pakistan PLD 1981 Karachi 290 but dissenting view was expressed therein. The learned counsel for the plaintiff argued with great emphasis that the Service Tribunal does not have jurisdiction in the present case since no order had been passed against the plaintiff and the relief has been sought by him against an apprehended injury. It was further argued by the learned counsel for the plaintiff that the provisions of section 6 of the Service Tribunal Act, 1973 have become otiose and can no more be applied.
13. ' Suffice to observe that the question of applicability or otherwise of section 6 of the Service Tribunals Act, with reference to the effect of expansion in the definition of term 'civil servant' has elaborately been considered and decided in the case WAPDA v. Akhtar Khalid 1980 SCMR 443 (supra) and I find the dictum laid therein fully applicable to the present case. The defendant No,1 company is admittedly an organization 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. On the basis of principle laid down in the above referred case of WAPDA v. Akhtar Khalid 1980 SCMR 443 (supra), the relevant date for the purpose of section 6 of the Service Tribunals Act, 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 organizations and bodies etc. Working under the control of Federal Government, abated.
14. ' The next question which requires consideration is if the present case falls within the jurisdiction of the Service Tribunal. The contention of the learned counsel for the plaintiff is that the plaintiff cannot approach the Tribunal for redress of his grievance since he has not challenged any order much less a final order passed by the departmental authority. According to the learned counsel, the plaintiff has sought permanent injunction against an apprehended injury. He has placed reliance on judgment reported in 1996 SCMR 416 -- Habibullah v. Mst. Hamida Bano and others, wherein action for injunction was held maintainable to avoid an apprehended injury. The cited case was not a service matter and is even otherwise distinguishable. The learned counsel, however, concedes that the relief sought in the present proceedings is based on the terms and conditions of service of the plaintiff which in the event of an adverse order can be agitated before the Service Tribunal. The question was aptly considered by a Full Bench of this Court in the case of Abdul Bari v. Government of Pakistan PLD 1981 Karachi 290 where it was observed that when an action which is in the nature of step towards the final order that may eventually be passed, apparently, such interlocutory order would eventually merge in the final order and can be brought up before the Service Tribunal. The following passage clearly negates the above referred argument urged on behalf of the plaintiff:-- "13. We also find no force in the contention advanced on behalf of the petitioners that since the Service Tribunal can exercise its jurisdiction only in case final order is passed and not in regard to a threatened act affecting the terms and conditions of a civil servant, it is not a Tribunal of exclusive jurisdiction as contemplated in Article 212. Similar contention was replied by a D.B. Of this Court in Sher Muhammad v. Director-General of Pakistan, Telegraphs and Telephones Department PLD 1979 Kar.
1. 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 fact at what stage such a matter may be brought before the Service Tribunal".
15. ' Likewise in the cases of I.A. Sharwani and others v. Government of Pakistan 1991 SCMR 1041 and Abdul Wahab Khan v. Government of Punjab PLD 1989 SC 508, it was observed that a civil servant cannot bye-pass the jurisdiction of the Service Tribunal and although an order or action vis-a-vis the stage at which it is passed, may not be appealable, the concerned civil' servant would have to wait till an order appealable before the Tribunal under the law applicable thereto is passed.
16. Though apparently harsh, such interpretation is logical and in consonance with the object underlined in Article 212 of the Constitution which commences with non-obstante clause. For such reason the following dictum was laid in the case of Asif Ali Khoja H.C. A. No, 38 of 1997 (supra):-- "Likewise, the object of Article 212 is that any matter touching the terms and conditions of service of civil servant should be agitated before the concerned Service Tribunal alone."
17. I may observe that any different interpretation shall simply encourage litigation whereby the civil servants may try to pre-empt any departmental action through proceedings seeking prohibitory relief before a Court of plenary jurisdiction paving way for circumventing the provisions of Service Tribunals Act, 1973 and Article 212 of the Constitution whereby creation of separate forum for enforcement of terms and conditions of service by the civil servants was postulated.
18. ' As result of the above discussion, the objection raised by the learned counsel for 'the defendant is sustained. The suit having abated as above, all the pending applications also stand dismissed.
19. However, the parties shall bear their own costs.