' This order shall dispose of C.M.As. 6857 of 1997 and 3148 of 1998 in Suit No, 1357 of 1998 and C.M.As.
7085 of 1997 and 3146 of 1998 in Suit No, 1355 of 1997.
2. In the above suits, plaintiffs who were employed in the defendant company as management trainees on contract basis are aggrieved by their termination of employment in terms of the offer of appointment which authorized the defendant management to terminate their services on one month's notice or payment of gross salary in lieu thereof. Termination of employment has been impugned as arbitrary, mala fide and without jurisdiction for no show-cause notice or an opportunity of hearing was provided to them before dispensing with their services through termination letters, dated 19th September, 1997.
3. Along with the plaint, plaintiffs moved applications for interim injunction in each of the suits.
Contentions raised in such applications were that the plaintiffs being contractual employees of defendant No, 2 for indefinite period, their employment could not be done away with without assigning any reason; that their case would fall outside the category of civil servant under the Service Tribunals Act, 1973; that notwithstanding insertion of section 2-A in the Service Tribunal Act dealing with employees of autonomous bodies, corporations and authorities established or managed and controlled by the Federation, they cannot invoke the jurisdiction of Service Tribunal.
As the contentions raised were of first impression and learned counsel complained of flagrant violation of the principle of natural justice as laid down in Anisa Rehman v. Federation of Pakistan (1994 SCMR 2232), discrimination in the matter of termination in violation of Article 25 of the Constitution and the termination having been effected except in due process of law, I was persuaded to suspend the operation of the impugned orders with the consequence that the plaintiffs continue to remain in employment of defendant No, 2.
4. On behalf of defendant No, 2 besides parawise written statement, a lengthy counter affidavit was filed resisting the prayer for interim relief which was followed by affidavit-in-rejoinder.
5. Arguments advanced on behalf of the plaintiffs were concluded long back but learned counsel for defendant namely Raja Haq Nawaz being confined to bed for sufficient time and on account of his preoccupation before the Supreme Court of Pakistan at Islamabad, it took a long time to conclude his arguments. In the meanwhile, in identical Suit No, 1216 of 1997, I dismissed the injunction application of the plaintiffs taking the view that by virtue of insertion of section 2-A in the Service Tribunal Act which declares the plaintiffs' employment as service of Pakistan and holders of posts under the defendant company they were deemed to be civil servants for the purpose of the Service Tribunal Act. I further held that there is a clear and strong intendment in favour of the view that plaintiffs' grievance with regard to enforcement of terms and conditions of their employment would fall within the exclusive jurisdiction of Service Tribunal Act and their suit was barred by law.
6. Question raised by learned counsel that the plaintiffs being contractual employees under the defendant organisation, they would be excluded from the definition of civil servant as defined in section 2(1)(b) of the Civil Servants Act was considered in the earlier suit decided by me and answered against the plaintiffs, I held that by the Amendment Act No, XVII of 1997, in fact a new class of persons in service of Pakistan has come into being and all such employees holding any post in any authority, body, corporation or organization established or controlled and managed by the Federation shall be treated as civil servant by fiction of law. Apart from many other cases, I mainly relied upon a Full Bench decision in Abdul Bari v. Government of Pakistan (PLD 1981 Karachi 290) and a later decision by Supreme Court in Islamic Republic of Pakistan v. Muhammad Zaman Khan (1997 SCMR 1514).
7. Confronted with the above decision rendered by me, learned counsel for the plaintiffs moved Civil Miscellaneous Application No,3148 of 1998 in Suit No, 1357 of 1997 and Civil Miscellaneous Application 3146 of 1998 in Suit No, 1355 of 1997 relying upon an order passed by Federal Service Tribunal in Appeals Nos. 2464 to 2474-K of 1997 expressing the view that appeals preferred by employees of Sui Southern Gas Company being contractual employees, they could not be considered to be civil servants for the purpose of Service Tribunals Act. Learned counsel also relied upon interim orders passed by Supreme Court in petitions for leave to Appeals Nos. 46 to 56-K of 1998 with a prayer that the interim injunction order be confirmed, issue direction to the Federal Service Tribunal to dispose of the appeals to be preferred by the plaintiffs within a period of two months, direction for condo nation of delay in approaching the Federal Service Tribunal by the plaintiffs and a further direction that interim order granted by this Court shall remain operative till disposal of the contemplated appeals by the plaintiffs before the Tribunal.
8. Pursuant to the notice of this Civil Miscellaneous Application defendant filed a counter affidavit seriously resisting the prayer and urging the bar of jurisdiction by reason of Article 212 of the Constitution relying upon latest decisions by the Supreme Court where under Supreme Court vacated the interim injunction orders granted by the High Court. It was urged that in M. Yamin Qureshi v. Islamic Republic of Pakistan (PLD 1980 Supreme Court 22). Supreme Court held that all questions of law and fact can be agitated before the Service Tribunal. Further D.B.I of this Court while dismissing various petitions on identical issue declined to comment or issue any direction to the Service Tribunal on the question of limitation.
9. At the hearing learned counsel for the plaintiffs was at pains to re-agitate question of fact and law tending to show that the impugned termination orders having been made in gross-violation of the principle of natural justice, mala fide and discriminatory are without jurisdiction and liable to be struck down. Learned counsel made a vigorous submission with a view to persuade me to take a more rational view holding that despite the bar of jurisdiction as contained in Article 212 of the Constitution, this Court being a Court of ultimate jurisdiction has the jurisdiction to adjudicate upon the issue raised in these suits for the main reason that the action taken against the plaintiffs is per se mala fide and not sustainable at law. Learned counsel referred to State v. Qaim Ali Shah (1992 SCMR 2192) (2230) and Federation of Pakistan v. Ghulam Mustafa Khar (PLD 1989 Supreme Court 26). In Qaim Ali Shah's case, Supreme Court was concerned with section 5-A(8) of Suppression of Terrorist Activities (Special Courts) Act, 1975 in juxtaposition to the provisions contained in section 497, Cr.P.C. In which the question of bar of Constitutional jurisdiction was not involved. In Ghulam Mustafa Khar's case, no doubt Supreme Court gave a liberal interpretation of Article 270-A of the Constitution which was inserted in the Constitution by late General Muhammad Zia-ul-Haq through Constitution Amendment Act No,XVIII/1985 with effect from 30-12-1985 which appeared to be a pre-requisite condition before the Parliament elected on nonparty basis headed by late Muhammad Khan Junejo, which was passed with a view to issue Proclamation of Withdrawal of Martial Law the same day. There is no such situation with regard to the bar of jurisdiction contained in Article 212 of the Constitution which completely ousts the jurisdiction of this Court in the matters relating to enforcement of terms and conditions of employment of a civil servant which power is exclusively conferred on the Service Tribunal created by an Act of Parliament under the abovesaid Article.
10. Learned counsel lastly attempted to persuade me to follow a short order passed by the Supreme Court in appeals arising out of judgments rendered by High Court of Sindh in C.P. No,D-64 of 1997 and C.P. No, D1591 of 1997 relating to the employees of Sui Southern Gas Company in which Supreme Court while disposing of the appeals granted interim relief to the petitioners, directing the employers to pass a fresh order after providing an opportunity of hearing to the employees. I am afraid I cannot follow the line adopted by the Supreme Court which is vested with the appellate jurisdiction from the orders and judgments rendered by the High Court as well as the Service Tribunal. Furthermore, Supreme Court being the Apex Court of the country has the authority to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document. The jurisdiction of this Court in terms of Article 175 is conferred on it by the Constitution or under any law which cannot be extended and enlarged as suggested. A perusal of the judgment passed by D.B.I in P. Nos. D-1591, 1895, 1896 and many other C.Ps. Of 1997 tends to show that these were disposed of by consent of the counsel for Sui Southern Gas Company. Such petitions were filed in view of apprehended termination of employment which probably took place during the pendency of the petition when no interim orders were operative against the respondents.
11. Apart from the view taken in Abdul Bari's case by a Full Bench of this Court, identical view was expressed in Khalilur Rehman v. Government of Pakistan (PLD 1981 Karachi 750). After resume of the case-law on the subject Full Bench held that the plain reading of the provisions of clause (2) of Article 212 needs 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. The situation contemplated in the said provisions is that the jurisdiction conferred on the Service Tribunal and the jurisdiction vested in the Civil Court in respect of the terms and conditions of service of civil servant is mutually exclusive, so that the field covered by the jurisdiction of the Service Tribunal is totally outside the jurisdiction of the Civil Court including the High Court.. That orders which are mala fide, ultra vires or coram non judice are within the ambit of Service Tribunal has been held in several cases. In Nan Ahmed Khurram v. Government of Pakistan (PLD 1979 Karachi 1179) a Division Bench of this Court held that orders which are ultra vires or volatile of rule of natural justice or void were within the competency of the Service Tribunal to determine. In Muhammad Hashim Khan v. Province of Baluchistan (PLD 1976 Quetta 59) a D.B. Of the Sindh and Baluchistan High Court held that the Service Tribunal's exclusive jurisdiction extends to ultra vires and mala fide orders. Likewise a Division Bench of the Peshawar High Court in Dr. Raja Munawar Elahi v. N.-W.F.P. (PLD 1980 Peshawar 81) held that an order of a departmental authority even if it is without jurisdiction or is mala fide can be challenged before the Tribunal and the jurisdiction of the Civil Courts including the High Court would be ousted. To the same effect was the view expressed by Shah Abdul Rasheed, J. In a Full Bench case of Amanul Mulk v. N.-W.F.P. (PLD 1981 Peshawar 11). To my mind the cases referred to above furnished a complete answer to the contentions raised at the Bar by the learned counsel for the plaintiffs and notwithstanding the view taken in latest appeals arising out of judgments delivered by the Sindh High Court as well as the Federal Services Tribunal, I am clear in my mind in holding that the plaintiffs' case is governed by section 2-A of the Service Tribunal Act and jurisdiction of this Court is completely ousted by the Constitutional provisions referred to above.
12. For the aforesaid facts and reasons, there is no merit in the injunction applications which must fail and are hereby dismissed. Should the plaintiffs take their case to the Federal Services Tribunal, hopefully period spent by them in the present suits shall be taken into consideration by the Tribunal for the purposes of condo nation of limitation. However, no direction of the nature solicited by the plaintiffs can be issued. Likewise defendant company is expected to act fairly, justly, reasonably and equitably in determining the employment of the plaintiffs as mandated by law.