1. ' SAIDUZZAMAN SIDDIQUI, J.---Leave has been granted in the above-mentioned twelve appeals to consider the sole question whether the respondents in these appeals are covered by the definition of "Civil Servant" and as such their appeals filed before the Federal Service Tribunal were maintainable.
2. The respondents in these appeals were appointed as Telephone Operators (BPS.7) on ad hoc basis during the period from 1990 to 1991. Their services were subsequently regularized. They also claimed to have passed T.O. 1/46 Course in 1994. The services of respondents were, however, terminated with effect from 9-4-1995 on the ground that they were appointed during the period there was a ban on the appointments in Pakistan Telecommunication Corporation (P.T.C.) After availing the departmental remedies, the respondents approached the Federal Service Tribunal, which allowed their appeals and directed their reinstatement in service with all back benefits. The appellants contested the maintainability of appeals filed by respondents before the Service Tribunal on the ground that the respondents were not covered by the definition of "Civil Servant" as they were the employees of the Corporation but their contentions were repelled as follows:-- "6. With regard to jurisdictional controversy, suffice it to say that this Tribunal in Appeal No,90(K) of 1991 filed by Shabbir Ahmed, after interpreting the relevant provisions of Pakistan Telecommunication Corporation Ordinance (No, XVI of 1990), relying on the judgment of the Supreme Court reported in 1992 SCM R 1213, came to the conclusion that the employees of the Corporation were civil servants and the Tribunal had jurisdiction to entertain their appeals. The respondent Federation of Pakistan went in Supreme Court against the aforesaid judgment of the Tribunal and filed civil petition for leave to Appeal No,334 of 1993 and the Hon'ble Supreme Court maintained the judgment of the Tribunal and the relevant paragraph of the judgment is reproduced hereinbelow: '4. The provisions of section 9 of the Pakistan Telecommunication Corporation Ordinance (XVI of 1990) and section 12 of the Pakistan Broadcasting Corporation Act, 1973, are almost identical. The observations of this Court in the aforesaid case on the enbloc transfer of the employees to the Corporation did not change their status as civil servants fully cover the jurisdiction of the Tribunal to entertain their appeals and adjudicate the same on merits.
5. In the result, we find no merit in this petition and it is accordingly dismissed.'
2. ' In the present case, the whole controversy hinges on the point, whether the employees of the Corporation are civil servants or not. The definition of 'civil servant' is given in section 2 (b) of the Civil Servants Act, 1973 which reads as under:-- '(b) 'Civil servant' means a person who is a member of an All-Pakistan service or of a civil service of the Federation, or who holds a civil post in connection with affairs of the Federation including any such post connected with defence....'."
3. ' Similar question had come up for adjudication before the Hon'ble Supreme Court in the case of Chairman, Pakistan Broadcasting Corporation v. Nasir Ahmad (1995 SCM R 1593) as to whether the employees of the Corporation are holding the posts in connection with the affairs of the Federation and come under the definition of 'civil servant' and amenable to jurisdiction of the Tribunal. The Supreme Court after interpreting relevant provisions of law, came to the conclusion that the employees of the Pakistan Broadcasting Corporation do come within the purview of the Tribunal.
4. The concluding paragraph of the judgment on the point at issue is reproduced as under: "10. The legal position of the employees of the Corporation is not different. The Corporation was established by the Pakistan Broadcasting Corporation Act, 1973 (Act XXXII of 1973). Section 4 constitutes a Board of Directors consisting of Chairman of the Board and not more than seven other Directors, all of whom are to be appointed by the Federal Government and hold office during the pleasure of the Government. Section 10(1) enumerates the functions of the Corporation while subsection (2) provides that 'in the discharge of its functions the Corporation shall be guided on questions of policy by the instructions, if any, given to it from time to time by the Federal Government which shall be the sole Judge as to whether a question is a question of policy'. The Federal Government has, full control of Corporation's finances and it can be wound up only by an order of the Federal Government. The Corporation is under Government control which appoints the Chairman and the Directors. No share has been offered to the public nor any director represents the listeners or the public. The Government has monopoly over broadcasting and the listeners have no right to make their choice. Such a Government controlled and regimented Corporation playing an important role in the media of information is like a department of the Government. The Ministry of Information and Broadcasting is an important Ministry playing effective role in connection with the affairs of the Federation. Therefore, respondent No,1 holding a civil post will be covered by the definition of 'civil servant' as defined in section 2 (a) of the Service Tribunals Act, 1973, Thus the Federal Service Tribunal had the jurisdiction to entertain and decide the appeal.'
5. ' The Department of Telegraph and Telephones was being run under the Federal Government by the Ministry of Communications since its inception and it was converted into a Corporation by establishing Pakistan Telecommunication Corporation under the Pakistan Telecommunication Corporation Act, 1991 (XVIII of 1991), published in the eazette of Pakistan, dated the 27th November, 1991. The administrative control of the Corporation vests in the Board comprising the Chairman and the Directors appointed by the Federal Government and their terms and conditions of service also determined by the Government. Thus, the provisions of the P.T.C. Act are analogous to that of the P.B.C. Act, and, as held by the Supreme Court in the case of Chairman, Pakistan Broadcasting Corporation v. Nasir Ahmad (1995 SCM R 1593), the service of the Corporation has been declared as service in connection with the affairs of the Federation and its employees being civil servants are amenable to jurisdiction of this Tribunal, therefore, it can safely be concluded that the employees of the PTC are also serving in connection with the affairs of the Federation and are civil servants.
6. Therefore, relying on various judgments of the Hon'ble Supreme Court reported in 1995 SCM R 1593; PLD 1994 SC 532; PLD 1994 SC 123; Civil Petition for Leave to Appeal No,334 of 1993, decided on 10-11- 1993 (Federation of Pakistan v. Shabbir Ahmed & others) and 1992 SCM R 1213, we reiterate our earlier view that this Tribunal has got the jurisdiction to entertain and decide the appeals filed by the employees of the Pakistan Telecommunication Corporation and the objection raised by the respondent department is repelled."
7. ' The Hon'ble Federal Service Tribunal while holding that the respondents were covered by the definition of "Civil Servant" given in the Service Tribunals Act and, therefore, their appeals filed before the Service Tribunal were maintainable, referred to the following decisions of this Court:-
(i) Federation of Pakistan v. Sabbir Ahmed (C.P.L.A. 334 of 1993);
(ii) Abdul Rahim v. Pakistan Broadcasting Corporation (1992 SCM R 1213);
(iii) Pakistan Broadcasting Corporation v. Nasir Ahmed (1995 SCM R 1593);
(iv) Hadi Bux v. Government of Sindh (PLD 1994 SC 532); and
(v) Saeed Rabbani v. Director-General (PLD 1994 SC 123).
8. ' In addition to the above cases noticed in the impugned judgment, the following further cases were cited at the bar:-
(a) Raziuddin v. Chairman, PIA Corporation (PLD 1992 SC 531);
(b) Central Board of Revenue v. S.I.T.E.(PLD 1985 SC 97);
(c) Rashid Anwar v. Federation of Pakistan (1996 SCM R 1572);
(d) Mrs. M.N. Arshad v. Miss Naeema Khan (PLD 1990 SC 612);
(e) Pakistan Telecommunication Corporation v. Riaz Ahmad (PLD 1996 SC 222);
(f) U.P. Warehousing Corpn. v. Vijay Naryan (AIR 1980 SC 840); and
(g) Delhi Transport Corpn. v. D.T.C. Mazdoor Congress (AIR 1991 SC 101).
9. ' Before considering the contentions of the learned counsel for the parties, it would be appropriate to examine the facts and ratio decidendi of the above mentioned cases.
10. ' Federation of Pakistan v. Shabbir Ahmed (C.P.L.A. 334 of 1993) was a petition arising from the order of Federal Service Tribunal. This Court while declining leave to appeal against the judgment of Federal Service Tribunal, held that in view of the provisions of section 9 of Pakistan Telecommunication Corporation Ordinance 1990, the en bloc transfer of the employees to the Corporation did not change their status as civil servant.
11. ' Abdul Rahim v. PBC: It was an appeal arising from the judgment of Federal Service Tribunal. The appellant in this case was an employee of Pakistan Broadcasting Corporation. The Federal Service Tribunal dismissed his appeal holding that the appellant was not a civil servant and as such his appeal was not maintainable. This Court set aside the judgment of Federal Service Tribunal and remanded the case for decision on merit holding that the status of an employee is not changed on account of his transfer to P.B.C. And he continued to be a civil servant by virtue of the provisions of section 9 of the Pakistan Broadcasting Corporation Act, 1973.
12. ' Hadi Bux v. Government of Sindh was an appeal arising from the judgment of Sindh Service Tribunal. The Sindh Service Tribunal rejected the appeal of the appellant holding that he was neither a member of Civil Service of the Province, nor he was holding any civil post in connection with the affairs of the Province. This Court set aside the judgment of Sindh Service Tribunal and remanded the case for decision on merit. It was held that the expression "Government" included its legislative function as well and, therefore, the appellant in that case who was an employee of the Provincial Assembly of Sindh was a person holding a civil post in connection with the affairs of the Province and thus a civil servant.
13. ' Pakistan Broadcasting Corporation v. Nasir Ahmed. This was also an appeal arising from the judgment of Federal Service Tribunal. Like Abdur Rahim's case, in this case also it was held that on account of transfer of his services to P.B.C. The respondent continued to be a civil servant by virtue of the provisions of section 12 of the P.B.C. Act.
14. ' Saeed Rabbani v. Director-General---It was also an appeal from the judgment of Federal Service Tribunal. The Federal Service Tribunal dismissed the appeal of appellant holding that he was an employee of autonomous body and not a civil servant. This Court allowed the appeal and remanded the case to Federal Service Tribunal for decision on merit. This Court on the basis of Item Nos. 16 and 17 in the Fourth Schedule of the Constitution and the provisions contained in the Rules of Business held the Leather Industry Development Organization where appellant in that cases was employed, was under the administrative control of the Ministry of Industries and accordingly, the appellant was held to be a Civil Servant as defined in section 2(b) of the Civil Servant Act, 1973.
15. ' Raziuddin v. P.I.A.C. This was also an appeal from the judgment of Federal Service Tribunal. The appellant in that case who was an employee of P.I.A. Was removed from service without disclosing any reason. Section 10(3) of the P.I.A.C. Act, 1956, provided an appeal to Service Tribunal in service matter of Corporation. The Service Tribunal dismissed the appeal holding that the Corporation was not bound to disclose any reason for removal of appellant from service. This Court refused to interfere with the order of Service Tribunal and held that service regulations of P.I.A.C. Were not statutory in nature and, therefore, no relief by way of reinstatement in service could be granted. It was also held that relationship between the employees of P.I.A.C. And the Corporation was that of master and servant and, therefore, in the event of wrongful dismissal from service the remedy by way of suit was available.
16. ' Central Board of Revenue v. S.I.T.E. Was an appeal arising from a decision of the High Court of Sindh in appeal under Article 199 of the Constitution. This Court held that S.I.T.E. Was engaged in the function of Industrial Development and Trade and business connected therewith, on behalf of the Government and as such its income was exempted from tax under the Constitution.
17. ' Rashid Anwar v. Federation these were again appeals arising from the judgments of Federal Service Tribunal. The appeals before the Federal Service Tribunal were resisted on the ground that Pakistan Institute of Medical Science (PIMS) being an autonomous body, its employers were not civil servants. The Federal Service Tribunal overruled the objection and docided the case on merit.
18. The appeal before this Court failed. It was held that the doctors employed in Pakistan Institution of Medical Science (P.I.M.S.) Islamabad, were civil servant and governed by the provisions of Civil Servant (Appointment, Promotion and Transfer) Rules, 1973, as P.I.M.S. Was created through a resolution of Ministry of Health dated 16-10-1980 and all persons appointed in the former Central General Hospital, Rawalpindi, before 13-6-1980 who were working either in Rawalpindi General Hospital or in the Central General Ploy Clinic, stood transferred to P.I.M.S. On the same terms and conditions as were applicable to them immediately before passing of the resolution.
19. ' Mrs. M.N. Arshad v. Naeem Khan. This was also an appeal arising from the judgment of Federal Service Tribunal. The dispute in this case related to the promotion of the employees of Islamabad Model College. It was contended before this Court on behalf of the appellant and the Federal Government that the Federal Service Tribunal had no jurisdiction in the case as the employees of Islamabad Model Colleges were the employees of the Board and, therefore, were not covered by the definition of civil servant. After tracing the history of inception of Corporations it was held by this Court that the Board of Governor for Model Educational Institutions in Islamabad, created through the resolution of Government of Pakistan, Ministry of Education dated 24-1-1985, was neither a corporate body nor a juristic person. It was further held that establishment of Model Colleges in Islamabad by the Federal Government was in discharge of its Constitutional and or statutory obligation as a State. In this background the employees of Islamabad Model Colleges were held to be Civil Servants and service rules framed by the Board though found to be non statutory were held enforceable by the Tribunal.
20. ' Pakistan Telecommunication Corporation v. Riaz Ahmed. It was an appeal arising from the decision of Lahore High Court in a Writ Petition under Article 199 of the Constitution. It was held by this Court that by virtue of section 9 of the Pakistan Telecommunication Ordinance, 1990, the employees transferred en bloc to the Corporation after its establishment continue to be civil servant and as such their transfer did not change their status. It was accordingly, held that the disputes relating to service matters of such employees of P.T.C.L., could not be decided by the High Court under Article 199 of the Constitution as such disputes were exclusively triable by the Service Tribunal. The writ issued by the High Court in the case was accordingly recalled.
21. ' The case of Delhi Transport Corporation v. D.T.C. Mazdoor Congress and U.P. Warhousing Corporation v. Vijay Naryan decided by the Indian Supreme Court cited during the course of the argument only laid down that Statutory Corporations which are controlled or run by Governments are instrumentalists of the Government and, therefore, their actions are liable to be judged on the principles of natural justice and observance of fundamental rights guaranteed under the Indian Constitution as well as directive principles enshrined in the Indian Constitution.
22. With regard to the status of the employees of a Statutory Corporation this Court has consistently held that the relationship between the employee of a Statutory Corporation and the Corporation is that of master and servant and, therefore, in the event of wrongful dismissal of an employee of Corporation the remedy does not lie before the High Court by way of a petition under Article 199 of the Constitution to seek setting aside of the dismissal order and reinstatement in service but only remedy in such a case lies in a suit for damages for wrongful dismissal from service. However, it has been observed in some of these cases that if the service of the dismissed employee was governed under the Rules which were statutory in nature, the aggrieved employee may seek remedy through a petition under Article 199 of the Constitution and if the Court is satisfied that the employee was dismissed in violation of statutory rules of service, the Court in appropriate cases besides declaring the dismissal from service as illegal may also order reinstatement in service.
23. Reference in this behalf may be made to Chairman East Pakistan Development Corporation v.
24. Rustam Ali (PLD 1966 SC 848) Lahore Central Cooperative Bank Ltd v. Pir Saifullah Shah (PLD 1959 SC (Pak.) 210, Lt. Col Shujauddin Ahmed v. Oil & Gas Development Corporation (1971 SCM R 566), Zainul Abidin v. Multan Central Cooperative Bank Ltd. (PLD 1966 SC 445) Shahid Khalil v. PIAC (1971 SCM R 568) R.T.H. Janjua v. National Shipping Corporation (PLD 1974 SC 146), Muhammad Yousaf Shah v.
25. PIAC (PLD 1981 SC 224), Anwar Hussain v. Agriculture Development Bank of Pakistan (PLD 1984 SC 194, Principal Cadet College, Kohat v. Muhammad Shoiab Qureshi (PLD 1984 SC 170), Nisar Ahmed v.
26. The Director Chiltan Ghee Mills (1987 SCM R 1836), National Bank of Pakistan v. Manzoorul Haroon (1989 SCM R 832), Sindh Road Transport Corporation v. Muhammad Ali G. Khokhar (1990 SCM R 1404), Karachi Development Authority and another v. Wali Ahmed Khan (1991 SCM R 2434), and Raziuddin v. Chairman P.I.A.C. Corporation (PLD 1992 SC 531).
27. ' In Federation of Pakistan v. Shabbir Ahmed, Abdul Rahim v. Pakistan Broadcasting Corporation, P.B.C. v. Nasir Ahmed and P.T.C.C. v. Razi Ahmed (supra) the employees who were already in service were transferred to PBC or P.T.C.C. After their establishment. It was held in these cases that in view of provision section 12 of the Pakistan Broadcasting Corporation Act 1973 and section 9 of the Pakistan Telecommunication Ordinance Act 1991 the status of transferred employees remained unchanged and they continued to be civil servant. These decisions, therefore, do not cover the cases of employees who were appointed in the Corporation after it came into existence.
28. ' In Hadi Bakhsh v. Government of Sindh, Rashid Anwar v. Federation and Miss M.N. Arshad v. Nasir Khan (supra), the Provincial Assembly Secretariat, the Pakistan Institution of Medical Science and Islamabad Model Colleges were found to have no corporate status and were held to be part of relevant Governments Ministry/Divisions. Therefore, these cases also do not deal with the status of the employees of the Corporations who joined service after establishment of such Corporations.
29. ' Similarly the case of Central Board of Revenue v. S.I.T.E. And two decisions of Supreme Court of India referred to above do not deal with the point in issue in the above appeals.
30. From the proceeding discussion and review of the above case law it follows that the relationship of employees of a body or organization which is conferred corporate status either under a statutory provisions or instrument or by virtue of its incorporations under a law which provides for registration of such bodies, with such body or organization is governed with the principle of 'master and servant' in the absence of statutory rules governing the employment of such employees. In such cases the only remedy available to an employee against wrongful dismissal from service is a suit for damages. If the service rules applicable to the employees of a Corporation are, however, statutory in nature, violation of such rule can be brought under challenge before the High Court under Article 199 of the Constitution and in appropriate cases High Court in addition to declaring the action illegal, may also allow relief by way of reinstatement in service.
31. ' In cases of Corporation created by the Government through statutory C instruments if existing employees are transferred to the Corporation, in the absence of any provision to the contrary, the transferred employees continue to remain in the service of Corporation on the same terms and conditions under which they were working before their transfer to the Corporation. Therefore, if an employee of the Corporation before his transfer to the Corporation was a civil servant, he continues to be a civil servant. In all other cases, where an employee is appointed in the service of the Corporation after the Corporation is established, his service is governed by the service rules of the Corporation. If such rules are not statutory, the principle of master and servant governed the relationship between the employee and Corporation. The question which arises for consideration in the above cases, therefore is, what is the status of the respondents in the above appeals as employees of P.T.C.C. The contention of the respondent before the Federal Service Tribunal was that they enjoyed the status of civil servant while the appellant claimed that they were governed in matter of their employment with the appellant on the principle of master and servant.
32. ' The Hon'ble Service Tribunal as well as the learned counsel for respondent have relied on some of the cases referred to above in support of the contention that the respondents were civil servants within the meaning of Service Tribunals Act, 1973 and, therefore, the appeals filed by them before the learned Tribunal were maintainable. Section 2 of the Service Tribunals Act, before amendment of 10-6-1997 defined a 'civil servant' as follows:-- 'Civil Servant' means a person who is, or has been, a civil servant within the meanings of Civil Servants. Act 1973 (LXXI of 1973)."
33. ' This section was amended by Service Tribunals (Amendment) Act (XVII of 1997) on 10-6-1997. As a result of the above amendment introduced in the Service Tribunals Act, 1973, section 2, which defined Civil Servants Act, now reads as follows:- 'Civil Servant' means a person who is, or has been, a civil servant within the meanings of Civil Servants Act, 1973 (LXXI of 1973) and shall include a person declared to be a civil servant under section 2-A; and"
34. ' Simultaneously to the amendment of section 2, following Section 2-A was also added in the Service Tribunals Act, 1973:- "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 purposes of this Act."
35. It is quite clear from the definition of 'Civil Servant' given in Service Tribunals Act that a civil servant within the contemplation of Service Tribunals Act is a person, who has been or who is a civil servant within the meanings of Civil Servants Act, 1973 or, as the section now stands after amendment of 1973, it also includes a person who is declared to be a civil servant under section 2-A of the Service Tribunals Act. It is, therefore, quite clear that in order to entitle a person to file an appeal before the Service Tribunal, relating to a grievance in respect of the terms and conditions of service, he must be either a 'Civil Servant' as defined in the Civil Servants Act, 1973, or has been declared to be a 'Civil Servant' for the purpose of maintaining his appeal under the Service Tribunals Act. Civil Servants - Act, 1973, defines a "Civil Servant" as follows: "2.....................................
36. (a)
(b) 'Civil Servant' means a person who is a member of an All-Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include--
(i) a person who is on deputation to the Federation from any Province or other authority;
(ii) a person who is employed on contract, or on work-Charged basis, or who is paid from contingencies; or
(iii) a person who is a 'worker' as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923)."
37. The respondents in the above appeals belong to the category of the persons who has been declared as 'civil servant' under section 2-A of Service Tribunals Act, 1973, for the purposes of availing the remedy before the Service Tribunal. Such persons in the absence of a corresponding amendment in the Civil Servants Act, 1973, cannot automatically become a 'civil servant' within the meanings of Civil Servants Act, 1973. It was nobody's case nor it is contended before us by the learned counsel for the respondents, that the respondents service with P.T.C.L, was regulated or governed in accordance with the provisions of Civil Servants Act, 1973. The above cases, it is admitted before us related to the period before introduction of section 2-A in the Service Tribunals Act in 1997. It is, therefore, quite obvious that if a person was not civil servant within the meanings of Civil Servants Act, he could not avail of the remedy provided under the Service Tribunals Act. The contention of the learned counsel for the appellants that the fact that the employees of orgainization, authority or corporation 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 or interest, has been declared to be in the service of Pakistan and a civil servant by the amendment in Service Tribunals Act, in the year 1997, goes to show that the status of a person employed in such orgainzation, body, corporation or authority were not treated as that of a Civil servant before that amendment, is not without force. However, this does not apply to those persons who were already enjoying status of civil servant before creation of P.T.C.L under Ordinance of 1990 and Act of 1991 and their services were transferred to the Corporation. There is a clear provision in section 9 of Ordinance of 1990 and Act of 1991 that the transfer of employees to the Corporation will be deemed to be on the same terms, and in view of the law declared by this Court, their status as civil servant could not be affected. Therefore, apart from the category of persons who were already civil servants and transferred to the Corporation upon coming into being of the Corporation, all other employees who were appointed by the Corporation after the date of its inception, shall be deemed to be employees of the Corporation and, therefore, their services will be governed in accordance with the terms and conditions of their appointment.
38. In view of our above conclusion, we hold that the respondents' who were admittedly appointed after creation of the Corporation, did not enjoy the status of civil servant and, therefore, they could not avail of the remedy in respect of a dispute which related to their terms and conditions of service before the Service Tribunal established under the Service Tribunals Act, 1973. We, accordingly, allow all these appeals, set aside the order of learned Service Tribunal but in the circumstances of the cases leave the parties to bear their respective costs.