1. S. SAEED ASHHAD, J.---These two Constitutional petitions have been filed by 66 petitioners, 52 in C.P.No,D-1688 of 1997 and 14 in C.P. No,1816 of 1997.
2. Brief facts requisite for disposal of these two petitions are that all the aforesaid 66 petitioners were employees/management trainees of Pakistan State Oil Company Ltd. and their services/training assignments were terminated in August, 1997. The petitioners further stated that on the ground of parochial, ethnic and mala fide intention respondent No,1 on the recommendation of respondent No,3 issued the orders of termination of services of the petitioners which the petitioners dubbed to be mala fide, coram non judice, ultra vires and without lawful authority. The petitioners further submitted that with a view to deny the petitioners to obtain fair justice from the normal Courts the respondents got amended the Service Tribunals Act by way of insertion of section 2-A through Service Tribunals (Amendment) Act 1997, the contents of which are reproduced as under:-- "(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 or in which the Federal Government has a controlling share or 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."
3. A' s a result of section 2-A the petitioners were to be deemed as civil servants for the purpose of the Service Tribunals Act and were deprived of their rights to approach this Court by invoking the Constitutional jurisdiction for the redress of their grievances relating to the terms and conditions of their services. It was further stated that in view of the above amendment this Court has refused to exercise jurisdiction in the petitions filed by the employees of corporation, bqdies, authorities and/or companies owned, managed, run and/or controlled by the Federal Government in view of the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan and the only forum now available to the petitioners for redress of their grievances relating to the terms and conditions of service is the Services Tribunal from which they do not expect any justice in view of the fact that members of the Service Tribunal do not belong to the Judiciary and for their appointment and removal they are dependent on the Executive authority and discretion. The petitioners also submitted that section 3 of the Service Tribunals Act is in direct conflict with Articles 4, 8, 25, 175, 202 and 203 of the Constitution of Pakistan. That the provisions of sections 2-A, 3 and 6 of the Service Tribunals Act are ultra vires of the Constitution of Pakistan and in this case a question of Public importance is involved as to the interpretation of the Constitution as fundamental rights under Articles 8, 10 and 25 of the Constitution of Islamic Republic of Pakistan have been violated by the Service Tribunals (Amendment) Act, 1997. Petitioners further submitted that termination of their services was on the ground of mala fide intention because the respondents wanted to appoint and provide employment to their relatives, friends and political supporters in place of the petitioners and that the validity of the termination order was also challenged on the ground that it was not signed by the competent Authority. The petitioners having no other remedy to challenge the illegal and mala fide termination of their services as well as to challenge the vires of sections 2-A, 3 and 6 of the Service Tribunals Act, 1997 were compelled to invoke 'the Constitutional jurisdiction of this Court and filed the aforesaid petitions wherein they have sought the following prayers:--
(i) That the provision of section 2-A, of the Service Tribunals (Amendment) Act be declared as ultra vires of the Constitution;
(ii) That sections 3 and 6 of the Service Tribunals Act be declared as ultra vires of Constitution in view of the judgment given by the Supreme Court in Azizullah Memons case reported in PLD 1993 SC 341;
(iii) That the respondents Nos.2 and 3 be directed to produce the termination orders in Court and those orders be declared as without lawful authority, and therefore, of no legal effect;
(iv) That the petitioners be allowed to continue to serve the company on the same terms and conditions on which the petitioners were working on the day of termination;
(v) That the respondents may be restrained from terminating the services of the petitioners, in future in an unlawful manner in violation of the principles of natural justice and due process of law;
(vi) That any other relief deemed fit and necessary in the circumstances of the case may also be granted; and
(vii) That the cost of the petition may also be awarded to the petitioners.
4. Respondents Nos.3 and 4 filed their parawise comments along with the affidavit of Mr. Syed Khalid Ishtiaq, Legal Executive of respondent No,3. In the parawise comments respondents 3 and 4 raised preliminary objections regarding maintainability of the aforesaid Constitutional petitions on the ground that they were barred by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, in as much as the petitioners after amendment in Service Tribunals Act had acquired the status of civil servants for the purposes of Services Tribunals Act and were stopped from invoking the Constitutional jurisdiction of this Court for challenging any adverse order relating to the terms and conditions of their services. It was further submitted that the petitioners were inducted in the establishment of respondent No,3 as trainees on contractual basis and were not governed by statutory rules of service with the result that the relationship between respondent No,3 and the petitioners was that of master and servant and as such the Petitioners did not acquire any vested right to continue and/or to be confirmed. The allegation of parochial and ethnic basis and the statement that the petitioners were terminated as the respondents wanted to provide employment to their relatives, friends and political supporters in place of the petitioners was vehemently denied and it was stated that the petitioners were trusted and forced upon respondent No,3 on the ground of political influence in violation of transparency, eligibility, requirement and merits. The respondents further stated that it was absolutely contrary to the fact as per statements made in the petitions that the petitioners did not hand over the charge of their posts and after service of termination letters on the petitioners their services/trainings came to end and they ceased to be employees/trainees of respondent No,3. It has further submitted that the petitions filed are mala fide, misconceived and not maintainable in law in view of Article 212(2) of the Constitution of Islamic Republic of Pakistan and Sections 21(b), 42 and 56 of the Specific Relief Act. The maintainability of these petitions was also challenged on the ground that in a large number of cases decided by the Humble Supreme Court and the High Courts in Pakistan holding that no Constitutional petition can be filed by an employee of Corporation, Statutory Body, Government owned and managed companies or semi-Government organizations wherein statutory rules of service were not in force. The respondents, therefore, prayed that the aforesaid petitions be dismissed as not maintainable.
5. On 24-9-1998 by consent of the learned counsel for the parties it was decided that both .the aforesaid petitions would be finally heard and disposed of on merits if need be after admitting them to regular hearing. In consequence thereof, we have heard Mr. Abdul Mujeeb Pirzada, learned counsel for the petitioners and Mr. Raja Haq Nawaz Khan, learned counsel for the respondents Nos.3 and 4, Mr. Mubarak Hussain Siddiqui, learned D.A.-G., for respondents Nos.1 and 2 and Mr. Muhammad Saleem Samoo, learned Additional Advocate-General Sindh, who was present on Court notice, adopted the arguments advanced by Mr. Raja Haq Nawaz Khan, Advocate.
6. The maintainability of both the petitions was vehemently attacked by Mr. Raja Haq Nawaz Khan as well as Mr. Mubarak Hussain Siddiqui, D.A.-G., on the ground that after insertion of section 2-A, in the Service Tribunals Act by Amending Act of 1997 the petitioners have acquired the status of civil servants for the purposes of Service Tribunals Act and now the Service Tribunal has exclusive jurisdiction to entertain the appeals of the petitioners in respect of any wrong, adverse order or grievance of the petitioners relating to the terms and conditions of their service in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan and they are precluded from invoking the Constitutional jurisdiction of this Court for the purper,e of redress of their grievance relating to the terms and conditions of their service.
7. Mr. Abdul Mujeeb Pirzada, learned counsel for the petitioners, refuted the objections raised by Mr. Raja Haq Nawaz Khan with regard to the maintainability of the petitions and submitted that the objections would have been valid and proper if the petitioners in the aforesaid two petitions had confined themselves to the question of legality and propriety of the orders of their termination of service, had prayed for setting aside the same and for their reinstatement in the service of respondent No,3 but the petitioners have also challenged the amendment made by Service Tribunals (Amendment) Act, 1997 whereby section 2-A was incorporated in the Service Tribunal Act and the vires and legality of sections 2-A, 3, 6, of the Service Tribunal Act which the petitioner could not have challenged before the service Tribunal by way of appeals as contemplated in the Service Tribunals Act. In this connection he submitted that it was a well-established principle of law that the Tribunal had no authority to question the legality, righteousness and vires of the statute which created or established it as the Tribunal being a creature of such statute would have no authority to declare such statute as illegal, mala fide and ultra vires. In support of the above contention Mr. Abdul Mujeeb Pirzada relied upon the case of Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly N.W.F.P. and another (PLD 1995 SC 66) and it will be appropriate to reproduce the relevant portions from the aforecited Judgment as under:-- "Mr. Sharifuddin Pirzada also referred to a passage from a treatise, namely, 'Constitutional Law of Canada' by Peter W. Hogg, 3rd Edition (Student Edition), in which under the caption 'Administrative Tribunals with the power to decide questions of law', the author on the basis of two cases of the Supreme Court of Canada has observed that such Tribunals have the power to determine the constitutionality of a provision of a law while deciding matters brought before it. But, this observation cannot be pressed into service in order to contend that such a Tribunal can examine the vires of the provision of law under which it has been created."
8. "I may point out that there is distinction between a provision of a statute, which creates a Special Tribunal and a provision of such statute which specifies disputes matters over which such a Special Tribunal will have jurisdiction. The Special Tribunal so created cannot decide that the provision under which it has been created is ultra vires the Constitution or that its appointment constitution is defective or invalid. But, it will have jurisdiction to decide the questions, whether it has jurisdiction over the matter brought before it in terms of the relevant provisions of the statutes or whether the parties against whom the case has been filed are amendable to its jurisdiction."
9. "However, one can urge that since clause (1) of Article 212 provides that, '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,' a Service Tribunal has jurisdiction to examine the question of d of a law keeping in view the fact that under clause (3) of the above Article an appeal involving a substantial question of law of public importance against an order of a Service Tribunal lies to this Court with the leave. Even if I were to accept above contention, a Service Tribunal cannot examine the vires of the relevant provision of the statute under which it has been created. Additionally, it may be pointed out that clause (1) of Article 212 of the Constitution does not cover the Election Commission or the Chief Election Commissioner, nor there is any other corresponding provision in the Constitution excluding the jurisdiction of the Superior Courts in respect of the controversy in issue. In this view of the matter, a Service Tribunal cannot be equated either with the Election Commission or with the Chief Election Commissioner and, therefore, the cases relating to the service matters cannot be invoked in aid to contend that the Election Commission has the jurisdiction to examine the vires of section 8-B of the Act."
10. Mr. Raja Haq Nawaz submitted that the petitioners for their above contention have relied on the minority view expressed by Ajmal Mian, J. (as the Hon'ble Chief Justice then was) in the case of Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. and another (ibid). He further submitted that the majority view expressed by seven Hon'ble Judges was that a forum/tribunal of limited jurisdiction would have the power to decide the objection relative to its jurisdiction to examine the vires of the enactment conferring jurisdiction on it. He further submitted that in view of the pronouncement made by the majority in aforecited case, the question of vires of section 3 of the Civil Servants Act can be raised and decided by the Service Tribunal. The issue in consideration before the Supreme Court .in the afore-cited case was whether the Election Commission was competent to examine the vires of section 8-B of the Political Parties Act by reason of its conflict with different provisions of the Constitution and it was contended on behalf of appellant Sabir Shah that the Election Commission could not pronounce upon the validity of the very Act which had conferred jurisdiction on it to entertain and decide the references made under subsection (2) of section 8-B. This question had arisen on the reference filed against the respondents before the Election Commissioner as envisaged by section 8-B (3) of the Political Parties Act for their disqualification from membership of N.W.F.P. Assembly on the ground of defection. The Election Commission by majority decision relying on pronouncement made in the case of Humayun Saifullah Khan v. Federation of Pakistan (PLD 1990 SC 599) held that it had no jurisdiction to determine the vires of section 8-B under which it was created and that the High Court was proper forum for that purpose. Sajjad Ali Shah, C.J. (as he then was) writing the judgment on behalf of the majority observed as under:-- "For the facts and reasons stated above, we hold that section 8-B of the Political Parties Act, 1962 is ultra vires to the Constitution to the extent of forums only, which are in conflict with Article 63 of our Constitution in which forum of Chief Election Commissioner is specifically provided, which is final as no other forum of appeal is provided therein. High Court is competent forum where vires of section 8-B of Political Parties Act, 1962 can be challenged on other grounds. The Chief Election Commissioner is competent to hear references which can be disposed of by him on merits as previously the references were dismissed by him on the short ground of incompetency without going into the question of merits for the reasons that defection was not mentioned as a ground of disqualification in Article 63 of the Constitution."
11. From the above cited observation, it transpires that the finding of the Election Commission that it had no authority to examine and decide the issue/objection regarding its jurisdiction to decide the vires of section 8-B(2) of the Political Parties Act which conferred upon it the power to disqualify a member of the Parliament on the ground of defection was not accepted by the Supreme Court and it was held that the Chief Election Commissioner was the competent Authority to hear and decide the said references, which were order to be disposed of by him on merits. It is pertinent to observe that Article 63 of the Constitution which provides for disqualification of a member of Majlis-e-Shoora (Parliament) requires the Speaker or the Chairman, as the case may be, to refer the question of disqualification to the Chief Election Commissioner whereas in section 8-B (3) of the Political Parties Act, the forum of disqualification on the ground of defection was substituted by entrusting the function to the Election Commission in place of the Chief Election Commissioner. The challenge was not with regard to the creation of the new forum i,e, the Election Commission but was confined to the extent that the jurisdiction of disqualification of a member of Majlis-e-Shoora on the ground of 'defection could not have been entrusted to the ElectiOn Commission in violation of Article 63 of the Constitution, which has conferred such jurisdiction on the Chief Election Commissioner.
12. In the present petitions, the petitioners have challenged and agitated the very creation of the Service Tribunal by the Service Tribunals Act, 1973, and have dubbed it as a sub-constitutional entity created by an Act of Parliament depriving the petitioners of their right to approach this Court in its Constitutional jurisdiction to challenge and agitate their grievances relating to the terms and conditions of their service. The facts and circumstances of these petitions are absolutely different as compared to the facts in the cited case and we are of the view that the pronouncement made therein would not be applicable to the facts and the objections herein. In view of these reasons we are of the opinion that the Service Tribunal would not be competent to examine the vires of the provision of the statute which created it.
13. The next objection was that the petitioners are not affected persons within the meaning of clause
(a) of Article 199(1) of the Constitution of Islamic Republic of Pakistan. Elaborating his arguments he submitted that essential requirement for invoking the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan is that the person invoking the jurisdiction must be an aggrieved party, that is to say the petitioners must establish that they suffered a legal injury and would loose some benefits or advantages either on account of an order of a public functionary or promulgation of law or would be adversely affected by a law. He further submitted that it is not the function of this Court under Article 199 to pronounce upon the validity of laws or notifications as merely an academic exercise and could only be done where a person is aggrieved. He further submitted that in the circumstances the petitioners were required to establish in clear terms as to how they have been adversely affected by incorporation of section 2- A in the Service Tribunals Act and sections 3 and 6 of the Service Tribunals Act which provide for establishment of Service Tribunal and for abatement of cases of the petitioners pending in this Court or other Courts and filing appeals before the Service Tribunal. He further submitted that the petitioners were employees of a company owned, managed and run by the Federal Government wherein no statutory rules of service regulating the terms and conditions of the employees appointed therein existed and that services of the employees of the establishment of respondent No,3 (PSO) were to be governed by the principle of master and servant and according to the settled principle of law the petitioners had no authority to invoke the Constitutional jurisdiction of this Court for redress of their grievances on account of their removal, termination or dismissal from the service of the establishment of respondent No,3 even if such removal, termination or dismissal was illegal, mala fide in colorable exercise of authority and in violation of the principle of natural justice. Mr. Abdul Mujeeb Prizada, learned counsel for the petitioners, vehemently refuted the contention advanced by Mr. Raja Haq Nawaz Khan and submitted that an employee of a statutory Corporation, Body or authority controlled, managed and run by the Federal Government and who had been terminated, removed or dismissed from service in contravention of the rules and regulations of service applicable to him or by an authority legally not competent or in colorable exercise of authority or ultra vires or in violation of principle of natural justice would have the right to invoke the Constitutional jurisdiction for redressal of the wrongs and the illegal acts committed against him. In support of his contention he placed reliance on the case of Mrs. Anisa Rehman v.
14. PIAC and others (1994 SCMR 2232). In this case the petitioner was demoted to a lower post without affording an opportunity to show cause for such demotion. The action of her demotion was contested by petitioner Anisa Rehman upto the Supreme Court and the Supreme Court was pleased to observe that denial of principle of natural justice to the said petitioner before passing any adverse order against her could be equated with the violation of fundamental rights which would authorise the aggrieved party to invoke the Constitutional jurisdiction. The case of Mrs. Anisa Rehman v. PIAC and others was considered by the Supreme Court in the case of House Building Finance Corporation through Managing Director, Karachi and another v. Inayatullah Shaikh (1999)
15. SCMR 311). The Hon'ble Chief Justice of the Supreme Court of Pakistan, who was the author of the Judgment in the case of Mrs. Anisa Rehman v. PIAC and others (supra) declared that the principle laid down in the above case was that an employee of a Corporation could not be demoted in violation of principle of natural justice. The Supreme Court in the case of House Building Finance Corporation v Inayatullah Shaikh (supra) after taking into consideration as many as 13 cases decided earlier reiterated the principle that relationship between the statutory corporations/bodies and its employees was governed by the principle of master and servant. The principle which emerges from the pronouncement made in cases mentioned below is that if that relationship was the result of a contract freely entered into by the contracting parties, then the principles of master and servant would apply. However, if some law or statutory rules relating to the appointment, removal and other terms and conditions of service of the employees were framed by the Government and imposed on statutory corporations/bodies then the principle of master and servant would not be applicable and the employees of such statutory corporations/bodies would be governed by the statutory rules. The cases relied upon by the Supreme Court are as follows:--
(i) Lt.-Col. Shujauddin Ahmed v. Oil and Gas Development Corporation (1971 SCMR 566);
(ii) Chairman of East Pakistan Development Corporation v. Rustom Ali (PLD 1966 SC 848);
(iii) Lahore Central Cooperative Bank Limited v. Pir Saifullah Shah (PLD 1959 SC (Pak) 210);
(iv) Zainul Abedin v. Multan Central Cooperative Bank Limited (PLD 1966 SC 445);
(v) Shahid Khalil v. PIAC Karachi (1971 SCMR 568);
(vi) A George v. Pakistan International Airlines Corporation (PLD 1971 Lahore 748);
(vii) R.T.H. Janjua v. National Shipping Corporation (PLD 1974 SC 146);
(viii) Muhammad Yousuf Shah v. Pakistan International Airlines Corporation (PLD 1981 SC 224);
(ix) Anwar Hussain v. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194);
(x) Anwar Hussain v. Agricultural Development Bank of Pakistan and others (1992 SCMR 1112);
(xi) Raziuddin v. Chairman, Pakistan International Airlines Cooperation and 2 others (PLD 1992 SC 531);
(xii) Chairman, WAPDA and 2 others v. Syed Jamil Ahmad (1993 SCMR 346). and
(xiii) Muhammad, Umar Malik v. The Muslim Commercial Bank Ltd. through its President, Karachi and 2 others (1995 SCMR 453).
16. For the foregoing reasons, we are unable to accept the contention of Mr. Abdul Mujeeb Pirzada who relying on the case of Mrs. Anisa Rehman v. PIAC and others (1994 SCMR 2232) submitted that the petitioners would have authority to invoke the Constitutional jurisdiction of this Court as the letters of termination/orders of the petitioners were not issued by the competent Authority, were mala fide, illegal, being against the rules governing the service of the petitioners and in violation of principle of natural justice. We may also refer here to the cases of (i) Habib Bank Ltd. and others v.
17. S. Ziaul Hasan Kazmi reported in 1998 SCMR 60 and (ii) United Bank Ltd. and others v. Ahsan Akhtar and others (1998 SCMR 68) wherein the Supreme Court made categorical pronouncements that the remedy available to the employee of a corporation for his wrongful dismissal in the absence of any violation of law or any statutory rules is to claim damages and he cannot press into service Constitutional or civil jurisdiction for seeking relief of his reinstatement in service. In the case of Habib Bank Limited v. S. Ziaul Hasan Kazmi (1998 SCMR 60) the Supreme Court had taken into consideration the Judgment in the case of Mrs. Anisa Rehman v. PIAC and others (supra) and made the following observation in connection with the pronouncement made in the Anisa Rehman case:-- "The ratio of the judgment in the case of Mrs Anisa Rehman (supra) is that a Corporation cannot demote its employee to a lower grade without hearing him/her before passing demotion order. It has not dealt with the question of termination of services or suspension order."
18. Mr. Abdul Mujeeb Pirzada further submitted that even if considering for the sake of arguments that the employees of respondent No,3 were being governed by the principle of master and servant and would have no authority to invoke the Constitutional jurisdiction of this Court for their wrongful dismissal from the service as there was no violation of any law or statutory rules, the fact is that many of the petitioners who by virtue of incorporation of section 2-A in the Service Tribunals Act have been deemed to be civil servants were prior to incorporation of section 2-A treated as workers and/or workmen as defined in Industrial Relations finance and the Industrial and Commercial Establishments (Standing Orders) Ordinance having the right to invoke the Constitutional jurisdiction of this Court to challenge an adverse decision made against them by the Sindh Labour Appellate Tribunal, being the highest forum/tribunal in the hierarchy of Labour Courts.
19. He further submitted that such petitioners by virtue of the aforesaid amendment in the Service Tribunals Act would be aggrieved party within the meaning of clause (a) of Article 199(1) of the Constitution of Islamic Republic of Pakistan as they have been deprived from invoking the Constitutional jurisdiction of this Court which prior to aforesaid amendment they had the right to invoke. He further submitted that such action is in clear disregard of the provisions of Articles 4,8 and 25 of the Constitution of Pakistan which gives right to a citizen of Pakistan to approach the Courts of law established in accordance with the provisions of the Constitution.
20. Mr. Raja Haq Nawaz Khan in reply to the aforesaid objections submitted that in the first place Mr. Abdul Mujeeb Pirzada has not been able to point out as to whether any of the petitioners would be covered by the definition of workers/workmen as defined in the Industrial Relations Ordinance and the Industrial and Commercial Establishments (Standing Orders) Ordinance and his statement is based merely on conjectures and surmises that some of the petitioners in the two petitions would come within the category of workers/workmen. He further submitted that the petitioners were absorbed in the establishment of respondent No,3 as Management Trainees as is evident from the definition of their post/office. It would be absolutely beyond any doubt that they were recruited as officers to perform duties related to the Management of the establishment of respondent No,3 and none of them would be covered by the definition of workers/workmen. The contention advanced by Mr. Raja Haq Nawaz Khan merits consideration and Mr. Abdul Mujeeb Prirzada should have specifically pointed out as to which of the petitioners and on what basis they would be covered by the definition of workers/workmen. However, in view of the great significance and importance of all the issues, we consider it proper to consider and examine these issues for deciding them on merits.
21. In this regard two-fold arguments were advanced by Mr. Abdul Mujeeb Pirzada. Firstly, that by incorporation of section 2-A in the Service Tribunals Act, the Legislature prevented or restrained the petitioners from approaching the High Court in respect of any wrongful or illegal act committed by the respondents in relation to the terms and conditions of the service which amounted to violation of the Constitutional rights guaranteed in the Articles 8 and 25 of the Constitution of Islamic Republic of Pakistan in as much amendment made in the Service Tribunals Act, 1997 by incorporating section 2-A therein the State had taken away their rights of invoking the Constitutional jurisdiction of this Court and also deprived them of the equality before law and of their entitlement to equal protection of law. Secondly, it was stated that by preventing the petitioners from approaching this. Court the newly incorporated section 2-A has compelled the petitioner to approach the Service Tribunal for the redress of any wrongful or illegal action of respondent No,4 in relation to the terms and conditions of their service and by doing so the Legislature had put the petitioners at the mercy of the Tribunal which for its creation has no sanction or authority in the Constitution: which is a creature of a statute; which is not capable of providing highest form of justice as would be done by this Court in view of the higher skill, expertise and knowledge which is possessed by the Judges of this Court as compared to the persons manning Service Tribunal; and that the terms and conditions of service of the persons manning the Service Tribunal and their terms of office have no legal or Constitutional sanction and guarantee which makes them vulnerable to provide a highest form of independent justice to the aggrieved party. Mr. Abdul Mujeeb Pirzada further attacked the establishment of Service Tribunal as a special forum for redressed of the grievance of the civil servants relating to the terms and conditions of their service on the ground that it was against the spirit of the Constitution and amounted to establishment of a parallel judicial system by means of a statute the Chairman and Members of which are appointed by the Executive and hold offices at the pleasure and desire of the Executive and further that establishment of such parallel judicial system/Tribunals is not envisaged in the Constitution and also corrodes the powers and sanctity of the Courts and Tribunals established or recognized by the Constitution. For his above contention he placed reliance on the cases of:--
(i) Government of Baluchistan v. Azizullah Memon and 16 others (PLD 1983 SC 341);
(ii) Government of Sindh and others v. Sharaf Faridi and others (PLD 1994 SC 105);
(iii) Imran v. Presiding Officer, Punjab Special Court and others (PLD 1996 Lahore 542); and (iv)Al-Jehad Trust and others v. Federation of Pakistan and others (PLD 1996 SC 324).
22. The question of establishment and jurisdiction of Courts in accordance with Articles 175, 202 and 203 of the Constitution of Islamic Republic of Pakistan was considered in great detail by the Supreme Court in case of Mehram Ali and others v. Federation of Pakistan reported in PLD 1998 SC 1445 while discussing the issue relating to the establishment of the Special Courts under the Anti- Terrorist Activities Act, 1997 as to whether they would be covered by the words Courts and Tribunals to be established in view of the Articles 175, 202 and 203 of the Constitution of Islamic Republic of Pakistan or would be deemed to be Courts established by the Executive without having Constitutional backing and sanctity. The Supreme Court was pleased to pronounce that any Court or Tribunal which is not founded on any of the Articles of the Constitution, cannot lawfully share judicial power with the Courts referred to in Articles 175, 202 and 203 of the Constitution and further that any Court or Tribunal which is not subject to judicial review and administrative control of the High Court/or the Supreme Court does not fit in within the judicial framework of the Constitution.
23. The Supreme Court further observed that a parallel Judicial system cannot be created in violation of Articles 175, 202 and 203 of the Constitution and there was no bar to constitute the Special Courts for trying heinous crimes expeditiously but the same ought to be within the framework of the Constitution. It was further observed that Courts/Tribunals which were manned and run by the executive authorities without being under the control and supervision of the High Court in terms of Art. 203 of the Constitution, would not meet the mandatory requirement of the Constitution. From the aforesaid Judgment it is to be deduced that only such specific Tribunals can be constituted to share the judicial powers with the Supreme Court, High Courts and such other Courts as may be established by the law as have been specifically provided in the Constitution itself. Such specific Tribunals are Federal Shariat Court (Chapter 3-A of the Constitution), Tribunals under Article 212, and Election Tribunals. Regarding independence of such Tribunals the Supreme Court observed that in the absence of power of the Supreme Courts or High Court for judicial review and for administrative control over such Tribunal they would not fit in the judicial framework of the Constitution and cannot be called as independent. The Supreme Court specifically dealt with that position and status of the Service Tribunal in accordance with the Article 212 of the Constitution and it will be appropriate to reproduce the relevant portion from the Judgment of the Supreme Court as under:-- "(iv) On the basis of the above case-law, we have held hereinabove that the Constitutional framework relating to judiciary does not admit/permit the establishment of a parallel system of the Courts or Tribunals, which are not under the judicial review and administrative control and supervision of the High Court. It may be pointed out that where the Constitution makers wanted to provide judicial forums other than what is envisaged by Articles 175, 202 and 203, they have expressly provided for the same in the Constitution. In this regard reference may again be made to Article 212 of the Constitution, which envisages the establishment of Administrative Courts or Tribunals 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) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or (c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law."
24. It will not be out of context to mention again that even under Article 212 of the Constitution, which envisages establishment of Administrative Courts or Tribunals for adjudicating upon the disputes relating to the matters specified under sub-clauses (a) to (c) of clause (1) of the above Article, an appeal is provided to the Supreme Court. Similarly, under the relevant election law, namely, Representation of People Act, 1976, an appeal against an order of an Election Tribunal lies to the Supreme Court. In the present case an appeal is provided to an appellate Tribunal and not even to the High Court as such."
25. From the above passages reproduced from the Judgment of the Supreme Court in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) the contention of Mr. Abdul Mujeeb Pirzada that by establishment of Service Tribunal the Government has established a parallel judicial system in conflict with the judicial System/Courts consisting of the Supreme Court, High Courts and such other Courts as may be constituted, which have been envisaged by the Articles 175, 202-and 203 of the Constitution is absolutely without any substance and is discarded.
26. Service Tribunal (s) have been established in accordance with the requirement and provision made in the Constitution for their establishment the object of which is to provide a specific forum to the civil servants for rectification of the wrongs done to them in connection with any of the terms and conditions of their service providing the deemed civil servants to approach the Service Tribunal would not amount to placing such deemed civil servants at the mercy of a Tribunal established by the executive in pursuance of an act of parliament and exercising its powers under the control and supervision of the executive. Similarly, in cases where deemed civil servants would have the right to invoke the Constitutional jurisdiction of this Court, taking away of the same would not result in injustice as alternate forum is as adequate, efficacious and judicious as this Court. The contention that Chairman and the Members of the Services Tribunal are appointed by the executive and their tenure of service is not secured or guaranteed as they hold office during pleasure of the executive which would an impediment in their way to dispense justice without fear or favour is also without any substance. In this respect, it may be mentioned that both the Chairman and the Members are appointed for a fixed tenure and none of them has ever been removed from office before completion of tenure for which he was appointed. Secondly, the Chairman of the Tribunal is almost always appointed from amongst the retired Judges of the Supreme Court or the High Courts, whereas Senior Sessions Judges or retired Sessions Judges are often appointed as Members. A Tribunal headed by a retired Judge of the Supreme Court, High Courts and having Senior Sessions Judge or civil servants as its Member can hardly be influenced or pressurised by the executive or political set up. The submission that the Service Tribunal functions at the will of the executive, Legislature or the politicians and is prone to their control or manipulation, thus, ruling out the possibility of free, fair and impartial justice to an aggrieved civil servant is absolutely preposterous.
27. In the circumstances the contentions raised by Mr. Abdul Mujeeb Pirzada, firstly, that incorporation of section 2-A amounted to denial of the rights to the petitioners for access to justice and they have been blocked from approaching this Court by invoking the Constitutional jurisdiction for agitating their grievances relating to the terms and conditions of their service; and secondly, that they have been compelled to approach the Service Tribunal which for its creation and existence has no Constitutional backing or sanctity as to be equated with the judicial set up envisaged by 'Articles 175, 202 and 203 of the Constitution are absolutely without any substance and are frivolous.
28. The cases relied upon by Mr. Abdul Mujeeb Pirzada are of no assistance to his contention in view of negation of his arguments for the reasons narrated above.
29. The next ground raised in the aforesaid petitions was that the amendment made by the newly incorporated section 2-A is discriminatory and operates to the prejudice of the petitioners inasmuch as new section 2-A has declared the petitioners as deemed civil servants for the purpose of blocking them from invoking the Constitutional jurisdiction of this Court and to approach the Services Tribunal for redress of the wrongs and grievances arising of their terms and conditions of their service but they have been denied the advantages and benefits available to the normal civil servants in view of the provisions of the Civil Servants Act. It was further submitted that the terms and conditions made available to the civil servants/persons in service of Pakistan defined in section 2 of the Service Tribunals Act are definitely much more beneficial and advantageous as compared to the terms and conditions available to the petitioners. He further submitted that this is a clear violation of Article 25 of the Constitution of Pakistan in as much as where the petitioner have been equated with the civil servants they ought to have been provided the benefits of the terms and conditions applicable to the normal civil servants but by way of discrimination such benefits have been denied to them. This contention is also without any force and is not tenable. The concept of equality of citizens as enunciated in Article 25 of the Constitution does not mean that all laws must apply to all the subjects or that all subjects must have the same rights and liabilities, and the conception of equality before the law does not invoke the idea of absolute equality among human beings which is a physical impossibility. Article 25 guarantees a similarity of treatment and not identical treatment. The equal protection of laws does not mean that all laws must be uniform. Article 25 does not envisage absolute equality or equal protection of law and permit a reasonable classification. A classification made on the basis of substantial difference with reference to the object or person dealt with is permissible and is not violative of the principle of equal protection of law. The Supreme Court in the case of Fauji Foundation v. Shamimur Rehman observed that the expression "equal protection of law" does not place embargo on power of State to classify either in adoption of police laws, or tax laws, or eminent domain laws, but rather gives to State exercise of wide scope of discretion, of course, nullifying what is without any reasonable basis. In the case of Brig. (Retd.) F.B. Ali v The State (PLD 1975 SC 506) the Supreme Court while examining the question of discrimination observed that the phrase 'equal protection of law' meant that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other class of persons in like circumstances in respect of their life, liberty, property or pursuits of happiness. The Supreme Court further observed that all law implies classification and to justify the validity of a classification, it must be shown that it is based on reasonable distinctions or that it is on reasonable basis and rests on a real or substantial difference or distinction. This Court in the case of Amir Ahmed v. Government of Pakistan (PLD 1996 Karachi 27) held that when in an establishment there were two different types of employees, their terms and conditions could be distinct and such distinction would not offend the provisions of Article 25 of the Constitution. In the case of Abdul Aziz v. The State (PLD 1992 Karachi 378) this Court observed that the expression "equal protection of law" occurring in Article 25 does not forbid discrimination with respect to things different nor does it prohibit classification which is reasonable and is based upon substantial difference having nexus to the objects or persons dealt with and to the purpose sought to be achieved. In the light of the pronouncement made in the afore-referred cases, it is to be seen whether the petitioners, who are deemed to be civil servants, have been brought at par with the civil servants defined in section 2(b) of the Civil Servants Act or there is a distinction between the two sets of civil servant with regard to their status, duties which they perform, the powers exercisable by them and the pay/emoluments to which they are entitled to receive. The set of civil servants defined in the Civil Servants Act perform duties and functions relating to formation of policies and course of action for the proper administration of the State, maintenance of law and order, providing for generation of funds and the manner in which it is to be spent, formulating policies for provision of health and medical facilities, hospitals, education, employment besides involvement in the affairs of day to day running of the Government. The petitioners who are deemed to be civil servants do not perform any of the aforesaid dutits and functions enunciated above. Their duties of functions are confined to proper management and running of their establishment which as compared to the duties and functions performed by the normal civil servants are much less onerous and burdensome. Even the pay scales and the fringe benefits provided to the two sets of civil servants are distinct. There is, thus, a vast distinction in several aspects between the two sets of civil servants. The Government by' not making applicable the provisions of the Civil Servants Act to the deemed civil servants/petitioners may be said to have given a different treatment to them but the same does not offend Article 25 of the Constitution as the same is founded on classification which is reasonable in the circumstances of the case. It is also pertinent to note that there is a strong presumption in favor of the Constitutional validity of a law made by a competent Legislature, therefore, it is for the party who challenges the constitutionality of any enactment to show how the enactment is unconstitutional and how the state has violated the true principles of classified legislation and exceeded the limits of reasonable discrimination. For the above, reliance can be placed on the case of Shirin Muneer and others v Government of Punjab and another reported in PLD 1990 SC 295.
30. Thus, the contention on behalf of the petitioners that by way of aforesaid amendment they were deprived of their rights of equality before the law and their entitlement of equality and protection of law, viz-a-viz a normal civil servant as defined in section 2(b) of the Civil Servants Act, is without any substance and holds no force.
31. The next contention raised by Mr. Abdul Mujeeb Pirzada was that the petitioners having been declared as civil servants would be entitled to be governed by the Civil Servants Act till such time as new or fresh law or statutory rules relating to their terms and conditions of service are framed and made applicable to them in view of the provision of Article 240 of the Constitution of Pakistan.
32. In this connection, it may be observed that this ground has not been taken in any of the two aforesaid Constitutional petitions and was raised for the' first time by Mr. Abdul Mujeeb Pirzada while replying to the arguments of learned counsel for the respondents. Mr. Raja Haq Nawaz Khan vehemently opposed the above contention and submitted that Mr. Abdul Mujeeb Pirzada ought to have raised the said ground on behalf of the petitioners in the petitions and he could not be allowed to raise an absolutely new and foreign ground to catch the other side unaware. Apart from the objection raised by Mr. Haq Nawaz Khan which in our opinion is valid and proper, we do not find any force in the arguments advanced by Mr. Abdul Mug eb Pirzada. It may be pointed out that new section 2-A incorporated in the Service Tribunals Act has not conferred the status of civil servants on the employees/persons holding posts in corporations, bodies, authorities and/or companies owned, managed, controlled and run by the Federal Government and that by virtue of section 2-A they are to be deemed to be civil servants for the limited purpose of conferring on them the right to approach the Service Tribunal by way of appeals for rectification and redressed of wrongs and grievances relating to their terms and conditions of service. Neither they have been declared as civil servants for the purpose of Civil Servants Act nor their conditions of service are required to be determined. The petitioners would continue to be governed by the service rules/regulations applicable to them during the course of their service in the respondent No,1 establishment. The petitioners who were performing the job of workers or workmen as defined in the Industrial Relations Ordinance and the Industrial and Commercial Establishments (Standing Orders)
33. Ordinance, if any, would continue to be governed by and enjoy the benefits conferred on them by the various labour laws. The only change which has been made by section 2-A is that instead of approaching various forums and Courts for the redresseal of their grievances relating to their terms and conditions of service, a unified and specific forum has been provided for all the petitioners who were the employees of despondent No,1 or corporations, bodies and organizations managed and controlled by the Federal Government. It may not be out of place to mention here that in Constitution Petition No,D-1816 of 1997 seven of the petitioners i,e, Nos. 1, 2, 3, 7, 10, 11, and 12 and in Constitution Petition No,D-1688 of 1997 had filed C.P. Nos. 507-K to 513-K of 1998 in the Supreme Court of Pakistan wherein all the grounds raised before us were raised. The Hon'ble Supreme Court vide Judgment dated 25-1-1999 dismissed all the aforesaid petitions. In the aforesaid judgment, the Supreme Court while considering the contention that the petitioners were declared to be in service of Pakistan and their terms of service would be governed in terms of Article 240 of the Contitution was repelled and was held to be devoid of force. The Supreme Court relying on an unreported judgment in a case decided by it on 16-4-1998, C.P.L.A. No, 1305-K of 1997 (Syed Aftab Ahmed v. KESC and others) and other connected petitions held that the definition of civil servant given in section 2(b) of the Civil Servants Act was not applicable to the employees of KESC as they were deemed to be in service of Pakistan for the limited purpose of providing a forum for agitating their grievances relating to the terms and conditions of their service. The Supreme Court further held that they would not be entitled to be governed by the Civil Servants Act or any other law applicable to the civil servants as defined in section 2(b) of the Civil Servants Act. This contention, therefore, is devoid of force.
34. Mr. Abdul Mitjeeb Pirzada also attacked the vires of section 6 of the Service Tribunals Act and submitted that provision for abatement of the cases filed by the petitioner and pending disposal in this Court or in other forums after declaring them to be in the Service of Pakistan and deemed to be civil servants was illegal and unjust and the proper course would have been to make provision that all such cases/petitions would stand transferred to the Service Tribunal to be treated as appeals under section 4 of the Civil Servants Act. It is pertinent to note that abatement of cases/petitions/proceedings in respect of matters relating to the terms and conditions of persons who are or have been in the Service of Pakistan has been provided in clause (2) of Article 212 of the Constitution. After the establishment of the Service Tribunal by promulgation of the Service Tribunals Act, 1973 all such proceedings pending before other Courts stood abated except the appeals pending in the Supreme Court. The legality of the provision relating to the abatement of proceedings was challenged by the persons whose cases relating to service matter stood abated immediately on coming into force of the Civil Servants Act and matter were agitated before the Supreme Court which did not find any illegality or flaw in the provision relating to abatement of such proceeding and .held it in consonance with Article 212(2) of the Constitution and the Civil Servants Acts. We may refer to some of the cases decided by the Supreme Court wherein the provision of abatement of proceedings relating to the matters enumerated in Article 212(2)(a) was held to be proper, as under:--
(i) Faizullah Khan v. Government of Pakistan (PLD 1974 SC 29);
(ii) M. Yamin Qureshi v. Islamic Republic of Pakistan (PLD 1980 SC 22);
(iii) Idrees Ahmed v. Hafiz Fida Ahmed Khan (PLD 1985 SC 376);
(iv) Abdul Wahab v. Government of Punjab (PLD 1989 SC 508);
(v) Pakistan International Airlines v. F.M. Shamsi (PLD 1990 SC 943) and
(vi) Pakistan International Airlines v. Nasim Malik (PLD 1990 SC 951)
35. In the case of Pakistan International Airlines v. Nasim Malik, (ibid), the Hon'ble Supreme Court observed that the effect of declaring service under a corporation as the Service of Pakistan and making an employee of the corporation a civil servant for the purpose of the Service Tribunals Act, 1973, no other Court can entertain employee's appeal after the provision had come into force.
36. Lastly, Mr. Abdul Mujeeb Pirzada submitted that the petitioners have challenged. the impugned orders of termination on the grounds that they are mala fide, without lawful authority, coram non judice and ultra vires and these grounds cannot be examined by the Service Tribunal in the exercise of its limited statutory appellate jurisdiction. He further submitted that respondent No,4 who signed the letters of termination is not appointed in accordance with the provisions of section 6 of the Petroleum Products Act as well as the principle of making appointments which required advertisement of the posts on which appointments were to be made. In support of this above contentions he placed reliance on the case of (i) Mushtaq Ahmed Mohal and others v. Lahore High Court and others (1997 SCMR 1043) and (ii) Obaidullah and another v. Habibullah and others (PLD 1997 SC 835). We are in respectful agreement with the pronouncements made by the Humble Supreme Court in the afforested two cases but they do not support the contention that orders of termination of services of the petitioners signed by respondent No,4, who if it be admitted, was not appointed according to section 6 of the Petroleum Products Act and the pronouncement made by the Supreme Court cannot be challenged in the Service Tribunal but only in this Court in its Constitutional jurisdiction. Mr. Raja Haq Nawaz submitted that it is now well-settled and established that a final order passed by a departmental authority relating to the terms and conditions of service of a civil servant is to be challenged before the Service Tribunal on all grounds in clouding those involving the allegations of mala fides, lack of jurisdiction, illegality, coram non judice or in violation of the fundamental rights. For his above proposition, he placed reliance on the following cases:--
(i) Asadullah Rashid v. Haji Muneer and others (1998 SCMR 2129);
(ii) Province of the Punjab v. Dr. S. Zafar Bukhari (PLJ 1998 SC 1702);
(iii) I.A. Sherwani v. Government of Pakistan and others (1991 SCMR 1041);
(iv) Muhammad Anis v. Abdul Haseeb (PLD 1994 SC 539) and
(v) Muhammad Afzal v. Karachi Electric Supply Corporation (1999 SCMR 92).
37. The pronouncements made in the afore-cited cases clearly support the contention of Mr. Raja Haq Nawaz Khan that all the grounds raised by the petitioners for challenging the impugned orders can be raised and agitated before the Service Tribunal. In the circumstances, the contention with regard to the lack of jurisdiction of the Service Tribunal relative to examination of the issues of mala fides, illegality, ultra vires, coram non judice or in violation of a fundamental right does not carry any weight and we hold that the impugned order can be validly agitated before the Service Tribunal in appeal as contemplated in section 3 of the Service Tribunals Act.
38. Upon the above discussion we have arrived at the conclusions that these petitions have no substance and merit no consideration. All the objections raised with regard to vires and legality of sections 2-A, 3 and 6 of the Service Tribunals Act are not well-founded and stand overruled.
39. Accordingly, both the petitions stand dismissed. together with pending miscellaneous applications.