A statement has been filed on behalf of the defendants to the effect that the service Tribunal (Amendment) Bill 1997, has been passed by the Parliament and assented to by the President. It is stated that after the enforcement of the aforesaid Act of Parliament, service under certain corporations, including the defendant, has been declared to be service of Pakistan and hence this Court has ceased to have jurisdiction over the suit. Notice of this statement was issued to the Plaintiff and I heard elaborate arguments of Mr. (Now Mr. Justice) Ikram Ahmad Ansari and Mrs. Naveen Merchant on behalf of the defendant and Mr. Mehmood A.H. Baloch on behalf of the plaintiff on 9-9-1997 and 23-9-1997. The matter was thereafter, reserved for orders.
2. However, soon thereafter, I had proceeded to serve on the Circuit Bench at Hyderabad and thereafter, on account of severely occupation orders could not be passed. Normally I would have ordered re-hearing of the matter but since the question involved has been examined and decided in several other case including those decided by me I do not consider any need for doing so.
3. The plaintiff in this suit has sought inter alia, a declaration as to this being a confirmed and permanent employee of the defendant No. 1 and a permanent injunction seeking to restrain the defendant from giving effect to a letter dated 26th March, 1997, purporting to terminate his services. It may be pertinent to mention that the defendant is an incorporated company the controlling shares whereof are held by the Federal Government. Admittedly the plaintiff is not a civil servant for the purpose of the civil servant Act, or the Service Tribunal Act, as stood prior to 7-6- 1997. With effect from the aforesaid date however, an amendant in the Services Tribunal Act, came into effect whereby a new section 2-A was inserted in the Service Tribunal Act, which reads 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 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 purpose of this Act."
4. The Service Tribunal Act, which was enacted in 1973 provided for the establishment of Tribunals of exclusive jurisdiction for adjudicating dispute relating to the terms and conditions of persons in the service of Pakistan. This was done pursuant to the provisions of Article 212 of the Constitution.
Section 6 of the Act reads as under:-- "Section 6. Abatement of suits and other proceedings.---All suits, appeal or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Act shall abate forthwith: Provided that any party to such a suit, appeal or a application may, within ninety days of the (establishment of the appropriate Tribunal), prefer an appeal to it in respect of any such matter which is in issue in such suit, appeal or application."
5. Learned counsel for the defendants argued that with effect from 7-6-1997 service under the defendant No,1, which is admittedly a corporation in which the Federal Government has controlling shares was by law declared to be service of Pakistan and the plaintiff, who admittedly hold the post under such corporation is to be deemed to be a civil servant under this Act. As such the suit has abated in terms of the abovementioned section 6.
6. Learned counsel for the plaintiff on the other hand contended that the above amendment could only be given prospective effect and its provisions could not affect proceedings initiated in Court prior to its enforcement like the present suit. Conceding that this Court had, in similar cases taken the view that such suits had abated, learned counsel pointed out that the Federal Service Tribunal had taken a contrary view and held that the amendment was not given retrospective effect and could not affect pending proceedings or grievances arising before,7-6-1997. Consequently the Service Tribunals had declined to entertain proceedings which were filed before them.
7. While supporting the view taken by the Tribunals, Mr. Baloch submitted in the alternative that at least till such time an authoritative pronouncement was given by the Hon'ble Supreme Court, the suit should be allowed to continue as otherwise it might lead to the inequitable consequence that the plaintiff would be left without any remedy at all. He pointed out that in the case of Shaikh Muhammad Javed v. K.E.S.C. (Suit 383 of 1997) it was held by Mushtaq A. Memon, J. that upon the enforcement of the 1997 Act such suits had abated. However, when, as a consequence thereof, some of his colleagues approached the Federal Service Tribunal, the Tribunal declined to entertain such appeals and, therefore, they had to approach the Hon'ble Supreme Court. Learned counsel placed before me a copy of the Memo. of Petition for leave to appeal in the case of Tabrez Hussain Severa v. K.E.S.C. (C.P. and Appeal No,903 of 1997) and the ad interim order dated 15-8-1997 directing maintenance of status quo. He urged that till the controversy is resolved by the apex Court, it would be proper for this Court to maintain status quo as well.
8. Be that as it may, with profound respect I regret my inability to subscribe to the view canvassed by the learned counsel for the plaintiff. It is indeed true that an amendment in the statute does not generally affect pending proceedings. This principle, however, is applicable only when the statute does not provide otherwise section 6 of the Service Tribunal Act, explicitly states that pending proceedings relate to matters falling within purview of the Tribunals abate upon the constitution of such Tribunal. Obviously, pending proceedings relate to causes of action arising prior to the enforcement of the Act. As such, the general rule contained in section 6 of the General Clauses Act, could not prevail in the face of such explicit provisions. The mandate of Article 212(2) is also to the same effect.
9. The judgment of the Hon'ble Supreme Court in the case of Federation of Pakistan v. Muhammad Siddique (1980 SCM R 443) which clinches the controversy. Under almost identical circumstances, the provisions of the Service Tribunals Act, were extended to employees of WAPDA with effect from 30th September, 1975. At page 456 of the aforesaid judgment their Lordship observed:-- "In such like situations the underlying principle appears to be that when a statute is extended to a territory or class of persons who were originally not covered by it, regarding those territories and persons when a new statute is enacted by reference to the original statute, the date of commencement given in the original statute is synchronised with the date on which the said statute is extended to the new territories and/or persons. In these cases, the original statute, i,e, the Act was enacted on 29th of September, 1973. The Water and Power Development Authority (Amendment) Ordinance, 1975, whereby the Act was extended to the WAPDA employees came into force on 30th of September, 1975. The civil appeals by the WAPDA filed before the District Court against the decrees passed by the learned trial Judge were pending before the District Court on 30th of September, 1975. Therefore, they abated on the said date. That being so, the WAPDA had the right to file appeals before the Tribunal under the proviso to section 6 of the Act. Of course the said provision, on account of natural barrier of time would apply mutatis mutandis, meaning thereby that the period of limitation would commence from the date of the abatement; namely 30th of September, 1975."
10.The same view was reiterated by the Hon'ble Supreme Court in Chairman P.I.A.C. v. Nasim Malik (PLD 1990 SC 951). Moreover, several recent pronouncements of large Benches of this Court relating of the 1997 Amendment Act leave no room for any controversy. I am sanguine that the Hon'ble Service Tribunal may be pursuaded to reconsider its earlier view if its attention is properly drawn to the relevant statutory and Constitutional provisions and the binding precedents of the Supreme Court. Moreover, since abatement takes place by operation of law, there is no discretion available to this Court to allow the matter to remain on its docket.
11.In view of the above this suit stands abated from the date of the enforcement of the 1997 Act, i,e, 7-6-1997. The plaintiff may, however, approach the Federal Service Tribunal for redress. Needless to say that the Tribunal is entitled to grant the plaintiff the benefit of section 14 of the Limitation Act and it will keep in view the circumstances mentioned above. It also has power to grant him interim relief.
In view of the above the suit is disposed of as having abated.