' MUHAMMAD RAZA KHAN (MEMBER)---In the background of all these appeals lies a process of Constitutional and statutory evolution stretching over quarter of century. The concept of administrative law was introduced for the first time in the Constitution of 1973. Prior thereto the normal Courts used to adjudicate upon the service grievances of the civil servants being the part of the normal civil litigation. The process consumed a considerable length of time whereby not only the grievances and agonies of civil servants were prolonged but the final adjudication used to place the civil servants as well as the departments in irreparable and some times, irreversible loss.
Thus, in the Constitution of 1973, Article 212 provided for the establishment of Administrative Courts and Tribunals for the redressal of personal grievances of the civil servants. The Article also provided for a mechanism to provide for tortious liabilities of public servants. The Administrative Tribunal was not established right with the commencement of the Constitution. It took several months to become a reality. The civil servants were already working in the Federal and Provincial Governments right from the inception of the country and till 1973 a lot of litigation had already been processed by the civil servants with regard to their service disputes and claims. The matters were either pending in the original Courts or at appellate level. Some matters were also pending at the revisional stage. Therefore, Article 212 of the Constitution on the one hand, provided for the establishment of the Administrative Tribunals and, on the other hand, provided that on the establishment of such Tribunals, the suits, appeals and proceedings pending in any other Court of forum shall abate forthwith except the proceedings pending in the Supreme Court of Pakistan.
2. To comply with the Constitutional requirement under Article 212 as well as Article 240, the appropriate legislature initially adopted the Civil Servants Act, 1973 whereby the terms and conditions of the persons falling under the definition of Service of the Pakistan were enacted.
Thereafter, the Service Tribunals Act, 1973 was promulgated providing for the establishment of the Administrative Tribunal for the civil servants wherein a mechanism was provided for the redressal of service disputes of civil servants. It was provided thereunder that the "matters already pending adjudication at any level pertaining to service grievances of the civil servants shall abate and the aggrieved party shall have the right to approach the Service Tribunal within 90 days of its establishment and if some dispute was not already taken to any Court of law, a period of six months was provided for direct appeal under section 4 of the Service Tribunals Act, 1973, and within this period the departmental remedy had to be exhausted. The Tribunals were established in 1974 i,e, a couple of months after the enforcement of the Service Tribunals Act, 1973. At that stage several appeals regarding matters already pending adjudication in any other course were ordered to abate and the appeals were filed by the aggrieved parties under section 6 of the Act and considerable number of cases pertaining to matters not taken to Courts were also agitated under section 4 of the Act. The said Act, however, provided that any matter relating to the period prior to 1969 could not be agitated.
3. For the first time in 1975, the employees of an autonomous body WAPDA were declared to be in the service of Pakistan, by an amendment in WAPDA Act, and thus, the employees of WAPDA became civil servants by virtue of an amendment in the mother statute of WAPDA, in 1985, an amendment was incorporated in PIA Act, whereby the employees of PIA were declared to civil servants and they were also extended the benefits like the employees of WAPDA. This amendment was short lived as it was repealed in 1990.
4. Apart from these two organizations all the other autonomous and statutory corporations did not extend the facility of status of civil servant to its employees which resulted into several anamolies because the subordinate staff working in an organisation was equipped with a large number of Labour Laws to protect their interest but the executives and officers placed in the supervisory capacity were neither protected as workers or labourers nor as civil servants and hence the only possible relationship between their organisation and them was that of a master and servant and thus, the employees, other than workers, had no protection of service interest and at the most they could ask for monetary benefits by civil suits. There has been constant agitation about this anomaly in the press and public opinion and the Institution of Wafaqi Mohtasib specifically invited the attention of the Government to this flagrant violation of the principle of natural justice. It was, therefore, recommended from every corner that at least one opportunity of appeal must be provided to those employees of the autonomous bodies who can neither approach the Service Tribunal nor the Labour Court. The Government took notice of these demands and finally vide amending Act No,XVII of 1997, published on 10-6-1997, the Service Tribunals Act, was amended and the employees of such autonomous bodies were declared to be in the service of Pakistan and they were deemed to be civil, servants for the purposes of Service Tribunals Act (hereinafter called the Act). This Act further provided that it shall be enforced immediately and thus, prospectively.
5. On the promulgation of the amending Act a large number of appeals were filed at various stations of this Tribunal. These appeals were particularly of three categories. Firstly, those in which the dispute was pending in any other forum and such claim has either been abated by such forum or was deemed to have been abated and, therefore, appeals under section 6 of the Act were filed within 90 days of 10-6-1997. Secondly, the matters pertaining to the period prior to 10-6-1997, which had not been taken to any forum prior to 10-6-1997, were agitated by way of appeals under section 4 of the Act within a period of 6 months of the said date. Thirdly, the cases where the original or at least the appellate order has been passed after 10-6-1997.
6. So far as the third category is concerned, it certainly satisfied all the requirements of law and, therefore, if the impugned order, passed after 10-6-1997 was of appellate nature, this Tribunal had entertained the appeal for regular hearing. However, if the original order had been passed after 10- 6-1997 and the appellant did not approach the department by appeal, representation or review, he was advised to do so whereafter, the appeals were admitted for regular hearing after the maturity of the statutory period. Moreover, the cases where the original orders had already been challenged by departmental process and the period of ninety days had expired or the departmental remedies had been decided; the appeals were admitted for regular hearing. Thus, the third type of category did not create any problem. However, the first two categories were not only complicated in nature but the appellants were placed in a dilemma that either they were shuttled or they were left without remedy which is not a desirable situation under the principle of natural justice and equity.
Thus, the first two categories created a situation of embarrassment based on legal provisions and legal interpretation.
7. The appeal of the first two categories could be further bifurcated in sub categories as follows:-- "(i) Appeals where the appellants were workers and their grievances were under adjudication before the appropriate Labour Court.
(ii) The appeals by workers where the Labour Court has decided the cases against such workers and their appeals were pending in the Labour Appellate Tribunal.
(iii) The appeals of workers through petitions were dismissed by the Labour Courts and their appeals were also dismissed by the Labour Appellate Tribunal and their writ petitions were pending in the High Courts.
(iv) Cases of workers where the Labour Court had decided the cases in favour of the workers and the autonomous bodies had filed appeals before the Labour Appellate Tribunal.
(v) Cases of workers where the Labour Appellate Tribunals had provided relief and the organisation had filed writ petition against the Labour Appellate Tribunal.
(vi) The cases of labourers working in organisations having the facility of collective bargaining agents and trade union disputes were pending before the Single Bench of National Industries Relations Commission (NIRC).
(vii) The cases of labourers where Single Bench of NIRC had taken a decision and appeals were pending with the Division Bench or Full Bench of NIRC.
(viii) Cases where NIRC had finally taken a decision and appeals/petitions were pending against such final decision of the NIRC.
(ix) The cases of workers under the Workmen Compensation Act, pending with the Workmen Compensation Commissioner or after his decision pending at the appellate stage.
(x) Cases where casual workers were deemed to be regular labourers by the application of the provision of West Pakistan Commercial. Industrial Employment (Standing Orders) Ordinance.
(xi) Cases of employees other than the workers pending at the original stage in the Civil Court wherein the orders adverse to terms and conditions of service were challenged by declaratory suits with consequential relief.
(xii) Matters where the employees had not been asked for any declaration but had demanded compensation by way of damages on the principle of violation of terms prevailing between the master and servant.
(xiii) Matters of employees other than workers whose original proceedings had been decided and appeals were pending at various levels.
(xiv) The disputes of employees who were neither workers nor regular functionaries but were appointed on contract basis and they had demanded their claims either from the Labour Court or from the Civil Courts.
(xv) The disputes of the employees in their capacity of workers or other servants who had been aggrieved by any order passed several months or years ago (in some cases the disputes of 1980 or even earlier were particularly a subject matter of appeal) and they had agitated the issue before the Labour Courts or Civil Courts and the cases were decided finally against them but with the amendment of June, 1997, they found a justification for re-opening of the matters once again.
(xvi) The employees who were aggrieved by orders in the past and who had not agitated their cases before any forum have now found an avenue in the shape of Tribunal and have filed appeals directly without approaching their organisations afresh. In this category there were also cases where the cause of action had arisen more then 10 to 17 years ago. There were certain appeals where the appellants have agitated certain causes accrued to them prior to 10-6-1997 either during their services in the concerned organisation or even prior thereto whereby the terms and conditions were adversely affected.
(xvii) There had been certain appeals where the employees have agitated issues of the past relating to their terms and conditions and in most of the cases asking for the compensation by way of damages.
(xix) There were certain appeals where although the cause had arisen prior to 10-6-1997 and related to the terms and conditions of service and the aggrieved employee had sought departmental remedy after 10-6-1997 and either the appellate order has been passed or a period of 90 days have elapsed.
8. So far as the last subcategory mentioned hereinabove is concerned, this attracted the provisions of section 4 of the Act and although the matter was relating to the period prior to amendment date, but since the Tribunal was deemed to have been established for such employees on 10-6- 1997, therefore, their appeals could be considered under section 4 of the Act subject to the condition that the prerequisite of departmental appeals are complied with. If the departmental appeal is decided, the appellant will have a right to challenge the appellate order. However, if the appeal is not decided, the appellant may file service appeals after the. Expiry of 90 days subject to the condition that the appeal must have been filed within a period of 6 months of the establishment of the Tribunal. The cases falling in this subcategory were admitted for regular hearing although subject to all just exceptions which might be raised by the respondents. However, all the rest of the subcategories did not satisfy as per concurrent findings of various Benches of this Tribunal, the basic precondition for a service appeal and hence such appeals were dismissed in limine for the reasons re-captulated hereinbel ow :
(1) Although in the newly added section 2-A of the Act no distinction has been made between a regular employee, a worker, deputationist or even a person on contract. The plain reading of the added section suggests that any person in the service of autonomous body etc. Shall be deemed to be a civil servant, hence it was argued that all the employees of autonomous bodies, irrespective of their nature of duty and status of employment shall be deemed to be civil servants.
However, we are .Of the opinion that the workers as defined in the Workmen Compensation Act and Factories Act, the deputationists and those on contract or work charge basis cannot be included in the definition of the civil servants for the reasons that:-- "(a) The additional section 2-A merely extends the jurisdiction U certain category of employees and does not create any independent jurisdiction over and above the other provisions of the Service Tribunals Act, and the Civil Servants Act.
(b) The additional section 2-A is conjected with the original section 2(a) by a word and 'includes' and, therefore, the additional section 2-A shall be subordinate and subsidiary to the main section and not dominent thereupon. Thus, section 2-A shall remain within the parameters of the main section 2(a). In the said original section 2(a), the civil servant has been defined in the same manner as has been defined in the Civil Servants Act, 1973, with the only addition that not only the present civil servant but those who were no more in the service of Pakistan but had been previously declared as civil servants will also fall in this definition. In the Civil Servants Act, certain workers, work charge employees, contingent employees deputationists and those on contract have been excluded. Thus, keeping in view the entire definition, as contained in the Service Tribunals Act as amended read with Civil Servants Act, would be that the employees of autonomous bodies except those on contract, on deputation are workers under the Workmen Compensation and Factories Act and work charged etc. Working in autonomous bodies and statutory corporations established or controlled by the Federal Government shall be deemed to be civil servants for the purpose of this Act. Hence the said categories of employees stand excluded from the definition and their appeals would not be maintainable.
(2) The workers who intend to avail the benefits of the standing orders can still approach the forum provided under the Labour Laws because by such definition they do not become civil servants.
(3) The Labour Courts have been established by the Provincial Government under the Provincial Laws, in most of the cases. The Federal Law cannot directly affect the remedy available to the citizen under the. Provincial legislation.
(4) The hierarcy of the Labour Courts is still available and have not ceased to function. All the Labour Laws can be enforced by any such heirarcy of Labour Courts. Thus, the Tribunal cannot assume the role of a Labour Court under the Labour Laws when the service laws do not provide for such assumption of role.
(5) If a Labour Court has dismissed the grievance petition of a worker being without merits based on evidence, only the Labour Appellate Tribunal can sit over the judgment on the findings of the Labour Court and by no interpretation, the Service Tribunal can convert itself to be a Labour Appellate Tribunal to sit over the judgment of Labour Court.
(6). If the Labour Appellate Tribunal has come to a final conclusion in a particular case, the normal legal remedy available to labourers/workers stand exhausted. The Constitutional remedy is ,of an extraordinary nature and can be provided under Article 199 by the High Court only. This Tribunal can never assume the jurisdiction exclusively conferred by Article 199 to examine the proper exercise of jurisdiction by the Labour Appellate Tribunal.
(7) If a decision is made by the Labour Appellate Tribunal in favour of a worker, the same has to be implemented by the organisation being final and conclusive decision under the normal law unless the decision is reversed by extraordinary jurisdiction of the High Court under the Constitution. The Constitutional jurisdiction cannot be conferred by a statute and cannot be attracted by inference or presumption.
(7-A) The labour have specific rights of Trade Union activities and they have to be supervised and regulated by the hierarchy of the Labour Courts within the limits prescribed by the labour laws.
There is neither any law nor any provision authorising or empowering the Service Tribunal to exercise the jurisdiction of Labour Court etc. For the trade union activities. Despite the fact that the amendments in WAPDA and PIA Act (referred to hereinbefore) was of peculiar nature but the trade union activities and the grievances purely of labour nature and falling under the labour laws are being agitated before the Labour Courts for over 20 years. Several appeals filed before this Tribunal in the changed circumstances relate purely to trade union activities or the rights and liabilities based on such activity only which can never be the subject of service laws.
(8) The concept of collective bargaining agent is an enlarged, refined and latest concept in the trade union activities. Special forum in the shape of NIRC (under a special statute) is already in existence for the protection of the rights, liabilities and connected matters with the CBA etc., on the matters relating or ancillary thereto can fall exclusively within the jurisdiction of such Commission and the same cannot be shifted or abated.
(9) The procedure within the learned NIRC is regulated by certain special regulations and the judgments of smaller Bench can be challenged by Intra-Court remedies. The Tribunal cannot be assumed to be substituted for such Bench or Commission merely by supposition.
(10) The claims under the Workmen Compensation Act are of a special nature and a specific statute with a proper and practical mechanisim thereof is already in-existence. That is why the law has specifically excluded the cases of workers of a particular category from the operation of service laws. The said statutory provisions cannot be negated by any interpretation.
(11) The preamble of the Service Tribunals Act, 1973 lays down the boundaries for the exercise of jurisdiction by the Tribunal and the Tribunal can interfere only when the terms and conditions of service of civil servants are adversely affected by an original or appellate order. This simple and concise statement pre-supposes that firstly, a person should be civil servant when the impugned order is passed. Secondly, that the impugned order must relates to the vested terms and conditions of service and thirdly, that the order must be passed 'adversely affecting the said vested terms and conditions. This analysis will show that the labourers, contract employees, work-charge workers, and deputationists are excluded because they are not civil servants. The rights based on the provisions of contract agreement or any of document containing the settlement between the management and the trade union etc., etc., are not the vested terms and conditions of service.
Similarly, the impugned orders must be of such a type that the vested terms and conditions of service are adversely affected which denotes that claims for improvement in terms, demands for removal of anomalies and discriminations and prayers based on philosophy, and logic, only etc., can neither amount to impugned orders nor to vested terms and conditions of service-hence such claims, demand and prayer cannot be Made the subject-matter of service appeals either under section 4 or section 6 of the Act whereas such matters can certainly be agitated either under the Labour Laws or by way of suits of declaration etc. Etc. Hence such matters cannot at all, be presumed to abate with the amendment of an isolated provisions of the Act. The Tribunal can adjudicate on any disputes between the civil servants and the department or organisation concerned and not at all between the master and servants, therefore, any case pending in any forum where the status of the parties is that of master and servant cannot be subjected to section 6 of the Act. Section 6 applied only to the cases where the matter falls within the jurisdiction of the Tribunal but any issue not falling within the jurisdiction of the Tribunal could not be held to have abated. Article 212(2) of the Constitution and section 6. Was a necessary provision in a statute because at the time of commencement of the 'Constitution or the enforcement of the Act, the Civil Servants were already a legal phenomenon. They had been in existence even decades ago. Their cases, already pending in any other forum, were to abate on the establishment of the Tribunal because they were already civil servants and they had already vested terms and conditions of service. The employees of the autonomous bodies etc. Were neither civil servants prior to 10-6-1997 nor did they have any vested terms and conditions of service prior thereto. Hence any matter relating to any period prior to the said date was not a dispute as a civil servant and, therefore, it could attract the jurisdiction of Service Tribunal. The remedies already available may continue to be availed by such employees to the causes prior to the 10-6-1997 and since such matter does not fall within the jurisdiction of this Tribunal being essential requirement of the section 6, therefore, the said section can neither be applied nor presumed to be applicable.
(12) Another argument frequently made on behalf of the appellants is the decision regarding WAPDA and PIA cases. Both the said organisations are the creation of special statutes. Such statutes were amended by the Parliament and the employees were privileged with their declaration as civil servants. Thus, the employees of such bodies have become civil servants by operation of law and which become vested terms and conditions of service. The employees of other autonomous bodies etc. Were not declared as civil servants in their mother statutes and thus, instead of getting benefits by operation of law, they are deemed to be civil servants by a fiction of law and thus, they are on distinct footing as compared to the employees of the organisation who have been declared to be in the service of Pakistan in their original statutes.
9. The foregoing reasons are the recapitulation of the detailed discussions contained in the various judgments of this Tribunal and thus, it has been held that the appeals falling within such categories and filed under section 6 read with section 4 of the Act were not maintainable and the remedies already available to such person still continued to be available and matters cannot be presumed to have been abated:
10. So far as the appeals under section 4 simplicitor are concerned in the past matters which were not agitated in any Court of law and there was no question of abatement, this Tribunal has held that if original or appellate order has been passed by the organisation prior to 10-6-1997, the same could not be agitated for the reasons recorded above. However, presuming that they were provided a forum only with the establishment of Tribunal on 10-6-1997, we have held that on the basis of that presumption the prerequisites of section 4 must be complied' with which are, firstly, that the appellant must prove to be a civil servant on the date when the original or at least the appellate order has been passed. Secondly, that the appellant has filed and exhausted departmental remedy. If there was no provision of appeal under the rules of the particular organisation, the representation to higher authority or an application for review to the same authority was still available and without availing such remedies the appeal under section 4 will not be competent in view of the proviso to subsection (1). Thirdly, if a departmental appeal has been filed and the period of 90 days have not elapsed and the departmental appeal has not been decided, in such matters also the appeal will be premature and incompetent.
11. In view of this discussion, we dismiss all these appeals in limine.