' Through this Constitutional petition order, dated 13-5-1997 passed by respondent No,2, Member NIRC, Lahore, has been impugned and it is prayed that it may be set aside.
2. Brief facts of the case are that respondent No,1 was appointed on daily wages, but later on he was treated on work-charge basis vide order, dated 24-7-1995. Subsequently respondent No,1 and nine others working on work-charge basis were converted to daily wages workers vide order, dated 2-12-1995. Aggrieved of that order respondent No,1 filed a petition before respondent No,2, which was disposed of vide order, dated 10-7-1996, which is reproduced hereunder:- "Respondent is directed not to victimize the petitioner and if there is any grievance against the petitioner take action according to law. Petition is disposed of accordingly."
' Respondent No,2, during the pendency of said petition passed an order to maintain status quo and as such on disposal of said petition respondent No,1 was treated on work-charge basis up to 9-7-1996 and on daily wages basis from 10-7-1996 onward. Respondent No,1 again filed another petition on 1-9-1996 before respondent No,2. Reply was filed to the petition, but respondent No,2 vide order, dated 13-5-1997 set aside the direction contained in letter dated 29-8-1996 to the extent of respondent No,1 and directed the present petitioner to pay the dues for the months of July and August, 1996 according to the law treating the respondent as work-charge employee. The petitioner has challenged that order dated 13-5-1997 of respondent No,2 through this Constitutional petition.
2. Reply was filed by respondent No,1, wherein preliminary objection has been raised that section 2- A was inserted in Federal Service Tribunals Act on 10-6-1997, thereafter no Court including this Court can exercise jurisdiction in the matter of civil servant and the cases pending in the Courts are abated, therefore, the writ petition after induction of section 2-A is not maintainable. Second objection was also raised that early grievance petition filed by respondent No,1 before respondent No,2 was disposed of with 'the direction and assumption of jurisdiction by respondent No,2, Member, NIRC was accepted by the petitioner himself, therefore, now it cannot be claimed that respondent No,2 has no jurisdiction to entertain the second petition. It is further contended that the first order having attained finality to the extent of respondent No,1 as being not challenged by the petitioner, therefore, the second order cannot be challenged on the ground of lack of jurisdiction.
On merit, the grounds taken by the petitioner are also denied.
3. The learned counsel for petitioner contends that due to filing of earlier grievance petition under section 22-A(8)(g) read with section 22-A(9)(a) of the I.R.O., 1969 this petition is not maintainable as earlier petition had been disposed of as it had attained finality and second petition was not competent. Hence second petition before Member, NIRC was not maintainable. On the other hand the learned counsel appearing on behalf of respondent No,1 has opposed this petition and submitted that after induction of section 2-A in Service Tribunals Act, 1973 no other Court except Service Tribunal can exercise jurisdiction and all writ petitions or other proceedings pending even before this Court have been abated after 10-6-1997. It is further contended that not only the case filed by the employees but the cases filed by employers or Government have also been abated. It is further contended that similar situation was arisen when a civil suit filed, or appeal filed by the employees or employers were pending in the Court of Civil Courts and District Courts due to formation of Federal Service Tribunal the cases pending even at Appellate stage automatically stood abated. He has relied on case of Federation of Pakistan v. Muhammad Saddiq (PLD 1981 Supreme Court 249). It is further contended that this view was also taken in G.M., National Bank of Pakistan and others v. Abdul Aziz and others (2002 PLC (C.S.) 18). He has further relied upon Civil Aviation Authority and 3 others v. Izhar Ahmad and 144 others (2001 SCMR 328), M/s. Sui Southern Gas Company Ltd. v. Khawaja Muhammad Munir and another (2000 SCMR 702) and 1989 SCMR 197 to contend that this Court has no jurisdiction to entertain this petition.
4. I have heard the learned counsel for parties and perused the documents attached with this petition. The learned counsel for the petitioners has failed to satisfy this Court that after induction of section 2-A on 10-6-1997 all the employees including work-charge employees have become civil servants and can file appeal before Federal Service Tribunal. Similarly if some order is passed in favor of an employee and the Government or employer has filed writ petition or an appeal that automatically has been abated and the employee can also file appeal before Service Tribunal as the jurisdiction of this Court is barred under Article 212 of the Constitution of Islamic Republic of Pakistan. Similar situation has arisen in case G.M., National Bank of Pakistan and others v. Abdul Aziz and others (2002 PLC (C.S.) 18). The Hon'ble Supreme Court came to the conclusion as follows:-- "Learned counsel for the petitioner-Bank submitted that section 6 of the Act clearly provides that as a consequence of abatement of any suit or other proceedings in respect of any matter within the jurisdiction of Service Tribunal, the aggrieved party could approach the Service Tribunal without any discrimination as to whether he is civil servant or the employer therefore, section 6 of the Act would override section 4 ibid and being a special remedy created as a consequence of abatement of proceedings, the appeal should have been entertained by the Service Tribunal and in these proceedings, the question of legality or otherwise of original order of termination of service of the respondents could have been gone into and in case the same was found to have been legally passed, the appeal could be accepted. This argument is in the line with the reasoning given by the .Service Tribunal for in that case, it would be an appeal against the judgment of the Labour Court.
The question still remains whether in such a situation, the Service Tribunal is vested with the jurisdiction to go into the question of legality or otherwise of orders of the Labour Court.
5. It being a question which may arise in future in many other cases and a question of law of public importance relating to jurisdiction of the Service Tribunal, therefore, leave is granted to consider the same."
"We have heard the learned counsel for the parties and perused the material available on record.
In our view the impugned judgment is based on erroneous assumption of law that the appeals filed by the appellants-petitioners were not maintainable and the Tribunal was also bereft of jurisdiction in the matter. The effect of section 2-A of the Act was that notwithstanding any judgment rendered by the Labour Court or any other forum all such matters covered under section 2-A of the Act stood abated. This being so that Tribunal alone had the exclusive jurisdiction to examine the grievance of such persons. It is not the case of either of the parties that the respondents are not persons employed under any authority, corporation, body or organization established by or under a Federal law or which is wned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest."
' Similar view has been taken in Civil Aviation Authority v. Izhar Ahmad and 144 others (2001 SCMR 328). It was held as under:-- "However, in accordance with the majority judgment of this Court in cited case (supra) the proceedings for writs in the said case pending were held to have abated in view of the provisions contained in Article IV of the Laws (Continuance in Force) Order, 1958 but so far the order, decision/conviction passed and recorded were held to be good. In the instant case also only appeal pending abated and the decree passed prior to the target date i,e, 10-6-1997 cannot be said to have abated because of the promulgation and insertion of section 2-A to the Service Tribunals Act, 1973."
' The same view has been taken in Messrs Sui Southern Gas Company Ltd. v. Kh. Muhammad Munir and others (2000 SCMR 702) in the following words:-- "It will, at once, be seen that on the date of the promulgation and insertion of section 2-A above viz. 10-6-1997 no proceedings, either explicity or implicity falling within the jurisdiction of the Service Tribunal were pending. These arose because the employee of the present petitioners had already retired from service had filed and what is more obtained a decree for money before the crucial date, when the said section was brought on the statute book. The above decree, as pointed out by the High Court, had also in due course, attained finality. Mere filing or continuation of execution proceedings qua such a decree, a past and closed transaction, did not constitute any pending proceeding, which would in the normal course, abate, pursuant to the mandate in Article 212(2) of the Constitution aforementioned. The word 'proceedings' in Article 212(2) plainly, means and implied proceedings in a pending lis and obviously not an independent proceeding, after final disposal such as an execution application. The two learned Civil Courts, therefore, were clearly acting beyond jurisdiction when they found the said execution proceedings to have abated in consequence of the referred Constitutional provision. In these circumstances, the High Court was clearly right in holding the impugned orders of such Civil Courts to be without jurisdiction, which in the foregoing background stood fully attracted was also eminently a judicious use of discretion."
5. In view of above reason, this writ petition has abated and is not maintainable due to bar contained in Article 212(2) of the Constitution of Islamic Republic of Pakistan since the insertion of section 2-A in the Service Tribunals Act, 1973 on 10-6-1997. It is, therefore, dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.