IFTIKHAR MUHAMMAD CHAUDHRY, J.-- In this petition leave to appeal has been sought against the judgment dated 4.11.2000 passed by the Federal Service Tribunal, Islamabad, whereby Appeal No. 42 (R)/C.S./2000 filed .By the respondent against his dismissal from service was allowed and he was reinstated in service.
2. Briefly stated facts of the case are that after his retirement as Lance Naik from Pakistan Army the respondent was appointed as Lower Division Clerk in the Headquarters of Special Communication Organization (Defence) on 31.8.1988. During his service, he was found guilty of misconduct, therefore, after conducting inquiry, his services were terminated on 1.11.1999, as such, he preferred departmental appeal, which was rejected on 31.12.1999. Consequently, he filed appeal before the Federal Service Tribunal, Islamabad, which has been allowed vide impugned order, as such instant petition has been filed.
3. Learned counsel appearing on behalf of the petitioners contended that the respondent was not a civil servant as he was directly connected with the operational affairs of ,the Pakistan Army, as such, his services were governed by the Pakistan Army Act, 1952. To strengthen their argument, they placed reliance on Muhammad Yousuf Vs. Secretary, Ministry of Defence (1997 PLC (C.S.) 852) and Federation of Pakistan Vs. Khurshid Ahmad (1999 SCMR 664).
4. We have heard the learned counsel and have also gone through the impugned order. A perusal whereof indicates that the learned Federal Service Tribunal was itself of the opinion that as far as the minor offences were concerned those were governed by the Pakistan Army Act, 1952 whereas so far as the major acts . Were concerned, the respondent would be dealt With under the provisions of Government Servants (Efficiency and Discipline) Rules, 1973, paragraph 10 of the impugned judgment being relevant, is reproduced hereinbelo w:-- "In our analysis, only such civilians shall be treated to be on "active service" who are assisting the Army in defence matters which includes the communication service, for the purposes of defence.
Conversely the civilian employees in any Organization under the Army who are not performing the operational duties in relation to the defence or not acting in and of such duties, will not be treated as a class of persons who perform duties connected with the defence of the State. Another aspect of the matter is that as per terms and conditions of such civilian employees, it has been included therein that they shall be subject to Army Act for certain purposes like awarding of minor punishment under the Pakistan Army Act. This is special provision applicable to the civilian employees of the SCO. It is therefore, held that civilian employees of the SCO are subject to the Pakistan Army Act in the matter of minor punishment and such other matters for which this Act has been expressly made applicable. The E and D Rules under the Civil Servants Act, have been framed but there are a large number of other Organizations and statutory bodies who have also adopted such rules. The application of the Army Act for the purpose of minor punishment and.Other allied matters relating to good order and efficiency and discipline is thus lawful in the case of civilian employees working under the SCOR in A.J.K. The Telephone and Telegraph system has been entrusted to Army and is being managed by SCO. It was therefore, desirable that certain provisions of Army Act and Rules were made applicable to the civilian employees of SCO for the efficient functioning of SCO. But the application of Pakistan Army Act to such civilian employees in the matter of minor punishment and certain aspects of discipline, does not convert their services as to bring the same at par with those of the members of defence service which ordinarily included Army, Navy and the Air Force, and may also include such civilian employees who perform duties in relation to the defence of the State.
The net result of above discussion would be that the appellant could not be considered to be in active service vis-a-vis procedure to be adopted for awarding of major penalty of dismissal from service rather if at all such a penalty was to be exacted then he was to be subjected to the procedure as laid down under the Government .
Servants (E & D) Rules, 1973...... (underlining is ours)"
1997 PLC (C.S.) 852) and Federation of Pakistan Vs. Khurshid Ahmad (1999 SCMR 664), relied upon by the learned counsel for the petitioners, we are inclined to grant leave to appeal to consider as to whether the respondent was a civil servant and was liable to be dealt with under the Government Servants (Efficiency and Discipline), Rules, 1973 or he was to be dealt with under the Pakistan Army Act, 1952 for the purpose of disciplinary action. Leave is accordingly granted. Pending decision of the appeal, operation of the impugned order is suspended.