SARDAR MUHAMMAD RAZA KHAN, J.--Chairman, Federal Board of Intermediate and Secondary Education, Islamabad while arraying Imtiaz Ahmad Mahmood as respondent, filed a case before the Federal Service Tribunal registered as Appeal No,847(R) of 1998. In the presence of parties/their counsel it came up for hearing on 22-3-2000 when learned counsel for the Board opted to withdraw the same unconditionally. Though the 'appeal was accordingly dismissed as withdrawn yet the Tribunal made an observation that if any Court has passed any judgment in respect of terms and conditions, of service of a civil servant or deemed to be a civil servant after 10-6-1997 (the date of insertion of section 2A in the Service Tribunals Act, 1973), the same is void and of no legal effect. Imtiaz Ahmad Mahmood has filed this appeal against the aforesaid order dated 22-3- 2000 wherein leave was granted to consider, inter alia, as to whether the Tribunal had the authority to make any observation declaring a Civil Court's decree to be void particularly when the appellant before it had withdrawn the appeal unconditionally.
2. In order to comprehend the points of controversy, a narration of relevant background of the case is necessary,Imtiaz Ahmad Mahmood had joined the service of Federal Board of Intermediate and Secondary Education as Lower Division Clerk on 25-5-1986. In July, 1994 while he was working as Assistant his service was suspended on 6-7-1994 on certain charges. He was served with a charge-sheet on 19-7-1994. After reply some inquiry was also conducted and as a consequence whereof, he was dismissed from service on 5-9-1994. Appeal/Review filed by him before the departmental authority was also rejected on 22-1-1995.
3. As the employees of the Board were not civil servants by then, the appellant filed a civil suit on 13-3-1995 challenging his dismissal. After contest, Civil Judge, Islamabad, on 30-6-1997 passed a decree in favour of Imtiaz Ahmad Mahmood. The Board went in appeal before the District Court on 30-7-1997 but the same was withdrawn on 7-10-1998 by the learned counsel for the Board stating that the Court lacked jurisdiction in the matter. Whatever be the reason, it was a withdrawal simpliciter and unconditional.
4. With the impression that after the insertion of section 2A in the Service Tribunals Act, 1973 on 10- 6-1997, the employees of the Board had been given the status of civil servants for the purposes of the said Act, the Chairman of the Board on 15-10-1998 went in appeal before the Federal Service Tribunal challenging the decree passed by the learned Civil Judge, Islamabad on 30-6-1997.
Realising the inherent mistake, the said appeal, as stated earlier, was withdrawn unconditionally on 22-3-2000. Not against dismissal but against certain observations made by the Tribunal, Imtiaz Ahmad Mahmood had come up in appeal.
5. The aforesaid factual background is by itself sufficient to indicate that the Board was not properly advised and it committed two serious mistakes one after the other. The first mistake was that it should not have withdrawn its appeal before the Additional District Judge, Islamabad on 7- 10-1998. The second mistake was that it filed an appeal before the Tribunal against the judgment of a Civil Court. No doubt, after the establishment of the Tribunal and under section 3(2) of the Service Tribunals Act, 1973, it was the Tribunal which had exclusive jurisdiction in respect of matters relating to the terms and conditions of service of a civil servant, including disciplinary matters provided always that the aggrieved person before it must be a civil servant for the purposes of the said Act; yet the occasion to take cognizance of the matter stands provided in section 4 of the Act. This section clearly lays down that the Tribunal shall hear in appeal any civil servant aggrieved by any order passed by a departmental authority concerning the terms and conditions of his service.
While dealing with the terms and conditions of service of the appellant before it, the Service Tribunal can only uphold or set aside an order passed by a departmental authority. No more and no less. It is completely unheard of that a Service Tribunal should sit in appeal against the judgment of a Civil Court which is not only of general jurisdiction but has its own hierarchy ascending right up to this Court. It was a novel appeal entertained by the Tribunal and we have no hesitation in holding that the Tribunal at the very outset had no jurisdiction even to hear the matter and thus, the impugned judgment dated 22-3-2000 is void ab initio.
6. The observations made by the Tribunal against the judgment of the Civil Court are not sustainable at all yet at some stage and before some authority those might tend to create confusion as well as complication. The appellant seems to be seriously aggrieved thereby because there is a decree dated 30-6-1997 of a Civil Court in his favour which, according to him, has become final. This aspect also requires to be dilated upon, for, it was argued before us by the learned counsel for the respondents that the decree dated 30-6-1997 passed by the Civil Court deciding terms and conditions of a civil servant was void due to insertion of section 2A in the Service Tribunals Act and after 10-6-1997 the Civil Court had no jurisdiction in the matter whatsoever. We are, therefore, to settle as to whether the decree dated 30-6-1997 of the Civil Court was "void" or "without jurisdiction". The two terms have their own independent entities and entail upon different consequences.
7. Lord Reid in Anisminic Ltd. v. Foreign Compensation Commission [(1969) 2 AC 147] while realising that the expression "void order" and "orders .Without jurisdiction" had become over-worked expressions, considered it suffice to say that it would be better to use such expressions "in the narrow and original sense of the Tribunal being entitled to enter on the inquiry in question".
Meaning thereby that one should scrutinise as to whether the Court or Tribunal passing any order was basically entitled to entertain the matter for the purposes of inquiry or trial. Such observations were approved by this Court in Conforce Ltd. v. Syed Ali etc. (PLD 1977 SC 599) and Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore (1978 SCM R 367-372A).
8. In the latter judgment this Court was hearing a review petition against the judgment of a Letters Patent Bench wherein Gul Muhammad, J. Was of the view that an order, howsoever illegal, was not void if it was passed by a Tribunal which had the power to entertain the type of claim which it had decided. This Court had concurred with the view adopted by Gul Muhammad, J. In consonance with the view taken in Conforce's case. In the light of this criterion, we are left to see as to whether the judgment dated 30-6-1997 of Civil Judge, Islamabad was "void" or "without jurisdiction".
9. It is an admitted fact that on the date of final order passed by the departmental authority the appellant was not a civil servant and thus could never resort to the Tribunal. The only forum available to him was the Civil Court of general jurisdiction and thus, he filed a civil suit on 13-3-1995, more than two years prior to the insertion of section 2A in the Service Tribunals Act. Thus, the Civil Court was not only competent to hear the matter on 13-3-1995 but remained competent during.
The continuation of trial for more than two years. Advertently or inadvertently, it passed a decree on 30-6-1997 with a strong impression that it still had been vested with the jurisdiction that it carried for so long. In the circumstances, we are of the view that the decree passed by the Civil Judge on 30-6-1997 was not "void" but "without jurisdiction". Obviously, a decree passed without jurisdiction is to be challenged before the higher appellate authority provided in the same hierarchy. The Board had rightly gone in appeal before the District Judge on 30-7-1997. Had the appeal been pursued and had all the legal implications been brought to the notice of the Appellate Court, it would certainly have set aside the original decree but the blunder it was to withdraw the appeal unconditionally on 7-10-1998 in the Court of Additional District Judge, Islamabad. Whenever "an appeal is withdrawn simpliciter it has the effect of restoring the status quo ante". The position remains "as if th appeal had not been filed". The withdrawal of appeal by itself. Cannot operate upon the dismissal of original suit because the original suit was that of the respondent therein. Had the appeal been left intact, the Appellate Court might have directed the transfer of suit to the Tribunal.
10. Here at this stage, we are reminded of another observation of the Tribunal in the impugned judgment to the effect "that section 6 (of the Act) was made available only to the extent (that) after the establishment of this Tribunal and it had served its purpose in the year 1974 within six months. The provisions of section 6 (of the Act) cannot be activated by insertion of section 2-A unless by necessary intendment it is made so". We take strong exception to this observation as well because it is seriously violative of the basic maxim of law ubijus,ibiremedium (where there is a right, there is always a remedy). If an aggrieved employee who was never a civil servant prior to the insertion of section 2-A in the Service Tribunals Act had knocked at the door of the Civil Court and during pendency of such cause another forum stood sanctioned for him, he cannot be left high and dry in case his cause is not transferred to the Tribunal on the one hand and if his suit in the Civil Court is dismissed for lack of jurisdiction, on the other.
11. Section 6 of the Service Tribunals Act, in our view, has not become redundant six months after the promulgation of the Act because if it is so interpreted, any one declared to he a civil servant thereafter will have no forum at all to resort to. We are, however, of the view that with the insertion of section 2-A in the Service Tribunals Act and with the declaration of alt concerned employees as civil servants, the Tribunal automatically got established as appropriate Tribunal within the meaning of proviso to section 6 of the Act which deals with the pending cases and which runs as follows: ' Provided that any party to such a suit, appeal or 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.
A civil servant who has already filed any suit, appeal or application before any forum would be entitled to resort to the Tribunal within 90 days of the establishment of appropriate Tribunal for him after the insertion of section 2A in the Act.
12. Consequent upon what has been stated above, we accept this appeal, set aside the impugned judgment dated 22-3-2000 of the Tribunal and hold that the very entertainment of appeal by the Tribunal was void, that withdrawal of appeal by the Board before the Additional District Judge was a serious mistake and that the decree dated 30-6-1997 though being without jurisdiction yet not set aside in appeal, holds the field and has become final.