JUDGMENT HAMID ALI MIRZA,J. - These two civil petitions for leave to appeal are directed against a common judgment dated 1.8.2001 whereby appeals Nos. 739 and 740(K)(CE) of 2000 were dismissed in limine by the Federal Service Tribunal, Camp at Karachi.
2. Brief facts of the case are that the respondent No. 1 in both the petitions were originally employees of Larkana Sugar Mills working as Electricians- but later on they were transferred to Shahadatkot Textile Mills which was one of the project of PI DC under the control of Ministry of Production, Government of Pakistan. The said respondents applied to the Ministry of Production for their transfer of service to the petitioner-corporation on the ground of their family .Convenience which request was accepted. Accordingly they were relieved and they joined the petitioner- corporation on 19.6.1989 when, they were informed that their seniority would be counted from their joining of service vide letter dated 18.7.1989. Said decision was challenged by the respondents before the with\ Sindh Labour Court at Karachi which petitions of the respondents were accepted and they were allowed continuity of service in seniority and consequential benefits as per order dated 19.2.1994. The petitioner challenged the said decision before the said Labour Appellate Tribunal which also upheld the decision of the Labour Court and dismissed the Appeals Nos. 162 and 163 of 1994 on 14.12.1995. The petitioner then challenged the said decision of Labour Appellate Tribunal before the High Court in Constitution Petitions Nos. D-l362 and D-l363 of 1996 which petitions abated as a result of promulgation and insertion Section 2-A read with Section 6 in the Service Tribunals Act, 1973 (hereinafter called the said Act). Thereafter, the petitioner filed Appeals Nos. 739 and 740(K)(CE) of 2000 before the Federal Service Tribunal which petitions were dismissed as per impugned judgment.
3. We have heard learned counsel for the petitioner and perused the record.
4. Leamed counsel for the petitioner submitted that learned Service Tribunal should have granted relief to the petitioner to which it was entitled under the law and should not have considered the prayer clause of the petitioner made in the appeal. He has referred to Alvia Tableeghi Trust and others v. Mujeebur Rahman Alvi and others (1984 CLC 796) and Imtiaz Ahmad v. Ghulam All and others (PLD 1963 SC 382).
5. Before we deal with the only contention raised by learned counsel for the petitioner, It would be necessary to consider in view of peculiar facts and circumstances of this case whether the Service Tribunal has jurisdiction to set aside the orders dated 19.2.1994 and 14.12.1995 passed by the Presiding Officer, Labour Court and Sindh Labour Appellate Tribunal, respectively and to determine the legality and propriety of the order dated 18.7.1989 passed by the petitioner.
6. It is admitted position that the respondents challenged the order dated 18.7.1989 of the petitioner corporation with regard to their seniority before the Sindh Labour Court at Karachi which order of the petitioner was set aside vide order dated 19.2.1994. The petitioner challenged the said order passed by the Labour Court in appeal before the Labour Appellate Tribunal and the said appeals filed by the petitioner were dismissed vide order dated 14.12.1995 maintaining the Order of the Labour Court. The petitioner, thereafter, challenged both orders passed by the labour hierarchy through the Constitution Petitions Nos. D-1362 and D-l363 of 1996 before the sindh High Court on 13.2.1996 but the same were dismissed on 6.10.2000 on the ground that the proceedings of the petitions have abated on insertion of Section 2-A read with Section 6 of the said Act. Section 2- A of the said Act was inserted vide amendment dated 10.6.1997 whereunder service under any authority, corporation, body or organization established by or under federal law or which is owned or controlled by the Federal Government or in which Federal Government has a controlling share or interest was declared to be the service of Pakistan and every person holding a post in such authority, corporation or body or organization shall be deemed to be a Civil servant.
7. The preamble and sub-section (2) of Section. 3 of said Act state that Service Tribunal shall have exclusive 'jurisdiction in respect of the matters relating to the terms and conditions of service of civil servants including disciplinary matters, whereas Section 4 of the said Act provides right of appeal before the Service Tribunal to a civil servant if he is aggrieved by any order whether original or appellate made by a departmental authority and Section 6 of the said Act states that all suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in/any Court immediately before the commencement of said Act shall abate forthwith and it has provided period of 90 days for filing an appeal in respect of such matter on the establishment of Service Tribunal. There is no cavil with the. Proposition that Service Tribunal has exclusive jurisdiction in respect of matters relating to terms and conditions including disciplinary proceedings against civil servants. Admittedly employees of a corporation became civil servants. Admittedly employees of a corporation became civil servants on promulgation of Section 2-A of the said Act which was inserted for limited purpose of providing remedy by way of appeal to a civil servant against an order of departmental authority of which civil servant is aggrieved. Reference may be made to Syed Aftab Ahmad and others v. K.E.S.C, and others (1999.SCM R 197) but the said provision of Section 2-A of-the said Act on insertion would not take away/impair/nullify or destroy a vested of an employee (who subsequently became a civil servant) which has attained finality and the tis had become past and closed transaction on the basis of judgments passed by competent forum at the relevant time, It is settled proposition of law that legislation concerning procedural matters would operate retrospectively. However, legislation not concerning mere procedure but more than a matter of procedure and touching a right in existence at the time of its passing will not operate retrospectively unless legislature either by express enactment or by necessary intendment give, legislation retrospective effect, considering that the dispute having become past and closed transaction having created a right in one's favour could not be taken away by giving retrospective operation to their amended statutory provision. Reference may be made to (i) Commissioner of Income Tax, Karachi v. Eastern Federal Union Co. (PLD 1982 SC 247) wherein this Court held:- "Legislation not Concerning procedure only but more that a matter of procedure and touching a right in existence at time of its passing would not operate retrospectively unless Legislature either by express enactment or by necessary intendment gives [ legislation retrospective effect.
Assessm ent for year in dispute having become a past and closed transaction, assessee's right, could not be taken away by giving retrospective operation to amended statutory provision." (ii) in Kumir Mondal and others v. Paramatha Nath Chowdhury and others {PLD 1963 Dacca 886) it was held by learned Judge that:-- "Retrospectivity not to be inferred unless clearly arising from the Act and it would not impair existing rights so also vested rights cannot be, affected by amending Act" Maxwell in his Interpretation- of Statutes, 9th Edition, at page 223 has made the following observation:- " Every statute, it has been said, which takes away or impairs vested rights acquired under existing law, or creates a new obligation creates a new duty, or attaches a new disability in respect of transactions or considerations already past, must be presumed, out of respect to the Legislature to be intended not to have a retrospective Operation. Where vested rights are affected prima facie it is not a question of procedure." (i.e) In Mian Rafi-ud-Din and others v. The Chief Settlement and Rehabilitation Commissioner (PLD 1971 SC 252) at pages 306 and 313 this Court has observed:-- "It is well-settled that when the law is .Altered during the pendency of an- action, the Tights of the parties are decided according to the law as it existed when the action was begun and not the law that existed at the date of the judgment or order. This is, however, subject to the exception that the new law shall apply if it is a mere rule of procedure or if it has been applied retrospectively to pending proceedings. This rule, as stated in Crales on Statute Law Sixth Edition, page 400 is as follows:-- "It is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. But there is an exception to this rule, namely, where enactments merely affect procedure and do not extend to rights of action." At page 313 learned author elaborates as under:-- "No legislative enactment, according to the universally accepted, principle, should be held to be redundant or superfluous, and effort must be made by Courts to give effect to every enactment."
(iv) In Hassan and others v. Fancy Foundation (PLD 1975 SC 1) at page 6 this Court has held that:-- "It is well-established principle, that in general, when substantive law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights." (v) In Pir Bakhsh and another v. The State (PLD 1965 (W.P.) Lahore 308) learned judge in Chambers at page 311 observed that:-- "Amendment in procedural law can effect the pending cases provided new procedure does not, in its application, work to prejudice accrued rights under old procedure" (vi) In Sakhji Muhammad v.
Wajid Ali and others (PLD 1964 (W.P.) Lahore 426) it was held that:--- "Amendment of procedural nature in statute would apply to pending matters but not to matters past and closed." In para 11 at page 429:-- "Any new provision made with regard to the orders of the Industrial ' Court by the amending Ordinance of 1961 cannot, "without necessary legislative intendment, be said to have retrospective effect so as to govern orders passed before the amendment was introduced. There is no doubt that amendments of a procedural nature have been consistently held to be retrospective in character, but that only means that the altered procedure will apply to pending matters, and not that matters which are closed and completed shall be re-opened so as to be governed by the new procedure." (vii) In Nagina Silk Mill, Lyallpur v. The Income Tax Officer and another (PLD 1962 SC 322) at page 329 it was observed:- "Courts would lean against retrospective operative where vested rights or past transactions prejudicially affected or existing contracts impaired." " (viii) In Commissioner of Income Tax (West), Karachi v. Messrs Kruddsons Ltd. (PLD 1974 SC 180) at page 184 it was observed that:~ "It is well- settled proposition that a notification by the Provincial Government cannot operate retrospectively to impair an existing right or to nullify the effect of a final judgment of a competent Court even if the notification be expressly so designed." (ix) In Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187) it was held as under:- "Matters retrospective if it is merely procedural in nature such matters, however, would not operate retrospectively If It touches any right in existence at the time of passing of legislation." (x) In Central 'Exchange Bank Ltd. v. Ch. Dilawar Ali Khan and others (PLD 1965 (W.P.) Lahore 628) at page 634 it was observed that:-- " Statute not to be construed to have greater retrospective operation than its language permits."
(xi) In State v. Maulvi Muhammad Jamil and others (PLD 1965 SC 681) at page 685 it has been observed:-- "The general principle is that when the law Is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun unless the new statute shows a clear intention to vary such rights. Where the Legislature has made its intention clear that the amending Act should have a retrospective operation, there is no doubt that it must be so construed even though the consequences may entail hardship to a party. But even without express words to that effect, retrospective effect may be given to an amending law if the new law manifests; such a necessary intendment. With regard to procedural laws, the general principle seems to be that alterations in procedure are retrospective unless there be some good reason against such a view." (xii) In Works Co-operative Housing Society and another v. The Karachi Development Authority (PLD 1969 SC 430) this Court held that:-- " A judgment of a Court declaring a right cannot be nullified by executive action." " It was further held that:- "The order of the Court had now become a mandate of the Court which could not be changed and mandate would not affect the vested right.
(xiii) In lndraj Singh and others v. Smt. Savitri Kunwar (AIR 1966 Allahabad 234) at page 236 para 10 it was observed that.- "The procedural law is generally retrospective. But whereby the enforcement of such an amendment the validity of a judicial order validly passed is affected, it cannot be given retrospective effect. In such cases the stage at which a particular, case has reached should be looked into. If a suit is in its initial stages and pending before the Trial Court and at that time there is a change in the procedure the changed procedure should be followed. Since no right of any person would be effected at that stage but if a party has already obtained certain rights under a decree it would be very unfair to disturb that right and direct the suitor to begun afresh from the trial .Stage for no fault of his" Reliance was placed upon Interpretation of Statutes by Maxwell(1962 Edition) (pages 217 and 219), AIR 1950 East Punjab 25, AIR 1942 Madras 262 and AIR 1944 Allahabad 15.
(xiv) In Lemn v. Mitchell (LR 1912 AC 400) wherein their Lordship of Privy Council observed that:-- "Even a legislative measure like an Ordinance expressly given retroactive effect could not operate so as to "annual"a valid and subsisting judgment as between parties whose rights had been duly determined under and according to die law which' existed before the new Ordinance was passed.
It was said that it would require much more explicit . Language "to justify a Court of law in holding that a legislative body intended not merely to alter the law, but to alter it so as to deprive a litigant of a judgment rightly given and kill Subsisting." (xv) In The Colonial Sugar Refining Company Limited v. Irving (LR 1905 AC 369) their Lordship of Privy Council at page 372 observed that:- "As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well- founded. On the other hand, if it be more than a matter of procedure, if its touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time .Of Lord Coke to the present day, the appellants would be entitled to succeed. The judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, Was the appeal to His Majesty to Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior Tribunal which belonged to him as of right is a very different thing from regulating procedure." It is also admitted position that the Constitution petitions filed by the petitioner challenging the orders of labour hierarchy before the High Court abated. However, the judgments of labour hierarchy remained in the field being legal, valid, effective having attained finality, being also past and closed transaction as far the determination of seniority of respondents is concerned consequently, a vested right was created on the basis of the said judgments in favour of the respondents. Section 2-A of the said Act inserted on 10.6.1997 in the said circumstances could not be said to be only procedural in nature but would be more than the matter of mere procedure as in the instant case it would affect a right in existence with which tho respondents were vested therefore; it could not be given retrospective operation unless legislature by express enactment or by necessary -intendment gave it retrospective effect. There is no legislation providing that notwithstanding any judgment or order of any Court, Tribunal or Authority, the Service Tribunal shall have jurisdiction to decide matters with regard to terms and conditions of civil servants affecting retrospectively orders/judgments/rights of the parties created before the insertion of Section 2-A of the said Act. In the aforesaid paragraph we have observed that judgments of the labour hierarchy attained finality and became past and closed transaction creating a vested right in favour of respondents therefore the said vested rights could not be taken away or impaired by insertion of Section 2-A in the said Act therefore, Service Tribunal which has been vested to exercise jurisdiction in appeal of civil servant against the order original or appellate passed by departmental authority would have no jurisdiction to nullify/set aside the orders/judgments of the labour hierarchy which have attained finality having also become past and closed transaction creating vested right in favour of the respondents, considering -also that orders of labour hierarchy could not be termed to be orders of departmental authority. It may further be observed that until and unless the orders of labour hierarchy which attained the finality are set aside or reversed by competent forum under the law x cannot be said to have been made ineffective, inoperative and inexecutable. Reference may be made to Full Bench decision of this Court in Civil Aviation Authority and others v. Izhar Ahmad and others (2001 SCM R 328) wherein after discussing law on the subject it was observed at page 337 as under:- "It may further be observed that unless the judgment and decree is set aside or reversed by the next higher Court or is so. Declared to -be nullity by operation of law, the decree cannot be said to have been made ineffective, inoperative and inexecutable when the decree-holder had acquired vested rights which could not be taken away subsequently because of abatement of pending proceedings.
8. In view of the above discussion and the settled proposition of law, the Service Tribunal had no jurisdiction in the instant case to determine the legality or propriety of order dated 18.7.1989 passed by the petitioner which was set aside by labour hierarchy through its legal and valid judgments t the relevant time creating a vested right in favour of respondents. Such Us in the circumstances could not have been determined under the old law.
9. So far the contention of the learned counsel that the Federal Service Tribunal could have granted the relief in controversy though not prayed for in the appeals is neither relevant nor necessary to be answered here in the case as it has been held by us in the aforesaid paragraphs that the Service Tribunal had no jurisdiction in the stated circumstances consequently question of molding the relief would not arise.
10. In the instant case we have gone through the record and found that two competent forums in the labour hierarchy have arrived at concurrent finding and there has been neither misreading nor non-reading of evidence or mis-appreciation of law considering also that abatement of proceedings before the High Court took place forthwith i.e. 10.6.1997 while appeals were filed in November. 2000 hence we are not inclined to interfere with the concurrent finding arrived at by the Labour Court and Labour Appellate Tribunal.
11. In view of aforesaid reasons and circumstances we find no merit and substance. In these petitions consequently leave to appeal is declined and petitions are dismissed.