Iftikhar Muhammad Chaudhry, J--In the above noted appeals leave to appeal has been granted to consider the following questions:--
(i) Whether the respondents (employees-members of Frontier Corps) are civil servants within the meaning of Section 2(b) of the Civil Servants Act, 1973? and
(ii) Whether as civil servants as such or by virtue of deeming provisions of Section 2(A) of the Service Tribunal Act 1973 they can file an appeal in the Federal Service Tribunal to call in question the disciplinary action taken against them?
(iii)What is the impact of the provisions of Removal from Service (Special Powers) Ordinance, 2000 on the above propositions?
2. Precisely stating facts of the case are that respondents being the employees of Frontier Corps. faced departmental proceedings for committing acts detrimental against good order of service.
The competent authority on having followed the procedure laid down the Frontier Corps Ordinance, 1959 [hereinafter referred as 'Ordinance 1959] and the rules framed thereunder, removed them from service. Departmental appeals preferred to them were rejected as such they approached the Federal Service Tribunal for redressal of their grievances. The Tribunal vide judgments dated 30th March, 13th April, 15th May and 12th June 2001 allowed their appeals mainly for the consideration that after the Promulgation of "Removal from Service (Special Powers) Ordinance 2000" [herein after referred as 'Ordinance 2000'] the proceedings in disciplinary matters are null and void because of misapplication of law. Accordingly appeals filed by respondents were allowed with the observation that appellants are free to hold proceedings against them under the law.
3. As far as the question of status of employees of Frontier Corps as civil servants for the purpose of invoking the jurisdiction and the Service Tribunal Act 1973 [hereinafter after referred as 'the Act 1973] is concerned it has already been resolved in the case of Federation of Pakistan and others v.
Muhammad Nazir, RO-177 Ex-DSR (1998 SCMR 1081). Relevant paras there from are reproduced herein below:-- "7. It is obvious that the above judgment relied upon by the learned Deputy Attorney General has no relevance to the facts of this case. No doubt by virtue of amendment in Section 1 of the Pakistan Rangers Ordinance it has been laid down that the provisions of the Ordinance and Rules made thereunder shall have effect notwithstanding anything contained in the Civil Servants Act, 1973 and the Rules made thereunder. In the light of this amendment, it is obvious that in view of any conflict between the Civil Servants Act, 1973 and the Pakistan Rangers Ordinance, 1959, the provisions of the latter would prevail over the provisions of the former. It is further pertinent to mention that if the Rules have been framed touching any subject under the Pakistan Rangers Ordinance, then the same would be applicable to the exclusion of other rules. We have noticed that in exercise of the powers conferred by sub-section (2) of Section 21 of the Pakistan Rangers Ordinance, 1959, the Governor of West Pakistan was pleased to make rules known as Pakistan Rangers (Efficiency, Discipline and Appeal) Rules, 1967 vide Notification No, (4)/59/Vol., dated 13.10.1967. These rules were further amended on 9.4.1985 and 4.7.1985 vide two different Notifications. Sub-rule (2) of Rule 1 reads as under: "They shall apply to all members of the Pakistan Rangers except the members of Armed Forces on deputation to Pakistan Rangers and holders of such posts therein as may be specified in this behalf by Government from time to time by notification in the official Gazette".
Rule 2 defines 'Appellate Authority', 'Competent Authority', `Commandant', 'Defaulter', 'Member of the Force' and 'Officer Commanding' etc. Rule 3 lays clown the classification of penalties into major and minor. Under Rule 3(c) penalty can also be imposed summarily . Similarly, under sub-rule (2) of Rule 3, discharge of certain categories of employees has also been provided for. Under Rule 4, procedure for summary award of punishment has been provided. Under Rule 14; manner of suspension has been laid down. Under Rule 15, an appeal lies against the penalty. Under Rule 18; revision petition lies but such revision would be incompetent where the Appellate Authority is the Federal Government. Under the said rule, remedy of review has also.,been provided. In addition to these remedies, under Rule 20, mercy petition is also maintainable. The other rules pertain to the procedure. Perusal of these rules clearly shows that they are' all embracing, and therefore, under the amendment of Section 1 of the Pakistan Rangers Ordinance, these rules would prevail over the Rules of 1973. The Pakistan Rangers Ordinance was promulgated to constitute a force called the Pakistan Rangers for the protection of and maintenance of order in the border areas. Since with regard to the status of the members of the force the Pakistan Rangers Ordinance is silent, therefore, it can be safely said that the employees of the Pakistan "Rangers will be deemed to be civil servants as they are performing duties in connection with affairs of the Federation and hence under the Service Tribunals Act 1973, an appeal by a member of the Pakistan Rangers regarding a matter relating to terms and conditions of his service is competent before the Federal Service Tribunal. The cases of the employees of the Pakistan Rangers would be governed by the Pakistan Rangers (Efficiency, Discipline and Appeal) Rules, 1967 in view of the overriding provisions contained in amended Section 1 of the Pakistan Rangers Ordinance. However, it may be noted that the aforesaid amendment has not excluded the applicability of the Civil Servants Act as far as definition of a civil servant is concerned, but it only suggests that in case of conflict between the provisions of the Pakistan Rangers Ordinance is also the rules framed thereunder and the provisions of the Civil Servants Act as well as the Rules made thereunder, the former shall prevail.
8. Unfortunately, this aspect of the case escaped the notice of the Federal Service Tribunal while deciding the appeal preferred by the respondent in the present case. Since the appeal was decided on the touchstone of the provisions of the Civil Servants Act and the rules made thereunder and not on merits in accordance with the provisions of the Pakistan Rangers Ordinance and the Rules framed thereunder, namely, Pakistan Rangers (Efficiency, Discipline and Appeal)
Rules, 1967, the order impugned is erroneous is law. We would, therefore, remand the appeal to the Federal Service Tribunal to decide the controversy in the light of the provisions of the Pakistan Rangers Ordinance and the Pakistan Rangers (Efficiency, Discipline and Appeal) Rules, 1967. The appeal is disposal of in the above terms leaving the parties to bear their own costs."
In view of law laid down in the above judgment we cannot do better except to say that respondents being the employees of Frontier Corps can invoke the jurisdiction of the Service Tribunal for redressal of their grievances.
Now next question for consideration is whether for the purpose of disciplinary action the respondents, who are the members of Frontier Corps, shall be governed by the Ordinance 1959 under which the Force has been created, or under the provisions of Ordinance, 2000? In this context it is to be noted that Ordinance 1959 deals with the formation and the command of para military force i,e, Frontier Corps, responsible for the better protection and the administration of the external Frontiers of Pakistan within the limits or adjoining the tribal areas in time of peace to discharge functions in respect of administration, on the call of Deputy Commissioners of the Area within which Headquarters of the Frontier Corps are located. It is noteworthy that as per the scheme of Ordinance 1959 before the appointment of subordinate officer and men under Section 6(ii), Subordinate Officer shall sign in the presence of Commander or other Officer, recruitment roll and form of affirmation set out respectively, under the 2nd and 3rd schedule attached thereto. For convenience 2nd and 3rd schedules are reproduced herein below:-- "SECOND SCHEDULE [See Section 6(2)] (Recruiting Roll)
After you have served in the Frontier Corps for such period as has been fixed under the Frontier Corps Ordinance, 1959, you may at any time when not on active service, apply for your discharge, through the officer to whom you may be subordinate to the Commandant, and you will be granted your discharge after three months from the date of your application unless your discharge would cause the vacancies in that unit of the Frontier Corps to exceed one-tenth of the sanctioned strength, in which case you shall be bound to remain until this objection is waived or removed. But when on active service, you shall have no claim to a discharge, and you shall be bound to remain to do your duty until the necessity for retaining you in the Frontier Corps cases, when you may make your application in the manner mentioned above.
Signed in acknowledgement of the above having been read out to me. I have understood the purport of what has been read out.
Person enrolled.
Date Signed in my presence after I had ascertained that the recruit understood the purport of what he signed.
Commandant or other Enrolling Officer.
Date "THIRD SCHEDULE FORM OF AFFIRMATION [See Section 6(2)] (Recruiting Roll) solemnly affirm in the presence of Almighty God that I will be faithful and bear true allegiance to the Government of Pakistan and that I will, as in duty bound, honestly and faithfully serve in the Pakistan Frontier Corps and go within the terms of my enrolment wherever I may be ordered by air, land or sea, and that I will observe and obey all commands of any officer set over me even to the peril of my life. Signed in acknowledgment of the above having been read out to me. I subscribed to it. Signed in my presence after I had ascertained that the recruit understood the purport of what he signed.
4. A cursory perusal of Sections 8 and 9 of the Ordinance 1959 reveals that to enforce discipline amongst employees of Frontier Corps, severe punishments have been provided including imposing of death penalty or imprisonment for a term which may extent to 14 years etc. with a view to understand the nature of the gravity of very heinous offences or less heinous offences if committed by any member of the Frontier Corps. Sections 8 and 9 are reproduced herein below for perusal:-- "8.--(1) Every member of the Frontier Corps who--
(a) Begins, excites, causes or conspires to cause or joins in any mutiny, or being present at any mutiny does not use his utmost endeavours to suppress it, or knowing, or having reason to believe in, the existence of any mutiny or of any intention or conspiracy to mutiny, or of any conspiracy against the authority of the Government does not, without delay, give information thereof to his superior officer; or
(b) Uses, or attempts to use, criminal force to, or commits an assault on, his superior officer whether on or off duty and whether or not knowing or having reason to be Hove him to be such; or
(c) Shamefully abandons or delivers up any garrison, fortress, post or guard which is committed to his charge, or which it is his duty to defend; or
(d) Directly or indirectly holds correspondence with, or assists or relieves, any person in arms against the authority of the Government, or omits to disclose immediately to his superior officer any such correspondence coming to his knowledge; or [dd desserts the Frontier Corps; or
(e) While on active service--
(i) disobeys the lawful command of his superior officer; or (ii)..........................................................................................
(iii) being sentry, sleeps upon his post, or quits it without being regularly relieved or without leave; or
(iv) leave his superior officer or his post or party to go in search of plunder; or
(v) quits his guard, picquet party or patrol without being regularly relieved or without leave; or
(vi) uses criminal force to, or commits an assault on, any person bringing provisions or other necessaries to camp or quarters, or forces a safeguard, or breaks into any house or other place for plunder, or plunders destroys or damages any property of any kind; or
(vii) internationally causes or spreads a false alarm in action or - in camp, garrison or quarters; or
(viii) displays cowardice in the execution of his duty; shall be punishable, in the case of clause (a), with death or imprisonment for a term which may extend to fourteen years, and in other cases with transportation for life or for a period of not less than seven years or with imprisonment for a term which may extent to fourteen years or with fine which may extend to three months' pay and allowances excluding warm clothing and half mounting allowances, or with fine to that extent in addition to such sentence of transportation or imprisonment: Provided that if any member of the Frontier Corps while on active service with a force beyond the limits of Pakistan commits any offence described in clause (c), clause (d) or [clause (dd)], he may be punished with death.
(2) If any member of the Frontier Corps is charged with committing any offence described in clause (a) of sub-section (1), or an offence punishable under the proviso to that sub-section, or the offence of murder, he may, notwithstanding anything contained in this Ordinance or in any other law for the time being in force, be summarily tried for such offence by the Political Officer accompanying the force, sitting with two other officers appointed by the Political Officer in consultation with the Commandant for such purpose.
(3) Every Officer appointed under sub-section (2) shall be either--
(a) a person appointed under Section 5; or
(b) a person holding a commission in the Pakistan Army; or
(c) a civil officer of the Provincial or Federal Government holding Gazetted Class I post.
Provided that, if circumstances permit, not less than one such officer shall be a person appointed under Section 5.
(4) Notwithstanding anything contained in any other law for the time being in force, if in a trial under sub-section (2) one or both of the officers sitting with the Political Officer concur with him in finding the accused person guilty of an offence referred to in that sub-section, and if the Political Officer considers the case one in which a sentence of death should be passed, he may, in passing such sentence, direct that the accused person shall be forthwith shot to death, and such sentence shall be carried out in accordance with such direction.
9. Every member of the Frontier Corps who--
(a) is in a state of intoxication when on, or after having been warned for, any duty, or on parade or on the line of march; Or
(b) strikes or attempts to force any sentry; or
(c) being in command of a guard, picquet or patrol, refuses to receive any prisoner or person duly committed to his charge, or releases without proper authority any prisoner or person placed under his charge, or negligently suffers any such prisoner or person to escape; or (d)being under arrest or in confinement, leaves his arrest or confinement before he is set at liberty by proper authority; or
(e) is grossly insubordinate or insolent to his superior officer in the execution of his office; or
(f) refuses to superintend or assist in the making of any fieldwork or other work of any description ordered to be made with in quarters or in the field; or
(g) strikes or otherwise ill uses any member of the Frontier Corps subordinate to him in rank or position; or
(h) being in command at any post or on the march, and receive a report that any one under his command has beaten or otherwise maltreated or oppressed any person or has committed any riot or trespass, fails, on proof of the truth of the report, to report the matter to the proper authority; or
(i) designedly or through neglect injuries or loses or fraudulently disposes of his arms, clothes, tools, equipments ammunition, accoutrement, [animals] or Frontier Corps necessaries, or any such articles entrusted to him or belonging to any other person, or any animals belonging to the Frontier Corps; or malingers, or feigns Or produces disease or infirmity in himself, or intentionally delays his cure or aggravates his disease or infirmity; or
(k) with intent to render himself or any other person unfit for service, voluntarily causes hurt to himself or any other person; or
(l) does not, when called upon by his superior officer so to do or, upon ceasing to be a member of the Frontier Corps forthwith deliver up, duly account for, all or any arms ammunition, stores, accoutrements or other property issued or supplied to him, or in his custody or possession, as a member of the Frontier Corps; or (m)Knowingly furnishes a false return or report of the number or state of any men under his command or charge or of any money, arms ammunition, clothing equipments, stores or other property in his charge, whether belonging to such men or to the Government or to any member of, or any person attached to; the Frontier Corps, or through design or culpable neglect omits or refuses to make or send any return or report of any of the matters aforesaid; or
(n) Absents himself without leave, or without sufficient cause over-stays leave granted to him; or
(o) Contravenes any provision of this Ordinance for which no punishment is expressly provided; or
(p) Is guilty of any act or omission which,. though not specified in this Ordinance, is prejudicial to good order and discipline; or (q)While not on active service, commits any of the offences described in clause (e) of sub-section
(1) of Section 8. shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to three months pay and allowances excluding half mounting and warm clothing allowances or with both."
5. A perusal of above provision indicates that the employees of the Frontier Corps are always subject to above provisions of law because after signing the recruitment roll and form of affirmation, they are bound to exhibit discipline of high standard which of course could not be achieved unless stringent punishments are provided, otherwise there would be no difference between status of an ordinary civil servant and of civil servant who is a member of the para military force. We may point out here that as far as maintenance of discipline is concerned it cannot be compromised in any case either dealing with the matter pertaining to civil servants discharging their duties in non-military organizations or in para military administration because in absence of strict discipline in the Governmental organizations the object of good governance can hardly be achieved. However, no amount of relaxation in maintaining discipline in para military forces is permissible, otherwise it would become difficult to achieve the object for which such forces are created.
6. As we have observed herein above that Frontier Corps discharge most important duties relating to the protection and administration of external frontiers of the country and as well as assisting civil administration for enforcing law and order in the time of peace and both these functions being solemn in nature can only be achieved when strict discipline under the law is enforced. It is to be noted that the punishments prescribed for para military organizations to enforce discipline amongst ranks are tough and also seems to be oppressive comparing to the punishments prescribed for nonpara military organizations i,e, civil servants as defined under Act 1973. This difference is only because if an employee in uniform violates discipline, it causes tremendous loss to the credibility of the force as a whole, therefore, stringent punishments are provided through special status having strict application on its employees etc. Therefore, so long as the employees of such forces are governed by such special enactment, there would be no difficulty in achieving the object for which the force was formed.
7. It is noteworthy that prior to promulgation of Ordinance, 2000 there were Efficiency and Discipline Rules which were applicable to all civil servants. In some of cases the departments have framed Efficiency and Discipline Rules like WAPDA etc. but after the promulgation of Ordinance 2000 which essentially is a general law in its nature it has impliedly repealed earlier Efficiency and Discipline Rules by dint of its Section 11, but as far as the provisions relating to maintenance of discipline as contained in Ordinance 1959 are concerned, they cannot be repealed as Ordinance 1959 is a special law and is applicable to a particular class of civil servants/employees. Section 11 of Ordinance 2000 would not affect its provisions these being non-obstantee clause as per Section 8(2) of Ordinance 1959, therefor, general law in its nature i,e, Ordinance 2000 shall give way to special law i,e, Ordinance 1959 in view of the following accepted general principles for avoiding collision between different statutes. Reference in this behalf can be made to case of The State v.
Syed Mir Ahmed Shah and another (PLD 1970 Quetta 49). Relevant Para therefrom is reproduced herein below:-- "Some of the accepted general principles for the avoidance of collision between different statutes are:--
(a) If the provisions of a latter Act are so inconsistent with those of an earlier Act that both cannot stand together, the earlier stands impliedly repealed by the later. This principle is based on the maxim leges posteriores priores contrarias abrogant. In other words, it means that the latest expression of the will of the Legislature must. prevail. This, of course, is subject to the condition contained in the next principle. That is: if the prior enactment is special and the subsequent enactment is general, the earlier special Legislation will not be, indirectly, repealed, altered or derogated from merely by force of the general words of the alter statute, without any indication of a particular strong intention to do so.
(ii) A General later law does not abrogate by mere implication, an earlier particular or special law which deals with a special object or a special class of objects. This principles is based on the maxim generalia specialibus non derogant. But when a general Act is incorporated into a special one, the provisions of the later would prevail over any of the former with which they are inconsistent. If one statute enacts something in general terms, and afterwards another statute is passed on the same subject, which, although expressed in affirmative language, introduces special conditions and restrictions, the subsequent statute will usually be considered as repealing by implication the former, for "affirmative statutes introdutive of a new law do imply a negative".
However, if a subsequent statute merely creates an exception from the operation of a previous statute, the previous statute is not necessarily repealed.
(iii)When the later of two general enactments is couched in negative terms or in such affirmative. terms which unequivocally involve negative which proves fatal to the earlier enactment, the earlier one is impliedly repealed.
(iv)When the two statutes are expressed in negative terms, they may be affirmative inter se and may not be contradictory to each other; though the effect of both may be that they are negative as regards a. third statute 'at which both of them may have made some inroads'. When seen in this light an apparent conflict of two statutes is found as without any reality. Because . they objects may be different and both may be parallel; and each may be restricted to its own particular subject or locality.
(v) If the co-existence of the two inconsistent statutes would be destructive of the object for which the later was passed, the earlier would be deemed to have been repelled.
(vi)In so far as the Penal Acts are concerned, if a later statute again describes an offence created by a former one, and provides a different punishment, creates a new jurisdiction and remedy and varies the procedure-modifying the manner of changing the forum of trial or appeal, the earlier statute is impliedly repealed by the later unless, of course, both of them can exist in parallel application to different localities, subjects or objects.
(vii) When the words are clear and capable of proper operation, the revocation or alteration of a statute by construction is not permissible. The Legislature is normally not presumed to have intended to keep two contradictory enactments on the statute-book with the intention of repealing the one with the other, without expressing an intention to do so. Such an intention cannot be imputed to the Legislature without some strong reasons and unless it is inevitable. Before adopting the last-mentioned course, it is necessary for the Courts to exhaust all possible and reasonable constructions with offer an escape from repeal by implication.
(viii)All other consideration being equal, if the inconsistency, in spite of applying all general principles of interpretation of statutes cannot be resolved, a statute more beneficial in remedy or method of taking action will override the statute which is not so beneficial."
8. Keeping in view the above principles it is to be observed that as far as Ordinance 1959 is concerned it is earlier in time and special in nature having its peculiar provisions to deal with particular subject, therefore, a general/latter law cannot impliedly repeal it. Even otherwise, without specific repeal of the Ordinance 1959, Ordinance 2000 cannot be applied, in the view of the special features of the Ordinance 1959, as both cannot co-exist while dealing with the provisions relating to enforcement of discipline in the force.
10. Thus for these reasons we are inclined to hold that the members of the Frontier Corps shall be governed under the provisions of Ordinance 1959, and for limited purpose, status of civil servants is given to them so that they may have remedy before the Service Tribunal for the redressal of their grievance in accordance with law.
As a result of above discussion appeals are allowed, impugned judgments are set aside and cases are remanded to the Service Tribunal for decision afresh in view of the provisions of Frontier Corps Ordinance 1959, keeping in view the observations made herein above.