PLJ 2012 Tr.C.
(Services) 15
[Punjab Service Tribunal, Lahore]
[Punjab Service Tribunal, Lahore]
Present: Justice
(R) Muhammad Jahangir Arshad, Chairman
MAJOR (R) ABDUL
MAJEED ANJUM & 6 others--Appellants
versus
CHAIRMAN
SYNDICATE UNIVERSITY OF ENGINEERING & TECHNOLOGY, LAHORE and others--Respondents
Service Appeals
No. 1295 of 2007, 3031 of 2008, 1687, 2261, 2898, 3069 and 3336 of 2010, decided
on 7.1.2011.
Punjab Service
Tribunals Act, 1974 (IX of 1974)--
----S. 4--Punjab Employees Efficiency, Discipline &
Accountability Act, 2006--S. 19--Constitution of Pakistan, 1973--Art.
212(1)(b)--Civil servant--Corporation service--Question of law--Jurisdiction of
Punjab Service Tribunal--Appeal before Punjab Service Tribunal--Employees of
universities--Punishments were imposed--Challenge to--Jurisdiction of Service
Tribunal in entertaining and deciding appeals of persons who were not civil
servants but were in corporation service and their services were not governed
by statutory rules--Validity--Admittedly all the appellants were not civil
servants and were members of corporation service and were not governed by
provisions of S. 4 of Punjab Service Tribunals Act, 1974 which was promulgated
for extending relief exclusively to civil servants with regard to enforcement
of terms and conditions of service including disciplinary matters and prior to
enforcement of PEEDA Act, 2006, persons other than civil servants in
corporation service had got no remedy before any forum and in order to provide
such remedy PEEDA Act, was enforced by including employees in employment of
corporation, corporate body--All the appellants being employees of universities
were neither civil servants nor their services were governed by statutory
rules, therefore, service tribunal which was creation of Art. 212 of Constitution, exclusively meant for enforcing terms and
conditions of persons in service of Pakistan had got no jurisdiction to
entertain these appeals which were accordingly dismissed being not
maintainable. [Pp. 18, 21 & 24] A,
B & H
Punjab Removal from
Service (Special Powers) Ordinance, 2000 (VI of 2000)--
----S.
10--Punjab Employees Efficiency, Discipline & Accountability Act, 2006, S.
19--Employees of universities--Remedy to employees in employment of corporation
corporate body--Right of appeal--Jurisdiction of service tribunal--Order was
passed by competent authority to prefer appeal to F.S.T. under Federal Service
Tribunal Act, 1973--Validity--Tribunal could only grant relief to the persons
who fall within definition of civil servant holding post in connection with
affairs of federation but as far as employees or persons in corporation service
including contractor ones, if they were aggrieved by any adverse order, Service
Tribunal was not appropriate forum for redressal of
grievance of these employees whose terms and conditions were settled u/Art.
212(1)(a) of Constitution. [Pp. 21 & 22] C & D
Punjab Removal from
Service (Special Powers) Ordinance, 2000 (VI of 2000)--
----S.
2(d)--Definition of persons in government services--Service were not governed
by non-statutory rules or who do not fall within definition of persons in
government service as defined in S. 2(d) of Ordinance--Held: Only such persons
other than civil servants in service of corporation can approach service
tribunal for redressal of their grievance if their
services were governed by statutory rules only. [P.
22] E
Employees of
Universities--
----Legal
position--Master and Servant--Employees of universities in Punjab
are governed by rules by-law or statute, framed and approved by higher body of
universities without intervention or final approval of the Govt. hence
relations between universities and their employees were that of master and
servant. [P. 22] F
Constitution of Pakistan,
1973--
----Art.
260--Service of Pakistan--Services of the employees of universities--Service of
universities employees were not in service, post or office in connection with
affairs of federation or of a province--Validity--Service of employees of
universities including appellants were governed by non-statutory rules, thus
they did not fall within definition of a person in service of Pakistan. [P. 23] G
Punjab Employees
Efficiency, Discipline and Accountability Act, 2006--
----S.
19--Punjab Service Tribunals Act, 1974, S. 4--Employees of
universities--Jurisdiction of Service Tribunal--Question of law--Appeal before
Punjab Service Tribunal--Employment of corporate body--Redress the grievance of
depressed persons--Neither statutory service rules nor legal protection for redressal of grievance--Personal attention of worthy Chief
Minister Punjab--Tribunal requested worthy Chief Minister to come to rescue of
those employees like ones who despite being in corporation service or body
corporate constituted under provincial law but having neither statutory service
rules nor had got legal protection for redressal of
their grievance--Taking immediate step to fill vacuum to establish new tribunal
exclusively meant for employees or provide forum of appeal to such employees
before Punjab Labour Appellate Tribunal--Such change
was only possible by personal attention of worthy Chief Minister who had
already out to redress the grievance of depressed persons and being exploited
by vested interest, especially heads of corporations or corporate bodies. [P. 24] I
Sheikh Muhammad Saleem, Advocate for Appellant (in Service Appeal No. 1295
of 2007).
Mr. Salman Riaz Chaudhry,
Advocate for Appellant (in Service Appeal No. 3031 of 2008).
Ch. Zulfiqar Ali Wahla, Advocate for
Appellant (in Service Appeal No. 1687 of 2010).
Rana Muhammad Shafique, Advocate for Appellant (in Service Appeal No.
2261 of 2010).
Mr. M.M. Qureshi, Advocate for Appellant (in Service Appeal No. 2898
of 2010).
Mrs. Rizwana Anjum Mufti, Advocate for
Appellant (in Service Appeal No. 3069 of 2010).
Sardar M. Iqbal Athar Khetran,
Advocate for Appellant (in Service Appeal No. 3336 of 2010).
Mr. Humayun Akhtar Sahi, Deputy District Attorney for Respondents.
Mr. Masud Ahmad Riaz and Sajjad Hussain, Advocates for
Respondents (in Service Appeal No. 1295/2007).
Mr. Habib Ullah Bhatti,
Advocate for Respondent (in Service Appeal Nos. 1687 & 2261 of 2010).
Date of hearing:
30.11.2010.
Judgment
As common questions
of law/jurisdiction of this Tribunal are involved in the above mentioned
appeals, therefore I propose to dispose of all the above mentioned appeals
through a single order.
2. The appellants in all the above mentioned
appeals are the employees of different Universities of Punjab who were
proceeded against departmentally on various charges under the provisions of
Punjab Employees Efficiency, Discipline & Accountability Act, 2006
(hereinafter called as PEEDA 2006) and punishments were also imposed under the
said Act. Aggrieved of the orders passed by the authorities below they filed
all the above mentioned appeals before this Tribunal under Section 19 of the
said Act which is reproduced below:
"Appeal
before Punjab Service Tribunal.--(1) Notwithstanding anything contained in any
other-law for the time being in force, any employee aggrieved by any final
order passed under Sections 16 & 17 may, within thirty days from the date
of communication of the order, prefer an appeal to the Punjab Service Tribunal established
under the Punjab Service Tribunals Act, 1974 (Pb.
Act, IX of 1974)."
3. Although all the appellants are admittedly
not civil servants, yet being in Corporation service were governed for the
purpose of efficiency, discipline and accountability under the said Act.
Section 2(h)(i) of Punjab
Employees Efficiency, Discipline & Accountability Act, 2006 says:
"Employee
means a person.--(i) in the employment of a
corporation, corporate body, autonomous body, authority, statutory body or any
other organization or institution set up, established, owned, managed or
controlled by the Government, by or under any law for the time being in force
or a body or organization in which the Government has a controlling share or
interest and includes the Chairman and the Chief Executive and the holder of
any other officer therein."
4. As at present limited question for
determination before this Tribunal is with regard to jurisdiction of this
Tribunal in entertaining and deciding these appeals only, therefore facts of each
and every appeal need not be given in order to avoid wastage of time.
5. During the pendency of these appeals, a legal
as well as jurisdictional development took place with regard to jurisdiction of
this Tribunal in entertaining and deciding the appeals of persons who were not
civil servants but were in corporation service and their services were not
governed by any statutory rules in view of the judgment passed by the Apex
Court recorded in C.P. No. 1863 of 2009 etc. titled `Executive Council, Allama Iqbal Open University,
Islamabad through its Chairman & another etc. versus M. Tufail
Hashmi and others (2010 SCMR 1484) this Tribunal has
got no jurisdiction to provide any relief to such employees. The relevant
portion of the said judgment deciding the question of jurisdiction of this
Tribunal in Para 10 is
reproduced below:
10. Now coming towards the definition of a person
in `corporation service' or a person in `Government service' as defined in
Section 2(c) and (d) of the RSO 2000. Such persons can be subjected to the RSO
2000 but keeping in view the definition of the `civil servant' under the Civil
Servants Act, 1973 as well as the dictum laid down in Muhammad Mubeen-us-Salam's case (ibid), only those employees can
approach the Service Tribunal, who fall within the definition of `civil
servant' holding posts in connection with the affairs of the Federation. As far
as the remaining categories of employees, including the contractual ones, are
concerned, if they are aggrieved of any adverse action, the Service Tribunal is
not the appropriate forum for redressal, of their
grievance, in view of the above conclusion, because it is a forum constituted
under Article 212 of the Constitution for the redressal
of their grievance of those employees, whose terms and conditions are settled
under Article 212(1)(a) of the Constitution.
Similarly, any action taken against such persons shall not be questionable
before the Service Tribunal as it is not meant to provide a forum to the
employees, whose services are governed by non-statutory rules or who do not
fall within the definition of a person in `Government service' as defined in
Section 2(d) of the RSO 2000. Admittedly, in the present case the employees of
AIOU, SME Bank and Pakistan Steel Mill, who approached the Service Tribunal for
redressal of their grievance, were not enjoying the
protection of statutory rules, therefore, the Service Tribunal had no
jurisdiction to adjudicate upon such matters and they will be governed by the
principle of Master and Servant."
6. After the above noted judgment passed by the
Apex Court, a CM. was filed in Service Appeal No. 1295/2007 on behalf of
Registrar, University of Engineering & Technology, Lahore praying that this
appeal be dismissed as non maintainable in the light of the above noted
judgment of the hon'ble Supreme Court of Pakistan. As
similar question was involved in all the other above noted appeals also,
therefore consolidated arguments were heard in all these appeals on the
question of jurisdiction of this Tribunal.
7. The learned counsel for the respondent
University (UET, Lahore) namely Sajjad Hussain Advocate by placing reliance on the above noted
judgment of the Apex Court in support of the aforesaid CM. argued that as the
employees of respondent University are neither civil servants nor their
services were governed by statutory rules, therefore not only the law declared
by the Apex Court in the above noted judgment was fully attracted to the
present case but also in view of the earlier judgments of the Apex Court in the
case of Muhammad Mubeen-us-Salam and others versus
Federation of Pakistan through Secretary, Ministry of Defence
and others' (PLD 2006 Supreme Court 602) and `Muhammad Idrees
versus Agricultural Development Bank of Pakistan and others' (PLD 2007 Supreme
Court 681) therefore neither this Tribunal has got any jurisdiction to hear and
decide this appeal nor this appeal is maintainable before this Tribunal and the
same be dismissed.
8. In reply to the above noted
contention/argument of the learned counsel on behalf of respondent University,
Sheikh Muhammad Saleem Advocate appearing on behalf
of appellant in Service Appeal No. 1295/2007 came out with the following
contention:--
(i) As the
above noted judgment of the Apex Court i.e. 2010 SCMR 1484 emerged out of the
proceedings under the Removal from Service (Special Powers) Ordinance, 2000
(Federal) and the original decision was also rendered by the Federal Service
Tribunal, which had nothing to do either with Punjab Employees Efficiency,
Discipline & Accountability Act, 2006 or the Punjab Service Tribunal and
since the aforesaid judgment was silent about the jurisdiction of Punjab
Service Tribunal, therefore the above noted judgment of the Apex Court could
not be made applicable to the proceedings arising out of Punjab Employees
Efficiency, Discipline & Accountability Act, 2006 or the Punjab Service
Tribunal. The learned counsel for the appellant in support of his contention
has placed reliance on (i) PLD 1963 (Dacca) 444; and (ii) PLD 1962 (Karachi) 620.
(ii) As the Federal Service Tribunal and
Punjab Service Tribunal are different entities and the judgment of the Apex Court was with
regard to Federal Service Tribunal only, therefore to say that the above noted
judgment of the Apex Court
would also be attracted to the jurisdiction of this Tribunal is not legally
correct, hence this appeal is maintainable. The learned counsel for the
appellant in support of his contention has placed reliance on PLD 1973 (Karachi) 491.
(iii) That under Article 212 of the Constitution
of Islamic Republic of Pakistan, 1973 since the Provincial Assembly of Punjab
in the form of resolution has not extended the provisions of Article 212 to the
extent of Punjab Employees Efficiency, Discipline & Accountability Act,
2006 therefore the judgment of the Apex Court rendered under the Removal from
Service (Special Powers) Ordinance, 2000 (Federal) will have no binding force
on this Tribunal without such extension by the Provincial Assembly of Punjab.
9. All the learned counsel for the appellants in
connected cases also adopted the above noted contention of Sheikh Muhammad Saleem Advocate.
10. I have carefully considered the arguments
advanced on behalf of the appellants as well as the respondents and have also
gone through the record.
11. Before I record finding on the above noted
question, it would not be out of place to mention here that admittedly all the
appellants in the aforesaid appeals are not civil servants and are members of
corporation service and were therefore not governed by the provisions of
Section 4 of Punjab Service Tribunals Act, 1974 which was promulgated for
extending relief exclusively to the civil servants with regard to enforcement
of their terms and conditions of service including disciplinary matters in
terms of Article 212(1)(b) of the Constitution of Islamic Republic of Pakistan,
1973 and prior to enforcement of Punjab Employees Efficiency, Discipline &
Accountability Act, 2006, persons other than civil servants in the corporation
service had got no said remedy before any forum and in order to provide such
remedy, Punjab Employees Efficiency Discipline & Accountability Act, 2006
was enforced by including the employees in the employment of corporation,
corporate body etc. as reproduced above and further in terms of Section 19 of
the said Act such employees were also provided remedy of filing appeal before
this Tribunal against the final order passed by the competent authority with
regard to disciplinary proceedings initiated against such employees. Similar
was the position with regard to the employees in the employment of
corporation/corporate body etc. under the Federal Service Tribunal Act and for
providing forum/remedy to the. employees in the employment of
corporation/corporate body etc. managed/controlled by the Federal Government
under any law and for providing remedies to such employees, Removal, from
Service (Special Powers) Ordinance, 2000 (Federal) was enforced by the Federal
Government and in terms of Section 10 of the said Ordinance right of appeal was
allowed to such persons aggrieved by any final order passed by the competent
authority to prefer appeal to the Federal Service Tribunal established under
the Federal Service Tribunal Act, 1973. The above noted analysis of the law
means to show that the language of Section 10 of Punjab Removal from Service
(Special Powers) Ordinance, 2000 (Federal) and Section 19 of Punjab Employees
Efficiency, Discipline & Accountability Act, 2006 being identical in pari-materia are very much relevant while deciding the
question of jurisdiction of this Tribunal in the light of the law declared by
the Apex Court in the Allama Iqbal
Open University, Islamabad case noted above.
12. Para 10 of the judgment of the Apex Court as
reproduced above indicates that this Tribunal could only grant relief to the
persons who fall within the definition of civil servant holding post in
connection with the affairs of the Federation but as far as the employees or
persons in corporation service including the contractor ones, if they are
aggrieved by any adverse order, the Service Tribunal is not the appropriate
forum for redressal of their grievance because it is
a forum constituted under Article 212 of the Constitution of Islamic Republic
of Pakistan, 1973 for the redressal of grievance of
those employees whose terms and conditions are settled under Article 212(1)(a)
of the Constitution of Islamic Republic of Pakistan, 1973. However, Service
Tribunal is not meant to provide a forum to the employees whose services are
governed by non-statutory rules or who do not fall within the definition of
persons in Government service as defined in Section 2(d) of the Removal from
Service (Special Powers) Ordinance, 2000 (Federal), meaning thereby that only
such persons other than civil servants in the service of corporation can
approach this Tribunal for the redressal of their
grievance if their services were governed by statutory rules only. In the
present case the legal position of the employees of Universities is very much
clear for the simple reason that the employees of the Universities in Punjab
are governed by the rules, bye-law or statues framed and approved by the higher
body of the universities without the intervention or final approval of the
Government, hence the relations between the Universities and their employees in
Punjab are that of master and servant.
13. So far as the above contentions of Sheikh
Muhammad Saleem Advocate, learned counsel appearing
on behalf of Major (Retd) Abdul Majeed
Anjum is concerned, I am not persuaded to agree with
any of the said contention. As the judgment of the Apex Court declaring a law
is binding on all the public functionaries in Pakistan per force of Article 189
of the Constitution of Islamic Republic of Pakistan, 1973, therefore to say
that the above noted judgment of the Apex Court in Allama
Iqbal Open University, Islamabad case noted above
could not be made applicable to either to the matters relating to provincial
law or this Tribunal constituted under the provincial law on the ground that
the judgment of the Apex Court related to Federal law as well as Federal
Service Tribunal is mis-conceived. In fact the law
declared by the Apex Court
and its spirit behind it has to be considered. In the humble opinion of the
Tribunal, the Apex Court
in the above noted judgment in fact interpreted the provisions of Article 212(l)(a) of the Constitution of Islamic Republic of Pakistan,
1973 in terms of all the administrative Courts or Tribunal including Federal
Service Tribunal and provincial Service Tribunals were established under the
said constitutional provision. The language of Article 212(l)(a)
is very much clear which is reproduced below:--
"Administrative
Courts and Tribunals.--(1) Notwithstanding anything hereinbefore contained, the
appropriate Legislature may by Act (provide for the establishment of) one or
more Administrative Courts or Tribunals to exercise exclusive jurisdiction in
respect of matters relating to the terms and conditions of persons (who are or
have been) in the service of Pakistan, including disciplinary matters."
14. The bare perusal of the above noted language
leaves no room for doubt that the Tribunal under Article 212(1)(a) could only be established for enforcing the terms and
conditions of persons who are or have been in the service of Pakistan, including
disciplinary matters. Further Article 260 of the Constitution of Islamic
Republic of Pakistan, 1973 defines "Service of Pakistan" means any
service, post or office in connection with the affairs of the Federation or of
a Province. Definitely the service of the Universities employees are not in
service, post or office in connection with the affairs of Federation or of a
province. As held above the services of the employees of Universities in the
Punjab including the appellants are governed by non-statutory rules, thus they
do not fall within the definition of a person in service of Pakistan ad defined
above, therefore interpretation given by the Apex Court in the above noted
judgment of the Apex Court in Allama Iqbal Open University, Islamabad case, though while
deciding a matter under the Federal law by Federal Service Tribunal, yet can
definitely be extended to the present cases despite arising out of the
provincial statues and pending, before a provincial Service Tribunal per force
of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973
especially when the language implied in Section 9 of the Removal from Service
(Special Powers) Ordinance, 2000 (Federal) as well as the Punjab Employees
Efficiency, Discipline & Accountability Act, 2006 relating to filing of
appeal before the Service Tribunal by the employees in the service of
Corporation is almost in the same words. However, for ready reference, the
relevant portion is reproduced below:--
"Appeal--Notwithstanding
anything contained in any other law for the time being in force, any person
aggrieved by any final order under Section 9 may, within 30 days of the order,
prefer an appeal to the Federal Service Tribunal established under the Service
Tribunals Act, 1973."
15. Similarly the wording of Section 19 of Punjab
Employees Efficiency, Discipline & Accountability Act, 2006 goes as
under:--
"Appeal
before Punjab Service Tribunal.--(1) notwithstanding anything contained in any
other law for the time being in force, any employee aggrieved by any final
order passed under Sections 16 and 17 may, within thirty days from the date of
communication of the order, prefer an appeal to the Punjab Service Tribunal
established under the Punjab Service Tribunals Act, 1974 (Pb.
Act, IX of 1974)."
16. In view of the above noted discussion, the
contentions of the learned counsel appearing on behalf of all the appellants
are over-ruled. Similarly the authorities relied upon by the learned counsel
for the appellants are not considered as relevant for the decision of the
matter in question.
17. The up shot of the
above discussion is that after the judgment of the Apex Court in the case
reported as 2010 SCMR 1484 noted above and for the reason that all the
appellants in the appeals being employees of Universities in Punjab are neither
civil servants nor their services are governed by any statutory rules,
therefore this Tribunal which is the creation of Article 212 of the
Constitution of Islamic Republic of Pakistan, 1973 exclusively meant for
enforcing the terms and conditions of the persons in the service of Pakistan
including disciplinary matters, has got no jurisdiction to entertain these
appeals which are accordingly dismissed being not maintainable.
18. Before parting with this judgment, I would
like to request worthy Chief Minister of Punjab to come to the rescue of those
employees like the present ones who despite being in corporation service or the
body corporate constituted under the provincial law but having neither
statutory service rules nor have got legal protection for the redressal of their grievance after the above noted judgment
of the Apex Court in Allama Iqbal
Open University, Islamabad case, therefore taking immediate step to fill the
vacuum to establish new Tribunal exclusively meant for such employees or
provide forum of appeal to such employees before Punjab Labour
Appellate Tribunal already constituted in the Punjab under the Industrial
Relations Ordinance Act, 2010 by appropriately amending through Ordinance the previsions of Section 19 of Punjab Employees Efficiency,
Discipline & Accountability Act, 2006 relating to institution of appeal by
employees or persons in the service of corporation or corporate body instead of
this Tribunal constituted under the Punjab Service Tribunals Act, 1974. Such
change is only possible by the personal attention of the worthy Chief Minister,
Punjab who is already out to redress the
grievance of depressed persons and being exploited by the vested interest,
especially the Heads of these corporations or corporate bodies. The immediate
step, if taken by the worthy
Chief Minister in
this respect would also promote
the image of present Government among the masses. The Registrar of this
Tribunal shall therefore ensure, that copy of this
judgment is sent to the worthy Chief Minister, Punjab
for his personal consideration. Similarly copy of this judgment be also sent to the Secretary to Government of the Punjab, Law and Parliamentary Affairs Department for
proposing necessary legislative measures.
(R.A.) Appeals dismissed.
