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Petitioner: MUHAMMAD ASLAM BAJWA VS Respondent: FEDERATION OF PAKISTAN
Court Name: Lahore High Court Judge(s): Shafi-ur-Rehman, Karam Elahi Chauhan Title: MUHAMMAD ASLAM BAJWA vs FEDERATION OF PAKISTAN Case No.: Writ Petition No. 647/S of 1974 Date of Judgment:1974-07-11 Reported As: PLD 1974 LAHORE 545 Result: Order accordingly
JUDGMENT
JUDGMENT KARAM ELAHEE CHAUHAN, J.-The petitioner is an Ex-C. S. P. Officer who at the relevant time was serving as Joint Secretary, Agriculture Govern--ment of Pakistan when by means of a Notification dated 13th March 1972 published in the Gazette of Pakistan (Extraordinary) of that date he was compulsorily retired under the "Removal from Service (Special Provisions) Regulation, 1972"-(known as M. L. R. 114 of 1972). The petitioner has come up in writ petition against the aforesaid order and proceedings to this Court. As a matter of fact, the cases of the Jabri-retired-officers came up before us earlier as well when an objection on behalf of the Government was taken that this Court had no jurisdiction to entertain, or adjudicate upon their petitions in view of Article 281 of the Interim Constitution. We repelled that contention and held that the validity-conferring and jurisdic-- petition-ousting clause contained in Article 281 did not preclude the examination of those cases on the limited grounds of (a) corum non judice and (b) mala fides. The judgment of this Court was rendered on 3-8-1973 and is reported in Saeed Ahmad Khan v. The Federation of Pakistan (PLD 1974 Lah. 18). The Federal and the Provincial Governments went in appeal to the Supreme Court but their appeals were dismissed on 11-3-1974 and the judgment and order of this Court was maintained. See The Federation of Pakistan v. Saeed Ahmad Khan (PLD 1974 SC 151). The Supreme Court in their judgment gave certain useful and instructive guidelines as to how the point of mala fides should be attended to and what ingredients it must possess before it can be accepted by a Court of law. After laying down these guidelines the Supreme Court remanded the various cases to this Court for disposal in the light of their observations. These were, therefore, again fixed before us- (along with certain new cases which had in the meantime been filed in this Court)-but as by now the Central Government has promulgated Civil Servants Act LXXI of 1973 and Service Tribunals Act
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LXX of 1973 under Article 212 of 1973 Constitution whereunder Tribunals of exclusive jurisdiction with regard to matters relating to the terms and conditions of persons who are or have been in the service of Pakistan including disciplinary matters" have been set up, therefore, Mr. Yahya Bakhtiar the learned Attorney-General and Mr. M. B. Zaman learned Advocate-General, Punjab raised the point that in the face of that law the present writ petitions have abated. The present judgment attends to this point. 2. Mr. Yahya Bakhtiar learned Attorney-General and Mr. M. B. Zaman, learned Advocate-General (Punjab) referred to Article 212 of 1973 Constitu--petition, which reads as follows:--- "Article 212. Administrative Courts and Tribunals.-(I) 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---- (a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters; (b) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or (c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law. (2) Notwithstanding anything hereinbefore contained, where any Adminis--trative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such mater which may be pending before such other Court Immediately before the establishment of the Administrative Court or Tribunal shall abate on such establishment. Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Parliament by law extends the provisions to such a Court or Tribunal. (3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal." The portions underlined' were added into the Article by section 12 of the Constitution (First Amendment) Act, XXXIII of 1974 which was assented to by the President on 4-5-1974 and was published in the Gazette of Pakistan, Extraordinary, Part I, dated 8-5-1974, pages 179 to 182. According to that section these amendments were retrospective and were to be deemed always to have been so substituted or inserted. The learned State Counsel argued that the effect of the aforesaid Article 212 was that: (a) the Constitution authorised the appropriate Legislature to provide for the establishment of one or more Administrative Courts or Tribunals; (b) to exercise exclusive jurisdiction in respect of; (c) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan including disciplinary matters; (d) and when any Administrative Court or Tribunal is established no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter' to which the jurisdiction of such Administrative Court or Tribunal extends; and (e) all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal shall abate on such establishment. It was argued that the Central Govern--ment has established Tribunal/Tribunals under the Service Tribunals (Amend--ment) Act LXX of 1973-(as amended by the Service Tribunals (Amendment) Act XXXI of 1974) read with the Civil Servants Act (LXXI of 1973) which ,now have exclusive jurisdiction to deal with the cases of the present kind pertaining to the compulsory retirement of the petitioners in the form of -appeals
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scope whereof will be very wide and all embracing in all respects and as such the present writ petitions stand abated accordingly, and this Court can no longer grant an injunction, make an order or entertain any proceed--ings in respect of the matters involved herein to which the jurisdiction of the aforesaid Tribunal or Tribunals now extends. The contention seems to have merit. The fact that the Central Government has established the Tribunal or Tribunals has not been doubted by the learned counsel for the writ petitioners. The jurisdiction of such Tribunal/Tribunals is deducible from certain sections of the Service Tribunals Act-(as amended). In section 2(a) it is written that a civil servant means a person who is or has been a civil servant within the meaning of the Civil Servants Act LXXI of 1973. In section 2(b) of the Civil Servants Act LXXI of 1973 a Civil Servant is defined as follows:---- "Section 2(1): Definitions.-(I) In this Act, unless there is anything repugnant in :the subject or context,----- (a) ................------------ (b) "civil servant" means a person who is a member of an All Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include---- (d) a person who is on deputation to the Federation from any Province or other authority; (ii) a person who is employed on contract, or on work-charged basis, or who is paid from contingencies; or (iii) a person who is a `worker' or `workman' as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923)." Sections 3, 4, 5 and 6 of the Service Tribunals Act are also relevant. They read as follows:------ "Section 3: Tribunals.-(1) The President may, by notification in the official Gazette, establish one or more Service Tribunals and, where ,there are established more than one Tribunal, the President shall specify in the notification the class or classes of civil servants in respect of whom, or the territorial limits within which, each such Tribunal shall exercise jurisdiction under this Act. (2) A tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters. (3) A tribunal shall consist of---- (a) a Chairman, being a person who has been, or is qualified to be, Judge of a High Court, and (b) two members each of whom is person who possess such qualifications as may be prescribed by rules. (4) The Chairman and members of a Tribunal shall be appointed by the President on such terms and conditions as he may determine. (5) The Chairman or a member of a Tribunal may resign his office by writing under his hand addressed to the President. (6) The Chairman or a member of a Tribunal shall not hold any other office of profit in the service of Pakistan, if his remuneration is thereby increased. (7) Notwithstanding anything contained in subsection (3), subsection (4), subsection (5) or subsection (6) a Tribunal established to exercise jurisdiction in respect of a specified class or classes of cases may consist of one or more persons in the service of Pakistan to be appointed by the President." "Section 4: Appeals to Tribunals.-(1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service: may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal,, whichever is later, prefer an appeal to the Tribunal: Provided that:---
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(a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973, or any rules against: any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or, representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or, representation was so preferred; (b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade; and (c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July 1969. (2) Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred----- (a) in the case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time--scale, or to a lower stage in a time-scale to a Tribunal referred to in. Subsection (3) of section 3; and (b) in any other case, to a Tribunal referred to in subsection (7) of that section. Explanation.-In this section, "departmental authority" means any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants." "Section S : Powers of Tribunals.-A tribunal may, on appeal, confirm set aside, vary or modify the order appealed against. (2) Tribunal shall, for the purpose of deciding any appeal, be deemed to be a civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908)9 including the powers of: (a) enforcing the attendance of any person and examining him on oath; (b) compelling the production of documents; (c) issuing commission for the examination of witnesses and documents." "Section 6. Abatement of suits and other proceedings.-All suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Act shall abate forthwith; 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 perusal of the aforesaid provisions will show that a Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters. Section 6 is more or less on the same lines as the later portion of Clause (2) of Article 212 of the Constitution. It 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 this Act shall abate forthwith provided that any party to such a suit, appeal or application may, within the period of limitation mentioned therein prefer an appeal to the Tribunal in respect of any such matter which is in issue in such suit, appeal or application. At This provision of law deals with the cases of those civil servants who have already instituted suits or preferred appeals or fled applications etc. Regarding matters which fall within the jurisdiction of the Tribunal. A cumulative effect of all these constitutional and other legal provisions is that the present writ petitions which pertain to the terms and conditions of service of the petitioners or are concerned with a disciplinary action which was taken against them fall within the ambit of these provisions and stand abated leaving the petitioners the remedy of filing appeals in the appropriate Tribunal within
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the prescribed period of limitation and to avail of the provisions of sections 5 and 12 of the Limitation Act IX of 1908 in case a need to do so arises for claiming condonation of delay etc. Arguments of counsel for the writ petitioners; 3. When confronted with the above situation, learned counsel for the writ petitioners argued that Article 212 of 1973 Constitution and the enactments made thereunder are not intended to cover the present cases which had been filed under Article 201 of the Interim Constitution It was argued that Article 266 of 1973 Constitution stated that "the Interim Constitution of the Islamic Republic of Pakistan, together with the Acts and President's Orders making omissions from, additions to, modifications of, or amendments in, that Constitution is hereby repealed". Thereafter learned counsel referred to Article 264 of 1973 Constitution which reads as follows:----- "Article 264. Effect of repeal of laws.-Where a law is repealed or is deemed to have been repealed, by, under, or by virtue of the Constitu--petition, the repeal shall not, except as otherwise provided in the Constitution,---- (a) revive anything not in force or existing at the time at which the repeal takes effect; (b) affect the previous operation of the law or anything duly done or suffered under the law; (c) affect any right, privilege, obligation or liability acquired, accrued,, or incurred under the law: (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;---- and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed." Learned counsel argued that Article 201 of the Interim Constitution gave a right to the writ petitioners, who are persons aggrieved from the impugned orders to approach this Court for redress, and if in exercise of the right they had filed the present writ petitions then according to Article 264 of 1973 Constitution they were to be continued as if the Interim Constitution had not been repealed. In support of this plea they also referred to the opening sentence of Article 212 of 1973 Constitution wherein it was written "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." It was submitted that the sentence italicised indicated that Article 212 was to . Override anything which may have preceded it but not (to use the same language)-"anything hereinafter contained" i.e. Any special provision which was contained in Article subsequent to Article 212, namely, Article 264 which allowed old writ petitions to continue in this Court as if the Interim Constitution had not been repealed. It was submitted that where there was a general provision dealing with matters in general and a special provision regarding a particular subject-matter, then that matter should be governed by the special provisions and not the general provisions. Article 264, it was submitted, was a special provision whereas Article 212 was a general provision. We have considered the aforesaid plea but we are unable to hold that the present writ petitions are not affected by Article 212 and the enactments made thereunder. The reason is that in Article 264 which is a permission for the old pending proceedings to continue, there is itself contained a specific rider to the effect that it is to operate "except as otherwise provided in the Constitution" which means that the continuation of the pending proceedings can be excepted by any provision providing otherwise (and we may say so) at any stage. Article 264, therefore, gave clear warning of the possibility of continuation getting interrupted at any time and one can say that that contingency was clearly contemplated in Article 21 which indicated that if at the time for example
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when the relevant Courts or Tribunals are established, any pending proceedings have not ended, then there was a possibility of their getting abated or falling within the exclusive jurisdiction of any other Court or Tribunal created thereunder. Examined in this light, it appears, that the phrase "notwithstanding anything herein before contained" in Article 212 has reference .To Article 199 which conferred relevant jurisdiction on this Court and also to law making power of the Central or the Provincial Legislature, because, after using the said phrase, it is stated, that the appropriate Legislature may make laws for the various subject-matters mentioned thereafter i. e. (so far as relevant for the present case)-in respect of matters relating to the terms and conditions of service of persons who are or have been in the service of Pakistan, ,including disciplinary matters. A question arises that if in ordinary course a law is always to be made by an appropriate Legislature then why was it said that it can make such and such laws "notwithstanding anything hereinbefore contained" and by using this phrase is any such now power being conferred on the appropriate Legislature which it otherwise-(but for this phrase)-did not possess. It appears that the establishment of Courts or Tribunals of exclusive jurisdiction has an implication of course of jurisdiction of other Courts come of which may be those which have been set up by the Constitution itself and vis-a-vis them ordinary legislative machinery may not be sufficient to oust their jurisdiction-the manner of ousting their jurisdiction being to amend the Constitution every time this process was to be employed. The Constitution-makers, therefore, to avoid (if we can say so) that cumbersome procedure laid down a different scheme. They stated that notwithstanding the fact that establishment of Courts and Tribunals of ex--clusive jurisdiction will result in ousting jurisdiction of other Courts-(including Courts established under the Constitution itself for example High Courts for which method of amendment of Constitution was otherwise laid down in the various other Articles and jurisdiction whereof was contained in Articles preceding Article 212 e. g., Article 199) the appropriate Legislature may of its own provide for the establishment of Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of the matters mentioned in Article 212. After so permitting the Constitution-makers in clause (2) of Article 212 then stated that "notwithstanding anything hereinbefore contained where any Administrative Court or Tribunal is established under clause (1) no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the juris--diction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matters which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal shall abate on such establishment provided that the provisions of this clause shall not apply to an administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Parliament by law extends the provisions to such a Court or Tribunal. "This means that Courts and Tribunals of exclusive jurisdiction are to be set up under ordinary laws in accordance with the manner hereinbefore mentioned but when so set up their effect will be as has been laid down in the Constitution itself. This is the purpose of and explanation for the use of the sentence "notwithstand--ing anything hereinbefore contained" in clauses (1) and (2) of Article 212 and not the one which was being advanced by the learned counsel for the petitioners, namely, that it overrides or affects only the Articles prior to Article 212 and not the one occurring subsequent thereto. i.e. Article 264 which even otherwise as we have explained earlier is per its own force not attracted to the cases of the present kind if a law with regard thereto is made for establishing Courts or Tribunals of exclusive jurisdiction. (The Central Tribunal was established on 22-2-1974). (The present writ petition was filed on 24-4-1974). 4. The next point argued by the learned counsel for the petitioners was that the cases in hand pertained to such actions or orders which were taken or passed during the period when Martial Law in the country was in force and about them there were specific Articles, namely, Articles 269
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and 270 which conferred validity on them. It was submitted that if the Constitution conferred validity on such orders what will a Court or Tribunal even of exclusive jurisdiction do in the matter? On this reasoning it was argued that in this context it was only this Court which could properly examine them. Though our view in line with the contention of the learned State Counsel is that in the new set up the scope of the appeal will be wider and all embracing but to meet the argument on its own plane to say with respect, it has not impressed us because if the Constitution has conferred validity on these acts and orders then to the extent to which validity has been conferred even this Court will not be in a position to reopen them and we have failed to understand why the petitioners insist on getting their cases proceed in a Court of limited jurisdiction i.e. High Court rather than availing of the remedy of filing appeals in Tribunals where the whole matter can have gone into both on merits as well as law-(as was contended and conceded by the learned State Counsel). Even otherwise the argument that despite the provision of appeal the scope will still be narrow is not well founded. In the Federation of Pakistan v. Saeed Ahmad Khan, there occurs an instructive passage which explains the extent of validity contained in Article 269 of 1973 Constitution. The Supreme Court at pages 167 and 169 observed that "the contention of the learned Advocate---General Punjab that the "validity" gives legal cover not only to acts done illegitimately but also to acts done improperly and, therefore covers even mala fide acts, has now to be noticed again, even though this contention too was…
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