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Petitioner: Flt. Lt. FARRUKH RASHID VS Respondent: SECRETARY, ESTABLISHMENT DIVISION, ISLAMABADHonorable Justice TANVIR BASHIR ANSARIAbdul Rahim Bhatti,M. Aslam Uns
2008 P L C (C
2008 P L C (C.S.) 517
[Federal Service Tribunal]
Before Justice (R.) Tanvir Bashir Ansari, Chairman, Saeed Ahmed Zaidi and Syed Bilal Ahmed, Members
Flt. Lt. FARRUKH RASHID
Versus
SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and another
M.P. No.550 of 2007 in Appeal No.1410(R)(C.S.), decided on 14th January, 2008.
(a) Constitution of Pakistan (1973)---
----Art. 212---Service Tribunals Act (LXX of 1973), Ss.4 & 5---Application for implementation of judgment of the Tribunal---Maintainability---Petitioner whose services were terminated, filed appeal before service Tribunal and the Tribunal setting aside order of termination directed authorities to reinstate petitioner in service with effect from the date of impugned order with all consequential benefits---Petitioner had filed petition before Service Tribunal for implementation of its judgment---Said petition was objected to by the authorities contending that petition was not maintainable as the Tribunal, after deciding appeal on merits, had no jurisdiction to entertain application for implementation of its judgment as Tribunal, after deciding case had become functus officio---Validity---When an administrative court or Tribunal was empowered to pass or make order it also bad the power to implement and/or execute said judgments, decrees or orders--Administrative courts or Tribunals would be fully competent to exercise power as detailed in O.XXI C.P.C. in the matters relating to execution of judgments, decrees or orders---Administrative courts or Tribunals enjoyed full powers to implement and execute all its judgments and orders---Objection of authorities was overruled, directing to implement judgment in question and reinstate petitioner with effect from date of impugned order with all consequential benefits within specified period.
Abdul Hafeez Abbasi v. Managing Director, PIAC 2002 SCMR 1034; Ch. Sadiq Ali (Retd.) Assistant Engineer/S.D.O., P.W.D v. The Chief Secretary, Azad Jammu and Kashmir Government and another PLD 1996 SC (AJ&K) 29; Malik Fazal Abbasi v. Secretary to the Government of Punjab, Excise and Taxation Department and 2 others 2003 PLC (C.S.) 1186; Zahooruddin Sheikh v. Pakistan Atomic Energy Commission PLJ 2004 Tr.C. (Service) 183; Ahmad Nawaz Khan v. Senior Accounts Officer (Admit.) Pakistan Railways 1989 PLC (C.S.) 398; Masood Ahmed Changwani v. Secretary, Establishment Division and others 1999 PLC (C.S.) 443; Abdul Razzaq and another v. Senior Member, Board of Revenue, Punjab, Lahore 2006 TD (Service) 63; Messrs Yousuf Sons and another v. Muhammad Khalid and others PLD 2005 Kar. 316; Muhammad Yousuf v. Divisional Superintendent, Pakistan Railways 2002 SCMR 663; Syed Imran Raza.s Zaidi, Superintending Engineer, Public Health Engineering Circle-I, Gujranwala v. Government of the Punjab through Services, General Administration and Information Department, Lahore 1996 SCMR 645; and Pakistan International Airlines Corporation v. Inayat Rasool 2003 SCMR 1128 ref.
(b) Service Tribunals Act (LXX of 1973)---
----Ss. 2(b), 3, 4 & 5---Constitution of Pakistan (1973), Art.212---Powers and jurisdiction of Service Tribunal---Exercise of powers by Service Tribunals, both at the Federal as well as Provincial level had been established under Art.212(1) of the Constitution to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of persons who were or had been in the service of Pakistan including disciplinary matters---Service Tribunals were vested with vast powers to grant full redress and to do complete justice to an aggrieved party---Jurisdiction of all other courts or Tribunals was expressly ousted in respect of any matter to which jurisdiction of the Administrative court or Tribunal extended---In, order to give effect to the mandate as enshrined in Art.212 of the Constitution, Civil Servants Act, 1973 and the Service Tribunals Act, 1973 were promulgated by the appropriate legislatures for the constitution and functioning of the Federal as well as the Provincial Tribunals respectively---Tribunals had not only been vested with vast overwhelming powers in deciding an appeal before it, but it had also been conferred with the powers of a civil court---Nothing existed in S.5 of Service Tribunals Act, 1973 to limit or curtail the powers of the Tribunal to any extent whatsoever---Exclusive jurisdiction would necessarily entail the inherent power of doing complete justice. from the commencing of the lis before Tribunal upto its logical conclusion i.e. the practical implementation/execution of its judgment having the full backing of powers of execution as were vested in a civil court---Any other interpretation of the powers of the Tribunal which would have a diminishing effect, would be contrary to the intendment of exclusivity of jurisdiction of the Tribunal envisaged by the Constitution---Section 5(2) of Service Tribunals Act, 1973 provided that Service Tribunal would be deemed to be a civil court and have the same powers under the Code of Civil Procedure.
Abdul Rahim Bhatti for Petitioner.
M. Aslam Uns, Federal Counsel for Respondents along with Abdul Hakim Rahi, S.O. Establishment Division as D.R.
Date of hearing: 14th January, 2008.
JUDGMENT
MR. JUSTICE (R) TANVIR BASHIR ANSARI, (CHAIRMAN).--- This is a petition for implementation of the judgment of this Tribunal dated 8-5-2007 passed in Appeal No.1410 (R)(C.S.) of 2005 whereby the termination order of the petitioner passed vide Notification, dated 31-3-2005 was set aside and the respondents were directed to reinstate him in service with effect from the date of the impugned order with ail consequential benefits subject to an affidavit by the appellant to the effect that he was not gainfully employed during the intervening period. The petitioner/appellant reported for duty on 23-5-2007 but the respondents refused to allow him to resume duty. The petitioner, in compliance with the direction of this Tribunal also submitted the necessary affidavit to the effect that he was not gainfully employed during the intervening period.
2. The respondents challenged the judgment of this Tribunal before the Honourable Supreme Court. The C.P.L.A. filed by the respondents has since been dismissed by the Honourable Supreme Court on 4-12-2007. It is however, not disputed that no injunctive order against the judgment of this. Tribunal was issued by the. Honourable Supreme Court at any stage...
3. The respondents filed written objections against the petition for implementation of the said judgment. It is contended therein that the Honourable Supreme Court vide order dated 3-11-2006 in Civil Petition No,832 of 2006 in case titled Muhammad Ashraf v. WAPDA has made the following observations:-
".... We therefore, without going into the question regarding the validity or otherwise of the order passed by the Tribunal, dismiss this petition with the observation that the petitioner may, if so advised, approach the departmental authorities in the matter. Dismissed,"
Pursuant to this order of the Honourable Supreme Court this Tribunal on 22-11-2006 proceeded to dismiss the M.P. for implementation (No.450-A of 2004 in Appeal No.207(L)(C.S.) of 2003 Sh. Maqbool Ahmed x. Income Tax Department) and further directed that all other M.Ps. of same nature be also dismissed as not competent.
It is urged, on behalf of the respondents mat the petition for implementation is not maintainable and is liable to be dismissed.
4. Briefly stated that facts are as under:-
The services of the petitioner were terminated vide the impugned order/Notification, dated 31-3-2005. He filed a departmental appeal on 13-4-2005 which was not responded to within the statutory period. The petitioner filed Appeal No.1410(R)(C.S.) of 2005 on 9-7-2005.
5. This Tribunal vide judgment dated 8-5-2007 accepted the appeal of the petitioner in the following terms:---
"In view of the foregoing, the appellant's termination was ab initio illegal and devoid of justice in violation of the principle of locus poenitentiae. We, therefore, accept the appeal, set aside the termination orders and direct the respondents to reinstate him with effect from the date of the impugned order with all consequential benefits subject to an affidavit by the appellant and its administrative processing under law to the effect that he was not gainfully employed during the intervening period."
6. Mr. Abdur Rahim Bhatti, Advocate for the petitioner/appellant contends that the Honourable Supreme Court in. the order, dated 3-11-2006 passed in the case of Muhammad Ashraf v. WAPDA did not hold that the Federal Service Tribunal had no power to implement its own decisions. It is submitted that the respondents are misconstruing the said order passed by the Honourable Supreme Court. He further submits that pursuant to this order the case came up for hearing before this Tribunal in M.P. No.450-A of 2004 in Appeal No.207(L)(C.S.) of 2003 titled Shaikh Maqbool Ahmed v. Income Tax Department wherein an order was passed on 22-11-2006. The said M.P. which was for implementation, was dismissed directing the said petitioner, to approach the departmental authorities in the matter. On the administrative side it was ordered that all the Misc. Petitions pending in the Tribunal for implementation of its decision be decided in a similar manner. The learned counsel for the appellant submits that the aforesaid decision which was judicial as well as administrative in nature was the result of lack of proper assistance on behalf of the petitioner in the said case and was also based upon a misconstruction of the order of the Honourable Supreme Court mentioned supra. In support of the proposition that the Tribunal is fully competent to implement its own decisions, the learned counsel has referred to the following judgments:---
(i) 2002 SCMR 1034 Abdul Hafeez Abbasi v. Managing Director, PIAC. The ratio of the said dictum of the Honourable Supreme Court is as under:---
"Constitution of Pakistan (1973), Art.212(3)---Appeal---Termination of service---Service Tribunal ordered the re-instatement of employees, but employer did not take them on duty thus, deprived them from salary for such period---Validity---Employer had an obligation to honour the judgment of Service Tribunal and reinstate the employees or it' employer had any reservation in not implementing the judgment, then a stay order should have been obtained from the Supreme Court---Employer had not obtained any stay order, thus, judgment of Service Tribunal remained operative---Supreme Court directed that employees be reinstated with effect from the date of passing of judgment of Service Tribunal with all back-benefits."
(ii) PLD 1996 SC (AJ&K) 29 Ch. Sadiq Ali (R.) Assistant Engineer/SDO, P.W.D. v. The Chief Secretary, Azad Jammu and Kashmir Government and another.
Ratio:
"---Where jurisdiction was conferred on Court or Tribunal to pass an order, power to have that order implemented was IC implicit in that jurisdiction."
(iii) 2003 PLC (C.S.) 1186 (Lahore High Court)-Malik Fazal Abbas v. Secretary to the. Government of Punjab, Excise and Taxation Department and 2 others.
Ratio:---
"---Petitioner/civil servant through Constitutional petition had challenged inaction of the Authorities by not complying with order passed by Service Tribunal---Petitioner prayed the High Court to issue an appropriate writ for enforcement of the order of Service Tribunal---Validity---Service Tribunal being a "Civil Court" within the meaning of S.5(2) of Punjab Service Tribunals Act, 1974, for the purpose of deciding appeal, it had all the powers of the "Civil Court" provided under C.P.C.---Section 36, C.P.C. had provided that all provisions of C.P.C. relating to execution of decrees would be applicable for execution of orders as well---Service Tribunal would have all powers of Civil Court to bring issue before it to its logical end like Civil Court---Service Tribunal could get its order enforced/executed---Petitioner having alternate and efficacious remedy before Service Tribunal, available to him under law, constitutional petition was not maintainable."
(iv) Order dated 24-1-2003 passed in C.P-L.4. No.1915 of 2002 Federation of Pakistan v. Gohar Riaz.
"---Learned Standing Counsel fairly concedes that order of Service Tribunal reinstating the respondent (appellant) has not been implemented so far. Impugned order was rendered as far back as 9-2-2002, whereas the petition was filed on 12-11-2002. Before proceeding further with hearing of the petition, in all, we accept in all fairness that the judgment passed by the competent Tribunal constituted under the provision of Article 212 of the Constitution shall be honoured."
(v) Order dated 25-3-2002 passed in C.P. No.426 of 2003 Federation of Pakistan v. Salimullah Khan.
"It is to be noted that so far no stay order has been passed in favour of the petitioner-Department rather while granting leave to appeal in the petition of the respondents it has been stated vide order, dated 10-3-2002 that till the disposal of the appeal, the impugned order/judgment of Service Tribunal to the extent of reinstatement of the respondent Salimullah Khan in service shall remain in force. Therefore for such reason it was the obligation of the department to have reinstated him into service.
Therefore, instead of granting leave to appeal, we adjourn this case with the direction to the department to implement the order of the Service Tribunal as early as could be possible, thereafter instant petition will be enlisted for, hearing along with the appeal arising out of Civil Petition No.385 of 2003.
(vi) PLJ 2004 Tr.C. (Service) 183 Zahooruddin Sheikh v. Pakistan Atomic Energy Commission.
"----if judgment (passed by the Federal Service Tribunal) was not implemented and leave to appeal was either not filed or declined, there is no escape route for the department but to implement the judgment in letter and spirit.
Implementation---Jurisdiction of-Where a law confers jurisdiction, it also grants powers of doing all such acts as are of legitimate and are necessary for its execution---Thus Tribunal has powers to execute its own judgments as power flows from the jurisdiction itself."
The judgment is rendered by the two-member Bench of this Tribunal including the Chairman,
(vii) The learned counsel has further referred to 1989 PLC (C.S.) 398, another judgment of this Tribunal titled Ahmad Nawaz Khan v. Senior Accounts Officer (Admn.) Pakistan Railways.
"---Execution/implementation of Service Tribunal's order---Service Tribunal is empowered to order implementation of its orders---Service Tribunal deemed to be a Civil Court for purpose of deciding an appeal having same powers are vested in such Court under provisions of Civil Procedure Code, 1908."
(viii) 1999 PLC (C.S.) 443 Masood Ahmed Changwani v. Secretary, Establishment Division and others.
Decided by a four Member Bench of this Tribunal headed by Chairman.
"---While granting leave to appeal, operation of judgment of Tribunal having not been suspended by Supreme Court, mere leave to appeal could not defeat implementation process of order passed by Service Tribunal."
(ix) Abdul Razzaq, v. Senior Member, Board of Revenue, Punjab, Lahore 2006 T.D. (Service) 63(1).
"----Service Tribunal noting obduracy of the department and sending copy of its judgment to Chief Secretary for appropriate disciplinary action against official responsible for such contumacy and obduracy."
(x) Messers Yousuf Sons and another v. Muhammad Khalid and others PLD 2005 Karachi 316.
"----S.151---Inherent powers of Court---Scope---Court, to seek implementation of its order, to meet the ends of justice and to ensure the supremacy of law, can ' follow any course, which is not prohibited by law, and for that purpose inherent powers of the court conferred by S.151 C.P.C. could be exercised by it."
Last but not the least it is contended by the learned counsel for the petitioner that the respondents had challenged the judgment passed by this Tribunal before the Honourable Supreme Court and the C.P.S.L.A. filed in this behalf has since been declined by the Honourable Supreme Court. It is submitted that the judgment of this Tribunal shall thus be deemed to have merged in the Supreme Court's judgment and that in any event assuming without conceding that the Tribunal did not have any independent power to implement its judgment yet in view of the above, the Tribunal would be duty bound to act in aid of the Supreme Court under Article 190 of the Constitution of Islamic Republic of Pakistan.
7. In support of the contention that a miscellaneous petition for implementation is competent and that the Tribunal does not become functus officio after rendering the final judgment on merits, the `learned counsel for the petitioner has placed on the record copy of C.P. No. 845 of 2007 along with a copy of the order passed thereupon by the Honourable Supreme. Court of Pakistan.
8. The learned counsel for the respondents has vehemently argued that the Honourable Supreme Court has vide order dated 3-11-2006 dismissed the petition filed by the petitioner in that case and directed him to approach the Departmental Authorities for implementation of its orders. It is further stressed that this Tribunal had, in the light of the said judgment, dismissed all M.Ps. for implementation that were pending at all the Benches of this Tribunal. It was further argued that the Tribunal had no jurisdiction to entertain any MP after decision of appeal on merits as the Tribunal becomes functus officio. The order of the Honourable Supreme Court, dated 3-11-2006 and that of this Tribunal, dated 22-11-2006 are reproduced as under:---
Order dated 3-11-2006 of the Honourable Supreme Court:
"This petition has been directed against the order, dated 18-7-2006 passed by the Service Tribunal arising out of a miscellaneous application which was filed after disposal of the main appeal, containing the grievance that judgment of Tribunal was not implemented in letter and spirit. Learned counsel for the petitioner when confronted that how the miscellaneous application was competent before the Tribunal, he has not been able to satisfy us that after disposal of the main appeal, the miscellaneous application would be maintainable before the Tribunal. We therefore, without going into the question regarding the validity or otherwise of the order passed by the Tribunal, dismiss this petition with the observation that the petitioner may, if so advised, approach the departmental authorities in the matter. Dismissed."
Order dated 22-11-2006 of the Federal Service Tribunal:
"Photocopy of apex Court's order dated 3-11-2006 in C.P. No.832 of 2006 titled `Muhammad Ashraf-Petitioner v. WAPDA through its Chairman, WAPDA House, Lahore, makes the following reading:---
"This petition has been directed against the order, dated18-7-2006 passed by the Service Tribunal arising out of a miscellaneous application which was filed after disposal of the main appeal, containing the grievance that judgment of Tribunal was not implemented in letter and spirit. Learned counsel for the petitioner when confronted that how the miscellaneous application was competent before the Tribunal, he has not been able to satisfy us that after disposal of the main appeal, the miscellaneous application would be maintainable before the Tribunal. We therefore, without going into the question regarding the validity or otherwise of the order passed by the Tribunal, dismiss this petition with the observation that the petitioner may, if so advised, approach the departmental authorities in the matter. Dismissed."
In view of the above observations by the apex Court on 3-11-2006, far be it from us to ignore the dicta above-quoted and the result is that M: P. No.450-A of 2004 in Appeal No.207(L)(C.S.) of 2003, seeking implementation of FST order dated 26-4-2004, is dismissed and the petitioner informed of his remedy in fine with the apex Court's observations in the last two sentences of the judgment/order dated 3-11-2006 i.e. 'an approach by the Appellant/Petitioner to the departmental authorities in the matter'
Office here is directed to send a copy each to the Registrar at the Principal Seat as `also A.R. at Karachi Seat for following apex Court's judgment dated 3-11-2006 in C.P. No.832 of 2006 in relation to all the M.Ps. pending in the Tribunal at the three centres namely Islamabad, Karachi and Lahore for implementation of the judgments/orders of Federal Service Tribunal, before the departmental authorities in the matter and not by any Bench of the Federal Service Tribunal at any one of the seats afore-referred.
M.P. No.450-A of 2004 stands disposed of as above, with no order as costs.
Parties may be informed accordingly."
9. It is further contended that the respondents are contemplating to seek review of the judgment dated 4-12-2007 passed by Honourable Supreme Court and contends that for these reasons implementation may be pended till the review petition is filed and injunctive order obtained. It has been further urged that leave has been granted by the Honourable Supreme Court in the case of Muhammad Yousuf v. Divisional Superintendent, Pakistan Railways 2002 SCMR 663 and that before a final judgment of the Honourable Supreme Court the order upon the question of implementation by this Tribunal may he kept in abeyance. Further reliance is placed upon the decision dated 24-1-2007 passed by this Tribunal in M.P. No.1714 of 2006 in Appeal No.1166(R) of 1998. It is contended that the said Misc. petition for implementation was adjourned sine die on account of leave grant order passed in 2002 SCMR 663 (supra).
10. We have heard the learned counsel for the parties and examined the law on the subject.
11. It requires no reiteration that the Service Tribunal both at the Federal as well as Provincial level have been established by the appropriate legislature under Article 212(1) of the Constitution of Islamic Republic of Pakistan 1973 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. The Service Tribunals are therefore, vested with vast powers to grant full redress and to do complete justice to an aggrieved party. The necessary corollary of this exclusive jurisdiction is the fact that the jurisdiction of all other Courts or Tribunals is expressly ousted in respect of any matter to which the jurisdiction of the Administrative Court of Tribunal extends. Under Article 212(3) an appeal against the judgment, decree, order or sentence of an Administrative Court or Tribunal lies only to the Supreme Court and this is further hedged by the consideration that the same shall lie before the Supreme Court only if case involves a substantive question of law of public importance.
12. In order to give effect to the mandate as enshrined in Article 212 of the Constitution, Civil Servants Act 1973 and the Service Tribunals Act, 1973 were promulgated by the appropriate legislatures for the constitution and functioning of the Federal as well as the Provincial Tribunals respectively.
The powers of the Tribunals are enunciated in section 5 of the Service Tribunals Act, 1973.
"5 Powers of Tribunals.--- (i) A Tribunal may, on appeal confirm, set aside, vary or modify the order appealed against.
(ii) A 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 (V of 1908) including the powers of:--
(a) Enforcing the attendance of any person and examining him on oath.
(b) Compelling the production of documents; and
(c) Issuing commission for the examination of witnesses and documents.
13. A perusal of this provision would make it manifest that the Tribunals have not only been invested with vast and overwhelming powers in deciding an appeal before it, it has also been conferred with the powers of a Civil Court as vest in such Court under the Code of Civil Procedure, 1908. There is nothing in the said section to limit or curtail the powers of the Tribunal to any extent whatsoever. The intention of the Legislature is explicit. The exclusive jurisdiction would necessarily entail the inherent power of doing complete justice from the commencing of the lis before the Tribunal upto its logical conclusion i.e. the practical implementation/ execution of its judgment having the full backing of powers of execution as are vested in a Civil Court. Any other interpretation of the powers of the Tribunal which would have a diminishing effect would be contrary to the intendment of exclusivity of jurisdiction of the Tribunals as envisaged by the Constitution.
Section 5(2) provides that a Tribunal shall be deemed to be a Civil Court. It shall have the same power under the Code…
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