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Petitioner: Syed Agha ZIA-UL-USMAN ALI SHAH VS Respondent: BOARD OF TRUSTEE OF KARACHI PORT TRUST through ChairmanHonorable Justice Munib Ahmed Khan, Sajjad Ali Shah and Khalid Ali Z. QaziKhalid Javed Khan
2010 P L C (C
2010 P L C (C.S.) 158
[Karachi High Court]
Before Munib Ahmed Khan, Sajjad Ali Shah and Khalid Ali Z. Qazi, J
Syed Agha ZIA-UL-USMAN ALI SHAH and 55 others
Versus
BOARD OF TRUSTEE OF KARACHI PORT TRUST through Chairman and another
Constitutional Petitions Nos.D-753, 1332, 1412, 1605, 1673, 1686, 1709, 1743, 1747, 1759, 1767, 1800, 1852, 1894, 1895, 1896, 1897, 1930, 1946, 1948, 1956, 1957, 1971, 2014, 2073, 2118, 2123, 2141, 2152, 2333, 2411 of 2006, D-95, 274, 332, 339, 340, 405, 473, 498, 636, 537, 539, 563, 574, 606, 617, 618, 619, 709, 740, 754, 813, 815, 824, 865, 1086, 1320, 1331, 1505, 1772, 1817, 1905, 1926, 1943, 2012, 2013, 2145, 2307, 2464, 2564 of 2007 and D-259 of 2008, decided on 30th March, 2009.
Civil Servants Act (LXXI of 1973)---
----S. 2(1)(b)---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional petition---Appeal, abatement of---Question to be determined in the case was, whether abatement of appeals/proceedings had been automatic (without any formal orders) or whether a judicial order was needed by Service Tribunal---Supreme Court, in its judgment PLD 2006 SC 602, had held that cases of the employees under S.2-A of Service Tribunals Act, 1973, which did not fall within the definition of "civil servant" as defined in S.2(1)(b) of Civil Servants Act, 1973, would have no remedy before the Service Tribunal, functioning under Art.212 of the Constitution and they would be free to avail appropriate remedy---After the judgment of the Supreme Court certain appeals were abated before the Service Tribunal and in some of those appeals the Registrar of the Tribunal made stereotype order which was challenged before the Supreme Court---Supreme Court in judgment 2008 SCMR 402 had held that separate order was required to be passed in every case by the Service Tribunal after providing opportunity to the parties---Following said order of the Supreme Court, Service Tribunal had started passing judicial order with the signature of Presiding Officer of the Tribunal---Thirty days' time was given to the petitioners to approach the Service Tribunal for making an application for judicial order on their appeals---Cases which were not subject-matter of the question to be determined, should be placed before the relevant Benches.
2007 PLC (C.S.) 1046; 2008 SCMR 402; 2007 PLC (C.S.) 1046; PLD 2006 SC 602 and 2009 PLC (C.S.) 497 ref.
Khalid Javed Khan, Farogh Naseem, Asim Iqbal, Moin Azhar Siddiqui, Manzoor Ahmed, Rana Ikramullah, Qazi Abdul Harmed, Khalid Javed, M.M. Tariq, Khalid Javed Imran, Latif Saghar, R.F. Virjee, Jaffer Hussain, Niaz Ahmed, Masood Mukhtar Naqvi, Latifur Rehman Serwary, Muhammad Yaqoob, Shakeel Ahmed, Mansoorul Haq Solangi, Sohail Zafar Bhatti, Syed Toqeer Hassan, Islam Hussain, Muhammad Tasleem, Muhammad Asif Khan, Khilji Bilal, Muhammad Azam Khan, Ghulam Qadir Jatoi, Muhammad Junaid Farooqui, Dilawar Husain, Ainuddin Khan, Advocates for Parties.
JUDGMENT
MUNIB AHMED KHAN, J.--- This Full Bench has been constituted to determine following questions:---
(i) Whether the employees/workers, proceeded against and punished under the Removal from Service (Special Powers) Ordinance, 2000 (as amended) can 'still invoke the jurisdiction of Federal Service Tribunal or in view of judgment of a Full Bench of this Honourable Court reported as 2007 PLC (C.S.) 1046, remedy, if any, is by way of Constitutional petitions of Civil Suits;
(ii) What is the effect of judgment of Honourable Supreme Court reported as 2008 SCMR 402 on petitions/proceedings pending since 2006/2007 having filed the same on the basis of judgments reported as PLD 2006 SC 602 and/or whether abatement of appeals/proceedings had been automatic without any formal orders or whether a judicial order still would be needed by the Tribunal."
Learned counsel appearing for the parties state that the question No.1 is already pending before Honourable Supreme Court in some petitions, therefore, this Court and the parties as well may wait for a decision in this respect. We have also seen a judgment of the Federal Service Tribunal reported as SBLR 2008 Tribunal 133 as well as an order passed by the Honourable Supreme Court in different Civil Appeals including Civil Appeal No.1555 of 2006. The SBLR case shows that the Tribunal has started taking jurisdiction in respect to matters touching question No.1. In the reported judgment, the Tribunal has specifically mentioned in para.19 of its judgment as follows:---
"19. The jurisdiction of this Tribunal shall however, continue to be available to a person aggrieved of an order under the Removal from Service (Special Powers) Ordinance, 2000 as provided under sections 10 and 11 ibid. The reason for this is not far to seek as the RSO, 2000 does not use the term "civil servant", but only refers to a person in Government Service or a person in corporation service and allows any such persons if aggrieved of an order under the said Ordinance, to approach this Tribunal in accordance with law."
The observation of the Honourable Supreme Court in this context in the relevant matter is as under:---
"Both the sides have admitted that after passing the impugned judgments, the Federal Service Tribunal, Islamabad had taken a somewhat different view by entertaining the service appeals, involving the departmental penalties imposed under the provisions of Removal from Service (Special Powers) Ordinance XVII of 2000.
In this view of the matter, these appeals are allowed. Impugned judgments passed by the Federal Service Tribunal, Islamabad are set aside. Consequently, the appeals before the Service Tribunal in these cases shall be deemed to be pending for a decision afresh, in accordance with law. No order as to costs."
Anyhow, keeping in view the statement of learned counsel that the Honourable Supreme Court is already considering the question No.1, therefore this question to be kept in waiting till the order by the Honourable Supreme Court in this respect.
Question No.2.
As far as question No.2 is concerned, it is in respect to the abatement of the appeals in terms of para.108(3) in the case reported as Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602 which is as follows:---
108. The threadbare discussion on the subject persuades us to hold:--
(1) .
(2) .
(3) The cases of the employees under section 2-A, STA, 1973, who do not fall within the definition of civil servant as defined in section 2(1)(b) of the CSA, shall have no remedy before the Service Tribunal, functioning under Article 212 of the Constitution and they would be free to avail appropriate remedy.
It has been observed that after the judgment of Mubeen-us-Salam's case, certain appeals were abated before the FST and in some of these appeals Registrar of the Tribunal communicated stereotype order which was challenged before the Honourable Supreme Court, hence a judgment reported as 2008 SCMR 402 was passed with the following observations:---
"We are not inclined to agree with the submission of learned counsel for the respondent because separate order is required to be passed in every case by the Service Tribunal after providing opportunity to the parties keeping in view the observations made by the Court in the judgment relied upon."
Following the above order of the Honourable Supreme Court, the Tribunal has started passing judicial order with the signature of Presiding Officer of the Tribunal.
The learned counsel submit that there are several appeals which are not maintainable before Service Tribunal keeping in view Mubeen- us-Salam's case but if the appeals are dismissed on the ground that judicial order from FST is required or other directions are issued then the appellants will suffer on account of limitation whereas this Court has held in 2009 PLC (C.S.) 497 that no separate order by the Tribunal is necessary and the directions in para.108(3) in Mubeen-us-Salam's case will be suffice.
Against the above High Court reported judgment 2009 PLC (C.S.) 497, Honourable Supreme Court has passed order in C.P.No.1467 of 2008, whereby the judgment of the High Court has been maintained.
Keeping in view the difficulties which are being pointed out as well as pendency of the petitions and above authorities, we are of the view that thirty days' time from today be given to the petitioners to approach the Tribunal for making an application for judicial order on their appeals. Order accordingly. The petitioners to file such order in their petitions after same is passed by FST while the petitions will be considered to be pending and will be taken up after the decision from the Tribunal is filed. It is also expected from the FST that the issue will be expedited and orders will be passed as early as possible.
Some counsel have pointed out that there are cases which are not affected by the above question and they have wrongly been fixed. It is ordered that cases which are not subject matter of the above question be placed before the relevant Benches as they were.
Both the referred questions are answered/decided as above.
H.B.T./Z-11/K Order accordingly.