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Petitioner: MUHAMMAD KHUSRO VS Respondent: INSPECTOR GENERAL OF POLICE, ISLAMABAD
1989 P L C (C
1989 P L C (C.S.) 144
[Federal Service Tribunal]
Present: Syed Ally Madad Shah, Chairman, Salahuddin Chaudhri
and Mishah Ullah Khan, Members
Appeal No.122(R) of 1985
MUHAMMAD KHUSRO
Versus
INSPECTOR‑GENERAL OF POLICE, ISLAMABAD
Appeal No.297(R) of 1985
S. TASLIM HUSSAIN
Versus
MEMBER (ADMINISTRATION), CENTRAL BOARD OF REVENUE, ISLAMABAD
Appeal No.302(R) of 1985
SALEEM AKHTAR BUTT
Versus
MILITARY ACCOUNTANT‑GENERAL, RAWALPINDI and another
Appeal No.81(R) of 1986
MUHAMMAD SADIQ KHOKHAR
Versus
ENGINEER‑IN‑CHIEF, JOINT STAFF HQ, E‑IN‑C BR. GHQ, RAWALPINDI and another
Appeal No 192 (R) of 1986
RAJA MUHAMMAD YAQOOB
Versus
SECRETARY, MINISTRY OF FINANCE, ISLAMABAD AND CENTRAL BOARD OF REVENUE, ISLAMABAD
Appeal No 298(P) of f 1986
S.NASIRUDDIN SAMI
Versus
MILITARY ACCOUNTANT‑GENERAL, RAWALPINDI and others
Appeal No .330(R) of 1986
M.Y.NASIR
Versus
CHIEF ENGINEER, GSC (NORTH), WAPDA, LAHORE and another
Appeal No 423(R) of 1986
SHAMSUL MAO
Versus
DIRECTOR‑GENERAL, POST OFFICES, ISLAMABAD and others
Appeal No 109(R) of 1987
MUHAMMAD ASHRAF
Versus
SECRETARY, MINISTRY OF HOUSING AND WORKS, ISLAMABAD and another
Appeal No.336(P) of 1987
MUHAMMAD JAHANGIR KHAN
Versus
ENGINEER‑IN‑CHIEF, E‑IN‑C BR, GHQ, RAWALPINDI and another
Appeal No 340(R) of 1987
MAQBOOL HUSSAIN
Versus
MANAGING‑DIRECTOR, PIAC, KARACHI
Appeal No 38 R of 1988
S.NIAZ MUHAMMAD
Versus
AUDITOR‑GENERAL OF PAKISTAN, LAHORE and another
Appeal No.49(R) of 1988
ISHTIAQ MUHAMMAD
Versus
COMMISSIONER OF INCOME‑TAX, GUJRANWALA
Appeals Nos. 122(R), 297(R) and 302(R) of 1985, 81(R), 192(R), 298(R), 3 36(R) and 423(R) of 1986, 109(R), 330(P) and 340(R) of 1987 and 38(R) and 49(R) of 1988.
Per Ally Madad Shah, Chairman, Misbah Ullah Khan, Member agreeing and (Salahuddin Choudhry, Member (contra)‑‑
(a) Service Tribunals Act (LXX of 1973)‑‑
‑‑‑S. 3(3) & 3(7) & 4‑‑Government Servants (Efficiency and Discipline) Rules, 1973, R. 4(a)‑‑Appeal‑‑Jurisdiction‑‑Appeal filed against order of a departmental authority imposing minor penalty envisaged in cl. (a), R 4 of Government Servants (Efficiency and Discipline) Rules 1973‑‑Two forums for appeals against orders of c1epartnianta? authorities imposing departmental punishments or penalties on civil, servants‑‑In case of major penalties Appeal would lie to a Tribunal referred to in S. 3(3) of Act and in any other case which impliedly included orders imposing minor penalty to a Tribunal referred to in subsection (7) of S. 3 of the Act‑‑to absence of a Tribunal referred to in subsection (7) of S, 3 of Service Tribunals Act, there would be no appellate forum in cases of minor penalties imposed by departmental authorities but that vacuum would not confer appellate jurisdiction on a Tribunal referred to in subsection (3) of S. 3 of the Act which was meant for appeals in case of major penalties‑ Appeals against orders of minor penalties, hell, would not lie to Service Tribunal.
P L D 1967 Dacca 216; P L D 1903 S C 382; P L D 1083 S i.' it>"?; 198'2 S C M R 583; P L D 1981 Ouetta 58; 1986 S C M R 18 and Mian Amanul Mulh v. N.‑W.F.P. P L D 1981 Posh. 1 ref.
(b) Interpretation of statutes‑‑
‑‑‑Where two meanings could be attributed to a provision in law, one advancing remedy would have to be preferred.
(c) Interpretation of statutes‑‑
‑‑‑ Provision could not be read in isolation‑‑Entire law is to be read as one instrument.
Appellant in person (in Appeal No.122(R) of 1985).
Muhammad Amir Akbar Khan for Respondents (in Appeal No.122(R) of 1985).
Fazal Elahi Siddiqi for Appellant (in Appeal No.297(R) of 1985).
Muhammad Amir Akbar Khan alongwith Ashiq Hussain, Second Secretary for Respondents (in Appeal No.297(R) of 1985).
M.S. Siddiqi for Appellant (in Appeal No.302(R) of 1985).
Muhammad Amir Akhar Khan alongwith M/s.Qamar Ali and Hafiz Tariq Parver for Respondents (in Appeal No.302(R) of 1985):
Appellant in person (in Appeal No.81(R) of 1980).
Muhammad Amir Akbar Khan alongwith Muhammad Sadiq Mughal for Respondents (in Appeal No.81(R) of 1980).
Appellant in person (in Appeal No.192(R) of 1980).
Muhammad Amir Akbar Khan alongwith Muhammad Bashir Chaudhry, Second Secretary for Respondents (in Appeal No.192(R) of 1986).
Muhammad Bashir Kiani for Appellant (in Appeal No.298 (P) of 1980).
Muhammad Amir Akbar Khan for Respondents (in Appeal No. 298(P) of 1986).
Mian Mahmood Hussain for Appellant (in Appeal No.336,(R) of 1986).
Muhammad Amir Akbar Khan alongwith Muhammad Ataullah for Respondents (in Appeal No.330(R) of 1986).
Appellant in person (in Appeal No. 423(R) of 1980).
Muhammad Amir Akbar Khan for Respondents (in Appeal No. 423(R) of 1986).
Appellant in person (in Appeal No.109(R) of 1987).
Muhammad Amir Akbar Khan for respondents (in Appeal No.109(R) of 1987).
M.S. Siddiqi for Appellant (in Appeal No.330(P) of 1987).
Muhammad Amir Akbar Khan alongwith M/s.Rashid Ahmad, Muhammad Umer and Muhammad Akbar Khan for Respondents (in Appeal No.336(P) of 1987).
Appellant in person (in Appeal No.340(R) of 1987).
Appellant in person (in Appeal No.38(R) of 1988).
Appellant in person (in Appeal No.49(R) of 1988).
Date of hearing: 4th May, 1988.
JUDGMENT
SYED ALLY MADAD SHAH (CHAIRMAN).‑‑Ail these appeals are directed against different orders of minor penalty imposed on the appellants herein under the provisions of Government Servants (Efficiency and Discipline; Rules, 1973. Seemingly, they involve the question of jurisdiction of the Tribunal magnified hereinbelow.
2. Arguments have been heard on the question of jurisdiction only. It is, therefore, not necessary to enumerate facts of each case as only the question of jurisdiction of the Tribunal is proposed to be decided by this judgment.
3. Under the Government Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred to as the E&D Rules) the penalties envisaged thereunder are classified under Rule 4 thereof. They are as follows: ‑
(a) Minor penalties:
(i) Censure;
(ii) withholding, for a specific period, promotion or increment, other than for unfitness for promotion or financial advancement in accordance with the rules or orders pertaining to the service or post;
(iii) stoppage, for a specific period, at an efficiency bar in the time‑scale, otherwise than for unfitness to cross such bar;
(iv) recovery from pay of the whole or any part of any pecuniary loss caused to Government by negligence or breach of orders;
(b) Major penalties:
(i) reduction to a lower post or time‑scale, or to a lower stage in a time scale;
(ii) compulsory retirement;
(iii) removal from service; and
(iv) dismissal from service.
The Service Tribunal stands established under the Service Tribunals Act, 1973. The Act stands spread over ten Sections. Section 1 thereof relates to the title of the Act, its commencement and application. Section 2 contains definitions of the terms 'civil servant' and 'Tribunal'. Section 3 provides for the establishment of the Tribunals. Section 3‑A was added by Ordinance No. IX of 1978, promulgated on 18‑3‑1978, and it provides for the constitution of Benches of the Tribunal and their jurisdiction. Section 4 provides for appeals to the Tribunal. Section 5 enumerates powers of the Tribunal. Section 6 relates to abatement of suits and other proceedings. Section 7 caters for the applicability of Sections 5 and 12 of the Limitation Act. Section 8 provides for the making of the Rules for carrying out the purposes of the Act. Section 9 repeals the Service Tribunals Ordinance, 1973.
4. Sections 3, 4 and 5 of the Service Tribunals Act, 1973 (hereinafter mentioned as the Act), are relevant for determination of the question of jurisdiction of the Tribunal in the appeals against the orders of minor penalties imposed under the E & D Rules. They are reproduced for the sake of better appreciation of their interpretation and applicability.
"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, or the class or classes of cases in respect of 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 is, or has been, qualified to be Judge of a High Court; and
(b) such number of members not less than three, each of whom is a person who possesses such qualifications as may be prescribed by rules, as the President may from time to time appoint.
(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 person in the service of Pakistan to be appointed by the President.
3‑A. Benches of the Tribunal.‑(1) The powers and functions of the Tribunal may be exercised or performed by Benches consisting of not less than two members of the Tribunal including the Chairman, constituted by the Chairman.
(2) If the members of a Bench differ in opinion as to the decision to be given on any point;
(a) the point shall be decided according to the opinion of the majority;
(b) if the members are equally divided and the Chairman of the Tribunal is not himself a member of the bench, the case shall be referred to the Chairman and the decision of the Tribunal shall be expressed in terms of the opinion of the Chairman, and
(c) if the members are equally divided and the Chairman of the Tribunal is himself a member of the bench, the opinion of the Chairman shall prevail and the decision of the Tribunal shall be expressed in terms of the opinion of the Chairman.
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 ‑
(a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Ordinance, 1973, or any rule 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 grade;
(c) no appeal shall lie to a Tribunal against an order decision of a departmental authority made at anytime 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, a 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 5. Powers of Tribunals.‑(1) A Tribunal may, on appeal, confirm, set aside, vary or modify the order appealed against.
(2) 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 (Act 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."
The provisions for jurisdiction of the Tribunal against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil Servant are expressly contained in subsection (2) of section 4, reproduced above, it provides that appeal 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 shall he preferred to a Tribunal referred to in subsection (3) of Section 3; and in any other case to a Tribunal referred to in subsection (7) of that section. Reading this provision alongwith Rule 4 of the E & D Rules enumerating the penalties reproduced above, it would appear that the penalties mentioned in clause (a) of subsection (2) of Section 4 of the Act are classified as major penalties and there is no mention of the minor penalties and it is understood that they fall in the category of (in "any other case") provided for in clause (b) of subsection (2) of Section 4 of the Act. There is no difference of opinion from any side upto this extent.
5. The crucial question that arises is: ‑ what is the appellate forum against an order or a decision of a departmental authority imposing one or more minor penalties envisaged in clause (a) of Rule 4 of the E & D Rules. The learned Counsel for the appellants, except Mian Mahmood Hussain, Advocate, presenting the appellant in Appeal No.330(R)/1986, have made reference to lie provisions of Sections 3, 4 and 5 of the Act and urged, in one form or the ether, that the Service Tribunals Act, 1973 stands enacted under the provisions of article 212 of the Constitution, which provides for establishment of one or more 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, and section 3 of the Act caters for the establishment of such a Tribunal or Tribunals. They have made pertinent reference to subsection (2) of section 3 of the Act and laid emphasis on its provisions that the Tribunal established under the Act does have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters, without any restriction or limitation. They have further urged that although relief of appeal against an order or decision of a departmental authority imposing a minor punishment or penalty stands desecrated in providing appellate forum for, yet the appeal would lie to the Tribunal referred to in subsection (3) of Section 3 of the Act, for the reason that it is the only Tribunal established under Section 3 of the Act, having, under subsection (2) thereof, exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters, and particularly in the circumstances that no other Tribunal envisaged under subsection (7) of Section 3 of the Act has been established to provide forum for appeals in the matters referred to in clause (b) of subsection (2) of Section 4 of the Act. Mr. M. S. Siddiqi, Advocate, appearing in Appeals No.302(R)/1985 and 336(P)/1987, has made reference to Article 177 of the Treatise on Statute Law by Crawford (1940 edition) and made reference to the views of the Author on the effect of Statute (at pages 286 to 290) on the Principles of Interpretation of Statutes that the interpretation should be such that it provides justice and does not defeat it; the Statute is made effective and its consequences should not be destructive of the intent of the legislature lie has made reference to several authorities listed below:
(1)PLD1967Dacca216;(2)PLD1963SC382;(3)PLD1983SC 100 and (4) 1982 S C M R 583.
Mr.Pazal Elahi Siddidi, Advocate, appearing in Appeal No.297(R)/1985, has also made reference to the notification of the establishment of the Tribunal under Section 3 of the Act dated 22‑2‑1974 and advanced the argument that this is the only Tribunal which has jurisdiction for all the purposes envisaged under the Act, including appeals against orders/decisions of minor penalties. According to him, provisions of subsection (7) of Section 3 of the Act would apply only when more than one Tribunals are established. He has relied upon a case reported in P L D 1980 Quetta 58. Of course, Mian Mahmood Hussain, Advocate, representing the appellant in Appeal No.336(R)/1986, has opined otherwise that the appeal against the order of minor penalty lies only to the Tribunal envisaged under subsection (7) of Section 3 of the Act and not to the Tribunal established under subsection (3) of section 3 of the Act.
6. The learned counsel for the respondents has argued in favour of the jurisdiction of the Tribunal in the cases of appeals against minor penalties. He has referred to the exclusive jurisdiction of Tribunal under Article 212 of the Constitution. He has submitted that no other Tribunal has been established to provide forum for the appeals against the minor penalties, and therefore, this Tribunal is the only Tribunal having jurisdiction even in the cases of minor penalties. He has argued that the principles of interpretation of Statutes enjoin that the conflicting provisions of Statute may be reconciled in interpreting them. He has referred to a case reported in 1986 S C M R 18.
7. Subsection (2) of Section 4 of the Act provides, without any ambiguity, two forums for appeals against orders or decisions of departmental authorities imposing departmental punishments or penalties on civil servants. It lays down that in the case of major penalties, appeals shall lie to a Tribunal referred to in subsection (3) of Section 3 of the Act, and in any other case, which impliedly A includes the orders or decisions imposing minor penalty, to a Tribunal referred to in subsection (7) of Section 3 of the Act. There are no two opinions on this proposition. It has, however, been argued that since no Tribunal envisaged in subsection (7) of Section 3 of the Act has been established, this Tribunal, being the only Tribunal, established under Section 3 of the Act, having exclusive jurisdiction in respect of matters relating to the terms and conditions of service of the civil servants, including disciplinary matters, does constitute appellate forum also in the cases of minor penalties covered by clause (b) of subsection (2) of Section 4 of the Act. This Tribunal was established under Notification No. SR0.243 (I)/74, dated 22nd February, 1974. It reads as under:
"In exercise of the powers conferred by Section 3 of the Service Tribunals Act, 1973 (LXX of 1973), the President is pleased to establish a Service Tribunal consisting of the following Chairman and Members, namely ‑
(a) Mr. Shah Nawaz Khan, presently Joint Secretary, Law Division, Islamabad. ‑‑ Chairman.
(b) Mr. G.D. Memon, presently, Chairman, Sind and Baluchistan Public Service Commission, Karachi.‑‑Members.
(c) Mr. S. Barkat Ahmad, presently Officer on Special Duty, Food and Agriculture Division, Islamabad. ‑‑Member.
Sd/‑ VAQAR AHMAD,
SECRETARY"
It appears from the composition of the Tribunal that it consists of a Chairman and Members referred to in subsection (3) of section 3 of the Act, and is not the Tribunal envisaged under subsection (7) of section 3 of the Act. section 3 of the Act is the only enabling provision for establishing one or more Service Tribunals and, therefore, reference in the aforesaid notification of establishment of the Service Tribunal dated 22‑2‑1974 only to section 3 does not necessarily make it a Tribunal contemplated under subsection (7) of Section 3 of the Act. Jurisdiction of the Tribunal is outlined in Section 4 of the Act, reproduced above. Under subsection (1) thereof, the Tribunal has been conferred exclusive jurisdiction in respect of a final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of service of a civil servant, with two exceptions contained in clauses (b) and (c) of the proviso to subsection (1) that no appeal shall lie to the Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to, or to hold a particular post or to be promoted to a higher grade, and also against an order or decision of the departmental authority made at any time before the 1st July, 1969. In the cases of disciplinary matters, the Tribunal exercising jurisdiction under subsection (1) of Section 4 of the Act has appellate jurisdiction also in the cases of penalties of dismissal from service removal from service, compulsory retirement or reduction to a lower post or time scale or to a lower stage in the time scale which are major penalties, as aforesaid, and the jurisdiction in any other case in disciplinary matters stands conferred on a Tribunal referred to in subsection (7) of section 3 of the Act. If the intention of the legislature had been to confer jurisdiction in matters of minor penalties on a Tribunal other than that referred to in subsection (7) of section 3, m the absence of such Tribunal as convassed by the learned counsel for the appellants, such intention could have found reflection in one form or the other. Of course, in the absence of a Tribunal referred to in subsection (7) of section 3 of the Act, there is no appellate forum in the cases of minor penalties imposed by the departmental authorities, but that vacuum does not confer appellate jurisdiction on a Tribunal referred to in subsection (3) of section 3 of the Act. Bifurcation of the appellate jurisdiction in the disciplinary matters, as provided under subsection (2) of l section 4 of the Act, one conferred on the Tribunal referred to in subsection (3) of section 3 of the Act and another on the Tribunal referred to in subsection (7) of the same section 3, seems to have a purpose behind it, as the orders/decisions of departmental authorities imposing departmental punishments of grave nature have been made appealable to a Tribunal headed by a person who is or has been or is qualified to be a Judge of a High Court and such number of Members possessing such qualifications as may be prescribed by the President; whereas appellate jurisdiction in cases of minor penalties has been conferred on another Tribunal consisting of one or more persons in the service of Pakistan, as may be appointed by the President. In the absence of the appellate forum in the cases referred to in clause (b) of subsection (2) of Section 4 of the Act, the civil servants seeking relief in such cases may seek relief from the competent Courts established under general law of the land as exclusion of jurisdiction of those forums under Article 212 of the Constitution is only to the extent of the jurisdiction conferred on a Tribunal. It may be mentioned that initially the law for establishing Service Tribunals was promulgated in the form of "The Service Tribunals Ordinance, 1973" (hereinafter mentioned as the Ordinance), which was repealed on the enactment of the Act. It would appear from bare reading of clause (b) of proviso to Section 4 of the Ordinance that no appeal lay against a departmental punishment/penalty except that of dismissal from service, removal from service or compulsory retirement. Herein is indicated the intention of the legislature that initially no appellate forum was provided for challenging an order/decision of the departmental authorities imposing minor penalties but an appellate forum of the Tribunal other than the Tribunal conferred jurisdiction in respect of the terms and conditions of service of a civil servant has been provided under the Act and since that forum has not been established, relief of appeal in such cases stands withheld and jurisdiction is not conferred on this Tribunal by any process of interpretation of Statutes.
8. Reference may now be made to the case law cited by the learned counsel for the appellants. One of the…
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