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(Against the judgment, dated 3‑1‑1979 of the Service Tribunal Islamabad, in Appeal No. 115(L) of 1976).
(Against the judgment, dated 9‑8‑1983 of the Federal Service Tribunal in Appeal No. 710(L) of 1982).
(Against the judgment, dated 2‑4‑1978 of the Lahore High Court, Lahore in W.P. No. 1639/S of 1977).
(Against the judgment, dated 21‑2‑1983 of the Federal Service Tribunal in Appeal No. 105(R) of 1982).
(Against the judgment, dated 21‑2‑1983 of the Federal Service Tribunal in Appeal No. 112/R of 1982).
(Against the judgment, dated 21‑2‑1983 of the Federal Service Tribunal in 105(R) of 1982).
(Against the judgment, dated 21‑2‑1983 of the Federal Service Tribunal in Appeal No. 104(R) of 1982).
(Against the judgment, dated 19‑4‑1983 of the Federal Service Tribunal, Camp Lahore).
(Against the judgment, dated 21‑2‑1983 of the Service Tribunal).
(Against the judgment, dated 30‑1‑1984 of the Federal Service Tribunal, Islamabad).
(Against the judgment, dated 25‑4‑1982 of the Federal Service Tribunal in Appeal No. 9(L) of 1978).
(Against the judgment, dated 5‑4‑1984 of the Federal Service Tribunal).
(Against the judgment and order, dated 9‑6‑1984 of the Federal Service Tribunal).
(Against the judgment and order, dated 9‑6‑1984 of the Federal Service Tribunal).
(Against the judgment and order, dated 9‑6‑1984 of the Federal Service Tribunal).
(Against the judgment and order, dated 27‑12‑1984 of the Federal Service Tribunal).
(Against the judgment and order, dated 27‑12‑1984 of the Federal Service Tribunal).
(Against the judgment and order, dated 2‑10‑1984 of the Federal Service Tribunal, Islamabad, in Appeal No. 315(R) of 1984).
(Against the judgment and order, dated 17‑10‑1984 of Federal Service Tribunal in Appeal No. 669(L) of 1982).
‑‑‑S.17 (1‑ A) (1‑ B) (1‑C)‑‑Service Tribunals Act (LXX of 1973), Ss.4 & 6‑‑Service Tribunal alone, held, had jurisdiction to adjudicate with regard to terms and conditions of WAPDA employees as from 30‑9‑1975‑ Jurisdiction of all other Courts, Tribunals, Commissions was affected by S.17 (1‑C) but not that of Service Tribunal itself‑‑Constitution of Pakistan (1973), Arts. 212 & 260.‑‑[Jurisdiction].
Maxwell on Interpretation of Statutes, 11th Edn., p. 169 ref.
Imtiaz Muhammad Khan, Advocate‑on‑Record for Appellants.
Zainul Abidin, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate‑on‑Record (absent) for Respondent.
Iftikhar Ahmad, Advocate Supreme Court, Maulvi Sirajul Haq, Senior Advocate Supreme Court and M.A. Qureshi, Advocate‑on‑Record (absent) for Appellant.
S.M. Zafar, Senior Advocate Supreme Court and Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Respondent.
S.M. Zafar, Senior Advocate Supreme Court and Gulzar Hasan, Advocate‑on‑Record (absent) for Appellant.
Hamid Aslam Qureshi, Advocate‑on‑Record (absent) for Respondent.
Iftikhar Ahmad, Advocate Supreme Court, Maulvi Sirajul Haq, Advocate Supreme Court and M.A. Siddiqui, Advocate‑on‑Record for Appellants.
S.M. Zafar, Senior Advocate Supreme Court for Respondents (in Civil Appeal No. 170 of 1983).
Respondent in person (in Civil Appeal No. 171 of 1983).
S.M. Zafar, Senior Advocate Supreme Court for Appellants.
Maulvi Sirajul Haq Senior Advocate Supreme Court; Iftikhar Ahmad, Advocate Supreme Court and M.A. Siddiqui, Advocate‑on‑Record for Respondents.
Appellants in Person.
Maulvi Sirajul Haq, Advocate Supreme Court; Iftikhar Ahmad, Advocate Supreme Court and M.A. Siddiqui, Advocate‑on‑Record for Respondents.
Syed Iftikhar Ahmad, Senior Advocate Supreme Court and Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Appellant.
Bashir Ahmad, Advocate Supreme Court and M.A. Qureshi, Advocate‑on‑Record (absent) for Respondent.
Iftikhar Ahmad and Maulvi Sirajul Haq, Advocates Supreme Court and M.A. Siddiqui, Advocate‑on‑Record for Appellant.
Attiqur Rehman Qazi, Advocate Supreme Court and K.E. Bhatti, Advocate‑on‑Record for Respondent.
Asif Hussain Siddiqui, Advocate Supreme Court and Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Appellant.
J.D. Akbarji, Advocate‑on‑Record (absent) for Respondents.
Iftikhar Ahmad, Advocate Supreme Court and Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Appellant.
Nawab Saeedullah Khan, Advocate Supreme Court and M.A. Qureshi, Advocate‑on‑Record (absent) for Respondents.
Asif Hussain Siddiqui, Advocate Supreme Court and Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Appellant.
Yakub K. Eusufzai, Advocate‑on‑Record and M.S. Siddiqui, Advocate‑on‑Record (absent) for Respondents.
Iftikhar Ahmad and Maulvi Sirajul Haq, Advocates Supreme Court and M.A. Siddiqui, Advocate‑on‑Record for Appellant.
Abid Hassan Minto, Advocate Supreme Court for Respondent.
Iftikhar Ahmad and Maulvi Sirajul Haq, Advocates Supreme Court and M.A. Siddiqui, Advocate‑on‑Record for Appellants.
Abid Hassan Minto, Advocate Supreme Court for Respondent.
Iftikhar Ahmad and Maulvi Sirajul Haq, Advocates Supreme Court and M.A. Siddiqui, Advocate‑on‑Record for Petitioner.
K.E. Bhatti, Advocate‑on‑Record for Respondents.
Iftikhar Ahmad and Muhammad Sadiq Abbasi, Advocates Supreme Court and Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioner.
Nemo for Respondent.
Syed Iftikhar Ahmad, Advocate Supreme Court instructed by Mian Attaur Rehman, Advocate‑on‑Record (absent) for Petitioner.
Nemo for Respondent.
Dates of hearing: 6th and 8th April, 1985.
A common question of law arising in a large number of appeals and a few petitions for leave to appeal, has come up for decision before this Court either under Article 212(3) or Article 185(3) of the Constitution.
The question of law requiring decision is whether the Federal Service Tribunal established under the Federal Service Tribunals Act, 1973 has the jurisdiction to entertain an appeal of an employee of WAPDA whose services are terminated in accordance with the provisions of subsection (1‑A) of section 17 of the WAPDA Act, 1958 (hereinafter referred to as the Act) despite the provision of subsection (1‑C) of the said section 17 which purports to oust its jurisdiction.
The Water and Power Development Authority (hereinafter referred to as the Authority) is a statutory body established under the Act. Its power to employ officers, experts and consultants is contained in Chapter IV, section 17 of the Act. As originally framed it was in the following words:‑‑
The Authority may from time to time employ such officers and servants, or appoint such experts or consultants, as it may consider necessary for the performance of its functions, on such terms and conditions as it may deem fit.
, in case of urgency, may appoint such officers and servants on such terms and conditions as may be necessary:
Provided that every appointment made under this subsection shall be reported to the authority without unreasonable delay."
An amendment in this section was introduced by West Pakistan Ordinance XIII of 1959 in the following words‑‑
In subsection (1) of section 17 of the principal Act for the full stop appearing at the end, a colon shall be substituted and the following provisos shall be added thereto, namely.‑‑
"Provided that all persons serving in connection with the affairs of the Province in the Electricity and Irrigation Department shall be liable to serve under the authority, if required to do so by the Government, on such terms and conditions as the Government may, in consultation with the Authority, determine but shall not be entitled to any deputation allowances:
Provided further that the Government may, in relation to any such person as aforesaid delegate such administrative, disciplinary and financial powers to the authority as the Government may deem fit:
Provided also that the terms and conditions of service of any such persons as aforesaid shall not be varied by the authority to his disadvantage."
Another amendment was made by Ordinance XV1 of 1975 enforced on 30th of September, 1975 (made into Act LXXXIV of 1975) whereby sections (1‑A) and (1‑B) were added and these are in the following words:‑
(1‑A). Notwithstanding anything contained in subsection (1) or any rules made, or orders or instructions issued, by the Authority, or in the terms and conditions of service of any person employed by, or serving under the Authority, the Authority may, at any time, remove from its service any person without assigning any reason, after giving him not less than thirty days' notice or pay for the period by which such notice falls short of thirty days.
(1‑B) Service under the authority is hereby declared to be service of Pakistan and every person holding a post under the Authority, not being a person who is on deputation to the Authority from any Province, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973 (LXX of 1973)."
By another amendment introduced by Ordinance LXXII of 1979 on 29th of December, 1979 following two explanations were added after subsection (1‑A) of section 17 of the Act which were to "be deemed always to have been so added".
‑For the purpose of this subsection, any person employed by, or serving under the Authority includes a person referred to in the provisos to subsection (1).
‑‑Any person referred to in the provisos to subsection (1) who is removed or retired from service by the authority under this subsection shall stand reverted to the Province to which he is allocated under the Province of West Pakistan (Dissolution) Order, 1970 (P.O. No.l of1979)."
By the same amending Act after subsection (1‑B) a new subsection (1‑C) was added in the following word.
"(1‑C).‑‑Any order of removal or termination of service passed by the, Authority, in exercise of the powers conferred by subsection (1‑A) , shall not be called in question in any proceedings taken under the Industrial Relations Ordinance, 1969 (XXIII of 1969), or the Essential Services (Maintenance) Act 1952 (LIII of 1952), or under any law for the time being for force, before any Court, Tribunal or Commission and any order passed by any Court, Tribunal or Commission after the thirtieth day of September, 1975, and before the coming into force of the West Pakistan Water and Power Development Authority (Amendment) Ordinance, 1979 setting aside or modifying or declaring any order of the authority to be void and of no effect shall stand vacated."
Another statute to be taken note in the context in President's Order No.24 of 1979 made by the President in exercise of powers conferred by clause (1) of Article 20 of the Province of West Pakistan (Dissolution) Order, 1970 providing as follows:‑‑
''2. Allocation of employees of Pakistan Water and Power Development Authority to Provinces.‑‑ All persons serving in connection with the affairs of the Government of West Pakistan to in the Electricity and Irrigation Department who are required to serve under the Pakistan Water and Power Development Authority under subsection (1) of section 17 of the Pakistan Water and Power Development Authority Act, 1958 (West Pakistan Act XXX if of 1958), are allocated to the Provinces of West Pakistan, or, if they were appointed by the Government of West Pakistan after the creation of that Province, to the Provinces of their permanent residence."
It was in this background of statutory provisions that a number of persons serving with the Authority were either removed or retired by invoking section 17(1‑A) of the Act whereupon they took the matter to the Federal Service Tribunal for adjudication and a question with regard to the competence of such appeals under subsection (1‑C) of section 17 was raised. The Tribunal held that the appeals were competent. The reasoning on which such a conclusion was reached appears from the following decisions of the Tribunal‑‑
"As for as the scope of section 17 (1‑C) is concerned, that clearly relates to Tribunals other than the Service Tribunal. That is the only way in which subsections (1‑B) and (1‑C) can be reconciled. In any case, while enacting subsection (1.‑B); the legislature by implication ousted the jurisdiction of all Courts and Tribunals including the High Court and conferred the jurisdiction on the Service Tribunal. It cannot be said that by inserting subsection (1‑C), it ousted the jurisdiction of the Service Tribunal as well in matters arising out of the orders under section 17(1‑A); for in that case neither the High court nor the Civil Court, nor any other forum including the Service Tribunal shall have jurisdiction to give remedy to an aggrieved employee. In any case, the jurisdiction of the High Court under Article 199 of the Constitution cannot be ousted by this crafty method.
For the foregoing reasons, we are clearly of the view that we have full jurisdiction to interfere in any order passed by the WAPDA under section 17(1‑A) or in any order that may be passed by it or any of its functionaries that affects the terms and conditions of its employees."
(
Civil Appeal No.173 of 1983 arising out of Appeal No.104(R) of 1982 before the Tribunal Mian Mahmood v. Chairman, WAPDA).
The employment under the authority did not, prior to the declaration under subsection (I‑B) of section 17 of the Act, qualify as service of Pakistan. The power to declare such service to be service of Pakistan was possessed by the Parliament as would appear from the definition of "service of Pakistan" in Article 260 of the Constitution which reads hereunder.‑‑
"Service of Pakistan" means any service, post of office in connection with the affairs of the Federation of a Province, and includes an All‑Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under‑ Act o Parliament or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney‑General, Advocate‑General, Parliamentary Secretary or Chairman or member of a law Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Advisor to the Prime Minister, Special Assistant to a Chief Minister, Adviser to a Chief Minister or member of a House or a Provincial Assembly." (Underlining is ours)
Article 212 of the Constitution Provides as hereunder‑‑
"212.‑‑(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‑‑
(a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters;
(b)
------------------------
(c) ------------------------
(2) 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 o an matter to which the jurisdiction such Administrative Court or Tribunal extends and all proceedings in respect o any such matter which, may be pending before such other Court immediately before the establishment the Administrative Court or Tribunal other than an appeal pending before the Supreme Court, shall abate on such establishment. (Underlining is ours).
(3) -----------------------------
Preamble to the Service Tribunals act declares as follows.‑‑
"Whereas, it is expedient to provide for the establishment of Administrative Tribunals, to be called Service Tribunals, to exercise exclusive juridical in respect of matters relating to the terms and conditions .of service of civil servants, and for matters connected therewith or ancillary there;
It is hereby enacted as follows:‑"
It is clear from these provisions that the employment in the Authority was declared to be service of Pakistan and remedy provided under Service Tribunals Act, 1973 was made available to such employees by deeming them to be civil servants under that Act. The two explanations subsequently added and "deemed always to have been so added" had the effect of bringing under purview of subsection (1‑A) even the Provincial Civil Servants serving the authority under provisos to subsection (1). All employees, except those on deputation, were without qualification or limitation, declared to be civil servants for the purposes of Service Tribunals Act. All the terms and conditions of their service, be it statutory or contractual, was made the subject‑matter of reference to Service Tribunal. Subsection (1‑A) of the Act, as will be shown contained overriding terms and conditions of employment and provisions thereof could like any other terms and conditions of service be brought before the Service Tribunal for adjudication. Article 212(2) of the Constitution ousting the jurisdiction of all other Courts came into play and so did section 6 of the Service Tribunals Act, abating "all suits, appeals or applications regarding any matter within the) jurisdiction of a Tribunal pending in any Court immediately before"
The question which has been the subject‑matter of elaborate arguments before us is whether subsection (1‑C) left any scope for assumption of jurisdiction even by the Service Tribunal or none at all. Mr. Iftikhar Ahmad, the learned counsel representing the authority contended that the ouster was total and complete and the remedy left was one of seeking redress in the constitutional jurisdiction of the High Court. Even an all pervasive statutory provision could not reach or over reach a constitutional jurisdiction e.g. of Article 199 unless such statutory provision had itself the backing of the Constitution, e.g. Article 212(2) for which the jurisdiction to the Service Tribunal had to be conceded, which the learned counsel for the authority was not in a position to do. Mr. S.M. Zafar and the other learned counsel representing the employees contended that terms and conditions of employment, even those contained in subsections (1‑A) and (1‑B) which have a constitutional backing, a statutory force and have also an overriding effect could not be all set at naught by subsection (1‑C). Reliance has been placed for pleading against ouster on what is contained in Maxwell on The Interpretation of Statutes 11th Edition (page 169)‑‑
"Having already given its attention to the particular subject and provide for it, the legislature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention be manifested in explicit language, or there be something which shows that the attention of the legislature had been turned to the special Act and that the general one was intended to embrace the special cases provided for by the previous one, or there be something in the nature of the general one making it unlikely that an exception was intended as regards the special Act. In the absence of these conditions, the general Statute is read as silently excluding from its operation the cases which have been provided for by the special one."
Another line of argument adopted by the learned counsels for the employees of the Authority is that subsection (1‑‑C) is enumerative but not exhaustive of the laws under which and the forums from which ouster of proceedings‑was sought to be achieved. Applying the principle of ejusdem generis to the interpretation of subsection (1‑C), it is contended that the object was to exclude the operation of Labour Laws governing the employees illustrating the intention by enumerating the Industrial Relations Ordinance, 1969, Essential Services (Maintenance) Act and their proceeding to generalize it as "or under any law for the time being in force". The other laws referable in the context are the Factories Act. The Payment of Wages Act, Employees' Cost of Living (Relief) Act, Workmen's Compensation Act, etc. In the same context it is urged that the expression "Court", "Tribunal" or "Commission" has been used with reference to those laws and the purview excludes the Service Tribunal brought in by subsection (1‑B).
Finally, it has been urged that the ouster of jurisdiction should not be readily inferred nor should the power conferred by subsection (1‑A) left absolutely untramelled with regard to its exercise.
It will be seen that both the parties are agreed that action taken ostensibly in exercise of powers under subsection (1‑A) does not enjoy absolute immunity against judicial scrutiny. The difference is confined to where that scrutiny should take place. According to the learned counsel for the authority subsection (1‑C) nullifies the preceding subsection (1‑B), takes away the jurisdiction of Service Tribunal and leaves only the constitutional jurisdiction intact for such scrutiny. The learned counsel for the employees plead for preserving the effect of subsection (1‑B) and consequently the jurisdiction of Service Tribunal and for giving a restricted meaning to subsection (1‑C) .
Subsection (1‑A) of section 17 expressly overrides subsection (1), rules made, orders or instructions issued, terms and conditions of service of the employees and proceeds to lay down certain terms and conditions having overriding effect. The authority or its properly constituted delegate under section 20 and none else, has been authorized to retire or remove any person without assigning any reason, after giving notice of not less than thirty days or pay for the period by which such notice falls short of thirty days.
The questions whether the authority or delegate has at all passed such an order and whether denial of the pay for the notice period is justified or not are such as concern the terms and conditions of employment which have statutory force and have also overriding effect. Subsection (1‑B) which was enacted simultaneously made "every person holding a post under the Authority not being a person who is on deputation", a civil servant for the purposes of Service Tribunals Act, a 1973. In this manner an exclusive beneficial remedial forum was made available to all such employees in respect of terms and conditions of their employment. Under constitutional provision Article 212(2) on this happening all proceedings pending elsewhere abated and none could be entertained elsewhere. Finally, years later came to be enacted subsection (I‑C).
The conspicuous features of subsection (I‑C) are that it has retrospective effect, acts as an ouster clause and nullifies certain specified decisions already rendered. Unlike subsection (1‑A) it has no non obstante clause. It immediately follows a subsection conferring unqualified jurisdiction on Service Tribunal with regard to terms and conditions of service and subsection (1‑A) contains nothing else but overriding terms and conditions of service. The matters required to be examined in scrutinising the exercise of power under subsection (1‑A) are (a) the competency of the individual or body taking action under it (b) the amenability of the individual in respect of whom such a power has been exercised (c) the presence of taint of mala fide or bias in exercise of that power, the postulate of legislative authorization to the exercise of public power being that it will be exercised bona fide. It is only after satisfying such tests or requirements that power can be said to have been exercised in a manner to achieve irrevocability or immunity from further scrutiny or substitution.
The exclusiveness of the jurisdiction conferred on the Service Tribunal by subsection (1‑B) itself operated as from 30‑9‑1975, the date of its introduction as ouster of the jurisdiction of all other Courts under Article 212(2) of the Constitution. This ouster was complete and total, on the strength of the constitutional provision itself. Subsection (1‑C) declares this legal ouster of jurisdiction and give effect to it by nullifying the decisions rendered by all such other Court, Tribunal, or Commission. There are a number of indications to support this conclusion. In the first place a new jurisdiction having constitutional backing and statutory force was made available to the employees of the Authority by subsection (1‑B) for seeking redress of grievances concerning the terms and conditions of their service. It put such employees at par with other employees of Provincial Governments on deputation with Authority who were even before such amendment civil Servants. Secondly, there is no non obstante clause in subsection (1‑C) to give an indication that a material departure from the special provision made in subsection (1‑B) was intended. Thirdly, in view of the strict legal effect of enacting subsection (1‑B) reference to Industrial Relations Ordinance or Essential Services (Maintenance) Act was out of place if all what was intended was to oust the jurisdiction of the Service Tribunal, which alone had the jurisdiction after enactment of subsection (1‑B) as from 30‑9‑1975. Finally, no taint is discoverable either in conferment of power under subsection (1‑B) or in its exercise by the service Tribunal to prompt the total ouster of its jurisdiction or complete nullification of its decisions as from the date of very conferment of that jurisdiction. On the contrary a taint is apparent on the face of the record considering subsection (1‑B) with Article 212(2) of the Constitution in the continued exercise of jurisdiction by the Courts, Tribunals (Other than Service Tribunal) and Commission established and functioning under laws other than Service Tribunals Act. It was to eliminate this apparent taint of unwarranted assumption of jurisdiction which was sought to be tackled by legislative dispensation re‑accomplishing in unequivocal terms the nullification of such decisions and ouster of their jurisdiction as from 30‑9‑1975, the date subsection (1‑B) was enacted.
Our conclusion, therefore, is that in view of subsection (1‑B) the Service Tribunal alone had the jurisdiction to adjudicate with regard to the terms and conditions of WAPDA employees as from 30‑9‑1975 and that jurisdiction of all other Courts, Tribunals, Commissions was affected by section (1‑C) but not that of the Service Tribunal itself. Having answered the legal question, all the appeals and petitions shall be set down for hearing further in the light of this decision.
M . B . A . Order accordingly.
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