Present
Mr.
Justice Gulzar Ahmed.
Mr. Justice Malik Muhammad Aqil Awan.
Aziz-
S/o Abdul
Karim, P-49544/P-22330
Aircraft
Engineer (Retd.),
H.
No.12-13, Block No.C-1,
Malir
Cantt Bazar,
Versus
1. Federation of
Through
Secretary,
Ministry
of
2. Pakistan International Airlines Corporation,
through
its Managing Director,
PIAC Head
Office, Airport, Karachi.-------- - - -
Respondents
Date of
hearing: 16.04.2009.
Petitioner. in person
J U D G E M E N T
MALIK M. AQIL AWAN, J- The petitioner who has retired as Aircraft Engineer has filed this
petition in person with the prayer that this Court may direct the respondents
to implement judgment dated 26.06.2006 in its letter and spirit passed by the
Federal Service Tribunal and in support of his prayer, he has filed the
certified copy of the said judgment at page 39 of the petition.
2. The dispute before the Federal Service Tribunal was with respect to proper calculation of pension, provident fund and other financial benefits in the light of different admin orders of PIA as the petitioner who had retired on superannuation on 03.06.2003 was aggrieved of the calculation of his pensionery benefit made by his employer respondent and such calculation was challenged in the aforementioned Service Appeal No.340-K(C)/2004. The appeal was allowed on 26.06.2006 and the reliefs granted to the petitioner were stated in para-17 of the judgment, which is at page 81 of this petition.
3. We would not like to reproduce the said reliefs in this judgment as the same are taken care of in our short order dated 16.04.2009 under which this petition was allowed.
4. The short question of law involved in this petition is as to whether High Court is competent to implement the legal and valid judgment of the Federal Service Tribunal in its constitutional jurisdiction.
5. Since the petitioner was appearing in person and we have heard him at length but his main argument was that he is entitled for the implementation of the aforementioned judgment of the Federal Service Tribunal in the constitutional jurisdiction of this Court. Whereas, against that Mr. Khalid Javed, the learned counsel for Respondent had argued the matter at length and raised the following technical questions hitting upon the maintainability of this petition, the executability/implementation of the aforementioned judgment which are summarized as under;-
(i) Learned counsel for the respondent contended that the judgment under implementation is passed on 26.06.2006 and the covering letter under which it has been supplied to the respondents bears the date of 30.06.2006. According to learned counsel the judgment of Hon’ble Supreme Court in the case of Mubeen-us-Salam which has subsequently been reported in PLD 2006 SC 602 was announced on 27.06.2006. He went on to argue that by the time judgment of Federal Service Tribunal mentioned supra having been supplied to the respondent on 30.06.2006 i.e. three days after the announcement of judgment in Mubeen-us-Salam case, no appeal was filed against judgment under implementation because Section 2-A of the Service Tribunal Act 1973 had been declared ultravires of the Article 240 and 260 of the Constitution partially to the extent that those corporations controlled by the Federal Government, if do not have statutory rules for regulating the terms and conditions of service of their employees ceased to be civil servant and to that extent appeals pending before Hon’ble Supreme Court filed by employer or employees would be abated and the orders passed by the Services Tribunal even if implemented, such implementation would remain alive for 90 days period and thereafter the judgment itself would stand abated. The crux of the submission is that even if no appeal is filed by respondents, automatically the judgment under implementation stands abated and has lost executable character;
(ii) The second contention of the learned counsel was with regard to the jurisdiction of this Court to implement the judgment of Federal Service Tribunal. According to him the Federal Service Tribunal itself was competent to implement its own order, by invoking its jurisdiction by way of filing miscellaneous application, therefore, this Court has no jurisdiction;
(iii) The third contention of the learned counsel was that in view of the judgment of Muhammad Dawood and others vs. Federation of Pakistan and others decided by full bench of this Court reported in 2007 PLC (CS) 1046, the petition under Article 199 is not maintainable as admittedly the service rules/regulations of the respondent are non-statutory and the relationship between the petitioner and the respondent is governed by the principle of master and servant.
6. To support
the aforementioned three main contentions, the learned counsel has placed
reliance on PLD 2006 SC 602 Muhammad Mubeen-us-Salam and others v. Federation
of Pakistan and others, PLD 2007 SC 681(Muhammad Idrees v. Agricultural
Development Bank and others) and 2007 PLC (CS) 1046 Muhammad Dawood and others V. Federation of
Pakistan and others. Hereafter we advert with the contentions raised by the
learned counsel for respondent one by one and as such his first contention is
being adverted hereunder for which he has placed the reliance on the case of
Muhammad Mubeen-us-Salam supra. The Hon’ble Supreme Court of Pakistan has recorded
the conclusions in paras 108 and 109 at page 694. We have directed the learned
counsel as to which clause he relies upon to support his contention. In reply
he has placed reliance on clause “C” & “D” of para 109. Both the clauses
are reproduced herein below:-
(C) The cases or proceedings which are not
protected or covered by this judgment shall be deemed to have abated and the
aggrieved persons may approach the competent forums for redressal of their
grievance within a period of 90 days and the bar of limitation provided by the
respective laws, shall not operate against them till the expiry of stipulated
period.
(D) The cases in which the order of the Service
Tribunal has been implemented shall remain intact for a period of 90 days or
till the filing of appropriate proceedings, whichever is earlier.
7. As a matter of fact these both the clauses are flowing from the findings/observations made by the Hon’ble Supreme Court in clause A & B, therefore, it will be advantageous to appreciate the contention of the learned counsel for respondent to reproduce the same herein below:-
(A) The cases which have been decided finally by
this Court in exercise of jurisdiction under Article 212(3) of the Constitution
shall not be opened and if any Review Petition, Misc. Application or Contempt
Application, filed against the judgment is pending, it shall be heard
independently and shall not be affected by the ratio of this judgment.
(B) The proceedings instituted either by an
employee or by the an employer, pending before this Court, against the judgment
of the Service Tribunal, not covered by category (a) before this Court or the
Service Tribunal shall stand abated, leaving the parties to avail remedy
prevailing prior to promulgation of section 2-A of the STA, 1973.
8. We have asked the learned counsel as to whether there is any observation or finding in both these concluding paragraphs viz. 108 & 109 of Muhammad Mubeen-us-Salam case judgment which provides that in case the matter is decided by the Federal Service Tribunal before the pronouncement of the judgment of Muhammad Mubeen-us-Salam case and the appeal is not filed despite the limitation period was available, whether such judgment of the Federal Service Tribunal automatically stands abated. Because the moot question involved in this petition is as to whether the judgment under implementation being not challenged in appeal before the Hon’ble Supreme Court although admittedly it was communicated to the respondent under the covering letter dated 30.06.2006 available at page 37 of the record stand abated or alive judgment. The learned counsel has failed to point out such observation of the Hon’ble Supreme Court from the judgment which he relied upon. However, he argued hypothetically that had he filed such appeal, it would have met the fate of abatement thereby destroying the executeability of the judgment under implementation. We regret our inability to agree with the contention of the learned counsel for respondent for the simple reason that Hon’ble Supreme Court of Pakistan invoking the rule of past and closed transaction has held in clause ‘A’ which is reproduced hereinabove and laid emphasis “the cases which have been decided finally by this Court in its appellate jurisdiction are protected”. Admittedly the case of the petitioner do not fall in clause ‘A’ as no appeal was filed before Hon’ble Supreme Court under Article 212 of the Constitution against the judgment under implementation. In clause ‘B’ the emphasis is on “the proceedings instituted either by an employee or by an employer pending before this Court”. Again the judgments under implementation do not qualify to fall within clause ‘B’ as against the judgment under implementation no proceedings were pending before the Hon’ble Supreme Court when the judgment of Muhammad Mubeen-us-Salam was announced. In this view of the matter, we are of the view that clause ‘C’ & ‘D’ being consequential in nature and flowing from the effects caused by clause ‘A’ & ‘B’ and subject to these observations made by Hon’ble Supreme Court in clause ‘A’ & ‘B’ are merely resultant clauses. It has been held in clause ‘E’, the Service Tribunal shall decide pending cases under section 2-A of the Service Tribunal Act 1973. In view of the above observation, however if any of the case is covered by clause ‘C’ a period of 90 days shall be allowed to aggrieved party to approach the competent forum for the redressal of its grievance.
9. The second judgment is that of Muhammad Idrees vs. Agricultural Development Bank of Pakistan, reported in PLD 2007 SC 681. This judgment instead of augmenting the contention of learned counsel for respondent completely destroyed the same as it has been held in para 12 of the judgment in very clear terms in these words “we will like to reiterate here that whatever said by this Court in the judgment of Muhammad Mubeen-us-Salam supra applied only to the proceedings in relation to the cases which were pending before this Court, (either at appeal stage or at leave granting stage) and, therefore, the cases in which judgments of learned Federal Service Tribunal were never assailed before this Court have attained finality”. These observations of the Hon’ble Supreme Court leave no room for us to uphold the contention of the learned counsel for respondent, if the respondents have chosen not to assail the judgment under implementation within the limitation period they must be thankful to themselves. We find no observation either in the case of Muhammad Mubeen-us-Salam or in the case of Muhammad Idrees to the effect that after the announcement of such judgments the judgment of Federal Service Tribunal even if not assailed despite availability of the limitation period, it would stand abated automatically nor the learned counsel was able to point out any such para out of which even such inference can be drawn which could support the contention of the learned counsel for respondent, therefore, the first contention of the learned counsel for respondent is hereby repelled.
10. While adverting with the second point raised by the learned counsel for the respondent, we have asked him as to on which specific provision of law he relies upon to contend that High Court cannot issue the writ for implementation of order which is legal in its character and passed by Tribunal or Authority which had the jurisdiction to pass the same. To meet this question, again the learned counsel instead of relying upon any specific provision of law has argued hypothetically by saying that Federal Service Tribunal has the power to implement its own order and same is alternate & efficacious remedy. In order to decide this controversy, we have examined the provision of Service Tribunal Act 1973 and we find no provision which authorizes the Federal Service Tribunal to execute its own judgment if the same is violated nor any mechanism has been provided bestowing power of contempt punishing the contemnor to arrest, detain, attach his property in case of violation of the judgment of the Federal Service Tribunal. The only provision on the basis of which perhaps the learned counsel for respondent raised the contention is Section 5 of the Service Tribunal Act 1973. To appreciate the powers conferred on the Service Tribunal under Section 5, the provision itself is reproduced hereunder:-
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.
11. We lay much emphasis on the word “a Tribunal shall for the purpose of deciding any appeal, be deemed to be a Civil Court”. In our view whatever powers the Service Tribunal enjoys that of Civil Court, are for the purpose of deciding the appeal and not for the purpose of executing judgment arising out of such appeal. There is a mark difference between deciding the appeal and implementing/execution of the judgment arising out of that appeal. So much so the judgment of the Federal Service Tribunal is not conferred the status of a “decree” so that one may assume that it can be executed in pursuance of the powers conferred on the Civil Court under order XXI CPC. There is a subordinate legislation known as the Service Tribunal (Procedure Rules 1974) legislated in pursuance of the powers under Section 8 of the Service Tribunal Act 1973. We are mindful of the fact that the rules cannot confer any power on the Service Tribunal which has not been conferred by the Act itself because it is the cardinal principle of interpretation of statutes that subordinate legislation cannot supercede the principle legislation. However, looking into the vehemence of the learned counsel for respondent to raise this contention, we have gone through these rules in order to find whether any mechanism is provided for the implementation of the judgment of Service Tribunal to the Service Tribunals itself. In all these are 27 rules out of which not a single rule bestows any power on the Service Tribunal to execute or implement its own judgment.
12. After examining the bare provision of the statute itself and the rules framed there under and having satisfied that no power is available with the Service Tribunal to implement or execute its own judgment, if any authority is needed we may rely upon the judgment in the case of Abdul Bari vs. Government of Pakistan and 2 others reported in PLD 1981 Karachi 290 R-303 para-10 “Service Tribunal has not been empowered to implement its own decision, although it has power to alter or amend the orders appealed against”. The same view was taken by the Division Bench of this Court headed by his lordship the Hon’ble Chief Justice Mr.Justice Sabihuddin Ahmed (as his lordship then was) in C.P.NO.D-303/2005 (Haseeb-ul-Haq Vs. Federation of Pakistan) decided on 11.02.2006. It was held in para-5 of the judgment “Service Tribunal is neither the Court of general jurisdiction possessing inherent power nor is it clothed with the authority to execute its decision or exercise contempt powers to punish violation thereof”. Although it is very unfortunate that such service laws were framed in the year 1973 and Hon'ble Supreme Court has also made observations in number of cases that judgment of the Service Tribunal should be implemented by the Department/Employer without any loss of time unless it is stayed by Supreme Court. Just to fortify these observations we may place reliance upon the case of Abdul Hafeez Abbasi and others vs. PIAC reported in 2002 PLC (CS) 1083 R-1104Z para 25 “employer had an obligation to honour the judgment of Service Tribunal or if employer had any reservation in not implementing the same the stay should be obtained. Supreme Court had directed the employer to implement the judgment”.
13. We have greatly been disappointed to see that petitioner has retired on superannuation on 03.06.2003 and he instituted the appeal before Service Tribunal on 11.09.2004 claiming his pension benefits in accordance with relevant regulations of the respondent and his appeal had been decided and allowed on 26.06.2006 and still such order is being flouted blatantly without any lawful reason or rhyme despite the fact that such judgment was never challenged before any competent Court of law including the Hon'ble Supreme Court. Numbers of petitions are pending before this Court for implementation of the judgments passed by the Service Tribunals both Provincial and Federal and this pendency consumed a lot of time of this Court. It disentitles the general litigant public for hearing of their cases for which High Court is the regular forum only for want of time. Therefore, we propose to the Federal Government to make necessary amendment in the Service Tribunal Act 1973, conferring execution powers upon it to implement and execute its own judgment in order to save the time of High Courts of the Provinces and we feel that insertion of such amended provision do not require much deliberation or exercise or involvement of time in view of various judgments expressing the requirement/desirability of such amendment. We may rely upon one judgment of Hon’ble Supreme Court in the case of Bakhtawar etc. vs. Amin etc. reported in 1980 SCMR 89 R-95 D. In this case the Hon’ble Supreme Court has held “the Court having passed the order if unable to seek its compliance, such order would be a mere farce”. If these findings of the Hon’ble Supreme Court are appreciated in its real perspective, the desirability of the proposed amendment becomes more imminent in order to restore the shaken confidence of the general public/litigants in such Services Tribunals, which are unable to execute their own judgments. Since we have reached the conclusion that Federal Service Tribunal has no power to execute its judgment, therefore, the present petition for implementation of judgment of Federal Service Tribunal is maintainable. However, it becomes more pertinent to make such proposal as all the Civil Courts including all the High Courts refuses to entertain service matters of the Civil Servants on the ground that they have the remedy before the Service Tribunal and jurisdiction of the Civil Courts is barred under Article 212 of the Constitution. Whereas, the Supreme Court of Pakistan in case of Bakhtawar etc. Vs. Amin etc. referred supra has held that a Court or Tribunal, which is unable to execute its own judgment, the very judgment delivered by such Court or Tribunal was farce. In this view of the matter we can appreciate that the remedy provided to the Civil Servant under the Service Tribunal Act, is how far efficacious and the present case is the classic example of injustice done to the applicant for no fault of him but only because of the reason that the forum provided to him for redressal of his grievance has no power to implement its own judgment. He was retired on 03.06.2003. He filed appeal before the Service Tribunal in 2004, which was allowed on 26.06.2006, and today in the year 2009 his petition is being disposed of by us only granting him the relief to the extent that the judgment in his favour may be implemented. This aspect from which the class of the Civil Servant is suffering on day to day basis in obtaining execution of the orders passed in their favour, should be taken care of and the only way out is to make the necessary amendment in service law empowering the Service Tribunals to execute their own judgments. The very purpose to establish Services Tribunal was to provide a forum with exclusive jurisdiction to the class of Civil Servants for redressal of the grievances arising out of service matters and on the other hand to decrease the work load on the Regular Civil Courts including the High Courts. But both the purposes appear to be defeated, out of narration of the facts of this case mentioned above.
14. Since the learned counsel for respondent could not point out any provision of law which disentitle the High Court in its constitutional jurisdiction to implement the judgment of Service Tribunal nor he has cited any judgment of this Court or Hon'ble Supreme Court in support of his third contention to the effect that petition under Article 199 of Constitution is not maintainable, therefore, we deem it proper to cite the case law which support our view that High Court can implement the judgment of Service Tribunal in case it is flouted by the authority against which it is passed. The view taken in this regard by various High Courts of the country is quite consistent and out of the same we rely upon the case of Khalid Mehmood vs. Inspector General of Police, Punjab reported in 1999 PLC (CS) 558 R-561 para 8 & 9. In this case a Single Bench of the Lahore High Court has held that non-implementation of the orders of Service Tribunal which attained finality, amounted to frustrate mandate of Constitution of Pakistan 1973. Obedience of such orders of Service Tribunal was obligation of every citizen including authority concerned. Authority was bound to implement orders of Service Tribunal. Accordingly Lahore High Court accepted the writ petition and directed the concerned authority to implement order passed by Service Tribunal.
15. Second case in line is that of M.A. Rashid Rana vs. Chief Secretary reported in 1999 PLC (CS) 623 R-624 A & B. In this case Single Bench of Lahore High Court concluded that mere filing of appeal before the Supreme Court against the judgment of Service Tribunal would not amount to suspension of judgment. Authority was directed to give affect to the judgment of Service Tribunal and the writ petition was accordingly allowed.
16. The third case is that of Ghulam Sarwar vs. Federation of Pakistan reported in NLR 2001 Service P-11 R-13 para-5. Single Bench of the Lahore High Court has held that High Court has jurisdiction in writ to implement the judgment of Service Tribunal. Similarly in case of Qazi Muhammad Anwar Barlas vs. Federation of Pakistan and another reported in 2000 PLC (CS) 1165 R-1172 F, the Single Bench of Lahore High Court took the same view and directed the authority to implement the order of Service Tribunal. The same view has been taken by the Lahore High Court in case of Muhammad Ikram Alvi vs. Secretary to Government of the Punjab, Communication & Works Department, Lahore, reported in 2004 PLC (CS) 59 R-62 B. Similar view was taken in the case of Fazal Elahi vs. Pakistan Telecommunication Limited and others reported in 2004 PLC (CS) 655 R-658 A & B and held that in Constitutional Petition High Court is competent to implement the judgment of Service Tribunal in view of Article 4 of the Constitution.
17. The aforementioned judgments have been authored by the different Hon’ble judges of the Lahore High Court and it appears that they are quite consistent in their views as no judgment appears to have been reported so far taking different view than the view taken in the aforementioned judgments.
18. That the Division Bench of Balochistan High Court in the case of Ahmed Khan vs. Secretary, Health Department, Quetta and 2 others, reported in 2001 PLC (CS) 794 R-797 A has held that when the relief claimed was beyond the powers of Service Tribunal, Constitutional Petition was maintainable. Appellate authority allowed the departmental appeal and such order was implemented by High Court in Constitutional jurisdiction.
19. That the Division Bench of this Court in unreported judgment passed in C.P.Nos.761/02, 829/05 & 1060/05 decided in April 2006 in para-4 of the judgment has held “in case of non-implementation of order or judgment of Service Tribunal, High Court always has the jurisdiction to issue mandamus in terms of Article 199 (1) (a)(i) of Constitution. The same view was taken by the Division Bench of Sindh High Court, Karachi, in case of Muhammad Siddique vs. State Life Insurance Corporation of Pakistan reported in 2005 PLC (CS) 946 R-947-A. In this case order of Federal Service Tribunal was implemented by the Sindh High Court in Constitutional jurisdiction.
20. That the Supreme Court of Pakistan in case of Water and Power Development Authority vs. Allah Dad Mashori reported in 2008 PLC (CS) 260 R-261 para -3, while hearing petition for leave to appeal, issued direction that first the judgment of Service Tribunal be complied with within specified time and thereafter the petitioner will have a right to hearing of his petition. In the case of Tariq Mehmood and 17 others Vs. Federation of Pakistan reported in 2008 PLC (CS) 141 R-143 A, para-8, the Division Bench of Sindh High Court held “power to punish for contempt is not available with the Service Tribunal, recourse to filing of petition was eminently the only remedy available to the petitioner for securing implementation of the judgment. In the case of Khan M. Matiur Rahman and others vs. Government of Pakistan reported in 2006 PLC (CS) 564 R-574-B para-14 the Division Bench of the Sindh High Court has held “whenever a valid proper decision of a forum established by law is not being given affect, such omission on the part of the Government agencies amounts to failure to perform a duty ordained by law and in such case High Court always had jurisdiction to issue mandamus.
21. That except three objections raised by the learned counsel for respondent before us to resist the present petition, which we have adverted and recorded our findings, no other point has been raised and as such the petition is allowed in the terms of its prayer to the extent that respondents are directed to implement the judgment dated 26.06.2006 passed by the Federal Service Tribunal within the time already specified in our short order.
The above are the detailed reasons for the short order
passed on 16.04.2009.
The office is directed to send the copy of this judgment to Ministry of Law and Parliamentary Affairs, Islamabad, for taking necessary steps to initiate the process of amendment as suggested by us in this judgment.
Dated .04.2009. J U D G E
J
U D G E
Nadeem