BULSHER KHAN Versus PROVINCE OF WEST PAKISTAN

SARDAR MUHAMMAD IQBAL, C. J .-The petitioner is a civil servant. The impugned order pertains to the terms and conditions of his service. It was passed before the 1st of July 1969. There is no dispute about the proposition that if an order or decision against a civil servant relating to the terms and conditions of service including dis ciplinary matters has been passed on or after the 1st of July 1969 the High Court will have no jurisdiction to make any order or entertain any proceed ings under Article 199 of the Constitution and the only remedy such person will have will be before the Tribunal constituted under an Act of the appropriate Legislature as contemplated in Article 212 of the Constitution. The question which arises for determination is whether the case of the petitioner which is of a date prior to 1st of July 1969 also abates under the Punjab Administrative Tribunal Act, 1974 and can he prefer an appeal before the Tribunal ?

2. In order to deal with this question we may refer to the relevant provisions of the Punjab Administrative Tribunal Act of 1974. It is provided in section 3(1) : "there shall be one or more Tribunals, each consisting of a Chairman and two Members possessing the qualifications hereinafter provided to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants including disciplinary matters." Section 4 lays down;

"4. 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 including disciplinary matters may, within thirty days of the communication of such order to him, or within six months of establishment of the appropriate Tribunal, which ever is later, prefer an appeal to the Tribunal;

Provided that -

(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July 1969."

Section 8 reads as follows;

"8. All suits, appeals and applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the establishment of the appropriate tribunal shall abate on the establish ment of such Tribunal:

Provided that any party to such a suit, appeal or application may, within ninety days of establishment of the appropriate Tribunal, prefer an appeal to it in respect of any such matter which is in issue in such suit, appeal or application."

Section 10 provides :-

"10.---(1) The Punjab Civil Services (Appellate Tribunals) Ordinance, 1970 (Punjab Ordinance No. IV of 1970) is hereby repealed.

(2) All cases pending before the Tribunal established under the Punjab Civil Services (Appellate Tribunals) Ordinance, 1970, shall stand trans ferred to such Tribunal or the Tribunals established under this Act as Government may direct."

It is clear that section 3 provides for the jurisdiction of the Tribunal. Sections 4, 8 and 10 deal with cases in different situations of civil servants and also specify the circumstances in which the Court may exercise the jurisdiction. The cases which may go before the Tribunal under these sections are of three types viz., (a) which are pending before the Punjab Civil Services (Appellate Tribunals) Ordinance, (b) suits, appeals and applications already pending in Courts and (c) all other cases in which a final order, whether original or appellate, has been made b) the appellate Court in respect of any of the terms and conditions of service including the disciplinary matters. In cases falling under category (c) an appeal does not lie to the Tribunal against an order or decision made before 1st of July 1969. The Tribunal has doubtless the jurisdiction to hear all cases falling under section 10 even if the decisions made in those cases are of date prior to Ist of July 1969. It is, however, contended that under section 8 only those suits, appeals and applications shall abate which are "within the jurisdiction of the Tribunal" and that since no appeal under proviso (c) to section 4 is competent before "a Tribunal against an order or decision of departmental authority made at any time before the 1st of July 1969" the appeal under proviso to section 8 is also not competent, and therefore, such cases shall not abate.

The determination of this question depends on the scope of the words "within the jurisdiction', in section 8. If the words are referable to section 4, then obviously such proceedings before the Court shall not abate. But this is' not the case. The scope of the jurisdiction of the Tribunal is given in section 3. Section 4 does not provide for the jurisdiction of the' Tribunal but only for appeals in certain cases which are not covered by section 8 or 10M and in those cases the jurisdiction is restricted by virtue of proviso (C). It` will be against the well-established principles of Interpretation of Statutes that scope of proviso (c) which is of section 4 should be extended to other provisions of the Act. A proviso to a section is not independent of the section calling for independent consideration or construction detached from the cons truction to be placed on the main section, as it is merely subsidiary to the main section and is to be construed in the light of the section itself. The object of the proviso is to take out from the main section a class or category of cases to which the main section does not apply ; and, in so carving out, the Court has always to bear in mind what is the class referred to in the main section and must also remember that the carving out intended by the proviso is from the particular class dealt with by the main section and from no other class. The general rule, no doubt, is that the operation of a proviso should be confined to that clause or portion of the Statute which directly precedes it. In Lloyds & Scottish Finance, Ltd. v. Modern Cars & Caravany (Kingston), Ltd. (1966 1 Q B 764) it was held that a proviso is "of necessity . . . . limited in its opera tion to the ambit of the section which it qualifies." In Maxwell on Inter pretation of Statutes (12th Edition) at page 189 by relying on the observations of Lord Green, M. R., In re: Tahrlsky, ex p. Board of Trade (1947 Ch. 565) it is stated "And, so far as that section itself is concerned, the proviso again receives a restricted construction : where the section confers power, `it would be contrary to the ordinary operation of a proviso to give it an effect which would cut down those powers beyond what compliance with the proviso renders necessary'." The proviso is thus limited in its operation to section 4.

3. The Legislature was conscious that aggrieved by orders affecting his terms and conditions of service a civil servant might have resorted to any of the remedies provided by law and filed a suit or an appeal or a writ petition. It, therefore, specifically made a provision in section 8 for their abatement. If the Legislature had intended that section 4 should apply to such cases, it would not have added a proviso to section 8, because in the event of abate ment, the impugned order could be challenged under section 4, there being no provision like Order XXII, rule 9 of the Code of Civil Procedure barring such a remedy. The right of appeal under section 8 has been given in respect of matter which is in issue in such a suit, appeal or application. The right of appeal given to him is not subject to any other limitation or restriction. If we restrict it to an order of date prior to 1st of July 1969, it will be by extending the application of proviso (c) of section 4 to cases falling under section 8, which is not permissible under law. We are of the opinion that the words "within the jurisdiction of the Tribunal" in section 8 are referable to section 3 of the Act. If the remedy of a civil servant is barred under proviso (c) to section 4, in a given situation, it does not affect its basis jurisdiction under section 3. If the Legislature had intended to confer juris diction on the Tribunal only in respect of orders and decisions made on o after 1st July 1969, it would have so provided in section 3. The Legislature had no such intention : in fact the intention to the contrary is manifested by the provisions of section 10 under which the Tribunal has to decide cases (even of date prior to 1st July 1969) which stand transferred to it from the Tribunal established under the Punjab Civil Servants (Appellate Tribunals)) Ordinance, 1970.

4. The writ petition abates and the petitioner has the right to prefer an appeal to the Tribunal under proviso to section 8.

K. B. A. Petition, held, abated.