1988 PLC(CS) 602

This Revision is directed against the judgment dated 14‑3‑1987 passed by the learned 1st Additional District Judge, Karachi (South) in Civil Appeal No.138 of 1986 setting aside the order of the learned Senior Civil Judge, Karachi (South) dated 7‑8‑1986 rejecting the respondent's plaint of the suit under Order VII, Rule 11, C. P. C. and remanding the case to the above Court for trial.

2. The brief facts leading to the filing of the above Revision are that the respondent's services were terminated by the department. He filed a service appeal before the Federal Services Tribunal, which allowed the same by an order dated 9‑2‑1985. After the above order the respondent had been taken back in the service. He is entitled to the back benefits as per terms of the above order. However, he filed above suit No.5240/85 for the recovery of Rs.24,000 as damages for illegal termination of the services thereby causing mental agony and torture. The present applicants filed an application under Order VII, Rule 11, C. P.C. In view of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution, this application was allowed by the learned Civil Judge by his aforesaid orders dated 7‑8‑1986. Against the above order the respondent filed aforesaid Civil Appeal No.138 of 1986, which had been allowed by the learned 1st Additional District Judge in the above terms. The applicants being aggrieved by the above judgment have filed the present revision.

3. I have heard Mr. Chaudhry Rashid Ahmad, learned counsel for the applicants and the respondent in person. It has been contended by the learned counsel for the applicants that in view of sub‑clause (b) of clause (1) of Article 212 of the Constitution, the Civil Court had no jurisdiction in respect of alleged tortious acts of the Government.

On the other hand, respondent has submitted that since the Service Tribunal was not competent to award damages, he is entitled to maintain a civil suit.

It may be advantageous to reproduce Article 212 of the Constitution, which reads as follows:‑

"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) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or

(c) matters relating to the acquisition, admin1st ration and disposal of any property which is deemed to be enemy property under any law.

(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 of any matter to which the jurisdiction of such Administrative Court or Tribunal extends (and all proceedings) in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal (other than an appeal pending before the Supreme Court), shall abate on such establishment:

Provided‑ that the provisions of this clause, shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution Majlis‑e‑Shoora (Parliament) by law extends the provisions to such a Court or Tribunal.

(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal."

A perusal of the above article indicates that under sub‑clause (a) of clause (1) the Administrative Courts or Tribunals are to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of the persons who are in the service of Pakistan including disciplinary matters, whereas under sub‑clause (b) of above Article 212, the matters relating to claim arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of a such authority acting in the discharge of his duties as such servants are to be adjudicated upon by the aforesaid Administrative Courts or Tribunals it set up; whereas under above quoted clause (2) the jurisdiction of the other Courts has been expressly excluded subject to clause (3). which provides an appeal to the Supreme Court.

It may be observed that under the Service Tribunals Act, 1973 (hereinafter referred to as the Act), the Service Tribunals have been constituted by the Government and under subsection (2) of section 3 of the aforesaid Act, the Tribunals have been given exclusive jurisdiction in respect of matters relating to terms and conditions of the service of civil servants including in respect of disciplinary matters. The present suit is founded on the averments that the termination of the respondent's service by the department was illegal and in violation of the terms and conditions of the service. The Service Tribunal has allowed appeal of the respondent after having found that there was violation of the terms and conditions of the service.

I am inclined to hold that the claim for damages directly arose out of the alleged breach of the terms and conditions of service and, therefore, would be hit by Article 212 of the Constitution read with section 3(2) of the Act. If I were to accept the contention of the respondent, it would provide leverage in the hands of a civil servant to file vexatious suit for the recovery of damages. It was open to the respondent to have claimed any amount as compensation before the Service Tribunal in addition to the back salary etc. I am, therefore, inclined, to take the view that the order of the learned Civil Judge was in accordance with law and should not have been interfered with by the learned 1st Additional District Judge (South) Karachi in the above appeal.

4. I, therefore, allow the above revision and set aside the judgment of the 1st Additional District Judge (South) Karachi but there will be no order as to costs.

S.Q./F‑68/K Petition accepted.