EXECUTIVE OFFICER, CANTONMENT BOARD SIALKOT, CANTT. Versus QAISER MEHMOOD

MUHAMMAD ALI MAZHAR, J.---- This Civil Petition for leave to appeal is brought to challenge the Judgment dated 20.11.2023 passed by the Federal Service Tribunal, ( FST ) Islamabad in Service Appeal No.810 (R) CS/2019.

2.According to the narrative of the petitioner, the respondent No.1 was served a charge sheet dated 31.12.2015 containing certain allegations of misconduct, including that he had sublet the Government accommodation. An Inquiry Committee was constituted to submit the report. After serving the final charge sheet, a major penalty of discharge from service was imposed upon the respondent No.1 on 26.08.2016. The respondent No.1 preferred departmental appeal on 15.09.2016, which was not responded to, therefore, he filed service appeal No.1945(R)CS/2018 before the FST, which was disposed of vide judgment dated 12.11.2018 with the direction to the department to decide the pending departmental appeal. The department had decided the departmental appeal on 22.02.2019 and rejected the same, therefore, the respondent No.1 filed the service appeal against the major penalty which was decided vide impugned judgment whereby the learned FST set aside the original and appellate order with the directions to the competent authority to hold de novo inquiry in compliance with the direction issued by the Director General vide letter dated 06.06.2023.

3.The learned Add. A.G argued that the respondent No.1 was not a civil servant, rather, he was a servant of Cantonment Board, which is a Corporate Body established under the provisions of the Cantonments Act, 1924 and the service structure of employees of Cantonment Board is governed and regulated under the Pakistan Cantonments Servants Rules, 1954. He further argued that the employees of any authority, corporate body or organization established by or under any Provincial or Federal Law or which is owned or controlled by Federal or Provincial Government, could not be conferred the status of a civil servant, hence, the learned FST had no jurisdiction to entertain or decide the appeal of the respondent No.1. It was further contended that all charges of misconduct against the respondent No.1 were proved and after due process, he was awarded the major penalty. It was further contended that the impugned judgment is a result of misapplication of law and coram non judice, hence it deserves to be set aside.

4.The respondent No.1 in person addressed the Court that he was issued a charge sheet with certain allegations that he sublet the Government accommodation. When the major penalty of discharge from service was imposed, he filed the departmental appeal and thereafter, he filed service appeal in the FST. He further stated that the FST rightly set aside the original and appellate order with the directions to the competent authority to hold de novo inquiry in compliance with the direction issued by the Director General vide letter dated 06.06.2023.

5.Heard the arguments. The bone of contention in this case is whether employees of Cantonment Boards are civil servants and whether they can invoke jurisdiction of the FST against any disciplinary action under the provisions of Service Tribunal Act, 1973 ( STA, 1973 ) read with Article 212 of the Constitution of the Islamic Republic of Pakistan 1973 ( Constitution ). If we trace out the history, it divulges that by virtue of Act No. XVII of 1997, notified on 10.06.1997, Section 2A was inserted in the STA, 1973, whereby service under any authority, corporation, body or organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest, was declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization, was deemed to be a civil servant for the purposes of STA, 1973. Likewise, in Section 2 of the STA, 1973 in clause (a), words such as and shall include a person declared to be a civil servant under section 2A were also added.

6.In the case of Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602) , this Court examined in-depth the niceties of Section 2A of the STA, 1973 vis- -vis Section 2(1)(b) of the Civil Servants Act, 1973 ( CSA, 1973 ) and after thorough deliberation, reached the conclusion that Section 2A extended the jurisdiction of the Service Tribunal to certain categories of employees even though they did not strictly fall within the statutory definition of civil servant. This Court in the aforesaid dictum held that the legal status of a civil servant flows exclusively from Section 2(1) (b) of the CSA 1973, which requires that a person must be a member of an All Pakistan Service; or a member of a civil service of the Federation; or holder of a civil post in connection with the affairs of the Federation. The Court also drew a fine distinction while accentuating the definition of service of Pakistan defined under Article 260 of the Constitution and the expression civil servant defined in CSA, 1973 that every civil servant is in the service of Pakistan, but every person in the service of Pakistan is not a civil servant and also held that Section 2A cannot deem employees of autonomous or local bodies as civil servants because Parliament cannot, through a simple amendment to a statute, expand the constitutional jurisdiction under Article 212. Anyways, vide Service Tribunals (Amendment) Act, 2010 (Act No. II of 2010), dated 06.03.2010, Section 2A was omitted.

7.According to Section 280 of the Cantonments Act, 1924, the Federal Government may, after previous publication, make rules to carry out the purposes and objects of this Act and such rules may, inter alia laid out in subsection (2) clause (c), provide for the appointment, control, supervision, conditions of service, transfer, suspension, removal, dismissal and punishment of servants and in clause (f), the creation and management of Provident Funds, and the circumstances in which, and the conditions subject to which, contributions thereto shall be made from cantonment funds and by servants of Boards. In exercise of the powers conferred by clause (c) of subsection (2) of section 280 of the Cantonments Act, 1924, the Central Government was pleased to promulgate Pakistan Cantonment Servants Rules, 1954, which extended to all Cantonments in Pakistan and made applicable to all persons to whom the Cantonment Fund Servants Rules, 1937 applied and to all persons to be appointed under these rules. According to Rule (2) (d), "Cantonment Servant" means a servant of a Board holding a substantive whole time appointment under the Board, paid from the Cantonment Fund whereas clause (ggg) defines the acts of "misconduct" while clause (h) defines "Pay" which means the pay as defined in rule 9 (21) (a) (i) and (ii) of the Fundamental Rules. In terms of Rule (3), the Fundamental Rules, and the Supplementary Rules made thereunder shall, so far as they are not inconsistent with these rules, apply to all Cantonment servants while in sub-rule (2), the Revised Leave Rules, 1980 applicable to the Civil Servants of the Federal Government shall apply mutatis mutandis to the cantonment servants appointed under these rules. Rule 49 is germane to the list of minor and major penalties and punishments/procedure for inquires and Rules 55 to 58 are related to right of appeal and procedure of filing and hearing the appeals.

8.In the case of Ghulam Rasool v. Secretary Defence (2012 PLC (C.S.) 1271), the employee, a Cantonment Board official, filed an appeal before the FST, and against the judgment of the FST dated 16.01.2003 passed in Appeal No. 68(R) CS of 2001, this Court entertained the matter under Article 212(3), acknowledging him as a civil servant at that time according to the deeming clause of Section 2A inserted in STA, 1973 and though the case was decided in 2012 but the dispute was originated before the omission of Section 2A, therefore the employee was treated as a civil servant for the pending matter. Even in the case of Sabir Iqbal v. Cantonment Board Peshawar (PLD 2019 SC 189), the employee, after being removed from service, filed a writ petition before the High Court and this Court treated him not as a civil servant but as a person governed by the statutory rules of service i.e. Cantonment Servants Rules, 1954.

9.In our view for all intents and purposes, after discontinuation of Section 2A of the STA, 1973, the Cantonment Board employees cannot approach and institute the service appeal relating to their terms and conditions of service in FST and the appropriate and proper legal forum for challenging violation of statutory rules of service and/or any departmental action including the impositions of penalties/punishments in the High Court under Article 199 of the Constitution, which is a correct exposition of law that where an employee is governed and regulated by the statutory rules of service, he can approach the High Court in the writ jurisdiction for redressal of his grievance.

10.According to Section (2) (b), "civil servant" means a person who is a member of an All-Pakistan Service or of a civil service of the Federation or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include- (i) a person who is on deputation to the Federation from any Province or other authority; (ii) a person who is employed on contract, or on work-charged basis or who is paid from contingencies; or (iii) a person who is "worker" or "workman" as defined in the Factories Act, 1934(XXV of 1934), or the Workman's Compensation Act, 1923. The terms and conditions of service of a civil servant are provided under Sections 4 to 22, whereas the Service Tribunal under STA, 1973 was constituted to provide an appellate forum for providing justice to civil servants in the matters relating to the terms and conditions of service as a primary and exclusive forum for resolving service-related disputes of civil servants. Obviously, the terms and conditions of service of cantonment employees are not regulated or governed by the CSA, 1973 but their terms and conditions are being governed under their own statutory rules of service with limited adoption of Fundamental Rules, and the Supplementary Rules that are not inconsistent with their own rules including the Revised Leave Rules, 1980 applicable to the Civil Servants of the Federal Government but all the terms and conditions of service are regulated by its own statutory rules, including disciplinary matters.

11.In the case of Jameel Qadir v. Government of Balochistan (2023 SCP 274 = 2023 SCMR 1919), it was held that the term jurisdiction in the legal parlance means the command conferred to the Courts by law and Constitution to adjudicate matters between the parties. The jurisdiction of every Court is delineated and established to adhere to and pass legal orders. In order to deal with the different species of litigation, some Courts and Tribunals are vested with exclusive jurisdiction for taking cognizance of matters which other Courts cannot take under the rigidity or stringency of exclusive jurisdiction to deal with and decide the lis . No Court has the right to decide any lawsuit which is beyond the purview of its jurisdiction and want of jurisdiction conveys an action beyond the domain earmarked to any particular Court or Tribunal which cannot be cured, even by consent or acquiescence of parties. It is the prime duty of the Court to decide the question of jurisdiction first in case of doubts raised regarding jurisdiction, and in any such situation, it is the responsibility of the Court to endeavor to resolve the issue of jurisdiction at an early stage of the proceedings. In case of any doubt, the Court is duty-bound to decide the question of jurisdiction before commencing a fullfledged trial and, if the case is found to be beyond the jurisdiction of that Court, the parties may be directed to seek the appropriate remedy before the appropriate Court or forum, rather than proceeding with the whole case and then deciding the issue of jurisdiction. The expression coram non judice means an act done by a court which has no jurisdiction. In the case of Huddersfield Police Authority v. Watson (1947) 2 All E.R. 193), it was held that where a case or statute had not been brought to the Court s attention and the Court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam (Also see: Morelle Ltd. v. Wakeling ([1955] 2 QB 379) and Young v. Bristol Aeroplane Co. Ltd. (1944 KB 718 at 729 = (1944) 2 All E.R. 293 at 300)).

12.Paragraph (2) of preliminary objections raised in the reply submitted by the Executive Officer, Sialkot Cantt., before the learned FST, reflects that the question of jurisdiction was specifically pleaded, namely, that the respondent No.1 was not a civil servant and his employment affairs were governed by the Cantonment Servants Rules, 1954 but despite this objection, neither the learned FST adverted to the question of jurisdiction, nor did it render any findings on this crucial aspect.

13.We have also noted that the learned FST annulled the dismissal order from service as well as the order of the Appellate Authority with the direction to the department to hold de-novo inquiry on the strength of the office order dated 06.06.2023, issued by Mr. Omer Masoom Wazir, Assistant Director General (HRSection), Ministry of Defence (ML&C Dept.), Government of Pakistan, with the subject Application for re-instatement of Mr. Qaiser Mehmood, Driver CB Sialkot , which communicated that the Competent Authority while exercising powers under Rule-60A has annulled the dismissal order and orders of the Appellate Authority and directed to hold a de-novo inquiry keeping in view that discharge (removal) from service was too harsh a penalty for renting out official accommodation and absence from duty. In the same letter, it was further articulated to take further necessary action under intimation to the Head Quarter. When we confronted this letter/office order to the learned counsel for the petitioner, Mr. Muhammad Ramzan Ch, ASC, learned Add.A.G, and officials of the Cantonment Board present in Court as to why the aforesaid order was not complied with whereby their own Competent Authority annulled the dismissal order and orders of Appellate Authority with the directions to hold a de-novo inquiry, they in one voice frankly conceded and assured us that the directions contained in the aforesaid office order shall be complied with.

14.In wake of the above discussion, this Civil Petition is converted into appeal and allowed in the following terms:

II. As per the undertaking/assurance given by the officials of Cantonment Board present in Court, the directions contained in the office order/letter dated 06.06.2023, issued by Mr. Omer Masoom Wazir, Assistant Director General (HR-Section), Ministry of Defence (ML&C Dept.), Government of Pakistan, shall be complied with and denovo inquiry shall be conducted and completed after providing fair opportunity of defence to the respondent No.1 within a period of three months from the date of receiving the copy of this judgment.

III. In case the respondent No.1 is found to be aggrieved by the result of de-novo inquiry and the decision of competent authority as a consequence thereof, he may avail the appropriate remedy by filing an appeal as provided under the provisions of Pakistan Cantonment Servants Rules, 1954 and if dissatisfied, he may also invoke the writ jurisdiction of High Court against the original and appellate order if any against him.

SA/E-4/SC Appeal allowed.