Syed AFTAB AHMED and others vs K.E.S.C. and others

ORDER

' AJMAL MIAN, C.J.---By this common order, we intend to dispose of the above petitions which have been filed by the employees of Karachi Electric Supply Corporation, National Bank of Pakistan, Telephone Industries of Pakistan, Civil Aviation Authority, Pakistan International Airlines Corporation, Pakistan Central Cotton Mills, M/s. Habib Bank Limited, Sui Gas Company Limited, Pakistan Steel Mills Corporation, Agricultural Development Bank of Pakistan, and Employees' Old-Age Benefits Institutions. The present petitions are directed against the various judgments of the Federal Service Tribunal which had declined the petitioners' appeals on the ground that newly incorporated section 2-A in the Service Tribunals Act, 1973, hereinafter referred to as the Act, is not retrospective in operation and, therefore, it would not cover the cases of the petitioners whose cause of action accrued prior to 10-2-1997 i.e, the date on which the amending Act was gazetted. The second ground which found favour with the Service Tribunal in some of the cases was that some of the petitioners were not covered with the definition of "civil servants" given in the Civil Servants Act, 1973, hereinafter referred to as the Act of 1973, and, therefore, their appeals were not competent.

The third ground which found favour in some of the above petitions was that the appellants were employed on contract basis. The fourth ground was that they had not filed the departmental appeals/representations before approaching the Service Tribunal.

2. As regards the above first ground, it may be observed that in Civil Appeals Nos. 1516 to 1537 of 1997 a Bench of this Court comprising one of us (Ajmal Mian, C .J.) and two learned Judges through judgment dated 31-3-1998 on the basis of an earlier judgment of this bourt in the case of Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187) and the other cases referred to in the judgment has held that since the right of appeal is a procedural matter, the newly section 2-A was applicable retrospectively.

3. As regards that second ground which has been found favour with the Service Tribunal, it may be pertinent to reproduce the aforesaid newly enacted section 2A in the Act, which reads as under:- "2-A. Service under certain corporations, etc. To be service of Pakistan. ---Service under any authority, corporation, body or organization established by or under Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purpose of this Act."

A perusal of the abovequoted newly enacted section 2-A indicates that the 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 has been declared to be service of Pakistan. It has also been provided that every person holding a post under any such Authority, Corporation, Body or Organization shall be deemed to be in civil service for the purposes of this Act i.e, the Service Tribunals Act.

1973. In our view, it is not necessary for an employee working in any of the organizations covered by section 2-A that he should also come within the ambit of definition of the "civil servant" given in section 2(b) of the Act of 1973. The employees of the various Authorities, Corporations etc. Mentioned in section 2-A have been treated in the service of Pakistan for limited purpose for providing remedy by way of appeal to them against an order of which they may feel aggrieved.

4. As regards the third ground which found favour with the Service Tribunal in some of the cases, namely, that the petitioners were employed on contract basis or they were workmen excluded by the definition of "civil servants" given in section 2(1)(b) of the Act of 1973, it may be observed that since we have held that the latter definition is not applicable to the employees covered by the newly enacted section 2-A, as a corollary, it must follow that, the exceptions mentioned in clause

(b) of subsection (1) of section 2 of the Act of 1973 will not be attracted to the petitioners' cases.

5. Reverting to the last ground found favour with the Tribunal, namely, that some of the petitioners had approached the Service Tribunal without filing an appeal or representation or before expiry of 90 days from the date of filing of an appeal or representation, it may be stated that in the absence of any statutory provision or any statutory rule providing a right of appeal or right of filing a representation, the requirement of filing such an appeal or representation provided in section 4 of the Act will not be applicable. The Service Tribunal was supposed to examine this question on the basis of the law or the relevant rules applicable to the employees concerned. Secondly; some of the above petitions have arisen out of Constitution petitions which were filed in the High Court and which were treated as abated under section 6 of the Act and, therefore, the question of filing of departmental appeals/representations in such cases would not arise. In .Any case, this question is to be examined by the Service Tribunal afresh. We would, therefore, convert civil petitions arisen from the judgments of the Service Tribunal into appeals and would set aside the judgments of the Service Tribunal and would remand the cases to it to decide the matters on merits in the light of the observations contained herein. As regards civil petitions in which the High Court has declined Constitution petitions on the ground that the petitioners should have approached the Service Tribunal, we would uphold the order of the High Court with the observation that in case the petitioners file applications for condonation of delay till the filing of appeals, the same may be considered sympathetically and the petitioners may not be knocked out on technical ground.