SUI SOUTHERN GAS COMPANY LTD. and anothers vs Khawaja MUHAMMAD

ORDER

1. ' WAJIHUDDIN AHMED, J.---The High Court in Constitutional Petition No,D-1125 of 1998 has reversed the successive orders of the XIIIth Civil Judge, Karachi (South), and the IInd Additional Sessions Judge, Karachi (South), whereby Execution No,001 of 1997, filed by the respondent No,1, was found to have abated pursuant to the insertion of section 2-A in the Service Tribunals Act, 1973. The initial order in execution was passed on 18-11-1997 and its affirmation in revision occurred on 20-3-1998.

2. ' The background of the controversy is recorded by the High Court in these words:-- "Facts of petitioner's case, in brief, are that he retired on 5-6-1994 from the post in Executive grade of Sui Southern Gas Company Ltd. He instituted a Civil Suit No,211 of 1997, against the respondents No,1 and 2, for recovery of an amount of Rs,23,000 on account of contribution of Southern Gas Executive Benevolent Fund. The said suit was decreed by XIIIth Civil Judge, Karachi (South) vide decree, dated 5-3-1997. Respondents Nos.1 and 2 preferred an Appeal No,17 of 1997 against the said decree, which was heard by the learned Third Additional District Judge, Karachi (South) who returned the same to the appellant for its presentation in proper Court having jurisdiction vide order, dated 29-8-1997. The respondents Nos.1 and 2 did not present/ file any appeal. The petitioner filed Execution Application No, 001 of 1997 for execution of said decree, dated 5-3-1997 before the XIIIth Civil Judge, Karachi (South), which the Court declined to entertain requiring the petitioner to file the same before a proper forum on the ground that the said application abated in view of amendment so introduced in Service Tribunals Act, 1973. Petitioner challenged this order in Civil Revision No,44 of 1997 before the learned Second Additional Sessions Judge, Karachi (South) who passed the impugned order as mentioned above."

3. ' Mr. Ch. Muhammad Jamil, the learned Advocate Supreme Court . Representing the petitioners, for assailing the High Court order of reversal, has placed reliance on the following passage occurring in Badaruddin v. Ahmad Rua, PLD 1993 SC 399:-- "7. Second ground given by the High Court is that writ will not lie if final order is passed by Revisional Court. There is no dispute about the fact that powers of the High Court for exercise of revisional jurisdiction under section 439, Cr.P.C. Are wider in scope than powers in the writ jurisdiction. By amendment in the law now Sessions Court and High Court have concurrent revisional jurisdiction which is allowed in the normal course to be exercised first by lower forum but that does not decrease the scope of jurisdiction as mentioned above. In such circumstances it is said that if there is finding by the Court of competent jurisdiction on the revisional side then it has attained finality. On the same question writ petition would be non-maintainable because otherwise it would amount to allowing question finally decided in one set of forums to be agitated afresh in another set of forums and that way there will be no end to the finality. In support of the proposition reference can be made to the cases of Abdul Rehman Bajwa v. Sultan and others (PLD 1981 Supreme Court 522) and Javaid Iqbal v. Muhammad Din and another (1990 SCM R 1309)."

4. ' It is true that the principle highlighted by their lordships would be attracted to the controversy involved in these proceedings. What is more, even generally, it is not a practice of the Superior Courts to allow invocation of the Constitutional remedy under Article 199 in order to correct judicial errors of the ordinary Courts of civil or criminal jurisdiction. In matters, originating from those jurisdictions, where the High Court, routinely, exercises appellate or revisional power, the normal recourse to such appellate or revisional proceedings has always been found to be preferable and Constitutional jurisdiction, correspondingly barred in the face of the alternative and equally efficacious remedies. However, like all rules, this, also, carries some exceptions. One such exception arises, where no statutory remedy remains available to be invoked before the High Court and -the impugned order passed by the relevant forum is found to be without jurisdiction or otherwise void.

5. If that be so and the Constitutional jurisdiction is attracted, such may, in the discretion of the Court, be allowed to be resorted to.

6. ' The question, therefore, which emerges is whether the, successive orders of the learned original and revisional Courts, which were set aside in the exercise of Constitutional jurisdiction by the High Court, suffered from any of these infirmities and whether the discretion, vesting in the High Court, was correctly exercised. For that purpose we shall have to go to the newly inserted section 2-A in the Service Tribunals Act, 1973, and Article 212(2) of the Constitution of Pakistan. All these are reproduced hereunder:- Service Tribunals Act, 1973 "(2-A) Service under certain Corporations, etc. To be Service of Pakistan.---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 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."

7. Constitution of Pakistan "212(1) ........................................................

(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 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.

8. ' Once, be seen that'on the date of the promulgation and insertion of section 2-A above viz. 10-6- 1997 no proceedings, either explicity or implicitly, falling within the jurisdiction of the Service Tribunal were pending. This arose because the employee of the present petitioners had already retired from service had filed, and what is more, obtained a decree for money before the crucial,date, when the said section was brought on the statute book. The above decree, as pointed out by the High Court, had also, in due course, attained finality. Mere filing or continuation of execution proceedings qua such a decree, a past and closed transaction, did not constitute any pending proceeding, which would, in the normal course, abate, pursuant to the mandate in Article 212(2) of the Constitution, aforementioned. The word "proceedings" in Article 212(2), plainly, means and implies proceedings in a pending lis and, obviously, not an independent proceeding, after final disposal, such as an execution application. The two learned Civil Courts, therefore, were clearly acting beyond jurisdiction when they found the said execution proceedings to have abated in consequence of the referred Constitutional provision. In these circumstances, the High Court was clearly right in holding the impugned orders of such Civil Courts to be without jurisdiction. Extending relief in the exercise of the High Court's own Constitutional jurisdiction, which in the foregoing background stood fully attracted, was also, eminently, a judicious use of discretion.

9. ' This petition, seeking leave to appeal against the High Court order, besides, is also barred by one day, a circumstance, which has not been explained.

10. ' With the above observations, this leave petition is dismissed and the High Court order duly maintained.