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1993 S C M R 1

 

[Supreme Court of Pakistan]

 

Present: Ajmal Mian, Sajjad Ali Shah and Saleem Akhtar, JJ

 

FASIHUDDIN‑‑‑Appellant

 

versus

 

KHAWAR LATIF BUTT and others‑‑‑Respondents

 

Civil Appeals Nos.216‑K and 217‑K of 1991, decided on 16th September, 1992.

 

(On appeal from the judgment of the Federal Service Tribunal dated 25‑4‑1991 passed in Appeals NOS.1(K) of 1991 and 81(K) of 1990 respectively).

 

Kunwar Mukhtar Ahmed, Advocate Supreme Court instructed by Ahmadullah Farooqui, Advocate‑on‑Record for Appellant.

 

Nemo for Respondents.

 

Date of hearing: 12th April, 1992.

 

JUDGMENT

 

SAJJAD ALI SHAH, J.‑‑‑In the above mentioned two civil appeals with leave of the Court are challenged judgments dated 25‑4‑1992 of Federal Service Tribunal, whereby service appeals of the appellant have been dismissed in limine on the short ground that he ceased to be “civil servant” by virtue of insertion of section 7‑A in the Airports Security Force Act, 1975 made by Airports Security Force (Amendment) Ordinance, 1984. At the relevant time appellant was holding post of Security Officer to the department of Civil Aviation (A.S.F). Initially he was appointed as Inspector in that department in the year 1976. He applied for the post of Assistant Security Officer (B‑16) in 198(1 and was selected by Public Service Commission and appointed against that post. In the year 19&8 he was selected by Federal Public Service Commission and appointed against the post of Security Officer (B‑17).

 

2. Appellant receiving adverse remarks in his annual confidential report in the year 1989, made representation/appeal for expunction and then filed appeal before Service Tribunal. Vide order dated 31‑7‑1990 he has been removed from service under powers exercised under Pakistan Army Act, 1952 read with Rule 9‑B of Pakistan Army Act Rules, 1954. His two appeals have been dismissed by Federal Service Tribunal (to be referred hereafter as the Tribunal) as stated above. Civil Appeal No.216‑K of 1991 is in respect of expunction of adverse remarks and Civil Appeal No. 217‑K of 1991 is against his removal of service.

 

3. Perusal of judgments of the Tribunal impugned in these appeals shows that they are very brief and appeals have been dismissed summarily on the ground that appellant is not a civil servant in view of amendment in the relevant law mentioned above. Since service appeals were dismissed in limine, there was no way of ascertaining as to what stand respondents, particularly the concerned department, proposed to take against the grievances of the appellant. In this context, Tribunal relied upon its judgment dated 5‑3‑1991 in similar case registered as Appeal No.164(K) of 1988 entitled Mrs. Nelofar Butt v. Secretary, Aviation Division Rawalpindi and another, copy of which is on the record of this case.

 

4. Service appeal of Mrs. Nelofar was contested by the concerned department before the Tribunal and preliminary objection was taken that she was not a civil servant in view of amendment in the relevant law and, therefore, was not entitled to invoke jurisdiction of the Tribunal. According to the department, Mrs. Nelofar was removed from service on account of depriving an old lady passenger of Rs.900 during the course of frisking. It appears that she did not file petition for leave to appeal in the Supreme Court, because had it been done, her petition would have come up for hearing and possibly would have been linked with this matter.

 

5. It appears from the judgment in Mrs. Nelofar’s case, upon which reliance is placed by the Tribunal in forming the view that its jurisdiction is barred on account of amendments brought in Airports Security Force Act, 1975 by Airports Security Force (Amendment) Ordinance XXV of 1984, inserting section 7‑A in the Act providing that officers and members of the Force shall now be subject to the Pakistan Army Act, 1952.

 

6. Discussing the impact of the amendment the Tribunal has come to the conclusion that since all officers and members of .the Force have been subjected to the Pakistan Army Act, 1952 and Force Commander has been conferred powers under the Army Act for ‘convening a general Court Martial in respect of any officer or member of the Force, hence the intention is that officers and members of the Force are to be governed for all disciplinary matters under the Army Act. It, therefore, follows that officers and members of the Force are not civil servants within the definition of the term contained under section 2 of Civil Servants Act 1973, as jurisdiction extends to only those persons who are civil servants within the definition‑of “civil servant” contained in section 2 of Civil Servants Act, 1973.?????????

 

7. We do not feel inclined to agree with the line of reasoning given by the Tribunal for concluding that appellant in this case is not a “civil servant” because of amendment made in the law mentioned above. Preamble of Airports Security Force Act, 1975 shows that the said law has been enforced to provide for the constitution and regulation of the Airports Security Force for ensuring security of all aerodromes, airports, aircraft and civil aviation installations, and for the maintenance of law and order therein. and for matters connected therewith or ancillary thereto. Federal Government is empowered to constitute . and maintain such Force consisting of officers and members headed by Force Commander working under general supervision of Director General. “Officer” is a person and “member” is a person other than officer, who have been appointed to the Force and have signed affirmation in the form set out in the First Schedule. Under section 9 Federal Government is authorized to delegate all or any of its powers under this Act except those under section 11 to the Director General. Under section 10 Director General with prior approval m writing of the Federal Government is authorised to delegate all or any of his powers to any officer or authority subordinate to him. Under section 11 Federal Government is empowered to make rules regulating functions and powers of the officers and members and their grades and conditions of service.

 

8. Under section 11 of the above mentioned Act, 1975, Airports Security Force (Discipline) Rules 1977 have been framed providing for disciplinary proceedings, investigation, setting up of summary Court and punishments to be meted out including stoppage of increment to dismissal from service and sentence of imprisonment which may extend to six months. “Summary Court” is defined in these rules as meaning a Court consisting of a Force Commander or a Deputy Director or any other officer not below the rank of Assistant Director empowered by the Federal Government to exercise the functions of a Court. Officers and Members of Airports Security Force (Service) Rules 1978 provide that Force Commander shall exercise his powers under the supervision of Director General who shall be responsible to the Federal Government for the administration of the Force and further specify the duties of the Force Commander and officers and members and their method of appointment, seniority, confirmation, confidential reports and such other allied matters relating to terms and conditions of service.

 

9. Perusal of Airports Security Force (Amendment) Ordinance, 1984 shows that its main purpose is to free “Force Commander” from supervisory control of Director General and allow him to exercise powers of the latter and in the result substituted “Force Commander” in place of “Director General” wherever such term is used in the said Act. In consequence amendments have been made in sections 2, 3, 5, 7, 9 and 11 of the said Act of 1975. It would be pertinent to mention here that while amending section 6, subsection 1‑A has been inserted empowering Force Commander to call for military assistance in connection with post‑landing and anti‑hijacking operations at an airport with previous approval of the Federal Government and when it is done all officers and members of the Force and all civil agencies operating at the airport are supposed to follow directions of military authority rendering such assistance.

 

10. Section 7 of the Airports Security Force Act, 1975 relates to liabilities of officers and members in’ respect of their duties and punishments to be awarded if they have been found to be guilty of violation of duty or neglect of any rules and regulations or disobedience of lawful order. This section is radically changed by amendment by introducing sections 7‑A to 7‑G providing specifically that officers and members of the Force are now subject to Pakistan Army Act, 1952. Subsection (2) of 7‑A provides that the Force Commander shall, in respect of all officers and members of the Force, have all the powers conferred by or under the Act on an officer empowered to convene a general Court Martial. Subsection (3) further provides that subject to subsection (2) the Federal Government may, by general or special order, direct by what authority any jurisdiction, powers or duties incidental to the operation of the provisions of the Act shall be exercised or performed in respect of the Force. This has not been done so far in spite of the fact that section 11 of the said Act of 1975 is also amended by the amending Ordinance of 1984 omitting clauses (c) and (d) rendering rules made by the Government regarding departmental punishments namely Airports Security Force (Discipline) Rules, 1977 redundant.

 

11. Sections 7‑B to 7‑E cover subjects of consequence of sentence of imprisonment, suspension, place of imprisonment and capture of deserters. Section 7‑F relating to appeal and revision provides that in all cases decided by the Deputy Director and Chief Security Officer or any other officer, a person aggrieved may, within thirty days of the order, appeal to the officer higher than the one awarding punishment. Subsection (2) of 7‑F provides that a person aggrieved by an order of the Force Commander awarding any punishment may, within thirty days of the order, apply to the Federal Government for revision.

 

12. Provisions of amending Ordinance of 1984 referred above, show that by amendment officers and members of the Force have been subjected to Pakistan Army Act to the extent of disciplinary matters and proceedings and Director General is replaced by Force Commander who is invested with powers which were previously. exercisable by the Director General under the provisions of the Act and rules made thereunder. Amendments mentioned above do not say expressly or impliedly that an officer or member of the Force is not a civil servant in consequence of these amendments or forum of Tribunal is not available to pursue remedy for redressal of grievance after action is taken under the amended provisions in respect of disciplinary proceedings.

 

13. Now question arises whether an officer or member of Airports Security Force is a civil servant or not. In this context, there is no dispute about the fact that Airports Security Force functions under Civil Aviation Division of Ministry of Defence, which is a Federal subject. For definition of “civil servant” reference can be made to section 2(b) of Civil Servants Act, 1973, which defines “civil servant” as meaning 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 a “worker” or “workman” as defined in the Factories Act, 1934 or the Workmen’s Compensation Act, 1923.”

 

14, Expression “civil post” came up for consideration in the case of Yousuf Ali Khan v. Province of Punjab (AIR (37) 1950 Lah.59) and Cornelius, J. (as he then was) held that in the absence of specific definition of this term ordinary dictionary meaning is to be followed; according to which it means an appointment or an office on the civil side of the administration as distinguished from the military side.

 

15. Chapter 11 of the Civil Servants Act, 1973 envisages terms and conditions of service of civil servants covering appointment, probation. confirmation, seniority, promotion and other such subjects. Now officers and members of the Force under Airports Security Force Act, 1975 are appointed by the Federal Government and their terms and conditions of service are reflected in the rules framed by the Federal Government as contemplated under section 11 of the said Act. Two sets of the rules have been framed namely Airports Security Force. (Discipline) Rules, 1977 and Officers and Members of Airports Security Force (Service) Rules, 1978. The latter set of rules relates to the composition of the Force and grades of the officers and members of the Force covering matters relating to method of appointment, seniority, confirmation, annual confidential report and such other allied matters, which still hold field and have not been annulled expressly or impliedly in consequence of Airports Security Force (Amendment) Ordinance. 1984. These rules show that Force Commander is in Grade 19 or 20, Deputy Director is in Grade 18 plus special pay of Rs.50 per month, Security Officer is in Grade 17 and so on and so forth. Method of appointment is by promotion or transfer or by initial appointment. Methods of appointment and qualifications and other conditions are to be laid down by Aviation Division in consultation with Establishment Division.

 

16. In the context of what is stated above, reference can be made to Civil Servants (Appointment, Promotion & Transfer) Rules, 1973, which have been framed under section 25 of the Civil Servants Act, 1973. These Rules contemplate method of appointments of different grades and formation of Federal Public Service Commission and Departmental Promotion and Selection Committees. These rules further contemplate that for Grade‑16 and above, the appointing authority is Prime Minister and initial appointments in these grades are to be made through Federal Public Service Commission. There is absolutely no dispute about the fact that in the Airports Security Force there are officers and members who are civilians and have been appointed through Federal Public Service Commission and they are to be treated as holding civil posts in connection with affairs of Federation even if they are serving in the Ministry of Defence and have been subjected to Pakistan Army Act for the purposes of disciplinary proceedings only. If such officer or member is aggrieved against an order in disciplinary proceedings, which are taken in hand as departmental proceedings and is dismissed or removed from service, he cannot be shut out from pursuing his remedy in the Federal Service Tribunal on the ground that he is no more a civil servant just because he has been subjected to Pakistan Army Act in disciplinary matters only.

 

17. It is worth noting that after amendment in section 11 of the Airports Security Force Act omitting clauses (c) and (d) providing for punishment in departmental proceedings, Airports Security Force (Discipline) Rules, 1977 have become redundant and in their place some other disciplinary rules have to be framed as contemplated and directed under section 7‑A(3) of Airports Security Force (Amendment) Ordinance, 1984 and until that is done, there is no other way except applying Government Servants (Efficiency and Discipline) Rules, 1973 to the officers and members of Airports Security Force for the reason that their status as civil servants is not altered and remains same in spite of amendments in the said Act brought about by the amending Ordinance of 1984 mentioned above subjecting them to Pakistan Army Act in disciplinary matters.

 

18. For facts and reasons stated above, appeals are allowed and in the result judgments of the Tribunal are set aside and the cases are remanded to the Tribunal for decision on merits.

 

M.B.A./F‑252/S Appeals allowed.

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