“S. No

Government Servants

Authority

Authorised Officer

 

1

BPS‑1 to BPS‑16

Force Commander (BPS‑20)

(a) Chief Security Officer in respect Airport (BPS-17 and above).

 

 

 

(b) Deputy Director (Adorn.) (BPS‑19) in respect of Head quarters.

 

 

 

(c) Commandant (BPS‑19) Training School in respect of A.S.F. Training School. “

 

 

In other words, the personnel of A.S.F. in disciplinary matter are to be regulated by the above Government Servants (Efficiency and Discipline) Rules, 1973, in the absence of any contrary Rules framed or competently made applicable to the persons working in A.S. F. ,

 

20. That since the judgment of this Court in the case of Fasihuddin (supra) is the basis/first judgment, we may analyse it more in detail. The ratio decidendi of the same seems to be as under:‑‑

 

(i) That as because of the amendments brought about by the above amending Ordinance, 1984, the appellant Fasihuddin had not ceased to be a civil servant, the Service Tribunal had the jurisdiction;

 

(ii) That since he had not ceased to be a civil servant, he could not have been removed under Rule 9‑B of the Army Rules (which can be pressed into service as pointed out hereinabove in para.12 against a person holding a commission in the Pakistan Army);

 

(iii) That as the clauses (c) and (d) of section 11 of the Act (which empowered the Federal Government to frame rules prescribing and regulating the award of the departmental punishment and to appoint the place where a person punished with imprisonment under section 7 of the Act may be kept in custody) were omitted by the amending Ordinance, 1984, the Airports Security Force (Discipline) Rules, 1977, had become redundant and in their place some other rules had to be framed as envisaged by section 7‑A(3) of the Act.

 

However, we may point out that in the above cases inter alia the following aspects were not considered:‑‑

 

(i) That the Act and the Army Act provide civil and criminal liabilities of the persons subject to the same, namely, through departmental proceedings a person subject to the Act or the Army Act may be dismissed or removed from service or a lesser punishment may be imposed or he may be proceeded with through criminal proceedings and be imprisoned and in consequence thereof may be dismissed from service.

 

(ii) That the Army Act is not only applicable to persons belonging to Armed Forces but by operation of law, it is also applicable to other persons specified in clauses (d) and (dd) of subsection (1) of section 2 of the Army Act, quoted hereinabove in para. 11; and secondly, under subsection (1) of section 5 of the Army Act, the Federal Government has been empowered by a notification to apply all or any provisions of the Army Act to any force raised and maintained in Pakistan under the authority of the Federal Government or a Provincial Government as already pointed out hereinabove. In the present case, admittedly, A.S.F. is a force raised and maintained in Pakistan under the authority of the Federal Government. The Federal Government could have issued a notification under above subsection (1) of section 5 of the Army Act but instead of that it made Army Act applicable by law by enacting subsection (1) of section 7‑A (which was added by the aforesaid amending Ordinance, 1984) by providing that every officer and member of the force shall unless he is already so subject, be subject to the Army Act.

 

21. We are inclined to hold that though the status of the persons working in ‘ A.S.F. or that of a civil servant has not ceased by the aforesaid amendments in the Act, but provisions of the Army Act and the Army Act Rules have been competently made applicable to them. Reference may be made to F.B. Ali’s case (PLD 1975 SC‑506). We have referred to hereinabove in para. 12 Rules, 9, 9‑A and 9‑B of the Army. Act Rules relating to release, discharge, dismissal and removal from service, which evidently are applicable to Army personnel. In view of their contents, it will not be possible without appropriate amendments to apply the same to the employees of A.S.F. Additionally, the President of Pakistan through aforesaid SRO No.213(KE)/93, dated 9‑12‑1993 issued under sub‑rule (2) of Rule 2 of the Government Servants (Efficiency and Discipline) Rules, 1973, made the above rules applicable to the persons employed in A.S. F. In this view of the matter, the Army Act Rules relating to the field covered by the aforesaid rules cannot be pressed into service against the persons working in A.S.F. In other words, the above Government Servants (Efficiency and Discipline) Rules, 1973, shall continue to apply to the employees of A.S.F. till the time above S.R.O. is rescinded or special rules covering above subject are framed under the Act or the Army Act.

 

22. We may state that as regards criminal liability of the employees of A.S.F., the provisions of the Army Act and the Army Act Rules are applicable to them by virtue of the aforesaid subsection (1) of section 7‑A of the Act. The same are very comprehensive which we have already referred to hereinabove in detail. It may again be pointed out that award of sentence of imprisonment may also result into dismissal from service as a consequence thereof. This dismissal cannot be equated with a dismissal from service imposed as a major penalty as a result of a departmental disciplinary proceedings.

 

23. A perusal of clauses (a) to (h) of subsection (1) of section 3 read with amended section ‑6 of the Act indicates that A.S.F. was established with the objects contained therein which inter alia include the duty to ensure security of all airports, aerodromes, aircrafts and installations and for safeguarding the same against the acts of unlawful interference or threats of such interference, to ensure security of aircraft, passengers, baggage, cargo and mail and to take effective measures for preventing hijacking, sabotage, letter bombs, dangerous articles and carriage of arms and ammunition into the restricted areas of the airports, aerodromes and the aircrafts and to detect any contraband on the person or in the baggage of any person checked by him. To achieve the above objective it is imperative that the persons entrusted with the above functions should be honest, men of integrity and well‑disciplined. The latter objective cannot be attained unless there is an effective deterring mechanism for punishing the persons guilty of breach of the above duties, but, at the same time, the employees of A.S.F. are entitled to have a fair chance to defend themselves. The above amendments and additions in the Act by the aforesaid amending Ordinance, 1984, seem to be designed and directed to promote the above objective. The same have been reproduced hereinabove in extenso. It will suffice to observe that the words “Director‑General” were substituted by the words “Force Commander” wherever they appear except in sections 2(2)(g), 5(2) and 9; whereas the words “Civil Aviation Department” appearing in section 2(e) have been substituted by the word “force”. It may further be observed that a new subsection (1‑A) has been added to section 6 empowering the force, with the approval of the Federal Government, to ask for help of the military in operation of anti‑hiking. It may further be pointed out that newly‑added sections 7‑A, 7‑B, 7‑C, 7‑D, 7‑E, 7‑F and 7‑G have changed the complexion of the Act inasmuch as under subsection (1) of section 7‑A as pointed out hereinabove, the officers and members of A.S.F. have been made subject to the Army Act. Whereas under subsection (2) thereof, it has been laid down that the Force Commandeer shall in respect of all officers and members of the force have all the power by or under the Act as an officer empowered to convene a General Court‑Martial. Subsection (3) of the same empowers the Federal Government by general or special order to direct by what authority any jurisdiction, powers or duties incidental to the operation of the provisions of the Act shall be exercised of performed in respect of the force. It may further be noticed that subsection (4), which was added to the above section 7‑A on 27‑11‑1993 and which has been referred to hereinabove in discussion provides that “Notwithstanding anything contained in any other law for the time being in force, except the authorities specified in subsections (1) and (2) of section 7‑F, no other authority, Tribunal or Court shall have jurisdiction to vary, modify, alter, annul, set aside, revise or review any order passed by any officer of the Force, authorized under the Pakistan Army Act, 1952 (XXXI of 1952)”.

 

It may also be pointed out that section 7‑B provides the consequence of sentence of imprisonment by laying down that if an officer or a member of the force who is sentenced to imprisonment for a term which is not less than 90 days shall be deemed to have been dismissed from the force. It may further be stated that section 7‑C confers the power of suspension in the prescribed manner for any misconduct, reminiscence or negligence in the discharge of his duties. Section 7‑D deals with the place of imprisonment. Furthermore, section 7‑E provides the power/procedure for capture of deserted. It may also be pointed out that subsection (1) of section 7‑F confers the right of appeal to an aggrieved person to be exercised within 90 days of the order in. all cases decided by the Deputy Director, ‘a Chief Security Officer or any other officer to the officer higher than the one awarding the punishment. Whereas subsection (2) thereof provides right of revision by laying down that a person aggrieved by an order of the Force Commander awarding any punishment may, within 30 days of the order, apply to the Federal Government for revision. The above provisions are to be read in conjunction with newly‑added enacted section 133‑B of the Army Act, which provides right of an appeal referred to hereinabove in para. 11.

 

It may further be stated that section 7‑G deals with the appointments of the personnel in the force and for providing rank structure of the officers and other members of the force vis‑a‑vis the Pakistan Army. It will not be out of context to mention that the aforesaid SRO No.1022(1)/84, dated 27‑11‑1984 was issued pursuant to subsection (3) of above section 7‑G providing schedule of the ranks of the force vis‑a‑vis Pakistan Army quoted hereinabove in para. 10.

 

24. We may observe that the above provisions cannot be ignored merely on the ground that the status of the personnel of A.S.F. remains that of civil servants. The provisions of the Act and the Army Act and the rules framed thereunder, if contrary to the provisions of the Civil Servants Act and the rules framed thereunder, being special, shall prevail over the latter, being general.

 

25. Reverting to the facts of the present appeals, it may again be pointed out that Abdul Majeed was accused of extortion of Rs.500 as illegal gratification from a passenger, whereas Muhammad Abdur Rehman was accused of illegality keeping with him a gold bar belonging to a foreign passenger. Both the above acts were susceptible to departmental as well as criminal proceedings. Both besides the punishment of dismissal from service, were awarded imprisonment for one year each in civil jail. If the dismissal from service was in consequence of above sentence of imprisonment, the same was in terms of section 7‑B already referred to hereinabove which provides that an officer or a member of the force who is sentenced to imprisonment for a term which is not less than 90 days, shall be deemed to have been dismissed from the force. The Tribunal (Service Tribunal) has no power to examine the legality of conviction and sentence recorded under the Act and/or the Army Act. The appellate and the revisional forums provided in section 7 F quoted and referred to hereinabove would have the jurisdiction in respect of the conviction and sentence recorded under the Act, subject to the qualification that if such conviction and sentence suffer from any jurisdictional infirmity or are coram non judice or mala fide, the same may be amenable to Constitutional jurisdiction of the High Court or if the impugned order is under the Army Act in respect of punishments/sentences referred to in section 133‑B of the same, an appeal shall lie to the forums provided therein.

 

The cumulative effect of the above provisions read with subsection (4) of section 7‑A inter alia referred hereinabove seems to be that the Service Tribunal has ceased to have jurisdiction in respect of the employees of A.S. F

 

26. We may observe that above newly‑added subsection (4) to section 7‑A of the Act, which was enacted on 27‑11‑1993 ousting the jurisdiction of other authority, Tribunal or Court other than those specified in subsections (1) and (2) of section 7‑F, has no application to the present case as the convictions and sentences were awarded and Constitutional petitions were filed prior to the above amendments keeping in view the judgment of this Court in the case of Syed Turab Arif Fatimi (supra), in which it has been held that the above provision is not retrospective in operation.

 

27. The High Court has not examined the cases from the above aspects highlighted in this judgment and has solely relied on the judgment of this Court in the case of Fasihuddin (supra). We are, therefore, of the view that it will be just and proper to remand the cases to the High Court to re‑examine the same in the light of what is contained hereinabove. The appeals are allowed, the judgments of the High Court are set aside and the cases are remanded to the High Court with the direction to dispose of the above Constitution petitions afresh after notice to the parties. However, there will be no order as to costs.

 

M.B.A./F‑389/S Order accordingly.

 

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