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1999SCMR2935

 

[Supreme Court of Pakistan]

 

Present: Saiduzzaman Siddiqui, Mamoon Kazi

and Kamal Mansur Alan JJ

 

GUL MUHAMMAD — Appellant

 

versus

 

THE FORCE COMMANDER and another—Respondents

 

Civil Appeal No. 1086 of 1996, decided on 13th July, 1999.

 

(On appeal from the judgment of the Federal Service Tribunal, dated 17-8-1995 passed in Appeal No.24-K of 1994).

 

Fasihuddin v. Khawar Latif Butt and others 1993 SCMR 1 am Commandar. Airport Security Force, Karachi v. Haji Muhammad Rashid 199 SCMR 1614 distinguished.

 

Imran Ahmed, Advocate Supreme Court and Faizanul Haq. Advocate on-Record for Appellant,

 

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Respondents.

 

Date of hearing: 13th July, 1999,

 

JUDGMENT

 

MAMOON KAZI, J.—The appellant, who was Sub-Inspector in Airport Security Force, was discharged from service for an alleged act of misconduct by an order passed by Commander Officer, Airport Security Force, elated 16-7-1993. The appellant filed departmental appeal on 16.7-1993 and on its dismissal he approached the Federal Service Tribunal for redress in appeal. However, his appeal was dismissed as the order of his discharge had been passed by the Force Commander, Airport Security Force under the provisions of Pakistan Army Act. 1952 and according to the Tribunal, its jurisdiction was barred under the newly added subsection (4) of section 7-A in the Airports Security Force Act, 1975.

 

2. Leave was granted by this Court to examine the effect of the said provisions on the Airports Security Force Act as the ratio laid down by this Court to Fasihuddin v. Khawar Latif Butt and others (1993 SCMR- l) was that officers or members of Airports Security Force could seek their remedy in disciplinary matters before the Federal Service Tribunal, notwithstanding the fact that they had been subjected to the provisions of Pakistan Army Act, 1952.

 

3. History of legislation of the said enactment shows that, vide Airports Security Force (Amendment) (Ordinance XXXV of 1994), which came into force on 7-R-1984, certain amendments were introduced in the Airports Security Force Act. 1975. A new section 7-A was added thereto which read as follows:—–

 

‘7-A. Officers and members to be subject to the Pakistan Army Act. 1952. —(1) Every officer and member of the force shall unless he is already so subject be subject to the Pakistan Army Act, 1952 (XXXIX of 1952) hereafter in this chapter referred to as the Act.

 

(2) The Force Commander shall, in respect of all officers and members the Force, have all the powers conferred by or under the Act on an officer empowered to convene a General Court Martial.

 

(3) 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.”

 

4. In 1994 some more amendments were made in the said Act and a new subsection (4) was added to section 7-A which provides as follows:–

 

“(4) 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, authorised under the Pakistan Army Act, 1952 (XXXIX of 1952).”

 

5. As is clearly indicated by subsection (4), notwithstanding anything contained in any other law for the time being in force, jurisdiction of any Authority, Tribunal or Court to deal with an order passed by any officer of the Airports Security Force, authorised under the Pakistan Army Act, 1952, is completely barred. The only exception which appears to have been made in this regard relates to authorities specified in subsections (1) and (2) of section 7-F, with which we have no concern in the present case. Although, Mr. Imran Ahmad, learned counsel for the petitioner concedes that after addition of subsection in section 7-A, the Service Tribunal has ceased to have .jurisdiction in matters of discipline in case of officers of the Airports Security Force if grievance is raised by them in respect of an order passed by any officer of the said Force who is authorised under the Pakistan Army Act, 1952, but, according to the learned counsel, the appellant in the present case had been discharged from service vide order, dated 4-7-1993, whereas, subsection (4) was introduced in section 7-A vide amendment which was notified in the Gazette of Pakistan on 24-3-1994. Therefore, according to the Learned counsel, the said amendment cannot apply retrospectively to the case of the appellant. Reliance has been placed by the learned counsel on Force Commander, Airport Security Force, Karachi v. Haji Muhammad Rashid (1996 SCMR 1614). In this case leave had been granted on the question, whether the ratio of the judgment of this Court in the case of Fasihuddin v. Khawar Latif Butt (supra) still continued to be applicable to the case after addition of the said subsection (4) and whether in consequence thereof the Service Tribunal could set aside a sentence of imprisonment awarded to the appellant under the Pakistan Army Act or the rules framed thereunder. No doubt, in this case both the issues were determined in favour of the appellant, but not for reasons as are canvassed in the present case by Mr. Imran Ahmed on behalf of the appellant. As is indicated by the observations made by this Court in para. 26 of the judgment in the said case, the amendment in section 7-A of the airports Security Force Act had been introduced when the case had already been disposed of and only Constitutional Petitions filed by the appellants against the impugned action were pending before the Court. Therefore, the amendments were not applied retrospectively. However, same does not appear to be the case in the present case. In this case the appeal was filed by the appellant before the Service Tribunal on 26-2-1995 and at that time the amendment made in section 7-A by addition of subsection (4) thereto had already become applicable to the appellant’s case. The effect of the said amendment clearly was to bar the jurisdiction of the Service Tribunal or any other authority, tribunal or court in matters such as the present one. There appears to he no controversy in regard to the fact that the order which was passed by the Commander Officer in case of the appellant fell within the purview of section 17 of the Pakistan Army Act. The section indicates that Commander in-Chief may dismiss or remove from service any Junior Commissioned Officer or Warrant Officer or any person enrolled under the Pakistan Army Act. Similar power can be exercised by any other officer, authorised by the Commander-in-Chief in this behalf. There is no controversy in regard to the fact that vide subsection (1) of section 7-A every officer and member of the Airports Security Force has been made subject to the Pakistan Army Act, 1952. Consequently, for the aforesaid reasons the facts of the present case are clearly distinguishable and the ratio of either of the two ,judgments of this Court in the case of Fasihuddin v. Khawar Latif Butt and Force Commander, Airport Security Force v. Haji Muhammad Rashid is not applicable to the present case. The judgment passed by the Service Tribunal, therefore, does not appear to be open to exception.

 

6. In the result, the appeal is dismissed. There will, however, be no order as to costs.

 

M.B.A./G-45/S Appeal dismissed.

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