2005 S C M R 866
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ
Mrs. MUSHTAR JAHAN—Appellant
versus
PRIME MINISTER OF PAKISTAN and others—Respondents
Civil Appeals Nos.1575 of 2000 and 219 of 2003, decided on 28th December, 2004.
(On appeal from the judgments of the Federal Service Tribunal, Islamabad, dated 16-2-2000 and 5-6-2002 passed in Appeals Nos.54(K) of 1994 and 91(P)/CS of 2001 respectively).
Force Commander A.S.F. v. Muhammad Rashid 1996 SCMR 1614; Gul Muhammad v. Force Commander 1999 SCMR 2935; Fasihuddin v. Khawar Latif Butt 1993 SCMR 1; Tarab Arif Fatimi v. President of Pakistan PLD 1994 SC 562; Mst. Mushtar Jehan v. Honourable Prime Minister of Pakistan and 3 others 2001 SCMR 863; Syed Shahsawar Haider v. The Chief Security Officer, Airport Security Force C.P. No.3025/L of 2000 and Azhar Majeed Khalid v. Force Commander Airport Security Force 2002 SCMR 1135 ref.
Kanwar Mukhtar Ahmed, Advocate Supreme Court and Ahmedullah Farooqi, Advocate-on-Record for Appellant (in Civil Appeal No.1575 of 2000).
Sajjad Ali Shah, Dy. A.-G. and A.A. Siddiqui, Advocate-on-Record for Respondent No.4.
Respondents Nos.1 to 3 and 5: Ex parte.
Appellant in person (in Civil Appeal No.219 of 2003).
Sajjad Ali Shah, Dy. A.-G. and A.S.K. Ghori, Advocate-on-Record for Respondent No.2 (in Civil Appeal No.219 of 2003).
Date of hearing: 28th December, 2004.
JUDGMENT
JAVED IQBAL, J.— The above captioned appeals with leave of the Court are directed against the judgments dated 16-2-2000 and 5-6-2002 whereby the appeals preferred on behalf of appellants have been dismissed. We intend to dispose of the above captioned appeals by this common judgment as similar questions of law and fact are involved in the appeals arising out of two different judgments passed by the learned Federal Service Tribunal.
2. Leave to appeal was granted in Civil Appeal No.1575 of 2000 vide order, dated 27-11-2000 which is reproduced hereinbelow for ready reference and to appreciate the legal and factual aspects of the controversy:–
“This civil petition for leave to appeal is directed against the judgment, dated 16-2-2000 passed by learned Federal Service Tribunal, whereby the appeal filed by petitioner Mrs. Mushtar Jehan was dismissed on the ground that the said Tribunal has no jurisdiction to hear the appeal in view of section 7-A(4) of Airports Security Force Act, 1975.
(2) We have heard the learned counsel for the parties and gone through the relevant provisions of section 7-A(4) of Airport Security Force Act, 1975.
(3) In Force Commander A.S.F. v. Muhammad Rashid 1996 SCMR 1614, this Court has observed at page 1642:–
“the cumulative effect of the above provisions read with subsection (4) of section 7-A inter alia hereinbelow seems to be that the Service Tribunal has ceased to have jurisdiction in respect of the employee of A.S.F.”
In Gul Muhammad v. Force Commander 1999 SCMR 2935, this Court has observed at page 2938:–
” after addition to subsection (4) 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 authorized under the Pakistan Army Act, 1952 “
In Fasihuddin v. Khawar Latif Butt 1993 SCMR 1, this Court has observed:–
“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.”
In Tarab Arif Fatimi v. President of Pakistan PLD 1994 SC 562 this Court, following the views expressed in Fasihuddin v. Khawar Latif Butt 1993 SCMR 1, allowed the appeals and remanded the case to the Tribunal with direction to decide the appeals on merits.
(4) In the above cited judgments of this Court conflicting views have been taken with regard to the jurisdiction of the Federal Service Tribunal in disciplinary matters of the officials of Airports Security Force in view of section 7-A(4) of Airports Security Force Act, 1975. In order to resolve the above controversy, we grant leave to appeal to consider whether in view of the provisions of section 7-A(4) of Airports Security Force Act, 1975, Federal Service Tribunal is completely barred from hearing the appeals of the Airports Security Force personnel?”
3. Leave to appeal in Civil Appeal No.219 of 2003 was granted by means of order, dated 17-2-2003 which is reproduced hereinbelow for ready reference:–
“Learned counsel for the petitioner has called our attention to the case of Mst. Mushtar Jehan v. Honourable Prime Minister of Pakistan and 3 others 2001 SCMR 863 in which leave has been granted to consider whether in view of the provisions of section 7-A(4) of Airports Security Force Act, 1975, jurisdiction of the Service Tribunal is barred.
(2) Leave is also granted in this case. Learned counsel for the appellant when questioned, submitted that the said appeal has not yet been decided. This appeal shall be heard along with the appeal of Mst. Mushtar Jehan (supra).”
4. A bare perusal of the leave granting orders would reveal that leave has only been granted to consider the question as to whether in view of provisions as contained in section 7-A(4) of the Airports Security Force Act, 1975, the Federal Service Tribunal is completely barred from hearing of appeals of the Airports Security Force Personnel or otherwise?
5. Mr. Kanwar Mukhtar Ahmed, learned Advocate Supreme Court appeared on behalf of Mrs. Mushtar Jahan (Appellant in C.A. No.1575 of 2000) and argued with vehemence that the legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is urged emphatically that the appellant had a vested right of appeal under section 4 of the Service Tribunals Act, 1973 and appeal could have been filed under section 4 of the Service Tribunals Act, 1973 after rejection of her departmental appeal and the amending Ordinance XLIV of 1973 dated 27-9-1993 would have no substantial bearing on the fate of the case as subsection (4) was added to section 7-A of the Airport Security Force Act, 1975 w.e.f. 27-9-1993. It is next contended that the order of compulsory retirement dated 28-8-1991 was not in consonance with the provisions as contained in the Army Act, 1952 and on this score alone the judgment impugned is liable to be struck down. It is also argued that the appellant being civil servant and having incurred no criminal liability should have been proceeded under the Government Servants (Efficiency and Discipline) Rules, 1973 and not under the Army Act, 1952 or the Rules made thereunder as admittedly the appellant was not an Army Official (Officer). To substantiate his esteemed view, reliance has been placed on the dictum laid down by this Court reported as Fasihuddin v. Khawar Latif Butt and others 1993 SCMR 1 whereby it was held that the persons working in the Airport Security Force despite being subject to the Pakistan Army Act, 1952 continue to enjoy the status of civil servant and as such, in disciplinary matters they are governed by the Government Servants (Efficiency and Disciplinary) Rules, 1973. The learned Advocate Supreme Court on behalf of appellant also referred the judgment of this Court reported in case Force Commander, Airports Security Force, Karachi and others v. Haji Muhammad Rashid and another 1996 SCMR 1614 wherein it was held that the Government Servant (Efficiency and Disciplinary) Rules, 1973, were applicable to the employees of the Airport Security Force by S.R.O. No.213(KE)/93 dated 9-12-1993 as such the order of compulsory retirement of the appellant under Rule 9-B read with AIR(R)-Vol-1 Rules, 263 and 269 was without lawful authority. It is also contended that the Airport Security Force (Amendment) Ordinance, 1993 is ultra vires of the Constitution of Islamic Republic of Pakistan whereby the Service Tribunal has been set up under Article 212 which shall have exclusive jurisdiction in respect of the matters relating to the terms and conditions of employees of the Airport Security Force which otherwise cannot be given retrospective effect.
6. Mr. Sajjad Ali Shah, learned Deputy Attorney-General, entered appearance on behalf of respondents and controverted the view point as canvassed at bar by Mr. Kanwar Mukhtar Ahmed, learned Advocate Supreme Court on behalf of appellant and supported the judgment impugned for the reasons enumerated therein with further submission that learned Service Tribunal had absolutely no jurisdiction to decide such appeals after addition of section 7-A(4) in the Airport Security Force Act, 1975 which is free from any ambiguity. In order to substantiate his view point reliance has been placed upon the case-law as laid down in Civil Petition No.3025-L of 2000.
7. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. The judgments impugned have been perused with care and caution. Let we make it clear at the outset that various points have been argued qua which leave to appeal was not granted. We have therefore, confined ourselves to the determination of main pivotal question i.e. whether in view of the provisions of section 7-A(4) of the Airports Security Force Act, 1975, the Federal Service Tribunal is completely barred from hearing of appeals of the Airports Security Force Personnel? It was dilated upon and decided by this Court in case Syed Shahsawar Haider v. The Chief Security Officer, Airport Security Force C.P. No.3025-L of 2000 authored by one of us Mr. Justice Javed Iqbal, relevant portion whereof is reproduced hereinbelow for ready reference:–
“The pivotal question which needs determination would be as to whether the appeal was maintainable before learned Service Tribunal in view of the provisions as contained in section 7-A(4) of the Act which is reproduced hereinbelow for ready reference:–
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 of the force, have all the powers conferred by 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.”
6. A new subsection (4) was inserted under section 7-A of the Act w.e.f. 27-11-1993 by means of Airport Security Force (Amendment) Ordinance, 1993 which runs 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, authorized under the Pakistan Army Act, 1952 (XXXIX of 1952).”
7. A careful reading of the above provisions of the Act would reveal that the Pakistan Army Act, 1952 shall be applicable on every member of the force irrespective of the status and any order passed against them cannot be challenged or assailed except in the manner as provided under section 7-F(1) and (2) of the Act meaning thereby that no other Authority, Tribunal or Court shall be competent to vary, modify, alter, annul, set aside and revise or review of any order passed under the Pakistan Army Act, 1952. It would certainly be a far-fetched interpretation to exclude the Service Tribunal from the jurisdiction of section 7-A(4) of the Act which is free from any ambiguity being couched in a very simple, plain and unambiguous language. The main object of insertion of subsection (4) of the Act is to oust the jurisdiction of all other forums and Service Tribunal is no exception to it. We are not persuaded to agree with the learned Advocate Supreme Court that the Act being sub-servient legislation cannot oust the jurisdiction of learned Service Tribunal being creation of the Constitution and Article 212 of the Constitution of the Islamic Republic of Pakistan would remain intact for the reason that though learned Service Tribunal has been constituted under Article 212 of the Constitution yet a line of distinction has to be drawn between “Constitution of the Tribunal” and “Jurisdiction of the Tribunal” which has been conferred by virtue of section 4 of the Services Tribunals Act, 1973 and not by the Constitution. New insertion of subsection (4) deals with the question of jurisdiction and does not affect the Constitution of Tribunal.
8. We are not examining the core issue of the jurisdiction in such-like cases on first occasion which was dilated upon and decided in a comprehensive manner in cases titled Gul Muhammad v. Force Commander 1999 SCMR 2935, Force Commander A.S.F. v. Muhammad Rashid 1996 SCMR 1614. In Civil Appeal No.1932 of 1998 Sarfraz Hussain v. The Pakistan through Secretary, M/o Defence and others the question of jurisdiction of the Service Tribunal was also discussed in a similar case and it was held as under:–
“(2) Appeal arising out of C.P. No.107-K of 1995 has been decided through judgment reported as Gul Muhammad v. Force Commander 1999 SCMR 2935 in which it was held that such a member of Airport Security Force, against order of infliction of punishment by the departmental authority, could not approach the Tribunal as jurisdiction of the Tribunal was barred under the said provisions of Airport Security Force Act, 1975.”
8. The question of jurisdiction of the learned Federal Service Tribunal qua the employees of Airports Security Force was also discussed in case of Azhar Majeed Khalid v. Force Commander Airport Security Force 2002 SCMR 1135 relevant portion whereof is reproduced hereinbelow for ready reference:–
(6) In the reported case as Gul Muhammad v. The Force Commander and another 1999 SCMR 2935, a Full Bench of this Court, comprising three Judges having taken into consideration the ratio of two judgments of this Court, reported as Fasihuddin v. Khawar Latif Butt and others 1993 SCMR 1 and Force Commander, Airport Security Force, Karachi and others v. Haji Muhammad Rashid and another 1996 SCMR 1614, held that under above 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 Airport Security Force, authorized under the Pakistan Army Act, 1952, was completely barred. Also it was held that after insertion of sub-clause (4) the ratio of just above-referred two judgments was not applicable. In other words, the Tribunal or for that matter any authority, except as mentioned in section 7(A), would have no jurisdiction to vary, modify, alter, annul, set aside, revise or review any order passed by an officer of the force authorised under the Pakistan Army Act, 1952.
(7) In the instant case, it is an admitted position that the appellant was dismissed by the Chief Security Officer, Airport Security Force, who is an officer of force within the meaning of Army Act, 1952. It being so, the Tribunal rightly declined to entertain the appeal for want of jurisdiction. No interference is warranted.”
In view of the dictum as laid down by this Court in the above mentioned cases it can be concluded safely that the learned Federal Service Tribunal has no jurisdiction to dilate upon and decide the departmental appeals preferred on behalf of the employees of Airport Security Force because jurisdiction of the Federal Service Tribunal has been ousted by means of newly-added section 7-A(4) in the Airports Security Force Act, 1975.
9. We are not persuaded to agree with Mr. Kunwar Mukhtar Ahmed, learned Advocate Supreme Court on behalf of appellant that the right of appeal accrued in favour of the appellant cannot be extinguished even after the addition of section 7-A(4) of the Airports Security Force Act, 1975 which has not been made applicable with retrospective effect for the simple reason that the right of appeal by no stretch of imagination could survive after 27-11-1993 when the learned Service Tribunal had ceased jurisdiction after addition of section 7-A(4) of the Airports Security Force Act, 1975. It must not be lost sight of that the departmental appeal preferred on behalf of appellant was dismissed on 1-3-1994 when the learned Service Tribunal could not have been approached due to want of jurisdiction. It is pertinent to mention here that the addition of section 7-A was made in the Airports Security Force Act, 1975 by means of Airports Security Force (Amendment) Ordinance, 1984, the provisions enumerated therein have removed all the doubts regarding the status of employees of Airports Security Force who are subject to the Pakistan Army Act, 1952 for all practical and disciplinary purposes. The grievance of appellant, if any, could only be redressed by approaching the forum available in the hierarchy of the Pakistan Army Act, 1952, Airports Security Force Act, 1975 and rules made thereunder irrespective of the nature of proceedings as no line of distinction has been drawn between disciplinary action and the administrative action. There would be no logic behind the idea that disciplinary proceedings should be initiated under the Civil Servant Act and the rules made thereunder and the administrative action should be taken under the Pakistan Army Act, 1952 and Airports Security Force Act, 1975 as pressed time and again by the learned counsel on behalf of appellant. It is not disputed that Mrs. Mushtar Jahan (appellant) was serving as Security Officer in the Airport Security Force and order of her compulsory retirement was made by the Force Commander, Airport Security Force who is admittedly not a Civil Officer pursuant to Rule 9-B read with AR(R) Vol.I 263-269. The appellant was admittedly a member of the Airport Security Force and subject to the provisions of Pakistan Army Act, 1952 and Airports Security Force Act, 1975 and therefore, the learned Service Tribunal would have no jurisdiction to entertain her appeal which has rightly been rejected due to want of jurisdiction.
10. The case of Mr. Wasiullah Khan is identical who was also compulsory retired by means of order dated 26-8-2000 passed by the Chief Security Officer on account of his misbehaviour with the Senior Command and generally undesirable attitude towards senior officer of the force. The appellant being aggrieved approached the Secretary Defence on 13-9-2000 for redressal of his grievance by means of review petition which was not responded and subsequently, the learned Service Tribunal was approached by means of appeal which has been rejected vide judgment, dated 5-6-2002. As mentioned hereinabove, the case of Mr. Wasiullah Khan is similar to that of Mrs. Mushtar Jahan which has been discussed at length in the preceding paragraphs. The appeal of Mr. Wasiullah Khan has been dismissed by the learned Federal Service Tribunal, due to want of jurisdiction and as a result of addition of section 7-A(4) of the Airports Security Force Act, 1975. Mr. Wasiullah Khan has argued his case by raising various questions of law and fact which cannot be dilated upon and decided as leave has been granted only to consider the question as to whether in view of provisions of section 7-A(4) of the Airports Security Force Act, 1975, the Federal Service Tribunal is completely barred from hearing of appeals of the Airport Security Force Personnel or otherwise?
11. The above-mentioned question has been discussed at length in the preceding paragraphs repetition whereof would be of no use but suffice it to say that the learned Federal Service Tribunal had no jurisdiction to dilate upon such appeals after addition of section 7-A(4) of the Airports Security Force Act, 1975 whereby the appeals preferred on behalf of employees of the Airport Security Force could not be heard by the Federal Service Tribunal as a result of bar of jurisdiction imposed by means of newly-added section 7-A(4) of the Airports Security Force Act, 1975. It would not be out of place of mention here that various contentions agitated by him regarding implication of Efficiency and Disciplinary Rules, 1973 and status being a civil servant were never mentioned in the review petition. The above mentioned contentions that he could not have been proceeded under the Pakistan Army Act, 1952, the Airports Security Force Act, 1975 and the rules made thereunder were made in oblivion of clause “h” of the appointment letter whereby a complete answer for all such arguments is available which is reproduced hereinbelow for ready reference:–
“(h) Governing Rules.— After joining the A.S.F. you will be governed by the provisions of A.S.F. Act, 1975, A.S.F. Officers and Members (Service) Rules, 1978 and A.S.C. (Discipline) Rule, 1977 and of the Rules and Regulations in Force or as may be made from time to time by the Federal Government.”
A bare perusal of clause (h) of the appointment letter issued in 1983 would show that it has been made abundant clear that after joining the Airport Security Force Mr. Wasiullah Khan was to be governed by the provisions of Airports Security Force Act, 1975, Airports Security Force Officers and Members (Service) Rules, 1978 and Airports Security Force (Discipline) Rules, 1977 and all other rules and regulations which may be made applicable from time to time. Mr. Wasiullah Khan was fully aware that he was subject to Airports Security Force Act, 1975 for all practical purposes and it is too late in the day to argue that he is a civil servant and the provisions as contained in the Airports Security Force Act, 1975, the Pakistan Army Act, 1952 and the rules made thereunder are not applicable to him. Mr. Wasiullah Khan remained mum for more than two decades regarding governing rules and accepted the terms and conditions as enumerated in the appointment letter.
12. The judgments passed by the learned Federal Service Tribunal in the above captioned appeals does not appear to be open to exception and being well based hardly warrant any interference. The controversy qua the provisions as enumerated in section 7-A(4) of the Airports Security Force Act, 1975 has been set at naught by various judgments pronounced by this Court as mentioned above. It hardly needs any elaboration that the judgments delivered latter would be applicable.
In sequel to abovementioned discussion, the appeals are dismissed.
M.H./M-226/S Appeal dismissed.
