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PLJ 1990 SC 388 [Appellate Jurisdiction]

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PLJ 1990 SC 388 [Appellate Jurisdiction]


Present: NAIMUDDIN, ABDUL QADCI-R CIIAUDHRY AND A.IMAL MIAN, .1,1 CHAIRMAN, P.I. A.C. and othersAppellants

versus Mr. NAS1M MALlK-Respondent Civil Appeal No. 283 of 1989, accepted on 12.6.1990.

[On appeal from judgment dated 5.3.1989 of Federal Service Tribunal Islamabad, passed in Appeal No. 164(R) of 1986.] (i ) Constitution of Pakistan, 1973Art. 212(2) read with Pakistan International Airlines Corporation Act, 1965, Section 10 (amendcd)--Employce of PIAC-Resignation and later on termination of services fAcceptance of appeal by Service Tribunal- Challenge to-Dcclaration of service under P.I.A. Corporation as service of Pakistan-Effect of-Held: Effect of declaring ervice under Corporation as service of .Pakistan and by deeming provision making an employee of Corporation as a civil servant for purposes of Service Tribunals Act, 973 and in view of clause 2 of the Article 212, no other court could entertain respondent's appeal on day when it was filed. [P.394JB PLD 1981 SC 249 rd. (ii) Constitution of Pakistan, 1973-Art. 212(2) read with Service Tribunals Act, 1973, Section 6-Service Tribunal-Establishment of-Effect ofWhether any other court had still jurisdictionQuestion ofHeld: Effect of sub-clause (2) of Article 212 andSection 6 of Service Tribunals Act 1973 was that upon establishment of tribunal, no other court had jurisdiction in ervice matters covered by Service ribunals Act. [P.393JA (iii) Limitation ....... Employee of P.LA.C-Rcsignation and later on termination of services of-Acceptance of appeal by Service Tribunal Challenge toWhether appeal was time-barred- uestion ol'-Requcst of respondent for. conversion of his resignation into termination was accepted on 28.3.1984, therefore, alleged cause of action, if any, accrued on that ate but appeal was filed after about two years whereas rules provide departmental appeal within 30 days- Conclusion of Tribunal that it could be presumed that delay was ondoned by appellate authority, is not warranted by law because it cannot be said that appellant's Chairman was conscious of question of limitationHeld: Since appeal efore epartment was lime-barred, .appeal before Tribunal was also incompetent on that account. [Pp.394&395JC&D (iv) Service Appeal Employee of PIAC-Resignation and later on termination of services of- Acceptance of appeal by Service TribunalChallenge to-Whether appeal was rightly accepted- uestion of-Respondent after having made a request for treating his resignation as termination from service and after having derived monetary benefits, it was not open to im to re-agitate question that his resignation was obtained by appellants under duress and coercionTribunal overlooked this important aspect which goes to root of atterHeld: Even on merits, respondent's appeal merited dismissalAppeal accepted. [P.395JE Raja Muhammad Akram, Senior Advocate, Supreme Court, and Ch. Aklitar All, AOR for Appellants. Mr. Muhammad Bilal, Advocate, Supreme Court, and Mr. Imtiaz Muhammad KJian, AOR for Respondent.

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PLJ 1990 SC 388 [Appellate Jurisdiction]

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Dale of hcannji: 12.6.1990.

JUDGMENT
Ajmal Minn, J.Leave to appeal was granted from the judgment dated 5.3.1989 passed by the Federal Service Tribunal, Islamabad, hereinafter referred to as the Tribunal, in Appeal No. 164(R) of 1986 filed by the respondent, declaring that the resignation obtained from the respondent was obtained under duress and coercion and as such had no legal effect and the orders passed thereon were void ab inilio and also ordering rc-inslatemcnt of the respondent with consequential benefits, to consider ihe question that the services, of the respondent having been terminated on 15.7.1984, conveyed through the teller dated 6.8.1984, the Tribunal had no jurisdiction in the matter and also because the provisions of the Pakistan International Airlines Corporation Act, 1956, hereinafter referred to as the Act, did not have retrospective effect. 2. The facts to be noted are that the respondent was Cargo Manager in the appellants' Corporation in Pay Group VIII at Rawalpindi. He was posted to Oman as Manager, PIA, in August, 1982. He had hardly served about eight months in Oman when he was recalled in Pakistan. He accordingly reported at the appellants' headquarters at Karachi on 19.6.1983. He was informed by the Marketing Director that the management wanted him either to resign from service or he would be dismissed under M.L.R. 52 which empowered the Corporation to dismiss its employees. Thereupon, the respondent wrote a letter dated 25.7.1983 to the Managing Director of the Corporation and inter alia requested him for an interview. His above request was acceded to inasmuch as the Managing Director allowed and interviewed on 25.7.1983. After having the above interview, the respondent submitted his resignation through his letter dated 1.8.1983 which was accepted on 16.8.1983. After that the respondent made a representation for his re-instalemcnt without any success. He approached the Wafaqi Mohtasib. While the respondent's above application was pending before the Wafaqi Mohtasib, the respondent through his leller dated 12.3.1984 addressed to the Director Administration, PIA, requested that his resignation letter be converted into termination/dispensation of services wan effect from the same dale. The respondent's above request was acceded to by the appellants through General Manager (Personnel) letter dated 22.3.1984 addressed to the respondent, the inlimalion of which was also sent to the Wafaqi Mohtasib as well as to the Deputy Secretary, C.M.L1A. Secretariat. The complaint filed before the Wafaqi Mohlasib was dismissed on the ground that he had no jurisdiction. In pursuance of the above conversion of resignation into termination, the respondent received financial benefits in the sum of Rs. 1,00,496/87 through the Voucher dated 28.3.1984. The break-up of the amount is as follows: Gratuity Commutation Pension (seven months from Scp:83 to March:84.) @ Rs.532,70 Rs.46078.97 Rs.50689.00 Rs.372S.90 Total: Rs.1,00,496.87

Because of the abuve conversion of resignation into termination, ihc respondent was also issued Pension Book besides the payment of some miscellaneous amounts on various items. However, the respondent again on 123.1986 addressed a departmental appeal to the Chairman of the appellant Corporation against his resignation claiming that the same was not voluntarily given and was obtained under duress and coercion, which was turned down on 6.4.1986. Thereupon, the respondent filed the aforesaid service appeal which was allowed by the Tribunal through the judgment under appeal and against which the appellants obtained leave to appeal on the questions referred to hcreinabovc. 3. In support of Uie above appeal, Raja Mohammad Akram, Sr.ASCappearing for the appellants, has made the following submissions:-(;') that the respondent could not have filed the service appeal before the Tribunal as his resignation was accepted in August, 1983, whereas subsection (3) of Section 10 of the Act was incorporated by Ordinance No. LI 11 of 1984 with effect from 15.11.1984 which was not retrospective;(a) that the respondent's appeal was time barred hopelessly; &(Hi) that even on merits the respondent had no case as after having requested for conversion of resignation into termination and alter having received considerable amount as financial benefits, it was not open to the respondent to have re-agitated (he question.On the other hand. Mr. Muhammad Bilal, learned A.S.C. appearing for the respondent, lias urged us I'ollosvs:(/) thai on the day when the appeal svus filed the respondent could not have approached any other forum in \ie\v of ihe fact that subsection (3) of Section H) of the Act was holding the field; (//) that the very fact thai the Chairman did not dismiss the respondent's appeal implies that the delay, if any, was condoned by the Chairman; tt (Hi) that since ihe resignation was obtained under duress and coercion, the resignation and the other subsequent action taken thereon were void and, therefore, the Tribunal rightly set aside. 4. Adverting to the above first submission of the learned counsel for the parlies, namely, whether the Tribunal could entertain the appeal or not on 10.5.1986. it ay be observed that Raja Mohammad Akram has referred to the following cases:(/) Muhammad Afziil Vs. Board of Revenue, ll'cst Pakislan and Another (F'LD ll/()7S.C. 314). (//) i\nhi Ahmad and Another Vs. Home Secretaiy Government of West Pakistan, La/tore A 4 others (PLD 1969 S.C. 599)." (in) Federation of Pakistan Vs. Mnhummuil Siddiii (PLD 1981 S.C. 249). (iv) Pakistan Inlemulionul Airlines Corporation Vs. Messrs Pak Suaf D/y Cleaners (PLD 1981 S.C. 553).

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PLJ 1990 SC 388 [Appellate Jurisdiction]

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(v) Idrces Ahmad and Others Vs. Hafiz Fida Ahmad Khan & 4 Others (PLD 1985 S:C. 376) & (v/) Tlie Colonial Sugar Refining Company Limited Vs. living (1905 A.C. 369). 5. It will suffice to observe that the case listed hercinabove at S.No.(iii) of this Court, namely, Federation of Pakistan Vs. Muhammad Siddlq (PLD 1981 S.C. 249) has direct relevance as in the above judgment this Court had construed similar provisions which is in issue relating to Wapda. It may be advantageous to quote the following observations from the above judgment:"As noted in the opening part of this judgment, the appeals Nos.49 and 50 fall into a separate category. Suits of WApda employees (respondents) were filed on 31st of June, 1974. They were decreed on 30lh of July 1975. The Wapda filed appeals before the District Courts which were withdrawn on 3rd February, 1976. The Water and Power Development Authority (Amendment) Ordinance, 1975, came into force on 30th of September, 1975. It was declared that the service under the Wapcla would be the service of Pakistan (excepting few exclusions) for the purpose of the Act. The service appeals filed by the Wapda were dismissed by the Service Tribunal as incompetent on the assumption that the Amendment Ordinance having come into force on 30th September 1975, the appeals filed before the Tribunal could not be entertained because the suits or appeals before the Civil Courts out of which they arose were not pending at the time of the passing of the Act. In such like situations the underlying principle appears to be that when a statute is extended to a territory or class of persons who were originally not covered by it, regarding those territories and persons when a new statute is enacted 'by reference' to the original statute, the date of commencement given in the original statute is synchronised with the date on which the said statute is extended to ihe new territories and/or persons. In these cases, the original statute i.e. the Act was enacted on 29lh of September, 1973. The Water and Power Development Authority (Amendment) Ordinance, 1975 whereby the Act was extended to the Wapda employees came into force on 30th of September, 1975, Therefore, the Act would apply mutatis mutandis to the Wapda employees on and after 30th of September, 1975. The civil appeals by the Wapda filed before the District Court against the decrees passed by the learned trial Judge were pending before the District Court on 30th of September, 1975. Therefore, they abated on the said date. That being so, the Wapda had the right to file appeals before the Tribunal under the proviso to section 6 of the Act. Of course, the said provision, on account of natural barrier of time would apply mutatis mutandis, meaning thereby that the period of limitation would commence form the date of the abatement; namely, 30lh of September, 1975. The view of the Tribunal that the appeals were not competent because the matter was not pending before the original Courts before the 29th of September 1973, was ex facie erroneous. The relevant date in these cases was the 30th of September 1975 when the Act was extended to the employees of the Wapda. These two appeals are accordingly allowed and the cases are remanded to the Service Tribunal for decision on merits."

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PLJ 1990 SC 388 [Appellate Jurisdiction]

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6. A perusal of the above quoted passage from the above judgment indicalcs that similar submission which has been now made by Raja Mohammad Akram was epelled and it was held that after the incorporati on of similar provision by the West Pakistan Water and Power Development Authority (Amendment) rdinance, (XVI of 1975) which came into force on 30.9.1975, civil appeals before District Court relating to Wa'pda employees abated in view of Section 6 of the Service ribunals Act, 1973, though the impugned orders were passed prior to 30-9-1975. In this regard reference may also be made to clause 2 of Article 212 of the Constitution, which reads as ollows:- "(2) Notwithstanding anything hereinbefore contained, where any Administrative Court of (?) 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 be pending before such oilier 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:Provided that the provisions of this clause shall not apply to an Administrati ve Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Majlis-e-Shoora (Parliament) by law extends the provisions to such a Court or Tribunal."The effect of the above quoted sub-clause (2) of above Article and Section 6 of the Service Tribunals Act, 1973, was that upon the establishment of the Tribunal, no other Court had jurisdiction in the service matters covered by the aforesaid Service Tribunals Act. 7. At this juncture, it may be pertinent to reproduce subsections (2), (3) and (4) which were incorporated in the Act by Ordinance No.LI 11 of 1984, which read as follows:- "2. Amendment of Section 10, Act XIX of /956.-ln the Pakistan International Airlines Corporation Act, 1956 (XIX of 1956), Section 10 shall be renumbered as subsecti on (1) of tha t secti on and, after subsection (1) renumbered as aforesaid, the following new subsections shall be added, namely:-"(2) Notwithstanding anything contained in subsection (1) or any law, settlement or award for the ti me being in force, or any rules or regulations framed under this Act, or any rules, regulations, orders or instructions issued by the Corporation, or in the terms and conditions of service of any person employed by, or serving under, the Corporation, the Corporation may at any time retire or remove from its service any person without assigning any reason, after giving him an opportunity of being heard and not less than ninety days' notice or pay for the period by which such notice falls short of ninety days; and, subject to subsection (3), nosuch order of retirement or removal shall be called in question before any Court or tribunal or other authority.

(3) Service under the Corporation is hereby declared to be service of Pakistan, and every person holding a post under ihe Corporation, not being a person on eputation to the Corporation, shall be deemed to be a civil servant for the purposes of the Sen ice Tribunals Act, 1973 (I .XX) of 1973). (4) Nothing contained in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968 (W.P. Ordinance No.VI of 1968), or the ndustrial Relations Ordinance, 1969 (XX1H of 1969), shall apply to or in relation to the Corporation or any of the officers, advisers and employees appointed by 8. In our view, the effect of declaring service under Corporation as the service o f Pakistan and by deeming provision making an employee of the Corporation a civil servant for the purposes of the Service Tribunals Act, 1973, and in view'of clause 2 of Article 212 of the Constitution, no other Court could entertain espondent's above appeal on the day when it was filed on 10.5.1986 as the above provisions came into force in November, 1984. The remaining above cited cases are not applicable to the present case, which inter cilia laid down that the right of appeal is a creation of slalule, it cannot be taken away nor it can be claimed in the absence of express provision and that a person is entitled to the remedies in the form of appeal etc. which were available lo him when he initialed legal proceedings in the absence of a contrary intention expressly or by necessary intcndmcnt in the relevant statute. In the instant case in view of the above constitutional and statutory provisions, the above principles of law cannot be pressed into service. 9. Adverting to the question of limitation, it may be recapitulated that the espondent's resignation was accepted on 15.8.1983 and upon his request the resignation as converted into termination on 28.3.1984 and, therefore, the alleged cause of action, if .any, accrued lo the respondenl in 1984. The respondent after having eceived the monetary benefits on account of converting his resignation into termination could not have filed the departmental appeal on 12.3.1986 i.e. aller ihe xpiry of about two years as Regulation 87 of the Pakistan International Airlines Corporation Rules, 1985, provided 30 days period of limitation. It has been oncluded by the Tribunal that it could be presumed that the delay was condoned by the appellate authority. The reliance has been placed on the case of Muhammad oitsaf Vs. Member, Central Board of Revenue (1970 SCMR 170). In our view, the above conclusion is not warranted by law. The rejection of the aforesaid belated ppeal of the respondent through appellants' letter dated 6.4.1986 cannot be said lo be a rejection of the appeal on merits. It does not indicate that- the appellate uthority had noticed the question of limitation or had applied its mind to the question of limitation. The case relied upon by Ihe Tribunal has no application. It ay e advantageous to quote hereinbelow relevant observations, which read as follows:-\ It is correct that the appeal was barred by time but it cannot be said that the learned Collector was not conscious of this fact. The question of limitation was specifically brought to his notice and in spite, of that he allowed the appeal of the said respo ndents. In these circumstances the view of the High Court that the learned Collector, by deciding the appeal on merits, has impliedly Condoned the delay appears to be quite correct. The decision of this Court in the case of Alison All and others Vs. District Judge and others (PLD 1969 S.C. 167) lays down that the authority concerned should be conscious of the question of limitation before deciding the proceedings pending before it." 10. In terms of the above quoted observation, it cannot be held that the appellants' Chairman was conscious of the question of limitation while turning down the above elated respondent's appeal. The above case, therefore, has no application. We are, therefore, inclined to hold that since the appeal before the department was time barred, the ppeal before the Tribunal was also incompetent on thai account.

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PLJ 1990 SC 388 [Appellate Jurisdiction]

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11. As regards the merits of the case, we are of the view that the respondent after having made a request for treating his resignation as termination and after having eceived financial benefits in the form of more than Rupees one lac plus the benefit of pension etc., it was not open to him to re-agitate the question that his resignation was btained by the appellants under duress and coercion. The Tribunal has overlooked the above important aspect which goes to the root of the matter, and has not said a single ord in the lengthy judgment under appeal. We are, therefore, of the view that even on merits the respondent's service appeal merited dismissal. We. therefore, allow the above appeal and set aside the Tribunal's judgment. However, there will be no order as to costs. (MBC) Appeal accepted.

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