2017 P L C (C.S.) 1102
[Balochistan High Court (Sibi Bench)]
Before Nazeer Ahmed Langove and Muhammad Hashim Khan Kakar, JJ
MIAN KHAN
Versus
INSPECTOR GENERAL POLICE BALOCHISTAN and 2 others
C.P. No.(S)219 of 2016, decided on 9th January, 2017.
Constitution of Pakistan ---
----Art. 199---Constitutional petition ---Maintainability ---Judgment of Service Tribunal,
implementation of ---Scope---Service Tribunal being a Civil Court for the purpose of deciding
appeal had all the powers of Civil Court including those required to implement its judgment as
provided under the provisions of Civil Procedure Code, 1908---Employee had an alternate,
speedy and efficacious remedy for enforcement of judgment of Service Tribunal ---Employee
could approach the proper for um if desired ---Constitutional petition was dismissed in
circumstances.
Ahmed Nawaz Khan v. Senior Accounts Officer (Admn), Pakistan Railways, Lahore
1989 PLC (C.S.) 398; Asma Hafeez v. City Police Officer, Gujranwala 2012 PLC (C.S.) 1025;
Ch. Sadiq Ali (Retd,) Assistant Engineer/S.D.O. P.W.D. v. The Chief Secretary, Azad Jammu
and Kashmir Government PLD 1996 SC (AJ&K) 29; Zahooruddin Sheikh v. Pakistan Atomic
Energy Commission through Chairman, Islamabad 2007 PLC (C.S.) 959; Sh. Riaz -ul-Haq v.
Federation of Pakistan through Minsitry of Law PLD 2013 SC 501; Imran Raza Zaidi v.
Government of Punjab 1996 SCMR 645; Tariq Transport Company v. The Sargodha Bhera Bus
Service PLD 1958 SC 437; Mohammad Hashim Khan v. Province of Balochistan PLD 1976
Quetta 59; Ift ikhar Ahmed v. Muslim Commercial Bank Ltd. PLD 1984 Lah. 69; Mehram Ali
and others v. Federation of Pakistan PLD 1998 SC 1445 and Messrs Ranyal Textiles v. Sindh
Labour Court PLD 2010 Kar. 27 rel.
Petitioner in person.
Abdul Latif Kakar, Asstt. A.G. for the State.
Date of hearing: 27th December, 2016.
JUDGMENT
NAZEER AHMED LANGOVE J. -- Following prayer has been made in the instant
Constitutional petition:-
"It is therefore prayed that this Hon'ble Court may kindly be pleased to direct respondents
to implement the judgment dated 08- 04-2015 passed by Hon'ble Tribunal in Service
Appeal No.527/2014 in its letter and sprits, resultantly the petitioner may kindly be
reinstated on his service from the date of his dismissal, in the interest of justice."
2. Brief facts leading to file instant Constitutional petition are that the petitioner is an ex -
constable of Police Station City, Dera Murad Jamali, District Naseerabad. The services of
petitioner were dismissed on 28.05.2014. He challenged the dismissal of his s ervice before the
Tribunal which finally was decided in favour of the petitioner, but after lapse of about 2 years the
orders of the Service Tribunal was not implemented. Hence the filing of instant Constitutional
petition with the prayer mentioned hereina bove.
3. On the other hand, Mr. Abdul Latif Kakar, learned AAG opposed the petition.
4. We have heard the learned AAG and gone through the record with due care and cautious.
It may be noted that in the instant case the petitioner seeks implementation of or der passed by
Service Tribunal Balochistan. In this regard it may be observed that this Court in
C.P.No.1023/2014 after thrashing out the entire law on the subject and after discussing all the
legal aspects of the case held that the Balochistan Service Tri bunal being a Civil Court for the
purpose of deciding any appeal regarding the terms and conditions of a Civil Servant, therefore,
it has all the powers of Civil Court including those required to implement its judgment as
provided under the provisions of C ode of Civil Procedure, 1908. It would be beneficial to
reproduce the relevant observations herein below:
"Coming to the next question, as to whether the Service Tribunal has been clothed with
the power to implement its orders/judgments? We affirm the view taken by a division
bench of this Court in the case of Niaz Muhammad (supra) and reiterate that when
Section 5 of the Balochistan Service Tribunal Act, 1974 ("the Act of 1974") conferred
Jurisdiction upon a tribunal to decide an appeal, it also conferred the power to ensure that
the decision was complied with. It is by now settled that if the Tribunal's order has
become final, then it is the duty of the respondents to implement the same and in case of
failure, this Court will be perfectly Justified in issu ing a writ of mandamus to the
respondents to comply with the Tribunal's order. However, in principal, we feel, we
should not encourage filing of writ petitions of this kind, because we cannot convert the
High Court as an Executing Court for implementation of orders of the Tribunal. Further,
the very purpose of the constitution of the Tribunal will be defeated, if the Tribunal
cannot enforce their orders and on account of the same parties are compelled to approach
the High Court leading to multiplicity of litigation. Keeping these in mind, we proceed to
consider the powers of the Tribunal under the Act of 1974, to enforce its own orders and
if the Tribunal is short of powers, to consider whether this Court can confer authority on
it to function effectively under the Act of 1974. In our view, Tribunal itself has to evolve
a mechanism for implementation of its orders, otherwise the High Courts will be flooded
with writ petitions filed for enforcing orders of the Tribunal. Obviously, neither the
Parliament, nor t he Government desires the High Courts to be converted as executing
courts for enforcement of Tribunal's orders. Besides saving the High Courts, we also have
to keep in mind the interest of the litigants, who, after getting favourable orders from the
Tribunals, should not be dragged to the High Courts for enforcing Tribunal's orders and if
done the undesirable consequences will be that fruits of litigation will be eaten up in
unnecessary further litigation in the High Courts. It may be noted that the Tribuna l is
clothed with the powers to enforce its orders within the purview of Section 5(2) of the
Act of 1974, which reads as under:
"5. Power of Tribunals: (1) A Tribunal may, on appeal confirm, set -aside, vary or
modify the order appealed against.
(2) A Tribu nal shall, for the purpose of deciding any appeal, be deemed to be a civil
court and shall have the same powers as are vested in such Court under the Code of Civil
Procedure, 1908 (Act V of 1908), including the powers of ---
(a) enforcing the attendance of any person and examining him on oath;
(b) compelling the production of documents;
(c) Issuing commission for the examination of witnesses and documents.
(3) No court -fee shall be payable for preferring an appeal, to, or filing, exhibiting or
recording any document in, or obtaining any document from, a Tribunal."
15. A minute perusal of above provision of law leads us to conclude that since the
Tribunal is a Civil Court for the purpose of deciding any appeal regarding the terms and
conditions of a Civil Servant, therefore, it has all the powers of a Civil Court including
those required to implement its orders as provided under the provisions of the Code of
Civil Procedure, 1908 ("CPC"). In case of the disobedience of its orders, the same can be
enforced under the applicable provisions of the Code.
16. It is worth mentioning that the Service Tribunals are given exhaustive and
exclusive jurisdiction to decide all service matters pertaining to serving, retired and dead
civil personnel represented by legal heirs claiming under them. It may be observed that
there is nothing to indicate in the Act of 1974 as to how and who should execute the
orders of the Tribunal. In our view, in the absence of any other authority prescribed under
the Act of 1974 and the rules for e xecution of the orders of the Tribunal, the authority to
execute order of the Tribunal is the Tribunal itself. The Service Tribunal being a Civil
Court within the meaning of Section 5(2) of the Act of 1974 has very wide powers to
pass any order regarding t he terms and conditions of a Civil Servant and may give such
directions as may be necessary or expedient to give effect to its orders or to prevent abuse
of its process or to secure the ends of Justice.
17. Admittedly, refusal to enforce the Tribunal's ord ers could be brought within the
scope of interruption or disturbance of the proceedings of the Tribunal, because execution
of orders of the Tribunal being the duty of the Tribunal under Section 5(2) of the Act of
1974 the proceedings of the Tribunal contin ue until the orders are executed and
implemented. Non- implementation of the orders of the Tribunal, that has become final, is
certainly an obstruction or interference with the course justice, and so much so is a
criminal contempt, for which the Tribunal should be clothed with the powers to initiate
prosecution proceedings against the contemnor. By holding this view, we are fortified by
the dictum laid down In the case of "Ahmed Nawaz Khan v. Senior Accounts Officer
(Admn), Pakistan Railways, Lahore" (1989 P LC (C.S.) 398), wherein it was observed
that:
"From these provisions it is abundantly clear that the Tribunal shall be deemed to be a
Civil Court for the purpose of deciding an appeal and shall have the same powers as are
vested in such Court under the Code of Civil Procedure, 1908. Certain powers have
specifically been mentioned, but they do not derogate anything from the generality of the
provisions immediately preceding in the enacting part of subsection; which are clearly
suggestive of the fact that the Tribunal's powers for deciding an appeal are commensurate
with the Civil Court's powers for decision of matters before it. The proceedings on
application for execution or implementation of the Tribunal's orders are undoubtedly one
of the steps in the proc eedings of the main appeal. Therefore, what follows is that the
Tribunal has got the same powers as are vested in the Civil Court under the Code of Civil
Procedure, not only for the purpose of deciding an appeal, but also for the consequential
purpose of deciding the petition for implementation of its orders.
8. It is extremely difficult to believe that the Legislature while conferring
overwhelming, vast and exclusive powers of deciding an appeal, did not intend to bestow
the powers of implementation of the orders passed by it in final disposal of that appeal.
Any other interpretation of these provisions would lead us to a ridiculous results. We are
not prepared to believe that the legislature avoided the conferment of power of execution
of orders, thereby r endering the entire proceedings in an appeal under section 4 of the Act
only an exercise in futility. If the Tribunal do not have the powers to get its order
executed, all proceedings before it will be nothing more than wastage of time, and the
legislature could, by no means, be taken to have intended any such result. We are thus,
constrained to hold that the powers conferred by section 5(2) of the Act on the Tribunal,
inter alia, include the powers of execution and implementation of its order."
18. Power o f Service Tribunal to execute its own judgment is embodied in the
maxim: "Quando lex aliquid alicui concedit concedere videtur et id, sine quo res ipso esse
non potest (whoever grants a thing is deemed also to grant that without which the grant
itself would be of no effect)", affirmed by the Hon'ble Lahore High Court in the case of
"Asma Hafeez v. City Police Officer, Gujranwala [2012 PLC (C.S.) 1025] by holding as
under:
"Section 5(2) declares that the Service Tribunal has all the powers of a Civil Court w hen
it decides an appeal. The meaning of "deciding any appeal" is not limited to bare
adjudication but will include the powers necessary to ensure that its decision is executed
in letter and spirit. To achieve this, the Tribunal has all the powers availabl e to a civil
court to execute its orders/judgments and ensure its implementation. The rule is
embodied in the maxim Quando lex aliquid alicui concedit concedere videtur et id, sine
quo res ipso esse non potest. This maxim provides that whoever grants a thi ng is deemed
also to grant that without which the grant itself would be of no effect. N.S. Bindra in the
Interpretation of Statutes, Eighth Edition explains that whenever anything is authorized,
or required to be done by a statute and it was found impossible to do that which is
authorized, then the law will by necessary intendment provide the authorization to do that
what is required to be done. Therefore, where a statute confers jurisdiction, it also confers
by implication, the power of doing all such acts or applying such means as are essential
for its execution. Simply put the doctrine of implied power can be invoked when giving
interpretation to the jurisdiction conferred upon a tribunal under a statute. So when
section 5 of the Act confers the powers on the Service Tribunal to decide an appeal, it
also confers the power to ensure that its decision is complied with. If this interpretation is
not given to section 5 it would render the power of adjudication by the Tribunal as dead
letter because it would no t have the power to enforce its decisions.---
7. There is also another reason why constitutional jurisdiction cannot be used to
enforce or implement the judgment of the service tribunal. Article 212 of the Constitution
provides that Administrative Courts or Tribunal shall have exclusive jurisdiction with
respect to matters relating to the terms and conditions of service for persons in the service
of Pakistan. Subsection (2) of Article 212 says that no other court shall grant any
injunction, make any order or entertain any proceeding in respect of any matter to which
the exclusive jurisdiction of Administrative Court or the Tribunal extends. It has recently
been held by the Hon'ble Supreme Court of Pakistan in an unreported judgment passed in
Civil Appeal No.428- L of 2010 titled "The Chief Secretary, Government of Punjab,
Lahore and another v. Sara Bani and another" which reads as under: --
"a matter relating to her terms and conditions of service could only approach the Tribunal
for redressal of her grievance on whatever grounds available to her including male fides,
but could not approach the High Court as the prohibition/ bar contained in the Article was
absolute."
As the bar is absolute for any court including the High Court under Article 199 of the
Constitu tion for adjudicating upon the terms and conditions of service, then such bar will
also extend to executing the order/judgment of the Service Tribunal. As such Article 199
cannot be invoked for executing a decision that it is not competent to adjudicate upon."
19. Reference may also be made to the case of "Ch. Sadiq Ali (Retd,) Assistant
Engineer/S.D.O. P.W.D. v. The Chief Secretary, Azad Jammu and Kashmir
Government", [PLD 1996 Supreme Court (AJ&K) 29], Hon'ble Supreme Court of Azad
Jammu and Kashmir held as under:
"It is an accepted principle of law that when a jurisdiction is conferred on a Court or
Tribunal to pass an order the power to have the order implemented is implicit in that
jurisdiction."
In the case of "Zahooruddin Sheikh v. Pakistan Atomic Ene rgy Commission through
Chairman, Islamabad", [2007 PLC (C.S.) 959], the aforesaid principle was reaffirmed as
under:
"Once a judgment is issued in favour of a civil servant, his terms and conditions as
infringed by an order of the authority in question sta nd addressed to the extent as
ordained in the judgment concerned. There is, therefore, no denying the fact that if the
judgment is not implemented and leave to appeal is either not filed or declined, there is
no escape route for the Department but to imple ment the judgment in letter and spirit. In
the event of department not complying with the directions contained in a particular
judgment after having exhausted the legal remedies available, the department has no
other alternative except to implement the jud gment in the interest of the supremacy of
rule of law."
20. If any further elaboration is needed on the point, reference may be made to the
case of "Sh. Riaz -ul-Haq v. Federation of Pakistan through Ministry of Law (PLD 2013
SC 501), wherein Hon'ble Suprem e Court, discussed in extenso the question as to
whether or not the Service Tribunals, Federal and Provincial, are judicial forums/Courts
exercising judicial power and are performing their functions within the meaning of
Article 175 of the Constitution, which deals with the establishment and jurisdiction of the
Courts? It would be appropriate to refer to the following observations made in the said
case:
"34. Firstly, it is to be examined whether Service Tribunals established under Article
212(1)(a) of the C onstitution read with Federal or Provincial Legislation, fall within the
definition of a court, under Article 175 of the Constitution.
35. It is to be noted that the word 'Court' has not been defined in any legal instrument,
therefore, we have to refer to its dictionary meanings, which are as under: -
Copus Juris Secundum vol. 21
Generally, a court is a body in the government to which the public administration of
justice is delegated, being a tribunal officially assembled under authority of law, at the
appropriate time and place, for the administration of justice, through which the State
enforces it sovereign rights and powers, and consisting in its jurisdiction and functions
and not its title or name.
The court exists as a forum to hear and resolve suits and controversies raised by parties
who have invoked its authority.
The term 'court' may include a Judge and a jury, .. may include a Tribunal presided over
by a police judge, or by a justice or justices of the peace, or various other tribunals.
Halsbury's Laws of England, 4th Edition Vol.10:
Originally the term 'Court' meant, among other things, the Sovereign's place. It has
acquired the meanings of the place where justice is administered and, further, has come to
mean the persons who exercise judicial functions under authority derived either directly
or indirectly from the sovereign . A Tribunal may be a court in the strict sense of the term
even though the chief part of its duty is not judicial.
The Oxford Companion to Law by David M. Walker:
A court was originally the King's or a great lord's place or mansion . A court is
accordingly a person or group of persons having authority to hear and administer disputes
in accordance with rules of law. Tribunals or adjudicators who exercise adjudicative
functions by virtue of contract or of the volunt ary submission of persons to their
decisions.
Words and Phrases Legally Defined [1969 Edition, Vol.I, p.367]
The terms 'Court' originally meant the sovereign's palace; it acquired the meaning of the
place where Justice is administered and has come to mean the person who exercises
judicial functions.
The Major Law Lexicon, 4th Edition, 2010:
"Court" includes all Judges and Magistrates and all persons, except arbitrators, legally
authorized to take evidence. The "Court" means the person or persons before whom a
legal proceeding is held or taken. "Court" means a civil, criminal or revenue Court and
includes any tribunal or any other authority constituted under any law for the time being
in force, to exercise judicial or quasi -judicial functions.
Black's Law Dictionary:
An organ of government, belonging to the Judicial department, whose function is the
application of the laws to controversies brought before it and the public administration of
justice.
Ballentine's Law Dictionary.
Court is the organ of the Government, consisting of one person, or of several persons
called upon and authorised to administer justice.
..
36. Under section 5(2) of the STA, 1973, the Tribunal is deemed to be a civil Court
having all the powers which are vested in the civil Court as such it has the power to grant
temporary injunction, mandatory or prohibitory, under Order XXXIX, Rules 1 and 2,
C.P.C. during the pendency of the appeal before it and has also the power of the appellate
Court under Order XLI, Rule 5 to stay the execut ion/ operation of the decree or order. In
terms of section 5(1) ibid, the Tribunal can set aside, vary or modify the order in an
appeal before it, of course, after full and final hearing of the appeal. Thus, the tribunal
performs the judicial function."
21. In the aforesaid judgments, references have also been made to the following
cases:
(i) "Imran Raza Zaidi v. Government of Punjab", (1996 SCMR 645); (ii) "Tariq
Transport Company v. The Sargodha Bhera Bus Service", (PLD 1958 SC 437); (iii)
"Mohammad Hashi m Khan v. Province of Balochistan (PLD 1976 Quetta 59); (iv)
Iftikhar Ahmed v. Muslim Commercial Bank Ltd." (PLD 1984 Lahore 69); (v) "Mehram
Ali and others v. Federation of Pakistan" (PLD 1998 SC 1445), and "Messrs Ranyal
Textiles v. Sindh Labour Court", (PLD 2010 Karachi 27)
22. In spite of the above legal position, due to absence of clear mechanism to enforce
the order of the Tribunal in the Act of 1974, there is a misconception among the legal
fraternity and civil servants regarding the powers of the Tr ibunal. As such, we feel it our
duty to express our opinion that the Act of 1974, needs amendment to cloth the Tribunal
with specific powers to implement its orders/judgments and to initiate contempt
proceedings. As pointed out by Mr. Mazhar Ilyas Nagi, the following amendments have
been made by the Federal Government as well as the Provincial Governments of Punjab,
Khyber Pakhtunkhwa and Sindh, empowering the Service Tribunals to execute its
judgments and orders:
(a) In the Service Tribunals Act, 1973 (Act LXX of 1973), in S.5 a new subsection
(3) has been inserted vide Service Tribunals (Amendment) Act, 2014 (IV of 2014),
Gazette of Pakistan Extraordinary, p.68, dated 17 -06-2014, which reads as under: -
[(3) A Tribunal shall have the power to execute its decisions in accordance with the
procedure as may be prescribed.]
(b) By operation aforementioned amendment, a new S.4- A has also been inserted in
the in the Service Tribunals Act, 1973 (Act LXX of 1973), which reads as under: -
[4-A. Review.
(1) A Tribunal shall have the power to review its final order on a review petition filed
by an aggrieved party within thirty days of the order on the following grounds, namely: -
(i) discovery of new and important matter or evidence which, after exercise of due
diligence, was not within knowledge of the petitioner or could not be produced by him at
the time when the order was passed;
(ii) on account of some mistake or error apparent on the face of record; or
(iii) for any other sufficient cause.
(2) The Tribunal shall decide the review petition within thirty days.
(3) The Tribunal may confirm, set aside, vary or modify the judgment or order under
review.]
(c) In the Punjab [Service] Tribunals Act, 1974 (Act IX of 1974), S.11 has been
substituted by promulgation of Punja b Service Tribunals (Amendment) Act (XVII of
2013) dated 21st August, 2013 came into force w.e.f. 22 July 2013 and now reads as
under: --
(11). Rules. The Government may, by notification in the official Gazette, make rules for
carrying out the purposes of t his Act, including the rules for purposes of implementation
of the decisions of the Tribunal.
(d) In the Province of Sindh, Provincial legislature has enacted Sindh Service
Tribunals (Amendment) Act, 2011 (V of 2012) [PLD 2012 Sindh Statutes 18] whereby in
S.5 a new subsection (3) has been added which reads as under:
"(d) execution of its decisions."
(e) In the [Khyber Pakhtunkhwa] Service Tribunals Act, 1974 (Act I of 1974), in S.7,
subsection (2) a new clause (d) has been added vide North- West Service Tr ibunals
(Amendment) Act, 2010, (IV of 2010), Notification No.PA/N.- W.F.P./Bil1/2010/7787,
dated 26- 2-2010, Published in Gazette of N. -W.F.P., Extraordinary, 26th February, 2010
[PLD Unreported 2010 N.- W.F.P. Statutes 53]. New clause (d) reads as under: -
"(d) execution of its decision."
23. From the above, it may be observed that the Majlis -e-Shoora (Parliament) and
Provincial legislatures of Punjab, Khyber Pakhtunkhwa and Sindh have conferred powers
on the respective Service Tribunals, by appropriate legisl ation, to execute its
judgment/orders but it is disturbing to note that Provincial Assembly of Balochistan has
shown indifference in this respect. Under the circumstances, there is a need to remove the
disparity in powers of the Service Tribunals, functioning at Federal and Provincial level,
established under one and the same Article 212 of the Constitution.
5. In view of above reproduced judgment we are of the considered opinion that the
petitioner has an alternate, speedy and efficacious remedy for enforcement of the judgment of
Balochistan Service Tribunal, as such, the petition has no force which is dismissed, however, the
petitioner can approach the proper forum if he desires, so.
ZC/66/Bal Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.