APPLICATION OF CPC ON SERVICE TRIBUNALS
By:
ZOHAIB IMRAN
Advocate Service Tribunals
Zohaib_imran_elahi@hotmail.com
Provisions of CPC have been
extended to whole
“….the proper place of procedure in any system of
administration of justice is to help and not to thwart the grant to the people
of their rights. All technicalities have to be av+
oided unless it be essential to comply
with them on grounds of public policy….. Any system which by
giving effect to the form and not the substance defeats substantive rights
(and) is defective to that extent.”
According to Section 5(2) of
Service Tribunal Act 1973 the tribunal shall for the purpose of deciding any
appeal, be deemed to be a civil court and shall have same powers as
are vested in such court under the code of civil procedure 1908………., confusion
rests in determining the proposition that up to what extent the provisions of
CPC can be brought into operation while hearing and deciding lis before the
tribunal. “………….A deeming clause only permits to imagine a particular state of
affairs but it does not mean that such imagination can be allowed to be
overwhelmed, when it comes to the inevitable corollaries of that state of
affairs……………………….the court is required to determine the limits within which and
the purpose for which the legislature has created the fiction………PLD 2006 SC
The effect of deeming clause in
the ACT
seems to enable the tribunal to adjudicate effectively in order to
avoid redundancy level as on various occasions the tribunal might have felt
helpless to provide remedy to the servants before it owing to absence of
corresponding provisions in this regard. Hence tribunal can get the benefit of
provisions contained in CPC. On the
other hand “Courts are not to act upon the principle that every procedure is to
be taken to be prohibited unless it is expressly provided for by the code. But
on the converse principle that every procedure is to be understood as
permissible till it is shown to be prohibited by law. As a matter of general
principle, prohibition cannot be presumed………..PLD 1969 SC
The inherent powers of the
tribunals are not conferred by any law, rather are inherent by virtue of its
duty do justice between parties before it. Even Section 151 of CPC can be
invoked by the tribunal to do substantial justice between the parties by using
powers which are inherent in it.
It was held in 1986 PLC CS 313, tribunal is governed
by CPC and has to adopt procedure in this behalf and appeal before it without
proper documentation is bad and liable to be dismissed. This provision is not
provided expressly by the Service Tribunal Act 1973, rather benefited from the
provisions of Section 5, whereby provision of CPC were made applicable on the
tribunals. Also where appellant sought amendment in appeal, thereby changing
character of appeal after the limitation period the tribunal invoked provisions
of Order VI Rule 17 and disallowed amendment in the appeal (1990 PLC CS 275).
APPREHENSION AND POWERS OF
SERVICE TRIBUNALS: It is settled
principle of law that the tribunal cannot set aside orders which are not
challenged before it. Apprehension of parties qua orders against them could not
be entertained by the tribunal. Apprehended action cannot be restrained and
prevented by the tribunal (1993 PLC CS
246) because departmental authorities are the best judge to treat the
employees and that treatment should be in accordance with law.
TRIBUNAL’S POWER TO REVIEW
ITS OWN ORDERS: The principle
of finality is attached with judicial decisions with some exception to this
general rule. No court or tribunal possesses inherent power to review its
earlier orders or judgments and this power must be expressly bestowed upon the
court or tribunal. On the other hand court or tribunal cannot exercise power to
review its own order suo moto unless otherwise provided. Strength is drawn from
Rule 22 Service Tribunal Procedure Rules 1974 as well as consistent view of the
tribunals that service tribunal cannot review its own orders except the
circumstances mentioned in the rule 22,
which has very limited scope for application (1980 PLC CS 335). Service tribunal being last court of appeal in
service matters cannot review its orders.
POWER OF TRIBUNAL TO ACT AS
“DEPARTMENTAL AUTHORITY: Often in service litigation question arises that
service tribunal cannot condone delay and act as competent authority. It is
settled principle that appeal or proceedings before the service tribunal are in
continuation of departmental proceedings and tribunal being final court of fact
can appraise, scan as well as examine any person necessary for proper
administration of justice. According to Section 107 of CPC as well as from 2000 PLC CS 697, service tribunal
possessed with all powers of civil court and on
the analogy of section 107 of CPC can act as competent authority. After
admission of appeal, Tribunal was vested with all powers enjoyed by departmental authorities under
DISCRETIONARY
POWERS OF SERVICE TIBUNAL: It is
clear that tribunal has to follow the limitations and restrictions of law in
exercise of discretion in a manner, which may not offend the spirit of law. The
concept of discretion in judicial power is to advance the cause of justice and
exercise of this power in a judicious manner in aid of justice and not to
perpetuate injustice. Service tribunal for the purpose of deciding an appeal
before it deemed to be a civil court, having same powers as are vested in it
with discretionary powers to make such orders as might be necessary for ends of
justice and to prevent abuse of process of court (1989 PLC CS 479)
POWER TO
GRANT INTERIM RELIEF : Tribunal
can grant interim relief, but while doing so it had to satisfy that the
essentials as enumerated in Order 39 Rule 1&2 stood fulfilled and while
doing so it can adopt the test of reasonable and beneficial interpretation.
Where any of the ingredients as detailed in Order supra not fulfilled tribunal
refused to honor application for interim relief. (1987 PLC CS 765). Even in absence of specific or express
provision for the grant of interim relief, tribunal having power to grant main
relief, it would have all powers, which are reasonably or incidental to its
main appellate jurisdiction. Service tribunal can grant interim relief on the
basis of said principle. On the converse side, service tribunal cannot grant
interim relief in such a way which would amount allowing main case. On the
other hand courts also declared that this power should be sparingly used by the
service tribunals for the advancement of cause of justice.
MISJOINDER
AND NON JOINDER OF PARTIES: EFFECT: Parties are either necessary or proper. When necessary
parties are those persons in whose absence no effective decree/judgment can be passed---Test
in such cases to determine whether a party is necessary or not is to find out
if a fruitful decree can be passed in the case in the absence of such party. Hence in the absence of necessary
parties appeal filed before the tribunal is bad and cannot proceed in view of
judgment cited as ( 1990 PLC CS 334 ). Person, who
had not challenged the Seniority list departmentally, filed application before
Service Tribunal for transposing him as an appellant, which application was
accepted by the Tribunal and he was transposed as appellant. It was held that
appellant in the memorandum of his appeal, had nowhere stated that his
interests and that of applicant were equal or common in any way but instead
appellant had specifically claimed his seniority against all respondents,
including the applicant. If applicant had filed an appeal independently, that
would have been hit by the bar of limitation. Applicant having adopted a
course of illegal device to circumvent the law, he could not be arrayed in the
line of appellants. (2001 PLC
CS 474)
CONCLUSION: Service tribunals are created under Article 212 of our constitution to exercise exclusive jurisdiction over civil servants in matter relating to their terms and conditions. However, provisions of CPC as well as Limitation Act 1908 are made applicable on them for proper administration of justice and also to avoid redundancy level as redundancy cannot be attributed to law and proceedings conducted thereunder. Technicalities should be avoided and further the interpretation most beneficial to civil servant/employee should be followed in service litigation. Procedure what ever form it may take should be moulded to advance the cause of justice being enshrined in our constitution.