IMPLEMENTATION OF
JUDGMENTS BY THE
By
ZOHAIB IMRAN SHEIKH
Advocate High Court & Service Tribunals
Zohaib_imran_elahi@hotmail.com
In a depressed and corrupt judicial
system of
Hope”
is the thing with feathers-
That perches in the soul -
And sings the tune without the words -
And never stops - at all – (EMILY DICKINSON)
While deciding a service
appeal titled as Abdul Ghafoor VS
Comparatively, Punjab Service
Tribunal remained an illusionary and weakest institution. It had always been
neglected by Lahore High Court and Government as well. The institution which
judicially reviewed the orders of government had been manned by the government
itself till 2013, when the Supreme Court snatched it from government and
brought it under the Article 175 of Constitution by terming as an “Court”.
See Sheikh Riaz’s Judgment 2013 PLC
CS 1308. Riaz’s judgment, directed reformatory legislation, appeared to
much influenced by the Indian Tribunal’s set up,
wherein the persons from government are allowed to become as members of tribunals.
In
Section 5 of Punjab Service
Tribunal Act 1974 even after reformatory amendments made post Riaz’s judgment
enacts as follows:-
5. Powers of Tribunals.–
(1) A Tribunal may, on appeal, confirm, set aside, vary or modify
the order appealed against.
(2) A Tribunal 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; and
(c) issuing
commission for the examination of witnesses and documents …
In
the case of L. Chandra Kumar where Indian Supreme Court was concerned with the
orders and functioning of the Central Administrative Tribunal and scope of its
judicial review, while holding that the jurisdiction of the High Court under
Article 226 of the Constitution was open and could not be excluded, the Court
specifically emphasized on the need for a legally trained mind and experience
in law for the proper functioning of the tribunal. The Court held as under
88. Functioning of Tribunals XXX XXX XXX
8.65 A Tribunal which substitutes the High Court as an alternative
institutional mechanism for judicial review must be no less efficacious than
the High Court. Such a tribunal must inspire confidence and public esteem that
it is a highly competent and expert mechanism with judicial approach and
objectivity. What is needed in a tribunal, which is intended to supplant the
High Court, is legal training and experience, and judicial acumen, equipment
and approach. When such a tribunal is composed of personnel drawn from the
judiciary as well as from services or from amongst experts in the field, any
weightage in favour of the service members or expert members and value-
discounting the judicial members would render the tribunal less effective and
efficacious than the High Court. The Act setting up such a tribunal would
itself have to be declared as void under such circumstances. The same would not
at all be conducive to judicial independence and may even tend, directly or
indirectly, to influence their decision-making process, especially when the
Government is a litigant in most of the cases coming before such tribunal. (See
S.P. Sampath Kumar v. Union of
I
must focus with the report cited as 2010
PLC CS 51, wherein the honorable court noting the implications of
jurisdiction held as follows:-
“…………… Jurisdiction was a right to
adjudicate concerning a particular subject matter in a given case, as also the
authority to exercise in a particular manner the judicial power vested in the
court. Jurisdiction denoted the authority for the courts to exercise judicial
power. Where jurisdiction ceased to exist the court
only function remaining to the court was that of announcing the fact and
dismissing the case. If there was no jurisdiction the
question of exercise of judicial power would not arise”
Article
173 of Constitution mandates separation of powers, according to Interpretation
of Statutes by Maxwell (9th Edition), the function of judiciary is
to declare and not to legislate. (Jus
Dicere). The following extracts are reproduced from my earlier article
reported as PLJ 2014 MAGAZINE 367,
“….. it is the
function of the legislature to enact the laws and the duty of the judiciary to
interpret and enforce them. It is not doubt the characteristic of a good judge
to amplify his jurisdiction, where the words of the statute conferring the
jurisdiction can reasonably be interpreted as giving him jurisdiction, where,
however, jurisdiction can only be snatched by a strained interpretation of the
law ………………. the good judge becomes a
bad citizen…….” (AIR 1930 SINDH 265 AT PAGE 271)
The
fussy debate over the status of Service Tribunal has been rightly answered by
the apex court in Sheikh Riaz’s Judgment, for all times, tribunals are now
courts. Mere fact they are named and termed as tribunals, cannot be taken out
of from the Judicature under Article 175 of Constitution. Article 212 is supplementary
provision, enacts alternative institutional mechanism, sharing the work load of
ordinary high courts. Jurisdiction as stated above is a right to adjudicate a
particular lis. Under the constitutional mandate given by Article 212 of
Constitution the provincial legislature enacts Punjab Service Tribunal Act 1974
establishing the Punjab Service Tribunal with the following preamble.
“WHEREAS it is expedient to provide for the
establishment of Service Tribunals to exercise
exclusive jurisdiction regarding the matters relating to the terms and
conditions of service in respect of the services of the Province of the Punjab
and for matters connected therewith or ancillary thereto” (Emphasis
Highlighted)
The
following extracts from L Chandra Kumar’s case would smoothen to understand the
sanctity of service tribunals
“….When Sampath Kumar's case was finally
heard, these changes had already been incorporated in the body and text of the
Act. The Court took the view that most of the original grounds of challenge-which
included a challenge to the constitutional validity of Article 323A - did not
survive and restricted its focus to testing only the constitutional validity of
the provision of the Act. In its final decision, the Court held that though
judicial review is a basic feature of the constitution, the vesting of the
power of judicial review in an alternative institutional mechanism, after
taking it away from the High Courts, would not do violence to the basic
structure so long as it was ensured that the alternative mechanism was an
effective and real substitute for the High Court. Using this theory of
effective alternative institutional mechanisms as its foundation, the Court
proceeded to analyze the provisions of the Act in order to ascertain whether
they passed constitutional muster. The Court came to the conclusion that the
Act, as it stood at that time, did not measure up to the requirements of an
effective substitute and, to that end, suggested several amendments to the
provisions governing the form and content of the Tribunal. The suggested
amendments were given the force of law by an amending Act (Act 51 of 1987)
after the conclusion of the case and the Act has since remained unaltered……..”
Tribunals
are not recommendatory institution; rather they declare and adjudicate upon the
rights of parties qua inaction of government in the matter related to terms and
conditions of service. The judgments of tribunals are binding upon the
government save set aside by the apex court. The modern enactments treat preamble
part of it, preamble are more than prefatory statements. Rather the preamble
set and amplifies the intention of legislature while making a law. In AIR 1989 KERALA 256, the court
held as follows:-
“It is an excellent aid to the
construction of an ambiguous statute or statues of doubtful meaning or as has
been said it is a key to the construction of statute and should be resorted to
unlock the mind of the makers”
The
preamble of Act 1974 reproduced above blesses “exclusive jurisdiction” regarding the matters relating to
the “terms and conditions of service” of a civil servant in
As
held in AIR 1957 SC 510, that
the recital in the preamble of a public Act of Parliament is evidence to prove
the existence of that fact, one may notably streamline the “exclusiveness” and
“absoluteness” of Service Tribunals. Article 212 of Constitution of Pakistan,
enacting for the establishment of Service Tribunals under the constitutional
mandate:-
(1) Notwithstanding anything hereinbefore
contained, the appropriate Legislature may by Act provide for the establishment
of one or more Administrative Courts or Tribunals to exercise exclusive
jurisdiction in respect of-
(A) matters relating to the terms and
conditions of persons who are or have been] in the service of
Article
212 is non-obstante law, besides relying upon 2010 PLC (CS) 51, one may also refer to the page 1678 of “Interpretation of Statutes” by N.S Bindra, (Tenth Edition)
to understand the true implications of non-obstante clause:-
"It has to be read in the
context of what the legislature conveys in the enacting part of the provision.
It should first be ascertained what the enacting part of the section provides
on a fair construction of words used according to their natural and ordinary
meaning and the non-obstante clause is to be understood as operating to set aside
as no longer valid anything contained in relevant existing law which is
inconsistent with the new enactment. The enacting part of a statute must, where
it is clear, be taken to control the non-obstante clause where both cannot be
read harmoniously, for even apart from such clause a later law abrogates
earlier laws clearly inconsistent with it ………. The proper way to construe a non-obstante
clause is first to ascertain the meaning of the enacting part on a fair
construction of its words. The meaning of the enacting part which is so
ascertained is then to be taken as overriding anything inconsistent to that
meaning in the provisions mentioned in the non-obstante clause. A non- obstante
clause is usually used in a provision to indicate that that provision should
prevail despite anything to the contrary in the provision mentioned in such non-obstante
clause. In case there is any inconsistency between the non-obstante clause and
another provision one of the objects of such a clause is to indicate that it is
the non-obstante clause which would prevail over the other clauses. It does
not, however, necessarily mean that there must be repugnancy between the two
provisions in all such cases. The principle underlying non-obstante clause may
be invoked only in the case of 'irreconcilable conflict”.
The
absoluteness and exclusion is so clear in Article 212 of Constitution of
Pakistan, in that no other court or forum has any jurisdiction to any matter related to terms and
conditions of service, I must add, with the matters ancillary or connected
therewith. The intention of creation of service tribunal is clear from the bare
reading of preamble to exercise exclusive jurisdiction in the matters related
to or ancillary with the terms and conditions of service. The Indian Supreme
Court in (2000) 5 SCC 488,holds
that the preamble of an Act sets forth the reasons for the particular Act of
legislature and foreshadows what is intended to be effected by the Act. It is
the key to open the minds of the framers of the Act. In (2003) 3 SCC 321, Indian Supreme Court relied upon the
preamble of the Act to uphold the validity of rules framed thereunder.
In order to better
understand and interpret the language statute or any of its provisions, one of
the most relevant considerations is the object and reasons as well as the
legislative history of the statute. It would help in arriving at a more
objective and just approach. It would be necessary to examine the reasons of
enactment of a particular provision so as to find out its ultimate impact
vies-a-vies the constitutional provisions. Unfortunately the speeches and
objects argued in the Punjab Assembly while passing Act 1974 are not available
on website, despite numerous efforts; I could not trace the same.
Bare
reading of Section 5 couches the powers of tribunal while dealing with the
order appealed against. Tribunal may either, confirm, vary or set aside the
order appeal against, means that these powers with incidental jurisdiction are
available with the tribunals. It is enabling provision, meant to remove the
confusions of jurisdiction vested with the tribunal, even though the power to
remand a matter had not been provided, but still tribunal in fit circumstances,
can remand the matter back to the authority. It is often argued that Section 5
(2) of Act 1974 is deeming clause and only enacted for specific purposes
mentioned therein, in that the powers of implementation/execution not granted
by the legislature cannot be enjoyed by the tribunal. The purpose and impacts
of deeming clause had extensively been dealt with by honorable apex court in PLD 2006 SC 602. Article 212
read with the preamble of Act 1974 would establish that even the matters
related to or ancillary with the terms and conditions of service applicable to
civil servants would remain amenable to the jurisdiction of service tribunal.
Article 7 of Constitution does not include “judiciary”
in the definition of state, but under the settled principles of interpretation,
Article 7 does not specifically exclude the judiciary from its ambit. You may
see PLD 2010 SC 61. On this
analogy, powers of implementation/execution had not specifically been excluded
in the Section 5 (2) of Act 1974; rather the supplementary powers contained
therein are in addition to the inherent powers of the tribunals, but not in
derogation thereof. Even if, Section 5 (2) of Act 1974 is deleted from the
statute book, the very purpose of creation of Service Tribunal under mandate of
Article 212 would inhere in them all powers related to “conclusive disposal” of matters related to terms and
conditions of service. It is also argued that since the power of review is not
available with the Punjab Service Tribunal like the Federal Service Tribunal,
therefore tribunal cannot superimpose the same without amendment in law. There
are basic jurisprudential differences in features of “implementation” and “review”.
The honorable apex court has already directed to amend the law, granting all
tribunals the power of review. See 2007
PLC CS 207 & 2011 SCMR
1410. Review is not a matter of procedure, it bears substantial legal
process dealing with rights of litigants, and has essential characteristic of
disturbing already settled rights. In contra, “implementation” is matter of procedure and falls within the
inherent jurisdiction of judicial forum, the moment tribunals are enacted, it
had and will always have the powers of implementation, until the tribunals are
vanished from the judicial set up of
The
conflict is that under Section 11 of Amended Punjab Service Tribunal Act 1974,
the government has to frame rules to direct the tribunal/judiciary the manner
of implementation of tribunals’ judgment. How can government pass a judgment or
declare a thing falling within the jurisdiction of judiciary. It is the
function of tribunal itself to regulate, pass, govern and declare the mechanism
of implementation, government under Section 11 stands nowhere in this regard.
Section 11 is also offensive and void to Articles 8, 175 & 212 on the
ground that besides violating independence of judiciary, it authorizes the
government to penetrate into affairs of judiciary. It must be struck down. In AIR 1993 RAJ 177, the court held
that if any doubt arises from the terms employed by the legislature, the
preamble has always been held a safe means of collecting the intention, to call
in aid the ground and cause of making the statute. Courts are always empowered
to take help from preamble, objects and the scheme of the Act, its historical
background, the purpose for enacting the provision, the mischief sought to be
eliminated.
Another
dimension of issue is that Article 37 (d), state shall ensure inexpensive and
expeditious justice. It is also against the constitutional spirit to let
judgment-holder search the forum for implementation of judgment passed by the
tribunal. It is duty of court of adopt commonsense construction in make statute
workable as held in AIR 1929 ALL 750.
In somewhat similar proposition, on a procedural matter, pertaining to
execution, when a section yields to two conflicting constructions, the court
shall adopt a construction which maintains rather than disturbs the equilibrium
in the field of execution. See AIR
1965 SC 1477. Every possible effort should be made to render statute
workable. It is however, settled cardinal principle of interpretation of
statute, that the tribunals must be held to posses’ powers to execute their own
orders. One may refer to (2003) 2 SCC
412, wherein, it was held that a statutory tribunal which has been
conferred with the powers to adjudicate the dispute and pass necessary orders
has also the power to implement its orders. As mentioned above, there is
vagueness and offensiveness in Section 5 of Act 1974, which undermines the
authority of service tribunal qua execution of its judgments/orders, for which
a vested duty arises for the tribunal itself to interpret and harmonies the
provisions to make it effective. In the words of Lord Denning {(1949) 2 ALL ER 155},
“whenever a statute comes up for
consideration it must be remembered that it is not within human powers to
foresee the manifold set of facts, which may arise, and even if it were, it is
not possible to provide for them in terms free from all ambiguity ………. a judge
cannot simply fold his hands and blame the draftsman. He must set to work on
the constructive task of finding the intention of the parliament and he must do
this not only from the language of the statute but also from a construction of
social conditions which gave rise to it and of the mischief ……………..”
There
is public policy enshrined in the Preamble of our Constitution and mandated by
Act 1974, one may not strictly believe that the tribunals share the work load
of ordinary courts including high court, but tribunal’s effectiveness in
rendering speedy justice cannot be denied. It is permissible to construe
statute in accordance with public policy. It is however assumed that the
legislature intends its enactments to accord with the settled principle of
public policy. To travel beyond the settled principles of interpretation, and
to render statute effective, courts are even empowered to add “words” in the
statute by taking into account “reference
to the context”. In AIR 1936
SINDH 108, it was held that when examination of the context discloses
that certain words have been inadvertently been omitted from the statute, such
words as are necessary to complete the sense will be supplied, but should be
supplied in the statute only when the omission is palpable and the words
omitted is clearly indicated by the context. In order to promote and advance
the object and purpose of the enactment, viz Act 1974, tribunal is empowered to
depart from the so called golden rule of construction and in supplementing the
written words, if necessary. While resorting to principle of reading down, and
to render Act 1974 fully effective, the tribunal can add the words “implementation or execution” in
its statutory powers besides inherently owned by it through necessary
establishment under Act 1974. In CA 5258/98 Av1.B2 Attorney-General, President
Aharon Barak, while declaring relations of two already married beings qua
public policy holds as under:-
“……………….17. Forty years have passed
since this ruling. The concepts of morality and public policy — this ground was
added in s. 30 of the Contracts (General Part) Law — have changed. ‘Public
policy’ means the main and essential values, interests and principles that a
given society at a given time wishes to uphold, preserve and develop’ (HCJ
693/91 Efrat v. Director of Population Register, Ministry of Interior [12], at
p. 778). With the help of ‘public policy,’ the legal system ensures proper
conduct in inter-personal relationships. This proper conduct
changes with the times (HCJFH 4191/97 Recanat v. National Labour Court [13], at
p. 363). ‘Public policy’ is influenced by the social climate. Its
content varies from society to society; it changes in a given society from time
to time (CA 614/76 A v. B [14], at p. 94). In determining the scope of ‘public
policy,’ an internal balance is required between conflicting values and
interests (CA 6601/96 AES System Inc. v. Saar [15], at p. 861; CA 294/91
Jerusalem Community Burial Society v. Kestenbaum [16], at p. 534; Recanat v.
National Labour Court [13], at p. 364). 18. What are the conflicting values and
principles that shape public policy in the matter before us? On the one hand,
we have the institution of marriage and the social centrality of the family
unit. By virtue of this consideration, the obligation given by a married man to
marry should not be recognized as valid. On the other hand, we have the social
outlook that promises should be kept, and whoever breaches his promise and
causes damage can expect to be found liable for this. In my opinion, an
internal balance between these values leads to the conclusion that the
agreement to marry, even if one of the parties is married when it is made, is
not contrary to public policy and is not void as such. There are several
reasons for this. 19. First, since the 1960s a significant change has occurred
in the public perception of morality and public policy. Significant changes
have occurred in the social attitude towards the dissolution of the bonds of
matrimony and the phenomenon of divorce. The rule that promises of marriage by
a married person are contrary to public policy was formulated in English law at
the beginning of the twentieth century (Spiers v. Hunt [32]; Wilson v. Carnley
[33]). This rule was based on the perception that a termination of the
relationship with the lawful spouse for a different partnership that involves a
promise to divorce and to marry someone else is completely wrong. The courts
feared that recognizing the validity of the promise would encourage immoral
conduct (adultery) and even criminal conduct (bigamy). The rule was adopted in
Israeli law in a limited form, by focusing on the public interest in upholding
the institution of marriage as a basic social unit. An agreement that is
intended to harm this, to destroy family life or to ‘promote’ divorce was
rejected on the grounds of public policy (Riezenfeld v. Jacobson [1], at p.
1027 {114-115}). In Riezenfeld v. Jacobson [1], Justice Silberg wrote that
‘accepted concepts of morality… regard extra-marital relations between a man
and a woman as improper and vile’ (ibid., at p. 1021 {107}). 20. There is no
doubt that preserving the family unit is a part of public policy in
The full bench of this
honorable tribunal while deciding the reference should also keep in hand the
judgment reported as (1983) 3 SCC 307, wherein following rule qua progressive
interpretation was held:-
“……………The courts, therefore have responsibility in so interpreting
the constitution so as to ensure implementation of the directives, and to
harmonise the social objective underlying the directives with the individual
rights………..
Article 2-A ensures social
justice and enacts that principles of independence of judiciary shall be fully
observed in
“....we must strive to give such
an interpretation as will promote the march and
progress towards a Socialistic Democratic State. For example, when we consider
the question whether a statute offends Article 14 of the Constitution we must
also consider whether a classification that the legislature may have made is
consistent with the socialist goals set out in the Preamble and the Directive
Principles enumerated in Part IV of the Constitution.”
Here, while It is to be noted that the evolution of judicial process
holds that the judges are better suited than legislatures to “unearth important principles beneath
statutory language and weight unforeseen issues and disputes”. This
view adapts the courts as open partners in producing statutory meaning. In case
reported as AIR 1962 ALL 227, following
ratio was laid down:-
“…………………Law
is however not an exercise in linguistic discipline. It is emerging as an
important therapy in disorder of social metabolism. It is a complex process and
can be fully understood only by an attentive regard to its therapeutic function
and its synthesis. There is accordingly, growing recognition by courts that a
statute should be construed, rather than interpreted with due regard to its avowed
object and to its character. In the words of learned judge, the art of
interpretation is the “art of proliferating a purpose”……………………”
While dealing with the ambit of Section 5 of Act 1974, the full
bench of this honorable tribunal is empowered to read in the word
“implementation” / “execution”, as the context of the statute naturally
required so. As held in AIR 1960 ALL
136, the principle of reading down would be an attempt to render
effective the basic purpose of establishing the tribunal itself, viz logically
deciding the service appeal.
In another influencing
authority, reported as (AIR 1930 SINDH
265 AT PAGE 271), it was held:-
“….. it is the function of the legislature to enact the laws and
the duty of the judiciary to interpret and enforce them. It is not doubt the
characteristic of a good judge to amplify his jurisdiction, where the words of
the statute conferring the jurisdiction can reasonably be interpreted as giving
him jurisdiction, where, however, jurisdiction can only be snatched by a strained
interpretation of the law………………. the
good judge becomes a bad citizen …….”
CONCLUSION
The
Punjab Service Tribunal has and will always have necessary and ancillary
jurisdiction and powers to execute/enforce/ implement its own judgments/order
(either interim or final). No special legislation or declaration is required to
give effect the already possessed jurisdiction of the tribunal. However, the
tribunal at its own without consulting the government may make rules/policies/ instructions
for the implementation of its judgments. The government in such jurisdiction
stands nowhere. Powers and procedure of the
Tribunal shall not be bound by the procedure laid down in the Code of Civil
Procedure, 1908, or the rules of evidence contained in the QSO 1984 but shall
be guided by the principles of natural justice, the Tribunal shall have power
to regulate its own procedure, as it is settled law that the rules framed for
guidance of courts of justice are always viewed with greater degree of
reasonableness and fairness. SEE AIR
1924 MAD 46. To be more potent on the either side, reference is made to
AIR 1970 SC 140, holding that
where an Act confers jurisdiction on a tribunal, it must be taken to have
impliedly granted the powers of doing all such acts or employing such means as
are essentially necessary to its execution. I know, my submission herein made
are not much required for the Learned Member-II (Judicial) for the disposal of
cited reference, but I really feel honored in assisting the Judicial officer of
highest acumen and wisdom, whose politeness with witty style keeps him young
always.