PLJ 2003 SC 200 [Appellate Jurisdiction]
Present: abdul hameeu dogar and sardar muhammad raza, JJ.
CHIEF ENGINEER HYDEL (NORTH) AND PROJECT DIRECTOR, WAPDA WARSAK-Appellant
versus
ZAFRULLAH SHAH ASSISTANT (BPS-15)
CIVIL DEFENCE DIRECTORATE NWFP,
C.A. No. 708 of 1997, decided on 24.1.2003.
(On appeal from the Judgment dated 4.3.1996 of the N.W.F.P. Service Tribunal Peshawar passed in Appeal No. 415/1995).
(i) Civil Procedure Code, 1908 (V of 1908)--
...... S. 21-No objection to jurisdiction takes before Service Tribunal or forum
of first instance, such objection cannot be raised either in appeal or revision and that too, if failure of justice had occurred in decision of case. [P. 204] D
(ii) Civil Service Regulations-
—-Reguln. 418(b)--Respondent voluntarily resigned from WAPDA to join Civil Defence Directorate-Respondents entitlement to pensionary benefits for services rendered in WAPDA--Case of respondent would fall under Sub-Regulation (b) of Regulation 418, where under resignation of an appointment to take up another appointment, service in which counts, is not a resignation of public service—As public service continues and as service" in both appointments counts such principle of common sense is enunciated in Regulation 418 (b) where under respondent would be entitled to pensionary benefits of his past service rendered in WAPDA. [P. 202] A
(iii) Civil Service Regulations-
—-Reguln.
418(b)-Constitution of
(iv) Constitution of
—Ait. 212-Appeal against judgment of N.W.F.P. Service Tribunal-Competency of Provincial Service Tribunal for rendering its decision against WAPDA challenged on the ground of lack of jurisdicuon-Important factors to be considered while determining Jurisdiction of a Tribunal would be, firstly, entity and status of employee, whether a civil servant or not, and secondly, as to whether his claim is with regard to terms and conditions of his service-Additionally it has to be seen with specific care as to which type of civil servant or servants such Tribunal is constituted for-Federal Civil Servants would have recourse to Federal Service Tribunal while for Provincial Civil Servants, Provincial Service Tribunal would have jurisdiction-Respondent being a Provincial Civil Servants, only Provincial Service Tribunal would have jurisdiction. [Pp. 203 & 204] B & C
Mr. Muhammad Latif Khan, ASC and Syed Maqbool All Shah, Director WAPDA for Appellant.
Mr. Attiq-ur-Rehman Qazi, ASC and Mr. Hussain Khan, AOR for Respondent No. 1.
Mr. Jehanzeb Rahim, A.G. N.W.F.P. for Respondent No. 2.
Date of hearing: 8.1.2003.
judgment
Sardar Muhammad Raza, J.--This appeal, by leave of the Court, is filed by Chief Engineer Hydel (North)/Project Director, WAPDA Warsak against judgment dated 4.3.1996 of NWFP Service Tribunal, accepting Appeal No. 415/95 of Zafrullah Shah, Respondent No. 1, allowing him pensionaiy benefits of his services rendered in WAPDA for more than 16 years. .
2. Zafrullah Shah, Assistant (BPS-15) presently serving in Civil Defence Directorate NWFP joined service on 1.6.1964 as peon in the office of Resident Engineer WAPDA Warsak. In 1967 he was appointed as Fero Printer in Drawing Section. After his becoming a Matriculate and after different appointments he was promoted as Senior Clerk in 1978 and posted in the office of Project Engineer WAPDA Warsak.
3. In the year 1980 he applied through proper channel for the post of Assistant in the office of Director Civil Defence, NWFP. His application was recommended and forwarded by the Project Engineer WAPDA Warsak. He was selected and appointed as Assistant in Civil Defence Directorate through Office Order No. 1788 dated 27.8.1980. Despite the fact that the Project Engineer WAPDA had recommended him, he declined to relieve the official for joining his new appointment in the Directorate of Civil Defence. Zafrullah Shah was constrained to resign as per desire of the Project Engineer. His resignation was accepted on 2.9.1980 and he joined his new appointment on 3.9.1980 in the forenoon. The respondent claiming to have served as a regular employee for more than 16 years and having earned qualifying service for pension before his appointment in Civil Defence, applied for the grant of benefit of pension for the period he served with WAPDA. Such application dated 7.5.1995 was forwarded by his department to the Chief Engineer Hydel/Project Director WAPDA Warsak, vide memo dated 18.5.1995. WAPDA Authorities declined to pay the pension contribution for 16 years 3 months 2 days to the official. He moved the NWFP Sendee Tribunal which, vide impugned judgment dated 4.3.1996, granted him the relief prayed for and hence this appeal.
5. All the facts narrated above, mostly related to the service .record, are almost admitted. The resignation of Zafrullah Shah before WAPDA Authorities is .considered to be the damaging factor and on this score the pensionary benefits are denied. It is alleged that having voluntarily resigned, the official happened to lose all his rights if at all arising out of his service under WAPDA. Regulation 418 (a) of Civil Service Regulations is the proper provision of law that regulates resignations and dismissals. For facility of reference, it is reproduced below in its entirety.
"418. (a) Registration of the public service, or dismissal or removal from it for misconduct, insolvency, inefficiency not due to age, or failure to pass a prescribed examination entails forfeiture of past service.
(b) Resignation of an appointment to take up another appointment, service in which counts, is not a resignation of the public service."
The contents of the regulation would clearly indicate the different kinds of resignations that entail upon different consequences. Though the case of respondent fell under sub-regulation (b) of Regulation 418 yet for the purposes of contrast and comparison a careful perusal of both would be most appropriate. Regulation 418 (a) highlights those resignations which arise from misconduct, insolvency, inefficiency not due to age or failure to pass a prescribed examination and all such resignations entail forfeiture of past service. Whereas resignation of an appointment to take up another appointment, service in which counts, is not a resignation of the public service. As the public service continues and as service in both appointments counts, this principle of common sense is enunciated in regulation 418 (b) declaring in unequivocal words that such resignation is not a resignation of the public service and hence the consequences of resignation under 418 (a) are not similar to the consequence of resignation under 418 (b).
6. As the learned Tribunal has rightly applied Regulation 418 (b) to the admitted facts of the present case, the finding is unexceptionable and the same is upheld. Zafrullah Shah is therefore entitled to the pensionary benefits of his past service rendered in WAPDA.
7. Mr. Muhammad Latif, learned counsel for WAPDA raised a strong objection to the effect that the actual relief claimed by Zafrullah Shah was against WAPDA and hence the Provincial Service Tribunal had no jurisdiction at all to give findings in the matter. We had given time, through adjournment, to learned counsel on cither side to produce case-law on the point involved but nothing was facilitated because the situation in hand appears to be of first impression. A finding in this behalf is therefore needed.
8. Zafrullah Shah admittedly is a civil servant of a provincial department and his entity is clearly defined by Section 2(a) of NWFP Service Tribunals Act, 1974. His status/entity of being a provincial civil servant is so strong, specific, intrinsic and unavoidable that had he resorted to the Federal Service Tribunal, his claim would have been turned down on the ground that he was a provincial civil servant and that Federal Service Tribunal was empowered to adjudicate upon the terms and conditions of the civil servants belonging to the departments of Federal Government. Such rejection of claim would have been more stronger than the objection raised in the instant case because the respondent before us is at least, though not the least, a provincial civil servant.
9. Such a situation is not specifically described in
the Service Tribunals Act of the
Centre as well as the Province. If one reverts to fallback upon the principles of general civil law, one has
to see if any help can be sought from
Sections 15 to 21 of the Civil Procedure Code. 10. Section 15 deals with the jurisdiction of Courts
of different grades whereas the grade
of the two Tribunals involved before us is not superior to one another except for the difference that one deals with
federal employees and the other with
provincial employees. Appeal against the judgment of both lies to the Supreme Court. In the instant case the
status of
a civil servant is more important than
the entity of Court or Tribunal. No help,
therefore, can be derived from Section 15 CPC. Sections 16
and 17 CPC deal with the jurisdiction of a forum.with strict reference to the tangible subject-matter and the physical location thereof. In the instant case the subject-matter giving jurisdiction is not
tangible in the sense in which it is so in the aforesaid sections of the CPC. Section 18 CPC is not applicable
for it deals with uncertainty of local
limits of jurisdiction. The objection qua jurisdiction would have been plausible had the entity of a person being
a civil servant been ignored, which in
matters, of civil servants cannot be ignored at all.
11. Two important factors to be considered while determining the jurisdiction of a Tribunal are, first, the entity and status of the employee, whether a civil servant or not and secondly as to whether his claim is with regard to the terms and conditions of his service. Again it has to be seen with specific care as to which type of civil servant or servants the Tribunal is constituted for. If it is for federal civil servants thp.n the Federal Service Tribunal shall have the jurisdiction and if for provincial civil servant then the Provincial Service Tribunal will have the jurisdiction. In the instant case respondent Zafrullah Shah is undoubtedly a provincial civil servant and hence only the Provincial Service Tribunal shall have jurisdiction. Had he been or had he remained WAPDA employee, he would have gone to Federal Service Tribunal.
12.
The preamble of NWFP Service Tribunals Act, 1974, clearly
lays down
the expediency of establishment of a Tribunal to exercise exclusive jurisdiction in
respect of matters relating to the terms and conditions of service of civil
servants, and for matters connected therewith or ancillary thereto. The Act,
under Section 1(3) applies to all civil servants wherever they may be. A civil
servant is defined under Section 2(a) of the Act aforesaid. The respondent under such
section is a civil servant within the meaning of North-West Frontier Province Civil
Servants Act, 1973. His service matters or the terms and conditions thereof can
only be determined by a Tribunal
constituted under Section
3 of the Act and exercising jurisdiction under Section 3(2) of the Act. We,
therefore, are convinced that primarily a
Tribunal would exercise
jurisdiction regarding those civil servants for which it is established or
vice versa. The respondent being a provincial civil servant, the Tribunal
established for him is Provincial Service Tribunal and not the Federal one irrespective
of the fact whether any claim is
partly recoverable from a department belonging to Federal Government.
13.
Real claim of pensionary
benefits of the respondent lies with Civil Defence
Department which has to pass the final orders of retirement and which has to make
payment regardless of the fact that some partial contribution it has to recover from
another department. It was under these circumstances, that the respondent applied to
the Civil Defence Department for claim in hand
which the latter had forwarded to WAPDA/appellant. This is indicative of
the fact that all the formalities of retirement and pension shall be gone
into by the provincial department and hence the Provincial Service Tribunal will essentially have the
jurisdiction. We hold it accordingly.
14.
Though
from the general principles of civil law, we are not in a position to derive any help yet Section 21 CPC lays
down a principle that squarely runs
counter to the conduct of the appellant WAPDA. The principle is that if no
objection to the jurisdiction of a Court or Tribunal is taken in the forum of first instance it cannot be raised either
in appeal or in revision and that too, if a failure of justice has occurred in
the decision of case. We have gone
through the reply of WAPDA before the' Tribunal (pages 16,17
and 18) where no objection to the
jurisdiction of Tribunal had at all been raised. All the objections were almost related to the facts
of the case and the estoppel by conduct
of respondent through
his resignation. We
hold, in the circumstances, that objection to
jurisdiction if not taken before the Tribunal, cannot be taken before this
Court now.
15. Another objection was raised to the effect that the respondent has made a premature claim because his retirement is not due in the immediate future and thus, he lacks cause of action. The objection loses significance when claim on merit is also denied by the appellant WAPDA. When once it is denied, adjudication on merit becomes important because it would be equally denied when the claim is preferred in future at the time of retirement. Moreover, the claim in hand is not strictly relevant to the time of retirement because it pertains to mere transfer of pensionary benefits from one department to another irrespective of the fact as to when such claim would be received by the respondent from his own department of Civil Defence at any future time of his retirement. The claim is merely for transfer of amount of pensionary benefits for a period of 16 years 3 months and 2 days which can be made or agitated at any time before retirement, for, it would be encashed only when the retirement is materialised by the actual department of respondent. As WAPDA cannot be dissociated from the claim in hand with reference to the previous service, that counts, it has to be joined as respondent in appeal before the Provincial Service Tribunal.
16. Consequently, it is held that under Regulation 418 (b) of the Civil Service Regulations, the respondent was entitled to the pensionary benefits qua his service rendered in WAPDA and further it was the Provincial Service Tribunal that had the jurisdiction to entertain the claim.
17. The appeal is hereby dismissed.
(A.A.) Appeal dismissed.