ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

HYDERABAD.

C. P. NO.D-377 OF 2006.

C.P. NO.D-378 OF 2006.

DATE ORDER WITH SIGNATURE OF JUDGE

FOR KATCHA PESHI.

FOR ORDERS ON M.A. /2009.

FOR ORDERS ON MA. /2009.

FOR ORDERS ON M.A. 2009.

2.12.2009

Mr. Mehmood Hussain Siddiqui, Advocate for petitioners.

Mr. Masood A. Noorani, Advocate for respondents alongwith Najeebullah Malik Chairman P.T.C.L. Hafiz Irfan Ahmed Manager Legal P.T.C.L. Haziq Ali Shaikh Incharge Legal, Abdul Raheem Shaikh G.M. and Mirza Khan Mughal Deputy General Manager P.T.C.L.

By this order we intend to dispose of these two petitions as common questions of law is involved in them.

We have heard the learned counsel for the Petitioners and Respondents 2 to 4.

It is contended by the learned counsel for the petitioners that the Federal Services Tribunal has decided the service matters in favour of the petitioners on 31.1.2005. The P.T.C.L. has preferred petitions for leave to appeal before the Honourable Supreme Court impugning the said Judgments. These petitions were numbered as K-298 and K-299 of 2005. The learned counsel for the petitioners contends that till date the petitioners have not received any notice of abatement of the appeals preferred by the P.T.C.L. He further claims that the petitions for leave to appeal referred to herein above by the P.T.C.L. against the Judgment of Federal Services Tribunal were dismissed on 26.10.2007 by the Honourable Supreme Court. However the learned counsel has not placed before us certified copy of the orders of the Honourable Supreme Court.

On the other hand Mr. Masood A. Noorani, learned counsel for the Respondents 2 to 4 has contended that the Honourable Supreme Court by its Judgment in the case of MUHAMMAD MUBEEN-US-SALAM v. FEDERATION OF PAKISTAN (P.L.D. 2006 602) has held that the Tribunal has no jurisdiction to decide the service matters of the employees if their organizations do not have Statutory Rules of service. The learned Counsel further contended that the P.T.C.L. do not have the Statutory Rules of service and, therefore, the jurisdiction of the Tribunal is barred as has been held by the Honourable Supreme Court in the case of MUHAMMAD MUBEEN-US-SALAM supra. He further contended that the Honourable Supreme Court has further observed in the said Judgment that the appeals which have been decided prior to the Judgment or the Judgments of the Federal Services Tribunal against which no appeal is pending before the Honourable Supreme Court would fall within the doctrine of past and closed transaction. Any Judgment either in appeal by the Honourable Supreme Court or by the Service Tribunal which has attained finality prior to the decision in the case of MUHAMMAD MUBEEN-US-SALAM could not be reopened and would be deemed to be the past and closed transaction. Except the aforesaid category all other matters in which the appeals have been preferred by either party before the Honourable Supreme Court which appeal or petition for leave to appeal is pending either at the stage of petition for leave to appeal or as appeal, stood abated. It was further clarified by the Honourable Supreme Court in the case of MUHAMMAD IDREES v AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN (2007 P.L.C. (C.S.) 1332) that doctrine of past and closed transaction would not apply to the cases where the Federal Services Tribunal has given Judgment in favour of an employee and against such Judgment an appeal has been preferred by the employer which appeal stood abated by the Judgment of the Honourable Supreme Court in the case of MUHAMMAD MUBEEN-US-SALAM supra. Such Judgment of the Services Tribunal against which appeal has been preferred having been declared nullity by the Judgment of Honourable Supreme Court inter-alia on the ground of jurisdiction shall not hold field and the party aggrieved against the action of the employer has to approach the appropriate forum other than the Services Tribunal for redressal of his grievance.

In view of the Judgment of the Honourable Supreme Court in the aforesaid cases of MUHAMMAD MUBEEN-US-SALAM reported as P.L.D. 2006 602 and MUHAMMAD IDREES reported as 2007 P.L.C. (C.S.) 1332 we are clear in our mind that if appeal preferred by P.T.C.L. was pending and subsequently stood abated by the Judgment of Honourable Supreme Court. The Judgment of the Services Tribunal having been declared nullity could not benefit the petitioners except that the petitioners has the remedy to approach the appropriate forum in terms of the Judgment of Honourable Supreme Court. However, if the Honourable Supreme Court has already dismissed the appeals of the P.T.C.L. on 26.10.2007, then the doctrine of past and closed transaction would be attracted and the P.T.C.L. is bound to reinstate the petitioners.

We expect that the Chairman P.T.C.L. would ascertain this fact from the Department as to whether the appeals preferred by the Department were decided by the Honourable Supreme Court on the date referred to hereinabove and in such an eventuality P.T.C.L. shall reinstate the petitioners in terms of the Judgment of the Federal Services Tribunal affirmed by the Honourable Supreme Court. However, in case if such appeals were pending on the date of the Judgment of MUHAMMAD MUBEEN-US-SALAM case as is reflected from the certified copy of the Judgment of Honourable Supreme Court in the case of MUHAMMAD MUBEEN-US-SALAM, which has been placed before us then the petitioners have to approach the appropriate forum for redressal of their grievance.

We disposed of these petitions in the above terms.

The show cause notice issued to the Chairman P.T.C.L. is discharged.

JUDGE