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Civil Appeal No. 150 of 1982, decided on 1st September, 1986.

(Against the judgment and order, dated 19‑5‑1981 of the Lahore High Court, Lahore, in W.P. No. 8590/S of 1980).

‑‑‑Arts. 185(3) & 199‑‑Thal Development Authority Service Rules, 1949. Rr.11 & 12‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑Leave to appeal granted to examine questions: Whether case was one of execution of declaratory decree of civil Court, by resort to Constitutional jurisdiction; whether respondent should not have been granted arrears of salary for period he remained out of service and whether Intra‑Court Appeal did not lie in the case in view of S.3, Law Reforms Ordinance, 1972.

‑‑‑Ss. 50(1) & 81‑‑Thal Development Authority Service Rules, 1949, Rr.11 & 12‑‑Civil Services Rules (Punjab), R.7.3‑‑Chairman, Thal Development Authority terminating services of employee after paying him three months' pay in lieu of required notice‑‑Employee obtaining decree from civil Court declaring order of his termination of service as illegal void and inoperative and that he continued to be in service‑‑Thal Development Authority, meanwhile, standing dissolved and Administrator taking charge of residual functions‑‑Dissolution of Authority not having effect of wiping out all legal liabilities under provisions of S.81 of Act and dissolution could not be pleaded in bar to remedy‑‑Competent departmental authority had to exercise its statutory powers in light of R.7.3 of Punjab Civil Service Rules and law laid down in Pakistan v. Mrs. Isaacs' P L D 1970 SC 415‑‑Held, contumacious refusal of Authority to discharge its statutory duties provided justification to employee to invoke Constitutional jurisdiction of High Court, therefore, case of employee was not one of enforcing a declaratory decree by means of a Constitutional petition‑‑Inconsistency in approach and in discharging statutory duties by administrator deprecated and employee, on basis of decree granted by civil Court was held to be entitled to re‑instatement and arrears of pay.

Muhammad Yousaf Khan and others v. Pakistan Western Railway through Vice‑Chairman P.W.R. and others 1972 S C M R 1; Pakistan (2) Administrator of Karachi v. Naseem Ahmad P L D 1961 SC 445 and The State of Pakistan and another v. Mehrajuddin P L D 1959 SC (Pak.) 147 cited but not examined.

Pakistan v . Mrs. A . V . Isaacs P L D 1970 SC 415ref.

‑‑‑S. 3‑‑Thal Development Authority Act (XV of 1949), S.50 Thal Development Authority Service Rules, 1949, Rr.11 & 12‑‑Intra‑Court appeal‑‑Original order passed under Service Rules which provided for an appeal‑‑ Intra‑Court appeal in case rightly held to be incompetent.

Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 ref.

Maqbool Elahi Malik, Bar‑at‑Law, Advocate Supreme Court instructed by Khawaja Mushtaq Ahmad, Advocate‑on‑Record (absent) for Appellants.

Riaz Anwar, Advocate Supreme Court and M.A. Qadri, Advocate- on‑Record (absent) for Respondent.

Date of hearing: 28th May, 1985.

Leave to appeal was granted to the Administrator Thal Development Authority Punjab, to examine the following questions of law arising out of the judgment of the learned Single Judge of the Lahore High Court, dated 19th of May, 1981 and that of the Appeal Bench of the same High Court, dated 7th of July, 1981-

(a) Whether it was a case of execution of a declaratory decree of the Civil Court, by resort to the‑ constitutional jurisdiction, which could not take place.

(b) Even if a declaratory decree could be enforced through a constitutional petition whether the respondent should not have been granted the arrears of salary for the period he remained out of service.

(c) Whether the view of the Appeal Bench that an Intra‑Court Appeal did not lie was correct in view of Section 3 of the Law Reforms Ordinance, 1972 as amended by the Law Reforms (Amendment) Act 8 of 1972.

The respondent Mahboob Ali Khan joined service on 7‑9‑1953 as Tracer with the Thal Development Authority constituted under the Thal Development Act 1949 (Punjab Act XV) of 1949 (hereinafter referred to as the Act). He was promoted as Draftsman on 15‑6‑1954 and confirmed on that post on 16‑12‑1954. On 7‑7‑1965, the Chairman, Thal Development Authority terminated his services and paid him three months' pay in lieu of the required notice. According to the respondent, he was at that time on leave on medical grounds. On 8‑6‑1970, he instituted a civil suit claiming a declaration that the order, dated 7‑7‑1965 terminating his services as Draftsman was illegal, void and inoperative and that he continued to be in the service of the defendant. This suit was dismissed after contest on the ground that the civil Court at Lahore had no territorial jurisdiction over the matter and that the termination of service had been competently ordered in accordance with the law applicable to his case. On first appeal, the judgment was reversed ex parte, necessary declaration was granted by the Additional District Judge on 13‑6‑1978. The High Court dismissed in limine on 21‑11‑1979 a revision petition filed by the appellant. This concluded the first round of litigation.

Equipped with such a declaratory decree, the respondent reported to the appellant and submitted joining reports on 16‑8‑1978 (after the acceptance of his appeal by District Judge) and on 11‑12‑1979 (after dismissal of appellant's revision petition by High Court). He also appended a copy of the judgment. he claimed arrears of salary as well. It remained unattended. he reminded the appellant on 5‑2‑1980. Getting no response on 20‑2‑80 he submitted a complaint to the Punjab Vigilance Commission which was forwarded to the appellant. The appellant reported to the Registrar, Punjab Administrative Vigilance Commission on 18‑3‑1980 in the following words‑

"I am directed to refer to your Notice No.6/S&GAD/LE/80, dated the 24th February,1980 on the above subject and to say that Mr.Mehboob Ali Khan cannot be re‑instated in service because the Thal Development Authority stands dissolved since 1969. The decree against which the appeal of Thal Development was dismissed by the High Court, is a mere declaratory decree and so is in-executable. As regards the claim of Mr. Mehboob Ali Khan for arrears of pay etc, no such prayer was made in the suit filed by him and so there is no decree in his favour for payment of these dues. The Thal Development is, therefore, unable to make any payment to Mr. Mahboob Ali Khan under the decree held by him."

The Registrar of the Vigilance Commission endorsed the reply to the respondent on 18‑3‑1980. The respondent thereafter once again impressed upon the appellant to abide by the declaration and its legal consequences. Ultimately on 26‑7‑1980 he instituted a constitutional petition claiming a direction to the appellant in following terms‑

"to refrain from preventing the petitioner from resuming his duties as Draftsman or direct the respondent to reinstate the petitioner in the post of Draftsman and further direct the respondent to pay the arrear of salaries to the petitioner from 7‑7‑1965 up‑to‑date and all other benefits to which he is entitled under the TDA Services Rules, 1969. Any other relief to which the petitioner may be found entitled may also be granted along with cost of the petitioner."

The constitutional petition was allowed by the High Court in following terms on 19‑5‑1981:‑

"In view of that has been' stated above, this petition is allowed and the respondent authorities are directed to give effect to the decree of the learned Additional District Judge as upheld by the High Court with the result of termination of the petitioner's service being illegal, he would be deemed to be in service and entitled to be paid the usual salary and wages. Since the learned counsel for the petitioner submitted that as the petitioner has served for 25 years, he may be retired, let that be done if the respondent authorities are not in a position to re‑instate the petitioner and pay his salary for the relevant period. This petition is thus allowed with costs."

An Intra‑Court appeal was thereafter filed by the appellant which was not entertained with the following order‑

"As the law applicable to the proceedings (Thal Development Authority Service Rules, 1949) do provide for appeal, this I.C.A. is not maintainable in view of section 3 of the Law Reforms Ordinance, 1972. It is accordingly dismissed in limine."

The first contention of the learned counsel for the appellant was that an Intra‑Court Appeal was competent in the High Court and the High Court had, according to him, taken an erroneous view of the order which was actually the basis of the second round of litigation. It was not relatable to his dismissal order but was original proceedings commenced under Art. 199 of the Constitution for getting a declaratory decree enforced and as such section 3 of the Law Reforms Ordinance did not bar an Intra‑Court appeal against it. In the alternative, it was contended that the order which was brought under challenge in the constitutional petition was one passed in proceedings under section 13 of Punjab Administrative Vigilance Commission Ordinance, 1979 and as there was no provision therein for an appeal, the Intra‑Court appeal was competent.

The next submission of the learned counsel for the appellant was that all said and done, the procedure adopted by the respondent amounted to getting a declaratory decree enforced or executed by resort to constitutional jurisdiction and this was expressly depreciated by this Court in numerous cases, some of these being Muhammad Yousaf Khan and others v. Pakistan Western Railway through Vice‑Chairman, P.W.R. and others 1972 S C M R 1; Pakistan (2) Administrator of Karachi v. Naseem Ahmad P L D 1961 SC 445; The State of Pakistan and another v. Mehrajuddin P L D 1959 SC (Pak.) 147.

Finally, it was contended that the Thal Development Authority stood dissolved by notifications which issued in 1969 (copies placed on record). The Administrator had taken charge of only residual functions. There was no post on which the respondent could be re‑instated and no duties which he could be called upon to discharge. It was according to him, not a fit case for the grant of relief which was granted to him.

The learned counsel for the respondent has, on the other hand, relied on the decision of this Court in the case of Pakistan v. Mrs.A.V. Isaacs P L D 1970 SC 415 wherein the entire case‑law on the subject was reconsidered at length and the right to remuneration was firmly and finally recognized overruling the earlier view, besides, according to the learned counsel once the declaration had been granted by the Court it was incumbent on the appellant to take consequential steps honour and implement it. On its failure the respondent could invoke the constitutional jurisdiction of the Court for the purpose.

As regards the dissolution of the Thal Development Authority and the residual matters, the learned counsel for the respondent placed on record with his concise statement a number of orders passed by the appellant himself, giving effect and implementing such decisions of Courts. For example, by order, dated 14‑2‑1970 (Annex: H/I) following the decision in Writ Petition 1799 of 1966 and W.P. 95 of 1967 the Administrator set aside the orders of suspension and dismissal of five officials of Thal Development Authority, created posts from various dates in 1966 and ordered the payment of salaries from those dates. In another case (Annexure 'I') Muhammad Sardar Khan was re‑instated from 18‑7‑1962 and ordered to be paid from that date "deducting Rs.13,150 which he earned as salary while being out of T. D. A. service". In another case (Annex: J) of Muhammad Ishaque, a post was created from 29‑3‑1965 by order of the appellant, dated 6‑4‑1972 and he was allowed the arrears: deducting a sum of Rs.6,695, which he earned from subsequent employer while out of T.D.A. service". There were four other similar orders placed on record by the learned counsel for respondent in respect of other individual officers.

As regards, the competence of the Intra‑Court Appeal, the learned counsel for the respondent has placed implicit reliance on the decision of this Court in Mst. Karim Bibi and others v. Hussain Bakhsh and another P L D 1984 SC 344 and contended that the appeal was barred as the original order was one of removal which was in fact an appealable order under the Service Law under which it was passed.

It is unfortunate that Mahboob Ali, the respondent employee of the Thal Development Authority who has been litigating so long, expired on 16‑3‑1985 of brain cancer as mentioned in his death certificate. Now his heirs are contesting this appeal.

The decree finally granted to Mahboob Ali was "the order, dated 7‑7‑1965 terminating the service of the plaintiff as Draftsman is illegal, void and inoperative and the plaintiff continues to be in service of the defendant". The rules under which action had been taken against him were framed by the Government of Punjab under section 50, subsection (1), clause (iii) of the Punjab Thal Development Act, 1949, Rules 11 and 12 are relevant. These are reproduced hereunder in extenso‑‑

"11. Appeals.‑‑ (i) A member of the service shall have a right of appeal against any order imposing a penalty mentioned in rule 10 above. Such appeal shall be filed through his immediate superior officer, who shall forward it to the Chairman with his comments. In case of officials whose monthly salary exceeds Rs.100, the appeals shall be sent to the Authority for consideration in its next meeting. Trivial appeals, appeals on matter which do not affect any member of the service personally and appeals which merely repeat an appeal which has already been rejected shall not be filed. Appeal shall not be addressed personally to the member of the Authority and any such communication shall be deemed a breach of discipline.

(ii) An appeal shall lie to the Chairman in the case of an official whose monthly salary does not exceed Rs.100, and in other cases to the Authority. The order passed in appeal by the Chairman of the Authority shall be final.

(12) General.‑ In all matters not specially covered by these rules, the members of the service shall be governed by the provisions of the Civil Services Rules (Punjab)."

Rule 7.3 of Punjab Civil Service Rules which stands incorporated on the strength of rule 12 reproduced above, provides as under:‑

"Allowances on re‑instatement

7.3. When the suspension of a Government servant is held to have been unjustifiable or not wholly justifiable; or

When a Government servant who has been dismissed, removed, or suspended is re‑instated the revising or appellate authority may grant to him for the period of his absence from duty‑

(a) if he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed removed or suspended and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal, removal or suspension; or

(b) if otherwise, such proportion of such pay and allowances as the revising or appellate authority may prescribe.

In a case falling under clause (a), the period of absence from duty will be treated as a period spent on duty. In a case falling under clause (b), it will not be treated as a period spent on duty unless the revising or appellate authority so directs.

Note 1.‑ This rule is absolute and unconditional and so the question of lien does not arise in the case of a Government servant who is dismissed from service and re‑instated on appeal when the period of unemployment between the date of dismissal and re‑instatement is declared by the appellate authority as duty."

After the decree of the civil Court, the competent departmental authority had to exercise its statutory powers in the light of this rule and the law laid down by this Court in Mrs. Isaac's case of which the appellant was fully aware and had been giving effect to it in various orders of re‑instatement referred to. The contumacious refusal of the appellant to discharge its statutory duties provided the justification to the respondent to invoke the constitutional jurisdiction of the High Court. It was not a case of enforcing declaratory decree by means of s constitutional petition. It was more a case of seeking redress against the failure of the statutory to exercise in a lawful manner the powers conferred on it by statutory rules.

The two questions of law directly arising in this appeal are both answered in Mrs. Isaac's case in the following words

"The position, therefore, that emerges from the examination of the decisions above referred to is that a civil servant has and always had the right to recover from the Crown salary already accrued due to him, in spite of the fact that he held service during the pleasure of the Crown. The theory of the bounty of the State never applied either in England or in pre‑Independence India as regards arrears of pay. I am, therefore, with great respect unable to agree with the views of the judicial Committee of the Privy Council in I. M. Lall's case that a civil servant had no right to arrears of pay nor could he recover the same. It will follow from this that I am also unable to agree with the law propounded by this Court in the case of Mehrajuddin, which appears to be based solely upon the decision of the Privy Council in I . M . Lall's case."

The other question of law has been answered in the same judgment in the words that follow:‑

"It seems to me that if the dismissal was wrongful, then it was due to no fault of the servant that he was prevented from serving the State. If he is to be treated by virtue of the declaration given by the Court as being still in service, then I see no reason why he should not also be given by way of consequential relief the salary for the period as if he was actually rendering the service. This is the basis on which arrears of pay were allowed to Siraj Narain Anand by the Federal Court. If during this period he has accepted other employment or engaged in other profitable business, then any amount earned by way of salary from such employment or as profits of such business would, of course, have to be set off against the salary due for two reasons. Firstly, because a Government servant cannot without the permission of Government serve any other master or engage in any other business and secondly, because on general principles too, a person cannot be allowed to reap a double advantage."

The dissolution of the Thal Development Authority has not the effect of wiping out all legal liabilities. On the other hand, section 81 of the Act under which the Authority was dissolved by notification itself provides that:‑‑

"all liabilities which are enforceable against the Authority shall be enforceable only against the Administrator" (section 81(2)(b)) "the functions of the Authority and the Chairman under this Act shall be discharged by the Administrator"; (section 81(2)(c)(a); and finally that‑‑

"the Administrator shall keep separate accounts of all moneys respectively received and expended by him under this Act, until all loans raised hereunder have been repaid, and until all other liabilities referred to in clause (b) have been duly met" (section 81(2)(a)).

These statutory provision preserve and continue the rights and obligations of the parties and dissolution of Thal Development Authority cannot be pleaded in bar to remedy. Besides, the various order passed by the appellant, already referred to, establish what the appellant denies. Such inconsistency in approach and in discharging statutory duties cannot be deprecated. These provisions of the law and the previous conduct of the appellant irresistibly indicated the grant of relief to the respondent in terms in which it was granted.

The question of the competence of the Intra‑Court Appeal in the context of the view taken above is not very material. As the original order in the case was one passed under Service Rules, 1949 which provided for an appeal, the Intra‑Court Appeal was rightly held to be incompetent.

The result of the above discussion is that the appeal fails and is dismissed with costs.

S. Q. Appeal dismissed.

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