1996 PLP (C (PLC(CS))

Laws Cited

Representation

• Sh. Abdul Aziz for Appellant. Ch. Muhammad Yusuf, A.-G. for Respondents .
• Date of hearing 12th June, 1996.
• Sh. Abdul Aziz for Appellant. Ch. Muhammad Yusuf, A.‑G. for Respondents .
• I have heard the arguments and perused the record. It has been argued by Sh. Abdul Aziz, Advocate, the learned counsel for the appellant, that there is no denial to the fact that the Notification dated 7‑2‑1994, itself records that the same was issued in continuation of the Notification dated 6‑1‑1994. The learned counsel has further submitted that both the learned members of the Bench between whom the difference of opinion has arisen, also agree that subsequent notification is a consequence of the first Notification dated 6‑1‑1994; the difference arose between them was on the point as to whether the appeal against the subsequent Notification dated 7‑2‑1994 after the expiry of the statutory period was necessary for obtaining a relief against the said notification. The learned counsel has argued that although the appellant also filed a review petition against the subsequent Notification dated 7‑2‑1994 and thereafter, filed a joint appeal against the aforesaid two notifications; he also submitted that it is also correct that the period of ninety days had not expired so far as the Notification dated 7‑2‑1994 was concerned. But the learned counsel maintained that an appeal against the second notification dated 7‑2‑1994 was not necessary because, the said notification does itself impose the penalty of recovery of the alleged embezzled amount, rather it is a step in execution of the Notification dated 6‑1‑1994 which imposes the penalty of the recovery of alleged embezzled amount after necessary calculations. The learned counsel maintained that the penalty of recovery was imposed by the Notification dated 6‑1‑1994 and not by the Notification dated 7‑2‑1994. According to the learned counsel, the appeal against first notification was held competent and a fresh inquiry was ordered by the Tribunal. Thus, according to the learned counsel, after the cancellation of the Notification dated 6‑1‑1994, the notification dated 7‑2‑1994 would automatically be set at naught because, it had no separate legal entity; it was merely a step in the implementation of the earlier notification. The learned counsel further submitted that Notification dated 7‑2‑1994 cannot be regarded as an order which by itself adversely affects the terms and conditions of service to the appellant within the meaning of section 4 of the Service Tribunals Act, and, thus, no appeal was required against it. On the aforesaid premises, the learned counsel maintained that even if the appellant would have not challenged the subsequent notification either before the Departmental Authority or the Tribunal, be was entitled to get the relief against it in appeal against the Notification dated 6‑1‑1994 on the basis of annulment of the Notification dated 6‑1‑1994. The learned counsel has also cited a case reported as Sh. Manzoor Ahmad v. Azad Government 1995 PLC (C.S.) 59 in support of his contentions.
• Ch. Muhammad Yusuf, the learned Advocate‑General, controverted the arguments advanced by the learned counsel for the appellant and has argued that it was the appellant who challenged the subsequent Notification dated 7‑2‑1994 first by way of review before the departmental authority and subsequently a joint appeal was filed by him before the Service Tribunal against both the notifications. Therefore, the learned counsel maintained that the appellant cannot be permitted to take the stand that no appeal was necessary against the subsequent notification because the same was in nature of implementation of the first notification; and that the relief regarding the subsequent notification directly flows from order of the cancellation of the first notification.
• I have given my due consideration to the matter. During the arguments, I asked the learned Advocate‑General as to whether after the cancellation of the Notification dated 6‑1‑1994 and the order of fresh inquiry by Service Tribunal, the penalty of the recovery of the alleged embezzled amount still subsists. The learned Advocate‑General did not directly answer my query and stated that even if it is not recoverable, the fact remains that subsequent Notification dated 7‑2‑1994 would hold the ground. It is evident that the penalty of the recovery of the alleged embezzled amount was ordered by the Notification dated 6‑1‑1994 and. the second Notification dated 7‑2‑1994 itself stipulates that it is in continuation of first notification; the second notification neither itself imposes any penalty on the appellant nor it is a fresh 'order', rather the same is merely a step in the execution of the Notification dated 6‑1‑1994. Thus, in my view it cannot be said that second notification can be regarded to be a notification which adversely affects the terms and conditions of service of the appellant. It was only the first notification by which the appellant was not only dismissed from service but the alleged embezzled amount had to be recovered from him as a result of penalties awarded to him. It is settled principle of law that an order passed or a structure raised on an illegal order would also be illegal. Thus, if basic order is found to be violative of law, any subsequent orders passed on the basis of first order would be, ipso facto, illegal and of no legal consequence; and any structure raised on an illegal order would dash to the ground on the cancellation of the original order. Thus, after the annulment of the notification dated 6‑1 1994 by the Service Tribunal, no recovery could be made from the appellant on the basis 'of the second Notification dated 7‑2‑1994 and, therefore, even if no appeal would have been preferred by the appellant against the subsequent notification, the relief regarding the subsequent notification should have been given to the appellant by the Service Tribunal, as it is a legal consequence of the annulment of the Notification dated 6‑1‑1994. It may also be pointed out here that the Service Tribunal possesses all the powers of Civil Court for disposing of an appeal before it and, thus, it also possesses inherent powers, which vest in a Civil Court under section 151, Code of Civil Procedure. Therefore, it cannot be said that the hands of the Service Tribunal were tied and it could not give any relief to the appellant with regard to the Notification dated 7‑2‑1994.

Headnotes / Summary

Judgment & Decree