P L D 1979 Karachi 117 (PLP)

The Civil Servants Act was passed in 1973 in pursuance of the provisions contained in Article 212 of the Constitution. Section 4 of the said Act provides for a civil servant aggrieved by any final order by a Departmental Authority, to file an appeal before the Services Tribunal. By an amendment it was provided that the Services Tribunal Act would not apply to a person removed before 1‑7‑1969. On 2‑10‑1973 when this appeal came up before Mr. Justice G. K. Shaikh, Mr. Hamid Hussain for the appellant stated that the appeal had abated and the learned Judge on such statement dismissed the appeal. Mr. Hamid Hussain on behalf of the appellant had thereafter moved the Services Tribunal for avoiding the decrees passed in favour of the respondent by the Civil Judge and the Additional District Judge. Such relief was not granted by a Services Tribunal and the appellants have now through Mr. Hamid Hussain made the present application. The primary objection raised by Mr. A. K. M. Idris is that the applica tion is not maintainable. He states that an application under section 151, C. P. C. would not lie and even if this application is termed as one for setting aside an order of abatement then the same is barred by time. At this stage it would be of benefit to state a few dates which are relevant to the present case :‑ (1) Date of dismissal of appeal by the High Court ..... 2‑10‑1973 (2) Submission of appeal to Services Tribunal ..... 26‑3‑1974 (3) Appeal was dismissed by Services Tribunal .... 10‑10‑1974 (4) Application for restoration under section 151 before this Court ...... 3‑2‑1975 The first question to be considered is whether the order of Mr. Justice G. K. Shaikh was one which would be termed as an order of dismissal by reason of abatement or by necessary inference, may be termed as an order of dismissal of the appeal for want of prosecution. Patently remedy of the appellants before Services Tribunal did not lie. Under section 4 of the Services Tribunal Act an appeal before the said Tribunal lies only at the instance of a civil servant. The Act does not provide for any remedy at the instance of the Government or its functionary for this Act is only for the redress of the grievance of civil servants. It seems clear that this IInd appeal had not abated by reason of Article 212 of the Constitution or the establishment of Service Tribunal. Under clause (2) of Article 212 of the Constitution the bar to entertainment of proceedings or grant of injunction or orders extends only in respect of such matters to which the jurisdiction of the Services Tribunal is extended. The Services Tribunal set up under the Services Tribunal Act had no jurisdiction to hear appeal or to entertain any proceedings of any kind whatsoever at the instance of the Government. It would, therefore, seem that the remedy by way of this IInd Appeal availed of by the appellant was available and was neither extinguished nor diminish by the provisions of Article 212 of the Constitution or the Services Tribunal Act. Clearly such a statement before Mr. Justice G. K. Shaikh to the effect of the appeal having abated was based on misconception of law. The next question is whether dismissal order passed by Mr. Justice G. K. Shaikh, would be set aside both on grounds of limitation as well as merit. As stated above, the order is not one of abatement but of one of dismissal for non‑prosecution. In such event the application should have been made within 30 days by reason of Article 168 in the 1st schedule of the Limitation Act. In fact the present application contains a prayer that the appeal may be heard on merits. The words are similar to the words generally used when a party seeks to avoid an order of dismissal resulting for non‑prosecution. If on the other hand the order of Mr. Justice G. K. Shaikh should be construed as Mr. Hamid Hussain would want it to be construed, then the order ought to be avoided now would be for setting aside the order of abatement. Even if that were so Article 171 of the 1st Schedule in the Limitation Act provides for limitation of 60 days. The application is not within time. Even on merits I am of the view that this order should not be set aside for the enormous time has elapsed as between date of dismissal of the respondent and this day. The litigation has continued for more than 12 ears. The respondent was able to obtain relief from the Civil Judge in they first instance in November, 1967 and thereafter the appellants have, by the several appeals, avoided the effect of the decree of the civil Court for 12 long years. It seems that consistent attempts are being made to deprive the respondent of the fruit of decree. Lastly the application under section 151, C. P. C. does not lie. A somewhat similar question came up for consideration in the case of Marza Abdul Ghajoor Baig v. The Registrar, Joint Stock Companies (P L D 1976 Kar. 85). The Division Bench in that case considered the scope of section 151, C. P. C. for correcting erroneous orders. The learned Judges were of the view that this section conferred a power on the Court to be utilized in cases where it was intended to further the ends of justice but could not be utilized to set aside an erroneous order merely because the parties concerned had been negligent. The appellants in this case withdrew the appeal on account o clear misconception of law and are seeking to avoid the order of dismissal of B this appeal after a lapse of 12 years. It would be unjust to allow section 151, C. P. C. to be utilized in this manner. In the result I dismiss this application. S. Q. Application dismissed.