1981 PLP (C (PLC(CS))

GUL MUHAMMAD KHAN, J.‑This is an Intra Court Appeal against the order dated 3rd December, 1974 of a learned Single Judge by which Writ Petition No. 716/S/73 of respondent Muhammad Tufail was partly accepted, to hold that his retirement under Martial Law Regulation 114 was without lawful authority and of no legal effect.

2. Briefly, the facts leading to this appeal are that the respondent who was holding rank of Lieutenant‑Colonel in the Pakistan Army was re‑employed as Director (Purchases) Capital Development Authority on 16th November, 1968. On the promulgation of Emergency he was recalled to army duty on 30th November, 1971.

3. According to para. 9 of the writ petition, he was released of the army duty on 25th February, 1972 and was permitted to go on privilege war leave upto 4th of April, 1972. On 16th of February, 1972 the respondent addressed a letter to the then Chairman of the C. D. A., asking for reinstate ment and posting. It is the case of the appellant that a letter posting the respondent on the same post was sent to him. According to the respondent the same was later withdrawn and efforts were made to get the respondent compulsorily retired under Martial Law Regulation 114 vide order dated 12th March, 1972.

4. The respondent sought for a review of the said order of retirement. As the same was not decided., be filed the writ petition. The learned Single, Judge had partly allowed his request as said above. His request for reinstate ment in service was refused. The respondent did not challenge that refusal and rather acted on the order so as to lodge a complaint for an action as provided in section 3(4) of the Ordinance XXI of 1965.

5. The respondent has filed cross‑objections to the appeal and prayed that his request for re‑instatement be also considered and allowed. The appellant has challenged the order mainly on the grounds: ‑ (a) The respondent having applied for re‑instatement and the same having been allowed, he shall be deemed in service of the appellant and consequently an order under para. 3 of the Martial Law Regulation 114 could be passed by the President. (b) In any case, no writ petition could have been filed by the respondent as an army reservant in view of the bar under Article 199(3) of the Constitution.

6. It is to be noted that according to section 3 of Ordinance XXI of 1965 the respondent who had been called up for service in the army was entitled to re‑instatement in the employment from which he was released. The employer, however, is not liable to do so if the reservist does not apply or report to the employer for the purpose within 3 months of his release.' It is stated that the respondent did apply but he had not as yet joined the service when the order of his retirement under Martial Law Regulation 114 was passed. It is, therefore, clear that the respondent was not in service of the appellant at the relevant time and, therefore, there was no question of his being retired.

7. It is to be further noted that under section 3(4) a reservist has a right to file a complaint before a Magistrate in case the employer does not re‑instate him in service. The same provision provides a sentence of 6 months or a fine of Rs. 10,000 or both and six months' pay as compensation to the reservist. Had the reservist been in service, the remedy would have been by re‑instatement and not compensation. In view of the above, there is no reason to differ with the view of the learned Single Judge that the respondent was not in service at the relevant time. The Martial Laws Regulation 114 therefore, did not apply.

8. As for the cross‑objections, it is to be noted that law under which the respondent sought his re‑instatement did not oblige the employer to do so. The employer could avoid re‑instatement firstly by applying to the Centr2l Government for exemption under section 3(4) of the Ordinance XXI of 1965. Alternatively, he could refuse to do so on the pain of penalty and only 6 month's pay by way of compensation. Consequently, the relief which even relevant law does not provide, cannot be granted by this Court.

9. The respondent has already lodged a complaint under section 3(4) of Ordinance XXI of 1965 and the same is before the competent Court. The appellant might rely on the order of compulsory retirement in defence. This aspect of the case shall, however, be considered by the Magistrate. Suffice it to say that there is no force in the cross‑objections and no relief can be granted thereunder. In view of the above, there is no merit in this appeal or the cross -objections and both are dismissed with no order as to costs. Appeals dismissed.