1989 PLP (C (PLC(CS))

CH. HASAN NAWAZ (MEMBER).‑‑While serving as L.D.C. under the respondents, the petitioner was removed from service on 2‑3-1985 in consequence of disciplinary proceedings. On appeal to the Federal Service Tribunal, the order of removal from service was set aside on 28‑3‑1987 in the following terms: In the circumstances, therefore, we accept this appeal to the extent that the penalty of removal from service is altered to that of reduction of pay of the appellant to the lowest stage for a period of five years. The appellant shall get increments during these years, but on restoration the reduction shall not operate to postpone future increments also," On 21‑4‑1987, the respondents passed the following order, evidently consequence of the Tribunal's order setting aside the order of removal fro:;: service on acceptance of appeal: "Mr. Ahmad Nawaz Khan, Junior Auditor B‑5 who was removed from service vide S.O.O. No. 71, dated 3‑3‑1985 is reinstated with immediate: effect. The penalty of his removal from service has been altered to that of reduction of his pay to the lowest stage in B‑5 for a period of 5 year Ha shall get increments during these years but on restoration the reduction shall not operate to postpone future increments also. The period of his suspension from duty from 8‑8‑1975 to 9‑1‑1982 and from 1‑12‑1983 to 1‑3‑1985 will remain as such."

2. A few months later, on 24‑9‑1987, another order was passed to the following effect: "In continuation of this office S.O.O. No. 153, dated 21‑4‑1987 and S.O.O. No. 160, dated 2‑5‑1987 and F.A. and Chief Accounts Officer has, been pleased to order that the period of absence (i.e. the period from the date of removal from service to that of reinstatement in service from 2‑3‑1985 to 29‑4‑1987, as leave of the kind due to Mr. Ahmad Nawaz Khan, Jr. Auditor B‑5 under Rule 2044 (FR‑54)(b) of Establishment Code Volume‑II as he has not been honourably acquitted and he did not perform duty during this period." Orders dated 21‑4‑1987 and 24‑9‑1987 passed by the respondents have led the petitioner to the Tribunal again with the present application under section 151 of the Code of Civil Procedure for implementation of the order passed by the Tribunal on 28‑3‑1987 in his Appeal No. 138(L)/85. The prayer is that the respondents be directed to implement the Tribunal's judgment dated 28‑3‑1987 passed on his appeal and pay the salary due to him for the period from 2‑3‑1985 to 29‑4‑1987. He joined the respondent‑department on 30‑4‑1987.

3. The application for execution of the Tribunal's order has been opposes on the following main grounds: (a) The petitioner's appeal against the Tribunal's judgment dated 28‑3‑198 7 is still pending before the Supreme Court and the matter being sub judice, the parties should await the outcome of the petitioners appeal. (b) The Tribunal does not have the power to get its judgment implemented and that the proper course for the petitioner for relief is to invoke Constitutional writ jurisdiction of the High Court. (c) The petitioner is not entitled to any salary for the period he remained away from duty from 2‑3‑1985 to 29‑4‑1987 because he had not been honourably acquitted by the Tribunal.

4. There is no doubt about the fact that the Supreme Court is still seized of the petitioner's appeal where he has challenged the validity of the Tribunal's order regarding reduction of his pay to the lowest stage for a period of five years. It is, however, common ground that the Supreme Court has passed no order for suspension of the Tribunal's order. This being so, we find it difficult to appreciate how the mere fact of pendency of the appeal before the Supreme Court can possibly legally stand m the way of execution of the Tribunal's order dated 28‑3‑1987. It appears to us that the suspension of the Tribunal's order has either not been sought by the respondent or his prayer to that effect has not been allowed by the Supreme Court. In any case, the fact remains that no order regarding suspension of the Tribunal's order is in existence which, we are constrained to observe, amounts to a tacit direction to the effect that the Tribunal's order should be implemented. Be that as it may, the pendency of an appeal, by no means, creates a bar in the way of implementation of the Tribunal's order and the respondents' plea seems to be rather frivolous.

5. An objection has‑also been taken to the effect that the application is time‑barred. The respondent's counsel did not address us on this aspect of the matter and, any way we feel no hesitation in saying that the objection is without any substance. We fail to understand how the petition is barred by limitation.

6. The other objection is in respect of the Tribunal's power to get its order implemented. It was argued by the respondents' counsel that there is nothing in the Service Tribunals Act, 1973 to indicate that the Tribunal has got the powers to implement or execute its orders.

7. As for the Tribunal's power to get its orders implemented, a reference may, with advantage, be made to proviso to section 5 of the Act which makes the following readings: "Powers of Tribunals. (1) A Tribunal may, on appeal, confirm, set aside, vary or modify the order appealed against. (2) A Tribunal shall, for the purpose of deciding any appeal, be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908), including the powers of (a) enforcing the attendance of any person and examining him on oath; (b) compelling the production of documents; and (c) issuing commission for the examination of witnesses and documents." From these provisions it is abundantly clear that the Tribunal shall be deemed to be a Civil Court for the purpose of deciding an appeal and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908. Certain powers have specifically been mentioned, but they do not derrogate anything from the generality of the provisions immediately preceding in the enacting part of subsection; which are clearly suggestive of the fact that the Tribunal's powers for deciding an appeal are commensurate with the Civil Court's powers for decision of matters before it. The proceeding on application for execution or implementation of the Tribunal's orders are undoubtedly one of the steps in the proceedings of the main appeal. Therefore, what follows is that the Tribunal has got the same powers as are vested in the Civil Court under the Code of Civil Procedure, not only for the purpose of deciding an appeal, but also for the consequential purpose of deciding the petition for implementation of its orders.

8. It is extremely difficult to believe that the legislature while conferring overwhelming, vast and exclusive powers of deciding an appeal, did not intend to bestow the powers of implementation of the orders passed by it in final disposal of that appeal. Any other interpretation of these provisions would lead us to a rediculous results. We are not prepared to believe that the legislature avoided the conferment of power of execution of orders, thereby rendering the entire proceedings in an appeal under section 4 of the Act only an exercise in futility, If the Tribunal do not have the powers to get its order executed, all proceedings before it will be nothing more than wastage of time, and the legislature could by no means, be taken to have intended any such result. We are thus constrained to hold that the powers conferred by section 5(2) of the Act on the Tribunal, inter alia, include the powers of execution and implementation of its order.

9. We might as well deal with the contention that the petitioner should have had recourse to the High Court to invoke its Constitutional writ jurisdiction for implementation of the Tribunal's order. This seems to be rather strange, for where is the wisdom of obliging a successful appellant to have recourse to another forum, may it be the High Court, for execution of the order passed by the Tribunal. There is absolutely no reason whatsoever why the Tribunal or the forum which grants the relief, should not be in a position to get its order executed; particularly when its jurisdiction to deal with the matter is to the exclusion of all other forums and its powers in dealing with the issues are overwhelmingly vast and liable only to be challenged before the Supreme Court and that too, on substantial questions of law of public importance. Seen in the context of these considerations, therefore, the only logical conclusion which can possibly be drawn from the provisions of section 5 of the Act is that they do confer powers of execution of its orders on the Tribunal, exactly in the manner in which such powers are vested in the Civil Courts under the Code of Civil Procedure. We feel no hesitation in holding that the Tribunal has got all the powers which are vested" under the Code of Civil Procedure in the Civil Court in respect of execution of decrees.

10. This view of the matter will, in turn, bring us to all the relevant provisions of the Code regarding execution of decrees and we may make a brief reference to only such of those powers as are material for the determination of the point involved in this petition. Under section 2(2) of the C.P.C., "decree" means the formal expression of an adjudication which, so tar as regards the Court t expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. We are inclined to say that the Tribunal's order m the present case, setting aside the Authority's order of petitioner's removal from service, is a formal expression of an adjudication within the meanings of section 2(2) of the Code. This view will take us to section 3S of the Code which provides that a decree may be executed either by the Court which passed it or by the Court to which it is sent R for execution. This clearly spells out a power in the Tribunal for implementation of its orders. Then, it may be mentioned that in accordance with this view of the matter, the Tribunal would have all the powers mentioned in the Code of Civil Procedure, incidental to the powers of execution of its orders. We do not think that a detailed account of those powers is necessary.

11. Apart from what has been said in the preceding paragraphs, a reference may also be made to a circumstance which is very material for determination of the point involved. In paragraphs four and five of the written statement, it has been mentioned that the Tribunal's order has been acted upon `in true spirit' and that the petitioner was reinstated in service with immediate effect through order No. S.O.O.‑153, dated 21‑4‑1987, although he assumed duty on 30‑4‑1987. This would mean that he has been reinstated not from the date of his removal from service on 2‑3‑1985 but from 30‑4‑1987, the date on which he assumed his duty. Leaving aside the question whether this amounts to the compliance of the Tribunal's order, the respondent's pleading imply a very clear acceptance of the jurisdiction of the Tribunal. If they say, as has been done in the present case, that the Tribunal does not have the powers to get its order implemented, there was no reason why it should have been implemented in part. That this has been done by the respondents is in evident and avowed acknowledgement of its legal obligation of complying with the Tribunal's order. Therefore, we are constrained to observe that the respondents' pleadings in this respect are inconsistent and self -contradictory and thus devoid of any force.

12. Last but not the least, is the finding that the Tribunal's judgment dated 28‑3‑1987 has not been implemented in this case by the respondents. The respondent's order dated 21‑4‑1987 amounted to anything but compliance with the Tribunal's order which dictates that the penalty of removal from service is altered to that of reduction of pay of the appellant to the lowest stage for a period of five years. Since the penalty was set aside, the respondents were legally bound to order his reinstatement with effect from the 2nd of March, 1985, which is the date of his removal from service. As a matter of fact, the effect of the Tribunal's order/judgment dated 28‑3‑1987 is that the petitioner/appellant will be deemed to have been reinstated in service with effect from 2nd March, 1985. It does not leave any choice for the respondent and they are legally bound to allow him all the benefits which necessarily follow from the effect of his reinstatement in service from 2nd March, 1985. We feel no hesitation in saying that this has unfortunately not been done in this case and the respondent's pleadings are clearly evasive and suggestive of the fact that they are avoiding the implementation of the Tribunal's judgment.

13. For the foregoing reasons, the respondent is directed to comply with the Tribunal's order dated 28‑3‑1987 in letter and spirit by the 15th of October, 1988. In case, the order is not complied with by this date, the Chairman, Railway Board shall appear before the Tribunal on 16th October, 19838 to explain the reasons for not complying with the Tribunal's order and show‑cause why proceedings should not be ordered against him in accordance with law.

14. The respondent shall bear the costs of this petition.

15. Parties to be informed accordingly. AA./437/Sr. F Order accordingly.