1990 PLP (C (PLC(CS))

Office of the District Health Officer, Mirpur. (A.K.) Registered Ack. Due. Dated the 15th Dec.,1974 To, Mr. Sadiq Hussain Oureshi, Head Dispenser, Village Roli, Tehsil and District Kotli (A.K.). Subject :-‑Absent from dues/dismissal from service You remained absent from your duty station w.e.L16th September, 1974. As such you were served two Notices vide our No. 5699‑5702/DHO/74, dated 16th November, 1974 and 5885‑88/DHO/74, dated 25th November, 1974 respectively to report for duty at your posting station at Rawalakot. You failed to do so. The Director Health Services was kept in close touch with all these events.

2. Since you failed to join your duty, the Director of Health Services has observed that you are not a suitable employee in the Health Department.

3. You are therefore, dismissed from service vide KSR‑Vo1.I, Article No.128‑1 w.e.f.16th September, 1974. Sd/‑ District Health Officer, Mirpur (A.K):" The order itself shows that it was not passed as a result of any inquiry nor any I show‑cause notice was issued to the appellant. The order was made by the District Health Officer, Mirpur after noting down the observations of the Director Health Services without adverting to the relevant rules which necessitated the holding of proper inquiry and issuing of show‑cause notice to the appellant. There is no denying the fact that the D.H.O. hurriedly made the impugned order and failed to carry out the mandatory provisions of Service Rules as were pointed out to him in the second part of the directions passed on to him by the Director of Health Services. Under the Service Rules prevalent, the order was to be made by the Director Health Services and not by the District Health Officer, Mirpur who absolutely had no jurisdiction for making the impugned order.

9. The impugned order is patently found illegal and there is little doubt about it that it was made by an officer of the Health Department who held no powers to make that order. But the question for determination before this Tribunal is that whether each and every void order is to be struck down regardless of the consequences of its decision and without considering the merits and other aspects of the case materially concerned with the shortcomings of the appellant. It is pertinent to note here that it would be a dangerous attempt to apply this principle on wholesale basis that a void order is ordinarily to be set I' aside by a Court of competent jurisdiction or a Tribunal without having any regard to other considerations. In the instant case, the appellant is seeking his relief after a period of 14 years and at this stage, it would be difficult to grant him relief prayed for the reasons given in the succeeding paragraphs. In this connection, a passage from the judgment of Supreme Court of Pakistan given in the case reported as Sharif Ahmad Hashmi v. Chairman Screening Committee 1978 to be cited as 1978 S C M R is reproduced below for guidance: -‑‑ "Additionally I have to observe here that the petitioner assumed in his arguments before us that a Court always struck down a void order regardless of the consequences of its decision. The assumption is a total fallacy, because a void order is only a type of an illegal order. This is described as void because it is so illegal that it does not exist in the eyes of the law, but this does not alter the fact that it was passed and by describing it as void Courts cannot alter the fact that the order was passed. And an order which has been passed can create consequences, therefore, there cannot be a hard and fast rule that void order must always be struck down. The true position has been clarified by Mr. Justice Munir, C.J., with usual lucidity (I say so with respect) in Yousaf Ali v. Muhammad Aslam Zia P L D 1958 S C (Pak.) 104, where Mr. Justice Munir, CJ. observed at page 117:‑‑ "And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognising as legal the changed position, of the parties is in operation, fall to the ground because such orders have as little foundation as the void order on which they are founded. This passage does not mean that a void order is always to be struck down regardless of the consequences of such a decision, but that a void order must be struck down provided there is no statute or principle of law which would make it unjust or inequitable to strike down the void order. This qualification is very important, and that is why, for example, a writ may be refused against a void order if this would enable the petitioner to circumvent the provisions of a statute of limitation. (See this Court's judgment in Civil Appeals 150 and 166 of 1970 Jalal‑ud‑Din and others v. Mst. Noor Sain and others and Jalal‑ud‑Din and others v. Shamas‑ud Din and others respectively). Similarly in Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner and others P L D 1964 S C 829 a writ petition had been filed against an order which this Court held was void. Nonetheless, the writ petition was dismissed on the ground that it was barred by acquiescence on the part of the petitioner. There is also ample authority for the proposition that a writ against a void order may be dismissed if the petitioner is estopped by his conduct from challenging it or if he has been guilty of laches." As the law laid down by the Supreme Court of Pakistan in Sharif Ahmad's case is that a person by his conduct or acquiescence makes transaction impeachable by him, unimpeachable after a lapse of time. The doctrine of laches is not an arbitrary or technical doctrine. In a case in which it would be practically unjust to grant remedy either because the party has by his conduct done that which might fairly be regarded as tantamount to a waiver of the remedy or where he has by his conduct and neglect, though perhaps not waived the remedy yet has rendered the situation of the other party such as it would not be reasonable to render it; in both these cases lapse of time and delay are most material if afterwards the remedy is asserted by the party making delay.

10. It is no doubt that the impugned order by which the appellant was dismissed out of service is a void order and it to be deemed non‑existent in law. But if a relief is claimed against that order held to be a void order, the remedy available in law must be availed of at the proper forum before approaching this Tribunal. In the instant case the appellant did not bother to bring any appeal before the proper forum even uptill now and there does not seem anything unjust or inequitable so as to justify the striking down of the void order. In fact the appellant by his conduct and acquiescence has rendered himself not entitled to the relief sought for. In the given circumstances of the case, we feel ourselves well‑convinced that the appellant by his conduct and acquiescence has missed the departmental remedy in law before approaching this Tribunal and he is not entitled to any relief. The law helps the vigilant and it does not help he indolent. The appellant having left the service at his sweet will and having remained out of the department for a fairly long time cannot be brought back to his office at this stage when he has almost exhausted all the necessary qualifications required for the performance of his official duties. Hence this formula does not find favour with us that each and every void order is to be struck down even if the departmental remedy provided in service rules is not availed of before the proper forum. Since the appellant is found to have rendered himself guilty of delay in pursuing his departmental remedy in law for the redress of his grievances, we are left with no choice but to reject his appeal.

11. The upshot of the above discussion is that we find no force in this appeal and the same is hereby dismissed. M.Y.H./82/Sr. A