1986 PLP 965 (SCMR)

MUHAMMAD HALEEM, C.J.‑‑This judgment will dispose of Civil Appeals Nos. K‑277 of 1980 and K‑278 of 1980. They arise respectively from the orders of the Service Tribunal, Islamabad, dated 21st of March, 1979, and the Sind Service Tribunal, Karachi, dated 9th of June, 1979. By the first order the rehearing of the appeal was refused and by the second order the review application was held to be not maintainable. Leave, by a common order, was granted to consider whether section 5 of the Service Tribunals Act, 1973, and in a like manner section 5 of the Sind Service Tribunals Act, 1973 read with the rules conferred a power of review. In Civil Appeal No. K‑277 of 1980, the appellant, who was a retired Air Force Officer, was appointed by the Pakistan Atomic Energy Commission, Islamabad, a respondent herein, as a Senior Stores Officer on a salary of Rs. 750 in the time‑scale of Rs.570‑75‑1,500 in addition to his military pension with usual allowances as admissible under the rules. By a letter, dated 22nd of June, 1966, his salary was refixed minus his military pension. Thereupon the appellant by letter, dated 22nd of July, 1966, represented to the Chairman of the Commission against the unilateral fixation of his salary, but it was turned down. Thereafter the representations were repeated, and, finally, by an order, dated 4th of December, 1968, he was informed that in supersession of the earlier order, dated 22nd of June, 1966, his salary was refixed in the scale of Rs.750‑75‑1,500 plus his Military pension with usual allowances as admissible under the rules. That again after a lapse of five years his salary was refixed by the Personnel Officer‑I of the respondent No. 1, and this time, too, again without notice to the appellant deducting the pension from his salary. Again he represented to the Commission but to no avail and by an order of the Director, Audit and Accounts, dated 2nd of January, 1974, the amount paid in excess was ordered to be recovered from the appellant in monthly instalments of Rs.325 per month. The appellant next filed an appeal to the Commission and also represented to the Prime Minister of Pakistan, but as no relief was given to him, he filed an appeal before the Service Tribunal, Islamabad, which was dismissed by order, dated 14th of November, 1977, holding that the appeal was not maintainable as the appellant was not a civil servant. No step was taken to challenge this order before the Supreme Court. However, an application was filed on 12‑3‑1979 before the Service Tribunal, Islamabad for the rehearing of the same appeal, but the Tribunal rejected the application on the ground that as it had become functus officio after deciding it, it had now no jurisdiction to rehear it. In Civil Appeal No. K‑278, the appellant being aggrieved by the seniority list of the P . C. S. (Judicial Branch) Officers of Group B (Hyderabad and Khairpur Divisions including Karachi) notified by the Government of West Pakistan vide Notification No. 725 S&GAD. 300, dated 18th of June, 1970, preferred an appeal, after the usual representations, to the Sind Services Tribunal against his placement in the seniority list below respondents Nos. 2 to 7 and his confirmation as from 27th of July, 1954, although he had joined the service earlier in point of time, i.e. 3rd of September, 1947 than respondent No. 2 who was confirmed on 6th of February, 1950. The Sind Services Tribunal dismissed the appeal holding that it had no jurisdiction to grant pro forma promotion from an earlier date by a recourse to annulling his previous supersession as its jurisdiction to grant relief in regard to promotion was barred and in that view of the matter it could not also take into consideration the factors which had been considered by the Government while refusing promotion to him. It further held that all that the Tribunal could do was to determine the seniority on the basis of the length of service in a particular grade and the appellant had failed to provide an effective answer to it. No appeal against this order was filed in the Supreme Court, but a review petition was laid before the Service Tribunal, which was dismissed on the short ground that it was not maintainable as no such power was conferred on the Tribunal. In this behalf reliance was placed by the Tribunal on Ahmed Food Industries Ltd., Karachi v. Sind Labour Appellate Tribunal, Karachi and 2 others 1974 P L C

225. Since the argument turns on section 5(2) of the Service Tribunals Acts, 1973, it is reproduced in extenso:‑ "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; (c) issuing commission for the examination of witnesses and documents. It was argued by Mr. Nasim Farooqi on behalf of the appellant in Civil Appeal No. K‑278 of 1980 that as the Service Tribunal was deemed to be a civil Court and had the same powers as are vested in such Courts under the Code of Civil Procedure, 1908, it has also the power to review its own order. This contention is without substance. The powers which are given under subsection (2) of section 5 are identified as those for the purpose of deciding an appeal and to that extent the word "deemed" makes it notionally a civil Court for the exercise of the same powers as are vested in a civil Court for deciding an appeal under the Code of Civil Procedure, 1908. Those powers are found in Order XLI and in sections 96 and 100 of the Civil Procedure Code. The powers under Order XLI do not include the power of review which is separately provided in the Code by section 114 and Order XLVII; C . P. C. in the given circumstances. Reliance was placed on Hussain Bakhsh v. Settlement Commissioner Rawalpindi P L D 1970 S C 1, but this case is distinguishable on the ground that the question for consideration before the Court was as to whether the High Court had power to review an order made by it in the exercise of its power under Article 98 of the Constitution of Pakistan, 1962, and the power of review under section 114, C.P.C. was held to be available as the proceedings under Article 98 of the said Constitution in regard to a civil matter being a civil proceedings related to the High Court's original civil jurisdiction. Such is not the situation here as the language of the statute itself by a legal fiction assumed the Tribunal to be a civil Court for the limited purpose of deciding an appeal under the provisions of Order XLI, C.P.C. In the case of Ahmad Food Industries referred to earlier, a Division Bench of the High Court of Sind and Baluchistan of which I was a Member differed from the view expressed in N.Q. Industries v. Mst. Bapai Kaikhusro P L D 1968 Kar. 589 where it was held that the power of review was available to an Industrial Court on the basis of general principle or by virtue of section 20 of the General Clauses Act. The reason being that the power to review was not a matter of mere procedure but of jurisdiction and unless the power was conferred expressly it could not be exercised. Necessarily, therefore, it is a substantive right and cannot by intendment be invoked as is being argued on the language of the provision. In Muzaffar Ali v. Muhammad Shafi P L D 1981 S C 94, this Court eminently laid down that the right of review is a substantive right and is always the creation of relevant statute on the subject. It cannot be assumed on the premise that a review of the order in appeal is a continuation of the appeal nor can the theory of continuation of proceedings sufficient to recognize such a right as to open the judgment for scrutiny. Accordingly, Civil Appeal No. K‑278 of 1980 is without substance and is dismissed. The prayer in Appeal No. K‑277 of 1980 was fort re‑hearing, and the Tribunal rightly refused it on the ground that it had no power to rehear it. Even if the prayer for re‑hearing is regarded to be a review still the Court has no jurisdiction to hear the appeal de 1E novo. This appeal is also without substance and is dismissed. There will be no order as to costs in both the appeals. M. Y. H. Appeal dismissed.