2006 SCMR 1828 (PLP)

M. JAVED BUTTAR, J.

The petitioner through this petition under Article 212(3) of the Constitution of the Islamic Republic of Pakistan, 1973, has assailed the order, dated 1-6-2004 passed by the Punjab Service Tribunal, Lahore whereby the petitioner's miscellaneous application for re-consideration of the Tribunals' earlier decision dated 10-12-2001, dismissing the petitioner's appeal against the order, dated 25-1-2001 of dismissal form service has been dismissed, as being not maintainable.

2. The petitioner was appointed as PTC Teacher on 10-8-1993. A show-cause notice dated 28-6-2000 was issued alleging that his appointment was against merit and he was dismissed from service by the Authority on 25-1-2001. The departmental representation remained undecided. The petitioner, filed an appeal against the dismissal order before the Service Tribunal which appeal, as mentioned above, was dismissed by the Tribunal on 10-12-2001. The matter was not agitated further before this Court. Hence, the above order passed by the Tribunal became final.

3. It is alleged that afterwards some PTC Teachers who were appointed along with petitioner and dismissed in similar circumstances, were reinstated in service and therefore, the petitioner also moved a representation for re-consideration of his, case on 13-12-2003. It is further alleged that the petitioner was orally informed that the above-said order, dated 10-12-2001 passed by the Tribunal was in the way and if he would get the same recalled by the Tribunal, the petitioner would be reinstated in service and, on this assurance the petitioner filed Appeal No.473 of 2004 before the Tribunal but withdrew it on 17-3-2004 stating that he would file a civil miscellaneous application for the desired relief. Thereafter tie petitioner moved the above-said application before the Tribunal for the reconsideration of the above-said earlier decision dated 10-12-2001 passed by the Tribunal, which as mentioned above, was dismissed on 1-6-2004 in the presence of the District Attorney and the departmental representative, as follows:-- "Learned counsel for the applicant/appellant contended that Rehmat Ali was taken back in service as PTC Teacher and is serving the Education Department with prospects or further promotion whereas he has been kept on contract with no further chances of promotion and he wants the same 'treatment to be given to him as extended to Rehmat Ali. Case of Rehmat Ali is not before mc. Judgment in Appeal No.1662 of 2001 clearly indicates that the entry of appellant in service as PTC Teacher was not transparent, however, having received Master Degree, I directed the respondent to consider the appointment of the appellant when the vacancy arises. IC he applies taking into consideration his experience as PTC Teacher. The Department has appointed appellant, as observed, on contract basis as educator. I cannot direct them through the C.M. application to appoint appellant as a regular PTC Teacher because the policy has changed and further I have no power to review my judgment, dated 10-12-2001. Even otherwise, the said judgment was passed' on merits taking into consideration the record produced before me. Learned counsel has now stated that the record produced by the Education Department was forged. I regret that this matter cannot be reopened in review since no powers are conferred on me for reviewing my own judgment. Application having borne fruit to the limited extent of implementing my judgment, dated 10-12-2001 is disposed of as fructified."

4. We have heard the learned counsel for the petitioner and have also seen the available record.

5. It is submitted by the learned counsel for the petitioner that the Tribunal has acted illegally in dismissing the application as not maintainable on the ground that the Tribunal lacked the review jurisdiction whereas under section 5(2) of the Punjab Service Tribunals Act, 1974, the Tribunal, for the purpose of deciding an appeal, shall be deemed to be a civil Court having the same powers as are vested in such Court under the Code of Civil Procedure, 1908 and Code of Civil Procedure has conferred the power of review on the civil Court. Learned counsel in this regard has relied on Asad Ali Khan v. Chairman, Pakistan Telecommunication Corporation, Islamabad and 2 others 1998 PLC (C.S.) 588, in which (a judgment passed by a Division Bench of Karachi High Court), it has been held that since under section 5(2) of the Service Tribunals Act, 1973 the Tribunal has been deemed to be a civil Court, therefore, it has been vested with all the powers of the said Court exercisable under the Civil Procedure Code and one of these powers is contemplated under section 12(2) of the above Code. It is thus argued that previously fraud and misappropriation was played on the Tribunal at the time of the decision, dated 10-12-2001 and therefore, the Tribunal had the jurisdiction under section 12(2) of the Civil Procedure Code to withdraw/recall its previous order.

6. We find no force in the contentions of the learned counsel. Firstly, the perusal of the judgment, dated 10-12-2001 shows that no fraud or misappropriation was played upon the Tribunal. Secondly, the perusal of the petitioner's present application (C.M: No.265 of 2004) before the Tribunal shows that it was not moved under section 12(2), C.P.C. and in any case no fraud or misappropriation before the Tribunal was alleged, therefore, we do not find merit in this petition. We have deliberately not gone into the issue involved in the above-said decision referred to before us passed by the Karachi High Court, as we are of the view that the present petition can be decided without going into said issue and the question of power of the Tribunal under section 12(2) of the Civil Procedure Code, if any, is left to be decided for another time in some other appropriate case.

7. In view of the above mentioned this petition is dismissed and leave is refused. H.B.T./S-41/SC Leave refused.