2002 PLP 929 (CLC)

The petitioner has filed this writ petition with the following prayer:-- "It is most respectfully prayed that the instant petition be graciously accepted and the respondents be graciously directed to recall the impugned order, dated 27-8-2001 and restore the pension of the petitioner who has been in receipt for 4 years so as to make both ends meet and pass life in these hard days of price hike of basic commodities, taking to the sky and to release a sum of Rs.4,33,447 illegally deducted from the dues accrued to the petitioner after acceptance of offer by way of exercising option for, voluntary Golden Hand Shake Scheme or the petitioner be taken on duty w.e.f. 31-10-1997 if petitioner is not entitled to pension due to him service being less than 25 years and wrongly retired."

2. Learned counsel of the petitioner submits that respondents had withheld pension of the petitioner without any justification. He further submits that the respondents .had been paying pension to the petitioner without issuance of any show-cause notice to the petitioner. He further submits that the petitioner has secured vested right and the same cannot be taken away without issuance of notice to the petitioner. He further submits that the action of the respondents is without lawful authority. He further urged that the respondents withheld the pension of the petitioner on flimsy ground that the same had been sanctioned by the respondents by oversight of the record. The principle of locus poenitentiae is attracted in all respects in the present case. In support of his contention, he relied upon the following judgment in case Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayat Ullah Farukhi PLD 1969 SC

407. He further submits that action of the respondents is hit by Article 25 of the Constitution. In support of his contention, he relied upon the judgment in case I.A. Sharwani and others v. Government of Pakistan through Secretary,. Finance Division, Islamabad and others 1991 SCMR 1041.

3. Learned counsel of the respondents raised following preliminary objections:

(i) The writ petition is liable to be dismissed by virtue of Article 212 read with section 4 of the Service Tribunals Act after the addition of section 2-A in the Service Tribunals Act. (ii) The Federal Service Tribunal is functioning at Islamabad, therefore, the petitioner has to file the appeal before Federal Service Tribunal at Islamabad. (iii) Second writ petition qua the same subject-matter and relief and cause of action, is not maintainable. Learned counsel of the respondents further submits that the petitioner concealed material facts from this Court which are as follows:- (i) The petitioner, filed Writ Petition No.757 of 1998 which was dismissed by this Court vide order, dated 18-5-1999. (ii) The petitioner had already filed Service Appeal No.704/L of 1999 before the Federal Service Tribunal qua the recovery of Rs.4,33,447 which is pending adjudication.

4. The learned counsel of the petitioner in rebuttal submits that the petitioner filed the present writ petition at the time when the Federal Service Tribunal was not functioning at Lahore. He further submits that he did not conceal ally fact from this Court. He further urged that the petitioner filed this writ petition with prayer to restore his pension which was not subject-matter of earlier writ petition and appeal filed by the petitioner before the Federal Service Tribunal.

5. I have given my anxious consideration to the contention of the learned counsel of the parties and perused the record myself.

6. The petitioner submitted the certificate in the following terms in this writ petition:-- "Per instructions certified that this is a first petition on the subject-matter in this Honourable Court." The petitioner did not mention a single word in the contents of the writ petition that the petitioner had already filed Writ Petition No.757 of 1996 which was dismissed by this Court vide order, dated 18-5-1999. Similarly, the petitioner also did not mention a single word that the petitioner had filed an Appeal No.704/L of 1999 before the Federal Service Tribunal which is pending adjudication. The aforesaid facts reveal that the petitioner approached this Court with unclean hands. It is settled principle of law that he who seeks equity must come with clean hands. Keeping in view conduct of the petitioner, I am not inclined to exercise my discretion in favour of the petitioner as per principle laid down by the Honourable Supreme Court in Nawab Syed Raunaq Ali's case PLD 1973 SC

236. It is also settled principle of law that principles of C.P.C. are applicable in the Constitution proceedings as per principle laid down by the Honourable Supreme Court in Hussain Bakhsh's case PLD 1970 SC

1. The second writ petition. qua the same subject-matter, relief and cause of action is not maintainable by virtue of section 11 on the C.P.C. as per principle laid down by the Honourable Supreme Court in Pir Bakhsh's case PLD 1987 SC

145. It is pertinent to mention here that constructive res judicata is attracted in all respects in the present case. In view of what has been discussed above, this writ petition has no merits and the same is hereby dismissed. S.A.K./W-40/L Petition dismissed.