2008 PLP 52 (CLC)

SAHIB KHAN, J.

Feeling aggrieved from the order dated 11-4-2007, petitioner has impugned the same through the instant petition:

2. The brief facts given in the record, are that petitioner who is an employee of Customs Department of Pakistan, filed a civil suit in the Court of Civil Judge Hunza Camp Gilgit, challenging the orders dated 2-8-2002 and 16-10-2002 issued by the Collectorate Customs, Rawalpindi. This suit is statedly in progress before the trial Court.

3. On 9-5-2006, petitioner filed an application under sections 94/151, C.P.C. for release of his pay and arrears thereof, which was contested by the respondents. However, the trial Judge allowed the petition on 27-11-2006. Being aggrieved from the said order respondents challenged it before the 1st Appellate Court, resultantly, the learned 1st Appellate Court reversed the order, dated 27-11-2006, on 11-4-2007, hence this revision petition.

4. I have heard the arguments of the learned counsel and gone through the record of the case file.

5. The learned counsel appearing for the petitioner submitted that the order dated 2-8-2002, has been passed just to tease and torture the petitioner without observing the tenure provided under service laws. Thus the petitioner just to protect himself from the hardship faced due to premature posting order filed a departmental appeal and was waiting for a positive response as there was no compelling reasons for his earlier posting. However, the drastic action taken by respondents through order dated 16-10-2002 compelled the petitioner to seek relief from the Court of law. He requested for release of pay and its arrears. The learned counsel referred PLD 1999 SC 530, SL. 9, 10 of ESTACODE in support of his argument.

6. As against the above the learned counsel for respondents submitted that the petitioner cannot claim for any benefit from the department including his pay, as the petitioner is not performing his duties as assigned by the department, moreover, pay is payable only to those incumbents who render their services as assigned by the superiors. He further maintained that Sust Post actually opens for a specific period in the calendar year, and functionary has to go back to Customs Collectorate Rawalpindi, after close of Post, hence the question of tenure does not exist, up to the extent to the employee posted to Sust Post. The learned counsel also questioned the jurisdiction of the Courts in the matter, with the contention that the petitioner being a civil servant can only seek relief from the Federal Service Tribunal.

7. It is admitted that the order of the competent authority of Customs Collectora.te dated 16-10-2002, has been passed about 4 years back from filing of the Civil Suit by the petitioner, (through which the pay of petitioner has been stopped). Secondly, it is, also on the record that presently petitioner is not performing his duties due to one or other pretext, in the circumstances, an order for payment of pay is not only illogical but prima facie illegal. However, it is, settled that if the petitioner succeeds in his suit, he will be entitled for all "sort of emoluments admissible to him for such period, contrary to this, if the payment of pay is ordered, it would create legal complications in case of his failure in the case,

8. I deem it not proper to discuss the. case on its merits as the matter in hand pertains to interim relief, therefore, the questions of jurisdiction and principles laid down in the referred authority will finally be adjudicated by the Court after due course of trial.

9. Thus, 1 am of the opinion that the application under sections 94/151, C.P.C. filed by the petitioner is not justified. Therefore, the revision petition dismissed, upholding the orders dated 1-4-2007 passed by the Additional District Judge, Gilgit. However, it is expected that the trial Court will expedite the trial, in view of the nature of litigation. File be consigned to record. F.B./39/Glt. Petition dismissed.