2018 PLP (C (PLC(CS)N)

JAWAD HASSAN, J.

Through this judgment, we intend to decide the instant Intra Court Appeal as well as I.C.A. No.378/2014 as both the appeals are outcome of impugned order dated 20.03.2014 passed in C.M. No.240/2011 in W.P. No.10545/2006 and C.M. No.239/2011 in W.P. No.10546 by the learned Single Judge whereby the Appellants' applications were dismissed on the ground that the applicants may, if so advised, avail their remedies provided under the law before an appropriate forum for the requisite relief as already directed by the august Supreme Court of Pakistan vide order dated 21.12.2010.

2. Learned counsel for the Appellants submitted that the impugned order is liable to be set aside on the grounds that the same is illegal and has been passed against the judgments of Hon'ble Supreme Court of Pakistan and facts on record; that when the disciplinary action against the Appellants was taken in the year 2001 under the Removal from Service (Special Powers) Ordinance, 2000 (the "Ordinance") the Respondent No.1-Habib Bank Limited (HBL) was a Nationalized Bank, as such petition under Article 199(1) of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution") was fully competent; that under Article 199(1)(c) writ petition against a private person is maintainable; that the judgment cited in the impugned order has been misinterpreted by the learned single Judge, as such the impugned order is liable to be set aside.

3. On the other hand learned counsel for the Respondents controverted the arguments advanced by the learned counsel for the Appellants and prayed for dismissal of both the Appeals on the ground that the learned Single Judge has right passed the impugned order by following the dictum laid down by Hon'ble Supreme Court of Pakistan; that there is no illegality or perversity in the impugned order; that the instant Appeals are not competent before this Division Bench as the proviso to Section 3(2) of the Law Reforms Ordinance, 1972 prohibits an Intra Court Appeal where the law applicable provides for at least one Appeal or one Revision or one Review to any Court Tribunal or Authority against the original order; that the said provision of the law fully attracts to the case in hand as Section 9 of the Ordinance provides remedy of Representation to the Appellants which they duly availed, as such the Appeals are liable to be dismissed.

4. Basically, the Appellants are aggrieved of order dated 15.08.2001, which is an original order, passed by the Respondent No.2 whereby the Appellants were dismissed from service with immediate effect. The perusal of said order reveals that the same has been passed under the Ordinance. Section 9 of the Ordinance provides the remedy of Representation and Reviews to the Appellants against their dismissal from service orders. For the sake of brevity said Section is reproduced herein below which is as follows:

9. Representation and review.- (1) A person who has been dismissed or removed or compulsorily retired from service or reduced to lower post or pay scale or against whom any order has been made under Section 3 by the competent authority may, within fifteen days from the date of the communication of the order prefer a representation to the Chief Executive or such office or authority as the Chief Executive may designate: Provided that where the order has been made by the Chief Executive such person may, within the aforesaid period, submit a review petition to the Chief Executive. (2) The Chief Executive, or an officer or authority, as may be designated for the purpose by the Chief Executive, may, on consideration of the representation, review petition and any other relevant material, confirm, set aside, vary or modify the order in respect of which such representation or review petition is made."

5. From the above Section, it is crystal clear that against the decision of the Respondent No.2 a remedy of Representation is provided, as such the order dated 15.08.2001 was challengeable and the Appellants have duly challenged the same through Representation/Review Petitions under Section 9 of the Ordinance, attached with the petition as Annexure-A/8 at Page-41, before the competent Authority i.e. The President, HBL.

6. The instant Intra Court Appeals are filed under Section 3 of the Law Reforms Ordinance, 1972 whereas the object of proviso to subsection (2) of Section 3 of the Law Reforms Ordinance, 1972 bars the remedy of Intra Court Appeal in those cases in which the relevant law provides the remedy of appeal, revision or review. It is important to note that on the first page of the order dated 15.08.2001, it is clearly mentioned that the same has been issued under the Ordinance and under Section 9 of the Ordinance the Appellants have moved Representations/Review Petitions against the said order before the Authority for the redressal of their grievance. Reliance in this regard is placed on the case titled Muhammad Aslam Sukhera and others v. Collector Land Acquisition, Lahore Improvement Trust, Lahore and another (PLD 2005 Supreme Court 45) wherein the Hon'ble Supreme Court of Pakistan has held as under: "

7. There is no doubt in our mind that the award by the Tribunal is treated to be an original judgment and decree within the meaning of section 26 of the Act. Being an original decree, the award has been specifically made appealable before the High Court and then before this Court under section 54 of the Act of 1894. In view of express provisions of section 54 of the Act it is not possible for us to hold otherwise. It cannot be said that the award by the Tribunal is not an original order for the purposes of bar contained in proviso of section 3(2) of the Ordinance. Therefore, it is not necessary for us to determine as to whether the award made by the Collector could also be treated to be an original order or not. The object of Proviso to subsection (2) of section 3 of the Ordinance, 1972 seems to be to bar the remedy of Intra Court Appeal in those cases in which the relevant law provides the remedies of appeal, revision or review."

7. As against the original order i.e. dated 15.08.2001 through which the Appellants were dismissed from service by the Respondents, a remedy of Representation has been provided under Section 9 of the Ordinance and the Appellants have duly availed the said remedy by filing the Representations/ Review Petitions before the Authority, therefore, the instant appeals are not maintainable as the proviso to subsection (2) of Section 3 of the Law Reforms Ordinance, 1972 specifically bars the remedy of Intra Court Appeal in those cases in which the relevant law provides the remedy of appeal, revision or review.

8. In view of above situation, the instant appeal as well as the I.C.A. No.378/2014 are not maintainable; consequently the same are hereby dismissed. MH/M-163/L Appeal dismissed.