1988 PLP 330 (CLC)

Maulvi Sirajul Haq for Petitioner. Kh. Muhammad Farooq for Respondents. Date of hearing: 22nd November, 1987. The petitioner was an employee of the National Bank of Pakistan, respondent No.l. He was removed from service through order dated 23‑6‑1979. The petitioner filed a suit for a declaration to the effect that the said order dated 23‑6‑1979 was mala fide, illegal, void, without lawful authority and will have no effect on the rights of the petitioner and that he, the petitioner, continues to be lawfully in the employment of the National Bank of Pakistan and as a consequential relief he prayed for the grant of a permanent injunction restraining the respondents from implementing the said order. The learned Civil Judge, Ist Class, vide judgment and decree, dated 19‑3‑1981 decreed the suit of the petitioner "as prayed for". The respondents filed an appeal which was dismissed by the learned District Judge, Jhelum vide order dated 24‑10‑1981. However, while dismissing the appeal and while ordering that the suit of the petitioners shall remain decreed "as prayed for" he added that the petitioner "would not be entitled to the salary and other amenities of the service for the period he remained out of service and that this period would be treated as leave without pay." This appellate order was challenged by the respondents through Civil Revision No.260 of 1981 entitled "National Bank of Pakistan etc. v. Waheed Ahmad Dar". However, the respondents withdrew their revision petition and it was dismissed as such vide order of this Court dated 1‑2‑1987. The petitioner filed the present revision petition only with a prayer that the condition of his non‑entitlement to salary etc. may be set aside as it was bad in law. Therefore, the contest between the parties relates only to the said condition attached by the learned appellate Court while dismissing the appeal. I have perused the record and have heard arguments.

2. As pointed out above the learned trial Court decreed the suit "as prayed for" and similarly the learned appellate Court also ordered that the suit of the petitioner will remain decreed "as prayed for". The condition relating to the payment of salary and amenities of service as also grant of leave without pay has been attached by the learned appellate Court itself and not at the request of any of the parties. The respondents had filed the appeal against the order of the learned trial Court and they did not pray in the memorandum of appeal that a direction should be given or that a condition should be attached that in case of reinstatement of the petitioner he will not be A entitled to salary etc. Similarly no arguments with regard to this condition was advanced before the learned appellate Court. Again the learned appellate Court did not give any sort of reason for attachment of this condition. Therefore, the condition has been attached by the learned appellate Court of its own without giving the parties an opportunity to discuss this aspect before him. In fact he was not required to allow the parties to discuss the said matter before him because as already said none of the parties had called upon or requested the learned appellate Court at any stage to impose or not to impose such a condition. Therefore, imposition of the said condition, by the appellate Court is illegal and void.

3. In the foregoing paragraph it has been pointed out that tile suit of the petitioner was decreed by both the learned Courts below "as prayed for". The prayer of the petitioner was that the impugned order was illegal and void and he had sought a permanent injunction that the same should not be implemented. He had also sought a declaration that he still continued to be in service of respondent No.l. It may be added that he is in the service of respondent No.l even now as he was put on the job soon after the decision of the learned Courts below. When the learned Courts below decreed the suit "as prayed for" it meant that the petitioner continued to be in service without break and that because of the grant of permanent 8 injunction the order in dispute was not implemented. When an order is declared to be illegal and void it means that it is to be taken t be non‑existent. Such an order no more remains in the field and as a matter of fact it is to be taken that it was never passed and that it was never implemented. The result is that the petitioner continued in service of respondent No.l and he was, therefore, entitled to all the salary and other amenities of service for the period he remained l out of job. For the same reason he could not be treated on leave of any kind during this service and on the other hand had to be treated as on duty.

4. In view of above discussion the revision petition is accepted. The appellate order dated 24‑10‑1981 is modified and the condition imposed by the learned appellate Court that the petitioner "would not be entitled' to the salary and other amenities of service for the period he remained out of service and that this period would be treated as leave without pay" is set aside.

5. The parties shall bear their own costs throughout. A.A./W‑16/L Revision accepted,