1986 PLP 1345 (MLD)

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0. VII, R.2‑‑Respondent's order of dismissal from service set aside by appellate Court on authority of a decision of High Court in a writ petition and his suit for recovery of salary was allowed‑‑Respondent who was dismissed from "service on 10‑11‑1958 admitting that he did not render any service since D‑8‑1958 till date but he was allowed salary for such period‑‑Respondent, held, was only entitled to salary from 10‑11‑1958 to date when order of High Court was passed in writ petition‑‑Decree of first appellate Court modified accordingly. S. M. Muslim Naqi for Petitioner. Malik Muhammad Sayeed for Respondent. Date of hearing: 24th April, 1986. This Revision Application under section 115 of the Civil Procedure Code has been filed by the Karachi Municipal Corporation against the judgment and decree passed by the First Appellate Court in Appeal No. 331 of 1981, decreeing the suit of the respondent, as prayed. The respondent instituted Suit No. 503 of 1967 for recovery of a sum of Rs. 9152 being the amount of salary allegedly due to him from 1-8-1985 to the date of decree. The suit was resisted by the applicant /defendant, and the trial Court dismissed the suit. In appeal, the learned First Appellate Court, relying on the Judgment of this Court in Petition No. 719 of 1962 filed by the respondent against the petitioner, reached the conclusion that, as a result of declaration by the High Court that the order of dismissal of respondent from service was illegal and void, the effect of the order was that the respondent shall be deemed to be in service of the petitioner, and he accordingly decreed the suit. Mr. S.M. Muslim Naqvi, learned counsel for the applicant /defendant contends that the first appellate Court fell into error in decreeing the suit of the respondent inasmuch as the respondent admittedly did not render any service for the period from 1‑8‑1958 till today. It is also contended by the learned counsel that, as there was no direction contained in the order of the High Court passed in Writ Petition No. 719 of 1962 instituted by the respondent there was no justification for the first appellate Court for decreeing the suit of the petitioner, as prayed. It is also contended that, in any case, as the petitioner had not attended his duties after the order of the High Court, he was not at all entitled to get salary after the date of the order of the High Court, namely, 21‑5‑1965. After hearing the learned counsel for the parties, I am of the view that the judgment and decree passed by the first appellate Court in appeal needs modification. It is an admitted position that the respondent was dismissed from service by the applicant on 10‑11‑1958.1 It is also not disputed that the order of dismissal of respondent fro the service was set aside/declared as without lawful authority by the then High Court of West Pakistan in Writ Petition No. 719/62, which was decided on 21‑5‑1965. Although there is no observation in the order passed in the Writ Petition filed by the respondent against the applicant that he was also entitled to the salary, but the legal effect of the order of the High Court, declaring the dismissal of the respondent from service as without lawful taut hority, is that the respondent 'ha be deemed to be in service from 10‑11‑1958 to 21‑5‑1965, when the order of the High Court was passed in the above Writ Petition. As result of the order of the High Court, the respondent became entitle to the entire salary in the absence of any observation to the contrary in the Writ Petition. In so far as the payment of salary after the tat of the order is concerned, it is rightly contended by the learned counsel for the applicant /defendant that the salary after the date o the order of the High Court' could only be paid upon proof that the respondent rendered, or, offered to render service in accordance with the service contract. However, it is not necessary to decide this controversy in this Revision Application, as it cannot be disputed that the order of dismissal of the respondent from service having bee declared as without lawful authority by the High Court, the respondent was admittedly entitled to salary from 10‑11‑1958 to 21‑5‑1965, when the order of the High Court was passed. In these circumstances, modify the decree of the first appellate Court to the extent that the plaintiff /respondent will be entitled to a decree in the sum of Rs. 7,1.20.00 being the salary for the period from 10‑11‑1958 to 21‑5‑196 with proportionate costs. The Revision Application is accordingly dispose of with no order as to costs as a result of the disposal of the main Revision Application, the Miscellaneous Application has been infructuous, which is accordingly dismissed. Petition accepted.