2008 PLP 116 (SCMR)

NASIR-UL-MULK, J.

Leave to appeal was granted to the Board of Intermediate and Secondary Education, Bahawalpur (hereinafter referred to as the Board) and three others on 10-2-2003 against the judgment of the Lahore High Court, dated 9-3-2000 to consider "whether the suit (of the respondent) was maintainable in terms of the bar envisaged by section 29 read with section 31 of the Punjab Board of Intermediate and Secondary Education Act, 1976".

2. The respondent Khalil Ahmad, a clerk in the Board, in a departmental disciplinary proceedings for misconduct was awarded minor penalty by the Chairman of the Board. However, on appeal to the Board itself he was inflicted upon major penalty of removal from service, which was assailed in a constitution petition before the Lahore High Court. The petition was allowed and the Board was directed to rehear the appeal. After remand the appellant withdrew his appeal with the result that the Chairman imposed the penalty of reduction in rank by order, dated 14-7-1992. The respondents challenged the said order in a civil suit filed in the Court of Senior Civil Judge, Bahawalpur. After contest by the Board the suit of the respondent was decreed on 4-7-1994 and the entire disciplinary proceedings were set aside on the ground that the same were not conducted in accordance with law. The Board 'appealed to the District Judge and by judgment, dated 4-10-1997 the Additional District Judge dismissed the appeal as barred by time. The revision petition filed by the Board before the Lahore High Court also failed for the sole reason that the appeal before the appellate Court time-barred. Against this judgment of the High Court leave was granted.

3. Mr. Masud Ashraf Sheikh, Advocate Supreme Court appearing for the appellants relying upon sections 29 and 31 of the Punjab Board of Secondary Education Act, 1976 (hereinafter called the 1976 Act) contended that since the jurisdiction of the Courts generally to quest-1e: any order passed under the Act has been ousted the Civil Court had no jurisdiction to entertain the respondents' suit. He further argued that the rules laying down the procedure for disciplinary action against employees of the Board were not statutory and no legal remedy was available against their non-compliance.

4. Mr. M. Ozair Chughtai, Advocate Supreme Court entered appearance for the contesting respondent and pointed out that the question of jurisdiction of the Civil Court was never raised at the trial, either in the written statement or in the evidence, and no issue 'was framed thereon. He submitted that the respondent is about to retire in a year's time and that the charge against him related to absence from duty, and for failure to dispatch to the concerned officer certain important files before proceeding on leave.

5. Indeed the appellants did not either expressly or by necessary implication objected to the maintainability of the suit of the respondent on account of ouster of jurisdiction of the Civil Court under sections 29 and 30 of the Punjab Board of Intermediate and Secondary Education Act, 1976. Obviously no issue was framed of the point. We also do not find any ground on the question either in the memorandum of appeal before the Appellate Court or in the petition filed before the High Court. The question of ouster of jurisdiction being a mixed question of facts and law in the present case as the provision of sections 29 and 31 of the Punjab Board of Intermediate and Secondary Education Act, 1976 would reveal, the objection to the jurisdiction of the Civil Court ought to have been raised before the trial Court. Sections 29 and 31 of the Punjab Board of Intermediate and Secondary Education Act, 1976 runs as under:- "

29. Bar of suit.

No act done, order made or proceeding taken by a Board in pursuance of the provisions of this Act shall be called in question in any Court.

31. Protection of acts and order under the Act.

No suit for damages or other legal proceedings shall be instituted against Government, the Controlling Authority, a Board, a Committee, a Member or a Committee or an Officer or employee of a Board in respect of anything done or purported to have been done in good faith in pursuance of the provisions of this Act and the regulation and rules made thereunder." Bare reading of section 31 shows that the same does not oust the jurisdiction of the Civil Court generally but only bars suits against the official of the Board acting in good faith. Section 29 also does not completely oust the jurisdiction of the Civil Court preventing the Courts to examine as to whether the action taken was within the framework of the law. A factual foundation therefore, was required to be laid in order to examine whether the ouster clause would be attracted. Such foundation was only possible if objection to the jurisdiction of the Civil Court was raised in the written statement and issue framed, thereby providing opportunity to the plaintiff to furnish relevant evidence. That not done the said objection cannot be now raised for the first time. Interestingly the point was not even taken up in the petition for leave to appeal.

6. We may add that the appellate Court had not discussed the merit of the case and dismissed the appeal as time-barred and the High Court had upheld the decision. No argument whatsoever was advanced on behalf of the appellant assailing the judgment of the Appellate and Revisional Court on the question of limitation.

7. For the foregoing reasons we find no merit in this appeal, which is dismissed with no order as to costs. M.H./B-13/SC Appeal dismissed.