2005 PLP 228 (PLC)

Asmat Kamal for Petitioner. Shuja‑ud‑Din Hashmi for Respondents. Muhammad Hanif Khatana, Addl. Advocate‑General. The brief facts out of which the present writ petition arises are that the petitioner was dismissed from service by the respondents management vide order dated 1‑8‑1983. The petitioner being aggrieved filed a grievance petition before the Punjab Labour Court No‑VII, Gujranwala, which was dismissed vide order, dated 27‑11‑1984. The petitioner being aggrieved filed appeal before the Punjab Labour Appellate Tribunal, which was accepted vide order dated 5‑3‑1985 and the respondents were directed to reinstate the petitioner. The respondents reinstated the petitioner. The respondents filed Constitutional Petition No.4350 of 1985 before this Court against the judgment of the Punjab Labour Appellate Tribunal dated 5‑3‑1985. During the pendency of the writ petition the Punjab Road Transport was abolished and the petitioner was sent in the surplus pool along with other colleagues. The respondents absorbed the petitioner in P.R.T.C. on 6‑1‑1987. The petitioner was retired from service on 30‑6‑1997. The petitioner submitted his pension papers before the respondents. The respondents did not receive the same. The petitioner being aggrieved filed a representation before the respondents. The respondents failed to decide the same. The petitioner being aggrieved filed Constitutional Petition No.562 of 2002 before this Court. Respondent was directed to decide the representation of the petitioner. The respondent did not decide the representation of the petitioner. The petitioner being aggrieved filed this Constitutional petition.

2. Learned counsel of the petitioner submits that the petitioner was not the employee of the respondents after 9‑5‑1985. The Constitutional petition filed by the respondents was accepted by this Court after his retirement on 28‑8‑1997, therefore, the respondent has no lawful authority to withhold the pension benefits accrued to the petitioner for the service rendered by the petitioner the respondents. He further submits that West Pakistan Pension Rules, 1963 is not applicable in case of the petitioner as the petitioner is worker, therefore, respondents have no lawful authority to withhold the pension benefits of the petitioner under the provisions of the West Pakistan Standing Order, 1968. He further submits that the Constitutional petition is maintainable against the action of the respondents. In support of his contention, he relied upon Muhammad Aslam Saleemi v. The Pakistan Television Corporation and another (PLD 1977 Lahore 852).

3. The learned counsel of the respondents submits that the petitioner was removed from service vide order dated 1‑8‑1983, which was upheld by this Court vide judgment dated 28‑8‑1997 passed in Writ Petition No.4350 of 1985, therefore, petitioner is not entitled to any pension benefits being a dismissed employee of the respondents. He further submits that Constitutional petition is not maintainable on the well‑known principle of master and servant. In support of his contention, he relied upon M.H. Mirza v. Federation of Pakistan and 2 others (1994 SCMR 1024), unreported judgment in Writ Petition No.9704 of 2000, unreported judgment in ICA No. 124 of 2001. Mr. Muhammad Hanif Khatana, Addl. Advocate‑General also submits that Constitutional petition is not maintainable.

4. Learned counsel of the petitioner, in rebuttal submits that petitioner cannot be penalized by the inaction of the respondents. He further submits that nobody should be penalized by the act of the Court.

5. Be that as it may, it is admitted fact that petitioner was dismissed from service on 1‑8‑1983 by the respondents‑management. The order of dismissal was finally upheld by this Court vide judgment dated 28‑8‑1997 in Writ Petition No.4350 of 1985. It is admitted fact that petitioner has not challenged the judgment of this Court before any higher forum, therefore, action of the respondents is valid unless and until the judgment of this Court is in the field on the well‑known principle of estoppel and waiver as the law laid down by the Honouable Supreme Court in Pir Bakhsh v. Chairman Allotment Committee (PLD 1987 SC 145). The petitioner is well within his right to avail the proper remedy against the judgment dated 28‑8‑1997 passed in Writ Petition No.4350 of 1985, before the appropriate forum. In view of what has been discussed above, this petition has no merits and the same is dismissed. M.I./S‑44/L Petition dismissed.