1. ' The applicants herein have filed this Civil Revision Application against the Judgment, dated 27-9- 2000, passed by 4th Senior Civil Judge, Karachi, West, in Suit No.783 of 1986 (Fresh No.2104 of 1996), which was filed by the Plaintiff/respondent for the following reliefs:
(a) Declaration to the effect that the invalidation Certificate, dated 24-6-1986, (Annexure-E) issued to the Plaintiff by a Competent Medical Board duly suggested/ appointed/constituted and acted upon within the knowledge/ information of the defendants Nos.1 and 2 Medical invalids the plaintiff, which completely and permanently incapacitated the plaintiff for further service of any kind, and hence the plaintiff ceases to be in services of the defendants Hospital from 24-6-1986 onwards.
(b) Declaration to the effect that the plaintiff is entitled to all of the due benefits as arising out of the Invalidation Certificate, dated 24-6-1986 (Annexure E), such as Retirement, Pension, Gratuity and all other fringe benefits from time to time admissible under service rules from 24-6-1986 onwards.
(c) Mandatory/Injunction against the defendants Nos.1 and 2 ordering/ directing and binding them, Their officers/agencies and representatives etc., for not coercing, influencing or compelling the plaintiff in any manner, whatsoever, to join office or to appear before any Medical Board having no authority or enquiry/ investigation etc., within or after completion of rest period, (Annexure-G).
(d) Damages for all the taunting/ mental torture/agony and loss of reputation and for all the threats by the defendants Nos.1 and 2 to the plaintiff to implicate him in some false case or cases, departmental or otherwise, amounting to a sum of Rs.1,00,000 With, Less payment in the month of July, 1986 as per salary Bill (Annexure-J) to a sum Rs.516 of Pay & Allowances for the months of August and September, 1986 @ Rs.1,271 per month Rs.2,542 amounting to a sum of And Medical Expenses Rs.6,550 from 29-9-1986 up to 20-11-1986 on Medicines and Diets, amounting to a sum of Total Rs.1,09,608 (Rupees one lac nine thousand six hundred eight) only."
2. ' And the said suit of the plaintiff/respondent was hereby decreed "along with interest @ 10% from the date of filing of the suit till realization of the amount, with costs, however, plaintiff may, if so adVised, seek further remedy in respect of his pension and other benefits of service before proper forum"; the said judgment was followed by the decree passed by the learned trial Court; applicants/defendants filed a Civil Appeal under section 96, C.P.C. Against the said judgment and decree, which was heard by the learned VII Additional District Judge, Karachi, South, (bearing No.199 of 2000) and vide Judgment, dated 22-12-2003, the same stands dismissed with the following observations: "I have gone through the appeal filed by the appellant it is admitted fact on the record and the verification of the appeal signed by one Dr. Seemin Jamali who seems to be Deputy Director of J.P.M.C. As below the signature there is rubber stamps which reflect the designation as Deputy Director, J.P.M.C. Nothing is on the record that the Board of Directors have authorized Dr. Seemin Jamali to put her signature on the appeal, neither she had filed any authority letter or power of attorney. Record further reveals that the signatory also did not file any documentary proof which prove that whether she is actually working as Deputy Director or not. Simple applying rubber stamp under the signature does not establish that the signatory is entitled to verify or sign the appeal or any other document on behalf of the institution."
3. ' Hence, the applicants filed this civil revision application against the said concurrent judgments passed against them by the learned two Courts below.
(2) I have heard Mr. Nadeem Azhar Siddiqui, D.A.-G. For the applicants/defendants and Mr. Abdul Haleem Siddiqui, Advocate for the respondent/plaintiff.
(3) The admitted facts in between the parties are to the effect that the respondent/plaintiff was appointed as a Cashier in the Health Department of the applicants/ defendants and that an incident had taken place on 2nd June, 1986 pertaining to the theft of cash amount, which was in the charge of the plaintiff/respondent and was meant for disbursement thereof amongst the members of the subordinate establishment of the office of the Director, Jinnah Post Graduate Medical Centre (J.P.M.C.), Karachi, and that the said director got F.I.R. Of such a theft registered with the Police Station Saddar, Karachi, wherein the plaintiff/respondent was detained by the Police officials for interrogation, but then he was released and apparently was not found actively involved in the said incident of the theft, and was released by the Police officials after remaining in Police custody from 2-6-1986 to 11-6-1986; a Medical Board issued a certificate of invalidation in favour of the plaintiff/respondent, thereby declaring him unfit to continue with his said regular Government service, but the Health Division of the Federal Government, vide letter, dated 21st September, 1986, directed for examination of the plaintiff/ respondent by another Medical Board, to see as to whether or not he was permanently incapacitated to be in further regular service of the Government, and plaintiff was served with a notice to appear before the said Medical Board but he did not appear before it; the plaintiff was suspended from his service and was directed to sit in the office of the Director, J.P.M.C., Karachi; a charge-sheet was issued and served upon the plaintiff/respondent by the "authorized officer" with direction to him to appear before the Medical Board for the examination to assess his actual health status and the plaintiff did not submit any reply to the same.
(4) The defendants/applicants assert that the above stated theft of the cash amount took place out of the sheer negligence on the part of the plaintiff/respondent and thereby the lower staff members of the J.P.M.C. Suffered hardships as the amounts pertaining to their salaries was not paid to them respectively and, therefore, while the investigation was going on, the plaintiff "managed to get a false certificate of invalidation, which did not satisfy the defendants and, therefore, constitution of second Medical Board was found absolutely necessary", but the plaintiff did not appear before it and, therefore, was competently and validly issued a charge-sheet, to which also he did not reply.
(5) Accordingly, learned counsel for the defendants/applicants has argued, the suit itself was not maintainable before the learned Senior Civil Judge and the judgment and decree passed by him and the same passed by the Appellate Court, whereby the appeal filed by the applicants was dismissed, are illegal having not been passed on the sound principles of law.
(6) Learned D.A.-G. Has further argued that the suit itself was incompetent and, therefore, the appeal could not have been decided merely on the basis of technicalities and the settled principle of law is that the technicalities as well as the point of limitation are not to be given much force/weight on the face of the plaint of the suit suffering from inherent defect of its being not maintainable in law; he further argued that the allegation as to whether or not the defendants/ applicants caused mental torture/ agony and loss to his reputation was subject to the pleas raised by the defendants/applicants that the plaintiff/respondent committed gross negligence towards discharge of his official duties which resulted in the incident of the theft of the cash amount of the salaries of the subordinate members of the establishment and also to the effect that the Health Division of the Federal Government had directed for constitution of second Medical Board with notice to the plaintiff/ respondent to appear before it to see as to whether or not he stood permanently invalidated to continue in the Government service, but he did not appear before it and also did not furnish his reply to the charge-sheet served upon him by the "authorized officer" of his Department, under the relevant provisions of Efficiency and Discipline Rules, and that the judgment and decree passed by the learned two Courts below being illegal on the very face of thereof, the point of limitation in filing of the present revision application cannot come in its way.
(7) Learned D.A.-G. Has cited Haji Abdul Aziz v. Government of Balochistan (1999 SCM R 16), wherein Honourable Supreme Court held that non-compliance with the provisions of section 79, C.P.C. whereby the Federation is to be sued through concerned Secretary to the Government but not joined as a party and the suit is defective, which goes to the root of the matter and order passed to dismiss revision application for non-impleading of Government through proper person was not open to exception; in the plaint of present Suit No.783 of 1986, the plaintiff did not join the Federation of Pakistan as a party and, therefore, the suit itself is hit under the provisions of section 79, C.P.C., and such a defect going to the very root of the suit itself, the same is liable to be dismissed; more over, bare reading of the contents of the plaint shows that the plaintiff made allegations of misuse of power, causing of the mental torture/agony against him at the hands of the official functionaries, viz. The Director, J.M.P.C., Karachi, and the Secretary, Ministry of Health and Population (Health Division), Government of Pakistan, Islamabad, without giving the name of any particular officer, who allegedly acted illegally against him or caused mental torture/agony to him; thus, the plaint itself having been drafted vaguely, no allegation could be taken to have been competently made by the plaintiff against any of the Government functionaries, cited by him as defendants in the suit.
(8) It is a settled principle of law that where the suit itself is hit by the mandatory provisions of law and thereby not found maintainable, the Government cannot be made to suffer on the basis of such incompetent proceedings and the plea of limitation raised by the plaintiff/respondent in filing this revision application belatedly, would not be of any help to the plaintiff, and the suit is to be decided looking at the fact that the same itself is not maintainable; thus, the learned trial Court as well as learned First Appellate Court failed to properly deal with such legal aspect of the case and the judgments/decree passed by them respectively are liable to be set aside.
(9) The Health Division of Ministry of Health, Government of Pakistan, was competent enough to have directed for constitution of second Medical Board, with a direction to the plaintiff/respondent to appear before it for his examination as to whether or not he was permanently invalidated/unfit to continue in the Government service, but the plaintiff failed to comply with such direction and thereby was found guilty of insubordination, such an order of the competent Authority was not challenged by him before any competent forum and such subordination on his part rightly entailed service" of a charge-sheet upon him under The relevant disciplinary provisions.
(10) The plaintiff alleged that the defendants/applicants made him to undergo illegal physical labour but has not clarified as to how and in what manner he underwent the same on the basis of his own stand that he was seriously ill, having been declared medically unfit to continue in the further Government service, no evidence has been produced by him to prove such allegations, which having gone improved, no reliance could be placed thereon by the learned two Courts below, moreso, for the reason that admittedly the plaintiff did not make any complaint to any competent Authority against the alleged illegal physical labour suffered by him at the hands of the defendants; so also it is an admitted fact that the theft of the cash amount had actually taken place and the defendant/applicant No.1 was legally duty bound to get the F.I.R. Lodged pertaining thereto, and it was the duty of the competent police officials to conduct investigation into such an incident, and if the plaintiff/ respondent was taken away by them to hold investigation therein, the defendants/applicants could not be blamed for such an act on the part of the police officials, the plaintiff/respondent did not produce any evidence to arrive at a conclusion that the official defendants got him falsely implicated and arrested in the F.I.R. Lodged pertaining to the said theft of the cash amount.
4. (11)Admittedly, the plaintiff was b served with the charge-sheet under the relevant disciplinary rules and he did not furnish any reply to the same; thus such a matter purely came within the jurisdiction of the competent forum to hear the service matters, and the Civil Court had no jurisdiction to entertain any such dispute; plaintiff has not filed proceedings to get such a charge cleared from the competent forum as the dispute falls under the service laws/rules; the allegations made in the charge sheet are to be presumed to be true and correct; so also, the question of payment of pensionary/ retirement benefits falls exclusively within the jurisdiction of Service Tribunal and cannot be entertained by the Civil Court.
(12) As stated above, despite issuance of a charge-sheet by the competent authorized officer against the plaintiff/respondent and without any reply having been filed to the same by him, he stands retired from the service on attaining the age of superannuation, and such fact by itself is a conclusive proof that the Department (of the defendants/applicants) did not carry any malice or grudge against the plaintiff and, on the contrary, he has failed to name the officers against whom he made allegations of causing mental torture/agony to him.
(13) Thus, the suit itself was not maintainable and the judgments and decrees passed by the two Courts below suffer from illegality; present civil revision application together with C.M.A. No.2474 of 2004, viz. Application for condonation of. Delay in filing the same, which were heard by consent of the learned counsel for the parties to decide the same on merits, are hereby allowed, resultantly, the impugned judgment/decree passed by the learned two Courts below are hereby set aside and the suit of the plaintiff/respondent stands dismissed 'with liberty to him to approach the competent forums for the purpose of getting pensionary/ retirement benefits of his service, under the circumstances, the parties are left to bear their own costs.