The brief facts out of which the present revision petition arises are that the petitioner is an employee of the respondents. The petitioner declared failed candidate as successful candidate regarding the Supplementary Intermediate Examination, 1988 held by the respondents/ Board. The services of the petitioner was suspended by the respondents vide order dated 14.4.1991.
Consequently, charge sheet was issued by the respondents/Board to the petitioner on 13.5.1991 and an Inquiry Officer was also appointed after completing all the legal formalities. The services of the petitioner was terminated by the respondents vide order dated 21.12.1994. The petitioner being aggrieved filed a representation before the Chairman Board, which was also rejected vide order dated 19.8.1992. Thereafter, the petitioner filed an appeal before the Board, which was also dismissed-by the respondent/Board vide order dated 28.4.1994. The petitioner being aggrieved filed a suit for declaration in the Court of Civil Judge 1st Class, Faisalabad on 14.9.1994.
Respondent/Board filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties following issues were framed:--
1. Whether the plaintiff is entitled to declaration that removal order dated 21.12.1991 issued by the Defendant No, 2 is illegal, without lawful authority, against law and fact, without jurisdiction and inoperative against the rights of the plaintiff with the consequential relief that the defendants shall consider the impugned order as non-existing and the plaintiff is entitled to all the back benefits?
OPP
2. Whether the plaintiff has got no cause of action to file the suit? OPD
3. Whether the Civil Court has no jurisdiction and Services Tribunal has the jurisdiction to try the suit? OPD
4. Whether the suit is barred by law under Sections 29 and 31 of Punjab Board Act, OPD
5. Relief.
The suit of petitioner was dismissed by the trial Court vide Judgment and ,decree dated 25.4.2002 on the ground that petitioner is a Civil Servant and the petitioner has to file appeal before the Service Tribunal. The petitioner being aggrieved preferred an appeal before the learned Addl.
District Judge, Faisalabad, who dismissed the same vide impugned judgment and decree dated 4.8.2003, hence, the present revision petition.
2. The learned counsel of the petitioner submits that both the Courts below erred in law to non-suit the petitioner by considering the petitioner as a Civil Servant whereas the petitioner is not a civil servant and is an employee of the statutory body, therefore, judgments of both the Courts below are result of misreading and non-reading of the record and non-suit the petitioner on wrong premises.
3. The learned counsel of the respondents submits that suit of the petitioner is not maintainable as the relationship of the petitioner and the respondent/Board is of master and servant as the regulations of the respondents are not framed in terms of Section 20 of the Punjab Boards of Intermediate & Secondary Education Act, 1976. In support of his contention, he relied upon Zia Farooq Piracha vs. Chairman Board of Intermediate and Secondary Education, Rawalpindi and others (2002 SCMR 35). He further' submits that respondent/Board has terminated the services of the petitioner after completing all the legal formalities, therefore, suit filed by the petitioner before the Civil Court is not competent by virtue of Sections 29 and 31 of Punjab Boards of Intermediate & Secondary Education Act, 1976. He further submits that petitioner failed to point out any violation committed by the respondent/Board at the time of termination of the petitioner by the respondents, therefore, judgments of both the Courts below are substantial on other points. In support of his contention, he relied upon Chairman Board of Intermediate and Secondary Education, Sargodha vs. Abdul Rehnian (1988 SCM R 1711). The learned counsel of the petitioner in rebuttal submits that the petitioner was non-suited merely on the ground that the petitioner is a civil servant.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
5. It is admitted fact that petitioner is non-suited by both the Courts below merely on the one ground that petitioner is a civil servant and the petitioner has to file an appeal before the Service Tribunal, which is not in consonance of Punjab Board Act, 1976, therefore, foundation laid down by both the Courts below are not in accordance with the basic provisions of the Punjab Boards of Intermediate & Secondary Education Act, 1976 and the law laid down by the Superior Courts. It is settled principle of law that where Courts have decided the case in violation of the law laid down by the Superior Courts or in violation of the provisions of the law then it terms to be a material irregularity committed by the Courts below and this Court has ample jurisdiction to interfere in the finding arrived at by both the Courts below while exercising powers under Section 115 C.P.C.
7. In view of what has been discussed above, the revision petition is accepted. Meaning thereby the suit filed by the petitioner shall be deemed to be pending before the trial Court. Parties are directed to appear before the trial Court on 12.7.2004, who is directed to decide the case afresh in accordance with law. Parties are at liberty to raise all legal and factual objections including bar of jurisdiction before the trial Court.