SHAH ABDUR RASHID (CHAIRMAN).---Petitioner Amir Ali who was employed in the Capital Development Authority (hereinafter referred to as C.D.A.), a statutory Corporation, was retired compulsorily by the C.D.A, in accordance with the Government Servants (Efficiency and Discipline)
Rules, 1973 as made applicable by the C.D.A. To its own employees. From this order he preferred an appeal being Appeal No. 34 (R)/78 to this Tribunal. The Tribunal dismissed the appeal in limine on the ground that it has no jurisdiction in the matter. This order has now been challen--ged in review petition covering 8 pages. The learned counsel who drafted the petition has inter alia alleged that the Tribunal had not appreciated the legal points raised by him while arguing the appeal and that since on the date of hearing a lengthy case was placed before the Tribunal it dispo--sed of the appeal of the petitioner summarily without appreciating the legal position which was brought to its notice.
2. The appeal was dismissed on the ground that the petitioner appellant was not a civil servant within the meaning of Civil Servants Act, 1973. And as such he could not approach the Tribunal by way of appeal under section 4 of the Service Tribunals Act, 1973. The learned counsel for the petitioner/appellant had however, invoked our jurisdiction during the course of arguments, on the strength of Corporation Employees (Special Powers) Ordinance, 1978, and had urged that the Service of the Corporation which included the C.D.A. Having been declared as service of Pakistan, the appellant became a civil servant for the purposes of Service Tribunals Act, 1973 and therefore the appeal did lie to the Tribunal. The provisions of this Ordinance were discussed in the order of appeal and it was held that under this Ordinance only those persons can invoke the jurisdiction of the Service Tribunal who were penalised by the President under section 3 of the said Ordinance and that since the appel--lant was not removed under that provision he could not take benefit of section 5 of the Ordinance which provides that those persons in Corpora--tion service who are penalised under the Ordinance itself, shall be deemed to be civil servants for the purposes of the Service Tribunals Act, 1973.
3. The learned counsel for the petitioner was however permitted to argue on the preliminary point whether the Tribunal has jurisdiction to review its own order. A Full Bench of the Tribunal in the case of Mohammed Ali v. Postmaster General (Appeal No. 840 (L)/1974) has unanimously held that this Tribunal cannot review its own order and that section 5 (2) of the Service Tribunals Act, 1973 according to which the Tribunal is deemed to be a civil Court and has the same powers as are vested in such civil Courts under the C. P. C. Contemplates only the procedural powers of the civil Courts and not the power of review which can be conferred only by specific provision. It was also held that rule 22 of the Service Tribunal (Procedure) Rules, 1974 empowers the Tribunal only to correct clerical mistakes and does not confer power of review on the Tribunal.
4. The learned counsel for the appellant has referred to several cases, some of which were discussed in detail in Appeal No. 840 (L)/1974 referred to above. But since the learned counsel for the appellant has relied upon some other cases also which were not considered in the earlier order we think it would be advisable to examine them also for the purposes of deciding the question of jurisdiction of the Tribunal to review its own order.
5. The learned counsel referred to the case of Chief Settlement Commissioner v. Raja Mohammad Fazil Khan and others (PLD 1975 SC 331). This case is altogether on a different issue. The ratio of the case is that a Court or Tribunal is authorised to recall or rescind its order which is obtain--ed by fraud. In the review petition before us it is not the case of the petitioner that the order was obtained by practising fraud. In fact the appellant has challenged only the correctness of the decision and the appreciation by the Tribunal of the different provisions of the Constitution and Law.
6. Aid was also taken from the case cited as Pakistan v. Mohammad Himayatullah Farukhi and others (PLD 1969 SC 407), wherein it was held that apart from the provisions of section 21 of the General Clauses Act, the power of receding till a decisive step is taken is available to the Govern-- ment and the executive authorities and that such recession does not affect the right already created. This case does not advance the case of the petitioner any further inasmuch as the law refers to the power of the executive authority and not of the Court or Tribunal. The right of review is a substantive right which if conferred on a Court or quasi-judicial Tribunal can be exercised but in the absence of such conferment neither section 21 of the General Clauses Act nor the principle laid down in this case is applicable.
7. Reference was then made to the case of H. M. Sava & Company v. Wazir Ali Industries Ltd. (PLD 1969 SC 65) wherein it was held that a person who is not party to the suit, can file appeal against the decree if it adversely affects him. In particular the following observations of Court were referred :- "The Court ought not to act on the principle that every procedure is is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice. The facts of this case are clear example in point. The Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same. Section 96 of the Civil Pro--cedure Code deals with appeals from decrees and section 104 deals with appeals from orders. These provisions do not in terms say who is entitled to prefer an appeal. The Code, however, lays down that it is the decree or the order that has to be appealed against. If the decree or order appealed from adversely affects a person he should be permitted to challenge the same in appeal even if he was not made a party to the original suit or proceedings."
We do not understand how the law laid down in this case can be extended to the jurisdiction of exercising the power of review. This was a case where a party affected by the decree of the Court had not been impleaded in the original action and the Court held that if no specific provision is made for allowing, a person which is not party to the suit, for filing appeal, there is no prohibition if that party is permitted to file an appeal. It was observed that a different view would result in grave injustice. In this case too. The matter was purely of procedure and not of the powers of the Court which is under consideration. It can at the most be said that right of a party which was specifically given was recognised in this case. This Tribunal is subject to the appellate jurisdiction of the Supreme Court and the absence of power to review would not block a party to obtain justice by going to Supreme Court in appeal. The remedy of review not being provided in the law and there being statutory right of appeal, we do not think any grave injustice would be faced by the petitioner if order is not reviewed. The other remedy is available and the omission of Legislature to give power of review to the Tribunal does not result in grave injustice as was the event in the case relied upon.
8. Reliance has also been placed on the case of Abdur Rashid Nawaz v. Government of N.-W. F. P. (PLJ 1976 Tr. C (Ser.) 338). In this case the N.-W. F. P. Service Tribunal did not go into the legal aspects of the case whether it had got power to review its own order and based the decision on the facts of the case by holding that even if power of review was avail-able to the Tribunal the matter before them did not merit any consideration.
9. Another case relied upon by the learned counsel for the appellant is of Mr. Muhammad Nawaz v.
Muhammad Azeem and others (PLD 1961 Lah. 788). This case is not on the point. It refers to the provisions of West Pakistan Rent Restriction Ordinance, 1958 and section 141 of the C.P.C. In this case also it was held that by virtue of section 141 of the C.P.C. The legal representative of the deceased can be brought on record as it was a matter of procedure and the Court of Rent Controller is a Court like any other civil Court. The conclusion arrived at in this case does not alter the position already taken by us in Appeal No. 840(L)/74 that the Tribunal can exercise powers relating to the procedure under the C.P.C. But it cannot review its own order which is a matter of jurisdiction and not of procedure.
10. Another case to which our attention was drawn is of Syed Nafis Ahmed Zaidi v. S. M. Hussain (PLD 1964 Lah. 536). It provides that section 141 of the C.P.C. Can be invoked by the Rent Controller appointed under the West Pakistan Urban Rent Restriction Ordinance, 1959 for setting aside an ex parte decree. The said section of the C.P.C. Relates to the procedural matters only and in our order in Appeal No. 840(L)/74 it was held by us that the Tribunal has power under the C.P.C. In respect of matters which are procedural in nature. The power to review is a substantive power and not a matter of procedure. The power to review cannot be exercised unless specifically conferred on a Tribunal or authority. This case too, there--fore, is of no help to the appellant.
11. From the above discussion it is evident that the learned counsel for the petitioner has not been able to make any case for review of our order in Appeal No. 840(L)/74 wherein it was held that the Tribunal has no power to review its own order.
12. Incidently the question of interpretation of section 141 of the C.P.C. Has come up for discussion. In our view the said section is intended to extend the provisions of the Code only to original matters in t the nature of suit which may be pending before any Court of civil jurisdiction. The said section does not apply to proceedings not in the nature of suits. This view was fortified by the decision of the Lahore High Court reported as PLD 1961 Lah. 659 and AIR 1965 SC 1978. In the case reported as 2 Cal. W. N. 606. It was held that the proceedings in execution cannot be reviewed by virtue of section 141 but the power can be invoked only when Order XLVII, rule 1 is applicable. Likewise in AIR 1950 Pb. 111 it was held that section 141 deals with procedure and procedure alone and therefore this section does not confer a right of appeal which is a substantive right or a right of execution against the surety which is not a party to the proceedings. The same view was taken in the cases reported as AIR 1961 All. 562 and AIR 1950 E Pb. 111.
13. The upshot of the above discussion is that our previous view held by the Full Bench of four Members that this Tribunal has no jurisdiction to review its own order is not assailable. We stick to that view and dismiss the review petition in limine for want of jurisdiction.
14. Parties to be informed accordingly.