The brief facts out of which the present appeal arises are that respondent filed W.P. No, 10639/2003 with the following prayer:-- "In the light of above submissions it is respectfully prayed that the respondents may kindly be ordered to pay the salaries of the petitioner from 1.12.1995 to 31.5.2001 without any further delay.
It is further prayed that Respondent No, 3 especially be ordered to clear the petitioner's back benefits without creating any hindrance and making it the matter of prestige."
Learned single Judge accepted the Constitutional petition vide impugned judgment dated 15.9.2004. The appellants being aggrieved filed this Intra Court Appeal.
2. Learned counsel of the appellants submits that respondent was confined in jail in a criminal case only for one month and was released onlbail and finally acquitted vide judgment dated 20.12.1999.
The respondent claimed the salary for the period from 1.12.1995 to 31.5.2001. The respondent was not entitled to salary for the said period as the respondent did not attend office and performed the duties of the appellants. He further submits that respondent was not performing duties under the appellants and in fact he was performing duties under DDEO Lahore Cantt when he was involved in criminal case. He further submits that learned Single Judge erred in law to direct the DDEO Lahore City to release the salary of the respondent. He further submits that impugned order is passed by the learned single Judge without adverting to the parawise comments of the appellants filed by the appellants in response to the direction of the learned single Judge. When the learned counsel of the appellants is asked as to whether Intra Court Appeal is maintainable in view of proviso of Section 32) of Law Reforms Ordinance, 1972 he submits that no appeal or revision is available to the appellant against withholding of salary of the respondent as well as to the respondent. Therefore, Intra Court Appeal is maintainable.
3. We have given our anxious consideration to the contentions of the learned counsel of the appellant and perused the record.
4. It is admitted fact that respondent is a civil servant. Salary is part and parcel of terms and conditions as is evident from Section 2(e) of Punjub Civil Servants Act, 1974 wherein the word pay is defined which is synonymous to the word salary. The respondent has a right of appeal qua withholding of salary of the respondent before the appellants by virtue of. Section 21 of Punjab Civil Servants Act, 1974 and thereafter respondent has right to file appeal before the Service Tribunal by virtue of Section of Punjab Service Tribunal Act, 1974. The Honourable Supreme Court has defined word 'proceedings' in Karim Bibi's case (PLD 1984 S.C. 344 which is to the following effect:-- "The crucial words are the "original order". It is clear from the wording of the proviso that the requirement of the availability of an appeal in the law applicable is not in relation to the impugned order in the Constitutional petition, which may be the order passed by the lowest officer or authority in the hierarchy or an order passed by higher authorities in appeal, revision or review, if any, provided in the relevant statute. Therefore, the relevant order may not necessarily be the one which is under challenge but the test is whether the original order passed in the proceedings was subject to an appeal under the relevant law.
The conclusion was expressed thus:-- "Apparently the meaning of the expression "original order" is the order with which the proceedings under the relevant statute commenced."
The aforesaid view was also approved by the Honourable Supreme Court subsequently in Muhammad Abdullah's case (PLD 1985 S.C. 107). It is also settled principle of law that in case respondent has not availed the remedy provided under the statute even then the Intra. Court Appeal is not maintainable as the law laid down by this Court in the following judgments: M. Jamil Chaudhry vs. M. Hanif Chaudhry (PLD 1975 Lahore 379).
Yusuf Ali Khan vs. Muhammad Javed Iqbal Cheema (PLD 1975 Lahore 1339).
In view of what has been discussed above, this Intra Court Appeal is not maintainable in view of proviso of Section 3(2) of Law Reforms Ordinance, 1972 as the law laid down in the aforesaid judgment, therefore, the same is dismissed.