'HAMID ALI MIRZA, J.--- This civil review petition is directed against the judgment of this Court, dated 20-7-2005 in C.P.L.A. No.772-K of 2004 whereby the said petition on conversion into appeal was allowed, thereby the order, dated 6-10-2004 in Appeal No.213 of 2003 passed by the Sindh Service Tribunal was set aside.
2. Brief facts of the case are that the petitioner was an employee of N.E.D. University of Engineering and Technology, Karachi. He submitted an application on 5-11-2002 for proceeding on Leave Preparatory to Retirement (LPR) w,e,f, 16-12-2002. The Vice-Chancellor Mr. Abdul Kalam in exercise of his emergency powers under section 28(iv) of the University Act, 1977 accepted the application.
However, vide order, dated 18-11-2002 passed by the Vice-Chancellor, petitioner was allowed to retire on completion of 25 years qualifying service with effect from 13-10-2003. The petitioner filed departmental appeal on 31-7-2003 for withdrawal of order of retirement but his appeal was rejected vide order, dated 30-10-2003. The petitioner preferred an appeal under section 4 of the Sindh Service Tribunals Act, 1973 stating therein that option exercised by him for retirement on completion of 25 years qualifying service was not voluntary but under duress. The Service Tribunal after hearing the parties vide order, dated 6-10-2004 allowed the appeal and held that appeal before the Tribunal was competent though the departmental appeal was barred by time having not been rejected on the said ground and further that the exercise of option by the petitioner for retirement was not voluntary but under duress.
3. We have heard the petitioner in person and learned counsel for the respondents and perused the record.
4. Contentions of the petitioner in person are that this Court has erred in law in holding that the Service Tribunal dismissed the appeal on the ground that departmental appeal of the petitioner was barred by limitation which finding was contrary to the decision of the larger Bench of this Court as such there was error apparent on the face of record. He further submitted that this Court in the judgment sought to be reviewed erred in law in holding that option once exercised cannot be revoked in the circumstances of instant case. He further submitted that the Service Tribunal on the basis of cogent reasons given in para.2 of the judgment held that premature retirement of the officer was not a voluntary act but was obtained under duress. Reliance is placed upon (i)
Muhammad Jan Marwat and another v. Nazir Muhammad and 17 others 1997 SCMR 287, wherein learned Bench of three Honourable Judges held that the departmental appeal of civil servant having not been dismissed on ground of limitation, service appeal filed within time, the Service Tribunal could not have dismissed such appeal as incompetent; (ii) Government of Sindh through Secretary S&GAD and another v. Raja Muhammad Inayat Khan 2000 SCMR 1964, wherein this Court has held that no inflexible rule of law existed that option of retirement once exercised was final and could not be retracted under any circumstances and (iii) Abdul Nabi v. Government of West Pakistan through Chief Secretary, Lahore and another PLD 1973 Quetta 4 wherein Full Bench of the High Court of Balochistan, Quetta, held that the petitioner was entitled to withdraw his application which he submitted for retirement under genuine misapprehension caused by a wrong medical advice.
5. Learned counsel for the respondents has controverted the contention and has submitted that the judgment sought to be reviewed was legal, proper and called for no interference by this Court.
He further submitted that the appeal before Service Tribunal was incompetent as departmental appeal was time-barred. He also submitted that option once exercised could not be revoked keeping in view the circumstances of the instant case. He has placed reliance upon State Bank of Pakistan v. Khyber Zaman and others 2004 SCMR 1426 and (ii) Anwarul Haq v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others 1995 SCMR 1505 wherein this Court held that when an appeal before the Departmental Authority was time-barred, the appeal before the Service Tribunal was also incompetent on that account; (iii) The Chairman, P.I.A.C. And others v. Nasim Malik PLD 1990 SC 951, wherein this Court held that when appeal before the department was time barred, the appeal before the Service Tribunal was also incompetent on that account; (iv) Province of Punjab through Deputy Director Food, Rawalpindi v. Muhammad Iqbal, Ex-Foodgrains Inspector 1984 SCMR 334 wherein this Court observed that revocation of leave or retirement offer, on completion of 25 years' qualifying service by civil servant after enjoying substantial part of leave preparatory to retirement, revocation taking place long after its acceptance and after offer had been acted upon by both parties, it was held that the Service Tribunal in circumstances, was in error in readily assuming that if a person continued to be in service he could alter his position to any extent and at any moment and for any reason irrespective of how the other party dealing with representation has dealt with; (v) Secretary Government of Punjab, Food and Cooperation Department v. Shamoon Bahadur PLD 1979 SC 835, wherein this Court observed that an official expressing desire to withdraw his earlier application for permission to withdraw was misconceived due to effective order of his retirement having already been passed and option once exercised official petitioner could not go back on same in context of finality of consequences ensuing therefrom by its acceptance. He has also placed reliance upon para.15 of the N.E.D. University of Engineering and Technology, Karachi Employees Efficiency and Discipline Statutes, 1990 (as amended) (vide sections 38 and 46(1)(a) of the Act, 1977) in support of his contention that intimation of retirement once submitted will not be allowed to be modified or withdrawn, however, before formal acceptance of the request one may, if so desired, withdraw his application for premature retirement.
6. The petitioner in his review petition has raised two pleas which he contended was error on the face of record for the purpose of review, viz. (i) that this Court erred in law that his appeal before the Service Tribunal was incompetent because his department appeal was time-barred; and (ii) that this Court erred in law in holding that the petitioner could not ask for recall of, order passed by the respondents for proceeding on Leave Preparatory to Retirement according to law in view of the law laid down by this Court, whereas learned counsel for the respondents has controverted the said contentions.
7. Learned counsel for the respondent in support of his plea has placed reliance upon State Bank of Pakistan v. Khyber Zaman and others (supra). On minute perusal of the cited case it would appear that the main plea involved in the cited case was with regard to controversy whether pursuant to Golden Hand Shake Scheme (GHSS) launched by the State Bank of Pakistan on 23-10-1997, the respondents were entitled to get Benevolent Fund Grant under Circular N.20 issued on 7-11-2000 or otherwise. The point involved in the instant case was not in issue necessary for the decision of the cited case. In the cited case the petitioner wanted to have benefit of the said circular after having received the benefits under Benevolent Fund Grant Scheme after four long years. This Court though not necessary for disposal of the case observed that appeal/representation before the departmental authority time-barred the appeal before the Service Tribunal would be incompetent.
The said observation being obiter dicta cannot be said to have a binding weight on the decision of the case as the same being an observation by Honourable Judge which was neither necessary for decision of case nor was related to the material facts in issue. Next case relied upon Anwar-ul-Haq v. Federation of Pakistan (supra) pertains to seniority between those who were appointed by way of resignation of post of Assistant Engineer and those directly appointed as Assistant Engineer on a latter date and the said controversy was based on scope of letter, dated 25-7-1975. The question came up before the Bench as to whether petitioner was aware of his seniority position in July, 1975 on the issuance of the letter dated 25-7-1975 when his post was redesignated and he was relegated in seniority to lower position as against his counterparts. To the said query learned counsel for the petitioner frankly conceded that petitioner was aware of the said position. In the circumstances this Court observed in the cited case that Tribunal was therefore, right in holding that after lapse of eighteen years the relief sought by the petitioner for correction of seniority list was time-barred and reliance was placed on Chairman PIAC v. Nasim Malik PLD 1990 SC 950 that when an appeal before the departmental authority was time-barred, the appeal before the Service Tribunal was also incompetent on that account. With great respect to the Honourable Judges of the cited case, there was nothing on record in the cited case nor any plea raised nor any decision was needed for the disposal of the controversy. The said observations were made by the Bench of this Court in the above cited case wherein it was a question of seniority involved not in respect of retirement as in the instant case.
8. Third case relied upon by the learned counsel for the respondents is Chairman PIAC v. Nasim Malik (supra), where respondent has appealed before the Federal Service Tribunal that it be declared that the resignation obtained from him was obtained under duress and coercion and has no legal effect and orders passed thereon were void ab initio and also ordering for the reinstatement of the respondent when the service of the respondent having been terminated on 15-7-1984. In the cited case the respondent submitted his resignation on 1-8-1983 which was accepted on 16-8-1983 thereafter that respondent made a representation for his reinstatement but without any success. He approached Wafaqi Mohtasib while respondent's application was pending before the Wafaqi Mohtasib, the respondent through letter, dated 12-3-1984 addressed to the Director Administration, P.I.A. Requested that his resignation be converted into termination w,e,f, the same date, which request of the respondent was allowed by the appellant and such intimation was sent to Wafaqi Mohtasib who dismissed his complaint on the said account. In view of the conversion of the resignation into termination the respondent received financial benefits. The respondent again addressed the departmental appeal to the Chairman of the appellant on 12-3- 1986 which was turned down on 6-4-1986, thereafter respondent filed service appeal before the Federal Service Tribunal which was allowed. The plea was raised by the appellant before the Bench of this Court that the Tribunal had no jurisdiction in view of section 10 of Pakistan International Airlines Corporation Act, 1956 whereby no order of retirement or removal shall be called in question before any Court or Tribunal or any other authority and in the cited case resignation of the respondent was accepted on 15-8-1983 and upon his request resignation was converted into termination on 18-3-1984, This Court observed that respondent after receiving monetory benefit on account of conversion of his resignation into termination could not have filed departmental appeal on 12-3-1986 after the expiry of two years as Regulation 87 of the Pakistan International Airlines Corporation Rules, 1985 provided thirty days of limitation and the Tribunal concluded that it could be presumed that delay was condoned by the authority and in the cited case it was observed that it cannot be held that the appellant/ Chairman was conscious of the question of limitation while turning down the above belated respondent's appeal and thereby distinguished the cited case reported as Ahsan All and others v. District Judge and others PLD 1969 SC 167.
9. So far the next plea that this Court erred in law in holding that the petitioner could not revoke his request for retirement in the said respect learned counsel for the respondent has placed reliance upon Province of Punjab v. Muhammad Iqbal, Ex-Foodgrains Inspector 1984 SCMR 334. In the cited, case respondent Muhammad Iqbal was transferred from Gujrat to Rawalpindi, therefore, he made an application that he was a heart patient and needed proper care from his family therefore, he be allowed to remain in his home District Gujrat and requested for cancellation of his transfer orders and in the alternative he prayed that in case his first request is declined he may be granted L.P.R. w,e,f, 31-3-1980. The competent authority on the basis of the same passed an order on 25-2-1980 granting 365 days L.P.R. On full pay with effect from 21-10-1979. However, 22 days before his actual retirement he sought permission to be allowed to work in the department. His request was declined on 12-10-1980. The respondent Muhammad Iqbal , preferred appeal before the Punjab Service Tribunal. The Tribunal found that question in the appeal was whether the appellant Muhammad Iqbal was continuing in service before he changed his mind to withdraw his request for retirement.
The Tribunal found that notwithstanding the leave preparatory to retirement granted to him he continued to be in service while enjoying such leave and on the basis of it earlier decision viz. Abdul Nabi v. Government of West Pakistan through Chief Secretary, Lahore and another PLD 1973 Quetta 4 (ii) Jai Ram v. Union of India AIR 1954 SC 584 and (iii) Secretary Government of Punjab, Food and Cooperation Department v. Sharnoon Bahadur PLD 1979 SC 835. This Court in the above cited case observed that revocation of leave or retirement offer had taken place long after its acceptance and after it had been acted upon by both the parties as such Tribunal was in error in readily assuming that if a person continued to be in service he could alter his position to any extent and at any moment and for any reason, irrespective of how the other party dealing with his representation has dealt with it.
10. With great respect to the Honourable Judges of the cited case (supra Province of Punjab v Muhammad Iqbal), it may be observed that in the cited case there was no dispute of retirement in case his posting order was not recalled but in the case under discussion it was pleaded that the said application for proceeding on L.P.R. Was obtained by the Vice-Chancellor under pressure and coercion, therefore, the said cited case is inept to the facts and circumstances of the instant case considering that the Tribunal on the fact has given its finding holding that such application for proceeding on L.P.R. Was obtained under pressure and coercion by the Vice-Chancellor of the petitioner. In the instant case under discussion the petitioner as per orders of the respondent was to be retired on completion of twenty-five years w,e,f, 13-10-2003 whereas petitioner filed an appeal on 31-7-2003 for withdrawal of order of retirement but his appeal was rejected on 30-10-2003 without observing that it was being rejected on the ground that it was barred by time. In fact the petitioner withdrew his request for proceeding on L.P.R. Before it could take effect.
11.. In the case of Anwar Muhammad v. General Manager, Pakistan Railways, Lahore 1995 SCMR 950 Bench of Honourable three Judges held that Departmental Authority had not dismissed departmental appeal on ground of limitation but on merits. No objection having been raised before Departmental Authority relating to limitation, Authority would be deemed to have condoned the delay and Service Tribunal should thus, have decided the same on merits and not on limitation.
13. (sic) We do find merit and substance in the submissions made by the petitioner in person.
14. Admittedly in view of the facts stated (supra) the petitioner preferred an appeal against his premature retirement on 31-7-2003 before the retirement was to become effective from 13-10- 2003. It is also admitted position that appeal filed by the petitioner was not rejected on the ground that the same was barred by time. It is also admitted position that the Service Tribunal on the petitioner's plea that his premature, retirement was not voluntarily but under duress and compulsion. The Tribunal in paras.11 to 13 has dealt with the said plea as under:- "(11) It is the case of appellant that he was victimized and harassed during the tenure of Mr. Abdul Kalam, Vice-Chancellor of the University. While citing examples of such harassment appellant stated that his sanctioned earned leaves were suddenly cancelled and he was recalled to resume his duties. He was allowed leave conditionally and that he was frequently transferred from one post to other unjustifiably and that a message of the Vice-Chancellor was conveyed to him to opt for retirement, else he would be proceeded with departmentally and it was under such compulsion he applied for L.P.R. And subsequent retirement on completion of 25 years qualifying service. In this connection, he referred to a letter, dated 16-9-2000 of the Vice-Chancellor addressed to MR/ISO/9000 and copy endorsed to the Registrar of the University. (Annexure "E" page 35), which reads as under:-- "Your inference that Ashfaque Hussain Shah took casual leave to go and lobby for some influential person to speak to me on his behalf, proved absolutely correct yesterday. AV about 1800 hours, I received one telephone call from Mr. Illahi Bux Soomro saying that this individual had come to request the former to intercede on Ashfaque Hussain Shah's behalf. My reply was that because of his reputation for corruption, he had been told that in his own interest, it was advisable for him to apply for L.P.R. After completion of 25 years of service i.e. In early November of this year. If he now wishes to stay few more weeks in order to get his next increment, this University might consider his request but on no account would it be possible to retain him for any appreciable length of time after he completes, 25 years service. The letter is being sent to you in triplicate: one copy to be retained by you, one copy to be handed over to \Ashfaque Hussain Shah and the third one his acknowledgment to be obtained for his personal file in the office of the Registrar.
(Sd.) 16-9-2002 Vice-Chancellor.
' Copy: Registrar - He will please check with the Legal Advisor about necessary measures, if any to be taken to ensure that all legal formalities are completed for retiring of Ashfaque Hussain Shah after completion of 25 years of service in case he does not apply for LPR."
(12) From the simple reading of the above letter, it is crystal clear that the authorities concerned had already made up their mind and were bent upon to retire the appellant from service either by this way or the other on completion of his 25 years qualifying service, if the appellant did not apply for L.P.R. From the perusal of written statement of respondents it is also evident that a matter to initiate disciplinary proceedings was also being placed before the Syndicate of the University against the appellant. In these circumstances, the only inference which can be drawn is that the request of premature retirement was not a voluntary act on the part of the appellant.
(13) Admittedly, the appellant submitted representation for withdrawal of retirement much prior to the date of its effectiveness i.e. 13-10-2003. The Honourable Supreme Court of Pakistan in a case of Government of Sindh through Secretary S&GAD v. Raja Muhammad Inayat Khan 2000 SCMR 1964, while maintaining the judgment of this Tribunal (Raja Muhammad Inayat Khan v. Government of Sindh and others 2003 PLC (C.S.) 109 has observed that no inflexible rule of law existed that option of retirement once exercised was final and could not be retracted, under any circumstances. Each case must be examined on the facts and circumstances obtaining in a case. Indeed no hard and fast rule can be laid down for this proposition. It was further observed that:-- "Two more cases of like nature are reported as Noor-uz-Zaman Ahmed v. Punjab Province 1984 PLC (C.S.) 864 and Noor Ahmed v. Divisional Forest Officer, Faisalabad 1984 PLC (C.S.) 1085 wherein service appeals by the employees were allowed by Service Tribunal, Punjab for identical reasons.
Lastly in Muhammad Rafique v. Pakistan Railways 1995 SCMR 904 the facts of the case were that the petitioner had submitted an application on 1-1-1992 seeking premature retirement w,e,f, 2-1- 1992 he submitted another application on 19-2-1992 to the relevant authority for withdrawal of his application for premature retirement. He was retired w,e,f, 2-4-1992. His departmental appeal was dismissed by the competent Authority and his appeal before the Federal Service Tribunal also failed but this Court granted leave to appeal against the judgment of the Tribunal on the premises that before the order of retirement petitioner had also submitted his application which according to the Tribunal was received by the competent Authority on 21-3-1992. This Court observed that as per Letter No.23/3/81- SV(H), dated 12-4-1981, a Government servant may withdraw his application for premature retirement before its acceptance by the competent Authority. Although, ultimately the appeal was dismissed in 1998 as the appellant failed to prove that he had submitted the application for withdrawal of retirement before his actual retirement, the position in law remains intact."
' The option to proceed on L.P.R. From the above circumstances being not voluntary having been obtained under duress and compulsion was void ab initio, therefore, subsequent orders in series passed could not have legal effect. One could imagine the pressure on the mind of a person when the authority goes out of the way, the subordinate cannot resist but has to yield to the pressure of the authority. In the instant case from the above what has been reproduced from the judgment of the Service Tribunal it would appear that the Vice-Chancellor had made up his mind to knock down one of the subordinate employees of his institution, in the circumstances, the employee cannot have any other way but to act as desired by former. However, it also appeared that the retirement was to become effective i.e. From 13-10-2003 whereas he made appeal prior to it i.e. On 31-7-2003 to withdraw his option for Leave Preparatory to Retirement and to continue in service.
The said plea of involuntary retirement having been obtained under duress and compulsion was not attended by this Court in detail, therefore, the most important aspect of the case the root cause leading to the premature retirement of the petitioner was not considered, therefore, the same being apparent on the face of record would be good ground for review. In fact the said finding of fact based on cogent reasons could not have been interfered with by this Court considering the same being not a question of law but of fact which had attained finality after the finding of Service Tribunal, considering that their being no misreading and non-reading so far the facts of the case are concerned.
15. Next plea raised by the petitioner that when the departmental appeal was not disposed of against the petitioner on the plea of it being barred by time the same could not be taken up even before the Service Tribunal what to say before this Court. In the case of Muhammad Jan Marwat and another v. Nazir Muhammad and 17 others 1997 SCMR 287, a Bench of three Honourable Judges held that the departmental appeal of civil servant having not been dismissed on ground of limitation, service appeal filed within time, the Service Tribunal could not have dismissed such appeal as incompetent. So far the case-law cited by the learned counsel for the respondents on this point, the same are inept to the facts of the instant case considering that some of the cited cases are obitor dicta while the rest of them are inept to the facts of the instant case, therefore, said case-law cited would not negate the submissions made by the petitioner. The above decision of this Court in the case of Muhammad Jan Marwat (supra) is on all fours to the facts of the instant case and fully support the plea of petitioner. The very cited case-law was not cited before us while making submissions by the petitioner in the civil petition. In the circumstances the said case-law was not brought to the notice of this Court at the time of hearing of the petition would be also ground for review as the law laid down by this Court was not considered and followed while disposing of the petition, through the impugned judgment sought to be reviewed. Accordingly we are of the considered view that when the departmental appeal is not disposed of on the ground that same was barred by time, the plea of said bar cannot be agitated before the Service Tribunal or before this Court as the said plea being mixed plea of fact and law which cannot be agitated before the apex Court as it would require an enquiry.
16. The last submission of the petitioner that option of retirement exercised before the retirement became effective could be made, we may state that admittedly the option to retire was not voluntary act and was obtained under duress and compulsion which itself was void ab initio as said above could be allowed to be withdrawn before the actual retirement could take place keeping in view special facts and circumstances of this case in mind that it was involuntary act and was obtained under duress and compulsion. This Court in the case Government of Sindh through Secretary S&GAD and another v. Raja Muhammad Inayat Khan 2000 SCMR 1964 held that no inflexible rule of law existed that option of retirement once exercised was final and could not be retracted under any circumstances. We may also observe that power of rescinding till decisive step is taken is not principle of law but if the order is illegal then perpetual rights cannot be taken on the basis of illegal order. As said above the order of retirement being involuntary obtained under duress and compulsion cannot be termed to be legal but void ab initio, therefore, the same could be recalled under the law, considering that the same was secured mala fide based on prejudice and ill-will against the petitioner, therefore, law on the subject having not been attended to on the said plea by this Court, the same would be a ground for review of the said finding as such same is reversed holding that option exercised stood revoked so as to keep the record straight.
17. In view of above observations and reasoning's and law, we find that there being error apparent on the face of record in respect of law laid down by this Court and the admitted facts having not been attended to it and in order to keep the record straight being morally and legally convinced that such findings were result of not attending to it in its proper perspective of law constituted sufficient ground for review of judgment sought to be reviewed which is reversed/set aside.
Consequently Civil Petition No.772-K of 2004 having no merit and substance considering that impugned judgment of Sindh Service Tribunal in the Civil Petition does not suffer from any legal or factual infirmity being based on cogent reasoning as such required no interference, therefore, leave to appeal is declined and the petition is dismissed.