1. GULZAR AHMED, J.--- By this petition, the petitioner has sought implementation of the judgment dated 17-6-2005 of the Federal Service Tribunal passed in Appeal No,1642(K) of 1998 by which the appeal filed by the petitioner against the respondent was allowed and the impugned order was set aside with direction to the respondent to recalculate pensionary benefits of the petitioner in accordance with full permissible length of his service and make payment to him accordingly deducting whatever had already been paid to him.
2. ' It appears that petitioner was employed as Chief Medical Officer with the respondent No,2 namely the National Refinery Limited. On attaining the age of superannuation, the petitioner was retired from service on 7-1-1998 after putting in service of about 33 years. It is alleged that through order dated 15-9-1998 the respondents declined to pay to the petitioner full pension and retirement benefits of his 33 years service on the pretext that the rule of back funding of pension has -been withdrawn. Such order was challenged by the petitioner by filing appeal in the Federal Service Tribunal who through its judgment, as noted above, allowed the same with direction to pay pensionary benefits to the petitioner in accordance with full permissible length of his service. The respondent No,2 challenged the said judgment of the Federal Service Tribunal by filing Civil Petition No,2276 of 2005 in the Honourable Supreme Court of Pakistan which came up for hearing on 24-2- 2006 but as nobody appeared from the side of the respondent No,2 to prosecute the said petition, it was dismissed for non-prosecution. The respondent No,2 then filed an application for restoration of the said petition before the Honourable Supreme. Court. Such application of the respondent No,2 was rejected vide order dated 3-8-2006 on the ground that no sufficient cause or good ground for setting aside the dismissal was made out.
3. ' Mr. Akhtar Hussain Learned Standing Counsel for the petitioner has contended that in view of the dismissal of the petition of respondent No,2 by the Honourable Supreme Court of Pakistan, the petitioner is entitled to the benefit of judgment of the Federal Service Tribunal and the same be ordered to be implemented by this Court as the respondents are not complying with the same.
4. ' Ms. Cookie Rawat, learned Standing Counsel contended that the Federation has no interest in the matter as primarily the dispute is between the petitioner and respondent No,2.
5. ' Mr. Asad Abbas Zaidi, learned Counsel for the respondent No,2 contended that the petition under Article 199 of the Constitution is not maintainable as the respondent No,2 is not owned or managed by the Federal Government but is a company registered under the Companies Ordinance, 1984. He further contended that the petitioner's claim is for payment of pension which is to be paid by the trust and the trust being not joined as respondent, no direction to the respondent can be issued. He further contended that the judgment of the Federal Service Tribunal is non-speaking and that in any case in view of the judgment passed by the Honourable Supreme Court of Pakistan in the case of Muhammad Mobinul Islam v. Federation of Pakistan PLD 2006 SC 602 and Muhammad Idrees v.
6. Agriculture Development Bank of Pakistan PLD 2007 SC 681 the judgment of the Federal Service Tribunal has abated and is not liable to be implemented.
7. ' Mr. Asim Iqbal, learned counsel for the respondent No,3 in the first place contended that no relief has been claimed against the respondent No,3 but on merits contended that the respondents being limited company, petition against it is not maintainable and in this respect relied upon the order dated 28-6-2001 passed by a learned Single Bench of the Lahore High Court, Rawalpindi Bench in Writ Petition No,2297 of 2001, the order dated 26-9-2002 passed by a learned Division Bench of the Lahore High Court, Rawalpindi Bench in I.C.A. No,140 of 2001 and order dated 6-12-2004 passed in C.P.L.A. No,1960 of 2002 passed by the Honourable Supreme Court of Pakistan.
8. ' We have given due consideration to the matter and have also perused the record. The respondent No,2 has filed parawise comments while the respondent No,3 has filed objections/replies to the petition. No reply is filed by the respondent No,l. Petitioner has filed reply to the objections of respondent No,3.
9. So far the objection of the learned counsel for the respondent No,2 with regard to the maintainability of the petition on the ground that the respondent No,2 is not owned and managed by the Federal Government and that Trust has not been joined as respondent, suffice to note that the petitioner's relief in this petition is for obtaining implementation of the judgment of the Federal Service Tribunal only and that this Court time and again has held that in terms of Article 199 of the Constitution it can give direction for implementation of the judgment of Federal Service Tribunal.
10. Reference in this respect is made to the case of Muhammad Siddique v. State Life Insurance Corporation of Pakistan 2005 PLC (C.S.) 946, Water and Power Development Authority v. Allandad Moshori 2008 PLC (C.S.) 260, Tariq Mahmood v. Federation of Pakistan 2008 PLC (C.S.)
141. Similar view was taken by us in our judgment dated 2-5-2009 passed in C.P.No,D-981 of 2008 Azizur Rahman Chaudhry v. Federation of Pakistan.
11. Besides, at the time when the appeal was filed and the judgment was announced by the Federal Service Tribunal, the petitioner was a civil servant and the respondents were State controlled corporation and thus even if the respondents status may have changed through the process of privatization, it was nowhere pointed out to us that in the process of their privatization, the liability in respect of the petitioner incurred was not taken up by the respondents. The examination of the Agreement of Privatization dated 7-7-2005, which is much after the date of announcement of the judgment by the Federal Service Tribunal, shows that not . Only the liabilities of all the employees of the respondents were taken over by the new entity but it was even informed of the liabilities and litigations involving the respondents which was to be discharged by the new entity created through the process of privatization.
12. ' So far the question of non-impleading of Trust is concerned, the same relates to the merits of the case which- we are not called upon here to decide, as the relief sought by the petitioner is only for implementation of the judgment of the Federal Service Tribunal and not beyond that.
13. ' As regards the further objection of the learned counsel for the respondent No,2 that the judgment of the Federal Service tribunal is nonspeaking, such aspect of the matter also relates to the merit of the case and as we are not sitting in appeal over said judgment, it is not in our purview to consider such objection. As regards further submission of the learned counsel for the respondent No,2 that in view of the judgment of the Honourable Supreme Court in the case of Muhammad Mobinul Islam and Muhammad Idrees (supra) the judgment of the Federal Service Tribunal has abated and is not liable to be implemented, we are not inclined to accept such submission of the learned counsel for the reason that the respondent No,2 did challenge the judgment of Federal Service Tribunal by filing civil petition in the Honourable Supreme Court of Pakistan which in fact was dismissed for non-prosecution and not abated in terms of the judgment in Muhammad Mobinul Salam's case.
14. The application for restoration of the civil petition was filed by the respondent No,2 which too was dismissed by the Honourable Supreme Court after hearing the same on merit.
15. ' Now what is the effect of the order of the Honourable Supreme Court by which it dismissed for non-prosecution the civil petition filed by the respondent No,2 challenging the judgment of the Federal Service Tribunal. Time and again it has been held that the concept of merger of the impugned order/judgment will not apply where Honourable Supreme Court dismissed the petition for leave to appeal. In the case of Joyder Agarwala v. Baitul Mal Karkhana Limited PLD 1965 SC 37, the Honourable Supreme Court while dealing with question of merger at page 39 has observed as follows:-- "Certain contentions raised by Mr. T.H. Khan may be very briefly disposed of. He contended that the trial Court lacked jurisdiction to interfere with the decree because it had become final through being upheld in appeal in the High Court and not having been appealed against further, and secondly, that only the High Court could alter the decree which had become merged in the decree of the High Court. There mere fact of the decree having become immune to further appeal by the dismissal of the appeal in the High Court and the lack of further appeal does not render the decree, a decree of any other Court except that of first instance. No modification was made in the decree by the High Court, and the argument of merger is rendered of no weight by the consideration that in fact the High Court rejected the appeal."
16. ' In a Division Bench judgment of Balochistan High Court in the case of Habibullah v. Wali Muhammad 1986 CLC 1227 at page 1239 it was observed as follows:- "(23) In any case, when appeal is dismissed in default the order cannot be deemed to be a decree.
17. The decree of the trial Court will not merge in the order passed by the appellate Court. The original decree shall remain intact in its own field."
18. ' In the above noted two judgments, one of the Honourable Supreme Court of Pakistan and the other of the Division Bench of the Balochistan High Court, the consistent view that has been taken is that where the appeal from the decree of the trial Court is dismissed, such decree does not merge into the order of the appellate Court but itself remain intact in the field. Thus its effect in the present case would be that on the dismissal of the civil petition for non-prosecution by the Honourable Supreme Court, the judgment of the Federal Service Tribunal will not merge into the order of the Honourable Supreme Court but the judgment of the Federal Service. Tribunal will remain in the field intact and fully operational for being implemented. Thus by dint of the ratio laid down in paragraph 14(b) of Muhammad Idrees case, the judgment of the Federal Service Tribunal is liable to be given effect and implemented because that is the only judgment in the field and intact. Moreso, when the respondent No,2's civil petition was not abated as a consequence of the judgment of the Honourable Supreme Court of Pakistan in Muhammad Mobinul Salam case. Even if, for argument sake, the concept of merger is applied then too, the order of the Honourable Supreme Court dated 24-2-2006 by which the civil petition of the respondent No,2 was dismissed for non-prosecution will become a past and closed transaction in terms of paragraph 109(a) of the judgment dated 27-6- 2006 given in the case of Muhammad Mobinul Salam and thus too the judgment of the Federal Service Tribunal will be liable to be given effect and implemented. Looked from every angle, there seem to be no escape from the conclusion that the respondents are liable to comply with the judgment of the Federal Service Tribunal.
19. For the above reasons, we are satisfied that the petitioner has made out a case for the implementation of the judgment of the Federal Service Tribunal and therefore, we allow this petition with direction to the respondents to implement the judgment dated 17-6-2005 of the Federal Service Tribunal in its letter and spirit within a period of 30 days of the announcement of judgment and to submit compliance report of the same with M.I.T. Of this Court.