' B. G. N. Kazi (MEMBER).-Mr. Muhammad Ali appellant in Appeal No, 840(L)/74 has filed review petition against the order of this Tribunal dated 23rd June, 1975, whereby his appeal was dismissed as time-barred.
' As the consideration of the petition involves the legal points as to the extent and the scope of jurisdiction of this Tribunal in review, the matter has been heard by Full Bench. Arguments have been heard of the counsel for the petitioner-appellant and Syed Muhammad Shahudul Haque, counsel for the respondent.
2. A serious contention has been raised by the learned counsel for the petitioner that in view of provisions of section 5(2) of the Service Tribunals Act, 1973, since the Tribunal is to be deemed to be a Civil Court and has the same powers as are vested in such Courts under the Code of Civil Procedure, 1908, the power of review as provided in section 114 of the Code, subject to the provisions of Order XLVII is vested in the Tribunal.
' The Service Tribunals Act, 1973 has no express provision with regard to the power of review.
However, the Service Tribunals (Procedure) Rules, 1974 give limited powers in rule 22 thereof which are to the effect that clerical or arithmetical mistake arising in an order of final adjudication slip or omission may, at any time, be corrected by a Tribunal either on its own motion or on an application made by any of the parties. The proviso to the Rule further provides that every such application shall be duly supported by an affidavit.
3. The right of review has been specifically conferred to the extent of the aforesaid Rule, which would have no meaning if the contention that by virtue of section 5(2) of the Service Tribunals Act, 1973, the Tribunal has inherent power under section 151 of Code of Civil Procedure to review its orders is accepted. It has, therefore, become important to examine the provision of section 5(2) of the Act in order to find out the extent of the powers and the scope of the application of the provisions of the Code of Civil Procedure, 1908, section 5 aforesaid is in respect of powers of Tribunal and subsection (1) provides that a Tribunal may on appeal affirm, set aside, vary or modify the order appealed against. The powers specified in subsection (1) are with regard to appeals.
Subsection (2) of section 5 interpretation of which is being sought provides that a Tribunal shall for the purposes of deciding any appeal," be deemed to be a Civil Court and shall have the same powers as are vested in such Courts under Code of Civil Procedure, 1908, including the powers of
(a) enforcing the attendance of any person or examining him on oath : (b) compelling for production of documents : and (c) issuing commission for examination of the witness and the documents. It is significant to note that the power vested in a Civil Court under the Code of Civil Procedure have been given to a Tribunal "for the purposes of deciding any appeal". It is, therefore, clear that the aforesaid powers are as applicable in the case of appeal and three clauses (a), (b) and (c) of subsection (2) have been specifically provided for as being included in the aforesaid power. The extent of powers enunciated in the provision, therefore, cannot be interpreted to mean all the powers of a Civil Court under the Code of Civil Procedure.
' The aforesaid view has already taken in some decisions of this Tribunal including the decision of Appeal No, 771 (R) of 1974 in the case of Mr. M. A. Iqbal v. Federation of Pakistan.
' It had been emphasised in the decision that it is not a case of omission of the power of review but Legislature has expressed its view in restricting the powers of review in Rule 22 of the Service Tribunals (Procedure) Rules, 1974.
4. This view is further supported by the decision of the High Court reported in PLD 1973 Kar.
189. In that decision the question was considered whether a Labour Court adjudicating an industrial dispute under the Industrial Relations Ordinance (XXIII of 1969) had all the powers of a Civil Court.
Interpretation of subsection (2) of section 36 and section 34 of the Ordinance was being made. The main argument in that case around the true interpretation of section 36(2) of the Ordinance which override that a Labour Court shall for the purpose of adjudicating and determining any industrial dispute, be deemed to be Civil Court and shall have the same powers as are vested in such Courts under the Code of Civil Procedure 1908. In subsection (3) of section 36 specific powers which are the same as mentioned in subsection (2) of section 5 of the Service Tribunals Act. 1973 are specified. It was inter alia held that subsection (2) of section 36 lays down the procedure and powers specifically for certain kind of proceedings and subsection (2) does not confer upon a Labour Court while adjudicating and determining an industrial dispute all the powers of Civil Court under C. P. C. But only such of them as may be described as procedural, i,e, such as are required for the purpose of adjudication and determination." The above decision of the Division Bench of the High Court of Sind and Baluchistan as expressed by Late Tufail Ali A. Rehman, C. J. May well be applied to the interpretation of section 5(2) of the Service Tribunals Act, 1973 and as emphasized judgment of this Tribunal already referred to the words "for the purpose of deciding appeal" occurring in subsection (2) cannot be ignored.
5. In view of rule 22 of the Service Tribunals (Procedure) Rules,) 1974 it cannot even be argued that there is no specific provision with regard to review.
6. The learned counsel for the petitioner has referred to the decision of the Supreme Court reported in PLD 1970 SC 1 in support of his contention that the power of the review is inherent power of every Court and even if there is no legal provision to that effect such power can be exercised to review and order to correct error apparent on the face of the record. In that decision it was held that the High Court had power under clause (b) of section 114 of the C. P. C. To review an order made in its writ jurisdiction in a civil matter. It was further held that apart from the High Court's power to correct error apparent on the face of the record in exercise of its inherent jurisdiction, it has power under C.
P. C. To review its own order made in exercise of writ jurisdiction in civil matter. The decision referred to therefore, is with regard to power of High Court to review its order and can be distinguished since this Tribunal is not even a Civil Court as defined in section 3 of the West Pakistan Civil Courts Ordinance, 1961 and was created and established under the Service Tribunals Act, 1973.
' In the same decision M. R. Khan, J referred to the observation of Branwell, J in the case of Sand Back Charity Trustees v. North Staffordshire Railway Co. (I) which are as under : - "An appeal does not exist in the nature of things; a right to appeal from any decision of any Tribunal must be given by express enactment."
' It was further observed in the Supreme Court decision that the right to claim review of any decision of a Court, of Law, like the right to appeal, is a substantive right not a mere matter of procedure. It was, therefore, held that neither of the rights is available unless it has been conferred by law.
' The learned counsel for the petitioner has also referred to decision reported in PLD 1973 Kar. 210 on the point that every Court in exercise of its inherent powers can cancel its own invalid orders.
This decision was with regard to powers of review of the High Court and cannot be considered as an authority for the proposition that all the Courts have inherent powers of review of irrespective of the fact whether under the law there is such provision with regard to jurisdiction. If the power of review existed as inherent power the framers of the Constitutions of 1962 and 1973 would not have made provision in the Constitution with regard to such power in respect of the Supreme Court of Pakistan. Article 62 of the Constitution of 1962 and Article 188 of the Constitution of 1973 give Supreme Court the jurisdiction subject to the provisions of any Act of Central Legislature and any rule made by the Supreme Court to review any judgment pronounced or any order made by it. The power of review had to be restricted as such unlimited 'power would permit perpetual re-hearing and would lead to endless litigation.
7. It is, therefore, reasonable to assume that the limited power of review as provided in rule 22 of the Service Tribunals (Procedure) Rules, 1974 is the only power of review allowed in case of this Tribunal.
' For the reasons given above, the review petition has to be considered under the limited power of review. It is also well-recognised legal position that review of judgment or order is discretionary and the Court is not bound to grant review even where adequate grounds exist. The discretion of Courts must be exercised upon sound judicial principles.
8. The grounds for review application dated 5th September, 1975, are that the Writ Petition No, 1595/S of 1973 was admitted by the Lahore High Court on 22nd March, 1974, 1. e. After the promulgation of the Service Tribunals Act, 1973 and the C. J. Passed judgment on 17th July, {{FOOT NOTE}}
(1) (1877) 3QBDI {{FOOT NOTE}} ' 1974 holding that the petition had abated. It is further stated that the aforesaid decision came to the knowledge of the petitioner who applied for copy of the order on 19th November, 1974. He, therefore, preferred an appeal before this Tribunal on 23rd December, 1974, petitioner-appellant had also preferred an application under section 5 of the Limitation Act.
9. A perusal of the order of this Tribunal dated 23rd June, 1975, makes it clear that the appeal to the Tribunal was submitted on 23rd December, 1974, while period of Limitation had expired on 25th May, 1974, i. e. After lapse of 90 days of the establishment of the Tribunal on 22nd February, 1974 and therefore, the appeal was time-barred by over 7 months. It would further appear from the facts stated that the writ petition was filed before a forum having no jurisdiction after the coming into force of the Service Tribunals Act, 1973 and even the establishment of the Tribunal. The implications of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 read with the Service Tribunals Act (LXX of 1973) are that in respect of matters which fall within the function of this Tribunal, the jurisdiction of the g Tribunal is exclusive, excluding the jurisdiction of all other Courts including the Supreme Court and the High Court. There could, therefore, be no excuse on the part of the petitioner who was represented by a counsel to choose a forum having no jurisdiction.
' In the circumstances of the case there is no such mistake as is referred to in Rule 22 of the Service Tribunals (Procedure) Rules, 1974 or accidental slip or omission which may be corrected by this Tribunal, Review petition is accordingly dismissed.
'SHAH ABDUR RASHID, (CHAIRMAN).-This order will also dispose of review petition in Civil Appeal No, 45(L)/76 which is based on the same legal grounds and is against the order of dismissal of appeal on the main ground of the same being time-barred.
' After going through the elaborate order by my brother Kazi, there remains little for me to say.
However, I may add that the learned counsel for the appellant had placed great stress on the case of Azad Jammu& Kashmir State v. Kh. Ahmed Din (I) wherein it was held that the Service Tribunal has jurisdiction to review its own orders. Without going into the merits of the arguments given in the order, it may be pointed out that section 5 of the State Act on the interpretation of which Tribunal had reached that conclusion is substantially different from section 5(2) of the Service Tribunals Act, 1973, subsection (2) of section .5 of the State Act reads as follows : "A Tribunal shall, for the purpose of deciding any appeal, be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908)."
' Section 5(2) of the Service Tribunals Act, 1973 however also provides that the powers will include -
(a) enforcing the attendance of any person and examining him on oath ;
(b) compelling the production of documents ; and (1) 1977 PLC (C. S. T.) 60
(c) Issuing commission for the examination of witnesses and documents.
' In case the intention of the Legislature had been to confer all the powers of the Civil Court on this Tribunal, then there were no point in illustrating the provisions by specific powers which are to be exercised by it under the Code of Civil Procedure, 1908. The construction of section 5 (2) of Service Tribunals Act, 1973 shows the intention of the Legislature that only such power, as are procedural in nature and are necessary for disposal of the appeal have been given to it. Further powers such as that of review cannot be read into subsection (2) of section 5. Even in the case of Hussain Bux v.
Settlement Commissioner (1) relied upon by counsel for the appellants, it has been observed that right to claim review of any decision of a Court of Law like the right of appeal, is a substantive right and not a mere matter of procedure and that the power of review is not available unless it is conferred by law.
11. In the Supreme Court case referred to above the Court never held that right of review was inherent power of the Court. That case in so far as it has been relied upon by the learned counsel for the appellant is not at all applicable to the situation before us. In that case the High Court was held to be having the power of review in cases falling under clause (a) of section 114 of the Code of Civil Procedure as the High Court exercised the powers of Civil Court under section 117 of that Code.
The question before the Court was whether after the promulgation of 1962 Constitution the power of review remained intact and the Court had held that the said power remained available to the High Court in respect of cases falling under clause (b) of section 114 of the Code of Civil Procedure only. It is thus clear that in that case the Supreme Court had neither expressed the view that High Court had inherent power to review its own orders.
' Apart from what I have stated above it has been held in PLD 1967 Lah. 171 that inherent power under section 151 of Code of Civil Procedure cannot be exercised in a case where the matter is not pending before the Court. In PLD 1963 Lah. 408 it was held that the powers conferred under section 151, C. P. C. Are not to be exercised once the Court has disposed of the case.
'Reference has also been made to the case of Dr. M. Fazal Zahir and others v. Mst. Begum Jan and others (2). That case too is of little help. As already discussed the High Court being a Civil Court under section 117 of the C. P. C. Is vested with all the powers of the Civil Court, (Subject to the provision of the Constitution) including the power of the review. Such power is not available to the Tribunal. The Tribunal has only limted powers of the Civil Court and these too can only be exercised while deciding an appeal.
' The conclusion arrived at by my learned brother that this Tribunal has no power to review its orders ; except for the correction of clerical errors of 'omission under rule 22 of the Service Tribunals (Procedure) Rules, 1974 is unassailable.
' DR. A. Q. K. AFGHAN (MEMBER).-I agree with my learned colleague Mr. Kazi that section 5(2) of the Act (1973) does not confer any power {{FOOT NOTE}}
(1) PLD 1970 SC 1 (2) PLD 1966 Lab. 153 {{FOOT NOTE}} ' of review upon this Tribunal to review its own orders. Rule 22 of procedure is quite revealing and is specific in terms of limited powers of review available to this Tribunal only in case of correcting a clerical error/omission. N. A. CHOUDHURY (MEMEER).-1 have gone through the judgment of my learned brothers repeatedly. I have also re-read the relevant provisions of the Constitution of the Islamic Republic of Pakistan, 1973, as also the provisions of the Civil Procedure Code. After recalling to my mind the arguments of the learned counsel for the petitioner, regarding the powers of review conferred on the Service Tribunal under section 5(2) of the Service Tribunals Act. I come almost to the same conclusion as my learned brothers have recorded. However, my arguments are somewhat different.
14. A reference is recalled to Article 175(2) of the Constitution which reads as follows :- "No Court shall have any jurisdiction save as it is or may be conferred on it by the Constitution or by or under any law."
Section 5(2) of the Service Tribunals Act, 1973 confers on the Tribunal only the specified powers as mentioned therein, and precludes the other power contained in the C. P. C. In the circumstances, this provision of the Service Tribunals Act does not confer any powers of review of appeals in any shape or form whatsoever. The above referred pro-F vision of the Constitution destroys inherent jurisdiction, if any, enjoyed by the Courts previously including the jurisdiction of review mentioned in section 152 of the Civil Procedure Code.
15. The provisions of rule 22 of the Service Tribunals (Procedure) Rules, 1974 do not confer any jurisdiction, because such a jurisdiction has to be conferred only by the Constitution or by or under any law. The Service Tribunals (Procedure) Rules do not enjoy the status of an enactment or law. It would thus be difficult to infer even that the Legislature has expressed itself regarding the specific jurisdiction of review conferred on the Service Tribunal through section 22 of the Procedure Rules.
The Legislature does not express itself through the statutory rules because the voice is not available at that wavelength.
' Further, it is significant to note that in rule 22 referred to above, the word 'review' has been purposely avoided while drafting the provision. The Service Tribunal has been permitted through the issue of procedure Rules only to correct clerical errors.
' The obvious conclusion, therefore, is that no power of review of any nature has been conferred on the Service Tribunal, nor does it inherit any of the powers previously enjoyed by the Civil Courts in this respect.