M UHAM M AD IQBAL KALHORO, J. Appellant, a Civil Aviation Authority, is a statutory body and is aggrieved by an order dated 14.12.2020, when a Suit No.369/2014, pending before the learned Single Judge of this court on original side, was simply adjourned to 11.01.2021 and ad-interim order in favour of respondent, an employ of appellant, serving as Additional Director (OSD), continued despite information about his retirement was conveyed with exception to extension of such relief to him.
2. Relevant facts in brief are that appellant on finding BSc degree of respondent forged, duly confirmed by University of Karachi, issued a show-cause notice dated 28.02.2014 to him for explanation. He instead challenged the same by filing the aforesaid suit for declaration and permanent injunction and successfully obtained an interim order dated 07.03.2014 in the terms stating that the Authority may continue with the proceedings but may not pass a final order on the show-cause notice without permission of the court. The proceedings in the suit have been continued since, with benefit of ad-interim order operating in favour of the respondent. But meanwhile statedly the inquiry proceedings, objected and resisted by the respondent, have been finalized and a range of penalties has been proposed against him, which record shows is influenced by, among others, a fresh verification of the degree of the respondent from University of Karachi declaring it as forged. The enquiry proceedings were filed in the aforesaid suit with a request for permission to the appellant to pass a final order but to no avail.
3. In the suit meanwhile no tangible progress could be made, which the appellant has alleged, was on account of delaying tactics and uninterrupted adjournments sought by learned counsel for the respondent. On 27.11.2020, the appellant informed learned Single Judge about retirement age of the respondent to be on 05.01.2021, and the fact that thereafter all the proceedings would come to a naught. The same although were recorded in the order but the case was simply adjourned to 07.11.2020 as a last chance. On the said date it was noted in the order that the respondent has filed to meet the directions, yet excepting recording averments of the parties, no decision to address concerns of the appellant about retirement of the respondent and the proceedings being irrelevant, the suit becoming infructuous and the respective claims of the parties remaining forever undecided to the benefit of respondent, was made. It was also not considered that such a situation would indeed besides being detrimental to the appellant be in violation of a well-known dictum of law prescribing decision of the issues on merit rather than on technicalities, and the suit was adjourned to 11.01.2021 and operation of interim order continued till then.
4. Learned counsel for the appellant has reiterated the above facts in his arguments and has further submitted that veil of interim order may be lifted and the appellant may be allowed to pass a final order in view of already concluded departmental proceedings; and that the effect of such an order may be, made subject to final outcome of the suit filed by the respondent. In support of his contentions, he has relied upon the case laws reported in 2005 SCMR 1302, PLD 2017 Sindh 678 (D.B), 2020 CLC 792 Lahore, 2018 PLC (C.S.) Note 69, 2011 PLG (C.S) 1527, 2018 PLC (C.S.) Note 194, 2019 PLC (CS) 999, 2007 PLC 36, 2006 SCMR 1818 and PLD 1969 Kar. 87.
5. Mr. Ali Lakhani, who is appearing on behalf of respondent, has filed a statement along with a bunch of documents pertaining to the suit, and has further resisted the move sought by learned counsel for the appellant. He has contended that this appeal filed against the interim order is not maintainable. The enquiry proceedings have not been concluded against the respondent, which even otherwise were based on mala fide and ulterior motives and were outcome of departmental shenanigans. That the respondent was allowed representation by a counsel but when the counsel appeared before the enquiry committee. he was miss-behaved with and was not allowed to cross-examine the witness. In support of his contentions, he has relied upon the case laws reported in 1996 CLC 892, PLD 1983 Lahore 46, 2015 PLC (C.S.) 363 and 2010 YLR 2426.
6. We have attended to the facts and contentions presented before us and have sought guideline from the case laws cited at bar. As to maintainability of instant appeal, it may be stated that it is well settled that intervention by the appellate court at the interim stage of a suit is not barred completely, particularly when it is found inevitable to obviate miscarriage of justice and where apparently it is arbitrary, capricious and against well settled principle of law. No bar in law can be enforced against the jurisdiction of an appellate court to examine the nature of ad-interim order in the aforesaid context to pass an appropriate remedial order and preserve intrinsic nature of the controversy between the parties for a final adjudication. We, therefore find objection to maintainability of this appeal not sustainable and proceed to examine the impugned order in the context as stated above.
7. As it is apparent from reproduction of facts above, the scope of this appeal is limited to deciding the nature and concomitant effects of the interim order operating in favour of respondent in the aforesaid context and keeping in view that it has allowed continuation of departmental proceedings against the respondent but has restrained the Authority from passing a final order on the basis of impugned show-cause notice without permission of the court. The suit was filed in 2014, the aforesaid order was passed on 07.03.2014, but unfortunately for one reason or the other, the issue between the parties could not be laid to rest and meanwhile retirement age of the respondent has approached, which is tomorrow i.e. 05.01.2021. Needless to urge that it is a well settled proposition of law that object of passing an interim/interlocutory order is to maintain the status quo, the situation obtaining on the date when a party aggrieved by a certain action approaches the court, and to ensure that meanwhile no new development detrimental to rights of the parties is created, which may pose a hurdle in the way of deciding the case on merits. In the present case no final order on account of interim order could be passed against the respondent, although as claimed the departmental proceedings have been concluded, and he has been successfully reaping its benefits and evading consequences of the charge against him. At this stage, when the respondent is retiring only tomorrow and his suit has not progressed materially, it is not hard to discern that if the interim order is allowed to continue as it is and not modified or altered, it would not only be in disregard to its own terms permitting continuation of proceedings against the respondent, because otherwise there was no reason to allow the same, but would result into miscarriage of justice. The respondent would emerge vindicated without any formal inquest by the court into merits of his case, his suit would likely become irrelevant/ infructuous and the respondent would be permanently deprived and debarred from pressing the charges against the respondent before any forum for final adjudication. The persistent ad-interim stage of the suit and the benefits arising out of it will coalesce into a finality and the interim relief into final and permanent relief to the respondent, and that will be without any mark on merits of his case. Such outcome has never been the scheme of law requiring final adjudication of the matter after preliminary formalities. Learned counsel for the appellant has cited at least three case laws reported in 2018 PLC' (C.S.) Note 69, 2011 PLC (C.S.) 1527 and 2018 PLC (C.S.) Note 194 which have specifically laid that if a disciplinary action remains inconclusive against an employee and he meanwhile attains the age of superannuation, the action against him would abate and he would be entitled to all the service benefits. We, therefore find that certain modification in the interim order is relevant at this point in time to save originality of the proceedings and rights of the parties for final adjudication. Accordingly, this appeal is allowed and the original interim order dated 07.03.2014 is modified in the terms, whereby the appellant is permitted to proceed with and pass an order, which may include a final order in the light of already held proceedings, if any. However, such proceedings and its outcome, if any, would be subject to a final decision to be made on the Suit No.369/2014 filed by the respondent.
The appeal stands disposed of in above terms along with pending application(s) .