' GHULAM MUJADDID MIRZA, 3.-On 21st May, 1970, Sh. Inamul Haq was dismissed from service under, M. L. R.
58. He was then serving Railways as Chief Controller of Stores, West Pakistan. He filed appeal with the Federal Service Tribunal. It was accepted by the Tribunal vide order dated 1st June.
1981. The Government felt aggrieved. Accordingly they appealed to the Supreme Court of Pakistan.
Leave was granted by order dated 3rd March, 1982. Operation of the order of Federal Service Tribunal which was impugned before the Supreme Court, was not stayed.
2. S. Inamul Haq filed a petition under Article 9 of the Provisional Constitution Order, 1981 in this Court. He sought a direction from this Court against the Secretary, Establishment Division for implementing the order of the Federal Service Tribunal. The petition was heard by a learned Judge of this Court.. It was dismissed in limine. Hence this Intra Court Appeal.
3. On 12th June, 1982, when the appeal came up for hearing before a Division Bench of this Court, the Deputy Attorney-General who was present in connection with another matter was directed to look into this case and find out what is the legal and factual position. The Deputy Attorney-General submitted that it was the Advocate-General Punjab who had filed the appeal. The Advocate- General turned up by chance. He was apprised of the order. Counsel for the appellant was directed to give a copy of the memo of appeal to both the Deputy Attorney-General and the Advocate- General. Thereafter, the appeal came up for hearing on 27th June, 1982. On the said date, the Deputy Attorney-General did not turn up. Matter was adjourned to 28th June, 1982 on which date, he requested for a short adjournment. The request was allowed. Appeal was adjourned to 7th July, 1982. On this date again the Deputy. Attorney-General absented. The matter was adjourned to 10th July, 1982.
' On 10th July, 1982, the Deputy Attorney-General requested for further adjournment, This was opposed, vehemently, by the appellant's counsel. Nevertheless, the matter was adjourned to 13th July, 1982. On this date the Deputy Attorney-General filed comments and the appeal was admitted to regular hearing. The point involved being short one, we called upon the appellant's counsel and the learned Deputy Attorney-General to argue the appeal.
' We have heard learned counsel for the appellant who submitted that as the operation of the order of Federal Service Tribunal was not stayed by the Supreme Court of Pakistan, the appellant as such is entitled to be re-instated.
' The learned Deputy Attorney General supported the comments submitted by respondent. The crux of which is "the case is sub judice before the Supreme Court as such order of the Service Tribunal cannot be implemented."
' This stand of the respondent is shocking because it has no substance. We are really disappointed that the respondent has to take this objection. This position is not supported by any law or the rule applicable to this case.
It is an admitted position that the Supreme Court of Pakistan has no suspended the operation of the order impugned before them. The me fact that the appeal is sub judice provides no justification for not implemen ting the order of the Federal Service Tribunal. In this connection the rules of the Supreme Court are clear. Reference can be made to Order XX, rule 1. It reads thus :- "The filing of a petition for leave to appeal or an appeal shall not prevent execution of the decree or order appealed against, but the Court may, subject to such terms and conditions as it may deem fit to impose, order a stay of execution of the decree or order, or order a stay of proceedings, in any, case under appeal to this Court."
' Order XL1, rule 5 of the Code of Civil Procedure is also relevant. It lays down as under :- "Stay by Appellate Court.,-(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree ; but the Appellate Court may for sufficient cause order stay of execution of such decree,"
' The aforesaid two provisions especially the Supreme Court rule demolish the stand taken by the respondent. We still expect the respondent to act gracefully so as to honour the order passed by one of their own Tribunals.
' However, the order of the learned Single Judge is set' aside. The appeal is allowed with costs, The respondent is directed to implement the decision of the Federal Service Tribunal dated 1st June, 1981 forthwith.