This is a Revision application under section 115, C.P.C. Against an order, dated 10-9-1974 passed by the 1st Additional District Judge, Karachi, dismissing the application for review of his earlier order passed by him, on 29-9-1973 whereby he dismissed the suit having abated under section 6 of the Service Tribunals Act, 1973. The facts, briefly stated for purposes of this revision, are that the applicant was working as Assistant Administrative Officer (Class II Gazetted Officer) with the Ministry of Labour and Works, Works and Rehabilitation Division, Government of Pakistan, Islamabad and was posted at Karachi Central E/M Circle Pak. P.W.D., Karachi. He was to retire on 5- 11-1967 but one year's extension in service was given to him ending on 4-11-1968. He was, however, retired without any further extension and his request for extension was refused which is evident from the Annexure 'F' filed by the applicant at page 51 of the file. He proceeded on leave preparatory to retirement. However, on 300 October, 1968 he filed a suit in the District Court, Karachi, bearing No, 2236 of 1968 praying for the following reliefs:-- "(a) It is declared that the plaintiff is physically fit and intellectually fit for grant of extension in service for 3 years and extension should not be refused by the defendant No. 1 for mala fide reasons fully mentioned in the body of plaint.
(b) It further be declared 'that the memo., dated 21-10-1968 and 22-10-1968 are mala fide, against all cannons of justice; hence ineffective, illegal, null and void and are of no consequence.
(c) A perpetual injunction be granted restraining the defendants Nos. 1 and 3 not to force the plaintiff to retire from service by virtue of any mala fide order with effect from 4-I1-1968.
(d) Cost of the suit.
(e) Any other or further relief which this Honourable Court may deem fit and proper in the interest of justice."
2. On 15-8-1973 Service Tribunals Ordinance, 1973 was promulgated which on 26th September, 1973 was made an Act. Section 6 of the said Act provided as under:-- "Abatement of suits and other proceedings: All suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of the Law as may be enacted by the Parliament, extending clause (2) of Article 212 of the Constitution of the Islamic Republic of Pakistan to a Tribunal, shall abate on the commencement of such Law: Provided that s party to such a suit, appeal or application may, within ninety days of the commencement of such Law, prefer an appeal to the appropriate Tribunal in respect of any such matter which is in issue in such suit, appeal or application."
3. In view of the provisions of section 6, quoted above, the learned Judge passed an order, on 29-9- 1973 holding that the suit has abated. Being aggrieved with the said order the applicant filed an application, on 28-5-1974 under section 4(1) (c) of the Service Tribunals Act, 1973 and Order LVII, rule 1, C.P.C. Which has been impugned in this revision application, which is before me.
4. I have heard Mr. Masood Shaharyar learned counsel for the applicant and Mr. Abdul Mannan, learned counsel for respondents Nos. 2 and 3, and Mr. Abdul Matin, Advocate as amicus curaie.
5. It is contended by the learned counsel for the applicant that the amendment under section 4 brought in the statute on 6-5-1974 provided that the Service Tribunals had no jurisdiction to entertain cases in which order has been passed before 1st July, 1969. He, therefore, submitted that the suit cannot abate leaving the appellant without any remedy.
6. Mr. Abdul Mannan learned counsel for respondents Nos. 2 and 3 contended that the suit has abated under section 6 of the Act. He further submits that the civil 'Court or for that matter this Court has no jurisdiction. He referred to the case reported as Khalilur Rehman and others v.
Government of Pakistan and others PLD 1981 Kar. 750 by a full Bench of this Court.
7. Mr. Abdul Matin, Advocate who was present in Court and whom, I requested to act as amicus curaie in the case, referred to the case reported as Federation of Pakistan v. Muhammad Siddiq PLD 1981 SC 249. Mr. Abdul Matin also referred to an unreported judgment by a learned Single Judge of this Court in First. Appeal No. 55 of 1974 disposed of on 26-11-1984.
8. Respectfully following the above cited two authorities PLD 1981 SC 249 and PLD 1981 Kar. 750 it leaves no room for doubt that the suit has abated under section 6 of the Act on its promulgation.
The amendment brought in section 4 has nothing to do with the provisions of section 6' of the Service Tribunals Act which stand independently.
9. However, the applicant 'on amendment of section 4 made on 6-5-1974 filed review application, referred to above, on 28-5-1974 before the learned Additional District Judge who dismissed the same firstly, having no jurisdiction under the Service Tribunals Act and secondly the application for review having been filed beyond 90 days as prescribed under Article 173 of the Limitation Act; and was time-barred.
10. To repel the submission of the learned counsel for the applicant that he has been left with no remedy, it will be advantageous to reproduce the following paragraph from the above judgment of the Supreme Court appearing at page 259 of the report:-- "The amendment in section 5 of the Act whereby proviso (c) to subsection (1) thereof, was added, was made on the 6th of May, 1974. By virtue of his amendment, it was provided that no appeal shall lie to a Tribunal against, an order made at any time before the 1st of July, 1969. All the learned counsel agreed-on the point that the right of appeal one conferred could not be nullified unless the law taking away such a right is made to operate retrospectively. It is also agreed that the amendment whereby proviso (c) was added was not retrospective in its operation. That being so, if right to file appeal had accrued to a party prior to 6th May, 1974, that party would be entitled to file the appeal, notwithstanding the bar contained in proviso (c). It has already been held that the relevant law did not leave any aggrieved party remedy-less on abatement of the proceedings. The right of appeal to the Tribunal automatically accrued contemporaneously at the time when the abatement took place. As already held, the abatement took place on the establishment of the Tribunal on the 22nd of February, 1974. On that very date, immediately on the abatement, the aggrieved parties became entitled by virtue of the proviso to section 6 of the Act, to file appeals before the Service Tribunal. This right of appeal was not taken away by the subsequent amendment whereby proviso (c) was added to subsection (1), section 4 as it was retrospective.
Thus appeals could be filed before and competently entertained by the Tribunal, notwithstanding the bar contained in proviso (c).
11. As per averment in para. 13 of the memo. Of appeal the applicant has filed an appeal before the Service Tribunal which according to the learned counsel for the applicant is still pending and no order has been passed thereon as yet.
12. I am, therefore, clear in my mind that the suit abated on 22nd February, 1974 and the appeal pending before the Tribunal by the applicant since December, 1973, as stated by the learned counsel before me, will be heard and decided by the Tribunal in accordance with the law, keeping in view, the observations of the Supreme Court, quoted above.
13. In the result, the revision is dismissed. The applicant is, however, at liberty to persue this appeal before the Tribunal.
There will be no order as to costs.
A.E.