MALIK MUHAMMAD QAYYUM, J:- This petition under section 115 of the C.P.C, calls in question the judgment and decree of the Additional District Judge Faisalabad to the extent it holds that notwithstanding the declaration that the termination of services of the petitioner by the respondent vide order dated 18th September, 1984, was illegal and unlawful, the petitioner is not entitled to be reinstated in service and payment of back benefits.
2. The necessary facts for the disposal of this petition are that the petitioner was working as Area Manager in the State Life Insurance Corporation of Pakistan when on 18th September, 1984, his services were terminated by the respondent purportedly under Regulation No.22(2) of the State Life Employees (Services) Regulations 1972. The petitioner challenged the validity of this order alleging that it was unlawful, illegal, void and without jurisdiction. The suit was decreed by the trial Court in favour of the petitioner on 26th April, 1987. Aggrieved, the respondent filed an appeal which was accepted by the Additional District Judge, Faisalabad on 5th October, 1988; who held the suit of the petitioner to be not maintainable in view of the principle of Master and Servant. This judgment and decree of the Additional District Judge was challenged by the petitioner by filing civil revision No.55-D of 1989 which was accepted by this Court on 22nd of May, 1989 holding that as the services of the petitioner were governed by the statutory rules of service, the principle of Master and Servant was not applicable. As the Additional District Judge had not decided the case on merits, the appeal of the respondent was remanded for decision afresh.
3. In the post remand proceedings the Additional District Judge dismissed the appeal filed by the respondent holding that the order of the termination of service was illegal and unlawful. However in the ultimating para of his judgment it was observed that:- "Before parting with this judgment however, it is clarified that setting aside of order dated 18.9.1984 of appellant is not to be construed that respondent is re-instated in service with all back fringe benefits of his pay. However, if appellant after holding inquiry against respondent regarding his performance of duties relating to period for which services of respondent were dispensed with, comes to conclusion that performance of respondent was satisfactory then case of respondent for retention in service can be considered by appellant." these observations have been assailed in this petition for revision.
4. The learned counsel for the petitioner contended that the natural consequences of the declaration that the services of the petitioner was illegal and unlawful was his reinstatement in service and the payment of back benefits. It was further argued that the petitioner had filed an application for amendment in the relief clause of the plaint so as to pray for a declaration that the petitioner continues to be in service of the respondent and is entitled to consequential benefits. The grievance raised is that this application was not decided by the Additional District Judge.
Syed Sajjad, Advocate, the learned counsel for the respondent does not dispute that the application filed by the petitioner was not disposed of by the Additional District Judge but he states that it was not pressed. On merits, it was argued by the learned counsel that as the petitioner had only prayed for a simple declaration that the order of termination wa$ void, the Additional District Judge was justified in making the observation complained of.
5. From the record it is evident that the application for amendment of the plaint filed by the petitioner before the Additional District Judge escaped his attention and still remains undecided.
There is nothing on the record to support the contention of the learned counsel for the respondent that the application was not pressed. Had it been so, the Additional District Judge would have recorded some order in this regard but no such order appears in the file. In this view of the matter there is no option but to remand the matter to the Additional District Judge.
In view of what has been stated above, this petition is accepted, the judgment and decree of the Additional District Judge dated 5th October, 1988 is set-aside with the result that the appeal filed by the respondent shall be deemed to be still pending before him and he shall now proceed to decide the appeal as well as application under Order 6 rule 17 C.P.C, filed by the petitioner.
As the dispute arises out of a service matter, and remained pending in different Courts, it is directed that the appeal shall be decided by the Additional District Judge within to months from today without fail. The compliance of this order shall be reported to this court without fail.