MUHAMMAD RAZA KHAN (MEMBER).---This is Miscellaneous Petition whereby the petitioner has asked 1,1r the setting aside of a judgment of this Tribunal dated 8-8-1996 in Appeal No, 15(K) of 1996.
The present petition has been filed under section 12(2) C.P.C. with the prayer that said judgment may be recalled and cancelled and the appeal of the appellant in Appeal No, 15(K) of 1996 may be dismissed under Order 7, Rule 11, C.P.C.
2. The background of the Miscellaneous Petition is that one Mr. Muhkam Din (hereinafter called as the appellant was an employee of N.L.C. working as a Chargeman (B-12). Vide an order dated 23- 12-1993 his services were terminated, being surplus in the establishment of the said organization.
Since the appellant had served for almost 13 years (from 1980 to 1993 when the said impugned order was passed), therefore, the appellant requested the department for the grant of pensionary benefits on the basis of his continuous service in the department for more than 10 years. This departmental appeal was rejected by the department finally vide order dated 10-6-1996 and within a period of 19 days, thereafter, the Appeal No,15(K) of 1996 was filed on 29-6-1996.
3. The case was fixed for regular hearing and the respondent department was asked to file written objections which was complied by the respondent-department on 31-7-1996. However, the written objections were termed as an application "under Article 199(3) read with Order 7, Rule 11, C.P.C." In the said application/objections, the respondent-department has stated that National Logistic Cell (N.L.C.) was a part of regular Armed Forces and certain civilian personnel were declared surplus under the instructions of the Government of Pakistan and 102 such surplus persons had filed the appeals in the High Court of Sindh, Labour Court of Karachi and Labour Appellate Tribunal of Sindh but all the said Courts did not provide the relief to the appellant and others, in view of Article 199(3) read with Order 7, Rule 1 I C.P.C. and, therefore, it was stated that the service appeal filed before this Tribunal may also be similarly dismissed for want of jurisdiction.
4. Along with this application/objections dated 31-7-1996, a lot of documents, extracts from the notifications and the extracts from the judgments were annexed. The case was fixed for regular hearing on 7-8-1996, and it was finally heard and judgment was reserved. Thereafter, in addition to the objections/documents filed on 31-7-1996, and the arguments dated 7-8-1996, the supplementary statement was also filed on 8-8-199. After considering all the said arguments and documents, this Tribunal accepted the appeal of the appellant vide judgment dated 8-8-1996 wherein the following points were specially considered and discussed:--
(a) The application of the relevant provisions of the Constitution and the Civil Servants Act, 1973.
(b) The relevant decisions of the High Courts and the Supreme Court in this regard.
(c) The question whether the appellant was a workman, a civil servant or a member of the Armed Forces.
(d) What type of rules shall be applicable in the case of the appellant.
5. In view of all the said considerations, the appeal was accepted primarily on the basis of the judgment of Supreme Court in Civil Appeal No,574 of 1992, (Mir Ahmed Khan v. Secretary, Government of Pakistan and others) decided on 7-2-1994 regarding the grant of pensionary benefits to the temporary civil servants continuing in service without any break for a period of more than 10 years and thus in accordance with section 371-A of the Civil Service Regulation (C.S.R.) the appellant was held entitled to the pensionary benefits.
6. Instead of filing a proper appeal under Article 212 of the Constitution to the Supreme Court of Pakistan, the respondent-department filed the present petition under section 12(2) of C.P.C. on 27- 8-1996. An application under section 12(2) of the C.P.C. is maintainable only when a decree or judgment is obtained from a judicial forum by a party on the basis of some misrepresentation or fraud or concealment of facts regarding want of jurisdiction. As, apparent from the above narration, no misinterpretation of facts or law on behalf of any party has resulted in the judgment nor there had been any fraud or concealment practised on the Tribunal. The points urged on behalf of the respondent department were thoroughly considered and by repelling the arguments, the Tribunal was of the opinion that the appellant was a civil servant and, therefore, this Tribunal had the jurisdiction to entertain the service appeal and to adjudicate the same. As analysed hereinbefore, all the points were raised and appreciated. If there was any error in the judgments, as supposed by the petitioner, the appropriate remedy for the petitioner was to have filed the appeal before the Appellate Court for getting the orders of the Tribunal reversed. The appeal against the judgment of the Tribunal lies to the Supreme Court. The provision for review of judgment by Tribunal is not available in the statute except for correction of typographical or arithmetical mistakes under Rule 22 of the Service Tribunals (Procedure) Rules, 1974 The application under section 12(2), C.P.C. is never maintainable in the form of an appeal against the findings of the same forum. This subsection was incorporated in the law in 1980 by the amendment of the Code of Civil Procedure to avoid multiplicity of suits/appeals. Previously any person, who was not --a party to a suit, was entitled to file a fresh one if the judgment was the result of any misrepresentation or concealment of certain matters. So, by amendment it was provided that instead of filing fresh appeal/suit, the remedy would be available in the form of an application under section 12(2), C.P.C.
However, it is nowhere allowed to avail such remedy as a substitute for the appeal, by any of the parties already having the opportunity to present its view points.
7. All the points that have been raised in the present petition and supplemented by miscellaneous affidavits, counter-affidavits, scandalous applications and references to the Constitutional petitions (in the form of writ of quo waranto) and requests for indefinite adjournment of the case etc. etc. amount to nothing but to misuse the process of law and to delay the implementation of a judgment given in favour of the appellant whereby he was held entitled to the pensioner benefits.
8. We have listened to the lengthy arguments of the learned counsel/Law Officer on the petition.
We have not been convinced about the maintainability of the petition under section 12(2) of the C.P.C. The basic ingredients of the said section are not available in the facts of this case and even remotely the principles of the said section cannot be attracted because this would amount to sitting over the judgment of the same Tribunal by itself. It is reiterated that there has been no fraud or misinterpretation on concealment of any point about the lack of jurisdiction of this Tribunal and the decision, was the result of independent application of mind and interpretation of the legal provisions. Hence, we hold that this petition is not maintainable.
9. In the petition it has been stated that the appeal was to be rejected in accordance with the principle of Order 7, Rule 11, C.P.C. Such a prayer was already made in the comments filed prior to the regular hearing of appeal and the same was again stressed at the bar as well as in the supplementary statement but since this Tribunal has independently taken the view that the appeal was maintainable and the Tribunal has jurisdiction, therefore, the said objection stood overruled.
Had the petition/department any grievance against the findings of the Tribunal in this regard, the option of appeal was available under the Constitution. However, an application under section 12(2), C.P.C. cannot at all be made to reopen the arguments and points agitated earlier during the regular hearing of the case and adjudicate upon.
10.The petitioner tried to differentiate between the general law and the special law and thereby he argued that the decision taken by the Defense Organization were of the nature of special law and, therefore, the provision of general law will be excluded. This argument practically goes against the cause of the petitioner. The Service Tribunals Act, and the Civil Servants Act, being the special laws legislated under Article 212 of the Constitution,- therefore, these special laws will have the effect notwithstanding any general instructions or suppositions. As already stated in the judgment dated 8-8-1996, the appellant was a civil servant and, therefore, the special law being Civil Servants Act, Service Tribunals Act and Civil Servants Regulations shall have preferential enforcement. The repeated reference to the judgment of the Supreme Court was irrelevant and such judgments are distinguishable because the observations were made on the amendment in the Pakistan Rangers Ordinance whereby the jurisdiction of all the Courts and Tribunals was specifically excluded in certain matter with regard to the specific organization of Rangers. In any case if the jurisdiction had been assumed on misinterpretation or wrong assumptions, the remedy would be available to the petitioner in the form of an appeal to the Supreme Court and not by way of an application under section 12(2), C.P.C.
11.In the series of objections raised by the petitioner, after the pronouncement of the judgment in the said appeal, as referred to herein-above, the appellant had also objected to the issue of the notice to the other parties. The spirit of section 12(2) of the C.P.C. itself requires that if judgment was the result of fraud or misrepresentation the regular proceedings will have to be initiated for the disposal of the matter like a regular civil suit or regular appeal. Thus, a notice to the other party was a must but the said process was also objected to and the right to defence, appears to have been resisted by force and coercion The legal issues are to be pleaded, argued, interpreted and adjudicated upon. Further legal remedies are to be sought within the prescribed boundaries of decency, decorum and by a behavior suitable to the responsible officers of the State and the officers of the Courts. Legal aspects apart, matters are not to be agitated to the extent of personal level. The sentiments cannot be personified in purely legal issues Scandalisation, threats, irresponsible remarks and attacks of personal nature by clear misreading of the word of law not only speaks of sentimentalism and misconceptions but also demonstrate the capability to interpret the provisions of law and the findings of judicial nature.
12. With these observations we hold that the present petition is misconceived, fallacious, malicious and incompetent which is hereby rejected with costs.