MIAN MUHAMMAD AJMAL, J.- Leave to appeal is sought against the judgment of the Lahore High Court, Rawalpindi Bench dated 11.2.1999 whereby Writ Petition No. 1168/1998 filed by the respondent was accepted, the judgment and decree of the learned Addl. District Judge, Rawalpindi dated 16.5.1998 was set aside and the judgment and decree of the trial Court dated 30.11.1992 passed in favour of the petitioner was declared to be null and void.
2. Brief facts of the case are that the petitioner was employed in Pakistan International Airlines Corporation (hereinafter called the PIAC) in Group HI (i). On 6.5.1980, he was promoted to pay group III (ii) subject to his taking-up of new assignment at Karachi. He was released cm 18.5.1980 for reporting at Karachi but he did not comply with the transfer order alleging it to be malicious. On 11.2.1981, when the petitioner. Was on sick leave from 5.2.1981 to 27.2.1981, another release order was issued, followed by a show-cause notice dated 12.2.1981 for refusing to accept the release order, which allegedly constituted misconduct. The petitioner filed a petition against the said show-cause notice before N.I.R.C., on which the Member N.I.R.C. Allowed the petitioner to perform his duties at Rawalpindi, and in view thereof the petitioner was directed to report for duty. On 15.8.1981 Martial Law Regulation 52 was promulgated to streamline and regulate the administrative and financial affairs of the PIAC and to make it a viable service. Pursuant thereto a fresh show-cause notice under para 4(1) of MLR 52 was issued to the petitioner on 26.9.1981, which was duly replied by him but it was not found satisfactory, and thus he was dismissed from service on 21.11.1981. The petitioner instituted a civil suit alleging that the dismissal order was not issued by the competent authority and that it was beyond the scope of MLR 52 and prayed that the same be declared illegal and as a consequential relief, he sought reinstatement in service. The respondent in its written statement asserted that the suit was time-barred and barred by Article 270-A of the Constitution. It was further asserted that jurisdiction of the Civil Court was barred and the suit was not maintainable under Section 42 of the Specific Relief Act and was barred by Section 21 of the Specific Relief Act. The learned Civil Judge, on divergent pleadings of the parties framed issues and the parties led evidence in support of their respective pleas.
3. During the pendency of the suit, the petitioner filed a review petition before the Review Board constituted vide Labour Division Notification No. LR.17(7)/88, which was allowed with the direction to the respondent to re-employ the petitioner and allow him the same seniority which he would have enjoyed if he had not been dismissed. Accordingly a letter of re-employment was issued to him but he opted to be paid compensation by the P.I.A.C. In lieu of his re-employment. His application dated 19.8.1990 for payment of compensation was accepted and he was paid an amount of Rs.1,59,631/- as ex gratia payment on 4.12.1990. Thereafter, the learned Civil Judge, Rawalpindi vide his judgment dated 30.11.1992 decreed the suit. The appeal filed by the respondent was dismissed on 16.5.1998 being abated in view of provisions of Section 2-A of the Service Tribunals (Amendment) Act, 1997, read with Section 6 of the Service Tribunals Act, 1973. The respondent called in question the vires of the judgments of the Courts below by instituting Writ Petition No. 1168/1998, which was accepted vide judgment impugned herein.
4. Learned counsel for the petitioner contended that after addition of Section 2-A in the Service Tribunals Act, 1973 the Constitutional Petition filed by the PIAC was not maintainable. He further argued that the dismissal of the petitioner was in violation of MLR 52 as dismissal order was neither issued by the competent authority i.e. The Board of Directors nor it was so authorised by the Federal Government to pass such an order.
5. On the other hand, learned counsel for the caveator submitted that before the promulgation of MLR 52 of 1981 the petitioner was served with a show-cause notice for misconduct due to his refusal to receive the letter containing his release order dated 11.2.1981. The petitioner assailed the said release order before the member NIRC who vide his order dated 7.7.1981 allowed him to perform duties at the place of his posting before the transfer order dated 6.5.1980 was issued. In view thereof, he was directed by the PIAC to report for duty at Rawalpindi with intermediate effect. After the promulgation of MLR 52 of 1981 he was again server with a show-cause notice on 26.9.1981 under the said MLR for misconduct which reads as follows:-- "Consequent upon the information that prima facie cast of misconduct exists against you, Mr. Muhammad Din, P-29180, Assistant/Typist are hereby charged with the following misconduct:- You were transferred from Rawalpindi to Karachi on 6th May, 1980, but since you were an office bearer of the then CBA you did not comply with the orders of your transfer and managed to stay at Rawalpindi.
You were finally released of your assignment at Rawalpindi on 11th February, 1981, but you refused to accept the order of transfer. You indulged in vexatious litigation against the Corporation but all your cases from holding your transfer in abeyance were dismissed. You have been instructed from time to time to report for duty at Karachi but you have wilfully disobeyed the lawful and reasonable orders of the management, which constitutes misconduct. The gravity of your misconduct is compounded by the fact that according to the terms and conditions of your service you are hound to serve PIA at any station inside or outside Pakistan but in spite of this covenant you are persisting in your wilful disobedience of management's orders.
Now, therefore, in view of the above fact and the accusations levelled against you, it is proposed to impose upon you the penalty of dismissal from service under the provisions of MLR 52, dated 15th August, 1981.
You are, therefore, required to show-cause within seven (7) days of the receipt of this notice as to why disciplinary action as proposed above should not be taken against you."
The petitioner submitted reply to the aforesaid show-cause notice which was rot found satisfactory by the Chairman PIAC. Consequently, he was dismissed from service vide his order dated 21.9.1981.
A review petition was fled before the Secretary General Defence which came-up before the Review Board who held the order of dismissal of the petitioner dated 21.111981 to be void ab initio and recommended to the Federal Government (Ministry of Defence, Aviation Division) to direct the PIAC to re-employ him at the post with the same seniority which he would have enjoys if his services had not been terminated. In compliance with this order he was issued an offer letter of re- employment in the PIAC and he was also given an option that in case he is not in a position to avail the offer , the ,PIAC would offer a lumps= compensation in lieu of the reemployment. The petitioner in the first instance, accepted the offer of reemployment vide his joining report dated 28.3.1990.
However, on 19.8.1990 he applied for the payment of compensatory amount as provided in para 5 of the offer letter which application was granted and he was paid an amount of Rs.1,59,631/- which was received by him without any protest.
6. Insofar as the objection to the maintainability of the writ petition is concerned, we do not find any substance in it, for, firstly that his removal took place under MLR 52 and a forum created under the said Regulation, on his review application, granted him relief of re-employment and secondly, that after the acceptance of his review petition by the Review Board, the civil suit filed by him was no longer maintainable as relief had been allowed to him by the special forum. Moreover, the Civil Court could not reinstate him as the relationship between the PIAC and the petitioner was that of the master and servant and the learned High Court after taking into consideration the case-law on the subject rightly held that the Civil Court had no jurisdiction to reinstate the petitioner with back benefits, as prayed by him. The learned High Court in the circumstances, in its Constitutional jurisdiction could see the legality and propriety of the judgments passed by the Courts of civil jurisdiction. It may be noted that though the PIAC in compliance with the direction of the Review Board reemployed the petitioner vide letter dated 31.1.1990 and he while accepting the same submitted joining report on 28.3.1990 yet he on 19.8.1990 applied for the payment of compensatory amount in lieu of re-employment as he according to him, was not in a position to continue the service. His application for payment of compensatory amount was accepted and he was paid an amount of Rs.1.59,631/-. After the receipt of the ex gratia payment/compensatory amount he was estopped to continue the litigation against the PIAC. As far as the contention that dismissal order was not in confirmity with MLR 52 as it was not passed by the competent authority, it has no force for the two-told reasons, firstly, that it was never agitated earlier before the Review Board and as such, it cannot be allowed to be taken here for the first time and secondly, after the receipt of ex gratia payment by the petitioner, he is estopped to raise such objection at this stage.
7: Consequently, we find no merit in this petition and thus it is dismissed and leave is refused.