JUDGMENT MUMTAZ ALI MIRZA, J. - This Constitution petition seeks to call in question the judgment and decree dated 16.5.1998 passed by the learned Addl. District Judge, Rawalpindi, whereby he held the appeal tiled by the Pakistan International Airlines Corporation against the judgment and decree of the learned Trial Court dated 30.11.1992 directing re-instatement of respondent No. 3 into service tis having abated.
2. The facts forming the background of the instant Constitution petitions are that respondent No. 3 was employed in the PIAC in Pay Group III(i). During the course of his service he was directed to be transferred to Karachi. He failed to resume his duty at Karachi pursuant to the orders of his transfer whereupon a show-cause notice was served on him by the petitioner-Corporation. Respondent No. 3 upon the show-cause notice having been served on him by the petitioner-Corporation as aforesaid made a grievance of the same before the National Industrial Relation Commission on the ground that he was an office bearer of the trade union and that the act of his transfer to Karachi and the show-cause notice issued to him by the Corporation for his failure to resume his duty at Karachi were acts of victimization and constituted unfair labour practice. On the interference of the NIRC, the Corporation withdraw the show-cause notice issued to respondent No. 3. In the meantime Martial Law Regulation No. 52 was issued pursuant whereto several employees of the Corporation were removed from service. Respondent No. 3 was among the employees of the Corporation so removed. The Government of Pakistan, however, in 1989 constituted a Federal Review Board to review the cases of the employees removed from various services on account of political victimization. The case of respondent No. 3 fell for consideration before the said Review Board. As a result of the final order passed by the Board, respondent No. 3 was directed to be re- employed by the PIAC. The order directing his reemployment in the Corporation notwithstanding he opted to be paid the compensation by the Corporation in lieu of his re-employment with the Corporation. Accordingly his plea of payment of compensation was accepted and he was paid by the Corporation an amount of Rs. 1,59,63.1/- by way of compensation in lieu of re-employment. He had before the institution of proceedings before the Review Board instituted a civil suit in the Civil Court seeking re-instatement into service. Notwithstanding the direction of the Review Board for the re-employment of respondent No. 3 and his acceptance of compensation of Rs. 1,59,631/- as a compensation in lieu of re-employment respondent No. 3 continued with his civil suit which was decreed in his favour by the learned Civil Judge seized of the same vide his judgment dated 30.11.1992. The Pakistan International Airlines Corporation feeling aggrieved of the judgment and decree directing reinstatement of respondent No. 3 in service of the Corporation, lilted the matter up in appeal before the learned District Judge, Rawalpindi, which appellant came to he assigned to the learned Addl. District Judge, Rawalpindi Mr. Sarfraz Khan Jhawari, which was dismissed by him vide his judgment and decreed dated 16.5.1998 holding the appeal filed by the Corporation against the judgment and decree of the learned Trial Court as having abated on account of the enactment of Section 2-A in the Service Tribunals Act, 1973, whereby a right if appeal had been conferred on the employees of the Corporation established by or under the authority of any Federal law. It is against this last-mentioned judgment and decree of the learned Addl. District Judge that the present Constitution petition is directed.
3. Mr. Mushtaq Hussain Bhatti, learned counsel for the petitioner- corporation appeal ing in support of the instant Constitution petition has raised the following contentions:-
(i) that the case of removal of respondent No. 3 pursuant to the MLR 52 had been taken cognizance of by the Federal Review Board constituted by the Federal Government in 1989. As a result of the final order passed by the said Board, respondent No. 3 was directed to be re-employed by the Corporation. The order directing his re-employment the Federal Review Board notwithstanding respondent No. 3 opted to be paid compensation in lieu of re-employment and accordingly was paid an amount of Rs, 1,59,631/- by way of compensation. Having opted for payment of compensation in lieu of re-employment with the Corporation and having received the compensation of Rs. 1,59,631/-, respondent No. 3 could not continue with his civil suit before the Civil Court as his grievance resulting from his removal from sendee stood redressed; i.e) that the service of respondent No. 3 with the petitioner- Corporation was governed by law of master and servant. This being son, even if assuming for the sake of argument, that the removal from service of respondent No. 3 was illegal, the only remedy open to him at law was to sue for damages for his wrongful dismissal and not to institute a suit seeking re instatement and that viewed in this perspective the decree passed by the learned Civil Judge directing his re-instatement was wholly illegal, void and without jurisdiction; (i.e) that the learned Add!: District Judge acted wholly illegally in brushing aside the appeal filed by the petitioner-Corporation before him by holding the same to have abated. The learned Addl.
District Judge fell into a serious error of law by not attending to the contentions raised before him by the Corporation that after the acceptance by respondent No. 3 of the afore stated amount of compensation of Rs. 1,59,631/- in. Lieu of reemployment with the Corporation, there was no occasion for the learned Civil Judge to direct his re-instatement with the Corporation.
4. Mr. Tanvir Bashir Ansari, learned counsel appearing on behalf of respondent No. 3 controverted the above submissions of the learned counsel for the petitioner-Corporation and supported the judgment and decree passed by the learned Addl. District Judge, Rawalpindi, on the ground that on the enactment of Section 2-A in the Service Tribunals Act, 1973, the petitioner-Corporation if it had felt aggrieved of the judgment and decree of the learned Civil Judge ought to have sought redress of its grievance by filing an appeal before the Federal Service Tribunal and that the appeal preferred by the Corporation against the judgment and decree of the learned Trial Court had for the said reason and on the enactment of the aforesaid Section 2-A stood abated.
5. I have considered and evaluated the respective submissions of the learned counsel for the parties and have gone through the record placed before me. Mr. Tanvir Bashir Ansari, learned counsel for respondent No. 3 has not controverted the position taken by the petitioner-Corporation that respondent No. 3 notwithstanding the direction of the Federal Review Board for his re- employment with the petitioner-Corporation had opted to receive the compensation in lieu of re- employment and that in point of fact had received a compensation amount of Rs. 1.59.631/-.
Having so opted and received the compensation in lieu of re-employment with the petitioner- Corporation, respondent No. 3 could not continue with his suit before the learned Trial Court for his re-instatement. Even otherwise the relationship between respondent No. 3 and the petitioner- Corporation being governed by the law of master and servant, respondent No. 3 if at all felt aggrieved of his removal from service being wrongful could maintain only a suit for damages but could not ask for re-instatement. For the view which I take 1 am fortified by the judgments reported as Razi-ud-Din Vs. Chairman, Pakistan International Airlines Corporation and 2 others (PLD 1992 SC 531), Habib Bank Limited Vs. Saeed-ul-Hassan (1998 SCMR page 60) and Anwar Hussain Kv. The Agricultural Development Bank of Pakistan and others (1992 SCMR 1112).
6. The decree passed by the learned Civil Judge directing reinstatement of respondent No. 3 in view of the judgments referred to hereinabove was a nullity. The learned Addl. District Judge failed to consider the afore stated valid questions raised before him by the petitioner- Corporation that respondent No. 3 had received the compensation in lieu of re-employment could not turn around and seek re-instatement and that his removal even if being wrongful he could ask for damages from the petitioner-Corporation but could not sue for his re-instatement. The points raised by the learned counsel for the petitioner-Corporation are not without force. The decree passed by the learned Trial Court in favour of respondent No. 3 directing his re-instatement was wholly illegal and without jurisdiction. The service of respondent No. 3 being governed by non-statutory rules, the only remedy available to him even if the removal of respondent No. 3 was held to be illegal was only to sue for damages and not for re-instatement.
7, The judgment and decree passed by the learned Addl. District Judge suffered from the same legal infirmity and for the same reason is also set aside and the instant Constitution petition is accepted with no order as to costs.