' ABDUL HAMEED KHAN KHATTAK, (MEMBER).---This appeal is directed against the order dated 25-3- 1996 whereby services of the appellant were terminated under rule 15 of HBL (Staff) Service Rules, 1981 and he was to be paid 3 months' substantive pay in lieu of notice as required under the said rule.
2. Brief facts are that the appellant joined the respondents' Bank as Stenographer/Typist w,e,f, 1-7- 1971 whereafter he was promoted as Officer Grade-III on 1-1-1994 but the impugned order was issued on 25-3-1996 by the respondents which is reproduced as under:-- "Dear Sir, ' It has been reported by the D.S.P. Special Branch, that you were arrested on 25-4-1995 in Case No,34/95/U/S.3(6)4 of Pakistan Control of Entry Act, 1952 being an Indian National illegally staying in Pakistan.
' In view of the above, the Competent Authority has decided to terminate your services as Termination Simplicitor, under rule 15 of the HBL (Staff) Service Rules, 1981, with immediate effect.
You will be paid three months' substantive pay in lieu of notice as required under the said Rules.
' We reserved all our rights to recover Bank's dues and other liabilities, if any, either from you or from your Guarantor."
3. He preferred grievance notice on 24-6-1996 (Annexure-B) which remained unresponded thus thereafter he moved the Labour 'Court under section 25-A of I.R.O., 1969 those proceedings abated on 6-8-1997 (Annexure-D) in view of insertion of section 2-A in the Service Tribunals Act,. 1973 on 10- 7-1997 whereafter he preferred Service Appeal No,348(K) of 1997 before this Tribunal which was dismissed in limine on 23-10-1997 A. (Annexure-E) on the point of jurisdiction. He did not assail the said order of this Tribunal before the Honourable Supreme Court rather he chose to prefer appeal before Sindh Labour Appellate. Tribunal which also abated on 26-9-1998 for want of jurisdiction (Annexure-F) and lastly the appellant preferred present Appeal bearing No,1673(K) of 1998 on 17- 10-1998 wherein he assailed the impugned order on the grounds that 'no show-cause notice, charge-sheet was issued nor any inquiry was conducted.
4. The appeal was contested by the respondents by 'filing parawise comments by raising preliminary objections of the same being barred by time, incompetent/not maintainable. On factual side it was maintained that appellant was not a Pakistani National rather he was a citizen of India and had procured his service in the respondents-Bank fraudulently/by misrepresentation, in connection with which a criminal case was registered, against the appellant under section 3(6)
(4) of Pakistan Control of Entry Act, 1952 and the appellant was sent to jail after being arrested by the police and as he was found absent after April, 1995 till passing of the impugned order, his services were rightly terminated.
5. Arguments heard and record perused.
6. The learned counsel for the respondents strenuously argued that the present appeal was barred under the doctrine of res judicata/estoppel, as admittedly his earlier Appeal bearing No,348(K) of 1997 was dismissed by this Tribunal on 23-10-1997,. The appellant did not assail the same before the Supreme Court rather resorted to bringing of an appeal before the Labour Appellate Tribunal against the order of abatement passed by Labour Court, hence the order dated 23-10-1997 attained finality and was binding on the parties being a judgment in personam and he put reliance on the rule enunciated in PLD 1987 SC 145.
7. The learned counsel for the appellant, on the contrary, maintained that as the judgment dated 23-10-1997 of this Tribunal was not upon the merits of the appeal rather it was a technical knock out on the point of jurisdiction hence it was not hit by the principle of estoppel/res judicata.
8. We do not feel impressed by this contention of the learned counsel for the appellant as it was inter alia held in PLD 1987 SC 145 as under:-- "If a person was a party then the judgment of the competent Court as a plea is a bar or as an evidence conclusive between the same parties upon the same matter directly in question in another Court or in another action between the same parties in the same Court. In legal parlance this bar is known as estoppel by judgment or res judicata. A decision once made in a case by the highest Court empowered to pass upon it, is conclusive upon the parties to the controversy and their privies, who are not allowed afterwards to revive it in a new proceedings for the purpose of raising the same or any other questions. The matter in controversy has become res judicata, a thing definitely settled by judicial decision, and the judgment of the Court imports absolute verity.
Whatever the question involved, the rule of conclusiveness to this extent is one of the most inflexible principles of the law, insomuch that even if it were subsequently held by the Courts that decision in the particular case was erroneous, such holding would not authorize the reopening of old controversy in order that the final conclusion might be applied thereto. It matter nothing whether the error, if any, was an error on a point of fact or on a point of law. The question whether decision is correct or erroneous has no bearing upon the question whether it operates or does not operate as res judicata. What is made conclusive between the parties in view of provisions of section 11 of C.P.C., is the decision of the Court and that the reasoning of the Court is not necessarily the same thing as its decision. Where grievance was an individual grievance, proceedings were actions in personam against definite persons arrayed as respondents and determination of a judgment in personam. Where Such determination was not set aside in appeal, judgment remained in field irrespective of the equality of determination as to whether it was incorrect on question of fact or law. Rights of parties thereunder assumed finality and took the colour of a 'past and closed transaction'. Fact that Supreme Court in an appeal against the judgment of High Court set aside same judgment in another writ petition would not reopen concluded rights of the parties under decision of High Court against which no appeal was filed nor could appellants who were respondents in writ petition avail the benefit of law laid down by the Supreme Court. Judgment in appeal was operative as from the date it was announced and it did not have the effect of re- opening the rights of the parties concluded finally under the High Court judgment."
9. On the strength of above pronouncement of the Honourable Supreme Court we do not feel any hesitation in holding that the present appeal is hit by the doctrine of res judicata/estoppel by judgment. Even otherwise this Tribunal has no power to review its earlier judgment, dated 23-10- 1997 as the right to claim review of any decisions/judgment of a Tribunal or Court of law, like the right to appeal is a substantive right and not a mere matter of procedure unless right of review has been conferred by law which admittedly is not conferred on this Tribunal, and reliance in this regard is placed on PLD 1970 SC 1.
10. As a corollary to the above legal point touching upon res-judicata, the present appeal is hopelessly time-barred as the impugned order was passed on 25-3-1996, the proceedings before the Labour Court abated on 6-8-1997 and the earlier appeal was dismissed by this Tribunal on 23- 10-1997 which was not further assailed before the Supreme Court and the 'present appeal having been instituted on 17-10-1998 could not, under any strength of imagination, be held to be within time. No doubt application for condonation of the delay has been made but we do not feel impressed by the reasons pressed therein hence the same is turned down and the appeal is held to be time-barred.
11. As regards the merits, the contention that issuance of show-cause notice/charge-sheet, holding of inquiry was necessary, does not seem to be of any substance as admittedly appellant was arrested on 25-4-1995 in a case No,34 of 1995 under section 3(6)(4) of Pakistan Control of Entry Act, 1952 and challaned on the allegation that the appellant was an Indian National and was overstaying in Pakistan. His arrest in that case was not denied by the appellant at any stage and even during the course of arguments. At the time of his employment. In the respondents-Bank; the required pro forma which he filled in reveals that his place of birth is given as Bombay (India), mother tongue as Gujrati. He had shown himself to be speaking Urdu; English, Gujrati, Hindi (Annexure-A with parawise comments). As per Annexure-B, copy of Secondary School Certificate it is clear that he passed the said Examination (Matric) from Baroda of (India) in March, 1968. On oral query he stated before us that he stayed in India illegally for two years in order to study in 9th and 10th class and had reached India via the then East Pakistan. He was unable to produce even now any record pertaining to having obtained any passport or visa from Pakistan in order to travel to India. Though he asserted as having been born in Karachi but when was confronted as to whether he would be able to produce any documentary proof about this assertion, his reply was in negative. The copy of F.I.R. In aforementioned criminal case is Annexure-D with the comments. We are thus satisfied that his services were rightly terminated as he had obtained service in respondents' Bank on presentation of false documents by showing himself to be a Pakistani National and further he had remained absent since April, 1995 till passing of the impugned order on 25-3-1996 and no application fur leave was submitted by him. Thus, there was no need to hold a full-fledged inquiry or to resort to other proceedings and the impugned order does not suffer from any illegality.
12. For all aforesaid reasons, the appeal cannot succeed both on legal and factual plane, hence the same is dismissed by leaving the parties to bear their own costs.
13. Copies of this judgment to be sent to the parties through registered mail.