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Petitioner: ABDUL QAYYUM VS Respondent: DIRECTOR GENERAL, ANTI-CORRUPTION AJK, MUZAFFARABADHonorable Justice CHAUDHRY MUHAMMAD TAJMuhammad Aslam Rathore,Abdul Rashid Karnahi
2005 P L C (C
2005 P L C (C.S.) 1212
[Supreme Court (Azad J&K)]
Present: Syed Manzoor Hussain Gilani and Chaudhary Muhammad Taj, JJ
ABDUL QAYYUM
Versus
DIRECTOR GENERAL, ANTI-CORRUPTION AJK, MUZAFFARABAD and another
Civil Appeal No.129 of 2004, decided on 20th May, 2005.
(On appeal from the judgment of the Service Tribunal dated 22-6-2004 in Service Appeal No.379 of 2003).
Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)---
----S. 4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 47(3)--Voluntary retirement---Appellant who, himself moved an application for his retirement on ground of domestic problems, was retired from service---Appellant received all his benefits including pension etc. permissible under law---Subsequently appellant filed appeal before Service Tribunal challenging his retirement alleging that application for retirement was moved by him under duress and threat of dire consequences---Appeal filed by appellant having been dismissed by Service Tribunal, he had filed appeal before Supreme Court against judgment of Service Tribunal---Validity---Service Tribunal had dismissed appeal filed by appellant against order of his retirement after proper appreciation of evidence--Contention of appellant that he was forced to submit application for retirement under threats and dire consequences could not be accepted as he could have been breed for moving such application, but not subsequently for receiving emoluments and reporting matter to higher Authorities---Against a written document there must be a very strong oral evidence to disbelieve, which was missing in the case---Party who himself requested and invited an order, alter taking lull benefits, could not turn round and challenge the legality of the order--Appellant's conduct did not allow him to raise question of duress and coercion alter having agreed to a position and then turning round and filing said cause before Service Tribunal---Appeal before Supreme Court against judgment of Service Tribunal being meritless was dismissed.
Abdul Qadir v. Abdul Karim and 4 others 1999 PLC (C.S.) 917, Muhammad Shari!' v. Muhammad Manzoor and others 1993 SCR 92; Ghulam Mustafa v. Azad Government and 2 others 1996 MLD 355; S.M. Mkudam Muhammad v. T. V. Muhammad Sheikh Abdul Kadir and another AIR 1936 Mad. 856; Muhammad Yousul v. The Additional Deputy Commissioner (Collector), Peshawar and others 1972 SCMR 613 and Maharaja Dhiraj Sir Rameshwar Singh Bahadur v. Hitendra Singh AIR 1936 Sind 99 ref.
Muhammad Aslam Rathore, Advocate for Appellant
Abdul Rashid Karnahi, Advocate for Respondents.
Imdad Ali Mallick, Advocate for Respondent No.3.
Date of hearing: 13th April, 2005.
JUDGMENT
CHAUDHRY MUHAMMAD TAJ, J.---This appeal, by leave, is directed against the order passed by the Service Tribunal on 22-6-2004 whereby an appeal filed on behalf of the appellant was dismissed.
2. The facts, as disclosed, are that the appellant, an Assistant Sub-Inspector in the Police Department, was transferred to Anti-Corruption Department who moved through an application before the Director Anti Corruption Muzaffarabad for his retirement on the ground of domestic problems. The order of retirement was issued. The appellant received all benefits including pension etc., permissible under law. Thereafter, he filed a service appeal before the Service Tribunal challenging his retirement which was dismissed. Hence this appeal.
3. Mr. Muhammad Aslam Rathore, the learned counsel representing the appellant, raised following points in support of the appeal:---
(i) that the appellant who was initially inducted in the police department was subsequently transferred to Anti-Corruption Department where he was promoted as Assistant Sub-Inspector Due to the ailment of his site he was sanctioned 15 days leave and thereafter he applied for further leave to get his wife treated satisfactorily but was refused and the respondent abused him and also asked him to give application for retirement otherwise he will sent him to jail, The respondent directed him to write the application in his presence for the purpose in presence of eye-witnesses. That application was received under threat. The order of retirement was illegally passed on the application:
(ii) that two orders of retirement were passed which show the mala fide of the respondent;
(iii) the Service Tribunal has committed a grave illegality by dismissing the appeal It was elaborated that the Service Tribunal has decided against the settled principles of law and canons of justice by referring the police rules made applicable in the matter of the appellant; and
(iv) that the Director Anti-corruption was not competent to retire the appellant as he was neither his appointing authority nor could pass any order in this regard. The learned counsel referred to the following authorities in support of his assertions:--
1. Habibullah Constable No.121 v. Deputy Inspector General of Police Range, Muzaffarabad and another (Civil Appeal No.190 of 2002 decided on 8-6-2004) and
2. Amjad Hussain Khan v. Deputy Inspector General of Police Range, Muzaffarabad and another (Civil Appeal No. 172 of 2001 decided on 18-6-2004).
4. Mr. Abdul Rashid Karnahi, the learned counsel representing the opposite side, while controverting the arguments addressed on behalf of the appellant, contended that the appellant himself moved application, of issued his retirement order and thereafter received all benefits Including pension etc., therefore, he cannot be held aggrieved by any act which he himself invited. It was also argued that had he not asked for his retirement he would have not received the benefits and also moved the proper authority against it. The conduct of the appellant is such which does not deserve any indulgence by this Court. It was further argued that the respondent was competent to retire him. The learned counsel referred to a case reported as Abdul Qadir v. Abdul Karim and 4 others 1999 PLC (CS.) 947 in support of his assertions.
5. We have heard the arguments addressed by the learned counsel for the parties and also gone through the record. The appellant challenged his retirement order on the ground that the application for retirement was moved by him under duress and threats of dire consequences. It was claimed that he did not move any application seeking retirement with independent mind but he was threatened by the. respondent which forced him to submit the application. It was also forcefully argued that the respondent was not competent to pass any order on his application. It was Director General who could pass any order on any application moved in this regard, therefore, the order on the face of it is illegal and cannot be maintained in any way.
6. The Service Tribunal of Azad Jammu and Kashmir while dismissing the appeal held that conduct of the appellant is such that he is not entitled to any relief. According to the Tribunal the appellant is estopped by law to challenge the impugned order. The Service Tribunal also relied upon the authority of this Court titled Abdul Qadir v. Abdul Karim and 4 others (1999 PLC (C.S.) 947) where it was provided that the conduct for filing the application for retirement and thereafter receiving benefits would not allow him to turn round and challenge the legality of the order.
7. We have given careful consideration to the arguments addressed at bar. The appellant took his grievance before the Service Tribunal of Azad Jammu and Kashmir which had the opportunity of receiving evidence in light of the pleadings of the parties and thus arrived at a conclusion that the appellant himself applied for his retirement which was done at his request, therefore, he could not complain in this regard particularly in the' background that the appellant received pension and other benefits which shows that after receiving benefits he changed his mind by turning round which cannot be accepted at this stage. We do not find that the appraisal of the record was not properly made by the Service Tribunal. The evidence was appreciated in the legal fashion. We would like to add that this contention of the appellant that he was forced to submit application for retirement under the threats of dire consequences could not be accepted as he could have forced for moving the application but not subsequently for receiving the emoluments and reporting the matter to the higher authorities. Against a written document there must be a very strong oral evidence to disbelieve which we do not find in this case.
8. It is a settled proposition of law that a party who himself requested and invited an order, after taking full benefits cannot turn round and challenged the legality of the order. Reference in this regard may be made to a case reported as Abdul Qadir v. Abdul Karim and 4 others 1999 PLC (C.S.) 947 wherein similar circumstances it was held:--
"It was laid down by this Court that the conduct of the appellant was such that he could not be given any relief in respect of his retirement. It was also clearly laid down that having himself requested for retirement and having received a substantial amount of pensionary benefits he could not be allowed to turn round to demand reinstatement. These findings show that equity and justice were against the respondent. Clearly the order of reinstatement passed by the Prime Minister cannot be defended on the ground that it was just and equitable, when a contrary finding had been recorded by this Court. We may add that acquiescence and estoppel are two recognized grounds in presence of which jurisdiction based on equity cannot be exercised in favour of a litigant. A common example may. be found in the writ jurisdiction of the High Court which is equitable in nature and no relief is granted to a litigant if he himself is instrumental in the making of an order or if he acquiesces in it. He is not allowed to turn round and challenge it. Equitable jurisdiction cannot also be exercised in favour of a litigant with objectionable conduct. If any authority is needed on this point we may refer to the judgment of this Court reported as Muhammad Sharif v. Muhammad Manzoor and others (1993 SCR 92) and the case titled Ghulan Mustafa v. Azad Government and 2 others (1996 MLD 355)."
Similar view was expressed in a case titled S.M. Makudam Muhammad v. T.V. Muhammad Sheikh Abdul Kaffir and another (AIR 1936 Mad. 8561 in the following words:--
"Where a party invites the Court to adopt a procedure which is not contemplated by the Civil Procedure Code and is in fact a procedure extra curium curaie, he cannot afterwards turn round and say that the Court is to be blamed for adopting the very procedure which he invited the Court to follow. The doctrine of estoppel would apply to him. The judgment of the Court is in the nature of an arbiter's award, and as a general rule, no appeal from it would lie. Moreover where both the parties agree to the particular procedure being followed the decree passed in the suit must be deemed to be consent decree and as such it is not open to either of parties to appeal from it."
Another case which can be referred in support of the proposition is reported as Muhammad Yousuf v. The Additional Deputy Commissioner (Collector), Peshawar and others (1972 SCMR 613) where it was held:--
"---------Furthermore, the parties having cone to a compromise willingly the appellant cannot be regarded as an aggrieved person so as to entitle him to approach the High Court on a Constitution petition."
In another case titled Maharaja Dhiraj Sir Rameshwar Singh Bahadur v. Hitendra Singh (AIR 1936 Sind 99) the following observations were made:
"A consent order raises an estoppel as much as a decree passed in invitum, so that where a particular relief is prayed for but the matter is settled by a consent order which does grant the relief prayed, the relief must be deemed to be refused. The same relief cannot again be claimed."
9. In view of the above discussion, it can safely be held that appellant's conduct did not allow him to raise this question after having agreed to a position and then turning round and filing this cause before the Service Tribunal. Therefore, we do not find any merit in the appeal which is dismissed with no order as to costs. We also do not want to attend other points in the circumstances of the case. The law referred to by the learned counsel for the appellant with its distinct facts is not applicable to the case in hand as such is not discussed.
H.B.T./179/SC AJ&K Appeal dismissed.
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