SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
PRESENT: 
Mr. Justice Gulzar Ahmed 
Mr. Justice Qazi Faez Isa 
Mr. Justice Sardar Tariq Masood 
 
CIVIL APPEAL NO.1257 OF 2012 
[On appeal against the judgment dated 27.09.2012 passed by  
the Islamabad High Court, Islamabad, in W.P.No.322 of 2012] 
 
 
SME Bank Ltd through its President Islamabad 
& another 
…Appellant(s) 
VERSUS 
Izhar ul Haq 
…Respondent(s) 
 
 
For the Appellant(s) 
: Mr. Tariq Mehmood, Sr. ASC 
Syed Riffaqat Hussain Shah, AOR 
 
  
For the Respondent(s) 
: Mr. Abdul Rahim Bhatti, ASC 
Mr. M.S.Khattak, AOR 
 
  
Date of Hearing 
: 15.04.2019 
 
  
 
  
JUDGMENT 
GULZAR AHMED, J.— The Respondent was employed as an 
Executive Vice President (EVP) with the appellant-Bank.  The 
appellant had issued Voluntary Separation Scheme (VSS) and it 
seems that the respondent had applied under it.  At the same time, 
the respondent was facing disciplinary proceeding.  In the 
disciplinary proceedings, he was found guilty of committing 
irregularities and gross negligence of the highest degree on all 
charges relating to TAAS Securities an
8-CA No.1257 of 2012.doc 
- 2 - 
 
 
 
institution.  The appellant vide Office Order dated 02.06.2003 
imposed such penalty.  This Office Order of penalty was challenged 
by the respondent by filing Writ Petition No.2702 of 2006 in the 
Lahore High Court, Rawalpindi Bench, with the following prayer: 
a) 
Declare the impugned Order dated 02.06.2003 may kindly be 
set-aside by extending the benefits of the Judgments 
mentioned above; 
b) 
Direct the respondents to release the benefits of Voluntary 
Separation Scheme with 20% mark up and the petitioner may 
also be paid the salaries and allowances for the period from 
17.01.2002 to 02.06.2003; and  
c) 
Direct the respondents to calculate the benefits of VSS on the 
basis of last pay drawn by the petitioner”. 
 
Although the appellant seems to have contested the said writ 
petition but vide judgment dated 28.10.2011 the said writ petition 
was allowed by granting the following relief to the respondent: 
“11. The ultimate inference which floats from the above discussion 
is that the petitioner is entitled for recovery of V.S.S. benefits.  
Resultantly, the instant writ petition is accepted and the 
respondents are directed to pay Voluntary Separation 
Scheme benefits to the petitioner.” 
 
This judgment of the High Court was not challenged either by the 
appellant or the respondent.  The respondent was paid benefit of 
VSS vide letter dated 05.01.2012, which payment was received by 
the respondent ‘under protest’ as stated by his counsel.  The 
respondent then filed another Writ Petition No.322 of 2012 in the 
Islamabad High Court, Islamabad, containing the following prayer: 
 
“i) 
Salaries and allowances for the period from 17.01.2002 to 
02.06.2003; 
ii) 
VSS benefits on the basis of last pay drawn i.e. 02.06.2003 
with 20% mark up”. 
 
This writ petition was also contested by the appellant.  After 
hearing learned counsel for the parties, learned Judge-in-
Chambers of the Islamabad High Court passed the impugned 
judgment dated 27.09.2012, accepting the said writ petition and 
specifically directing the appellant to comply with the judgment 
dated 28.10.2011, in letter and spirit.  Petition for leave to appeal 
8-CA No.1257 of 2012.doc 
- 3 - 
 
 
 
was filed by the appellant, in which leave was granted by this 
Court vide order dated 31.12.2012. 
2. 
 
We have heard learned counsel for the parties and 
have also gone through record of the case.   
3. 
 
Mr. Abdul Rahim Bhatti, learned ASC for the 
respondent, at the outset, has contended that the appeal before 
this Court is not maintainable as against the impugned judgment 
the appellant had a remedy of filing an Intra-Court Appeal (ICA) in 
the High Court.  He contended that without availing such remedy, 
the present appeal is liable to be dismissed. 
4. 
 
Mr. Tariq Mehmood, learned Senior ASC for the 
appellants, on the other hand, has opposed the submissions and 
contended that remedy of ICA was not available to the appellants 
for that under the RDFC Employees Service Regulations, 1989, by 
which penalty was imposed upon the respondent, there was 
remedy of appeal and review under Regulation No.10.7, which 
provides that an employee shall have the right of appeal from or of 
making application for review of any order imposing on him any of 
the penalties and the respondent claiming these Regulations to be 
statutory.  Thus, the remedy of ICA will stand excluded altogether 
to the appellant per section 3 of the Law Reforms Ordinance, 1972 
(Ordinance of 1972), and in this respect reliance was placed upon 
a judgment of five-member Bench of this Court in the case of Mst. 
Karim Bibi & others v. Hussain Bakhsh & another [PLD 1984 SC 
344].   
5. 
 
We would directly like to examine the said judgment of 
this Court cited at the Bar by the learned Senior ASC for the 
appellant and in this regard, reference is made to para 8 thereof.  
Relevant portion is as follows: 
 
“8. 
After giving our anxious consideration to the arguments 
urged in support of this appeal we are, however, not impressed by 
any of the contentions raised. The test laid down by the Legislature 
in the proviso is that if the law applicable to the proceedings from 
which the Constitutional Petition arises provides for at least one 
appeal, against the original order, then no appeal would be 
8-CA No.1257 of 2012.doc 
- 4 - 
 
 
 
competent from the order of a Single Judge in the constitutional 
jurisdiction to a Bench of two or more Judges of the High Court. The 
crucial words are the "original order". It is clear from the wording of 
the proviso that the requirement of the availability of an appeal in 
the law applicable is not in relation to the impugned order in the 
Constitutional Petition, which may be the order passed by the 
lowest officer or authority in the hierarchy or an order passed by 
higher authorities in appeal, revision or review, if any, provided in 
the relevant statute. Therefore, the relevant order may not 
necessarily be the one which is under challenge but the test is 
whether the original order passed in the proceedings subject to an 
appeal under the relevant law, irrespective of the fact whether the 
remedy of appeal so provided was availed of or not. Apparently the 
meaning of the expression "original order" is the order with which 
the proceedings under the relevant statute commenced.” 
 
6. 
 
It is admitted fact that disciplinary proceedings were 
conducted against the respondent under the Regulations stated 
above, which ultimately resulted into imposition of penalty vide 
Office Order dated 02.06.2003, against which under the said 
Regulations, which are stated by the respondent to be statutory, 
the remedy of appeal and review is provided.  We are of the view 
that where the proceedings from which the writ petition has arisen 
provided for either review, revision or appeal, in terms of proviso to 
section 3 of the Ordinance of 1972, remedy of ICA will not be 
available against the judgment passed by the learned Single Judge 
in the writ petition. Thus, the appeal before this Court is 
competent.  
7. 
 
During the course of arguments, it was plainly 
conceded by the learned ASC for the respondent that Writ Petition 
No.322 of 2012 is a continuation of the proceeding under which 
penalty was imposed upon the respondent and that the respondent 
was claiming benefit by way of implementation of the judgment 
passed by the High Court in the earlier Writ Petition No.2702 of 
2006.  Learned ASC for the respondent was then confronted with 
the question as to whether the writ petition is maintainable for 
obtaining implementation of the judgment passed by the High 
Court in the earlier writ petition, he, in the first place, referred to 
the provision of Article 187(2) of the Constitution and contended 
that the High Court is competent to execute its own judgment 
under this provision.  On reading of Article 187 of the Constitution, 
it is apparent that it gives powers to the Supreme Court to issue 
such directions, orders or decrees as may be necessary for doing 
8-CA No.1257 of 2012.doc 
- 5 - 
 
 
 
complete justice in any case or matter pending before it, including 
an order for the purpose of securing the attendance of any person 
or the discovery or production of any document, while as per 
clause (2) thereof such directions, order or decree shall be 
enforceable throughout Pakistan and shall, where it is to be 
executed in a Province, or a territory or an area not forming part of 
a Province but within the jurisdiction of the High Court of the 
Province, be executed as if it had been issued by the High Court of 
that Province.  Thus, this provision of the Constitution does not 
offer any help to the respondent for it deals with the execution of 
directions, orders and decree of the Supreme Court by High Court.  
The learned ASC for the respondent then referred to the provision 
of sub-para (i) of paragraph (c) of clause (1) of Article 199 to argue 
that the judgment passed in Writ Petition No.2702 of 2006 could 
be enforced through this Article of the Constitution.  We have 
asked the learned ASC to cite any precedent but no such precedent 
was cited by him before us.  Thus, his second Writ Petition No.322 
of 2012 was not maintainable before the Islamabad High Court. 
8. 
 
What we understand is that pursuant to the penalty 
imposed upon the respondent, he filed Writ Petition No.2702 of 
2006 in which the only relief granted to him, out of the prayers 
made by him, was that of VSS benefit be paid to him and no other 
prayer, contained in the said writ petition, was allowed by the High 
Court.  The respondent neither sought review of the said judgment 
nor challenged the same before this Court rather the judgment 
itself was accepted by him and the payment made to him under 
such judgment was received by him ‘under protest’.  Receiving of 
benefit ‘under protest’ was of no consequence for that the 
respondent admits that such payment settled his dues of VSS but 
the remaining dues, as was prayed by him in Writ Petition No.2202 
of 2006, were not granted to him.  If that be the case, the 
respondent ought to have taken measures for granting him other 
prayers containing in the earlier writ petition either by seeking 
review or by filing proceeding before this Court, which he did not 
do.  The VSS benefits having been paid to him, which were only 
relief allowed by the High Court vide its judgment dated 
8-CA No.1257 of 2012.doc 
- 6 - 
 
 
 
28.10.2011 and same having been accepted by the respondent, he 
cannot claim that full relief has not been granted to him by the 
appellant.  Further, the principle of res judicata with all its force 
will apply to the case of the respondent for that his second writ 
petition against the appellant will not be maintainable for granting 
him the relief, which was not allowed to him by the High Court 
earlier for that the law assumes that such relief stood specifically 
denied to him by the High Court while passing judgment dated 
28.10.2011.  This being the position apparent on the record, after 
having heard learned counsel for the parties and going through the 
record, by short order we had allowed the appeal and set aside the 
impugned judgment dated 27.09.2012.  These are the reasons of 
our short order of even date. 
 
 
 
 
 
 
 
JUDGE 
 
Bench-II 
ISLAMABAD 
15.04.2019 
APPROVED FOR REPORTING 
JUDGE 
 
*Hashmi* 
JUDGE 
 
 
8-CA No.1257 of 2012.doc 
- 7 - 
 
 
 
 
2012  SCMR  366     SUPREME-COURT 
  Side Appellant : GHULAM AKBAR LANG 
  Side Opponent : DEWAN ASHIQ HUSSAIN BUKHARI 
 
2005  SCMR  699     SUPREME-COURT 
  Side Appellant : Messrs M.K.B. INDUSTRIES (PVT.) LTD. and others 
  Side Opponent : CHAIRMAN, AREA ELECTRICITY BOARD, WAPDA 
 
