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Petitioner: ZAMIRUDDIN VS Respondent: GOVERNMENT OF SINDH
1997 P L C (C
1997 P L C (C.S.) 702
[Karachi High Court]
Before Ali Muhammad Baloch and M.L. Shahani, JJ
Sayed ZAMIRUDDIN
versus
GOVERNMENT OF SINDH through Secretary, Education Department, Sindh, Karachi and 2 others
Constitutional Petition No. D‑29 and Miscellaneous Appeal No. 541 of 1997, decided on 27th February, 1997.
(a) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Arts. 199 & 212‑‑‑Sindh Service Tribunals Act (XV of 1973), S. 3‑E [as added by Sindh Service Tribunals (Amendment) Act (XXI of 1994)]‑‑ Employees of Sindh Textbook Board declared to be civil servants, amenable to jurisdiction of Sindh Service Tribunal‑‑‑Employee challenging his suspension before High Court‑‑‑Jurisdiction‑‑‑Article 212(2) of the Constitution is couched in negative language which reinforces ouster of jurisdiction of High Court under Art. 199 of the Constitution‑‑‑Once jurisdiction is expressly barred by any provision of the Constitution then bar so contained is conclusive‑‑‑Where provisions of Art. 199 of the Constitution were controlled by other provisions of the Constitution, then controlling provisions have absolute authority and impact and ouster was complete‑‑ Courts being creation of the Constitution could only exercise such jurisdiction as conferred upon them by the Constitution.
(b) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Arts. 199 & 212‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Suspension order‑‑‑Validity‑‑‑Jurisdiction‑‑‑Suspension being not punishment, even if there was some harassment which had affected terms and conditions of service of civil servant, same would fall within exclusive purview of Service Tribunal ‑‑‑Jurisdiction of High Court in such matter was barred under Art.212(2) of the Constitution‑‑‑Constitutional petition of civil servant against order of‑his suspension being misconceived was not maintainable in circumstances.
1990 PLC (C.S.) 313; Abdul Bari v. Government of Pakistan and others PLD 1981 Kar. 290 and I.A. Sherwani and others v. Government of Pakistan 1991 SCMR 1041 ref.
Rasool Bux Unar for Petitioner.
Muhammad Ibrahim Soomro Addl. A.‑G. for Respondent No. 1.
Niamatullah Qureshi for Respondents Nos. 2 and 3.
ORDER
1. The petitioner has filed this petition and has prayed for the following relief:--
(1) Declare that the harassment and humiliation created by the respondent No.3 is mala fide motivated to destroy and damage the meritorious career of the petitioner.
(2) Direct the respondent No.3 to withdraw the incompetent orders of suspension and harassment and further direct the respondent No.3 not to create and, harassment against the petitioner.
(3) Pass any other order as deemed fit including grant of special cost against respondent No.3.
The learned counsel for the petitioner has stated that the petitioner is an employee of Sindh Textbook Board as Audit Officer. According to he learned counsel for the petitioner that he incurred displeasure of respondent No. 3 as the payments were not released to M/s. Zeenat Printers owned by the wife of respondent No. 3. According to him that when the respondent No.3 took over as Chairman of Sindh Textbook Board, he started harassing the petitioner and put him tinder suspension. He has, therefore, challenged the suspension and has prayed for above‑stated relief.
The learned counsel for respondents Nos.2 and 3 has filed parawise comments and has raised the legal objection that the petition relates to the terms and conditions of service for which remedy is available to him before the Sindh Service Tribunal and the present petition is specifically barred under Article 212 of the Constitution of Islamic Republic of Pakistan.
The petitioner has only assailed the order of suspension. The order of suspension is neither punishment nor causes any harm to the petitioner in relation to his terms and conditions of service. Moreover, if the suspension of the petitioner leads to any order of punishment (both either minor or major) then it will affect his terms and conditions of service. The terms and conditions of service could be enforced through Sindh Service Tribunal as the Sindh Service Tribunals Act has been amended through Act No.XXI of 1994, published in the Gazette on January 16, 1995 and the employees of Corporation have been declared to be the civil servants under section 3‑E of the amended Act. The other contention of the learned counsel for the petitioner was that since he is harassed and the terms and conditions of his service are being arbitrarily changed to his disadvantage, therefore‑, he has invoked the Constitutional jurisdiction of this Court.
It is well‑settled legal principle once the jurisdiction is expressly any provision of the Constitution then the bar so contained is conclusive. Article 212(2) is couched in negative language which reinforces ouster of jurisdiction of this Court under Article 199. Moreover, when the provisions of Article 199 of the Constitution are controlled by the other provisions of the Constitution then the controlling provisions have absolute authority, and the impact and the ouster is complete. The Courts being creation of the Constitution could only exercise such jurisdiction conferred on it by the Constitution.
Now if the petitioner maintains that is terms and conditions of employment are being changed then obviously the case is within the exclusive domain of the Service Tribunal and where the jurisdiction for Service Tribunal extends the jurisdiction of this Court is barred. Learned counsel for the petitioner relied upon 1990 PLC (C.S.) 313 and has contended that if the order is passed without jurisdiction the jurisdiction of High Court was not barred under Article 212 of the Constitution. He has further contended that the order which has been passed by the respondent No.3 is coram non judice the Constitutional jurisdiction under Article 199 can be invoked. This argument conveniently overlooks the Full Bench decision of this Court reported as Abdul Bari v. Government of Pakistan and others PLD 1981 Karachi 290 wherein his Lordship Mr. Justice Zafar Hussain Mite (as his Lordship then was) has ruled that even the grounds of mala fides and coram non judice could De urged before the Service Tribunal. In the case of I.A. Sherwani and others v. Government of Pakistan 1991 SCMR 1041 it has been ruled that, even the question of enforcement of fundamental rights could be urged before the Tribunals.
Since we hold that the order of suspension is not a punishment order, and even if there is any harassment which affects the terms and conditions of service of the petitioner, the same fall within the exclusive purview of Service Tribunal, as such, the jurisdiction of this Court is barred under Article 212(2) of the Constitution, therefore, this Constitutional petition is misconceived and not maintainable and the same is dismissed in limine.
2. Consequent upon the dismissal for the petition this application is also dismissed.
A.A./Z‑151K Petition dismissed.