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Petitioner: MUNIR AHMED SHEIKH VS Respondent: FEDERATION OF PAKISTAN through Secretary, Establishment Division
2002 P L C (C
2002 P L C (C.S.) 394
[Lahore High Court]
Before Mumtaz Ali Mirza, J
MUNIR AHMED SHEIKH
versus
FEDERATION OF PAKISTAN through Secretary, Establishment Division and another
Writ Petitions Nos. 659, 660, 536, 895, 896, 399, 400, 403, 448, 449, 450, 401, 452, 453, 605, 606, 607, 608, 323; 324, 325, 326, 327, 328, 329, 330, 363, 48, 496, 498, 486, 488, 489, 490, 491, 378, 398, 609, 610, 611, 530, 531, 532, 533, 534, 537, 619, 620, 621, 558, 559, 560, 561, 562, 563, 564, 781, 497, 397, 402, 451, 749, 760, 758, 762, 750, 751, 759, 763, 764, 765, 752, 754, 755, 753, 756, 761, 757, 260, 261, 262, 265, 539, 601, 602, 603, 492, 493, 494, 316, 578, 310, 482, 483, 259, 535, 469, 312, 313, 314, 315, 891, 600, 785 of 2001, 2846, 2902, 2548, 2904, 2913, 2965 and‑2864 of 2000, decided on 22nd March, 2001.
(a) Civil Servants Act (LXXI of 1973)‑‑‑
‑‑‑‑S. 2(1)(b)‑‑‑'Civil servant'‑‑‑Definition‑‑‑'Civil servant' has been defined as a person who is a member of an All‑Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence.
(b) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Arts.1.99 & ‑212‑‑‑Civil service‑‑‑Excluding jurisdiction of High Court under Art. 199 of the Constitution‑‑‑Principles‑‑‑To exclude jurisdiction of High Court under Art. 199 of the Constitution, the dispute must relate to the terms and conditions of service; the terms and conditions of service must be of a civil servant; there should be a Service Tribunal to entertain the dispute relating to the terms and conditions of the civil servant; the dispute should be such as the Service Tribunal should be competent to entertain‑‑‑Where the said conditions are met, the jurisdiction of the High Court under Art. 199 of the Constitution, to entertain any such dispute which relates to the terms and conditions of service, of civil servants, and for entertaining which there is Service Tribunal and the said Tribunal is competent to entertain the dispute, is completely ousted by virtue of the bar contained in Art.212 of the Constitution.
(c) Constitution of Pakistan (1973)‑‑-
‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Civil service‑‑‑Suspension of civil servant‑‑‑Ousting the jurisdiction of High Court under Art.199 of the Constitution‑‑‑To oust the jurisdiction of the High Court under Art. 199 of the Constitution what needs to be shown is that the petitioners are civil servants; that the order of suspension as passed against the petitioner is an order which relates to the terns and conditions of service of the petitioners; that the order of the suspension is an order which is appealable before Service Tribunal; that there exists a Service Tribunal of exclusive jurisdiction to entertain the appeal of the aggrieved civil servants with respect to the order of suspension.
(d) Removal from Service (Special Powers) Ordinance (XVII of 2000)‑‑‑
‑‑‑‑S. 4‑‑‑Civil Servants Act (LXXI of 1973), S.16‑‑‑Suspension of civil servant‑‑‑Matter related to terms and Conditions of service‑‑‑Order of suspension was passed under S.4 of the Removal from Service (Special Powers) Ordinance, 2000, in connection with the disciplinary proceedings set afoot against the civil servants‑‑‑Validity‑‑‑Applying definition as given in S.16 of the Civil Servants Act, 1973, such order of suspension, therefore, qualifies to be an order which relates to the 'terms anti conditions of service' of the civil servant.
(e) Removal from Service (Special Powers) Ordinance (XVII of 2000)‑‑‑
‑‑‑‑Ss. 3, 9, 10 & 11‑‑‑Civil servant aggrieved of final order‑‑‑Remedies available under the provisions of Removal from Service (Special Powers) Ordinance, 2000‑‑‑Where the civil servant feels himself aggrieved of final order within the contemplation of S.9 of the Removal from Service (Special powers) Ordinance, 2000, the civil servant has' a right of appeal before the Service Tribunal notwithstanding anything to the contrary contained with respect to the filing of appeal against such a final order in. any other law.
(f) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 4 [as amended by Ordinance (XVIi of 1997)]‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212‑‑‑Constitutional petition‑‑?maintainability‑‑‑Civil service‑‑‑Bar to jurisdiction of High Court‑‑?Principles‑‑‑Where remedy of appeal was available to the petitioners under S.4 of the Service Tribunals Act, 1973, as amended by Ordinance XVII of 1997, ouster of. jurisdiction of the High Court under Art. 199 of the Constitution was complete by virtue of the express language of Art.212 of the Constitution‑‑‑High Court had no jurisdiction to entertain the Constitutional petition filed by the petitioners under Art.199 of the Constitution as the same was barred by the express language of Art.212 of the Constitution.
Abdul Bari v. Government of Pakistan and 2 others PLD 1981 Kar. 290; Rana Muhammad Sarwar v. Government of Punjab through Services, General Administration and Information Department and another 1990 SCMR 999; Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129; Khalid Muhammad Wattoo v. Government of Punjab and others 1998 SCMR 2280 and Muhammad Aslam Bajwa v. Federation of Pakistan PLD 1974 Lah. 545 ref.
(g) Removal from Service (Special Powers) Ordinance (XVII of 2000)‑‑‑
‑‑‑‑S. 10‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Appeal before Service Tribunal‑‑‑Maintainability‑‑‑Suspension order‑‑‑Suspension order passed under S.10 of the Removal from Service (Special Powers) Ordinance, 2000 being not a final order, the same was nonetheless appealable before the Service Tribunal under S.4 of the Service Tribunals Act, 1973 as amended by Ordinance XVII of 1997.
(h) Removal from Service (Special Powers) Ordinance (XVII of 2000)‑‑‑
‑‑‑‑S. 10 [as amended]‑‑‑Service Tribunals Act (LXX of 1973), S.4 [as amended by, Ordinance XVII of 1997)‑‑‑Suspension order‑‑‑Appeal before Service Tribunal‑‑‑Provisions of S.10 of the Removal from Service (Special Powers) Ordinance, 2000 [as amended]‑‑‑Applicability‑‑‑Order of suspension is appealable before Service Tribunal under S.4. of the Service Tribunals Act, 1973 as amended by Ordinance XVII of 1997 and the provision of S.10 of the Removal from Service (Special Powers) Ordinance, 2000 [as amended] which provide for an appeal only against a final order have no application for the purpose of the appeal against such order.
(i) Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑
‑‑‑‑Rr. 5 & 6‑‑‑Disciplinary action against civil servant‑‑‑Procedure‑‑‑Inquiry before inquiry‑‑‑Validity‑‑‑When a civil servant is proceeded against under the Government Servants (Efficiency and Discipline) Rules, 1973, the first step is to frame charge against the accused civil servant and at the time of framing the charge, no inquiry has to be held‑‑‑Inquiry is held only when charges have been communicated to the accused civil servant and the inquiry Officer or the Inquiry Committee is appointed for the purpose of Inquiry, where evidence is led before the Inquiry Officer or the Inquiry Committee, in support of the charges‑‑‑Civil servant who was proceeded against under the Government Servants (Efficiency and Discipline) Rules, 1973, had never demanded holding of an inquiry prior to the framing of charges nor had he ever alleged to have been condemned unheard on account of such an inquiry nor having been held as there could not be an inquiry before inquiry or a trial before trial.
(j) Removal from Service (Special Powers) Ordinance (XVII of 2000)‑‑‑
‑‑‑‑S. 4‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Arts.199 & 212‑‑‑Constitutional petition ‑‑‑Maintainability‑?Civil service‑‑‑Illegal order passed by Authorities‑‑‑Jurisdiction of High Court‑‑‑Civil servants were suspended under S.4. of the Removal from Service (Special Powers) Ordinance, 2000‑‑‑Instead of filing appeal before Service Tribunal, the civil servants preferred. Constitutional petition before High Court under Art.199 of the Constitution‑‑‑Validity‑‑‑Remedy of the aggrieved civil servants was to challenge the order of suspension in appeal before the Service Tribunal and have it struck down on the grounds of being illegal and violative of the provisions of Removal from Service (Special Powers) Ordinance, 2000 [as amended]‑‑‑Illegality of the action of the Government would not have the effect of conferring jurisdiction on High Court to entertain their petitions with respect to a dispute which fell squarely within the jurisdiction of the Service Tribunal in view of the express bar contained in Art.212 of the Constitution‑‑‑Constitutional petition was not maintainable in circumstances.
Muhammad Sadiq Khokhar v. Engineer‑in‑Chief, Pakistan Army, G.H.Q. and another 1985 SCMR 63; Akhtar Ali v. Province of Punjab PLD 1992 Lah. 127; Province of Punjab and another v. Ch. Muhammad Ashraf and another 2000 PLC (C.S.) 118 and Imran v. Presiding Officer, Punjab Special Court No.VI, Multan and 2 others PLD 1996 Lah. 542 ref.
(k) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Appeal before Service Tribunal‑‑‑Maintainability‑‑‑Infringement of Fundamental Rights‑‑?Contention of the civil servants was that the infringement of fundamental rights was a question which could not be gone into by the Service Tribunal and the appropriate forum for entertaining the dispute relating thereto was the High Court in its Constitutional jurisdiction‑‑‑Validity‑‑‑Such contention of the civil servants was misconceived‑‑‑Civil servant cannot by pass Service Tribunal by adding ground of violation of Fundamental Rights‑‑‑Service Tribunal shall have jurisdiction on a case which is founded on 1lre terms and conditions of service, even if it involves a question of Fundamental Rights‑‑‑Appeal before Service Tribunal was maintainable in circumstances.
I.A. Sharvani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 and Fazal Elahi Ejaz and 22 others v. Government of the Punjab and 13 others PLD 1977 Lah. 549 distinguished.
(l) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 4‑-‑Vires of statute‑‑‑Jurisdiction' of Service Tribunal‑‑‑Scope‑‑‑Service Tribunal is competent to go into the vires of the statute or the statutory rules.
Iqnan Ahmad Khurram v. Government of Pakistan and others PLD 1980 SC 153 ref.
Sardar Muhammad Aslam and Amjad Hameed Ghauri for Petitioners.
Mansoor Ahmad, Dy. A.‑G. for CBR alongwith Raja Iftikhar Ahmad Javed, Standing Counsel for the Federal Government.
Sh. Izharul‑ul‑Haq and Vakeel Ahmad Khan, Member Administration, CBR.
Dates of hearing: 13th, 14th, 15th, 16th, 17th, 19th, 20th, 21st and 22nd .March, 2001.
JUDGMENT
?This judgment will dispose of Constitutional Petitions Nos.659, 660, .536, 895, 896, 399; 400, 403, 448, 449, 450, 401, 452, 453, 605, 606, 607, 608, 323,‑324, 325, 326, 327, 328, 329, 330, 363, 48, 496; 498, 486, 488, 489, 490, 491, 378, 398, 609, 610, 611, 530, 531, 532, 533, 534, 537, 619, 620, 621, 558, 559, 560, 561, 562, 563, 564, 781, 497, 397, 402, 451, 749, 760, 758, 762, 750, 751, 759, 763, 764, 765, 752, 754, 755, 753, 756, 761, 757, 260, 261, 262; 265, 539, 601, 602, 603, 492, 493, 494, 316, 578, 310, 482, 483, 259, 535, 469, 312, 313, 314, 315, 891, 600, 785 of 2001. 2846, 2902, 2548, 2904, 2913, 2965 and 2864 of 2000. (111 in number), as common questions of law and facts are involved in these petitions.
2. The petitioners in all these petitions are civil servants employed in either Income Tax Department or the Customs Department under the administrative control of the Central Board of Revenue, Islamabad. These petitioners have been proceeded against under the Removal from Service (Special Powers) Ordinance, 2000 promulgated by the President on 27‑5‑2000 as amended by Removal From Service (Special Powers) Ordinance, 2001 promulgated by the President on 3‑2‑2001. The proceedings initiated against the petitioners in all these petitions seek to impose one or more of the penalties enumerated in section 3 of the Ordinance. As the petitioners were likely to influence disciplinary proceedings set afoot against them under the Ordinance, they were suspended from service on 28‑5‑2000 under section 4 of the Ordinance for a period of six months which order of suspension was subsequently extended for another six months on 27‑11‑2000. Feeling themselves aggrieved of the order of suspension as passed against them, these petitioners have instituted the aforementioned petitions under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 to call in question the legality of the orders of their suspension on the following grounds:‑‑
(i) that the petitioners have been proceeded against under the Special Powers Ordinance, 2000 as amended by the Ordinance, 2001. A reference to the preamble of the Ordinance would show that it has been enacted to make provision for the dismissal, removal etc. of certain persons from Government service and corporation service and as such it is applicable only to a certain category of persons. The petitioners by necessary implication are, therefore, not civil servants as defined in the Civil Servants Act, 1973;
(ii) that the Special Powers Ordinance whereunder the order of suspension has been passed against the petitioners makes only a final order within the contemplation of section 9 of the Ordinance appealable under section 10 of the Ordinance. The order of suspension, thus, not being such a final order is not appealable before the Federal Service Tribunal and as such the only remedy available to the petitioners is to invoke the. Constitutional jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973;
(iii) that the bar contained in Article 212 of the Constitution is attracted only if an order relates to the terms and conditions of a civil servant and is also sucfi as is appealable before the Federal Service Tribunal. The order of suspension neither relates to the terms and conditions of the petitioners nor is it appealable before the Federal Service Tribunal and as such the jurisdiction of the High Court under Article 199 of the Constitution to entertain the petitions instituted by the petitioners is not ousted;
(iv) that the Special Powers Ordinance, 2000 as amended is a complete code in itself. A remedy of appeal not provided for against the order of suspension in the Ordinance cannot be availed of by the petitioners by having recourse to any other law as the Ordinance as per language used in its section 11 shall have effect notwithstanding anything contained in any other law, meaning thereby that it shall override all other laws. This being so, the petitioners do not have a remedy of appeal against the order of suspension and have rightly invoked the Constitutional jurisdiction of this Court;
(v) that the order of suspension is bad in law in that the petitioners? before being suspended were not confronted with any material justifying the initiation of the disciplinary proceedings under section 3 of the Ordinance; (vi) that the order of suspension was in the first instance passed for a period of six months on 28‑5‑2000 and thereafter the same was extended for another six months on 27‑11‑2000. The Special Powers Ordinance does not make any provision for such an order of suspension which is also opposed to the declared object behind the enactment of the Ordinance;
(vii) that the order of suspension being stigmatic in character has condemned the petitioners unheard and as such is violative of the most celebrated principle of natural justice the world over that nobody shall be condemned unheard;
(viii) that the Special Powers Ordinance is violative of the fundamental rights conferred on the petitioners by Chapter No.1 Part‑II of the Constitution of Islamic Republic of Pakistan, 1973 and being violative of the said rights, it is ultra vires the Constitution. As the petitioners have raised the question of the vires of the Special Powers Ordinance, they cannot have recourse to the Federal Service Tribunal as such a plea cannot be raised there and can more appropriately be raised before the High Court in its Constitutional jurisdiction;
(ix) that assuming for the sake of argument that the petitioners have a right of appeal before the Federal Service Tribunal, the same is illusory in that the Chairman and the Members of the Federal Service Tribunal are appointed by the Federal Government which has promulgated the Special Powers Ordinance, 2000 as amended. The Chairman and the Members of the Federal Service Tribunal having no security of tenure cannot effectively strike down an action taken against the petitioners under the Special Powers Ordinance;
(x) that the Special Powers Ordinance as originally promulgated on 27‑5‑2000 .provided for suspension as one of the penalties enumerated in section 3 thereof. However, the said section was amended through the amending Ordinance of 2001 and the penalty of suspension was deleted from it. This deletion of the penalty of suspension from section 3 was not accidental but had an object behind and the object was to make the provisions of appeal provided for under section 10 of the Ordinance available only to a person aggrieved of a final, action taken under section 9 with respect to any of the penalties enumerated in section 3 of the Ordinance. This would, it vas contended, clearly mean that the penalty of suspension having been deleted from section 3 of the Ordinance, there would be no appeal against the penalty of suspension, the same having been deleted from section 3 of the Ordinance as aforesaid;
(xi) that by not providing for an appeal against the order of suspension within the meaning of section 9 of the Special Powers Ordinance, a person aggrieved of the order of suspension was virtually rendered remediless. Hence, the justification for the petitioners to invoke the Constitutional jurisdiction of the High Court for seeking redress against the order of suspension;
(xii) that a learned Division Bench of the Sindh High Court has already held the impugned order of suspension as not being amenable to the jurisdiction of the Federal Service Tribunal. The law laid down by the said leaned Division Bench furnished yet another jurisdiction for the petitioners to maintain their Constitution petition before this Court against the order of suspension;
(xiii) that the judgment of the learned Division Bench of the Sindh High Court was binding on this Court sitting singly;
(xiv) that the judgment rendered .by the learned Division Bench of the Sindh High Court in the matter of the civil suit instituted by the suspended employees of the Customs and Income Tax Departments was appealed against by the Government in the Honourable Supreme Court and the said Honourable Court refuse to grant leave against the exercise of jurisdiction by the High Court.
3. The Constitution petitions on coming up before this Court on different dates were admitted to regular hearing to examine the aforesaid questions of law as raised by the petitioners and notice was directed to issue to the respondent .CBR/Government to enter appearance and to meet the case as set up by the petitioners in the abovementioned Constitution petitions. Accordingly, pursuant to the notice' issued, written statements were filed by and on behalf of the respondent CBR/Government through Mr. Mansoor Ahmad, Deputy Attorney‑General for Pakistan. The position taken up by the learned Deputy Attorney‑General for Pakistan in the written statements filed on behalf of the respondents was that the order of suspension related to the terms and conditions of the petitioners as civil servants and that the order of suspension being appealable before the Federal Service Tribunal, jurisdiction of this Court under Article 199 of .the Constitution of Islamic Republic of Pakistan, 1973 was expressly ousted by virtue of the bar‑ contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
4. The petitioners in these petitions and the connected petitions which are being disposed of alongwith these petitions by this Court's order were represented by Raja Muhammad Anwar, Senior Advocate Supreme Court, assisted by Mr. Shafqat Ali Abbasi, Advocate, Dr. Abdul Basit, Advocate, Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court assisted by Dr. Amjad Bukhari, Mr. Khawar Hashmi, Mr: Ikhtiar Khan and Mr. Farrukh Ahmad Khan Lodhi, Advocates, Raja Mahmood Akhtar Khan, Mr. M. Ikram Cha'dhry, Sardar Muhammad Aslam, Mr.Amjad Hameed Ghauri, Mr. Abdur Rahim Bhatti, Mr. M. Kowkab Iqbal, Mian Shahid Iqbal, Mr, Haider Hussain, Sh. Riaz‑ul‑Haqq and Ch. Zamurrd Hussain, Advocates, while the respondent CBR/Government was represented by Mr. Mansoor Ahmad, Deputy Attorney‑General for Pakistan alongwith Raja Iftikhar Ahmad Javed, Standing Counsel, for the Federal Government, Sh. Izhar‑ul‑Haq, Advocate, and Mr. Vakeel Ahmad Khan, Member Administration CBR.
5. As Mr. Mansoor Ahmad, learned Deputy Attorney‑General for Pakistan in the written statement filed on behalf of the CBR/Government has raised a preliminary objection against the maintainability of the Constitution petitions instituted by the petitioners on the basis of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, it appears appropriate that the preliminary objection as raised by the learned Deputy Attorney‑General with respect to the ouster of jurisdiction of this Court may be attended to in the first instance. I, therefore, take up the preliminary objection first and for a while postpone the treatment of the legal questions raised by .and on behalf of the petitioners which have been reproduced hereinabove, to be t,‑,en up later. As the objection of the learned Deputy Attorney‑General for Pakistan is based upon the provisions of Article 2) 2 of the Constitution of Islamic Republic of Pakistan, 1973, the same is reproduced hereunder for facility of reference:
"Administrative Courts and Tribunals.
212.(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of.‑‑‑
(a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters:
(b) matters relating to claims arising from tortious acts of Government, or any, person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extend and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal other than an appeal pending before the Supreme Court shall abate on such establishment:
Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Majlis‑e‑Shoora (Parliament) by law extends the provisions to such a Court or Tribunal.
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal."
A reference to Article 212(1)(a) and sub‑Article (2) of this Article would show that matters relating to the terms and conditions .of persons who are or have been in the service of Pakistan, including disciplinary matters have been left to be decided exclusively by the Administrative Court or Tribunal established under clause (1) of Article 212 of the Constitution and the jurisdiction of all other Courts to grant an injunction, make any order or entertain any proceedings in respect of any matter to which jurisdiction of such Administrative Court or Tribunal extends has been taken away. Not only this sub‑Article (2) further ordains that all proceedings in respect of any such matter which made pending before such 'other Court immediately before the establishment of the Administrative Court or Tribunal shall abtate on the…
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