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Petitioner: MUHAMMAD. KHALIQ VS Respondent: COMMISSIONER, HAZARA DIVISION, ABBOTTABAD
2002 P L C (C
2002 P L C (C.S.) 389
[Peshawar High Court]
Before Nasirul Mulk and Ijaz-ul-Hassan, JJ
MUHAMMAD. KHALIQ and 6 others
versus
COMMISSIONER, HAZARA DIVISION, ABBOTTABAD and 5 others
Writ Petition No. 324 of 1999, decided on 6th June, 2001.
North-West Frontier Province Service Tribunals Act (I of 1974)---
----S. 4---Constitution of Pakistan (1973), Art: 199---Constitutional petition---Stoppage of payment of pension---Petitioners earlier were declared unfit for public service by a Medical Board and as a result of Board's decision they were sent on pension---Subsequently after more than one year, Authority got the petitioners medically examined by, another Board which declared the petitioners fit for service---In the light of the opinion of the other Board, not only criminal cases were registered against the petitioners but payment of pension was also stopped---Authority being not a Departmental Authority as envisaged in Expln. to S.4 of North-West Frontier Province Service Tribunals Act, 1974, Service Tribunal had no jurisdiction to hear the appeal against the order passed by the Authority and Authority also had no right to pass an order regarding stoppage of pension of the petitioners---Action of Authority being in violation of law-could not be allowed to remain intact---High Court in exercise of its Constitutional jurisdiction declared the impugned order without any lawful authority.
Muhammad Aslam Khan for Petitioners.
Muhammad Ayub Khan, Dy. A.-G. for Respondents.
Date of hearing: 6th June, 2001.
JUDGMENT
IJAZ-UL-HASSAN, J.---Muhammad Khalil, Ex-Malaria Supervisor, D.H.Q. Office, Abbottabad and six others petitioners have filed instant Writ Petition No. 324 of 1999 against Commissioner Hazara Division, Abbottabad and 5 others respondents, for declaration to the effect that order dated 20-11-1997 passed by respondent No. 1 for stoppage of payment of pension of petitioners is illegal, without lawful authority, of no legal effect and that respondent No. 1 has no authority to pass such an order to respondents Nos.2 to 5 and that respondents be restrained from implementing the aforesaid order. The petitioners have also prayed that respondents be directed to release the payment of withheld amount.
2. Briefly stated the facts leading to the tiling of this writ petition are that petitioners serving in respective Departments of Government of N.-W.F.P. suffered from certain illness and became unfit for public service. They applied for retirement on health ground and were declared unfit by a Medical Board headed by Medical Superintendent D.H.Q. Hospital Abbottabad. As a result of the Board's decision they were sent on pension and were paid all pensionary benefits. Subsequently, after more than a year the respondent No. 1 summoned the then President of the Board and got the petitioners medically examined by another Board, which declared the petitioners tit for service. Resultantly, a case was got registered against the petitioners in Police Station A.C.E. Abbottabad vide F.I.R. No. 6 on 15-11-1997 under sections 420/471/468/109, P.P.C. read with section 5(2) of the Prevention of Corruption Act. The petitioners were arrested and are now on bail.
3. We have heard Mr. Muhammad Aslam Khan, Advocate for the petitioners and Mr. Muhammad Ayub, Deputy Advocate-General for respondents.
4. Learned counsel for the petitioners has assailed the propriety and legality of the impugned order of respondent No. 1 principally on the ground that respondent No. 1 is not a Departmental Authority in respect of the terms and conditions of the service of the petitioners and hence he is not competent to, pass such order. As against this, it is submitted on behalf of the respondents that the impugned order has been passed strictly in accordance with law and in view of section 4 of the North-West Frontier Province, Services Tribunals Act, 1974 this Court has got no jurisdiction to adjudicate upon the matter.
5. After hearing the arguments of learned counsel for the parties we find ourselves in agreement with learned counsel for the petitioners that respondent No. 1 is not a Departmental Authority as envisaged in explanation to section 4 of N.-W.F.P. Services Tribunal Act. 1974 and as such the N.-W. F. P. Service Tribunal has no jurisdiction to hear the appeal against the impugned order. Respondent No. 1, as rightly contended, had no authority to pass an order regarding stoppage of payment of pension of petitioners. Action of respondent No.1 is in violation of law and cannot be allowed to remain intact. We allow the writ petition, set aside the impugned order and declare the same as having been without any lawful authority. However, this order shall not stand in the way of the Departmental Authority to initiate proceedings against the petitioners and deal with them in accordance with law. No order as to costs.
H.B.T./P-381 ????????????????????????????????????????????????????????????? Petition allowed/Order accordingly.