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Petitioner: MUJEEBULLAH AIJAZ VS Respondent: DIRECTORGENERAL, TELEPHONE AND TLLEGRAPH JUDGMENT
Court Name: Balochistan High Court Judge(s): Mir Hazar Khan Khoso, Abdul Hayee Qureshi, M. A Rashid Title:MUJEEBULLAH AIJAZ vs DIRECTORGENERAL, TELEPHONE AND TLLEGRAPH
JUDGMENT
Reported As: PLD 1980 Quetta 58 Result: Order accordingly Judgment JUDGMENT ' ABDUL HAYEE KURESHI, ACTG. C. J.-All the six petitions in this case have been filed by persons in the service of Pakistan who are either employees of the Federal Government or the Provincial Government of Baluchistan and each one of these petitions relates to matters concerning terms and conditions of their service. Besides these six petitions several other petitions are pending in this Court and are of identical nature. When some of these petitions came up for hearing a question arose in regard to interpretation of Articles 199 and 212 of the Constitution of Pakistan and also in regard to the bar, total or partial, imposed on the jurisdiction of the High Court to grant relief under Article 199 by reason of the provisions of Article 212 of the Constitution. Since important and far- reaching questions of law as well as interpretation of the Constitution were involved a Full Bench was constituted. Whereas Mr. Haji Muhammad Sada raz Khan, Mr. Basharatullali, Mr. S. H. Jafri, Mr. Muhammad Muquim Ansari and Mr. Munawar Ahmed Mirza Advocates have appeared for the petitioners, the learned Advocate-General with Mr. Khwaja Akhtar, Advocate have appeared for the respondents.' We had requested Mr. Muhammad Aslam -Chishti, and Mr. I. H. B. Hanafi, Advocates to appear and assist the Court as amicus curiae and while Mr. Muhammad Aslam Chishti appeared and made very valuable contribution for which we record our thanks, Mr. Hanafi was not present. 2. The following two questions were referred for decision to the Full Bench :- (0 Whether Article 212 of the Constitution of Pakistan is a complete bar in respect of cases in which a Government servant seeks relief under Article 199 of the Constitution in relation in his terms and conditions of service.
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(ii) If the first question is answered in the negative what are the governing principles and the scope of relief in such cases. 3. Initially it is necessary to state that for the first time an attempt was made by the makers of the Constitution of 1973 to curtail jurisdiction of the High Court in tire matter of grant of relief in cases arising out of the terms and conditions, security and punishments imposed on Government servants. In the Government of India Act, 1919, Government of India Act, 1935, the Constitution of 1956, the Constitution of 1962 as well as under the Interim Constitution of 1972, safeguards were provided to the persons in service of the Government. These safeguards generally related to power of Courts to grant relief to persons who were dismissed, removed, compulsorily retired or reduced in rank without following due process of law or providing an adequate opportunity for defence. Since sometime, as need was felt and expressed for the establishment of Administrative Tribunals to exercise exclusive jurisdiction in matters relating to service. Administratiy Tribunals are not unknown in many countries and even in England numerous special Tribunals are established by law to deal with those special matters which the Legislature in its wisdom has often considered improper for remedy in a Court of law. Even in our country such special Tribunals of limited or fuller jurisdiction exist and such Tribunals deal with the questions of Land Revenue, Higher Education, regulation of Legal Practitioners, Medical Officers, Rent matters etc. Perhaps for the first time Cornelius, C. J., in the case o Farid Sons Limited v. Government of Pakistan (1), judicially expressed his regrets "that in our country there is no procedure similar to that of French (I) P D 1961 SC 537 Administrative Law which with variations appears to be in operation over the whole of Europe with the exception of the United Kingdom, or to a system of Administrative Courts which prevails in the United States." He has further stated in such context as follows :- "Under each of these systems, there is a quasi-judicial Tribunal provided to which a person injured by any action of a public servant performed in the exercise of public powers may have instant recourse, and these Tribunals are invested with powers to bring all the underlying processes into the light of day, and apply necessary correction to the executive action by issuing appropriate directions to the executive authorities. In our law, apart from departmental appeals on the executive side, the judicial remedy lies only with the prerogative writs, which the superior Courts are empowered to issue. The procedure, as these cases illustrate, is cumbersome and lengthy. Four years of waiting have been imposed upon the injured party in this case, to gain redress in regard to a trading licence which was its main source of livelihood." ' The learned Chief Justice has expressed himself in similar terms on various occasions in his discourses. In fact Administrative Tribunals did exist and had always existed even in Pakistan but a complete ouster of jurisdiction of the superior Courts had never been expressed in the Constitution so that even in service matters the aggrieved party could approach the High Court for grant of relief either by a writ or a direction, analogous to a writ." 4. In the Constitution of 1973 a provision in the shape of Article 212 was inserted and since reference to this Article would frequently be made, it is necessary to reproduce the same. It reads as follows :- "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 persons in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or case and any servant of such authority acting in the discharge of his duties as such servant ; or
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(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 extends 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, 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." ' The pending words of this Article are conspicuous for these words seem to mean that the provisions of this Article stand on a higher pedestal and its incidents would be untrammelled by any other provisions of the Constitution. Obviously the makers of the Constitution had in their mind the powers of Courts, including the superior Courts, and the purpose was to divest them of their jurisdiction in relation to some matters concerning persons in the service of Pakistan. The superior Courts had in such matters been granting relief on petitions and applications under the previous Constitutions. Even though Article 199 of the Constitution opens with words "Subject to the Constitution" the Constitution makers, perhaps to highlight their intention had used the words "Notwithstanding anything hereinbefore contained" in Article 212. It would thus seem that in spite of Article 199 patently expressing that relief shall be given under that Article only in a manner which is subject to the Constitution, Article 212 re-emphasises that despite the existence of Article 199, Administrative Courts or Tribunals could be established to exercise exclusive jurisdiction in respect of matters relating to the terms, conditions and discipline of persons who are or have been in the service of Pakistan. Again clause (2) of Article 212 opens with the same words which appears in the beginning of clause (1) of the said Article and the clause goes to state that when any Administrative Court or Tribunal as is referred to in clause (1) is established, no other Court shall grant an injunction, make an order or entertain any proceedings in respect of any matters to which the jurisdiction of such Administrative Courts or Tribunals extended. This clause also provided for abatement of proceedings relating to such matters in any Court. Clause (3) of this Article provides for a limited appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court. The appeal has been termed as a limited appeal because it would lie only if the Supreme Court was satisfied that the case involved substantial question of law of public importance. 5. Having stated the import and scope of Article 212 it patently appears that in spite of Article 199 being recognized as a bulwark in the Constitution, in several matters the jurisdiction of the High Court and the Supreme Court was sought to be ousted. The divestitute was intended to the extent stated under Article .212. To put it in plain words if a matter fell within the sphere or jurisdiction of an Administrative Court or Tribunal by virtue of al law, Federal or Provincial, promulgated in persuance of clause (1) of Article 212, the superior Courts would have no jurisdiction to, such extent! Any other interpretation could only tend to violate legislative intent. 6. At this stage the first question to .Consider is as to the extent to which ouster of jurisdiction is created by Article 212 of the Constitution. It would appear that ouster is created on fulfilment of the following preconditions :-
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(1) That the appropriate Legisature should enact a law providing for the establishment of Administrative Courts or Tribunals ; (1) PLD 1961 SC 537 (2) that the Act should relate to the terms and conditions of service of persons including disciplinary matters of persons who are or have been in the service of Pakistan ; and (3) that jurisdiction is conferred on the Administrative Court or Tribunal stating the matters in relation to which they shall exercise jurisdiction. ' Both the Federal Government and the Government of Baluchistan have passed Acts as are contemplated by clause (1) of Article 212 and even the Administrative Tribunals have been established. While the Civil Servants Act, 1973 and Service Tribunals Act, 1973 operate in the field relating to Federal Government Servants, Baluchistan Civil Servants Act, 1974 and Baluchistan Civil Service Tribunals Act, 1974 operate in the field relating to Provincial Government Servants. In addition both the Federal Government and the Provincial Government have framed rules which are commonly known as Efficiency and Disciplinary Rules. The Baluchistan Service Tribunal Act, 1974 was amended by an Act of 1975 but such amendment is not relevant to the question which requires consideration in the present cases. 7. The learned Advocates appearing for the petitioners have however urged that in spite of Article 212 of the Constitution and the sub-Constitutional legislation, a High Court is not totally divested of its jurisdiction. In such context they have referred to case in which the Service Tribunal may have acted without jurisdiction or in excess of jurisdiction. It has also been contended that in cases where the Tribunal has acted in violation of principles of natural justice, in having denied a right of hearing or being animated by bias, jurisdiction of the High Court would not be affected. An attempt was also made to sustain argument that remedy by way of an appeal as stated in clause (1) of Article 212 being insufficient or illusory, an aggrieved person could without utilising such remedy approach the High Court for redress under Article 199 of the Constitution. 8. These points would require to be considered first. ' It is no doubt correct that want of jurisdiction in any Tribunal or the Tribunal having acted in excess of its jurisdiction would not only render the order of the Tribunal a nullity in law but would on the other hand also attract the jurisdiction of the superior Courts under Article 199 of the Constitution. To that extent there is no quarrel with the proposition in its general terms. The concept of jurisdiction being wrongly exercised or exceeded came up for consideration before the Supreme Court in the case of Raunaq Ali v. The Chief Settlement Commissioner and others (1) and Hamoodur Rehman, C. J., who delivered the judgment on behalf of the Court drew a distinction between incorrect and void decisions and expressed himself in the following terms :- "It is no doubt true that there is a clear distinction between an act wholly without jurisdiction and an act done in the improper, exercise of that jurisdiction. Where there is jurisdiction to decide, then as it has often been said there is jurisdiction to decide either rightly or wrongly, and merely a wrong decision does not render the decision without jurisdiction. To amount to a nullity, an act must be non-existent in the eye of law; that is to say, it must be wholly without jurisdiction or performed in such a way that the law regard it as a mere colourable exercise of jurisdiction or unlawful usurpation of jurisdiction." (1) PLD 1973 SC 236 ' Halsbury in the Laws of England (4th Edition, para. 151, page 155) has under the title "Absence or Excess of Jurisdiction" stated as under:- "Although certiorari is taken away, it may be granted, even on the application of the defendant, where the inferior Court has acted without or in excess of jurisdiction; for in such a case the Court has not brought itself within the terms of the statute taking away certiorari. Thus, certiorari will lie, although taken away, where the subject-matter of the inquiry has beyond the scope of the
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authority of the inferior Court, either by reason of its nature or by reason of the absence of some essential preliminary." ' Mr. Munir, C. J. In "Constitution of Islamic Republic of Pakistan", 1975 Edition at page 468 has with particularity to Article 212 stated the case as follows:- "But jurisdiction has several aspects and a lack of jurisdiction may exist in respect of the subject- matter in controversy, or in respect of the person against whom an order is made or in respect of the order made. Since these Courts and tribunals function under special laws, it may be that under that law a Court or Tribunal is not competent to take cognizance of a matter or to exercise jurisdiction over a person or to make the order that it has actually made or it violates a basic principle of natural justice or acts mala fide or with an ulterior motive. In any such case it is submitted the High Court may act under Article 199, even if the Supreme Court does not consider the point involved as a substantial question of law or public importance." 9. There is also case-law to the effect that an order without jurisdiction is a nullity in the eye of law and such lack of jurisdiction may arise for the reason of the person exercising jurisdiction either not being qualified to exercise it or the subject-matter of the dispute falling outside the ambit of his powers by reason of jurisdictional facts. The learned Advocates have also urged before us that in such cases as well as in cases when mala fides or bias in the Tribunal is established, the jurisdiction of the superior Courts under Article 199 of the Constitution would be attracted. Reliance on the other hand is placed on Article 212 as well as opening words of Article 199 which recognize finality of the decrees, orders or sentences of the Administrative Courts or Tribunals and make such decrees, orders or sentences not amenable to jurisdiction under Article 199, moreso as Article 212 provides an appeal. It is urged that a total exclusive field has been reserved for such Administrative Courts or Tribunal. It is illustrated by reference to exclusion or ouster of jurisdiction as is not unknown even in our Constitution. As an example it was stated that a person who is a member of Armed Forces of Pakistan or' who is for the time being subject to any law relating to any of these forces, in respect of his terms and conditions of service, cannot maintain a petition under Article 199 of the Constitution. Even in 'England several matters decided by Court martial or Ecclesiastical Court are immune from interference by the High Courts of Justice. It has been stressed that an order under Article 199 of the Constitution, can only be made if it is within the jurisdiction of the superior Courts to make it and the question involved is capable of being determined in such Courts. Our attention was drawn to the provisions of clause (2) of Article 175 which states that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. So that if an ouster is created by that Constitution which alone provides for power under Article 199, the bar would appear to be insurmountable. But in such context the question of orders without jurisdiction or in excess of jurisdiction would need further consideration. One cannot overlook that the question of jurisdiction could be urged before the Administrative Tribunal or Court itself and often the High Court has declined relief for the reason that such objection has not been pressed before the Administrative Court or the Tribunal. There can be not two opinions that the Administrative Courts or Tribunals have the full powers to determine the question concerning their jurisdiction. What is more that clause (3) of Article 212 even provides for an appeal. Such objection would even be pressed before the Supreme Court in appeal. It would thus seem that an alternate remedy is also available. Since arguments have been advanced in regard to the appeal being a remedy which is insufficient or illusory, this question needs to be considered in greater detail particularly to find out if Article 199 would be attracted by such reason alone. ' On the point of want or excess of jurisdiction the opinions of some jurists of eminence and some cases have been referred to in the foregoing paragraphs. However, it would be assuming for more than necessary, if it is said that lack of jurisdiction cannot be agitated before the superior Courts exercising power under Article 199 of the Constitution. An order without jurisdiction has been
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termed as a nullity in law, which could even be ignored and on the other hand a wrong or erroneous finding in a matter where jurisdiction exists is not liable to interference, so that the jurisdictional aspect in the most prominent question in matters concerning exercise of powers under Article 199. There may be cases relating to want of jurisdiction by reason of lack of qualification or absence of valid orders to constitute an Administrative Tribunal or Court and in such cases it is not at all difficult to state that the case is one of absence of jurisdiction or the Tribunal is coram non judice. Such situation would clearly attract the jurisdiction under D Article 199. The second class of cases could be those where then is absence of jurisdictional facts so that the Administrative Court or Tribunal, although otherwise legally constituted, is not competent to hear or decide a particular case. The difficulty arises in the second category of cases because of overlapping facts and also for the reason of an appeal being provided. Mr. Haji Sarfraz Khan has invited our attention to the Supreme Court judgment in the case of Ali Muhammad v. Hussain Bakhsh (1), particularly to the second paragraph at page 39, where it was held that jurisdiction under Article 199 was available though remedy by way of review or revision was not exhausted. In that case Yaqub Ali, C. J. Had recorded that "where an authority has passed an order in excess of jurisdiction, the petitioner cannot be refused relief or penalized for not throwing himself again by way of revision or review, on the mercy of authorities who were responsible for such excess." This case does not appear to be attracted for more than one reason. First of all the grant of relief in that case was resisted because a revision or review, as distinct from appeal, had not been preferred. Secondly in that case the revision or review was to be dealt with either by the same functionary or a higher authority in the hierarchy. In the present circumstances appeal is provided to the Supreme Court. ' It is plain that want of jurisdiction in the Administrative Court or Tribunal if it arises from disqualification or illegal composition would attract the jurisdiction of the High Court. On the other hand excess of jurisdiction would attract the jurisdiction only if it is so patent that no (1) PLD 1976 SC 37 argument can be advanced in favour of the decision or that the various pieces of legislation in the Federal or Provincial field do not cover the decision. 10. Without doubt Article 199 would be attracted in cases where no other remedy is provided of law. In the present case the argument of the learned Advocates is that bar by reason of alternate remedy being available was not a rule of law but a rule whereby the Court regulated its procedure. Such concept appears to have been borrowed from the Constitution of 1956, which made no mention about alternate remedy or consequence c availability of such remedy. In the earlier judgments the High Courts of this country had held the rule was not one of law but it was the rule whereby the Court regulated its procedure. However in 1962 Constitution and the Constitution of 1973, the non-availability of alternate remedy has been succinctly referred to and therefore to say now that it was a rule whereby a Court regulated its procedure is incorrect. The non-availability of alternate remedy is a condition precedent to exercise of jurisdiction under Article 199. 11. The next argument that has been raised before us is that even if the remedy by way of an appeal is considered to be a factor divesting jurisdiction, the said remedy is not adequate and is in fact illusory. The learned Advocate have urged that a limited right of appeal has been granted and clause (3) of Article 212 stated that an appeal can be filed only by leave of the Supreme Court which will be granted only in cases which involve a substantial question of law or of public importance. The learned Advocate has urged that the provisions are even more strict and stringent than the provisions of clause (3) of Article 185 of the Constitution which speak of appeal being filed by grant of leave but do not envisage grant of leave only when substantial question of law of public importance is involved. It has also been pointed out that in several petitions for special leave the Supreme Court has observed that in exercise of such jurisdiction it does not sit as a Court of
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appeal. Additionally it has been urged that in the event of Supreme Court declining exercise of jurisdiction the remedy by way of Article 199 may not be extended by the High Court even if the High Courts were consicous of a grave injustice having resulted. ' In regard to appeal being an effective remedy Mr. Moquim Ansari has referred to the case of Murree Brewery Ltd. v. Pakistan (1), and contended that in cases of limited appeals, a party could without availing such right invoke the jurisdiction of the High Court. He has particularly referred to a passage appearing at page 287 of the report which read as follows:- "He has urged that the appeal under section 36 of the Ordinance is limited to a matter which is within the jurisdiction of the authority concerned and the scope of the Ordinance. A question of jurisdiction is a matter for Review, which is based not the merits but on the legality of the lower authority's proceedings." ' This case does not help Mr. Ansari because no final order had been passed by the concerned functionary and no appeal lay. On the other hand the ouster of jurisdiction…
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