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Petitioner: AZHER JAMEEL VS Respondent: FEDERATION OF PAKISTAN
2002 P L C (C
2002 P L C (C.S.) 718
[Karachi High Court]
Before Saiyed Saeed Ashhad, C. J. and Mushir Alam, J
AZHER JAMEEL
versus
FEDERATION OF PAKISTAN and others
Constitutional Petition No.D‑2201 of 2001, decided on 24th October, 2001.
Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑Ss.2‑A & 4‑‑‑Constitution of Pakistan (1973), Arts.199 & 212‑‑ Constitutional petition‑‑‑Maintainability‑‑‑Petitioner who was a civil servant in terms of S.2‑A of Service Tribunals Act, 1973 was required to approach Service Tribunal for redress of his grievance relating to terms and conditions of service and was precluded from invoking Constitutional jurisdiction of High Court by virtue of Art.212 of the Constitution of Pakistan (1973)‑‑ Issuance of a show‑cause notice and initiation of proceedings under disciplinary rules against the civil servant, would not furnish him a cause of invoking jurisdiction of Tribunal or a Court and proper forum for him was to submit a reply thereto and face the, consequent proceedings if initiated‑‑‑Civil servant would not have any cause of action to challenge a show‑cause notice and inquiry proceedings initiated pursuant to show‑cause notice Objections issues with regard to mala fides, coram non judice, order being ultra vires and illegality of Authority issuing the order, could be raised before Service Tribunal and an aggrieved civil servant, could not bypass jurisdiction of Service Tribunal by adding said grounds/objection in his Constitutional petition.
Shagufta Begum v. The Inco ‑tax Officer, Circle XI, Zone‑B, Lahore PLD 1989 SC 360 and Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129 ref.
Shiraz Iqbal Chaudhry for Petitioner
Date of hearing: 19th October, 2001.
ORDER
In the Constitutional Petition the petitioner has sought the following reliefs: ‑‑
(a) That continuous suspension of the petitioner is illegal and ultra vires.
(b) Declare that inquiry conducted so far by Inquiry Committee, in absence of the complainant, is illegal and without lawful authority.
(c) Direct the Inquiry Committee to conduct the Inquiry in accordance with law.
(d) Declare the Removal from Service (Special Powers) Ordinance, 2000 does not apply to the petitioner as petitioner is worker and he would be dealt with in accordance with the provision of Industrial Relations Ordinance, 1969.
(e) Any other relief/relieves this Hon'ble Court may be pleased to grant.
The grievance of the petitioner is with regard to the issuance of charge‑sheet under the Removal from Service (Special Powers) Ordinance, 2000 as well as the order of suspension dated 27‑2‑2001, constitution of the inquiry Committee and its proceedings. The petitioner, submitted that he was being victimized by the Management of respondent No.2 inasmuch as a false and fabricated charge‑sheet was issued to him on 29‑9‑2000. When it was found by respondent No.2 after the conclusion of the inquiry proceedings that there was no material to establish the charge against the petitioner, they proceeded under the aforesaid Ordinance of 2000. It was submitted that the actions of the respondents were mala fide, illegal and coram non judice. It was also submitted that the inquiry proceedings were not being conducted in accordance with the principles of natural justice and fair play and the petitioner was not being allowed the benefits and the privileges, which he was entitled to during the conduct inquiry proceedings. Hence this petition.
We have heard the arguments of Mst. Shiraz Iqbal Chaudhry and Pave perused the material on record.
In the first place, the petitioner is a civil servant in accordance with the provisions of section 2‑A of the Service Tribunals Act and for the redress of a grievance relating, to the terms and conditions of service he has to approach the Service Tribunal. He is precluded from invoking the Constitutional jurisdiction of this Court by virtue of Article 212 of the Constitution of the Islamic Republic of Pakistan. The second ground on which this petition is not maintainable is issuance of a show‑cause notice and initiation of proceedings under the disciplinary rules against a civil servant, does not furnish him a cause for invoking the jurisdiction of a tribunal or a Court. It is a settled principle of law that the civil servant would not have any cause of action to challenge a show‑cause notice and the inquiry proceedings initiated pursuant to the show‑cause‑notice. We may refer here to the case of Shagufta Begum v. The Income‑tax Officer, Circle XI, Zone‑B, Lahore, reported in PLD 1989 SC 360, wherein the Supreme Court pronounced that a show‑cause notice did not furnish a ground to an aggrieved party to invoke the jurisdiction of a Court/Tribunal and the proper, forum for him was to submit a reply thereto and to face the consequent proceedings, if initiated.
It was submitted by Ms. Shiraz Iqbal Chaudhry that the petitioner has challenged the authority of the management of respondent No.2 who issued a show‑cause notice, charge‑sheet, suspension order and initiation of inquiry on the grounds that the same were mala fide, coram non judice, ultra vires and without lawful authority and all such grievances could not be raised before the Service Tribunal as it has no jurisdiction to consider the same and, therefore, the petitioner had no option but to invoke the constitutional jurisdiction of this Court. This contention is without any substance. It is a settled principle of law that objections/issues with regard to mala fides coram non judice, order being ultra vires and the illegality of the authority issuing the order can be raised before a Service Tribunal and an aggrieved civil servant cannot bypass the jurisdiction of the Service Tribunal by adding the aforesaid grounds. In support of the above proposition reliance is placed on the case of Asadullah Rashid v. Haji Muhammad Muneer and others, reported in 1998 SCMR 2129. In this case the Supreme Court pronounced that orders even if mala fide, ultra vires or coram non judice would fall within the ambit of Service Tribunal and jurisdiction of Civil Courts including this Court was ipso facto ousted as result of the barring provisions of Article 212 of the Constitution of the Islamic Republic of Pakistan.
Upon the above discussion this Constitutional Petition was found to he misconceived and not maintainable. Accordingly, by a short order, dated 19‑10‑2001 this petition was dismissed in limine alongwith the miscellaneous application pending therein for reasons to be recorded later. These are the reasons for the said short order.
H.B.T./A‑309/K Petition dismissed.