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Petitioner: RIFFAT HASSAN VS Respondent: FEDERATION OF PAKISTAN through Chairman, Federal Board of Revenue/Secretary, Revenue DivisionHonorable Justice Shahid Anwar BajwaKhalid Jawaid Khan,Syed Shafquat Ali Shah Masoomi and Ashiq Raza
2011 P L C (C
2011 P L C (C.S.) 562
[Karachi High Court]
Before Shahid Anwar Bajwa and Tufail H. Ibrahim, JJ
RIFFAT HASSAN and 9 others
Versus
FEDERATION OF PAKISTAN through Chairman, Federal Board of Revenue/ Secretary, Revenue Division and another
Constitutional Petitions Nos.D-2299 of 2008, D-1938 and High Court Appeal No.179 of 2010, decided on 12th November, 2010.
(a) Removal from Service (Special Powers) Ordinance (XVII of 2000)---
----S. 5---Sales Tax Act (VII of 1990), S.51(2)(3)---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan, Arts.199 & 212---Maintainability---Constitutional petition---Office of Federal Board of Revenuer---Show-cause notice, issuance of---Domestic disciplinary proceedings, initiation of---Charge of passing refund order in an admissible sales tax matter by petitioner---Deletion of word "final" from S.4 of Service Tribunals Act, 1973 had not enlarged scope of appeal thereunder---Such deletion would not mean that every order or procedural determination by departmental authority would be challengeable before Service Tribunal, rather only an order determining a substantive question relating to terms and conditions of service or disciplinary action could be challenged before Tribunal---Appeal under Removal from Service (Special Powers) Ordinance, 2002 was provided only against final order of penalty, and till its passing, jurisdiction of High Court to scrutinize departmental action (whether same was in accordance with or not) was not ousted -- No order of penalty either original or appellate had been passed against petitioner---Constitutional petition was maintainable in circumstances.
Muhammad Mustafa Kamal v. Federation of Pakistan and others (C.P. No.D-1311 of 2009); Mushtaq Ahmed Sabto and others v. Federation of Pakistan and others 2001 PLC (C.S) 623; Syed Aftab Ahmed Jafri v. Pakistan through Secretary, Ministry of Health (Health Division), Government of Pakistan, Islamabad and others 2004 PLC (C.S) 52; Muhammad Yar Buttar and 4 others v. Board of Governors, Overseas Pakistanis Foundation, Islamabad and another, 1999 PLC (C.S.) 409; Wali Ahmed Khan v. Government of Sind and 6 others 1982 PLC (C.S.) 1; Muhammad Afzal Khan v. Karachi Development Authority and 6 others PL.D.1984 Karachi 114; M.A. Rehman v. Federation of Pakistan and others 1988 SCMR 691; English Sweets (Pvt.) Ltd., Karachi v. Pakistan through Secretary to the Government of Pakistan, Islamabad and 3 others 2005 PTD 247; Pervaiz Aslam v. Ilyas Hussain Shah and another 1999 SCMR 784; Syed. Aftab Ahmed and others v. K.E.S.C. and others 1999 SCMR 197; Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129 and Rauf Akhtar Farooqui and others v. Director General, Karachi Development Authority (KDA), Karachi and others 2001 SCMR 927 ref.
(b) Service Tribunals Act (LXX. of 1973)---
----S. 4---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Maintainability---Deletion of word 'final" from S.4 of Service Tribunals Act, 1973---Effect---Such deletion neither had enlarged scope of appeal under S.4 of Service Tribunals Act, 1973 nor would mean that every order or procedural determination by departmental authority would be challengeable before Service Tribunal---Only an order determining a substantive question relating to terms and conditions of service or disciplinary action could be challenged before Tribunal --- In absence of an order either original or appellate, civil servant could invoke constitutional jurisdiction of High Court for redressal of his grievance.
(c) Constitution of Pakistan---
----Art. 199---Constitutional petition against show-cause notice---Maintainability---Principles stated.
When a show-cause notice is: (a) mala fide, (b) issued by a person, who did not have authority to issue it, (c) issued in clear and apparent violation of law; and (d) where non-exercise of jurisdiction will result in miscarriage of justice, then constitutional jurisdiction can always be invoked and constitutional petition would be maintainable.
Kohinoor Industries v. Government of Pakistan, PTCL 1984 CL 280 and English Sweets (Pvt.) Ltd., Karachi v. Pakistan through Secretary to the Government of Pakistan, Islamabad and 3 others 2005 PTD 247 ref.
Wali Ahmed Khan v. Government of Sind and 6 others 1982 PLC (C.S.) 1 and Muhammad Afzal Khan v. Karachi Development Authority and 6 others PL.D.1984 Kara 114 rel.
(d) Removal from Service (Special Powers) Ordinance (XVII of 2000)---
----Ss. 5 & 6---Sales Tax Act (VII of 1990), S.51---Constitution of Pakistan, Art. 199---Constitutional petition---Officer Federal Board of Revenue---Charge of passing refund order in an inadmissible sale tax matter---Departmental disciplinary proceedings against the officer---Validity---Provision of S.51(2) of Sales Tax Act, 1990 would bar only a suit, prosecution or other legal proceedings against Federal Government or any public servant in respect of any order passed in good faith under Sales tax Act, 1990---Disciplinary action initiated against petitioner was neither a suit nor prosecution stricto sense nor a proceedings against Federal Government---Inquiry could be initiated against an officer or officials of any of agencies under Sales Tax Act, 1990---Impugned proceedings were not barred by S.51 of Sales. Tax Act, 1990---High Court dismissed such petition in circumstances.
(c) Administration of justice---
---'Judicial', 'quasi-judicial' and 'executive' determination' of a question of fact and law---Distinction stated.
Both in judicial and quasi-judicial proceedings, if a question of fact is being considered, it must be decided by evidence, and if a question of law is being considered, it must be decided upon presentation of legal arguments. Judicial power may be exercised not only by the Court, but by quasi- judicial authorities. But if any authority is exercising quasi- judicial power, it can do so only after resort to adversarial system of adjudication. When without this inalienable indicia of judicial trappings, if an executive authority makes a determination, it is at best an executive determination and cannot be said to be a quasi-judicial proceedings or quasi-judicial order or quasi-judicial determination.
M.A. Rehman v. Federation of Pakistan and others 1988 SCMR 691; Province of Bombay v. Khushaldas S. Advani and others AIR 1950 SC 222; Jaswant Sugar Mills Ltd. Meerut v. Lakshami Chand and others AIR 1963; Black's Law Dictionary; Pir Syed Safi-ud-din v. Secretary PLD 1958 Pesh. 157 rel.
(d) Civil service---
----Domestic disciplinary proceedings and criminal proceedings, initiation of---Legal effect of such proceedings stated.
Domestic and criminal actions are independent of each other and one does not have any link with the other and the result of one cannot have any effect or bearing upon the other.
(e) Civil service---
----Inquiry proceedings---Duty of domestic forum to adjudge fairly, justly, equitably and in accordance with law---Recommendations once given by Inquiry Committee could be challenged right upto Supreme Court.
Khalid Jawaid Khan for Petitioners.
S.M. Iqbal along with Azhar Sajjad, Secretary Litigation, Syed Shafquat Ali Shah Masoomi and Ashiq Raza D.A.-G. for Respondent No.2.
JUDGMENT
SHAHID ANWAR BAJWA, J.--- These two Constitution Petitions and High Court Appeal were finally heard at Katcha Peshi stage and are being decided.
2. Facts relevant to C.P. No.D-2299 of 2008 are that the petitioners are officers of Federal Board of Revenue. Disciplinary proceedings under the provisions of the Removal from Service (Special Powers) Ordinance, 2000 were initiated against the petitioner and in this connection Statements of Allegations were issued. The allegations in sum and substance pertain to certain orders stated to have been passed by the petitioners in connection with certain Sales Tax refund cases which it is alleged were not admissible. The Constitution petition was filed with the prayer that pending final adjudication of cases relating to the same refund claims before the hierarchy provided under the Sales Tax Act, 1990, proceedings against the petitioners under the provisions of the Removal from Service (Special Powers) Ordinance, 2000, be declared as arbitrary, premature, mala fide, discriminatory and unlawful. Similar prayer is made on the ground that certain proceedings are pending before the Accountability Court and it is prayed that the order of inquiry/ Statements of Allegations be set aside and Inquiry Committee be restrained from conducting proceedings under the provisions of the Removal from Service (Special Powers) Ordinance, 2000.
3. In C.P. No. D-1938 of 2010 the proceedings in the similar context were initiated kit action was taken under the Efficiency and Discipline Rules, because on the date charge-sheets were issued, the Removal from Service (Special Powers) Ordinance, 2000 had been repealed by the Legislature.
4. In H.C.A. No. 179 of 2010 Statement of Allegations was issued under the provisions of the Removal from Service (Special Powers) Ordinance, 2000. A suit for declaration and permanent injunction was filed. The plaint was rejected on an application under Order VII, Rule 11, C.P.C. vide order, dated 6-5-2010. This High Court Appeal under section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980 has been filed to challenge and impugn that order.
5. Mr. Khalid Jawaid Khan, learned counsel for the petitioners/ appellant made the following submissions:---
(1) That the orders passed by the petitioners were quasi-judicial orders and unless these orders have been set aside and finally determined by the judicial hierarchy no disciplinary proceedings could be initiated against the petitioners.
(2) Even if quasi-judicial orders are wrong the petitioners cannot be proceeded against in departmental proceedings unless allegations of mala fides or corruption or allegations of the like nature are leveled against the petitioners and there are no such allegations leveled in the present case.
(3) Learned counsel referred to section 50 of the Sales Tax Act, 1990 and submitted that the entire system is computerized and therefore dealing officer has no discretion in the matter and could not be guilty of any misconduct. In this regard learned counsel also referred to Rules 29 and 30 of Sales Tax Rules and submitted that the system is called CREST (Computerized Risk-based Evaluation of Sales-Tax).
(4) Learned counsel by referring to Section 50(1) submitted that in view of this section no disciplinary proceedings could be initiated against the petitioner.
(5) On the question of maintainability of the petition learned counsel referred to judgment of this Court in the case of Muhammad Mustafa Kamal v. Federation of Pakistan and others (C.P. No.D-1311 of 2009) decided on 22-9-2010. He further submitted that no final order has yet been passed. Learned counsel relied upon Mushtaq Ahmed Sabto and others v. Federation of Pakistan and others 2001 PLC (C.S) 623 and Syed Aftab Ahmed Jafri v. Pakistan through Secretary, Ministry of Health (Health Division), Government of Pakistan, Islamabad and others 2004 PLC (C.S) 52. Learned counsel also relied upon Muhammad Yar Buttar and 4 others v. Board of Governors, Overseas Pakistanis Foundation, Islamabad and another, 1999 PLC (C.S.) 409.
(6) Learned counsel further submitted that even against show-cause notice writ petition is maintainable. In this regard learned counsel relied upon Wali Ahmed Khan v. Government of Sind and 6 others 1982 PLC (C.S.) 1 and Muhammad Afzal Khan V. Karachi Development Authority and 6 others PLD 1984 Kar. 114.
(7) On the point that order of refund passed by a Sales Tax functionary is a quasi-judicial order, learned counsel relied upon M.A. Rehman v. Federation of Pakistan and others 1988 SCMR 691 and English Sweets (Pvt.) Ltd., Karachi v. Pakistan through Secretary to the Government of Pakistan, Islamabad and 3 others 2005 PTD 247.
(8) In respect of C. P. No.1938 of 2010 learned counsel submitted that charge-sheet was issued and thereafter ex parte inquiry was held and the Inquiry Officer after conducting exparte inquiry submitted his report. A third inquiry was ordered on 26.3.2010. Learned counsel submitted that he would be satisfied if it is ordered that the Inquiry Officer shall not be influenced by the findings recorded in the first two inquiries.
(9) As far as, High Court Appeal is concerned, learned counsel submitted that a. number of authorities were cited before the learned Judge but learned Judge did not refer to any of the case law.
6. Mr. Muhammad Iqbal Shah, learned counsel for the respondents in C. P. No. D-2299 of 2008 submitted that the orders passed by the petitioners were not quasi-judicial orders because they processed the cases. He submitted that unless an order is passed after hearing the contending parties points of view the order cannot be said to be a judicial or quasi-judicial order because for both it is essential that adjudication must take place. He submitted that quasi-judicial process starts from the Appellate Authority and not with the authority which passed the order.
7. Mr. Shafquat Ali Shah Masoomi, learned counsel for the respondents in C. P. No. D- 1 938 of 2010 submitted that earlier proceedings of inquiry must be considered by the fresh Inquiry Officer. Learned counsel further submitted that it is a question of factual controversy which cannot be decided in exercise of Constitutional jurisdiction. Lastly he submitted that disciplinary matters fall within the jurisdiction of Federal Service Tribunal and therefore, jurisdiction of this Court is barred by Article 212 of the Constitution. Learned counsel in this regard relied upon a number of authorities to which we shall refer at their due palace in the course of this judgment.
8. Mr. Ashiq Raza, learned D.A.-G. supported the arguments of Mr. Iqbal Shah and Mr. Shafquat Ali Shah Masoomi and submitted that the petitions are not maintainable and the order passed by the Single Judge against which High Court Appeal has been filed is an order in accordance with the law and the appeal should be dismissed.
9. We have considered the submissions made by the earned counsel and have also gone through the record as well as considerable case law cited at the bar.
10. We shall first take up question of maintainability of these petitions. In C.P.No.D-2299 of 2008 action was initiated under the Removal from Service (Special Powers) Ordinance, 2000. Learned counsel for the petitioners relied upon Mushtaq Ahmed Sabto's case (supra). In this case a number of officers were placed under suspension and they remained under suspension for more than 8 months and were not served with any show-cause-notice nor apprised of the allegations against them. Consequently they filed Constitution petitions in the High Court. Maintainability of the petitions was challenged on the touchstone of Article 212 of the Constitution. The Division Bench after observing that it is settled that if an appeal is maintainable before a Service Tribunal jurisdiction of High Court is barred, observed as under:
"9. A bare perusal of section 9 would show that unlike Rules 3 and 4 of the Civil Servants (Appeal) Rules, 1977 the right to prefer a departmental appeal or representation to the Chief Executive or a designated authority is only confined against orders of dismissal, removal, compulsory retirement, reduction to a lower post or imposition of any other penalty. Section 10 relates to appeal before the Federal Service Tribunal but provides that only an appeal against a final order under section 9 may be preferred before the Tribunal. Moreover, section 11 postulates that the provision of this Ordinance are to prevail over anything to the contrary contained in the Civil Servants Act, the rules made there under or any other law. It is, therefore, clear that unless a final order causing removal, compulsory retirement or imposing penalty under section 3 has been passed and a representation against the same has been decided under section 9, no appeal would like to the Service Tribunal."
Consequently it was held that since no final order had been passed Constitution petition before the High Court would be maintainable.
11. In Syed Aftab Ahmed Jafri's case (supra), again proceedings were initiated under the Removal from Service (Special Powers) Ordinance, 2000. The employee in this case had been removed from service. He preferred departmental appeal and upon failing to receive response within the stipulated time filed appeal before Service Tribunal. Appeal was admitted and notices were served on the respondents. During pendency of the appeal the petitioner was directed to be reinstated and on the same day an order of suspension was passed against him under the Removal from Service (Special Powers) Ordinance, 2000 and a week later a Statement of Allegations identical to the one which formed the basis of earlier action against the petitioner was issued. In consequence of order of reinstatement the Tribunal disposed of appeal as having become infructuous but it declined to interfere with the Statement of Allegations subsequently issued. The High Court relying upon its earlier judgment in Mushtaq Ahmed Sabto's case held that since final order has-not been passed, writ petition would be maintainable. The third case relied upon by the learned counsel was that of Muhammad Mustafa Kamal v. Federation of Pakistan and others in (C.P. No.D-1311 of 2009). This judgment was authored by one of us (Shahid Anwar Bajwa, J.). It was also held in this case that since final order had not been passed and it is final order which is challengeable in terms of Section 10 of the Ordinance of 2000, the Constitution Petition would be maintainable.
12. On the other hand, Mr. Shafquat Ali Shah Masoomi, relied upon a number of case law and we shall refer only to view of them. First case relied upon by the learned counsel was Pervaiz Aslam v. Ilyas Hussain Shah and another, 1999 SCMR 784. In this case an employee was transferred and instead of complying with the order he filed Constitution Petition in the High Court. The High Court through an interim order suspended the operation of transfer order. The Supreme Court did not agree with the Advocate for the civil servant that since the transfer was based on extraneous considerations therefore it could be challenged in writ petition. The Supreme Court held that jurisdiction of the High Court under Article 199 of the Constitution was barred by Article 212 of the Constitution. Second case referred to by the learned counsel was Syed Aftab Ahmed and others v. K.E.S.C. and others 1999 SCMR 197. This was a case in which it was held that where section 2-A of the Service Tribunals Act, 1973 is applicable, Constitutional jurisdiction of the High Court would be barred. Learned counsel also relied upon Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129. This case was also of a transfer of an employee and the Supreme Court held that the jurisdiction of the High Court was barred. In Rauf Akhtar Farooqui and others v. Director General, Karachi Development Authority (KDA), Karachi and others 2001 SCMR 927, inquiry report against an employee of the authority was challenged in a civil suit before High Court and the plaint was rejected by this Court by holding that matter pertained to terms and conditions of service. The Supreme Court upheld order of the High Court.
13. We may also refer to Muhammad Yar Buttar's case (supra). It may be pointed out that in section 4(1) of the Service Tribunal Act, originally it was provided as under:---
"(4) Appeals to Tribunals.--- (1) Any civil servant aggrieved by any final order, whether original or appellate, made by a department authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal."
The word "final" occurring therein was deleted by the Amending Act of 1997. The impact of deletion of word 'final' was considered by the Supreme Court and it was laid down as under:---
"In this behalf, it may be stated here that the "order" within the meaning of the Service Tribunals Act has to be interpreted and has to be confined within the four-corners of the civil Servants Act and the Service Tribunals Act and an appeal against an order is relatable to the terms and conditions of a civil servant. In this context, it is to be seen that if a civil servant like the appellants is being proceeded for disciplinary action, then what type of orders can be issued or passed by a competent Authority. The answer to these questions has been elaborately dealt with by the Tribunal. In such proceedings, as rightly observed by the Tribunal, the following orders to be passed within the contemplation of the rules governing disciplinary action:
(1) Appointment of Inquiry Officer or committee.
(2) Show-cause notice.
(3) Framing of charge-sheet.
(4) Preparation of statement of allegations.
(5) Second show-cause notice.
(6) Appointment of authorized officer.
(7) Decision of the authorized officer whether inquiry should be conducted by the Inquiry Officer or a Committee.
(8) Decision of the authorized officer not to hold an inquiry by an Inquiry Officer or a Committee.
(9) Information to the officer about the action proposed to be taken.
(10) Adjournment during any proceedings.
(11) View of the Inquiry. Officer or Committee that the officer was hampering the progress of inquiry.
(12) Various other steps to complete an inquiry.
In our view, the Tribunal rightly observed that if in the light of the amendment in section 4 of the Service Tribunals Act, appeals were maintainable against all the above noted orders, then it would be an endless inquiry and no inquiry could reach its logical conclusion. In this behalf, it may be stated here that while interpreting a provision of statute or rules, such interpretation is not to be placed, which could render the object of the statute or rules as futile or which in other words would frustrate the very object of the statute or the rules.
However, we may further add that it will depend upon the nature of each order as to whether appeal against such order is maintainable or not because the abovementioned situations deal with procedural matters. The questions of mala fides and coram non judice, would stand on a different footing.
6. We may further add here that right of appeal is a statutory right and is conferred upon the person aggrieved and the statutes conferring such right also define its scope. No extraneous consideration or matter can be imported in the relevant statute so as to abridge or enlarge scope of appeal. The omission of the word "final" from section 4 of the Service Tribunals Act does not enlarge the scope of the appeal as envisaged by section 4 of the Act. The provision of section 4 lays down the conditions and circumstances in which an appeal is maintainable or not. To illustrate, under section 4(b) and (c), no appeal lies to a Tribunal against an order or decision of a Departmental Authority determining the fitness or otherwise of a person to be appointed or to hold a particular post or to be promoted to a higher post or grade and similarly, no appeal lay against an order or decision of a departmental authority at any time before the 1st of July, 1969. Under section 4(a), an embargo has been placed by the legislature on filing an appeal to the effect that if an appeal, review or representation to a departmental authority is provided under the Civil Servants Act or the Rules, against such orders, then no appeal is maintainable before the Tribunal unless the aggrieved person has preferred an appeal or application for review or representation to such departmental authority and a period of 90 days has elapsed from the date on which such appeal, application or representation was preferred. In our view the scope of the appeal under section 4 is confined only where a person has been dismissed or removed from service or has been compulsory retired or has been reduced to a lower post or time-scale or to a lower stage in a time-scale. Section 2(2)(b) also envisages appeal to the Tribunal in respect of grievances not covered by section 4(a) to sum up, in our view an appeal under section 4 of the Service Tribunals Act is maintainable only, when the question relates to enforcement of terms and conditions of service of an employee as envisaged by the Service Tribunals Act, and the omission of the word 'final' would not advance the case of the appellants."
14. Perusal of the above case law indicates the position to be as under:--
(1) Article 212 of the Constitution bars jurisdiction of this Court in respect of matter relating to terms and conditions of service including…
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