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Petitioner: MUHAMMAD AFZAL VS Respondent: COMMISSIONER OF INCOME TAX/WEALTH TAX BAHAWALPUR ZONE BAHAWALPUR
2002 P L C (C
2002 P L C (C. S.) 1632
[Lahore High Court]
Before Muhammad Akhtar Shabbir, J
MUHAMMAD AFZAL
Versus
COMMISSIONER OF INCOME TAX/WEALTH TAX BAHAWALPUR ZONE BAHAWALPUR and 2 other
Writ Petition No. 1285 of 2001, decided on 11th May, 2001.
(a) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Scope‑‑‑Where a party resorts to a statutory remedy against an order then he cannot abandon or bypass it without any reasonable cause and file constitutional petition challenging the same Order.
Commissioner of Income Tax and others v. Hamdard Dawakhana (WAQF) Karachi PLD 1992 SC 847 ref.
(b) Removal from Service (Special Power) Ordinance (XVII of 2001)‑‑‑
‑Ss. 3(1), 4 & 10‑‑‑Service Tribunals Act (LXX of 1973), S. 4‑‑ onstttution of Pakistan (1973), Arts. , 199 & 212‑‑‑Suspension from service‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Order of suspension from service related to terms and conditions of service‑‑‑Federal Service Tribunal tad exclusive jurisdiction in such‑like matters, whereas under Art. 199 of constitutions High Court had no jurisdiction to proceed in such petitions in view of the bar contained in Art. 212 of Constitution.
Province of Punjab and another v. Ch. Muhammad Ashraf and another 2000 PLC (C.S.) 118 ref.
(c) Removal from Service (Special Powers) Ordinance (XVII of 2001)‑‑‑--
‑‑‑‑Ss. 3(1) & 4‑‑‑Government Servants (Efficiency and Discipline) Rules, 1973, R. 4‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Suspension from service‑‑‑Constitutional petition was dismissed in limine on the ground that order of suspension challenged thereby was passed six months before, which after expiry of such period had ceased to have its legal effect.
Mushtaq Ahmad Qazi and others v. Federation of Pakistan through Secretary, Establishment Division. Islamabad and others 2001 PLC (C.S.) 223 ref
(d) Pleading-----
‑‑‑‑Party cannot argue beyond his pleading.
Jamshed Akhtar Khokhar for Appellant.
ORDER
The petitioner has invoked the Constitutional jurisdiction of this Court by challenging the Order No. CIT‑Ad.FF‑156/99‑200/Dep 1/3152, dated 6‑6‑2000 whereby he was placed under suspension with immediate effect for a period of six months.
2. The giving rise to the present petition are that the petitioner had been servings Income Tax Inspector. His services were suspended as an F.I.R. had be lodged against him, which was quashed by this Court vide order dated 4‑4‑2000 passed in Writ Petition No. 3035 of 2000, resultantly the petitioner had been reinstated vide order dated 5‑6‑2000 passed by respondent No. 1 on the very next day i.e. 6‑6‑2000 the petitioner has again been suspended by the said respondent under the removal from services (Special Powers Ordinance, 2000).
3. The learned counsel for the petitioner argued that according to Government Servants Efficiency and Disciplinary Rules, 1973 no employee can be suspended until and unless some charges are levelled against him and such suspension order cannot be issued for more than three months. In this behalf learned counsel has made reliance on case of Mushtaq Ahmad Qazi and others v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (2001 PLC (C.S.) 223).
4. I have heard the arguments of the learned counsel and perused the case‑law referred by him. The order impugned had been passed on 6‑6‑2000 for six months and after the expiry of the said period, it ceased to have its legal effect, therefore, on this sole ground, this petition is liable to be dismissed.
5. It is pertinent to mention here that the order impugned has been assailed by the petitioner through an appeal before appellate authority photo copy of which has been annexed as Annexure ' D'. It is well‑settled law that where any party resort to a statutory remedy against an order then he cannot abandon or bypass it without any reasonable cause and file Constitutional petition challenging the same order I am fortified by the law laid down in case reported as Commissioner of Income Tax and others v. Hamdard Dawakhana (WAQF) Karachi (PLD 1992 SC 847).
6. There is another ground which renders the instant petition incompetent. The petitioner challenged the order of his suspension and the order of suspension of a civil servant is germane to the terms and conditions of service while the Federal Service Tribunal has exclusive jurisdiction to entertain such matters and this Court sitting as it did under Article 199 of the Constitution has no jurisdiction to proceed in such petition in view of the clear bar contained in Article 212 of the Constitutional. For this view, I am supported by the judgments reported in cases of Muhammad Sadiq Khokhar v Engineer‑in‑Cheif Pakistan Army, GHQ and another (1985 SCMR 63) and Province of Punjab and another v. Ch. Muhammad Ashraf and another (2000 PLC (C. S.) 118). The case law referred to by the learned counsel for the petitioner is not attracted to the facts of the present case, inasmuch a it deals with the making of civil servants as OSDS. The petitioner in the instant petition has not voiced a single ground for making him OSD instead he was challenged the only order of his suspension. It is settled legal position that `a person cannot argue beyond his pleadings.
Viewed from any angle, the instant writ petition fails and is dismissed in limine.
S.A.K./M‑897/L.