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Petition No. 340 of 1970, decided on 16th February 1971.

(a) Constitution of Pakistan (1962), Art. 98‑‑Pre‑requisites for invoking Constitutional remedy under Art. 98 : (i) petitioner

to show that he is "aggrieved" from certain orders or directions of a Court or tribunal and, (ii) that no other adequate remedy available to him‑Petitionerfailing to comply with such pre‑requi sites‑Has no locus standi to maintain petition.

It is well settled that exercise of jurisdiction by the High Court under Article 98 of the Constitution is very limited in its scope, and it has to be used very sparingly. As a pre requisite for invoking this constitutional remedy, the petitioner has to show to the satisfaction of the Court that he is left with no other adequate remedy under the ordinary law of the land, secondly, he is equally to satisfy the Court that he is really "aggrieved" from certain orders or directions of a Court, autho rity, or tribunal which need rectifying The petitioner was pro ceeded against under the West Pakistan Government Servants

(Efficiency and Discipline) Rules, 1960, with proper and valid sanction for very serious charges of misconduct and corruption. Many witnesses had been examined and the stage had been reached when the petitioner had to lead his defence. At this stage (i.e., before the completion of the inquiry or before any penalty was imposed on him) he rushed to the High Court and

filed a writ petition. The High Court held the petition to be premature and dismissed it with costs. It was held that as the petitioner had failed to fulfil the first two pre‑requisites of Article 98 of the Constitution he could not invoke the jurisdic tion of the High Court under its restricted Constitutional powers, based one imaginary grievances. [pp. 263, 264]A & B

Tariq Transport Co. v. Sargodha‑Bhera Bus Service P L D 1958 S C (Pak.) 437 ref.

(b) Legal practitioner‑Prosecuting Deputy Superintendent of Police‑Does not come within definition of a counsel or Advocate. (p. 264]C

Jamaluddin H. Ahmad for Petitioner.

Ali Akbar for Respondents.

Date of hearing : 12th February 1971.

KHUDA BAKHSH MARRI, J.‑This Constitution Petition is directed against a pending departmental enquiry, for misconduct and corruption, bung held under rule 8 of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960.

2. Brief facts of the case are, that petitioner Hassan All M. Soomro, a Government servant, working as Executive Engineer, Irrigation Department, Government of West Pakistan, was deputed to work under WAPDA, wherein he worked as Project Director Lower Indus Project with office at Hyderabad, from 22‑5‑1963 to 7‑6‑1965.

3. In consequence of certain complaints against him as Project Director, Governor of West Pakistan through Secretary, Irrigation, ordered an enquiry vide Annexure "D" dated 6‑4‑1910 against petitioner, and by the same order Mr. Muhammad Siddique Memon, Superintending Engineer, Nara Canal Circle, Hyderabad, was appointed as Enquiry Officer.

4. The petitioner was duly served with a charge‑sheet for misconduct and corruption along wi;h a detail:d statement of allegations and he was called upon to show cause in writing within 14 days of receipt of the charge‑sheet and also given option to notify if he wanted to be heard in person as well, (Annexures "A" and "B" are the charge‑sheet and statement of allegations).

5. The petitioner was charge‑sheeted on six different counts for misconduct and corruption alleged to have been committed between 1964 and 1965. The main charges are, that while functioning as a Government servant he opened a firm in name of his wife at Hyderabad under his own signature, and attempted to obtain an agency for cement from Vahka Cement Industries, Karachi, thus engaged himself in trade, and also, he obtained illegal gain of Rs. 1,000 from Government fund., by approving false tenoers for making two pigeon hole cup boards, which were actually made in his residence from scrap material left over from his own building, this work was got done through one Ali Muhammad, a contractor, who did not exist, and also as a. Government servant acting against service rules, he purchased an Auto Rickshaw and obtained a route permit in his own name, utilized the same as a taxi in Hyderabad, thus allowed himself to be engaged in trade.

6. An explanation to the charge‑sheet was submitted by the petitioner, then after due notice to petitioner, 30‑4‑70 wus fixed by the Enquiry Officer for conducting the proceedings and on that date admittedly 8 witnesses were examined, and, thereafter, evidence of various witnes es were recorded, on next dates of hearings i.e. on 1‑5‑1970, 23‑5‑1970, 25‑5‑1970 and 26‑5‑1970.

7. It appears, that while the enquiry was in progress, the petitioner feeling dtssatistied with the conduct of enquiry, filed present Constitutional petition in this Court on 29‑,)‑1970, and obtained ad interim stay of proceedings vide order dated 2‑7‑701

8. The main grievance of petitioner is that respondent No. 2 Mr. Muhammad Siddique, permitted respondent No. 3 Akram Mehmood, a P.D.S.P. deputed to WAPDA, to conduct the enquiry. It is contended that as there being no provision in law for permitting the department to be represented by a counsel, the

Enquiry Officer by permitting P.D.S.P., a Law Officer of respon dent No. 1 (WAPDA) as such, acted in excess of his powers. It

was further urged by counsel for petitioner that, refusal of respondents, to allow petitioner the :.ervices of a counsel, while department is being represented by a P.D.S.P., is jeopardizing petitioner's case. It is also objected to, that respondent No. 4, the Investigating Otlicer was allowed to be present and actually assist the P.D.S.P. at the time of recording statements of witnesses, was to great disadvantage to petitioner's case, which according to petitioner amounted to violation of principles of natural justice in that, he was not given fair opportunity to show

cause against proposed action against him. A general prayer, therefore, was made to restrain respondent No. 2, the Enquiry Officer from violating the rules and direct him to disallow respondents Nos. 3 and 4, the P.D.S.P. and Investigating Officer, to be present at‑the time of examining prosecution witnesses.

9. From a perusal of the record, and of parawise comments of respondent No. 2 the Enquiry Officer, it becomes abunda,:tly clear that, to say the least, this Constitutional Petition is mis conceived and it simply does not lie, for more than one reason. It is well ett'ed, that exercise of jurisdiction by this Court under Article 98 of the Constitution is very limited in its scope, and it

has to be used very sparingly. As a pre‑requisite for invoking this constitutional remedy, the petitioner has to show to the A satisfaction of the Court that he is left with no other adequate remedy under the ordinary law of the land, secondly, he is

equally to satisfy the Court that he is really "aggrieved" from certain orders or directions of a Court, authority, or tribunal which need rectifying.

10. In absence the above two pre‑requisites having been complied with a petitioner has no locus standi to come before this Court to invoke its limited constitutional jurisdiction.

11. In the present case, the petitioner is being proceeded against, under relevant rules, with proper and valid sanction, for very serious charges of misconduct and corruption. Admittedly

good many witnesses have been examined, the remaining few were about to be examined, and thereafter petitioner had to lead his defence. Before reaching to this stage, the petitioner on one

single day of enquiry i e. 23‑5‑1970, moved not less than 5 appli cations (Exhs. "E" to "I") before the Enquiry Officer, containing varied and wild allegations against the presence of respondents

Nos. 3 and 4 who are representing the compl sinant department i e. WAPDA. In one breath he demanded his right to be represented,

by a counsel, as well as postponement of proceedings to seek legal remedy, and again wants fresh examination of witnesses

already examined, and then complains for not being supplied with copies of statements of witnesses. It is further alleged that no orders were ever passed on his objections by the Enquiry

Officer. Now, this is factually wrong, as each of his applications has been disposed of by the Enquiry Officer and appropriate orders have been passed on them, they are (Exhs. "D‑1" to "I‑1"). dated 23‑5‑70 and 25‑5‑1970.

12. There appears to be no valid reason for petitioner to rush to this Court. before the completion of the enquiry, and before any penalty is imposed upon him, even then he had to exhaust all available remedies provided by West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, ‑by way of appeal or representation, and thereafter he could invoke this Court's jurisdiction. But reverse is the case here, as enquiries are incomplete, defence evidence has.not even been led so far. How the petitioner can safely say that he has no other adequate remedy, and how he can come within the definition of an aggrieved party as under Article 98 of the Constitution As he has failed to fulfil the first two pre‑requisite of Article 98 of the Constitution, he cannot invoke the jurisdiction of this Court under its restricted constitutional powers, based on his imaginary griev ances. Before parting with this case, let us, make it clear, that the main grievance of petitioner has been, that he has been, denied the services of a counsel. Suffice . to say, that although under section 6 (iv) (d) of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, an accused officer has tha right to be represented by a counsel where department has engaged a counsel. Section 6 (iv)(d) is as under :‑

"No person who is called upon to produce his defence as to charges which form the subject‑matter of an enquiry against him shall be allowed to engage counsel

Provided that if the charge or charges are likely to result in the dismissal of such person he may, with the sanction of the Enquirying Officer, be represented by counsel

Provided further that if in an enquiry, counsel is engaged on behalf of any department of Government, the person against whom the charges are b.‑ing inquired into, shall be entitled to engage counsel."

A radical change by amendment has . been brought out in this respect vide Gazette of West Pakistan, Extraordinary, dated 5‑3‑1969. The Rules of 1960, have b.‑en recast, new sections 6‑A, 6‑B and 13‑A have. been added. The provision regarding services of a counsel has been altogether deleted. When this legal position was pointed out to the counsel for petitioner, and he was asked that bow he thinks his client has a right to be represented by a counsel, particularly when there is no provision in the relevant rules, which are admittedly amended prior to his filing the peti tion, he had nothing to reply. All he said was that P.D.S.P. was a Law Officer, who is allowed to assist Department therefore, his client may be allowed to engage a counsel. When he was asked to show if a P.D.S P. comes within the definition of aC counsel or Advocate, he failed to show any reported case in his support. Besides, a P.D.S.P. not being an Advocate or legal practitioner as defined by Bar Council Act, 1965, or Legal Practitioners Act, 1879, the objection of petitioner holds no water and is hereby repelled. 1n this connection, the law laid down by their Lordships of the Supreme Court in Tariq Transport Co. v. Sargodha‑Bhera Bus Service (1) may be quoted with

(1) P L D 1958 S C (Pak) 437

advantage which in our view equally applies to the facts of the present case t

" . . . it to be wrong on principle for the High Court to entertain petitions for writs, except in very exceptional circum stances, when the law provides a remedy by appeal to another Tribunal fully competent to award the requisite relief., Any indulgence to the contrary by the High Court is calculated to create distrust in statutory tribunals of competent jurisdiction and to cast an undeserved reflection on their honesty and competency and thus to defeat the legislative intent. And in a case of the present kind where the right which the petitioner for a writ claims to vest in him ‑ is entirely the creation of a statute, it is all the more imperative on him to exhaust the remedies provided by the statute before he comes to the High Court. He cannot be permitted to say that while he will have one or all the benefits of the statute, he will comply with none of its remedial ‑processes. "

13: In view of the above facts, and legal position, we are of the firm opinion that this petition is premature, and is hereby dismissed with costs. The result is, ad interim stay, stands, vacated, the enquiry has to proceed expeditiously and according

to law. ‑

K. B. A. Petition dismissed.

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