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Constitutional Petition No. 28 of 1974, decided on 21st November, 1978.
(a) Constitution of Pakistan (1973)‑----
‑‑‑Arts. 199 t 212‑‑Baluchistan Service Tribunal Act (V of 1974), S.4‑‑Writ jurisdiction‑‑Service matter‑‑Impugned order ab initio void or illegal‑‑Petition maintainable irrespective of availability of other remedy or ouster of jurisdiction of civil Courts‑‑Court will not entertain petition when other appropriate remedy is available‑‑Not a rule of law barring jurisdiction of Court but a rule to regulate exercise of discretion of Court.
P L D 1980 Quetta 58 ref.
P L D 1961 S C 119; P L D 1963 S C 322; P L D 1975 S C 450 and Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and another P L D 1973 S C 236 rel.
(b) Baluchistan Civil Servants Act (V of 1974)‑‑-----
‑‑‑S. 4‑‑Removal from service‑‑Contention that civil servant remains in service only at pleasure of Governor‑‑Repelled‑‑Governor too has to follow relevant rules and could not order un-judiciously‑‑Powers can be exercised by authority declared to be competent‑‑Competent authority either Head of Department or any other authority so declared------Order passed by Governor, in circumstances, held, without lawful authority and not sustainable.
‑‑‑Art. 199‑‑Writ petition‑‑Facts supported by affidavit‑‑No counter -affidavit filed‑‑Facts, in circumstances, held, stood proved.
(d) Civil service‑‑--
‑‑‑Resignation‑‑‑Resignation not accepted‑‑Competent authority allowing its withdrawal
after five years was not exceptionable.
I.H.B. Hanafi for Petitioner.
S.H. Jafri for Respondent.
Dates of hearing: 7th and 8th November, 1978.
----‑‑The petitioner Muhammad Gul an Ex‑Drilling Superintendent (Mechanical Division, Quetta) of Irrigation and Power Department, Government of Baluchistan feeling aggrieved against order, dated 18th April, 1974, of the Governor of Baluchistan terminating his service has brought this Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan and prayed that the abovesaid order be declared to have been passed without lawful authority and as such is of no legal effect.
2. The material facts forming background of this petition as disclosed by the petitioner are that in beginning of year 1962 he had joined (Mechanical Division) of the Irrigation and Power Department as Drilling Superintendent. He continued to serve in the Department upto 13th September, 1967 but in very unfavourable circumstances. It was all due to ill‑will existing between him and another Drilling Superintendent Bashir Ahmed who bore grudge against him due to professional jealousy. Allegedly said Bashir Ahmad had created a bad atmosphere against him in the Department. For that reason, the petitioner was unable to continue on his job smoothly in the Department any more. These circumstances compelled the petitioner to resign from the service. He actually tendered his resignation on 15th of August, 1967. And thereafter left his homeland and went to Afghanistan and came back to the country somewhere in the year 1972. However, as stated by the petitioner though denied by the respondent, no action whatsoever was taken on his resignation application. Immediately after his return to this country, he requested for permission to withdraw his resignation: For that purpose, he moved an application to the Secretary, Irrigation and Power Department, Baluchistan and sent a copy thereof in advance to the Minister for Irrigation and Power Department for action. It is on record that the Minister acceded to his entreatment and allowed him to withdraw his resignation. Consequent upon such decision of the Minister, the Secretary, Irrigation and Power Department ordered for re‑instatement of the petitioner in the service against the same post. The petitioner's case in his absence from duty during the intervening period from 31st of August, 1967 till the day of his rejoining the service was yet to be decided in accordance with the relevant rules. The order is reproduced as below:‑‑--
"Minister, Irrigation and Power Department, Government of Baluchistan, is pleased to allow Mr. Muhammad Gul Kakar to withdraw his resignation as he is satisfied that resignation tendered by him was not voluntarily. He is, therefore, hereby re‑instated in service as Drilling Superintendent with immediate effect.
As regards intervening period from 13‑8‑1967 to date of rejoining service, will be decided later on as per Rules".
On the strength of this order, the petitioner joined the service. However, even thereafter the Department did not allow the petitioner to have a sigh of relief. On 16th of August, 1973, a show‑cause notice was issued against him. The show‑cause notice is reproduced here:‑‑
"While you tendered resignation on 13‑8‑1967, you were under suspension and facing a departmental enquiry. This enquiry could not be finalized as you were not in Pakistan. Now you have returned to Pakistan and taken back in service under orders of the Minister, Irrigation and Power. It is, therefore, necessary to finalize the pending enquiry before your period of absence is decided. You were charge‑sheeted vide No. 564‑C, dated 25‑5‑1967. You had submitted a detailed reply to the charge‑sheet, on 10‑7‑1967. An enquiry officer was appointed who completed the enquiry and submitted his report on 22‑8‑1967, after examining the entire record, your report and to you personally. A copy of the enquiry report is enclosed herewith for ready reference. It has been established that charge of misconduct has been proved against you.
It has, therefore, been provisionally decided to stop your two increments with accumulative effect under the Efficiency and Discipline Rules, 1960, amended up-to-date. .
You are, hereby served notice to show‑cause why the proposed penalty should not be inflicted on you. Your reply to the show‑cause notice must reach this office within fifteen days from the date of receipt of this notice failing which it will be assumed that you have nothing to say and action will be taken ex parte.
You can see the undersigned on any working day during office hours, if you desire to be heard in person."
3. The petitioner submitted his explanation to the notice on 21st August, 1973. Thereafter as it appears, the matter remained closed for some time. However, on 18th of April, 1974, the Secretary, Irrigation and Power Department Baluchistan, purporting to act under the orders of the Governor of Baluchistan issued an order whereby treated the earlier order of 26th of June, 1973 as being ab initio, null and void and was declared withdrawn and the petitioner was removed from the service from the date of the acceptance of his resignation. The order is also reproduced:
"Governor of Baluchistan is pleased to order that this Department's Order No. PF‑14018341‑43, dated 26th June, 1973 is null and void, ab initio, and that Mr. Gul Muhammad shall stand removed from service from the date of acceptance of his resignation and shall not be entitled to any arrears of pay."
4. Being aggrieved against this the petitioner has brought this Constitutional petition before this Court. Mr. S.H. Jafri, the learned counsel for the respondent at the outset raised a preliminary objection and challenged the jurisdiction of this Court. The learned counsel submitted that on account of clear bar imposed by Article 212 of the Constitution on Constitutional jurisdiction of this Court, this Court had no jurisdiction either to entertain this petition or to probe into the legality or validity of the order. If the petitioner was aggrieved against the impugned order, he could have easily challenged it in an appeal before the Service Tribunal constituted for that purpose in the Province of Baluchistan. The Article reads:‑‑
"(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act establish one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of.‑‑-
(a) matters relating to the terms and conditions of persons in the service of Pakistan, including disciplinary matters;
(b) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(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:
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."
5. Mr. S.H. Jafri read before us the Article 212. He further submitted that for setting of such Tribunal, the Government of Baluchistan had promulgated the Baluchistan Service Tribunal Act somewhere in the year 1974. The preamble of this Act reads, the learned counsel said, that the Administrative Tribunal or the Service Tribunal shall exercise exclusive jurisdiction over all matters relating to the terms and conditions of the service of civil servants or matters connected therewith or ancillary thereto. The learned counsel submitted that under this Act not only a Service Tribunal has already been established in the Province but actually it has, started functioning. The learned counsel urged that the instant case being too related to terms and conditions of the service of the petitioner, the Service Tribunal constituted had the exclusive jurisdiction to decide it. Besides, the learned counsel submitted that the petitioner could get an adequate remedy by way of appeal under section 4 of the Service Tribunal Act before the Service Tribunal. The learned counsel referred to section 4 of the Act. It reads:‑‑
Appeals to Tribunals.‑‑Any civil servant aggrieved by any final order, whether original or appellate, made by departmental 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, prefer an appeal to the Tribunal having jurisdiction in the matter:
Provided that
(a) Where an appeal, review or representation to a departmental authority is provided under any law or any rules, against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred; and
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining:‑‑
(i) the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade; or
(ii) the quantum of departmental punishment or penalty imposed on a civil servant as a result of a departmental inquiry, except where the penalty imposed is dismissal from service, removal from service or compulsory retirement."
Subsection (b)(ii) of section 4 envisages provision for filing of appeals against dismissal of Government servants from service before the Service Tribunal. In support of his contention the learned counsel placed reliance on case of Mojeeb‑Ullah Ijaz v. Divisional Engineer Telephone and Telegraph Department, Islamabad and two others decided by Full Bench of this Court on 21st of May, 1978. This case is reported in P L D 1980 Quetta 58. The learned counsel emphasised that the Full Bench in unequivocal terms has held that dismissal of a civil servant from service was a matter exclusively to be dealt with by the Service Tribunal and there was complete bar on civil Courts, including High Court in its Constitutional jurisdiction to deal with such matter of dismissal.
6. On the other hand, Mr. I. H. B. Hanafi, the learned counsel for the petitioner replied that the petition in hand was filed much before the promulgation of the Act and the establishment of the Service Tribunal in the Province. He pointed out that this petition was filed on 18th of May, 1974 and the Act had come into force, on 27th of June, 1974. The Service Tribunal was constituted much thereafter somewhere in the year 1976. He emphasised that on this account alone this Court was competent to hear this petition. However, Mr. Jaffery submitted that it was not the correct position of law. He said that under section 6 of the Act, suits, appeals or applications relating to matter within jurisdiction of the Tribunal if pending in any Court immediately before the commencement of this law were to abate automatically. He reiterated that this petition too had automatically abated. The learned counsel further explained that the law provided that if any civil servant was a party in a suit, appeal or application before the commencement of this Act, he had the right to file an appeal within 90 days of the commencement of the law before the Service Tribunal.
7. Mr. Jafri submitted that the petitioner had to file an appeal before the Service Tribunal within the prescribed period. But due to his own fault, he had failed to do and had taken the risk upon himself. On this sole account his petition could not be deemed to be maintainable, Mr. I.H.B. Hanafi submitted that though some other adequate remedy was available to an aggrieved person, yet such petitions were held to be competent. It was particularly in cases where there was complete lack of jurisdiction in the authority passing such orders. The learned counsel relied on cases reported in (i) P L D 1961 S C 119; (ii) P L D 1963 S C 322 and (iii) P L D 1975 S C 450.
In case, Lt.‑Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and 2 others P L D 1961 S C 119 it has been held:‑‑
"The rule that the Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring the jurisdiction of the Court. It is a rule by which the Court regulates the exercise of its own discretion."
In case, Nagina Silk Mill, Lyallpur v. The Income‑tax Officer, A‑Ward, Lyallpur and another P L D 1963 S C 322, it has been held:‑
"At the same time, it was held that in cases of absence or excess of jurisdiction or where the impugned order suffers from illegality on the face of the record, a certiorari may be granted even though the right of statutory appeal had not been availed of. A certain amount of flexibility is allowed by the law in the case of a prayer for a writ of certiorari as compared with a case for a mandamus. It was further observed that if the application for certiorari is made by a party aggrieved, then it ought to be granted exdebito justitiae and the High Court has not the general discretion which it would have, when the application is made by a member of the public, who is not personally concerned. This would specially be the case where the alternative remedy provided by the relevant statutes is not as efficacious, speedy or convenient as the one available under the writ jurisdiction of the High Court. This principle would be found discussed in Ferris on Extraordinary Legal Remedies at pages 185‑187, 1926 Edn. The relief in these cases could not have been obtained as quickly or with as such facility and convenience under the Act which provides for a series of appeals, revision and reference to the High Court on law points, on condition that the tax assessed is first paid, as by recourse to the writ jurisdiction of the High Court, can hardly be contested. It is at the same-time conceded that the Income‑tax Officer was required to act judicially in applying the provisions of the Act.
Even a particular statute takes away certiorari (and that result can only be achieved by express negative words) the English Courts have decided that certiorari may be granted where the inferior Tribunal has acted without or in excess of jurisdiction, for in such a case the Tribunal has not brought itself within the terms of the statute taking away certiorari".
In case, Sind Employees Social Security Institution v. Dr. Mumtaz Ali Taj and another P L D 1975 S C 450, it was held:‑‑
"These defects of jurisdiction was apparent on the face of the record which in my opinion would at once attract certiorari jurisdictrion of the High Court. I have not the slightest doubt that if respondent 2 proceeds to hear the complaint of respondent 1, the proceedings will be wholly without jurisdiction and, therefore, a nullity."
8. Indeed there is substance in contentions of Mr. Hanafi. Besides in case of Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and another P L D 1973 S C 236, the same proposition has been elaborately discussed. We respectfully agree with the principles enunciated in the abovesaid authorities, that if any order is ab initio, illegal or void, it shall be deemed to have been passed without lawful authority. We, therefore, hold that any order being ab initio, illegal or void, the High Court shall have the jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan to review such orders of any Tribunal or authority irrespective of the facts that jurisdiction of civil Courts is ousted or some other remedy is available to an aggrieved person. This petition as such as is before us, maintainable.
9. Mr. Hanafi then submitted that the Governor of Baluchistan had absolutely no authority to have passed the impugned order of removal of the petitioner from service. He said that only "competent authority" was competent to do so. The "competent authority" according to him can never be the Governor of the Province. According to the learned counsel, the Head of the Department or any other authority declared so, was competent to have taken his action against the petitioner. This order having not been passed by the Head of the Department or any other competent authority, was indeed ab initio void as such passed without lawful authority. Mr. Jaffary abortively attempted to convince us that being the Head of the Province, the Governor had the authority to pass any order and his such order would be deemed to have been passed by the Head of such Department or any other competent authority. Besides the learned counsel submitted that Government servants could remain in service only at the pleasure of the Government of the Province. He drew our attention to section 4 of the Baluchistan Civil Servants Act, 1974. However, we cannot agree with this contention of Mr. Jaffry. Even in that case too the Governor had to follow the relevant rules prescribed by the Provincial Government. The Governor cannot do it capriciously or injudiciously at his own sweet‑will.
As such we hold that the removal of the petitioner from service was made by the Governor, who was not a competent authority to remove him from service and his order, therefore, cannot be sustained in law. The order is, therefore, declared as to have been passed without lawful authority.
10. It was also argued by Mr. I.H.B. Hanafi that the impugned order was passed at the back of the petitioner which was in utter contravention of the principles of natural justice, as such on this account alone the order was illegal and void and as having been made without lawful authority. Mr. Jaffary submitted that resignation of the petitioner having already been accepted by the Department, the Minister had no authority to have allowed the petitioner to withdraw from his resignation. The order of the Minister allowing the petitioner to withdraw from his resignation or to re‑instate him in service was ab initio illegal and void, the Government had only vacated the void and illegal order as such hearing of the petitioner for rectifying such illegal order was not necessary at all. We are not ready to accept this contention of Mr. Jaffary. The order, dated 23rd of June, 1973 clearly shows that resignation of the petitioner was not accepted and it was yet pending before the department. No final order was passed on such application. The order of 23rd June, 1973 was passed not less than a person of the Secretary, Government of Baluchistan for Irrigation and Power Department. All relevant papers as such must have been placed before him including the application of the petitioner before passing the order. We cannot say or presume for a while that officer of such responsible post could say that the petition was pending, without looking to the relevant papers. Besides, this contention of Mr. Jaffary is negated by his show‑cause notice, dated 16th August, 1973. The notice confirms that the petitioner's resignation had not been accepted. The notice in unambiguous word says that when the petitioner had tendered his resignation he was under suspension and was facing a departmental inquiry. Such inquiry could not be completed because the petitioner had gone out of Pakistan. On this controversial issue of resignation of the petitioner, Mr. Jaffary wanted to convince us that the petitioner's resignation in fact was accepted by the Department. We called upon him to produce the relevant papers before us to prove his contention. The learned counsel showed his inability to do so. He explained that such papers were stolen by the petitioner and a case of theft was registered against the petitioner at the Civil Line Police Station, Quetta. The learned counsel showed us a F.I.R. of that case. We inquired from the learned counsel whether any action in respect of that theft case was taken by the police against the petitioner or he was challenged in any Court of law. To our utter surprise the learned counsel replied it also in negative. We are, therefore, unable to accept this explanation of Mr. Jaffary. It was also rightly contended by Mr. Hanafi that the respondent had not even filed counter‑affidavit to repudiate the petitioner's allegations in the petition and of affidavits attached thereto. Mr. Jaffary replied that there was no necessity of filing of counter -affidavit; the Court could take judicial notice of the facts. This petition has been filed in the year 1974 and till today no counter‑affidavit has been filed by the respondent to deny the facts given by the petitioner. This petition is supported by an affidavit filed by the petitioner. Obviously there is no cogent reason before us to disbelieve the facts given in the petition, which are fully supported by the affidavit of the petitioner, specially when no counter‑affidavit is filed. The facts disclosed by the petitioner in the petition, therefore, stand proved. Under such circumstances, we have no other alternative but to hold that resignation of the petitioner was not yet accepted by the department and it was yet pending. The resignation having not been accepted, the Minister had the authority to allow the petitioner to withdraw his resignation.
Besides on file of this case, there is a letter, filed by the petitioner and supported by his affidavit. The letter appears to have been written by the Deputy Secretary Regulations, Government of Pakistan to all Secretaries of Government of West Pakistan. It pertains to resignation of Government servant. It says that when a Government servant tenders resignation before it is accepted by competent authority the incumbent can be allowed to withdraw it. This letter further strengthens the action of the Minister who permitted the petitioner to withdraw his resignation. It as such appeared that the order of the Governor saying that the petitioner's resignation had been accepted is based on imagination, surmises and conjectures.
11. Lastly Mr. I. H. B. Hanafi stated at the bar that the petitioner would not claim his salary for the period ranging from 18th of April. 1973 to 6th of November, 1978. In case his petition is accepted by this Court. On his clear statement we hold that the petitioner shall not be entitled to claim for his salary for the above said period.
For the foregoing reasons we have reached to the definite conclusion that the Governor of Baluchistan had neither the power nor authority for having removed the petitioner from the service. His order, dated 18th April, 1974 is, therefore, declared as to have been passed without lawful authority, as such is illegal and void. Consequently, the earlier order, dated 28th June, 1973 re‑instating the petitioner in service shall stand as existent. For these reasons, we allow this petition with costs to be borne by the respondent. The department is not debarred to hold enquiry if so advised against the petitioner under the relevant rules.
A . E. Petition allowed.
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