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Civil First Appeal No.25 of 1977, decided on 30th November, 1985.

---S.4--Civil Procedure Code (V of 1908), S.96--Constitution of Pakistan (1973), Art. 212(2)--Compulsory retirement--Appellant whose suit against his compulsory, retirement was dismissed by civil Court below on merit was a civil servant--Remedy of such civil servant, held, lay before Service Tribunal which had already been established under Service Tribunals Act and whereby jurisdiction of civil Courts including High Courts ipso facto was ousted--Suit of appellant before civil Court being incompetent, appeal against order of civil Court was also not competent--Appeal dismissed in circumstances.

P L D 1974 Lah. 87 and P L D 1960 S C 113 ref.

P L D 1981 S C 172 and P L D 1981 Kar. 750 rel.

Iftikhar Ali for Appellant.

Abdul Matin Khan for Respondent.

Date of hearing: 25th November, 1985.

This appeal is directed against the judgment and decree in Suit No.51 of 1975 passed by Vth Additional District Judge, Karachi on 29-3-197.7. On 12-7-1974 the appellant was working as a booking clerk at Karachi Cantt. Station and he was suspended on the ground of over-charging from passengers. The Divisional Mechanical Engineer had made a check on the complaint of passengers on the spot and as a result of the same this action was taken. Show-cause notice was issued to the appellant containing the charges on 18-7-1974. The appellant had replied to the same but the reply-was not considered sufficient and, therefore, the Assistant Commercial Officer No.III was appointed to conduct an enquiry. The enquiry was conducted by the said Officer and the Divisional Mechanical Engineer was examined and cross-examined. The appellant was also examined in the Enquiry. The appellant had also requested for examination of those passengers, who had complained against him and consequently the Enquiry Officer issued notices by Registered Post to those persons but they did not attend. The Enquiry Report was submitted on 2-10-1974 and it was held that the accused cannot be exonerated from the charges contained in the Form-A (charge sheet). On 10-10-1974 show-cause notice for removal from service was issued to the appellant. The appellant replied to the same but his explanation was not considered sufficient and, therefore, he was compulsorily retired from service with effect from 31-12-1974 vide Ex:P-9.

2. The appellant thereafter filed an appeal to the Divisional Superintendent, P.W.R. but it was rejected on 3-4-1975 vide Ex.P.10. The appellant thereafter filed a declaratory suit on 21-4-1975 claiming that the orders of 31-12-1974 and 3-4-1975 were illegal, ultra vires and mala fide and, therefore, compulsory retirement of the appellant was illegal and without effect and he be allowed to continue to be in service and entitled to benefits. Injunction and other reliefs were also claimed.

3. In the written statement, the allegations contained in the complaint were denied and it was stated that the suspension of the appellant was the result of complaint of some passengers about excess charges which was investigated by D. M . E. at the spot who found that the passengers had been over-charged. It was urged that the suit was not maintainable.

4. Six issues had been framed including the issue, whether the suit is not maintainable.

The appellant examined himself in support of his case and Fazal Hussain and Asghar Ali, who stated that the appellant had been punished on account of his Union activities. Hafizur Rehman, who was Enquiry Officer, was examined in defence and he stated that he had enquired into the matter and that he had never expressed before the plaintiff that the Railway Authorities were bent upon removing him. In respect of issue No.1, the A.D.J. held that the civil Court had the jurisdiction to adjudicate upon the matter because mala fides had been alleged. In respect of issue No.2 the A.D.J. held that there was evidence against the plaintiff and the sole Judge of the weight of evidence in a departmental inquiry is the punishing authority and it is not for the Court to go into the evidence as held in P L D 1974 Lahore 87.

In respect of issue No.3 it was held that the order of suspension was perfectly legal and that the ouster of the jurisdiction of the court was complete in view of P L D 1960 S C 113, where it was held that if a statute provides that an order made by an authority acting under it shall not be called in question in any court, all that is necessary to oust the jurisdiction of the court is that the authority should have been constituted as required by the statute, the persons proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute and the order made should be such as could have been made under the statute.

In respect of issues Nos. 4 and 5 it was held that the allegation of mala fide had not been proved and that the departmental enquiry and consequent compulsory retirement order cannot be said to be illegal, vindictive or mala fide.

In respect of issue No.6 it was held that the appellant was heard in support of his appeal.

5. Mr. Zulfiqar Ali, Advocate is not present for the appellant. However, Mr.Iftikhar Ali is present and submitted that the matter should be adjourned. I do not find any justification to do so because the name of Aijaz Ali also appears in the Vakalatnama and there is no explanation of his absence, therefore, he should have argued the matter. Mr.Iftikhar states that he is not ready with the case. There is no reason of allowing the adjournment particularly when I have the situation that there are no two counsel present in any one of the appeals before me and this is the only appeal which can be heard in view of the fact that absence of Mr. Aijaz Ali is not accounted for.

6. Mr. Abdul Mateen appearing for the Railways had drawn my attention to the provisions of Article 212(2) of the Constitution of Pakistan, 1973 and submitted that the suit itself was incompetent and the appeal is again misconceived. Article 212(2) provides that where any Administrative Court or Tribunal is established under clause (1), no other court shall grant an injunction, made any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends.

7. The sub-Article 1 of Article 212 has provided for establishing of administrative courts or tribunals to exercise exclusive Jurisdiction in respect of the matters relating to the terms and conditions of persons who are or were in the service of Pakistan including disciplinary matters etc.

8. It is an admitted position that the appellant was a booking clerk of P.W.R. in July, 1974 when he was suspended and, therefore, he was in the service of Pakistan. The Services Tribunal Act, 1973 was enforced on 29-9-1973 and section 3(2) provided that a Tribunal shall have exclusive jurisdiction in respect of the matters relating to the terms and conditions of Service of Civil Servants including disciplinary matters. Section 4 of the same Act had provided that any civil Servant aggrieved by any final order of a department/authority in respect of the terms and conditions of his service matter may prefer an appeal to the Tribunal within 30 days. Clause A, sub-section (2) of section 4 has provided an appeal against a penalty of dismissal from service, removal from service, compulsory retirement, retention to a lower post etc.

9. It is, therefore, obvious that the objection pressed by the respondents' counsel to the original institution of the suit is justified. I have held in First Appeal No.55/74, Din Muhammad v. General Manager of P.W.R. and others, on 26-11-1984, that a booking clerk of Railway was performing a clerical work and, therefore, he was not a workman. I had followed P L D 1981 S C 172 (175). The present appellant was also a booking clerk and, therefore, he was a civil servant. Since the appellant had been removed from service as a punishment for his misconduct, therefore, he had a right of filing an appeal before the Service Tribunal and since the jurisdiction of the, Service Tribunal was exclusive in this respect, therefore, the appellant could not have resorted to a civil suit and the Civil Court had no jurisdiction to entertain the same in spite of the allegation of mala fide which could have been gone into easily by the Service Tribunal itself. Reference is invited to P L D 1981 Karachi (F.B.) 750 (762, 764, 765 and 766) where it has been held that in a case of compulsory retirement even the High Court was not competent to examine validity of an order which falls within the jurisdiction of Tribunal and that the orders which are mala fide, ultra vires or coram non judice were within the ambit of the Service Tribunal as jurisdiction of Civil Court including the High Court is ipso facto ousted as a result of the barring provisions of Article 212. Further observation in that case is that if the subject-matter pertaining to any terms and conditions of service of civil servants is once placed within the jurisdiction of the Tribunal, the ouster of the jurisdiction of other civil courts is absolute in respect of such terms and conditions.

10. This being the position, the suit filed by the plaintiff was completely incompetent and should have been dismissed as such. However, since the suit has been dismissed on other grounds the present appeal cannot be allowed on any ground whatsoever, and this appeal has, therefore, to be dismissed. I would however, observe that since the suit was completely incompetent, therefore, the judgment and decree thereupon was merely an exercise in futility. The result would be that the appellant is placed in the same position in which he was on 20th April, 1975 and if he could file an appeal before the Tribunal on that day then probably he may be able to pursuade the Service Tribunal to entertain his appeal now in view of the provisions of Section 14 of true Limitation Act. I have refrained from examining the merits of the case as I have dismissed the appeal on preliminary ground and I would not want to prejudice any issue on merit as the appellant may like to agitate the same before the Service Tribunal, if he could get his appeal admitted now.

M.Y.H./M-196/K. Appeal dismissed.

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