' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185(3) of the Constitution has been directed against the judgment dated 14-12-2007 by virtue of which the Lahore High Court, Lahore dismissed the constitutional petition filed by the petitioner challenging the order dated 5-12-2007 passed by the Election Tribunal in appeal preferred by the petitioner against the order of rejection of his nomination papers by the Returning Officer of PP-80 Jhang.
2. The petitioner in the coming general elections 2008 filed his nomination papers to contest the election for the seat of Provincial Assembly of Punjab from PP-80 Jhang and during the process of scrutiny of the nomination papers, all objection to his candidature was raised to the following effect:-- "the petitioner while employed in police department was dismissed from service in 1990 and thereby incurred a disqualification under Article 63(i) & (j) of the Constitution of Pakistan read with section 99(1-A)(i) of Representation of the People Act, 1976 to be elected or chosen and from being member of the Provincial Assembly."
' The Returning Officer in the light of the provision of law referred therein rejected the nomination papers of the petitioner vide order dated 29-11-2007. The provisions referred therein are reproduced hereunder for better appreciation of the point raised herein and to ascertain the correct legal position vis-a-vis the question of qualification and disqualification of petitioner to become a candidate in the election.:-- Article 63(1)(i) of the Constitution of Islamic Republic of Pakistan, 1973, "A person shall be disqualified from being elected or chosen as, and from being a member of the Majlis-e-Shoora (Parliament) if:--
(i) he has been dismissed from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct OR moral turpitude;"
' Section 99(1-A)(i) of the Representation of the People Act, 1976: "A person shall be disqualified from being elected as and from being a member of an Assembly if- -
(i) he has been dismissed from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct or moral turpitude;"
' Likewise Article 8-D(2)(i) of the Conduct of General Elections Order, 2002 also provided as under:- "A person shall be disqualified from being elected as and from being a member of an assembly, if- -
(i) he has been dismissed from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct or moral turpitude."
3. The petitioner having availed the remedy of appeal before the Election Tribunal, filed a constitutional petition in the Lahore High Court, Lahore, which was dismissed in the light of judgment rendered by this Court in Civil Appeals Nos.1037 and 1097 of 2006 titled Imtiaz Ahmad Lali v. Ghulam Muhammad Lali PLD 2007 SC 369" wherein the nomination papers of the petitioner on the basis of same disqualification, were rejected from same constituency in 2002. This Court in the judgment referred above in an unambiguous manner, held that disqualification attached with the candidature of the petitioner to contest election for the seat of Provincial Assembly in terms of Article 63(i)(j) of the Constitution read with section 99 (1-A)(ii) of the Representation of the People Act, 1976 and Article 8-D of Election Order 2002 was of permanent nature. The relevant portion of the judgment referred to above is reproduced hereunder:- "...It is to be noted that it is the appellant who himself has earned the permanent disqualification because admittedly he is disqualified even for a petty Government service according to law, therefore, for such permanent disqualification, how he can be allowed to become member of a sovereign body of a Parliament or Provincial Assembly. Thus, with this intention Article 63 of the Constitution, section 99 of the Representation of the People Act, 1976 as well as Article 8D of the Elections Order, 2002, were amended in order to block the passage of the persons, who are guilty of misconduct or involved in moral turpitude."
4. Learned counsel for the petitioner placing reliance on the order dated 8-8-2005 passed by this Court in C.P. No, 2079 of 2005 wherein leave was granted to consider the question as to whether disqualification of a candidate in terms of section 15(2) of Punjab Local Government Ordinance, 2001, is of permanent nature or the same on the expiry of certain period, would come to an end, has contended that the petitioner was removed from service of police department for the charge of absence from duty and since the charge against him was not of misconduct, therefore, his case would not fall within the purview of clauses (i) & (j) of Article 63 of the Constitution read with section 99(1-A)(i) of Representation of the People Act 1976. Learned counsel submitted that in any case, dismissal from service on the ground of misconduct or moral turpitude is not as such a permanent disqualification whereas the charge of absence from duty without permission may not constitute misconduct or called an act of moral turpitude, therefore, dismissal or removal from service on such ground, would not be a disqualification under the Constitution and law.
5. This Court in the judgment referred above Imtiaz Ahmed Lali v. Ghulam Muhammad Lali PLD 2007 SC 369, in para 10 observed as under:-- "In consonance to above constitutional provision section 99(1-A)(i) was also substituted in Representation of the People Act, 1976 by Ordinance No, XXXVI of 2002 with effect from 31st July, 2002. Although Chief Executive's Order No,7 of 2002 was also amended with effect from 31st July, 2002 but perhaps due to some oversight while introducing clause (i) the grounds of disqualification in respect of person dismissed from service on account of misconduct involving moral turpitude was mentioned, without realizing that the general law on the subject i,e, the Representation of the People Act, 1976 has been amended on the same day, holding a candidate disqualified if he is guilty of misconduct or moral turpitude and later on Article 63 of the Constitution was also amended on the same line. Therefore, the intention of the Legislature becomes abundantly clear that by amending the instrument meant for holding the elections noted hereinabove, the object was to block passage for those candidates who are involved in misconduct or moral turpitude, as such to make the law in consonance with the Constitution, amendment in Article 8D (2)(i) of the Elections Order, 2002 was notified with effect from 6th November, 2002 with retrospective effect."
6. In para. 17 of the judgment, it was further held as follows:--"In this context it is to be noted that it is the appellant who himself has earned the permanent disqualification because admittedly he is disqualified even for a petty Government service according to law, therefore, for such permanent disqualification, how he can be allowed to become member of sovereign body of a Parliament of Provincial Assembly. Thus, with this intention Article 63 of the Constitution, section 99 of the Representation of the People Act, 1976 as well as Article 8D of the Elections Order, 2002 were amended in order to block the passage of the persons, who are guilty of misconduct or involved in moral turpitude."
7. The learned counsel for the petitioner has submitted that notwithstanding the fact that the judgment referred to above has attained finality, this Court in the interest of complete justice, in exercise of its power under Article 187 of the Constitution, may re-consider the question as to whether the disqualification of the nature was of permanent nature or the same with afflux of time, would be removed. The learned counsel submitted that clauses (i) & (j) of Article 63 of the Constitution read with section 99(1-A)(i) of Representation of the People Act, 1976, apparently is in conflict to the fundamental rights contained in Part-II of Chap-1 of the Constitution, which would require examination for the purpose of harmonious interpretation to remove the ambiguity.
8. There is no cavil to the proposition that this Court can examine the provisions of any law on the touchstone of Fundamental Rights guaranteed in the Constitution but in the present case there is no need of undertaking such an exercise as the proposition of law raised herein has already been dealt with in the well considered judgment referred above wherein it has been held that the disqualification under Article 63(i)(j) read with section 99(1-A)(ii) of Representation of the People Act, 1976, was of permanent nature and in the light of Constitutional mandate referred above, we are not inclined to take any departure to the law already laid down by this Court on the subject.
The contention of the learned counsel for the .Petitioner that dismissal from service on the ground of absence from duty would not fall within the ambit of misconduct or moral turpitude for the purpose of disqualification under Article 63(i) & (j) of the Constitution read with section 99(1-A1(i) of the Representation of the People Act, 1976, has no substance.
9. The expression "moral turpitude" in the plain words means the act of baseness, vileness or the depravity in private and social duties which man owes to his fellow man, or to society in general contrary to C accepted and customary rule of right and duty between man and man. The case of the petitioner in respect of the charge of wilful absence from D duty may not as such involve the element of moral turpitude or fall within the extended meaning of misconduct in service laws but this is well settled principle of service laws that wilful or habitual absence from duty is misconduct.
The habitual or wilful absence involves an element of indiscipline which may some time constitute gross misconduct. This Court in the cases Secretary Education v. Mustamir Khan 2005 SCM R 17 and Badshah Hassan v. Interior Minister 2002 SCM R 967 held that the punishment of compulsory retirement on account of wilful absence amounts to misconduct on the basis whereof major penalty of dismissal from service can be imposed.
10. In the light of above discussion and the law laid down by this Court in the petitioner's own case reported as Imtiaz Ahmed Lali v. Ghulam Muhammad Lali PLD 2007 SC 369, we would take no exception to the judgment of the High Court.
11. In the light of foregoing reasons, this petition is dismissed and leave is refused.