' SYED ZAWWAR HUSSAIN JAFFERY, J.--- These appeals, by leave of the Court, are directed against the judgment, dated 23-4-2008 passed by learned Division Bench of the High Court of Sindh at Karachi in C.P. No,D-970 of 2007 and the same are being disposed of by a common judgment as common questions of law and public importance are involved.
2. Brief facts, as enumerated in these appeals, are that Javed Ahmed (respondent in Civil Appeal No,509 of 2008 and appellant in C.A. No,571 of 2008) was inducted as a Deputy Manager on 10-5- 1983 by the Civil Aviation Authority, a statutory Corporation formed under the Pakistan Civil Aviation Authority Act, 1982. He was promoted as a Corporate Manager in the year 1991. However, his performance in various jobs assigned to him by the Department remained unsatisfactory. There were a large number of complaints and successive acts of misconduct against him. Proceedings were initiated against him under the Civil Aviation Authority Service Regulations. A show-cause notice dated 14-4-2003 was issued to him. He filed his reply to the said show-cause notice.
Personal hearing was also given to him by the Chairman, Civil Aviation Authority Board/Secretary, Defence. The allegations against him were duly proved. His reply was found unsatisfactory and he was awarded the punishment of compulsory retirement from, service. He filed an appeal against his compulsory retirement before the Federal Service Tribunal. The Federal Service Tribunal after scanning the whole proceedings against him observed that the proceedings should have been initiated under the Removal from Service (Special Powers) Ordinance, 2000 (hereinafter referred to as R.S.O.) rather than the Civil Aviation Authority Service Regulations as R.S.O. Has an overriding effect over all other laws. In view of this position the Federal Service Tribunal ignoring the merits of the case remanded the case of Javed Ahmad for the de novo proceeding strictly in accordance with the relevant laws on the basis of allegations as contained in the show-cause notice, dated 14- 4-2003. He was serving in PG-9 of the Civil Aviation Authority which pay scale is equivalent to BS-18.
As per Government Notification, dated 27-5-2000 the Managing Director/Chief Executive Officer of the said Organization was the officer authorized to exercise the powers of the competent authority under the R. S.O. Then on 20-12-2004 the competent authority issued an "order of inquiry" against Javed Ahmad as to comply with the aforesaid judgment of the Federal Service Tribunal and initiated de novo proceedings under R.S.O. By appointing an Inquiry Committee. On 5-1-2005 the Inquiry Committee issued a statement of allegations upon Javed Ahmad. In response to the statement of allegations he submitted a written defence on 10-1-2005. As per direction of the Inquiry Committee, dated 11-1-2005 Javed Ahmed put his appearance on 15-1-2005 and he was asked to file a written reply. He entered into a chain of correspondence with the Inquiry Committee raising various frivolous objections. Show-cause notice dated 14-4-2003 was based upon the entire service record of Javed Ahmad alleging "a number of glaring complaints from various quarters showing the attitude of Javed Ahmad towards service and uncalled for behaviour including his doubtful integrity, stubbornness, over inquisitiveness, use of unfair means to acquire information, misuse of official authority and information, impersonation and indulging in other uncalled for activities". The statement of the allegations was served upon him which was the basis of show-cause noticed dated 14-2-2003. The following allegations which were duly supported were levelled against Javed Ahmad:--- "(a) Indiscreet, unbalanced, uncalled for activities with other functionaries of the airport.
(b) Aggressive behaviour, loose talk and threatening, adverse report from Intelligence Bureau.
(c) Violating the channel of correspondence in service.
(d) Termination of deportation with Maritime Security Agency due to "misconduct and hideous activity".
(e) Report of undesirable conduct from "Ministry of Defence" alleging attempts to threaten and bribe the witnesses.
(f) Using Naval rank despite being debarred from using the rank. Report from "Ministry of Defence" that the Navy had terminated the commission of the respondent No,1 and due to misconduct thereby debarring the respondent No,1 to use rank with his name.
(g) Not disclosing the reason for termination of service from the Pakistan Navy.
(h) Disrespect to service discipline and norms. Using influence for postings.
( ) Picking up quarrels, harassing the staff, misbehaving and using abusive language with the seniors.
(j) Report of grave misconduct of the respondent No,1 through Ministry of Defence.
(k) Causing loss to official vehicles and "managing" withdrawal of minor penalties awarded by the competent authority.
(1) Sexual harassm ent of a lady doctor.
(m) Misuse of official communications.
(n) Grossly misbehaving with senior Pilots.
(o) Report from Naval Headquarter that the commission of the respondent No,1 had been terminated due use of unfair means.
(p) Misbehaving with a corporate executive who was a senior citizen.
(q) Reports of corruption and illegal gratification received through City Nazim, Karachi.
(r) Uncalled for behaviour with High Commission of Pakistan while on a course in Singapore.
(s) Illegal construction on Government property.
(t) Report from ISI alleging that the respondent No,1 was a "corrupt officer, involved in corruption, womanizing/drinking and impersonation". This report quoted specific instances including molesting a lady on the promise of getting her a job in CAA and impersonating as a General.
(u) Report from Military Intelligence that the respondent No,1 had impersonated and unfairly used the name of Military Intelligence.
(v) At the time of employment in CAA, concealing the fact that respondent No,1 was Matric 3rd Division, inter 3rd Division and Graduate 3rd Division and that he had been terminated from Pakistan Navy on misconduct."
' The Inquiry Committee after concluding the proceedings submitted its detailed findings to the competent authority finding Javed Ahmad fully liable for each allegation levelled in the statement of allegations. In the light of the findings, of the Inquiry Committee the competent authority served a show-cause notice upon Javed Ahmed on 30-3-2005 to show cause as to why major penalty of "dismissal from service" should not be imposed on him under section 3(1)(e) of the R.S.O. Javed Ahmad was also provided all the proceedings as well as the findings recorded by the Inquiry Committee along with the show-cause notice. Javed Ahmed submitted his reply to the said show- cause notice on 9-3-2005 denying all the allegations against him and asked for personal hearing.
Personal hearing to him was provided on 19-3-2005 by the competent authority and he denied all the allegations against him and also made a written statement. Then on 25-3-2005 the competent authority after considering all aspects of the case awarded the major penalty of "compulsory retirement" to him.
3. Javed Ahmad being aggrieved and dissatisfied challenged the aforesaid order before the Federal Service Tribunal Karachi Bench through service appeal. While the appeal before the Federal Service Tribunal was pending, Javed Ahmed was informed through a notice issued by the Registrar of the Federal Service Tribunal that his appeal had abated in the case of Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602. It will be advantageous to reproduce the observation of the Federal Service Tribunal vide letter dated 30-6-2006 informing Javed Ahrnad through Assistant Registrar that learned Federal Service Tribunal has directed him to inform the litigants in their respective service matters. The aforesaid letter is as under:--- "Federal Service Tribunal, Karachi ' Dated the 30th June, 2006 ' I have been directed to inform the litigants in their respective service matters, that pending cases or proceedings, which are not protected or covered by the judgment of the apex Court, dated 27- 6-2006 in Civil Appeals Nos.792 to 816 of 2005, etc. Shall stand abated and that they i,e, litigants have been mandated by the apex Court to resort to the competent forums for redressal of their grievances within 90 days and the bar of limitation provided by the respective laws. Shall not operate against them till the expiry of the stipulated period. Further, it may be noticed that as held in 1999 PLC (C.S.) 1316.
' There cannot be two opinions with regard to settled legal proposition that where abatement of appeal/proceedings results us as a consequence of operations of law, such abatement becomes operative ipso facto at once and there is no need or legal requirement for obtaining any formal order or declaration from the said forum or Court being seized of the matter and time wasted before those forums therefore, cannot be availed of by the concerned party under the guise of "pursuing the matter before competent forum" as in fact after abatement of the proceedings such forum cannot be held to be competent or proper forum. The only corollary pursuant to such discussion is that litigation before incompetent forum does not justify condonation of delay. We are fortified to hold so by relying upon the rules enunciated in the following precedents:
(1) PLD 1983 SC 385(2), (2) 1975 SCMR 259, (3) 1985 SCMR 333, (4) 1985 SCMR 890, (5) 1991 SCMR 1841 and (6) 1997 SCMR 1167.
' You are nevertheless being informed that your case Appeal No,297(K)(C.E.) of 2005 stood abated w,e,f, 27th day of June, 2006.
' By order (Sd.) (G.H. Channer), Assistant Registrar ' Mr. Javed Ahmad son of Maj. (Rtd.) Ghulam Farooq, Resident of House No,63/0, Block 2, PECHS Society, Near Masjid Alflah, Karachi." in the light of the direction of the Federal Service Tribunal vide Letter, dated 30-6-2006 Javed Ahmed filed a constitutional petition before the High Court of Sindh, Karachi, challenging his compulsory retirement from service of the Civil Aviation Authority. The said petition was fixed before the learned Division Bench of the High Court on several dates for hearing from 29-5-2007 to 18-3-2008. On 18-3-2008 when the matter came up for hearing before the learned Division Bench of the High Court, the counsel of the Civil Aviation Authority pointed out irregularities and raised a fundamental objection regarding the maintainability of the petition.
Javed Ahmed filed Constitutional Petition No,D-970 of 2007 under Article 199 of the Constitution of the Islamic Republic of Pakistan with the following prayers:--- "(a) To set aside and quash impugned order, dated 26-3-2005 (Annexure "P") and order the reinstatement of the petitioner in service of the respondent No,1 or anybody in its succession with continuity with full back benefits/salaries treating the intervening period as on service as the petitioner continues to be unemployed.
(b) To declare the impugned orders to be illegal and against the principles of law and non- existent.
(c) To pass/issue such orders and make such other directions which are deemed to be necessary, fit and appropriate in the circumstances of the case redressing the grievances of the petitioner.
(d) Cost of the petition."
' Respondent No,2 (Ministry of Defence) was impleaded as party by Javed Ahmad in the High Court of Sindh but no relief was claimed against it as it was only a pro forma respondent. It was prayed by the learned counsel for the Civil Aviation Authority that the Honourable Court may first decide the fundamental objection about the maintainability of the petition, and after the decision on the maintainability of the petition, the Court may hear the submission on merits of the case if so warranted. But the learned Division Bench after hearing the learned counsel for the respective parties on the fundamental objection of the maintainability of the petition reserved its judgment.
The same was listed for announcement in the cause list for 16-4-2008. However, neither the judgment was announced on the said date nor any reasons for non-announcement of judgment were assigned. Thereafter the judgment was signed on 23-4-2008 and the petition of Javed Ahmad was allowed. In the light of the judgment of the High Court, Sindh Javed Ahmed reported for duty to the Civil Aviation Authority along with certified copy of the impugned judgment on 25-4- 2008 but the Civil Aviation Authority did not assign duties to Javed Ahmad in the light of the judgment nor he had been inducted by not implementing the same. Civil Aviation Authority have approached this Court by filing C.P. No,547 of 2008 whereby leave was granted.
4. Mr. Makhdoom Ali Khan, Senior Advocate Supreme Court appearing on behalf of Civil Aviation Authority has contended that in the previous round of litigation the order of compulsory retirement of Javed Ahmed passed by the department was assailed before the Service Tribunal at Islamabad which through its judgment set aside the order of the department of compulsory retirement of Javed Ahmed and directed de novo proceedings. Thereafter a fresh order of compulsory retirement of Javed Ahmed was passed by the department which was assailed before the Federal Service Tribunal which was of the opinion that because of the case of Muhammad Mubeen-us- Salam, the appeal of Javed Ahmad had abated and he was intimated to the said effect through a letter written by the Registrar of the Federal Service Tribunal. Whereas the view of learned Advocate*Supreme Court that the appeal was competently filed before the Federal Service Tribunal and it could not abate merely through a letter of the Registrar of the said Tribunal.
Therefore, the appeal shall be deemed to be pending. But at the same time Javed Ahmed approached the High Court of Sindh through Constitutional Petition No: D-970 of 2007 and learned Division Bench of the High Court vide its judgment dated 23-4-2009 allowed the constitutional petition and ordered reinstatement of Javed Ahmad. It was inter alia contended that the issue of the maintainability was raised before the High Court, as it is apparent from the last paragraphs of the impugned judgment yet the High Court did not attend to the same. It was vehemently argued that because of the parameters laid down in Muhammad Mubeen-us-Salam case, the constitutional petition before the High Court was not maintainable. Prima facie, we find force in the arguments of the learned counsel of Civil Aviation Authority. Leave was granted to examine whether the constitutional petition filed by Javed Ahmad before the High Court was competent and whether the High Court was competent to order reinstatement of Javed Ahmad and whether the High Court was not competent to decide the issue of the maintainability of the constitutional petition which was specifically raised before it. The learned counsel has further urged that the impugned judgment is. Contrary to the judgment of this Court in the case of Raja Riaz v. Chairman Pak. Space and Upper Atmosphere Research Commission 2008 SCMR 402. In the instant case Civil Aviation Authority has acted strictly in accordance with law and the entire exercise of the dismissal of laved Ahmad from the service of the department had been carried out in transparent, judicious and equitable manner after providing full opportunity of defence to Javed Ahmad. It has been held by this Court in Muhammad Mubeen-us-Salam case that the employees of Public Sector Corporation or Authority in the absence of any statutory rules cannot be deemed to be public servants and claim damages was the only remedy available to Javed Ahmed by breach of the terms of contract. It is further pointed out by the learned counsel that as per statement of allegations over 30 allegations had been levelled directly against Javed Ahmed which were duly supported by official records and Javed Ahmed was provided full opportunity to disprove such allegations. The Inquiry Committee after examining the defence advanced by Javed Ahmed gave categorical findings of fact on each allegation holding Javed Ahmed guilty of the allegations levelled against him. In support of his arguments he has relied upon Raja Riaz v. Chairman Pakistan Space and Upper Atmosphere Research Commission, Karachi 200$ SCMR 402. Javed Ahmed also filed C.P. No,681 of 2008 against the impugned judgment of the High Court of Sindh and also challenged the portion of the impugned judgment as to disallowing the salary to him for the intervening period when he remained out of the job since 18-6-2003. The said C.P.L.A. Came up for hearing on 18-6-2008 and leave was granted and it was directed that both the appeals be clubbed together and fixed for hearing. He has also placed on record a photo copy of C.As.
Nos.1555, 1558 to 1560, 1564, 1990 and 2734 to 2736. Of 2006 delivered on 16-10-2008 by this Court wherein it was held by this Court that the Federal Service Tribunal had taken a somewhat different view by entertaining the service appeals, involving the departmental penalties imposed under the provision of Removal from Service. (Special Powers) Ordinance XVII of 2000. The appeals were allowed and impugned judgments passed by the Federal Service Tribunal were set aside.
Therefore, the appeal preferred by Javed Ahmed before the Federal Service Tribunal may be presumed to be pending for a decision afresh.
5. Conversely, Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court, appearing on behalf of Javed Ahmed has contended that Constitutional Petition No,D-970 of 2007 was presented on 23-4- 2007 in the High Court of Sindh against the order dated 26-3-2005 passed by the department whereby ,Javed Ahmed was compulsorily retired from service. His petition was allowed by the learned High Court vide order, dated 23-4-2008 by setting aside the departmental order, dated 26-3-2005 with the direction that Javed Ahmed may be reinstated in service and his intervening period without service may be treated as extraordinary leave without salary. Since the departmental order, dated 26-3-2005 was set aside and Javed Ahmed was entitled to all benefits available to him under the law and the salary for the intervening period as he remained out of job since. 18-6-2003. Javed Ahmad was not dealt with fairly and after remand of his case by the Service Tribunal the department took the matter as prestige and ignored the relevant law and failed to provide natural justice. The disciplinary proceedings were not carried out according to paras.5.05, 5.07 and 5.08 to 5-16 of Civil Aviation Authority Service Regulations. The case of misconduct could not be proved against Javed Ahmed. The punishment of compulsory retirement was contrary to the mandatory provisions of R.S.O. The de novo trial was illegal and liable to be set aside as the same was contrary to the orders of the Federal Service Tribunal as well as the principle of de novo trial. Therefore, the portion of impugned judgment of the High Court treating the intervening period without service as extraordinary leave without salary is not sustainable in law.
The statement of allegations dated 4-1-2005 contains not only new allegations but some of the old allegations were missing. The statement of the allegations was not in accordance with the relevant law as the same was signed by the Director-General posing himself to be the competent authority whereas he is not the competent authority under the R.S.O. The inquiry was also concocted contrary to the norms of the inquiries as there was no prosecution statement. There were several charges which do not constitute misconduct under the law. None of the allegations were proved in the inquiry proceedings whereas Javed Ahmad was punished on the allegations of so-called complaints and material supplied by others but no such person was examined in the inquiry and on the basis of hearsay evidence Javed Ahmad was found guilty which was not substantiated.
Javed Ahmad should not suffer by the act of State/functionary as he was falsely involved in the litigation and his prayers had been allowed by the High Court through the impugned judgment.
The point of maintainability as agitated by the learned counsel of the Civil Aviation Authority was taken into consideration by the High Court of Sindh in its impugned judgment. The disciplinary proceedings against Javed Ahmad under the Civil Aviation Authority Service Regulations were illegal, ab initio, null and void as in view of the promulgation of R.S.O. Disciplinary proceedings had to be taken under the said Ordinance and not under the Civil Aviation Authority Service Regulations, therefore, it was argued before the Federal Service Tribunal that it was a case of misapplication of law, therefore, without adverting to the merits of the case the matter was remanded to Civil Aviation Authority for de novo proceeding against Javed Ahmad strictly in accordance with the relevant laws on the basis of same allegations as contained in the show- cause notice, dated 14-4-2003. The Appeal No,616(K)(C.E.) of 2003 filed by Javed Ahmad was allowed and the impugned orders were set aside with the direction that Javed Ahmed shall be reinstated in service but question of payment of back-benefits shall depend upon the result of de novo proceedings. The de novo trial was directed by the Federal Service Tribunal to be done "strictly in accordance with the relevant law". The statement of allegations was signed by the Director-General posing himself to be the "competent authority" while he was not "competent authority" under R.S.O. In the case of Javed Ahmad. The inquiry was conducted contrary to the norms of inquiries as there were no prosecution statement recorded in the presence of Javed Ahmad nor any defence statement was recorded. The prosecutor/complainant brought pre- recorded and pre-arranged statements and placed several documents in the hands of the Inquiry Committee pointing out that a bunch was comprising of the documents which were referred to in the statement of allegations and then there was another bunch comprising of additional documents on which the department and the prosecutor were able to lay their hands after issuing of the statement of allegations. The inquiry was conducted on 31-1-2005 and same was duly signed by the Inquiry Committee but on the next day it was reopened for cross-examination of the complainant/prosecutor by the accused (Javed Ahmad) though no statement of the prosecutor was recorded and the same day without recording of any statements of the accused (Javed Ahmad) he was subjected to cross-examination by the prosecutor. Several allegations culminated into the impugned punishment are those on which proceedings had been undertaken, concluded and inquiry closed. There were certain allegations which were withdrawn at the relevant time but again were made subject-matter of these proceedings culminating in the impugned punishment.
Almost all the allegations had fallen in the category of past and closed transactions and the same could not be reopened. There were several charges which did not constitute misconduct under the relevant law but Javed Ahmed has been punished for the same. He had been denied his right of self-defence by not recording his statement and by not affording him a chance to put up his defence. The Inquiry Committee acted in such a way as if they had assumed the power of competent authority by widening the scope of inquiry and this act is contrary to law by violating the directions of the Service Tribunal contained in the judgment dated 29-11-2004. This alone reflects to prove the mala fide intentions of all concerned and partially against Javed Ahmad. The professional outstanding and competence can be evaluated from the fact that Javed Ahmad was selected for deputation to Maritime Security Agency as A.D.C. To the Director-General and Public Relations office. He was also selected for Airport Management Course in Singapore and Manila and was also specially assigned the duties by Ex-Director-General of the Civil Aviation Authority to improve the facilitation/environment at Islamabad. He also got the offices of the Intelligence Bureau, Police Department, I.S.I. And S.D.M. Etc. At Terminal-1 at Jinnah International Airport Karachi.
The work performance and competence of Javed Ahmed can be appreciated that he had been deputed and posted on posts and places of vital importance and responsibility during 1983 to 2003. He was never communicated adverse A.C.R, and no proceedings were launched against him regarding his inefficiency or misconduct. But frivolous complaints were arranged by any corner for destroying his career. The departmental authority/present prosecutor in the year 2003 had advised intentionally for possibilities of disposing of the case of Javed Ahmed (removing him from service) action under Regulation 5.27 of the Civil Aviation Authority Service Regulations due to personal grudge. The then Director Administration who was also managing complaints from various quarters did not want to loose the opportunity recommended that it was a fit case to be disposed of vide Regulation 5.27 of the Civil Aviation Authority Service Regulations without holding of inquiry and it was done which was set aside by the Federal Service Tribunal. It is lastly urged that after abatement of the appeal of Javed Ahmad before the Federal Service Tribunal there was only remedy available to Javed Ahmed under the law to approach the High Court setting aside the impugned order, dated 26-3-2005 and seeking his reinstatement in service as the impugned order of the department was illegal and against the principles of law and non-existent. The prayer of Javed Ahmad in Constitutional Petition No,D-970 of 2007 was allowed vide judgment, dated 23-4- 2008 as no other remedy under the law was available to Javed Ahmad and the petition was the only remedy before the High Court of Sindh. It was observed by the learned Division Bench of the High Court that the impugned order, dated 26-3-2005 was neither maintainable nor sustainable in the eye of law and the directions were issued that Javed Ahmad be reinstated in service.
6. We have heard learned counsel for the respective parties, examined the impugned judgment and other material available on record with their able assistance. We have framed the following points as to examine the issue involved in these appeals:--- "(1) Prior to the judgment of this Court passed in the case of Muhammad Mubeen-us-Salam PLD 2006 SC 602, two remedies were available to the employees of Corporations i,e,
(i) One, under section 2-A of the Services Tribunals Act, and
(ii) Second, under section 10 of the Removal from Service (Special Powers) Ordinance, if disciplinary proceedings were initiated under this Ordinance.
(2) This Court in the case of Mubeen-us-Salam declared the section 2-A of the Service Tribunals Act to be ultra vires, but the effect of section 10 of R.S.O. Was not discussed.
(3) After the said judgment, the Service Tribunals returned all the appeals pending before it being abated.
(4) In order to resolve the controversy, this Court again revisited the said judgment and protected the appeals decided by Service Tribunals having attained finality being past and closed transactions, through case of M. Idrees v. Agriculture Development Bank of Pakistan and others PLD 2007 SC 681, but this time again the effect of R.S.O. Was not considered.
(5) In view of the said judgments the Full Bench of High Court, again without considering the effect of R.S.O., declared that the employees of Corporation have no other remedy therefore, writ petition is maintainable. (12-3-2007).
(6) In view of the said judgment, dated 12-3-2007 the High Court decided the case in favour of Javed Ahmed vide impugned judgment.
(7) Afterwards the issue that the cases wherein the disciplinary proceedings were initiated under R.S.O. Were not abated in view of case of Mubeen-us-Salam, was raised before Service Tribunal as well as this Court, resultantly this Court vide order, dated 16-10-2008 decided that cases wherein the disciplinary proceedings were initiated under R.S.O. Were not abated.
(8) Now the employees of Corporation have right of appeal before Service Tribunals if the disciplinary proceedings were initiated under R.S.O., thus writ petition is not maintainable.
(9) Now the issue remains that whether writ petition was maintainable or not, during the period, from the date of judgment of Mubeen-us-Salam's case to 16-10-2008 as right of appeal was not provided in that period."
' In view of these important issues i,e, (2), (3), (4) and (9) there was no remedy available under the law and the case-law laid down by this Court, the writ petition filed by Javed Ahmed was maintainable before the High Court.
7. As per Mubeen-us-Salam case, there were two remedies available to the employees of the Corporations, i,e, (i) under section 2-A of the Service Tribunals Act and (ii) under section 10 of the Removal from Service (Special Powers) Ordinance XVII of 2000 but in the case of Mubeen-us- Salam this Court declared section 2-A of the Service Tribunals Act to be ultra vires but the effect of section 10 of Removal from Service (Special Powers) Ordinance XVII of 2000 was not considered nor any arguments were advanced by the learned counsel for the parties while hearing the case of Mubeen-us-Salam. In view of the above position the Service Tribunal returned all the appeals pending before it being abated and the appeal filed by Javed Ahmad being Appeal No,297(K)(C.E.) of 2005 was also stood abated w,e,f, 27-6-2006 and a letter was addressed by the Federal Service Tribunal to Javed Ahmad on 30-6-2006. The view taken by the Federal Service Tribunal that the abatement of appeal/proceedings resulted as consequence of operation of law, such abatement was assumed to be operative ipso facto at once and there was no need or legal requirement for obtaining any formal order from the said forum or Court being seized of the matter. The above direction was communicated to Javed Ahmad on the basis of the direction of the Federal Service Tribunal by Mr. G.H. Channer, Assistant Registrar, Federal Service Tribunal, Karachi. In view of the such position there was no other remedy before the competent forum. After abatement of the proceedings Javed Ahmad instituted a constitutional petition in the High Court of Sindh, Karachi. In the case of Muhammad Idrees v. Agriculture Development Bank of Pakistan and others PLD 2007 SC 681 this Court again revisited the said judgment and protected the appeals decided by the Service Tribunals having attained finality being past and closed transactions but deciding the case of M.
Idrees again the effect of Removal from Service (Special Powers) Ordinance XVII of 2000 was not taken into consideration. In view of the above position the Full Bench of the High Court of Sindh again did not consider the effect of Removal from Service (Special Powers) Ordinance XVII of 2000 and declared that the employees of the Corporations had no other remedy and observed that the writ petition was maintainable as per judgment, dated 12-3-2007 passed in Writ Petition No,1970 of 2006 etc. Now we have to consider that after the abatement of the departmental appeal of Javed Ahmad which was abated w,e,f, 27-6-2006 and after the judgment of this Court, dated 16-10-2008 whether writ petition was maintainable or not during the period from the date of judgment of Mubeen-us-Salam case as right of appeal was not available to any party during such period. As per law all the employees of the Corporations have right of appeal before the Service Tribunal if the disciplinary proceedings were initiated under the Removal from Service (Special Powers)
Ordinance XVII of 2000 but by abating the appeal by Tribunal itself and the letter was addressed on behalf of the Federal Service Tribunal as per direction to inform the litigants regarding their pending cases or proceedings which were not protected or covered by the judgment of the apex Court, dated 27-6-2006 in Civil Appeals Nos.792 to 816 of 2005 etc. Shall stood abated and the litigants were directed to challenge their grievances within 90 days. Javed Ahmed instituted constitutional petition before the High Court of Sindh and it is to be examined by this Court whether there was any other remedy available under the law after the abatement of the appeal of Javed Ahmad w,e,f, 27-6-2006. The High Court examined the issue of the maintainability of the constitutional petition and decided the case in favour of Javed Ahmed vide impugned judgment, dated 23-4-2008 passed in C.P. No,D-970 of 2007. Javed Ahmad was served with final show-cause notice which was replied by him promptly but he was dealt with iron hand and culminated his inquiry proceedings contrary to the mandatory provisions of Removal from Service (Special Powers) Ordinance XVII of 2000. It is crystal clear that after remand of the case from the Federal Service Tribunal, the department did not proceed in accordance with law and took this matter as prestige point. Javed Ahmad was inducted on 10-5-1983 as Deputy Manager and was promoted as Corporate Manager in the year 1991 by the Civil Aviation Authority. There is no material on record that Javed Ahmad was ever communicated any adverse Annual Confidential Report regarding his inefficiency or misconduct. Javed Ahmed was deputed to work on various assignments for, the period from 1983 to 2003. Javed Ahmad was also selected on deputation to Maritime Security Agency as A.D.C. To the Director-General and Public Relations Officer. He was also selected for the Airport Management Courses in Singapur and Manila. It is surprising to express that even show- cause notice, dated 14-2-1983 was withdrawn by the Director Administration vide his letter, dated 31-1-1998 whereby he was exonerated from the allegations. It is obvious that Javed Ahmed was not dealt with fairly nor the departmental authority proceeded with the departmental appeal in accordance with law but departmental authority maintained the punishment which was earlier announced before the remand of the case. Javed Ahmed was found guilty on the basis of hearsay evidence which was not substantiated. In the different documents regarding the misconduct of Javed Ahmed 30 allegations were levelled which were brought in the file of Javed Ahmed but no such witness from whom complaints were communicated was examined to prove the charges against Javed Ahmad. The plea of the Mr. Makhdum Ali Khan, Senior Advocate Supreme Court, is that the appeal of Javed Ahmed would not be abated in the light of judgment in Mubeen-us- Salam case, but his appeal is still pending in the Tribunal. He has cited judgment reported as Raja Riaz v. Chairman, Pak Space and Upper Atmosphere Research Commission 2008 SCMR 402. Since there is a verdict of the Federal Service Tribunal which was conveyed by the Assistant Registrar vide his letter, dated 30-6-2006 that pending service matters which are not protected or covered in the light of Mubeen-us-Salam case shall stand abated. If it is presumed that the appeal of Javed Ahmed was not abated since 27-6-2006 but thereafter no proceedings were initiated by the Federal Service Tribunal to rehear the appeal on merits. In view of the judgment of the Full Bench of the High Court passed in C.Ps. Nos.D-1591 of 2006 etc. (Muhammad Dawood and others v.
Federation of Pakistan and others), the Petitions bearing Nos.D-786, 1642, 1682, 1741, 1753, 1766, 1810 1939, 1949, 1951, 1955 and 2061 of 2006 were dismissed by the Full Bench in view of the conclusion in para.5 whereas it was observed that all petitions complaining of removal under the provisions of the Removal from Service (Special Powers) Ordinance XVII of 2000 having been taken in exercise of statutory powers, are maintainable with the observation that such petitions be listed before the appropriate bench for hearing. The petition of Javed Ahmed bearing No,W.P.1970 of 2006 was also among these petitions. The observation of the Full Bench as conclusion is reproduced as under:---
(i) Irrespective of an employee of a State controlled Corporation not being a civil servant the corporation they continue to remain amenable to the jurisdiction of this Court under Article 199 of the Constitution.
(ii) The rule of master and servant is inapplicable to cases where there is violation of statutory provisions or of any other law.
(iii) The expression "violation of law" would not be confined merely to violation of any specific provision of a statute but the expression "law" as observed by Hamoodur Rehman, J., (as his Lordship then was) in Government of West Pakistan v. Begum Aga Abdul Karim Sorish PLD 1969 SC 14 a 31 and ought to be considered in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts. It means according to the accepted norms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may, for instance, include the principles of natural justice, the public duty to act fairly and honestly and absence of mala fides in facts and law. In all such cases the.Court would be competent to grant relief of reinstatement."
8. We are mindful to the fact that this Court order, dated 16-10-2008 in C.As. Nos.1555, 1558, 1559, 1560, 1564, 1990 and 2734 to 2736 of 2006 has observed that Federal Service Tribunal had taken a different view by entertaining service appeals under the provisions of Removal from Service (Special Powers) Ordinance, 2000 but the fact remains that in this case the Federal Service Tribunal formed another opinion which was conveyed by the Assistant Registrar of Federal Service Tribunal vide Letter No,30-6-2006 with the pending service matters which are not covered in the light of the Mubeen-us-Salam's case shall stand abated. Javed Ahmed filed constitutional petition before the High Court as there was no legal remedy under the law after the abatement of his service appeal.
The petition filed by Javed Ahmed in the High Court was maintainable under the law as after the abatement and after taking another view by the learned Tribunal by entertaining service appeal involving departmental penalties there was no appropriate remedy under the law available to agitate his grievance and the petition was rightly entertained and disposed of by the learned High Court which was within the jurisdiction of the High Court. Moreover, as per merit of the case, Javed Ahmed was neither dealt with fairly nor any inquiry was conducted in the matter. The departmental authorities in spite of remand of the case by the Tribunal dilated upon the merit of the case but they formed their earlier opinion and became prejudiced towards Javed Ahmed on the basis of other complaints and no opportunity in defence was provided to him. The departmental authorities in spite of reinstatement order, passed by learned High Court, did not allow the petitioner to join the service although the constitutional petition was allowed on 23-4-2008 and the present petition was filed on May, 2008 which reflects that the departmental authorities make up mind at their own to deprive of petitioner Javed Ahmed of his right. The learned High Court was fully empowered to consider whether the actions complained of is in accordance with the Removal from Service (Special Powers) Ordinance, 2000. Therefore, the violation of law falls within the parameters of the constitutional jurisdiction and the petition was properly entertain able regarding punishment of compulsory retirement to Javed Ahmed. The right of individual by change of law cannot be closed as past transaction and the constitutional petition remains alive to agitate the rights guaranteed under the Constitution. The departmental action on the statement of allegations contained 23 allegations which include additional allegations, was passed on malice and pre-determined desire to get rid of Javed Ahmed. After abatement of his service appeal, there was no remedy available under the law in view of Mubeen-us-Salam's case and the petition before the High Court was maintainable. Therefore, learned High Court has rightly set aside the impugned order, dated 26-3- 2005 with the direction that Javed Ahmed may be reinstated in service and wrongly observed that his intervening period may be treated as extraordinary leave without salary. There is no jurisdictional error in the impugned judgment, therefore, the same is hereby maintained. The impugned judgment does not suffer from any infirmity or illegality to call for interference by this Court.
9. For the foregoing reasons, facts and circumstances of the case, Civil Appeal No,571 of 2008, filed by Javed Ahmed, is partly allowed to the extent that the intervening period as extraordinary leave without salary be treated as with salary/pay, if Javed Ahmed has not joined any other service by acquiring the benefit of pay. Resultantly, C.A. No,509 of 2008 filed by the department Civil Aviation Authority is dismissed. The appeals stand disposed of in above terms.