' AMIR HANI MUSLIM, J.---This appeal, by leave of the Court, is directed against the judgment dated 16-1-2007 of the Lahore High Court, Rawalpindi Bench, whereby the writ petition filed by the respondent was disposed of with the direction to the appellants to discharge the respondent administratively with benefits contained in letter/circular dated 13-12-1992.
2. Facts, in brief, are that the respondent while working as Cpl. Technician (Radio Fitter) in Pakistan Air Force was removed from service under section 20(1) of PAF Act 1953 read with Rule 31-A of PAF Act Rules, 1957, upon having been found involved in case F.I.R. No,134 dated 1-8-2002 registered under section 354/509, P.P.C., at Police Station Pindi Gheb, District Attock. Although he was acquitted from the case, by judgment dated 14-6-2004 of the trial Court, the respondent was neither reinstated nor discharged in terms of circular dated 13-12-1992. The respondent, after exhausting the departmental remedies, invoked the jurisdiction of the High Court by filing Writ Petition No,2639 of 2004 seeking his reinstatement in service. The learned High Court disposed of the writ petition in the above terms. The appellants impugned the judgment of the High Court before this Court in Civil Petition No,2008 of 2007 in which leave was granted. Hence this appeal.
3. The learned counsel Deputy Attorney-General contends that the jurisdiction of the High Court was barred under Article 199(3) of the Constitution and, therefore, the impugned judgment is without jurisdiction. He next contended that circular dated 13-12-1999 does not take away the powers of the competent authority to remove the respondent from service if his case is covered under any of the sub-pares of Para 4 of the circular_ According to the learned DAG, while deciding the departmental appeal, the competent authority has the power to remove an employee on one of the grounds mentioned in Para 4. According to him, the competent authority was satisfied that the respondent was involved in an offence involving moral turpitude therefore, he was rightly removed from service. According to him, the finding of the High Court even on this issue was not correctly recorded.
4. The respondent appeared in person and informed that he too has challenged the judgment of the High Court seeking his reinstatement by filing a petition which was dismissed by this Court being barred by time. He, however, has supported the judgment of the High Court praying that he is entitled to the pensioner benefits in terms of Para 5 of circular dated 13-12-1992.
5. We have heard the learned DAG and the respondent in person. We have also gone through the record. The relevant Paras 4 and 5 of circular dated 13-12-1992, relevant for decision of these proceedings, are reproduced for sake of convenience:--
4. To enable the commanders to take appropriate decision in this regard the following general principles are laid down for guidance:--
(a) In case falling under category 3(a) above where the man does not report to unit for six months, as a matter of policy the unit should initiate a case for administrative discharge from service, with all the benefits for the service rendered by him.
' In case visualized in para (b) above the under mentioned factors may be taken into consideration while deciding his retention or discharge (with benefits):- ' The time spent in Civil trial.
' The nature of the offence which the nature of the offence which he is involved.
(iii) His past record; and -(iv) His future utility in the service.
(c) In case falling in category 3(c) above if the man in convicted, he will have to be administratively dismissed/removed/discharged from service depending upon the nature of offence and the sentence awarded. If however, the man has been acquitted, his retention or termination should be in the light of the following: -
(i) Nature of the offence;
(ii) Whether the man has been honourably acquitted or was given benefit of doubt.
(iii) The time spent by the individual in the civil custody;
(iv) His past service record; and
(v) His future utility in the service
5. If the man was involved in an offence involving moral turpitude, which brought disgrace to the service and was acquitted by being given benefit of doubt, such should be discharged administratively. If however, he has been honorably acquitted, he will have to be reinstated and paid all arrears etc. Irrespective of the nature of offence in which he was involved. All cases should be considered on merits and decided, on case to case basis,"
6. The respondent was removed from service on the ground that he was involved in a criminal case. It is an admitted position that the respondent was acquitted in the criminal case by the trial Court which extended him the benefit of doubt. The retention or termination of the service of the respondent is dependent on para-5 of the circular. In the case in hand, clause (ii) of para-4 has to be read with para-5 of the A circular, which provides that if an employee was involved in an offence involving moral turpitude which brought disgrace to the service and was acquitted by being given benefit of doubt, such employee should be discharged from service. Section 20, sub- note 1(b) of the Pakistan Air Force Act provides difference between dismissal and discharge. The sub-note reads as under:-- "The difference between dismissal and discharge is that the former does, 'while the latter does not, imply culpability. Dismissal involves the forfeiture of any pension or gratuity which may have been earned. Discharge does not involve such forfeiture.:
7. The respondent was admittedly acquitted of the charge by the trial Court which has extended him the benefit of doubt. The case of the respondent was, therefore, covered under para-4 (c) (ii) of the circular dated 13-12-1992 read with the first portion of para-5 of the circular dated 13-12-1992.
The first portion of para-5 of the circular hold such an employee entitled to the pensioner benefits and or gratuity in terms of sub-note (b) of section 20 of Pakistan Air Force Act reproduced hereinabove. We are informed that the respondent is not entitled to pensioner benefits for want of length of service, but is entitled to gratuity. Therefore, we are 'clear in our mind that the order of the competent authority passed in the case in hand was not in conformity with the terms of circular 13- 12-1992, under which the respondent is governed. The law does not authorize the competent authority to remove such an employee from service if he is acquitted by the court of competent jurisdiction by extending him the benefit of doubt. The case of the respondent is, therefore, covered by the circular which ought to be read with section 20 note (1)(b) (ibid) under which he is liable to be discharged with pension or gratuity. We, therefore, hold that the impugned judgment of the High. Court is in conformity with the law under which the respondent is being governed.
8. The question as to whether the High Court was competent to take cognizance of the matter in view of the bar contained in Article 199(3) of the Constitution has been dealt with by this Court in Civil Appeals Nos.1274 and 1275 of 2005 (Federation of Pakistan and others v. Raja Muhammad Ishaue Qamar), wherein it has been held that notwithstanding the bar contained in Article 199(3) of the Constitution, where any action has been found to be without jurisdiction or corium non judice or mala fide, extraordinary jurisdiction of the High Court under Article 199 could competently be invoked by an 'aggrieved person. ##TE# The respondents in the above-referred case have challenged the action of the appellants, inter alia, on the ground that para-5 of the circular/ notification dated 13-12-1992 of the Air Headquarters was overlooked while removing the respondents from service. The High Court, found the said impugned action of the appellants to be unfair and unjust and identical plea was raised before this Court that the High Court was in error in entertaining the petitions in _view of the bar contained in Article 199(3). This court in its judgment referred to hereinabove has held that the High Court had, rightly entertained the petitions. %. The non obstante clause has to be strictly construed, If an action of the authority is in color full exercise of power and or is tainted with malice, non obstante clause will not come in the way of the High Court to entertain such a petition. The non obstante clause does not provide blanket cover to the appellants and is subject to judicial review, if the action on the part of the appellants is coram non judice, without jurisdiction or mala fide. In the case in hand, the appellants cannot overlook the provisions of section 20 'read with circular dated 13-12-1992, which provides that the respondent was to he discharged from service with .The pension/gratuity.
9. We, therefore, hold that the conclusion drawn by the High Court while entertaining the petition of the respondent was unexceptionable and the bar of jurisdiction would not extend in such like cases,
10. For the aforesaid reasons, this appeal is dismissed leaving the parties to bear their own costs.