MUHAMMAD KHALID MEHMOOD KHAN, J. Through this constitutional petition the petitioner has prayed as under:-- "In view of the above submissions, it is most respectfully prayed that this Writ petition may graciously be accepted, letter issued by the office of respondent No,4 (Annexure (R') may kindly be set aside by declaring the same as null and void without jurisdiction and application of petitioner (Annexure (B) may kindly be accepted and the petitioner be declared to have been retired voluntarily with 75% earned benefits, in the interest of justice. Any other relief which this Hon'ble Court may deem fit and proper may also be awarded to the petitioner."
2. Briefly stated the facts of case are that petitioner being employee of Ministry Of Defence, Government of Pakistan, was serving as Major, applied on 13-7-1996 opting voluntary/premature retirement. The petitioner's application was forwarded on 14-7-1996 to relevant quarter in terms of policy dated 13-1-1993 applicable to voluntary/premature retirement of officers. The petitioner at the relevant time, was having 14 years and 6 months service and as such under the voluntary/premature retirement policy he was entitled 75% earned benefits. On 5-9-1996 the petitioner was conveyed on Telephone by one Major Mian Muhammad Hilal Hussain DAMS MS-1-B that his request for voluntary/premature retirement has been regretted by MS Branch and informed the petitioner that he may resign without any terminal benefits, it was further informed that a formal letter for refusal of his request will be issued to him. The above said communication of office was conveyed to petitioner on 7-9-1996 but the said Major Mian Muhammad Hilal Hussain (hereinafter referred to as Officer) realizing his mistake called the petitioner on 18-9-1996 and instructed him not to submit application for resignation without terminal benefits as his case will be considered under voluntary/premature retirement policy. MS Branch requested the return of letter dated 7-9-1996. The matter remained pending for processing the petitioner's application. On 26-12-1996 officer instructed the petitioner on telephone to provide a certificate to the effect that he is willing to resign on the pretext that retirement policy may be changed and in that case you have to apply afresh. On the instructions of said officer, the petitioner submitted a certificate showing his willingness to resign without terminal benefits. On 12-2-1997 the petitioner was intimated that his resignation has been accepted, again on 7-9-1996 respondent No,4 intimated the petitioner that his resignation has been approved by the Federal Government without terminal benefits with effect from 30-6-1997. Earlier in response to letter of respondents advising him to submit resignation, the petitioner on 15-2-1997 wrote a letter that he should not be victimized and his application for voluntary/premature retirement may be accepted with 75% earned benefits.
After that petitioner applied to Chief of Army Staff on 4-11-1997 for redressal of his grievance and continued to approach each and every quarter for redressal of his grievance but his grievance remained pending on different quarter and ultimately respondent No,1, Ministry of Defence, vide letter dated 30-5:2009 informed that his resignation' has been accepted and he is not entitled to 75% earned benefits. The petitioner again represented against the said letter but without any success. The petitioner then challenged the refusal of respondents on the ground of mala fide, discrimination and without lawful authority, claiming that as per applicable policy at the relevant time, the petitioner was entitled for 75% earned benefits as his service was 14 years 6 months, the petitioner was to submit resignation as existing policy is going to be amended and in that ease he has to file fresh application and again he has to undergo a long process. He asserts that he never withdrew from his application of voluntary/premature retirement and as such the impugned order dated 9-4-1997 is mala fide, against natural justice and against his guaranteed rights under the Constitution of Islamic Republic of Pakistan.
3. The respondents submitted written statement and controverted the petitioner's assertions by raising preliminary objections that in terms of Article 199(3) read with Article 8(3) of the Constitution of Islamic Republic of Pakistan, this petition is not maintainable, the petition suffers from laches. This court has no territorial jurisdiction. In reply to facts, respondents have replied paras Nos.5 to 21 in one para and have taken the stance that petitioner applied for resignation, twice for voluntary release/retirement in July 1995 and July 1996 due to domestic compulsions which were regretted for service reasons. However, the petitioner was asked to resign his commission if he desires so seeing his desperation to leave the service. The final decision was left purely at the discretion of the petitioner. The petitioner submitted his willingness certificate regarding resignation without terminal benefits in December, 1996 and as such he cannot resile from option. It was stated that an officer who is permitted to resign is not entitled to of any ,pension/ gratuity in the light of Rule 20d, Pension Regulations Volume-1 1986. They have denied the fact that Major Mian Muhammad Hilal Hussain has assured him to submit the resignation as policy is going to be changed. Nutshell of respondent's stance is that it is the petitioner who himself opted to resign from the commission due to his domestic disturbance or otherwise and as such petition is devoid of merit and is liable to be dismissed.
4. Learned counsel for the petitioner submits that respondents have not denied the petitioner's application for voluntary/premature retirement. They have also not denied the letters written by Officer and its withdrawal. He submits that petitioner has served 14 years and 6 months as Commissioned Officer and as such he was entitled for terminal benefits according to the policy prevailing at the relevant time. He further submits that the act of respondents to deny the petitioner's legitimate right for payment of 75% earned benefits is mala fide, illegal and without jurisdiction. He has relied on Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 1996 Supreme Court 632), Ex.Lt.Col.Anwar Aziz (PA-7122) v. Federation of Pakistan through Secretary Ministry f Defence, Rawalpindi and 2 others (PLD 2001 Supreme Court 54), Federation of Pakistan and others v. Raja Muhammad Ishaque Qamar and another (PLD 2007 Supreme Court 498) and Instisar Ali v. Federation of Pakistan and others (2008 PLC (C.S) 975). On the point of laches learned counsel for petitioner submits that petitioner remain agitated his claim with respondents and finally his claim was refused on 19-5-2009 by respondent No, 1 . The petitioner then filed a petition on 10-10-2009 and as such there are no laches on his part. On the point of maintainability he submits that respondent No,1 is a Federation, petitioner is employee of federation and impugned order was issued by respondent No,1, he has arrayed other respondents only for placing the facts on record and no relief has been claimed against respondent No,1 and as such petition is maintainable. Further submits that Act of respondent is mala fide, without lawful authority, discriminatory and against principle of natural justice and as such the bar of Article 199(3) and Article 8(3) of the Constitution of Islamic Republic of Pakistan is not attracted in this case. On the objection of territorial jurisdiction he submits that Lahore High Court is enjoying the concurrent-jurisdiction with Islamabad High Court and as such the petition merits acceptance.
5. Learned Deputy Attorney General for Pakistan, submits that Ministry of Defence is located in Rawalpindi and as such Islamabad High Court has territorial jurisdiction to entertain the petition and if not territorial jurisdiction vests with. Lahore High Court Rawalpindi Bench. He submits that petition suffers from laches as petitioner has assailed order dated 9-4-1997 in the year 2009 without any explanation. He submits that bar of Article 199(3) and Article 8(3) of the Constitution of Islamic Republic of Pakistan is attracted in this case as the petitioner is employee of Armed Forces.
He has relied on Lt. Col. Anwar Aziz v. Federation of Pakistan (PLD 2001 SC 549) Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 1996 Supreme Court 632), Mushtaq Ahmed and others v. Secretary, Ministry of Defence through Chief of Air and Army Staff and others (PLD 2007 Supreme Court 405), Sepoy Mukhtar Ahmed and others v. Federation of Pakistan through Secretary, Ministry of Defence and another (2008 PCr.LJ 22) and Rehmat Ali Johar v. Additional Chief Engineer and others (PLD 2008 Supreme Court 301).
6. Heard. Record perused.
7. The dispute required resolution by this Court is multidimensional. Respondents have challenged the maintainability of petition on the touchstone of Article 199(3) and Article 8(3) of the Constitution of Islamic Republic of Pakistan. Now it is a settled principle of law that where action is mala fide and without jurisdiction, the bar of Article 199(3) of the Constitution of Islamic Republic of Pakistan is not attracted. Issue of bar of Article 199(3) of the Constitution of Islamic Republic of Pakistan came up before Hon'ble Supreme Court of Pakistan in a case Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 1996 Supreme Court 632) and it was held by the Hon'ble Supreme Court of Pakistan as under:-- "The learned Attorney-General has contended that the words "relating to" in clause (3) are words of wide connotation and after the amendments made in 1974, they operate as a complete bar as they cover every conceivable action taken in relation to even a person for the time being subject to the Army Act as the appellants were. However wide the connotation of these words may be they cannot possibly act as a bar where the action impugned is itself without jurisdiction or coram non judice or has been taken mala fide as held by this Court in State v. Ziaur Rehman PLD 1973 SC
49. On the other hand if the action is with jurisdiction and bona fide then 1 am prepared to concede that the bar will be operative in respect of almost anything if it is in relation to the Armed Forces. The action must, however, be one which is taken while he is so subject and before he becomes so subject or after he ceases to be so subject. In this view of the matter the trial of the offence under section 121-A P. P.C. Would not, in my opinion be protected being without jurisdiction.
' It is quite clear from the above quoted passage that the bar contained in Article 199(3) of the Constitution on the powers of the High Court is not absolute in nature. At least in respect of three categories of cases, namely, where the impugned action is mala fide, or without jurisdiction or coram non judice the bar of Article 199(3) is not applicable."
8. It has to be seen whether the act of respondent No,1 is mala fide, without jurisdiction or coram non judice. If the petitioner comes in the above said parameters then this writ petition is definitely maintainable. The petitioner's argument is that he has been deceived by the officer of respondents when he obtained a resignation on the pretext that the policy may be changed and his retirement case may be then dealt under new policy. He further asserts that letter advising to submit resignation was taken back by respondents and this fact is not denied by respondents in their written statement, they have only denied that the officer of respondents has not advised the petitioner to submit resignation, the letter of first refusal dated 9-4-1997 was withdrawn by respondents themselves and it is sufficient to prove that there was some foul play on the part of respondents. The respondents have not denied the fact that policy prevailing at that time allow the petitioner for premature retirement with 75% earned benefits. The argument of respondent is that it is the petitioner who himself with his free will submitted his resignation without demand of terminal benefits as he was a desperate person and wanted to resign. This fact is negated by the fact that his request for voluntary/premature retirement was recommended by the competent authority and this fact is not denied by respondents. The petitioner under the policy is entitled for the same treatment which the other officials are enjoying. It is not understandable why petitioner was denied of his legitimate right under the policy. This is not the case of respondents that his case does not fall under the policy but their case is that petitioner himself resigned from service and as such he is not entitled for the retirement benefits. This argument of respondent has no logic, the petitioner fulfills all terms and conditions for availing the . Benefit under the policy, why he will forego the same unless he is made known that resignation is the only solution for him. It is a proven fact that the petitioner was forced to resign by the officer, respondent No,1 withdrew letter dated 7-9-1996 Annex-K through letter dated 16-9-1996 Annex-N, the officer when realized that letter dated 7-9- 1996 may cause loss to him, he withdrew the same, this act of respondents is falls within the definition of discrimination and as such denial of any fundamental right without any justification is deemed to be mala fide. This proposition has also been dilated upon by the Hon'ble Supreme Court of Pakistan in a judgment Federation of Pakistan and others v. Raja Muhammad Ishaque Qamar and another (PLD 2007 Supreme Court 498) and the Hon'ble Supreme Court of Pakistan has held as under:-- "Plea raised by authorities was that in view of ouster clause of Art. 199(3) of the Constitution, petition before High Court could not have been entertained---Validity---Order passed by the authorities was found by High Court to be unfair and unjust in view of the notified policy, which amounted to have suffered with mala fide---That extraordinary jurisdiction under Article 199(3) of the Constitution can competently be invoked by aggrieved person if action has been found to be without jurisdiction or corum non judice or mala fide."
' In case of Intisar Ali v. Federation of Pakistan and others (2008 PLC (C.S.) 975), this court has already held as under:-- "Jurisdiction of courts under the said constitutional provision can never be taken away and is always available in case of acts, proceedings or orders which, inter alias are corum non judice-- Order passed by authorities, declaring to reinstated was set-aside by the High Court as the same was against lawful authority and void."
9. The facts show that petitioner was forced to resign as is evident from the fact that petitioner was directed to submit resignation but subsequently when respondents realized that they have wrongly communicated their predetermined decision, they withdrew the same. This very act of respondents is sufficient to prove the mala fide of respondent-officials and as such the petition is maintainable.
10. As far as the question of laches is concerned, admittedly the petitioner continued to agitate his claim with the concerned quarters with the hope that his grievance will be redressed. When finally in 2009 he was finally refused and he approached this Court. It is a settled principle of law that delay in filing of legal proceedings within the period specified under the provision of Limitation Act 1908 and undue time consumed by the party in filing of constitutional petition in which no statutory period is prescribed under the law have different parameters, the delay in the B case under Limitation Act delay has to be explained for each and every day with evidence but in the case of laches in filing of constitution petition lapse of time on question of laches has to be examined on equitable principles for the reason that exercise of constitutional jurisdiction is always discretionary with the court and relief granted under the constitutional jurisdiction is always an equitable relief.
This proposition was came up before the Hon'ble Supreme Court of Pakistan and it has been held that time spent in departmental appeal and subsequent mercy appeals and other applications to authorities have to be considered for the purpose of condoning the laches, and as such the argument of learned counsel for respondents on the objection of laches is repelled, Reliance may be placed on 2005 SCMR 126.
11. The third objection of learned DAG is that this Court has no territorial jurisdiction. It is an admitted fact that respondent No.1 is maintaining their office at Multan, the petitioner has to draw his ' benefits/pension, if allowed, at Multan and respondents are working at Multan and as such this Court has a jurisdiction to entertain and decide the petition. As far as the argument that respondent is federation and as such Islamabad High Court has a jurisdiction to entertain and decide the petition, this issue has already been resolved by this Court in LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others (2009 CLD 1498), wherein it has been held that Islamabad High Court and Lahore High Court has concurrent jurisdiction C for redressal of grievance even if Federation is party.
12. From the conduct of respondent No,1 with reference to processing of petitioner's application for voluntary/premature retirement, it is established that respondents never considered his application for voluntary/premature retirement and forced him to resign from the Commission.
This act of respondents falls in the definition of mala fide. The petitioner was not allowed to explain his case nor he was made known the reasons why' his application was not proceed able for voluntary/premature retirement. The petitioner like other employees is entitled to be treated under the policy applicable. Functionaries of any organization or Ministry could not be allowed discrimination on their whims sweet will or in their own manner rather they are bound to act fairly, evenly and justly. As the petitioner was condemned unheard and his application was not considered rather he was forced to resign, is sufficient ground for setting aside the impugned order being violative of principle of natural, justice which is a violation of fundamental right. The petitioner has served respondent No,1 for 14 years and 6 months and under the policy he was entitled for earned benefit to the extent of 75% and as such he could not be denied of his right to survive.
13. The upshot of the above said discussion is that this petition succeeds and is allowed. The impugned order is set aside and is converted into a voluntary/premature retirement.
14. There is no order as to costs.