' MUSH1R ALAM, J.---Through this petition, the petitioners impugn the order dated 10.11.2015 penned down in Writ Petition No,8331 of 2015 whereby challenge to the nomination of the respondents Nos.
3 and 4 as Chairman, Vice-Chairman respectively of Union council 127, Dashti, Rahim Yar Khan was on the ground, inter alia, that respondent No, 3 had been terminated from Government service, thus he is disqualified to run for the election, the objection was overturned by the Returning Officer and the Election Appellate Authority vide orders dated 13.10.2015 and 02.11.2015 respectively.
2. Above orders were maintained through impugned orders dated 10.11.2015 in Writ Petition No, 8331 of 2015 by the learned Bench of Lahore High Court, Bahawalpur Bench, Bahawalpur.
3. Short controversy that has engaged the attention of the Courts and fora below was whether the termination of the respondent No,3 on account of his unauthorized absence with effect from 01.01.2012 through notification dated 30.09.2014, (page 40) would attract disqualification within the contemplation of section 27(2) [(clauses (e) (g) and (h)1, which may be relevant for the purpose of resolving controversy in hand read as follows: "27. Qualifications and disqualifications for candidates and elected members.-
(2) A person shall be disqualified from being elected or chosen as, and from being, an elected member of a local government, if he- (a)--- (b)--- (c)--- (d)---
(e) is in the service of any statutory body or a body which is owned or controlled by the Government or a Provincial Government or the Federal Government or a local government or, in which any of such Government or local government has a controlling share or interest, except the holders of elected public office and part-time officials remunerated either by salary or fee; provided that in case of a person who has resigned or retired from any such service, a period of not less than two years has elapsed since his resignation or retirement;
(g) has been dismissed from public service on the grounds of misconduct unless a period of five years has elapsed since his dismissal;
(h) has been removed or compulsorily retired from public service on the grounds of misconduct unless a period of three years has elapsed since his removal or compulsory retirement;"
4. It was contended by the learned counsel that the termination notification referred to above was issued on 30.09.2014 notifying termination with effect from 01.01.2012 would only be operative from the date of its issue i,e, from 30.09.2014 and not retrospectively. It was further urged that from the date of issuance of such notification, the barring period has not lapsed. According to him, case of the Respondent No,3 falls within clause (g) of subsection (2) of section 27 ibid as reproduced above. In support of his contention that termination notification cannot be given retrospective effect, he has placed reliance on the following judgments: i) Chief Secretary. Govt. Of Punjab v. Asif Hayat (2011 SCMR 1220); ii) Hamdullah v. Saifullah Khan (PLD 2007 SC 52); iii) Sikandar Ali Shah v. Auditor General of Pakistan (2002 SCMR 1124); iv) Noor Muhammad v. The Member Election Commission, Punjab (PLD 1985 SC 1178); v) Noor Muhammad v. Muhammad Abdullah (1984 SCMR 1578); vi) Neelam Yasmin Abbasi v. Returning Officer (2010 MLD 527); vii) Anwar Khan v. Assistant Chief of Air Staff [1994 PLC (C.S.) 15]; viii) Muhammad Khan v. Punjab Election Authority (1984 CLC 1445); ix) Muhammad Abdul Latif v. Province of East Pakistan (PLD 1964 Dacca 647); x) Province of Punjab v. Khaliq Dad Khan (PLD 1953 Lahore 295); ' In the cases of The Province of Punjab v. Khaliq Dad Khan (PLD 1953 Lahore 295), Noor Muhammad v. Member Election Commission (1985 SCMR 1178), Sikandar Ali Shah V. Auditor-General.Of Pakistan (2002 SCMR 1124) and Chief Secretary, Government of Punjab v. Asif Hayat (2011 SCMR 1220), it was acknowledged that "service could not be terminated with retrospective effect, unless competent authority was expressly empowered in such regard by some statute or rule made thereunder".
5. It was further contended that absence from service amounts to misconduct and entails major penalty as held by this Court in the cases of Mushtaq v. The State (PLD 2008 SC I) and Secretary, Education v. Mustamir Khan (2005 SCMR 17). It may be observed that, we are not dilating upon the controversy within the realm of service matter to adjudge, whether removal from service was on account of misconduct or otherwise such aspect or detail probe into could not be embarked in summary jurisdiction at pre election stage.
6. As opposed to above, the learned counsel for the respondents contends that the respondent No,3 was neither removed nor compulsory retired from service on the ground of misconduct nor he was dismissed from the service. It was urged that Respondent No,3 resigned from service on 01.01.2012 therefore, his case if at the best falls within the contemplation of Sub-Clause (e) of subsection (2) of section 27 of Punjab Local Government Act, 2013 which is reproduced in paragraph 2 hereinabove.
7. We have heard the learned counsels for the parties and have perused the record.
8. Election laws more particularly disqualification provisions to disenfranchising a candidate, thus depriving him of a valuable right of franchise guaranteed under the Constitution are to be strictly construed any ambiguity is to be resolved in favour of candidate who could be permitted to participate in the electoral process. To challenge the candidature of a person running for elections under the law governing local Government two stage mechanism to test the eligibility and disqualification is provided. First stage is at pre-election, where Returning Officer and Election Appellate Tribunal under Rule 14 of the Punjab Local Government (Conduct of Election) Rules, 2013 sift the candidates through eligibility and disqualification test in a summary manner challenge one pre-election challenge which confers summary jurisdiction both on the Returning Officer and so also the election Appellate Tribunal to summarily enquire into the eligibility and disqualification as may be evident from the material available on record without entering into in depth analysis into the allegation of disqualification. Second stage to challenge the post-election candidature of returned candidate is by way of Election Petition under section 38 before the Election Tribunal constituted under section 39 of the Act, 2013. Jurisdiction conferred on Election Tribunal is akin to the jurisdiction of the Civil Court where thorough probe and inquiry could be undertaken. The proposition that termination could not be retrospective in operation is not of universal application it is with caveat that unless the rules and regulations otherwise provide. The respondent was dispensed with from service through notification dated 30.09.2014 which is as follow: "After due consideration of all aspects of the above case and as decided by the competent authority at Head Office Karachi, Mr. Muhammad Arif, OG-I PF.No,1115218 and 2739, NBP Khan Bela Branch has been terminated from the Bank's Service with effect from his unauthorized absence i,e, 01.01.2012 in terms of staff service rules (SSR) and employee discipline policy (EDP) Rule 10.9. He is also advised to adjust all direct/indirect liabilities outstanding against him immediately. "
9. From the perusal of the above, it is evident that he was terminated on account of unauthorized absence with effect from 01.01.2012 attracts dismissal from Public service on account of a misconduct as it is not so manifest from the order dispensing from service as reproduced above. It may amount to misconduct, if so held by the competent authority after due inquiry and probe, it appears that this order of removal from service on account of his absence was accepted and not challenged by the respondent who may be affected. Learned Election Appellate Authority vide order dated 02.11.2015 attended to arguments as advanced today before us in paragraphs 7 and 8 which reads as follows: "7. Pertinent to mention over here that dismissal from service required a period of five years as elapsed since his dismissal to contest the election but the respondent No,2 was not dismissed from the services rather he was terminated w,e,f, 01.01.2012. so the case of respondent No,2 does not fall under the head of section 27(2)(g) of the Punjab Local Government Act 2013, but the same falls under section 27(2)(h) of ibid.
8. Keeping in view the letter NO,ROB:HRM:DCS/201/3118 dated 30.09.2014 and section 27(2)(h) of the Punjab Local Government Act 2013, a period of three years must be elapsed since 01.01.2012, which has already been completed by the respondent No,2 Muhammad Arif Khan. "
' Therefore, on merits, the petition fails. Even otherwise, once a candidate who is running for election is allowed to contest election by the Returning Officer and so also endorsed by the Appellate Authority, then in such case, as held in the case of Ghulam Mustafa Jatoi v. Additional District and Sessions Judge (1994 SCMR 1299), this Court has set down as follows: "26. The upshot of the above discussion is that generally in an election process the High Court cannot interfere with by invoking its constitutional jurisdiction in view of Article 225 of the Constitution. However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which is patently illegal/without jurisdiction and the effect of which is to disfranchise a candidate, he can press into service Constitutional Jurisdiction of the High Court......
' This view has been reaffirmed by this Court in the case of Aftab Shahban Mirani v. President of Pakistan (1998 SCMR 1863).
10. Since the law favours liberal interpretation as to facilitate a party to contest election and secondly that writ petition disfranchising a candidate cannot be readily invoked when post election challenge through Election Petition in terms of section 38 of Act, 2013 is available, writ petition was also not maintainable, therefore, the petition fails and as such the same is dismissed.
Leave is refused.