KHADIM HUSSAIN TUNIO, J.---Through the instant petition, filed by the petitioner under Article 199 of the Constitution, following relief(s) have been sought:-- a) Declare that the impugned orders dated 30.03.2016 (annexure "B-1 to B-12) are illegal, void ab- initio, without lawful authority, and in clear violation of Article 25 of the Constitution; b) Suspend the operation of impugned orders dated 30.03.2016 (annexure "B-1 to B-12" ) by Drug Regulatory Authority of Pakistan (Respondent No.3) and restrain the respondents from taking any coercive action against the petitioner; c) Any other or additional relief as this Hon'ble Court may deem fit and proper in the circumstances of the case; . d) Cost of the proceedings.
The brief facts, pleaded in the petition, are that the petitioner has been doing the business of manufacturing pharmaceutical products since many years with good general reputation in this regard and is duly licensed vide License No. 000118 dated 12-7-2014, as required under the Drugs Act 1976 for a period of 5 years. The respondents regularly inspect factory premises from time to time for renewal of the 'same. The aforesaid factory was last time inspected/surveyed on 28-06- 2011 by the concerned authorities for the renewal of the license and same was renewed after fully satisfaction of the concerned authority. On 21.01.2015, the Federal Investigation Agency along with Federal Inspector of Drug raided petitioner's factory premises on the allegations of manufacturing illegal and unlawful medicines without calling the complainant for verification and confirmation of the alleged complaints. The respondents thoroughly searched the factory premises; saw each and every medicine even they opened the packed medicines but did not find any illegal and unlawful manufacturing of illegal/spurious drugs/medicine. On their failure, they illegally and unlawfully sealed 34 samples of different products from the factory and started the bargaining with the petitioner for favorable result and even asked for bribe otherwise they threatened of dire consequences, but the petitioner was very much confident about the standard of the medicine hence refused to fulfill their demands. The aforesaid were sent to the central laboratory for testing/analysis without intimating the petitioner. The Central Drug Laboratory/National Institute of Health declared 22 samples of different products as per 'standard' while remaining 12 samples were surprisingly declared as 'substandard'. After laboratory test the respondent issued show cause notice to the petitioners vide letter dated 14-12-2015 which was replied by the petitioner. The petitioner has made assurance to the respondents that it will not be repeated in future and the petitioner shall remain highly conscious in this regard and requests sympathy/lenient decision be taken in this regard. Despite submission of all the facts and figures and track record and giving reference of identical and similar case decisions, the respondents illegally and unlawfully cancelled the registration of 12 products of the petitioner by impugned letters dated 30-03-2016.
The petitioner being aggrieved and dissatisfied by said letter dated 30-03-2016 has filed instant Constitutional Petition.
2. Mr. Hyder Imam Rizvi, learned counsel for the petitioner, contented that the orders dated are illegal void ab-initio without lawful authority and violation of Article 25 of the Constitution; that the impugned decision/letter dated 30-03-2016 are illegal, without lawful authority, bad in law, mala fide and of no legal effect; that the petitioner is subjected to discrimination and the acts of the respondent is violation of the principle of natural justice, in contrary to establish norms and dictums of the Hon'ble apex Court; that the act of the respondent is violated of Section 24-A of General Clauses Act; that the respondent have not appreciated the petitioners previous track record; that in 2014 a complete panel inspection had been carried on 09-12-2014 and said panel after thoroughly inspecting the production as well as quality of control in their factory found up-to mark and satisfactory; that the four member panel unanimously recommended for the renewal of DML and appreciated the up-gradation taken by the petitioners management in their comments; that on the basis of cancellation of later, intimation of any initiation of any proceedings against the petitioner is violation of Article 4 of the Constitution; that the petitioner is treated discriminately as the same and identical matter of M/s Reckitt Benckiser (Pvt.) Ltd. Karachi the respondents granted opportunity to rectify the mistake, but in the case of petitioner the registration was cancelled; that the respondents did not file counter affidavit to the affidavit filed by the petitioner in support of the present petition which amounts to admission of the facts and ground disclosed in the petition.
Learned counsel has cited case law reported as "Independent Newspaper Corporation (Pvt.) Ltd. through Authorized Attorney v. Pakistan Electronic Media Regulatory through Chairman" (PLD 2014 Islamabad 7), "Mst. Kalsoom Malik and others v. Assistant Commissioner and others" (1996 SCMR 710), "Muhammad Rafiq Gazdar v. Additional Commissioner, Karachi and 3 others" (PLD 1972 Karachi 119), "Rimsha Shaikhani v. Nixor College through Board of Directors/Governors and another"
(PLD 2016 Sindh 405), "Muhammad Gul Kakar v. Province of Balochistan" (1986 PLC (C.S.) 66) and "Messrs Kakasian Pharmaceuticals (Pvt.) Ltd., Lahore v. Government of Punjab and others" (2003 YLR 3056).
3. Mr. Fazal Hussain Jamali, learned counsel for respondents, has attacked on the petition being not maintainable at law, he further submitted that writ petitioner did not exhaust the remedy provided under section 9-A of Drugs Act 1976, he has supported the impugned orders.
4. Since the maintainability of the petition has strongly been attacked therefore, it would be appropriate to first examine the scope and object of Article 199 of the Constitution. It is pertinent to mention that right which is the foundation of an application under Article 199 of the Constitution is the personal and individual right. The legal right may be a statutory right or a right recognized by the law. A person can be said to be aggrieved only when his legal right is denied by someone who has a legal duty to perform relating to the right. There must not only be a right but a justifiable right in existence, to give jurisdiction to the High Court in the matter. Unless, whatever right personal or otherwise, on which the application is based is established, no order can be is issued under Article 199 of the Constitution. It is incumbent upon party exhausting constitutional remedy to show that such party has a legal right and that such right is so clear as not to admit of reasonable doubt or any controversy. The constitutional jurisdiction of High Court however cannot be converted into that of an appellate Court. Further, the disputed questions of fact cannot be entertained or allowed to be re-agitated in writ jurisdiction. Normally, when the relevant law provides other forums for the purpose then approach to extraordinary jurisdiction is not advisable because in constitutional jurisdiction, Court does not go into a question involving minute details nor can it decide facts of which no foundation is laid, unless it is shown that such controversy is devoid of supporting record or perverse. This extraordinary jurisdiction is intended primarily for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed fact. The words "adequate remedy" connotes an efficacious, convenient, beneficial, effective and speedy remedy. It should be equally inexpensive and expeditious. To effectively bar the jurisdiction of the High Court under Article 199 of the Constitution the remedy available under the law must be able to accomplish the same purpose which is sought to be achieved through a petition under Article 199. The other remedy in order to adequate must be equally convenient, beneficial and effective. The relief afforded by the ordinary law must be not less efficacious more expensive and cumbersome to achieve as compared to that provided under the Article. In this respect, reliance can be made to the cases reported as N.-W.F.P Public Service Commission and others v. Muhammad Arif and others (2011 SCMR 848), Dr. Sher Afgan Khan Niaz v. Ali S.Habib and others (2011 SCMR 1813), Shoukat Khan v. Assistant Political Agent, Landhi Kotal, Khyber Agency and others (PLD 2002 SC 526), Chief Administrator Aukaf v. Muhammad Ramzan (PLD 1991 SC 109) and Messers S.H.Pesticides
(Pvt) Ltd and another v. Federation of Pakistan and others (PLD 2004 Karachi 620), Muhammad Azhar Khan and another v. Assistant Commissioner/Collector Toba Tek Singh and others (2006 SCMR 778).
5. Having detailed the scope of the Article 199 (extraordinary jurisdiction of this Court), now it would be appropriate to first see whether the relevant law provides any 'adequate and efficacious' for petitioner for which reproduction of provision of Sections 9, 9-A of Drugs Act, 1976 and Sindh Drugs Rules 1979 being relevant are made hereunder:-- 9 Appellate Board
(1) The Federal Government shall, in accordance with the rules, constitute an Appellate Board for the disposal of appeals preferred by persons aggrieved by any decision of the Central Licensing Board or the Registration Board or the Licensing Authority or a Board or Authority to which the powers of the Federal Government under section 12 have been delegated under subsection (iii) of that section and for revision of any such decision on its own motion.
(2) The Appellate Board shall consist of such representatives of the Federal Governments and the Provincial Governments, including a Chairman, as the Federal Government may from time to time appoint.
(3) Subject to subsection (iv), the Chairman and other members of the Appellate Board shall hold office for the prescribed period.
(4) The Chairman or any other member of the Appellate Board may, by writing under his hand addressed to the Federal Government, resign his office or shall vacate his office if the Federal Government, being of opinion that in the public interest it is necessary so to do, so directs.
(5) The members of the Appellate Board shall exercise such powers, including the powers of an Inspector, as may be prescribed.
(6) The Appellate Board may appoint experts for the purposes of detailed study of any specific matter before it.
(7) The Appellate Board shall with the approval of the Federal Government and by notification in the official Gazette make regulations to regulate the conduct of its business.
(8) The Appellate Board shall meet at least every month and shall decide any appeal preferred to it within sixty days of receipt of appeal unless the Board is prevented from doing so for sufficient cause to be recorded.
9-A Appeals to the Provincial Appellate Authority.
(1) Any person aggrieved by any decision of the licensing authority may prefer appeal to the Provincial Appellate Authority.
(2) The Provincial Government shall constitute a Provincial Appellate Authority for the disposal of appeal preferred under subsection (i) as may be prescribed. Rule 19 of Sindh Drug Rules 1979
19. Cancellation and Suspension of License:
(1) The Licensing Authority may on the report of an Inspector or on its own motion, initiate proceedings under Section 41.
(2) A licence whose license has been cancelled or suspended may appeal to the Board within sixty days of the date of such order.
The above leaves nothing to doubt that relevant law (Drugs Law) does provide a complete mechanism for an aggrieved to challenge the legality of order/action, therefore, normally it was always advisable for the petitioner (aggrieved) to follow the dictate of law and procedure unless the very root of action is established to be without any legal foundation.
5.(sic) Now, let's see what the petitioner prima facie has to justify direct approach to this Court.
According to the petitioner's case the respondents had taken 34 samples, sent to the DCL for analysis, after receiving reports of sub-standard medicines of 12 number as disclosed in the petition, issued show cause notice to the petitioner, who furnished the explanation and admitted his guilt, but pleaded that he may be excused for this time in future, same will not be repeated while giving assurance to the respondents. The decision regarding cancellation of license of the petitioner was taken on receipt of experts' opinion on the subject/laboratory report. The petitioner was informed of the decision of the respondents. The respondents have shown reasons in support of the orders impugned through present petition. There appears no departure from normal procedure before passing a decision by the authority because it is not the case of the petitioner that 'samples' were not collected; show cause notice was not rather the petitioner did reply to show cause thereby assuring for not repeating in future. The petitioner has failed to mala fide on the part of respondents or any or personal grudge with the respondents. Without any hesitation, we would add that past conduct of one shall not be an excuse for an 'offence' but at the most could be raised for leniency which (request) however shall not prejudice the competence of authority to pass an appropriate order. Thus, it can safely be concluded that petitioner has no exceptional circumstances to justify direct approach to this Court without exhausting available remedy, created by law itself. The learned Division Bench of this court has been pleased to observe in case of "Messrs Harmone Laboratories v. Government of Pakistan through the Registration Board, Ministry of Health, Special Education and Social Welfare, Health Division Islamabad" (1986 CLC 1610) as under:- "That the petitioners have not availed alternate remedy of appeal which has been provided under section 9 of the Drugs Act to the Appellate Board. According to this provision (Section 9 of the Drugs Act) the Federal Government shall constitute an Appellate Board to dispose of the appeal preferred against any decision of Licensing Board or the Registration Board or the Licensing Authority or a Board or Authority. The law provides an alternate remedy, which is appropriate, but the petitioners have not approached the said authority to deal the decision of the respondent on question of facts. The order impugned before us is not without jurisdiction so that a remedy may be sought by the petitioners. The petition is dismissed as such with no order as to costs."
6. Since the respondents have recorded reasons in support of the impugned orders while issuing show cause notice to the petitioner and after affording opportunity of hearing passed the impugned orders, therefore, same cannot be termed as illegal as well as effective remedy is accessible to the petitioner before Appellate Board as provided under Section 9-A of Drugs Act against any decision or action of Authority. Worth to add here that awarding of different penalties by an authority in two or more different cases of similar charges cannot be pressed as 'discrimination' if the 'penalty (ties)' are otherwise within jurisdiction and competence because each charge has its own peculiar facts and circumstances. The principle of equity shall and must be insisted for due process but it cannot be used to limit the discretion which (discretion) shall fail its meaning. Thus, the plea of discrimination also appears to be having no force. Under such circumstances, that the adequate remedy provided under the law is convenient, beneficial and cumbersome to achieve the object, hence present petition is not maintainable.
8.(sic) In view of the above, the impugned orders are within the jurisdiction as such extraordinary remedy may be pursued/availed by the petitioner. Accordingly, petition is dismissed. Parties shall bear their own costs. However, it is clarified that in order to redress his grievance the petitioner may adopt appropriate remedy available to him under the relevant law which shall be dealt with strictly in accordance with law.