' JAWAD HASSAN, J. --- Through this Petition, the Petitioner, who is presently posted as D.I.G./OSD, Establishment Division, Islamabad, has challenged the Order of Inquiry dated 10.11.2016 issued by the Respondent No,2.
2. Brief facts leading to the filing of the instant petition are that the Respondent No, 2, Inspector General NH & MP, Islamabad, issued the Order of Inquiry No, NH&MP-1(3)/2016/IG/218 dated 10th November 2016 (the "Order of Inquiry") to the Petitioner while exercising his powers under Rule 5(1)
(ii) of the Government Servants Efficiency and Discipline Rules, 1973 (the "Rules"), whereby he appointed Respondent No, 3, Deputy Director General, Intelligence Bureau Academy, Islamabad, as the Inquiry Officer to conduct inquiry into the charges leveled against the Petitioner. The detailed Charge Sheet enclosed with the order of inquiry and statement of allegations was delivered to the petitioner to submit his written defence. On 20th November 2016, the Petitioner submitted his detailed reply to the Charge Sheet and Summary of Allegations to the Respondent No, 3 for his kind information and consideration.
3. The learned counsel for the Petitioner submitted that the Respondents have initiated proceedings in the grab of an inquiry under the Rules after a period of four and a half years just to jeopardize the career/further promotion of the Petitioner which are biased and on behest of some vested interest whereas the Petitioner was given "very good" ACR by Additional IGP, Special Branch.
Punjab for the said period which negates the charges leveled against the Petitioner.
4. On the last date of hearing, 30 November 2016, the learned Law Officer in response has raised a preliminary objected,. Qua maintainability of the present petition and submitted ti jurisdiction of this Court cannot be invoked in view of bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"). The learned Law Officer relied on the judgments reported as Ali Azhar Khan Baloch and others v. Province of Sindh and others, 2015 SCMR 456; National Assembly Secretariat v. Manzoor Ahmed and another, 2015 SCMR 253 and Fazal Ahmad Ranjha and others v. Government of Punjab and others, 2016 PLC(CS) 1209.
5. When conferred with 32r under Article 212 of the Constitution of Pakistan, 1973 (the "Constitution"), the learned counsel for the Petitioner has relied upon Salim Sadio v. Government of Punjab and others, 2003 PLC (CS) 1258, and submitted that despite the bar contained in A rticle 212 of the Constitution, High Court has ample jurisdiction to give directions to the public functionaries.
6. The learned counsel for the Petitioner further argued that this Court can interfere in its constitutional urther, the counsel for the Petitioner also relied on a judgment cited by the learned Law Officer, titled All Azhar Khan Baloch and others v. Province of Sindh and others, 2015 SCMR 456, and relied on Paragraph 100 at page 500, reproduced hereunder:- "The Constitution gives protection to Civil Servants under Articles 240 and 242, which relate to formation of service structure. Pursuant to Article 240(b), the Sindh Provincial Assembly has enacted the Sindh Civil Servants Act, 1973.. This Court, in exercise of its Constitutional jurisdiction under Article 184(3) of the Constitution, can examine the vires of an enactment either on its own or on an application or petition filed by a party. The requirement of Article 184(3) of the Constitution is that if this Court considers that a question of a public importance with reference to the enforcement of any of the fundamental rights conferred by Chapter I of Part I is involved, it has the jurisdiction to pass appropriate orders notwithstanding that there might be an alternate remedy.
The word "consider" used in the Sub-Article (3) of Article, relates to subjective assessment of this Court. The Supreme Court is the final authority upon the matters affecting judicial determination on the scope of Constitutional provisions. Once the Supreme Court arrives at the conclusion that a question of public importance having nexus with the fundamental rights guaranteed by the Constitution has been raised, the exercise of its jurisdiction under Article 184(3) cannot be objected to either by the Government or by any other Party." jurisdiction to declare and set-aside the Order of Inquiry because the respondent authority cannot penalize the Petitioner after four and half years of delay. It was further submitted that the department has neither brought the disclosure against the Petitioner within time, nor filed any complaint against the Petitioner. The learned counsel of the Petitioner also relied on the judgment titled M cnomohan Roy v. Government of Chandpur M unicipality, PLD 1958 Dacca 47, reproduced hereunder: "... According to the well accepted rules of interpret ation that where a statute does not fix a specific period for the performance of a particular act, it must be taken that the act is to be performed within a reasonable time ' The learned counsel of the Petitioner further relied on Gulistan Textile Mills Ltd. v. Collector (Appeals) Customs Sales Tax arid Federal Excise and others,2010 PTD Karachi 251; and Government of Pakistan and others v. Farheen Rashid, 2009 PLC(CS) Supreme Court 966; Federal Land Commission v. Rais Habib Ahmad, PLD 2011 Supreme Court 842; and Mian Aurangzeb Noor v. Rent Controller and another, 2012 CLC Lahore 1729.
7. The learned Law Officer submitted that the Charge Sheet and Order of Inquiry issued to the Petitioner are show cause notice, whereby departmental inquiry is being initiated under the applicable laws, and the instant writ petition cannot be allowed against the show cause notice.
8. The Court has given its anxious consideration to the contentions of the learned counsels of the parties and have perused the record on the file.
9. It is apparent that the Respondent No, 2 has only appointed Respondent No, 3 as the Inquiry Officer as envisaged under the law and has framed Charge Sheet and Statement of Allegations.
Further, from the perusal of the Charge Sheet, it is clear that the instant inquiry against the Petitioner is being initiated on account of failure of the Petitioner in discharging his duties, whereby one official vehicle No, 9815/LXA along with official weapons, was reportedly stolen on 3rd June 2012, which was under the use of the Petitioner at that time. Moreover, an FiR No, 419/2012 was also registered at the concerned police station. Importantly, the Petitioner was called upon to submit written defence and explain his position vide Charge Sheet, and has accordingly replied in detail vide his letter dated 20th November 2016, by explaining his position all plausible defenses, and has prayed in its reply the withdrawal of the charges, allegation and inquiry, being false and mala fide.
It is interesting to note that in the detailed Reply filed by the Petitioner on 20th November 2016 before filing this writ petition, the Petitioner has prayed in the Reply to the Respondent that the enquiry and charges against him be withdrawn and filed. However, after filing this Reply, the Petitioner has filed this writ on 28th November 2016, while the enquiry is still pending and decision on his Reply is awaited.
10. It is essential to highlight that under the Rule 5(1)(ii) of the Rules, which are made under section 25 of the Civil Servants Act, 1973 (the "Act"), it is the discretion of the authorized officer to decide in the light of facts of the case or the interests of justice, that whether an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. The Rule 6 of the Rules states the procedure to be observed by the Inquiry Officer, which is reproduced as under: "6. Procedure to be observed by the Inquiry Officer and Inquiry Committee. - Where an Inquiry Officer or Inquiry Committee is appointed, the authorized Officer shall-
(1) Frame a charge and communicate it to the accused together with statement of the allegations explaining the charge and of any other relevant circumstances which are proposed to be taken into consideration.
(2) Require the accused within ,3 reasonable time, which shall not be less than seven days or more than fourteen days from the day the charge has been communicated to him, to put in a written defence and to state at the same time whether he desires to be heard in person.
(3) The Inquiry Oficer or the Committee as the case may, be, shall enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessary and the accused shall be entitled to cross-examine the witnesses against him.
(4) The Inquiry Oficer or the Committee, as the case may be, shall hear the case from day to day and no adjournment shall be given except for reasons to be recorded in writing. However, every adjournment, with reasons there for shall be reported forthwith to the authorized officer. Normally no adjournment shall be for more than a week. .
11. Prima facie, it is apparent that the Respondent has exercised his powers conferred under Rule 5(1)(ii) and Rule 6 of the Rules, whereby he has issued a show cause notice, in the form of Charge Sheet, and has asked the Petitioner for his written defence within seven days of receiving the Charge Sheet. Further, the Petitioner has also filed its detailed reply and has approached this Court after entering into the proceedings before the Respondent No,
3. In other words, the Petitioner has challenged the show cause notice (Charge Sheet and Order ;n Inquiry) and the proceedings being conducted under the 'same, in constitutional jurisdiction of this Court.
12. It has been observed by the Superior Courts in various judgments that a tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters. It has been held by the superior Courts that disciplinary proceedings are part of terms and conditions Of a service of a civil servant and jurisdiction of this Court qua interference in the same is barred. Provisions of Article 212 of the Constitution have the effect of curtailing jurisdiction of High Court under Article 199 of the Constitution in respect of a matter to which the jurisdiction of the Tribunal extends and interference in the same will manifestly frustrate the object of law. (ref. Muzaffar Hussain v. The Superintendent of Police District Sialkot 2002 PLC (C.S.) Lhr. 442 and Khalil ur Rehman and others v. Government of Pakistan and others, PLD 1981 Karachi 750).
' As it has clearly been held in the case titled as National Assembly Secretariat v. Manzoor Ahmed and another, 2015 SCMR 253, that civil servant could not have approached the High Court under Article 199 of the Constitution for redressal 'of his grievance, which pertains to the terms and conditions of his service in view of bar created under Article 212(2) of the Constitution. The High Court, therefore, was not competent to adjudicate the issue raised in the constitutional petition.
Moreover, it was held by the Honourable Supreme Court that the High Court had fallen in error while proceeding on the erroneous assumption that the civil servaUt had raised the issue of violation of the statutory rules, therefore, it was competent to decide the issues. It was further held that the High Court had- adOpted an incorrect approach by entertaining a constitutional petition of a civil servant on the ground of statutory violation. Such grievances of a civil servant fell within the domain of the Federal Services Tribunal as mandated by the Constitution.
14. Similarly, it was held in the case of Asadullah Rashid v. Haji Muhammad Muneer and others, 1998 SCM R 2129, that constitutional petition under Article 199 of the Constitution is not maintainable by civil servant in relation to any matter connected with the terms and conditions of service in respect whereof the Service Tribunal has jurisdiction, in view of Article 212 of Constitution. Orders even if mala fide or corum non jaundice, fell within the am bit of Service Tribunal and jurisdiction of Civil Courts including High Court is ipso facto ousted as result of barring provision of Article 212 of the Constitution.
15. Furthermore, the service Tribunals have been given "exclusive jurisdiction" under Article 212 of the Constitution, for redressed of grievance of the Petitioner, who admittedly is a civil servant, in respect of terms and conditions of civil service, including disciplinary action. The bar contained in Article 212 of the Constitution has also been sufficiently dilated upon by the Humble Supreme Court of Pakistan in various pronouncements and has held in unequal and clear terms that the bar is absolute. (Ref. Ali Azhar Khan Baloch and others v. Province of Sindh and others., 2015 SCMR 456; National Assembly Secretariat v. Manzoor Ahmed and another. 2015 SCMR 253;Peer Muhammad v.
Government of Balochistan through Chief Secretary an others, '2007 SCMR 54; and Khalid Mahmood Wattoo v. Government of Punjab arid others, 1998 SCMR 2280)
16. Similarly, in the case of Muhammad Murtaza and another v. The Deputy Commissioner, Anti- Corruption Establishment Bahawalpur and others,1997 PLC (C.S.) Lah. 214), the petitioners who were officials in Health Department had challenged enquiry proceedings conducted against them on allegation of corruption. It was held in para 6 that "petitioners are admittedly civil servant and there are amenable to the Efficiency and discipline Rules. Even otherwise, the petition is premature, petitioners may, if so advised, raise all the legal objections qua legality of the inquiry in question before the Enquiry Officer. If such objections are raised, the Inquiry officer shall decide those objections in the first instance and then proceed with the matter strictly in accordance with law"
17. The judgment relied by the counsel of the Petitioner titled Salim Sadiq v. Government of Punjab and others 2003 PLC(CS) 1258 is distinguished from the instant case because in the said Salim Sadiq case supra, no charge sheet was issued to the petitioner till the filing of the petition. Even otherwise, the petitioner was directed to appear before the respondent in his office, and the competent authority was also directed to finalize the matter positively within two months after receiving the order of the court. Similarly, Para 100 of the judgment titled Ali Azhar Khan Baloch and others v. Province of