IKRAMULLAH KHAN, J.---Through the instant Writ Petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have prayed for the following relief:-- "It is, therefore, most humbly prayed that on acceptance of instant writ petition, the impugned office order dated 13.04.2017 along with pre and post proceedings thereto, may be declared as illegal, unlawful, without lawful authority , void ab initio and of no legal effect hence be set at naught and petitioners may be re-instated in their respective services with all back benefits, so as to secure the ends of justice.
Any other relief, not specifically prayed for and deemed appropriate by this Honourable Court in circumstances of the case may also be granted".
2. Brief facts, as per petition in hand are that the petitioners were employees of the Ministry of Defence, Government of Pakistan, Islamabad, were served with show-cause notices, who were allegedly found involved in homosexual activities with UDC Waqar (PC-881), which show-cause notices were replied within stipulated time but the competent authority , after considering the written replies to the show-cause notices, passed the Order "The removal orders in respect of the under mentioned JCOs/Airmen are held in abeyance till further order" , and accordingly , the competent authority vide Order dated 13.04.2017, removed from services, 35 JCOs/Airmen, including the petitioners.
3. The petitioners feeling dissatisfied, preferred their respective departmental appeals but in vain. Hence, the instant W rit Petition.
4. It is admitted that all the petitioners in term of Section 2(1) were in active service of the Air Force and were Airmen, in term of Section 4(viii) of the Pakistan Air Force Act, 1953 subject to the same law in term of Section 2 of the Act ibid.
5. Petitioners were removed from their respective services by the competent authority in exercise of the power , conferred upon the Chief of Air staff, envisaged under Section 20 of the Pakistan Air Force Act, 1953, on the recommendation of the concerned Commander in term of clause (b) of the Pakistan Air Force Order -39-1.
6. Learned counsel for petitioners contended that no doubt in term of clause (b) of Paragraph 3 of the Air Force Order No.39-1, the competent authority , well mentioned therein, may recommen d for removal, dismissal of any Airman, subject to on the grounds mentioned therein, but once, an action -was initiated under any provisions of the Act, 1953, on charges of any civil offences, allegedly committed by such an Airman, then, the Airman, shall be afforded full opportunity of fair trial, in order to defend himself/themselves, as the case may be. But in case in hand, despite constitution of Board of Inquiry , the petitioners were not treated in accordance with law, to be tried by a Court-Martial and the recommendation of Board of Inquiry , was based on mala fide, as no action shall be taken under Clause (b) of paragraph 3 of the Air Force Order 39-1 by the concerned Commanding Of ficer.
7. In order to properly , dilate upon the contentions of learned counsel for petitioners, it would be expedient to reproduce the Air Force Order 39-1, which reads as:-- "Air Force Order No.39-1 PROCEDURE FOR DISPOSAL OF CASES OF AIRMEN FOUND INDISCIPLINED OR INEFFICIENT .
"1. It has been noted that airmen who are indiscipline or inefficient are not being dealt with by the bases/units or the section commanders effectively and expeditiously . Frequently , Airmen Management Office / Air Headquarters are requested to post out such airmen it shou ld be realized that merely passing the responsibility to other units neither improves the airmen nor benefits the service on the contrary it undermines the discipline in the Air Force. It is necessary that the officers take corrective measures as soon as any of their airmen shows trend of indiscipline or is found to be below average/inef ficient. This action should be taken at the earliest stage of his career .
2. An airman who fails in Advance Cour se and is unable to advance beyond ACs rank for more than 6 years resulting into the loss of seniority/promotion to the individual himself should not be permitted to stay in service unless positive efforts are made by the base/unit or individual to remedy the situation. Such airmen should be councelled appropriately and advised to improvement in their conduct/work attitude. Airmen who do not respond to corrective action and fail to show any improvement in their conduct/work attitude or do to not put in intensive efforts to improve their professional ef ficiency should not be tolerated indefinitely .
3. In order to ensure that such cases are dealt with properly and effectively at the base/unit level, action is to be taken according to the following procedure:--
(a) Cases of in-discipline are to be dealt with appropriately under the PAF Act and the offenders be awarded suitable punishment by the commanding officer concerned. If a commanding officer considers that he cannot effectively deal with the offenders or if he considers that the state of discipline at his base/unit is likely to deteriorate due to further the continued misconduct, he may apply for trial of the accused by a Court Martial.
(b) Cases of indiscipline or general misconduct, not considered fit, for any reason, to be dealt with by a Court Martial are to be reported to Airmen Management Office through proper channels with specific recommendations for discharge on disciplinary grounds/removal/dismissal as the commanding officer may consider necessary .
Recommendations in such cases are to be sent to Airmen Management Office under the signature of Officer Commanding/Sector Commander".
(c) An airman found inefficient in his trade or rank is to be examined by L.T.T.B. under the normal procedure. If he fails to attain the required standard in L.T.T.B he is to be warned in writing (with a copy to Airmen Management Office) that he will be required to appe ar before CTTB after 6 months. Extra coaching or intensive OJT, as necessary , at base/unit level be arranged for him. In case he fails CTTB he is to be recommended for discharge from the service for inefficiency . If the base commander is convinced that an airman is inefficient in performing his duties practically , even though he may have passed the theoretical tests and LTTB/CTTB he may recommend the airman for discharge on grounds of inef ficiency under his signature.
(d) If an airman who is detailed to attend a career or other course fails to pass it in the first attempt he is to be back- phased or re-detailed in the next entry . If he still fails to come up to the required standard he is to be given another chance with an interval of 6 months to qualify the test on his own. At the same time he is to be warned in writing (with a copy to Airmen Management Office) that if he fails to pass the test within the given time he will be liable to be discharged from service for inefficiency. If he is unable to pass he is to be recommended for discharge accordingly .
(e) In case an airman is found to be delibe rately failing the test/ course or feigning inefficiency he is to be warned in writing (with a copy to Airmen Management Office) to pass the laid down test within 6 months. In case he fails to qualify the test, action for discharge on grounds of misconduct is to be initiated.
(f) An NCO whose knowledge as a tradesman is not disputed but he is otherwise considered unsuitable to retain his rank, is to be administered a warning in writing by his commanding officer. The warning is to be prepared in triplicate. One copy is to be handed over to the NCO and his signatures obtained on the office copy as a token of receipt. The second copy is to be forward ed to Airmen Management Office and the third is to be retained with the unit documents of the NCO. If after three months of such a warning the NCO fails to show any improvement, the commanding officer is to report the case to Air Headquarters through Airmen Management Office with recommendations for reduction of "rank of the NCO concerned under Section 20 of the P AF Act.
(g) In case any JCO/Airman is found to have 6 or more red ink entries in his conduct sheet, his case is to -be reported by concerned Officer Commanding / Managing Director duly recommended by respective AOC Regional Air Command / Chairman PAC Board Kamra to AHQ through Airmen Management Officer for review by the Air Staff for his retention in service or otherwise.
4. When submitting a report in accordance with this order , the airman is to be apprised of the decision taken by the base/unit commander and is to be given an opportunity to make a statement. The statement, if any, is to be forwarded to Airmen Management Of fice and Air Headquarters along with the report on the airman concerned.
BY ORDER OF THE CHIEF OF THE AIR ST AFF, PAKIST AN AIR FORCE".
8. The above mentioned provisions of Order 39-1, explicitly and expressly direct that cases of indiscipline or general misconduct, not otherwise, considered fit, for any reason, to be dealt with by a Court-Martial, are to be reported to Airmen Management Office, with specific recommendations for discharge on disciplinary grounds/removal/ dismissal as the Commanding Of ficer may consider necessary .
9. Unfortunately , the connotation "indiscipline" and "misconduct" has not specifically defined either under any provisions of the Act or the Rules made thereunder .
10. However , the same connotation may depend upon the acts or omissions defined thereunder paragraph 1 and 2 of the Air Force Order 39-1, which does not include of fences.
11. In term of Section 20 of the Act ibid, the Chief of the Air Staff or any other officer, empowered in this behalf under the rules, may at any time dismiss or remove from the service any person, subject to the Pakistan Air Force Act, 1953, other than an officer, but the exercise of any powers under this section shall be subject to other provisions contained in the Act ibid and the rules and regulations made thereunder .
12. The Clause (6) of the Section 20 of the Pakistan Air Force Act, 1953, reads as:-- "20 (6) The exercise of any powers under this section shall be subject to other provisions contained in this Act, and the rules and regulations made thereunder".
13. Meaning thereby that the power exercisable by either Chief of Air Staff or any other officer, are not unfettered but subject to other provisions of the Act or rules or regulations.
14. Rule 31-A of the Pakistan Air Force Act Rules, 1957 has prescribed "the authorities empowered to order for dismissal or removal of persons other than of ficers and warrant of ficer", which reads as: "31-A. Authorities empowered to order dismissal or removal of persons other than officers and warrant officers :- The (Vice Chief of Air Staff], Pakistan Air Force, may at any time dismiss or remove from the service any person subject to this Act other than an of ficer or warrant of ficer .1".
15. While Rule 31-B prescribes the procedure, rights and obligation in matter of removal etc. which reads: "31-B. Dismissal or removal of person] other than officers : Save in the case where a person is dismissed or removal from service on the ground of misconduct which has led to his conviction by a Criminal Court or a Court Martial, no person shall be dismissed or removed under subsection (1) of section 20 unless he has been informed of the particulars of the cause of action against him and allowed reasonable time to state in writing any reason he may have to urge against his dismissal or removal from the service: Provided that if in the opinion of the officer competent to order the dismissal or removal, it is not expedient or reasonably practicable to comply with the provisions of this rule, he may, after certifying to that effect, order the dismissal or removal without complying with the procedure set out in this rule. All cases of dismissal or removal under this rule where the prescribed procedure has not been complied with shall be reported, by the officer authorizing the removal or dismissal, to the authority next superior to him".
16. The above mentioned rules, strictly and in unequivocal terms has made it mandatory that the show-cause notice has to be given to the person, proposed to be removed from service.
17. However , such issuance of show-cause notice may be exempted if the same is not expedient or reasonably practicable to comply with the provisions of this rule, but it only be done, after certifying to that effect and all cases of dismissal or removal shall be reported by the of ficer authorizing the removal to the authority next superior to him.
18. In case in hand, no doubt, show-cause notices had issued but not by the Vice Chief of Air Staff but by officer, who was authorized under clause (c) of paragraph 3 of the Order 39-1 of Pakistan Air Force, only to recommend the removal. The provisions of Rule 31-B of the Pakistan Air Force Act Rules, 1957 has not been followed in cases of petitioners.
19. The other aspect of the case in hand is that the competent authority on one hand, constituted the Board of Inquiry in term of Rule 191 of the Rules ibid, who could only be considered as fact finding inquiry and could not recommend punishment while on other hand, the alleged of fences were construed as misconduct.
20. In view of sub-Rule (18) of Rule 191 of the Pakistan Air Force Act Rules, 1957, the proceedings of a Board of Inquiry , or any confession, statement, or answer to a question made or given at a board of inquiry , shall not be admissible in evidence against a person subject to the Act, nor shall any evidence respecting the proceedings of the board be given against any such person except upon the trial of such person for willfully giving false evidence before that board.
21. Although the characters of petitioners were seriously injured but no copy of finding of Board of Inquiry was provided to them.
22. At this juncture, we would like to give reference to rule 31 (ix)(c), which reads as: -"Rule 31(ix)(C) For misconductChief of Air Staff or any principal staf f officer empowered by him in writing in this behalf(a) A person enrolled under the Act will not be discharged under this heading unless the misconduct is of such 'a nature as to justify his removal from the service.
(b) A person enrolled under the Act who is recommended for discharge on account of a conviction by Civil Court for offence which does not involve moral turpitude but which considered serious may be discharged under this clause.
23. So, the petitioners, in view of Rule 31(ix)(c), were deserving to be discharged instead of removal from services.
24. This act of respondents, whereby they ordered removal of petitioners instead of their discharges from services, are construed to be mala fide in law .
25. The provisions contained in Sections 81 and 82 of the Pakistan Air Force Act, 1953 prescribes punishment otherwise than by Court-Martial, which reads as: - "81.Punishment otherwise than by Court-martial. Punishments may also be inflicted in respect of offences committed by persons subject to this Act without the intervention of a Court-martial and in the manner stated in sections 82 and 86.
82. Punishment of persons other than officers and warrant officers. Subject to the provisions of [sections 83 and 84], a commanding officer or such other officer as is, with the consent of the [Federal Government], specified by the [Chief of the Air Staff], may, in the prescribed manner , proceed against a person subject to this Act otherwise than as an officer or warrant officer who is charged with an offence under this Act and award such person, to the extent prescribed, one or more of the following punishments, that is to say:--
(a) detention upto [forty-five] days;
(b) confinement to the camp up to fourteen days;
(c) extra guard or duties not exceeding [seven] in number;
(d) deprivation of acting rank;
(dd) relinquishment of substantive rank.
Provided that the punishment of relinquishment of substantive rank of Senior Technician shall not be awarded by an of ficer who is not holding appointment of Base Commander;
(e) forfeiture of badge pay;
(f) severe reprimand or reprimand;
(g) fine up to fourteen days' pay in any one month;
(h) penal deductions under clause (g) of section 91;
(i) admonition;
(j) any prescribed field punishment up to twenty-eight days, in the case of a person on active service;
(k) forfeiture of seniority not exceeding twelve months for an airman of the rank of Corporal Technician or Senior Technician; and
(l) withholding of next increment not exceeding six months for an airman of the rank of Corporal Technician or Senior Technician; Provided that the punishment of withhold ing of next increment shall not be awarded if the award thereof has the effect of causing permanent financial loss to an airman for the purpose of pension".
26. It is settled principle of law that when any action of the Army authorities regarding a serving officer of the Armed Forces, subject to any law of Armed Forces, was established to be either mala fide, E quorum-non-judice or without jurisdiction, then the same could be assailed through Constitutional jurisdiction.
27. The Apex Court in case titled "Federal Government Ministry of Defence, Rawalpindi v. Lt.-Col. Munir Ahmed Gill" (2014 SCMR 1530 ) is held as under: - "It would be seen that per well settled law if any action of the army authorities regarding a serving officer of the armed forces or any other person subject to the Act is established to be either mala fide, coram non judice or without jurisdiction then the same can be assailed through a Writ Petition by the aggrieved persons. In this regard the genesis of this principle of law can be gleaned from the case of Brig. (Retd.) F.B. Ali and another (Supra) wherein it has been observed in no unce rtain terms that the bar of jurisdiction imposed under Article 199(3) of the Constitution would have no applicability in cases where the impugned Order was either mala fide, coram non judice or without jurisdiction.
28. In case titled "Federation of Pakistan through Secretary Defence and others v. Abdul Basit" (2012 SCMR 1229 ), the Apex Court is held as: "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 Ishaque 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 coram non judice or mala fide, extraordinary jurisdiction of the High Court under Article 199 could competently be invoked by an aggrieved person".
29. As the mala fide in law is apparent from the facts also that, although petitioners were charged for allegations under the head unnatural offence (377, P.P.C.) and Board of Inquiry was assembled and petitioners were arraigned on the charges but they were not provided fair opportunity of trial, in term of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, which is the supreme law, although trial before Court-Martial, could not be claimed as a right but where on the basis of evidence, collected by Board of Inquiry , which itself were inadmissible but the same was accepted by the conc erned Commanding Officer, whereby major penalty was recommended against the petitioners, clearly an act, which could easily be construed as mala fide in law .
30. Petitioners have served for a long period and had given their youth to the force, they could not be condemned unheard, without affording opportunity of fair trial for major penalty of removal to them from their long unblemished services, rendered to the Air Force.
31. It is also admitted fact that no right of appeal is provided under any provisions of Pakistan Air Force Act, 1953, to a person, removed from his services, in exercise of power under Section 20 of the Act ibid and in such situation, in view of judgment of the Apex Court, rendered in Civil Appeal No.1172 of 2009, decided on 07.05.2014, such an aggrieved person, could not be denied right to file Constitution petition on account of 199(3), which reads as:-- "199(3). An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law"
32. The Apex Court in case titled "Federation of Pakistan and others v. Malik Ghulam Mustafa Khar" (PLD 1989 Supreme Court 26) has already declared the provisions of Section 162-A of the Pakistan Air Force Act, 1953 against the injunction of Islam and directions were made that a right of appeal against order of Court-Martial but we also add that as petitioners had awarded major punishment, they should be provided at least a forum to hear their grievances, therefore, in absence of such forum of appeal, the bar placed on jurisdiction of this Court in term of Article 199(3) of the Constitution, shall be narrowly construed in order to redress grievance of a citizen/employee of any Arms Forces, where the impugned order is result of mala fide, coram-non-judice and without jurisdiction.
33. For the reasons mentioned hereinabove, the impugned Order dated 13.04.2017 to the extent of removal of petitioners from their services is set aside and they may be treated and be discharged from their services, instead of removal.
With the above terms, this W rit Petition is disposed of accordingly .