Through the instant writ petition, the petitioners impugn show cause notice dated 28.11.2023 issued by the Controller General of Accounts.
2. The petitioners are civil servants serving in the office of the Controller General of Accounts. Their grievance with the impugned show cause notice dated 28.11.2023 is that it has been issued pursuant to third de novo inquiry and without copies of previous inquiry reports having been provided to them.
3. Learned counsel for the petitioners submitted that successive de-novo inquiries were conducted against the petitioners without lawful justification; that due process of law has not been followed while preparing a third de-novo inquiry report; that the inquiry officer in his report has travelled beyond the allegations contained in earlier charge sheets; and that fundamental rights of the petitioners have been violated.
4. Since the petitioners are civil servants and the petition relates to their terms and conditions of service, a question with regard to maintainability of the instant petition in view of Article 212 of the Constitution was put to the learned counsel for the petitioners.
5. In response he submits that three de-novo inquiries were conducted against the petitioners without lawful justification which is against the principles of fair trial under Article 10-A of the Constitution and during the pendency of the inquiry proceedings no remedy of appeal can be availed before the Service Tribunal therefore, this petition is maintainable. In support of his submissions learned counsel placed reliance on the case of Fida Hussain Vs. Chief Secretary Khyber Pakhtunkhawa (2023 SCMR 1109).
6. I have heard the contentions of the learned counsel for the petitioners and have perused the record with his able assistance.
7. The petitioners are essentially aggrieved by a show case notice which was issued as a consequence of a de-novo inquiry against them. As mentioned above the petitioners are civil servants and a matter regarding disciplinary proceedings is pegged with terms and conditions of their service. Article 212 envisages exclusive jurisdiction of the Service Tribunals for determination of grievances of the civil servants in relation to their terms and conditions of service including disciplinary matters.
8. As regards the remedy of appeal against an order for a de novo inquiry, the Civil Servants '4 (Appeal) Rules, 1977 ("the Appeal Rules") have been made by the President in exercise of the powers conferred by Section 25 of the Civil Servants Act, 1973. Rule 2 (a) of the said Rules defines the appellate authority separately for the cases relating to discipline and in other cases as follows; "(a) Appellate authority means.-
(1) in cases relating to discipline.- (i) where the order is made by the authorised officer, the officer designated as authority under the Government Servants (Efficiency and Discipline) Rules, 1973.
(ii) where the order is made by the officer, designated as authority under the rules specified in paragraph (I), the officer or authority next above the authority; and...."
(iii) where the order is made by the Prime Minister, the President; and
(2) in other cases, the officer or authority next above the authority against whose order the appeal is preferred and where the order is made by the Prime Minister, the President; and..."
9. Rules 3 and 4 of the Appeal Rules provide for the orders against which a civil servant is entitled to prefer an appeal. The said Rules 3 and 4 ibid read thus:- "Rule 3.
Every civil servant shall be entitled to appeal, to the appellate authority from an order passed by an authority or an authorized officer imposing upon him any penalty: Provided that, where the penalty is imposed by an order of the President, the civil servant shall have no right to appeal but he may apply for review of the order.
Rule 4
(1) A civil servant shall be entitled to appeal to the appellate authority from an order passed by an authority which-
(a) alters to his disadvantage, his conditions of service, pay, allowances or pension; or
(b) interprets to his disadvantage the provisions of any rules whereby his conditions of service, pay, allowances or pension are regulated; or
(c) reduces or withholds the maximum pension, including an additional pension, admissible to him under the rules governing pensions; or
(d) terminates his employment or gives notice of such termination otherwise than i) on his reaching the age of superannuation, or ii) in accordance with the pro-visions of the Civil Servants Act, 1973 (MI of 1973); Provided that a person appointed by the President shall have no right to appeal from an order passed by the President, but he may apply for review of the order: Provided further that no appeal or review shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade.
(2) A member of an All-Pakistan Unified Grades serving under a Provincial Government may appeal, from the order of the Provincial Government, to the President.
(3) A civil servant appointed by the President may appeal to the President from an order passed by an authority subordinate to the President.
(Emphasis added)
10. Perusal of the Rule 4(1)(a) of the Appeal Rules shows that a civil servant is entitled to file an appeal before the appellate authority prescribed under Rule 2 of the Appeal Rules from an order passed by an authority which inter alia alters to his disadvantage, his conditions of service. Now, according to the petitioners, an order to conduct de-novo inquiry alters their conditions of service to their disadvantage. Therefore they are entitled to avail the remedy of an appeal before the appellate authority under 2(a)(1)(ii) of the Appeal Rules.
11. Even if it is assumed that the petitioners are not entitled to file an appeal under the Appeal Rules, they can file appeal before the Service Tribunal. I say so because Section 3(2) of the Service Tribunals Act, 1973 provides as follows:- "(2) A Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters."
(Emphasis added)
12. Section 4(1) of the Service Tribunals Act, 1973 inter alia provides that a civil servant aggrieved by any order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, prefer an appeal to the Tribunal. The proviso (a) to the said Section provides that such right of appeal cannot be availed where Civil Servants Act, 1973 or the Rules made thereunder provide for a right of appeal or review or representation and unless the aggrieved civil servant has availed such remedy. Rule 4(1) and its proviso (a) reads thus:- 4. Appeals to Tribunals. -
(1) Any civil servant aggrieved by any order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal: Provided that (a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Ordinance, 1973, or any rule against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred."
13. Before filing the instant petition, the petitioners have not availed abovementioned remedy of departmental appeal under the Appeal Rules. Additionally, the grievance of the petitioners relates to their terms and conditions of service (which includes disciplinary matters) and falls within the exclusive jurisdiction of the Service Tribunal. It is well settled that in view of the express bar provided in Article 212 of the Constitution, the High Court does not have the jurisdiction under Article 199 of the Constitution to determine violation of the terms and conditions of a civil servant's service. In the case of Ali Azhar Khan Baloch Vs. Province of Sindh (2015 SCMR 456), it was held as follows:- "149. Article 212 of the Constitution ousts the jurisdiction of High Courts and civil Courts in respect of the matters pertaining to terms and conditions of civil servants. In other words, the provisions of Article 212 do not confer a concurrent jurisdiction to civil Courts, High Courts and Tribunals. The ouster contemplated under the said Article is a Constitutional command, and, therefore, of necessity restricts the jurisdiction of civil courts and High Courts on the subject, which squarely falls within the exclusive domain of Tribunals."
Furthermore, the Hon'ble Supreme Court has held that the exercise of jurisdiction by way of suit and Constitution petition filed by a civil servant with regard to his terms and conditions of service is violative of Articles 175, 212 and 240 of the Constitution and the law. The Hon'ble Supreme Court also observed that the admission of such suits and petitions by the learned Judges concerned "obviously confront and defy Article 189, if not attract the provisions of Article 209 of the Constitution."
14. It is also important to mention that a preposition identical to present case came for consideration before a three member bench of the Hon'ble Supreme Court in case of Federation of Pakistan Vs. Shafqat-ur-Rehman Ranjha (2015 SCMR 153). In the said case the respondent, Shafqat-ur-Rehman Ranjha ("Mr. Ranjha"), who belonged to the Pakistan Administrative Service, was suspended from service and after an inquiry, the inquiry officer recommended him to be exonerated. The Authorized Officer accordingly exonerated Mr. Ranjha. The matter was then forwarded to the competent Authority i.e. the Prime Minister, who being unconvinced, recorded his reasons and ordered a de novo inquiry against Mr. Ranjha. In the meanwhile Mr. Ranjha had been promoted. However, in terms of directions issued by the Hon'ble Supreme Court in another case titled as Federation of Pakistan and others Vs. Dr. Muhammad Arif (2017 SCMR 969), his promotion was recalled. Mr. Ranjha then challenged the same through a writ petition before this Court which was partially allowed to the extent that it was held that de-novo inquiry could not have been ordered by the Prime Minister as Mr. Ranjha had earlier been exonerated from the same charges.
The Federation of Pakistan's Intra-Court Appeal was dismissed as time barred. Eventually, vide the abovementioned reported judgment the Hon'ble Supreme Court while allowing the Federation's appeal against judgment of this Court, held that writ petition filed by Mr. Ranjha before this Court was not maintainable inter alia because Rule 2(a)(iii) of the Appeal Rules provides that an order passed by the Prime Minister is appealable to the President but no such appeal was filed and instead writ petition was filed before this Court. The relevant excerpt from the said judgment of the Hon'ble Supreme Court reads thus:-
13. The next question before us is whether a Constitution Petition before the High Court was maintainable before the High Court in exercise of its extra ordinary jurisdiction under Article 199 of the Constitution. Having held that no fundamental right of the Respondent had been violated the answer to the said question has to be in the negative. Further perusal of Rule 2(a)(iii) of the Civil Servants (Appeal) Rules, 1977 (hereinafter referred to as the "Appeal Rules") provides that an order by the Prime 11 Minister is appealable to the President. In the instant petition, no such appeal was filed.
Instead the Respondent chose to file a Writ Petition before the High Court. A right of appeal being available under the rules which was admittedly not availed, the High Court should have refrained from exercising in extraordinary 'constitutional jurisdiction which is equitable and discretionary in nature. We have found the exercise of discretion by the High Court in this matter not in consonance with settled principles of law on the subject considering the specific facts and circumstances of this case. The issues raised clearly fell within the ambit of Federal Service Tribunal in terms of Article 212 of the Constitution of Islamic Republic of Pakistan.
Consequently, we find that the impugned judgments of the High Court are unsustainable. Both the said judgments are accordingly set aside with the result that Writ Petition. No.3234 of 2017 shall stand dismissed. This appeal is accordingly allowed.
(Emphasis added)
15. In view of the express bar provided in Article 212 of the Constitution, the instant petition, being not maintainable, is dismissed in limine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.