Anwaar Hussain, J. The petitioner is admittedly a civil servant and has challenged the impugned order of initiation of inquiry as well as the personal hearing notice issued, primarily on the ground that the impugned order amounts to reopening of a past and closed transaction. It is contended that in an earlier round of litigation, the learned Additional Advocate General, representing the administrative department, before the Supreme Court of Pakistan, submitted that the petitioner had already been exonerated in an inquiry conducted by the respondents, hence, no fresh inquiry could be initiated against the petitioner, on the same facts.
2. This petition was taken up on 05.07.2024, when learned counsel for the petitioner, namely, Mian Bilal Bashir, advocate, was confronted with the maintainability of the petition in view of the bar contained under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"). He submitted that ordinarily such matters fall within the exclusive jurisdiction of the Punjab Service Tribunal ("the Tribunal"), however, at the relevant time, the Tribunal was nonfunctional on account of non-appointment of Chairman of the Tribunal and therefore, urged that this Court could assume jurisdiction as the impugned order and personal hearing notice were issued without lawful authority. It was indeed a factually correct position that the Tribunal was not functional at that time. Accordingly, notice was issued, and interim relief was granted in the terms that no coercive action shall be taken against the petitioner. However, on 14.01.2025, it was intimated that the Tribunal had become functional. This development gave rise to the question as to whether this petition could be heard in the wake of the Tribunal having become functional or the same would have the effect of abatement of the present petition. In response, Mian Bilal Bashir, advocate took the plea that once cognizance has been taken by this Court due to the Tribunal being non-functional at the relevant time, the matter ought to be decided on merits by this Court, and the petitioner cannot now be non-suited or relegated to approach the alternate forum. Given the legal question involved, both learned counsel for the petitioner and the learned Law Officer were directed to further assist the Court as to whether this Court remains competent to decide the matter once jurisdiction was assumed in view of the Tribunal's earlier non-functionality, notwithstanding the bar under Article 212.
3. Subsequently, however, adjournments were sought mainly by the petitioner side, on one pretext or another. On 22.05.2025, Mr. Muhammad Ismail Thaheem, advocate, appeared on behalf of the petitioner and submitted that Mian Bilal Bashir, advocate, has recused himself from further prosecuting the petition and therefore, he (Mr. Muhammad Ismail Thaheem) be allowed to assist the Court on the legal issue involved.
4. Today, the petitioner has appeared in person along with Mr. Muhammad Shahzad Hanif, advocate, who is representing the petitioner in the connected criminal original petition bearing No. 19668/2025 and sought an adjournment that principal counsel namely, Mian Bilal Bashir, advocate is not available, which request was declined as the petitioner cannot be permitted to repeatedly seek adjournments on the pretext that his counsel is unavailable, more so when he has been frequently changing his lawyer, whereafter Mr. Muhammad Shahzad Hanif, advocate submitted that despite the interim order passed by this Court on 05.07.2024, the departmental proceedings have been concluded and a report has been submitted. He further submitted that since no statutory remedy of appeal exists against the impugned order of inquiry, and the department is acting with mala fide, therefore, this Court has the jurisdiction to decide the matter. Conversely, Mr. Muhammad Saad Bin Ghazi, learned Assistant Advocate General, Punjab submitted that clause (2) of Article 212 of the Constitution contemplates that on the establishment of the Tribunal(s), all proceedings pending before any other forum were to be abated and this lends analogical basis to apply the same to the instant situation where the petition was initially entertained, merely on account of the Tribunal being non-functional, and the present proceedings should abate upon the Tribunal becoming functional.
5. Arguments heard. Record perused.
6. In order to address the question as to whether this Court has jurisdiction and/or is obligated to decide the matter after having assumed jurisdiction as a stop-gap arrangement, due to the non- functionality of the Tribunal, it is imperative to observe that the bar contained under Article 212 of the Constitution is absolute and inflexible. Article 212 reads as under: "212. Administrative Courts and Tribunals.
(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of:--
(a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters;
(b) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends [and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal [;other than an appeal pending before the Supreme Court,] shall abate on such establishment]:"
(Emphasis supplied)
Similarly, Section 8 of the Punjab Service Tribunals Act, 1974 ("the Act, 1974") is of the same effect which reads as under: "Abatement of suits and other proceedings.- All suits, appeals and applications regarding any matter within the jurisdiction of a Tribunal pending in any court immediately before the establishment of the appropriate Tribunal shall abate on the establishment of such Tribunal: Provided that any party to such a suit, appeal or application may, within ninety days of establishment of the appropriate Tribunal, prefer an appeal to it in respect of any such matter which is in issue in such suit, appeal or application.
Both the provisions of the Constitution and the Act, 1974 referred above indicated that the legislature clearly envisaged that once the Tribunal(s) are established, all proceedings pending before any Court would abate. Proviso to Section 8 of the Act, 1974 further provided that on abatement of such proceedings, any party to such proceedings could approach the Tribunal(s). At this juncture, it is imperative to observe that term "nonfunctional", merely, indicates that although the Tribunal has been established, it is temporarily not operational, say on account of any vacancy.
However, once it resumes functioning, the same is to be equated with the concept of establishment (of Tribunals), under the Constitution. The Supreme Court of Pakistan in case reported as Sarfraz Saleem vs. Federation of Pakistan and others (PLD 2014 SC 232) while interpreting the term "establishment" in the context of the Tribunal(s), being non-functional on account of non-appointment of Chairman of the Federal Service Tribunal, observed as under: "6...interpretation of the word "establishment" of an Administrative Court or Tribunal cannot be narrowed down to mere completion of paper by way of some appropriate legislation, unless it is established in a manner that it is functional and exercising its jurisdiction in accordance with law, which, in the instant case, is admittedly lacking."
The entertainment of a constitutional petition on account of non-functional Service Tribunal is an exceptional remedy carved-out to ensure that a civil servant is not left remediless on account of non-appointment of Chairman and/or members by the Government, however, this does not and should not so operate as to divest the Tribunal of its constitutionally vested jurisdiction and/or, conversely speaking, vest this Court with constitutionally divested jurisdiction. It is a stop-gap arrangement and such arrangement ought to dissipate on the establishment of the Tribunal. In case reported as Pakistan Steel Mills Corporation Pvt. Ltd.vs. Sindh Labour Appellate Tribunal and 10 others (2004 SCMR 100), the issue, though pertained to the limitation, the facts of the case were that a constitutional petition was filed by the employee of a statutory corporation and during the pendency of the petition, Section 2-A in the Service Tribunals Act, 1973 ("the Act, 1973") had been inserted which provided that proceedings pending before any Court would abate and the parties could approach the Service Tribunal within 90 days. However, the petitioner approached after the stipulated period only after the High Court concerned passed order of the abatement of the petition and the Supreme Court held that the proceedings/petition pending before High Court, by operation of law abated on the insertion of the Section 2-A of the Act, 1973 and the time for limitation is to be reckoned from the insertion of the provisions and not form the order of abatement by the High Court. Though directly not relevant to the facts of the instant case, ratio laid down in case of Pakistan Steel Mills, supra settles that any pending constitutional petition would abate by operation of law when a matter falls within the jurisdictional confines of a Tribunal.
Therefore, I am not persuaded by the argument of the petitioner side that this Court remains obligated to proceed with the matter even after the Tribunal has become functional. Such a position would amount to disregarding the constitutional bar under Article 212.
7. Adverting to the second limb of the argument advanced by the petitioner side--that the order directing second inquiry and issuing a notice of personal hearing is without jurisdiction, and since no appeal is available against the said impugned order as well as notice, within the departmental hierarchy--coupled with the contention that the departmental action is tainted with mala fides and thus falls outside the purview of the Tribunal, it is imperative to observe that the said argument is also misconceived. The constitutional scheme under Article 212 is unambiguous and categorical in its terms: exclusive jurisdiction in matters relating to the terms and conditions of service of civil servants lies with the Tribunal, including matters arising from the disciplinary proceedings. Mere allegation that an order is without jurisdiction or tainted with mala fides does not ipso facto vest this Court with jurisdiction where it is otherwise barred under the Constitution. Chapter II of the Punjab Civil Servants Act, 1974 ("the Act"), pertains to the terms and conditions of service and Section 15 thereof deals with efficiency and discipline, which contemplates that a civil servant shall be liable to such disciplinary action and penalties, and in accordance with such procedure, as may be prescribed. Initiation of inquiry proceedings clearly falls within the terms and conditions of service. Once the disciplinary proceedings commence, any step in those proceedings formulate the proverbial rung of the ladder of disciplinary proceedings and issuance of personal hearing notice thus falls thereunder. It would suffice to observe that even if the order directing a de novo inquiry or the issuance of a personal hearing notice is not independently appealable within the departmental hierarchy under the applicable service laws, any final order passed pursuant to such disciplinary proceedings would give rise to a right of appeal before the Tribunal and if the competent authority, while conducting a de novo inquiry or issuing a personal hearing notice, acts in disregard of a final order of the Supreme Court of Pakistan or a prior binding decision of the Tribunal on the same set of facts, such conduct may constitute a valid ground to challenge any final adverse order passed as a consequence of the disciplinary proceedings. However, such objection would properly arise at the stage of appeal against the final order, as no writ or premature interference is maintainable during the pendency of departmental proceedings.
Similarly, whether the inquiry is based on mala fide also remains within the exclusive jurisdiction of the competent forum under the applicable service laws followed by judicial scrutiny by the Tribunal. The contention that this Court should exercise jurisdiction on the ground that no departmental appeal lies against the order of de-novo inquiry, or that the action is allegedly tainted with mala fides, cannot be sustained in the face of a clear constitutional bar. I am fortified by the law laid down in case reported as Peer Muhammad vs. Government of Balochistan through Chief Secretary and others (2007 SCMR 54).
8. For what has been discussed above, this writ petition has no merits. Hence, the same is dismissed.