MUHAMMAD ASIF, J. Through the instant petition, the petitioner seeks direction to the respondents to decide the representation/application of the petitioner by giving fair opportunity of hearing as per law and constitution, within a specified time frame.
2. The learned counsel for the petitioner argued that the petitioner was granted pre-approved 40 days leave to visit his hometown, Mian wali to see his parents commencing from 27-04-2023 to 05.06.2023, however, on the day of his scheduled return his cousin died, resultantly the petitioner was obliged to prolong his stay to provide emotional support and assistance to his family during this difficult time; that after performing funeral of deceased cousin, the petitioner joined his duty on 14.06.2023 but the respondent No. 5 imposed unlawful and illegal penalty upon the petitioner of salary deduction of 41 days and also sent the petitioner in ward No. 7 Psychiatric ward for forced medical treatment; that the petitioner was late by only nine days however, the respondents penalizes the petitioner for 41 days without any plausible reasons; that the petitioner requested the respondent No. 5 to reconsider the penalty but the respondent No. 5 disregarded this plea and instead issuing a discharged order, terminated the petitioner from service; that the petitioner was aggrieved by an unlawful discharged order without due process; that the petitioner submitted two application on 18.12.2024 one to DPS Naval Headquarters in Islamabad Sector E-9 and the other to the Chief of Naval Staff, but in vain; that the presentation against the said order is still pending before the respondents and the same has not been decided so far, hence instant petition.
3. On the other hand, the respondent Nos. 1 to 5 have filed their written submission, wherein, it has been stated that the instant petition is not maintainable under Articles 8(3)(a) and 199(3) of the Constitution of the Islamic Republic of Pakistan, 1973 as the petitioner was uniformed person of the Pakistan Navy(PN); that the Islamabad High Court dismissed various petitions filed against Pakistan Navy on the basis of 199 (3) of the Constitution of Islamic Republic of Pakistan, 1973; that the petitioner was discharged from service owing to serious lapses concerning his conduct and discipline; that petitioner consistently demonstrated poor discipline by disregarding rules/regulations, showed reluctance in performance of assigned duties and rude/threatening behavior to his superiors colleagues, lack of professionalism/commitment, irresponsible/unreliable conduct, poor adaptability and erratic mood swings. Consequently the petitioner was served with numerous verbal and written warnings and counseled by his Divisional officers and Assistant Divisional Officers in order to improve his attitude towards service, however, all efforts remained futile. Resultantly, he was discharged from service as "Undesirable" in terms of Rule 24 of PN Rules, 1967; that as per rule position, commanding officer may recommend discharge of sailor from service as "undesirable" due to his repeated misconduct/indiscipline and further retention of individual is considered/assessed against service interest. Therefore, the petitioner was discharged from service in conformity with Naval Regulation Article 0995 and Rule 24 of PN Rules, 1961, therefore, petition is liable to be dismissed.
4. Arguments heard, record perused.
5. Before going to the merits of the case, it is import to decide the question of maintainability first.
Article 19(1) of the Constitution provided for writs to be issued by this Court. Clause 3 of Article 199 of the Constitution, issuance of a writ under Clause (1) of the said Article in respect of the terms and conditions for the service of a member of the armed forces has been specifically barred. The said clause 3 of the Article 199 read as under:- "93) 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."
6. In an identical matter, the Hon'ble Supreme Court of Pakistan in the case of Pakistan Military Accounts Department through Military Accountant General, Rawalpindi and another v. Col. (R)
Ghulam Hussain Anjum and another (C.P. No. 4794 of 2018) held that "the matter relating to the terms and conditions of respondent's service in the armed forces was excluded from the jurisdiction under Article 199(1) of the Constitution and observed as follows:- "At the outset, we have noted that the very Writ petition No. 1494/2017 filed by the Respondent No. 1 (the respondent) before the High Court was barred under Clauses (3) and (5) of Article 199 of the Constitution for that the respondents was a colonel in the Pakistan Army and matters relating to Armed Forces of Pakistan are specifically excluded from being agitated before the High Court."
7. In the present case, the petitioner is a uniformed person of Pakistan Navy, and discharge from service is a part of terms and conditions of the petitioner's service in Pakistan Navy. Hence, the instant petition is hit by bar under Article 199 (3) of the Constitution.
8. In view of the foregoing, without touching the merits of the case, the instant petition is dismissed being not maintainable.