JUDGMENTIHSAN UL HAQ CHAUDHARY J: - The petitioner is serving as Executive Engineer with the respondent. He has been served with a final show cause notice dated 23.2.1989 appended as Annexure 'C'.The brief back-ground of the matter is that proceedings under WAPDA Employees E&D Rules, 1978 were initiated against the petitoner. The petitoner was ultimately found guilty and penalty of reduction by one stage lower in the time scale enjoyed by the petitioner was imposed vide order dated 21.1.1982. The same is placed as Annexure 'A' on the paper-book. The parties did not assail this order in any forum. However, the respondent removed the petitioner from service, invoking the provisions of section 17 (1-A) of WAPDA Act, 1958 vide order dated 17.4.1982. The petitioner impugned this order before the Federal Service Tribunal through an appeal, which was allowed vide order dated 9.4.1984. Thereafter the petitioner was reinstated on 11.7.1984. The respondent assailed this order through Civil Petition for Special Leave to Appeal in the Supreme Court. However, this petition was dismissed on 29.10.1984. Everything went alright till the respondent decided to issue present show cause notice. The petitioner through the present petition has prayed for declaring show cause notice as well as office order dated30.1.1989 as illegal and for direction to the respondent not to press show cause notice into service. This petition was admitted to regular hearing. The respondent has decided to contest the petition and entered appearance through counsel.
2. The learned counsel for the petitioner in support of the petition has argued that General Manager had no authority to re-open the matter after a lapse of 7 years. It is added that power of review is creature of statute and in the absence of any provision General Manager has no power to review his earlier order through which penalty was imposed on the petitioner. In this behalf reliance is placed on the case of Hussain Bakhsh Vs. Settlement Commissioner. Rawalpindi and others (P.L.D 1970 S.C 1). The second argument is that the respondent had lost right to repent after imposing the penalty and giving it effect. Reliance is placed on the case of Pakistan Vs.Muhammad Himayatullah Farukhi (P.L.D 1969 S.C 407). It is clarified that the moment respondent proceeded to reduce the salary by one stage lower in the time scale it accepted this order. There was nothing to fall back. In the third place it was argued that fresh proceedings are hit by the principles of double jeopardy and res-judicata. Reliance is placed on the case of R.T Rangachari Vs. Secretary State (A.I.R 1973 Privy Council 27) and Abdur Razzaq Malik Vs.The Water & Power Development Authority and 3 others (P.L.D 1973 Lahore 188). Then it was submitted that the proceedings are mala fide and after failing to get the order of Federal Service Tribunal set aside from the Supreme Court the respondents have now opened this front once again. The arguments were concluded with the submission that although the order of recall or previous order of punishment is dated 30.1.1989 but the impugned show cause notice is dated 16.1.1989. It is, therefore, submitted that this fact alone sufficiently negates the bona fides of the respondent.
3. On the other hand, learned counsel for the respondent has argued that the respondent is competent under Rule l2 to revise any order, therefore, the impugned order dated 30.1.1989 is legal.
The learned counsel has further raised a preliminary objection as to the bar of jurisdiction. The argument in nut shell is that it is the Federal Service Tribunal alone, which has the exclusive power to deal with the matter and the writ petition is not competent. The learned counsel in this >chalf has placed reliance on Shahid Ahmed Khan Vs.Inspector-General of Police ind and others (N.L.R 1988(Service) 24), Iqan Ahmad Vs. Government of akistas (P.L.D 1979 Karachi 610) and WAPPA and another Vs. Muhammad rshad Oureshi (1986 S.C.M.R 18).
4. I have given my anxious consideration to the arguments of the rned counsel for the parties and gone through the record as well as precedent es. The preliminary objection of the respondent is that the petitioner should e filed an appeal before the Federal Service Tribunal and the present petition ot competent. The learned counsel in this behalf has referred to the case of PDA and another v.Muhammad Arshad but the case is not relevant because ese petitions the services of the employees were terminated unde/ section A) of the WAPDA Act, 1958 and the question arose whether the effected lyees can maintain appeal in the Federal Service Tribunal or not? It is not se here rather when the services of the petitioner were similarly terminated >ealed to Federal Service Tribunal. Thereafter the learned counsel referred to the case of Shahid Ahmad Khan but the same is also not relevant, as in that case in the first instance I.G (P) had issued show cause notice requiring the petitioner to show cause why order passed by D.I.G should not be set aside? The petitioner assailed this notice through Constitutional petition,which was still pending when the petitioner was dismissed from service in pursuance of this notice. He prayed for amendment of the petition, which was allowed but ultimately the relief was refused and it was held that the matter was within the exclusive jurisdiction of Service Tribunal.
5. The ratio decidendi of the case is that as final order, which was amenable to the jurisdiction of Service Tribunal alone, has been passed, therefore, the bar contained in Article 212 of the Constitution became operative and the jurisdiction of High Court was ousted.
6. In the present case the matter is still at the stage of show cause notice. While section 4 of Federal Service Tribunal Act, 1973 clearly makes a provision for appeal against 'final order'. There same reads as under:- "Any civil servant aggrieved bv any final order, whether original or appellate made by a Departmental authority in respect of any of the terms and conditions of his service may, within six months of the establishment of the appropriate Tribunl, whichever is later, an appeal to the Tribunal "
It is therefore, held that no appeal is competent against the impugned order and show cause notice. I am fortified in my view by the judgment of Honourable Supreme Court in the case reported as S. H. M Rizvi and 5 others Versus Maqsood Ahmad and 6 others (P.L.D 1981 S.C 612).
7. The learned counsel for the petitioner has rightly argued that this was the only remedy avilable to the petitioner. In this behalf learned counsel has referred to the cases of Turaj Ahmad Khan Vs.D.I.G. Police Multan (P.L.D 1982 Lahore 464), Ahsan Sale Vs. Inspector-General of Police etc. (N.L.R 1988 (Service) 21,) Muhammad Afzal Khan Vs. Karachi Development Authority & 6 others (P.L.D 1984 Karachi 114) Mian Aman Ullah Malik Vs.N.W.F.P through Chief Secretary (P.L.D 1981 Peshawar 1). It is true that most of these judgment were noted in the case of Shahid Ahmad Khan but were not followed in view c the Full Bench judgment in the case of Abdul Bari Vs. Government of Pakist? And others (P.L.D 1981 Karachi 290). The appeal before Federal Service Tribur as already held in the foregoing paragraphs, is not competent, therefore, the cases do not help the respondent.
Now following points require consideration:- Firstly, whether the impugned show cause notice issued and oi passed are legal, with jurisdiction and bona fide exercise of authoryh Secondly; Whether the petitioner should be asked to wait till the time once again thrown on the road? And Thirdly, Whether this Court can interfere at this stage?
8. First of all merits of the case require consideration. The learned counsel for the petitioner has argued that neither there is any power of review nor petitioner was heard before deciding to start disciplinary proceedings afresh nor the General Manager has any such powers. On the other hand, learned counsel for the respondent submitted that since in the original proceedings the petitioner was not supplied with the copy of the enquiry report and there were other lacunas of the same type, therefore, it was decided to revive the proceedings.
9. The learned counsel for the respondent conceded that there is no provision for review but he maintained that the earlier order was revised, therefore, there is nothing wrong with the order for issuance of impugned show cause notice. He in this behalf has referred to Rule l2 ibid. The same reads as under:- "The Authority may, either on receipt of specific reference or of its own motion, at any time, call for any case in which proceedings may have been instituted under these rules, and pass such orders (including reversing acquittal or enhancing the penalty imposed) as it may deem fit, and orders so passed shall be final".
It is dear from the rule that power of revision vests with the authority alone while in the present case impugned order was passed by the General Manager. There is nothing on record rather it was not even the case of the respondents that the General Manager has been delegated revisional powers of the Authority.
10. The argument is too superfidal to be given any weight. The admitted position on record is that the petitioner accepted the order of punishment dated 21,1.1982. It was the petitioner, who alone could have objected to the order, accepted the same quietly, then how the respondent could have reopened the same? It is true that revisional powers are available to the respondent but that is with the 'Authority' and not with the General Manager. Therefore, General Manager after having passed his earlier order of penalty dated 21.1.1982 had become functus officio. He had no jurisdiction or authority to recall or set aside his earlier order because he not vested with any power of review or revision under West Pakistan WAPDA Employees (E&D) Rules, 1978. The order has been accepted by the authority by giving it effect, therefore, it was a past and closed transaction and the WAPDA has lost right to repent. In this behalf reference can be made to the judgment of Honourable Supreme Court in the case of Fateh Ali Vs,Chief Engineer Irrigation and another (1986 S.C.M.R 1137).
11. Now coming to the mala fide part of the argument, it is clear from the show cause notice that it was lying ready. It seems that later on it was realised that the earlier order will be hurdle in the way.
It is thereafter that the order dated 30.1.1989 recalling the previous order of punishment was passed. It means that when show cause notice was prepared and signed the order dated 21.1.1982 held the field. In face of the final order having been passed there was no legal basis even to draft this show cause notice. This way the impugned order has been passed to furnish legal basis for second round. Conversely speaking show cause notice was to follow an order but here case is reverse.
12. The learned counsel for the petitioner referred to the case of Turaj Ahmad Khan to argue that High Court can come to the rescue of an aggrieved person in case of proceedings being illegal and without jurisdiction. There is no doubt that this Court is empowered to issue appropriate directions if the proceedings suffered from patent and apparent error or excess of jurisdiction. In this behalf reference can be made to the judgment of Hon''be Supreme Court in the case of Sind Employee's Social Security Institution Vs.Dr.Mumtaz Ali Tai and others (P.L.D.1975 S.C450) and in case of Maqbool Ahmad Vs.Settlement Department (N.L.R 1986 Civil 340) and State of U.P Vs.Muhammad Nooh (P.L.D 1958 Supreme Court (Ind.) 274).
13. I am fortified in my view by Article 4 of the Constitution of Islamic Republic of Pakistan, which bestows inalienable right on all citizens to be dealt with in accordance with law. There cannot be two opinions that the civil servants come within a folds of term 'citizens', therefore, they can complaili through a validly instituted petition that they are not being dealt with in accordance with the law.14. It is settled law that where there is a grievance there is a remedy. The only question is of selection of forum as provided by law/. The bar of jurisdiction as contained in Article 212 of the Constitution will not be operative if the disciplinary proceedings initiated or order made:- Firstly, is without jurisdiction and illegal; and Secondly, that no appeal is competent before the Service Tribunal.
These two ingredients must co-exist to warrant interference in Constitutional jurisdiction. In such cases the bar will not be operative. Even otherwise there are matters, which are clearly excluded from the purview of Service Tribunals Acts like suspension, fitness for promotion, matters pertaining to period prior to lst July,1969 etc.,therefore it cannot be maintained by employing any logic or rule of interpretation that bar of jurisdiction is absolute and jurisdiction of all Courts including this Court is totally ousted by Article 212 of the Constitution in service matters. The same is the rule laid in cases of Abdul Bari and Shahid Ahmad Khan.
15. The result is that this petition is allowed, the order dated 30.1.1989 and show cause notice dated 16.1.1989 are declared to have been made without lawful authority. There is however, no order as to costs.