Mr. Riaz-ul-Haq, Under Secretary C&W Government of the Punjab has filed parawise comments in Court. A copy of the same has been provided to Mr. D.M. Awan, Advocate for the petitioner.
This writ petition assails the order dated 25-3-1989 passed by the Secretary, Communication and Works Department, Government of the Punjab, whereby the petitioner has been placed under suspension. The petitioner was serving as Executive Engineer, Highway Division, Lahore. He has been found liable for the defective construction of Multan Road from Chowk Yateem Khana to Niaz Baig, Lahore and has thus been placed under suspension.
2. It has been contended on behalf of the petitioner that in his case the authority has nowhere expressed its opinion that there were sufficient grounds for initiating disciplinary proceedings against the petitioner nor any officer has been deputed to act as authorised officer and in fact the authority has not applied its mind in the matter and has merely acted upon the inspection note of the Chief Engineer. It has further been maintained that the petitioner was not accused of subversion, corruption or misconduct and he has simply been accused of negligence and on the charge of negligence, suspension cannot be ordered.
3. At the time of filing of this writ petition, it was submitted in writing that since the Service Tribunal was not functioning as the office of the Chairman of the Tribunal was lying vacant, therefore, the writ petition was maintainable because the petitioner had no remedy whatsoever to get his grievance redressed. This writ petition was, therefore, entertained and report and comments were called from respondent No,
1. The report and comments sent by respondent No,1 have since been received.
4. Admittedly Chairman of the Punjab Service Tribunal has since been appointed and a vacant post of Member of the Tribunal has also since been filled, the Service Tribunal is, therefore, functioning at the moment. 'Fie order of I suspension of civil servant obviously is relatable to his terms and conditions of service. Under section 4 of the Punjab Service Tribunals Act (IX of 1974), appeal against an order made by a departmental authority in respect of any of the terms and conditions of service of a civil servant is maintainable before the Service Tribunal. In regard to such matter, the Tribunal has exclusive jurisdiction. Jurisdiction of the High Court is barred in respect of any matter to which the jurisdiction of the Service Tribunal extends by virtue of the provisions of Article 212(2) of the Constitution of Pakistan, 1973.
5. It has, however, been urged on behalf of the petitioner that order of suspension is not a final order within the meaning of section 4 of the Punjab Service Tribunals Act, 1974 nor it pertains to the terms and conditions of civil servant as envisaged in Article 212(2) of the Constitution. This contention when analysed appears to be devoid of any merit. In the case of Muhammad Siddiq Khokhar v. Engineer-in-Chief Pakistan Army, G.H.Q., and another 1985 SCMR 63 it has been observed.
"The petitioner feels aggrieved from the order of his suspension and in so far as it has taken effect it has attained finality. It is not disputed either that the petitioner's grievance is germane to the terms and conditions of service and a dispute with regard thereto falls within the exclusive jurisdiction of the Tribunal under clause (2) of Article 212 of the Constitution. Non-obstante clause in Article 212(2) gives it overriding effect and consistently with the principle of harmonious interpretation of the Constitution the High Court rightly dismissed the writ petition moved by the petitioner for want of jurisdiction."
In the case of Mian Ghulam Nabi and 3 others v. The Government of the Punjab Health Department, Lahore and others 1988 PLC (C.S.) 31, the Punjab Service Tribunal has observed that order of suspension was not a final order. Inter alia for this observation, the appeal of Mian Ghulam Nabi and three others against the order of suspension was dismissed. It has, however, been seen that the learned Service Tribunal Punjab while delivering judgment in the case of Mian Ghulam Nabi and three others has not noticed the Supreme Court's judgment in Muhammad Siddiq Khokhar's case wherein order of suspension after having taken effect is held to be a final order and it has further been found that grievance arising out of order of suspension is germane to the terms and conditions of a civil servant. With all respect for the learned Punjab Service Tribunal, I am not persuaded to follow the view expressed by the Tribunal in Mian Ghulam Nabi's case, particularly when it is opposed to the authoritative principle enunciated by the Supreme Court of Pakistan in Muhammad Siddiq Khokhar's case. It is, therefore, concluded that after the Punjab Service Tribunal has started functioning, this Court lacks jurisdiction in the matter and therefore the present writ petition is not competent. It is thus dismissed in limine.