MIAN ALLAH NAWAZ, J: --This Infra-Court Appeal under section 3(2) of the Law Reforms Ordinance, 1972 by Ashfaq Ijaz/appellant, is directed against the order passed by the learned Single Judge of this Court dated 11-5-1994/dismissing in limine the Constitutional petition filed by the appellant.
2. The necessary facts, according to petition, are that the appellant joined Pakistan Atomic Energy Commission (hereinafter described as Commission). By dint of hard work he became Senior Engineer in the Pakistan Atomic Energy Minerals Centre, Lahore. It was in the first month of 1993 when the competent authority decided to initiate disciplinary proceedings against him under Government Servants (Efficiency and Discipline) Rules, 1973 and appointed Khalid Mehmood, Member (Administration) as authorised officer, who on the basis of material before him, issued charge-sheet to appellant on 30-1-1993 calling upon him to furnish explanation with respect to the allegations embodied therein. Pursuant to this charge-sheet, the appellant submitted his explanation which was found unsatisfactory by the authorised officer and he, thereon, constituted an Inquiry Committee comprising of Shafi Ahmed/Convenor, Khalid Mehmood and Riaz A. Baig, Members to inquire into the allegations contained in the charge-sheet and submit a report to him.
The aforesaid committee, thereafter, commenced the proceedings, recorded the evidence of prosecution witnesses. After the closure of the prosecution evidence, the appellant examined two witnesses namely Lt.-Col. (Rtd.) Ali Raza, Senior Security Officer, Pakistan Atomic Energy Minerals Centre, Lahore and Capt. (Rtd.) Ghulam Nabi, Security Officer of the same Centre as D.W.1 and D.W.2. The appellant moved an application for summoning a number of witnesses in his defence.
The application was accompanied by list of those witnesses. This application was torn by Shafi Ahmed/Convenor of the committee, who remarked that the committee would examine the witnesses as it deemed proper. The appellant, thereafter, filed two applications on 4-5-1994 and 7- 5-1994 to similar effect. These applications were rejected. In this factual background, the appellant made an attempt to get the committee reconstituted but in vain. On 7-5-1994 it was communicated to him that the authorised officer had declined to accede his request for re- constituting the committee. This happened on 7-5-1994.
3. Feeling apprehensive from the above alleged episodes, the appellant rushed to this Court by filing Constitutional petition bearing No. 5526/94 and prayed for the grant of following reliefs:-- "It is, therefore, respectfully prayed that this learned Court be pleased to declare that the inquiry proceedings against the petitioner are without lawful authority and of no legal effect.
It is further prayed that pending the disposal of the main petition this learned Court be pleased to stay the enquiry proceedings against the present petitioner."
After hearing the learned counsel for the petitioner, the learned Single Judge came to the conclusion that the law did not favour piecemeal adjudication of causes and so found that the petitioner suffered from principle of pre--maturity. On this conclusion, the learned Single Judge vide order dated 11-5-1994 dismissed the petition filed by the appellant in limine
4. Sh. Ziaullah, the learned counsel for the appellant, in support of this appeal, raised the following points:-- Firstly; that Shafi Ahmed/Convenor of the committee was the class-fellow of Ch. Ghulam Farid, Generate Manager (Distribution), WAPDA, who was the star witness of the prosecution; that the other members of the committee namely Khalid Mahmood is posted in Pakistan Atomic Energy Minerals Centre, Lahore and a subordinate to Director, who had recorded adverse annual report against the appellant, which is the subject-matter of Charge No. 3. On these circumstances, it was represented that the two members of the inquiry committee carried apparent bias toward the appellant and so were disqualified to hold disciplinary proceedings against the appellant.
Secondly; Ch. Ghulam Farid, stated while appearing as a witness before the committee, that Farrukh Nadeem Butt and Javed Iqbal, Sub---Divisional Officers of WAPDA were transferred from Lahore to Multan on the fax messages of the Federal Minister; that this part of his statement was not recorded by the committee. According to the learned counsel, this aspect of the case clearly demonstrated that the committee was not conducting the inquiry with impartiality anal neutrality and rectitude.
Thirdly; that the committee was not conducting proceedings in accordance with law. According to the learned counsel, under Rule 7 of the Government Servants (Efficiency and Discipline) Rules, 1973, the committee was bound to summon the witnesses who were not within the access of the person calling them. This rule was completely deviated from by the committee while dealing with the applications of the appellants.
5. On the contrary, Mr. Faqir Muhammad Khokhar, the learned Deputy Attorney-General, who appeared on Court's call on behalf of the respondents, raised two-fold objections to the maintainability of this appeal. In the first place, it was urged that the disciplinary proceedings, pending against the appellant before the inquiry committee were governed by Government Servants (Efficiency and Discipline) Rules, 1973 (hereinafter called Rules, 1973); that the inquiry committee was required to submit its findings in respect of the allegations embodied in the charge-sheet to authorized officer; that the proceedings before the authorized officer were subject to revisional control of competent authority under Rule 6-A of Rules, 1973. On these premises, it was stressed that the appeal, in hand, was incompetent under proviso to section 3(2) of the Law Reforms Ordinance (XII of 1972). Reliance was placed on Mst. Karim Bibi and others v. Hussain Bakhsh and another (PLD 1984 SC 344). In the second place, it was suggested that the inquiry committee under the Rules, 1973 is not competent to pass. Final order against the appellant. It is only invested with authority to undertake inquiry in respect of the allegations against the delinquent official and complete it within a period of 10 days or any such longer period which may be allowed by the authorized officer and submit its findings along with the grounds thereof to authorized officer. Furthermore, on the receipt of findings of the inquiry committee, the authorised officer is to determine as to whether the charge against the appellant is proved or not. If the authorised officer proposes to impose minor penalty on the appellant, he is to pass the order/imposing minor penalty on him and if he finds that it is a case for awarding a major penalty, he is required to send the case to authority for orders. According to the learned counsel, the order of the competent authority is not final and is subject to incident of appeal under Rule 10 of Rules, 1973. On these premises, it was contended that the proceedings before the committee are in the preliminary stage; that so far the committee had not sent its findings to authorised officer and so the disciplinary proceedings are in rudimentary stage. According to the learned counsel, these proceedings are not, therefore, liable to challenge in Constitutional jurisdiction which is available against the final order. Reliance was placed on Ibrahim v. Muhammad Hussain (PLD 1975 SC 457).
6. There are two serious objections, as noted above, to the maintainability of this appeal. The first objection is built upon proviso to section 3(2) of the Law Reforms Ordinance, 1972. This proviso came up for consideration before the Supreme Court of Pakistan in Mst. Karim Bibi and others v.
Hussain Bakhsh and another (PLD 1984 SC 344). After its survey and the other applicable law, his Lordship Mr. Justice Zaffar Hussain Mirza, then the Judge of the Supreme Court, speaking for the Bench said: "A plain reading of the proviso to subsection (2) of section 3 of the Law Reforms Ordinance means that no appeal will be available or competent before a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court in a Constitutional petition, if such petition arises out of `any proceedings in which the law applicable provided for at least one appeal against the original order. The reference is clearly to the proceedings taken under any statute- which prescribes a hierarchy of officers or authorities for carrying into effect the purposes of such statute including the enforcement of rights, if any, created thereunder. In such a case clearly the law envisages an original order against which the remedy of appeal was provided by the relevant statute. In the facts of the present case the relevant statute is the Displaced Persons (Compensation and Rehabilitation) Act, 1958 which had created a hierarchy of officers to deal with the rights created thereunder in favour of persons entitled under the said Act and the Schemes framed thereunder inter alia, to the transfer of erstwhile evacuee properties from the compensation pool of such properties constituted under the provisions of the Act. By section 19 of the said Act a right of appeal was provided to the next higher officer in rank from the original order passed by an officer of the settlement establishment. Apart from the remedy of appeal so provided the Act also vested powers of revision .In the higher officers of the settlement establishment under section 20 as well as the power of review. However, by the Evacuee Property and Displaced Persons Laws (Amendment) Act, 1973 which came into force on 30-7-1973 section 19 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was omitted with the result that remedy of appeal was abolished with effect from the said date. The Constitutional petition was filed by the first respondent hereinbefore the High Court much later on 8-12-1973 which was allowed by the learned Single Judge on 8-7-1974. The Letters Patent Appeal, as already stated, was presented by the appellants in the High Court on 31-8-1974. It is urged on behalf of the appellants that the relevant date for the application of the proviso to subsection (2) of section 3 of the Law Reforms Ordinance would be the date on which the Constitutional Petition was filed in the High Court and construing the provisions of the proviso accordingly, the Letters Patent Appeal was competent in law inasmuch as, on that date no appeal lay from the original order passed in the proceedings. It was further argued that the word `proceedings' occurring in the proviso is used in he restricted sense and would not in , the precedent case, the proceedings commenced by the Additional Settlement Commissioner by issuing notice of the suo motu revision to the parties and as there was no appeal provided against the order passed in suo motu revision, in terms of the proviso the Letters Patent Appeal was competent. Learned counsel for the appellants also advanced an alternative argument that the proceedings in this case had arisen out of the order' of the Additional Settlement Commissioner passed on 24-11-1973, at which time the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was amended taking away the right of appeal.
After giving our anxious consideration to the arguments urged in support of this appeal, we are however, not impressed by any of the contentions raised. The test laid down by the legislature in the proviso is that if the law applicable to the proceedings from which the Constitutional petition arises provides for at least one appeal against the original order, then no appeal would be competent from the order of a Single Judge in the Constitutional jurisdiction to a Bench of two or more Judges of the High Court. The crucial words are the "original order". It is clear from the wording of the proviso that the requirement of the availability of an appeal in the law applicable is not in relation to the impugned order in the Constitutional petition, which may be the order passed by the lowest officer or authority in the hierarchy or an order passed by higher authorities in appeal, revision or review, if any, provided in the relevant statute. Therefore, the relevant order may not necessarily be the one which is under challenge but the test is whether the original order passed in the proceedings subject to an appeal under the relevant law, irrespective of the fact whether the remedy of appeal so provided was availed of or not. Apparently the meaning of the expression `original order' is the order with which the proceedings under the relevant statute commenced.
While elaborating the scope of word "proceedings" used in above referred to proviso, the learned Judge said: "In the light of the aforesaid definition the proceedings under the Displaced Persons (Compensation and Rehabilitation) Act would seem to commence with the application of a person entitled to the transfer of a property in the compensation pool under the Schedule and the Schemes framed thereunder. Normally the application will be disposed of by an order passed by the Deputy Settlement Commissioner which will apparently be the original in the proceedings. Any party aggrieved by such an order may then invoke appellate or revisional jurisdiction conferred under the statute before the higher authorities or officers. In such a case the proceedings remain the same until their conclusion by the order of the final authority as all the intermediary stages are steps taken towards the further progress of a cause or towards the objective to be achieved, the transfer of a particular property to the person entitled thereto under the relevant provision of law.
Before the amendment of the Displaced Persons (Compensation and Rehabilitation) Act in 1973 there was a right of appeal provided by section 19. Therefore no Letters Patent Appeal was then competent against the order of a Single Judge of the High Court to a larger Bench of the same High Court. Similarly there can be no dispute that in cases in which the original order was passed after the aforesaid amendment of law such appeal was competent as the right of appeal under the Displaced Persons (Compensation and Rehabilitation) Act was taken away by the amendment."
7. Guided by the dictum laid down by the Supreme Court in Mst. Karim Bibi (supra) we are clear in our mind that the disciplinary proceedings pending before the inquiry committee against appellant are governed by Rules of 1973. The inquiry committee is not authorised under these rules to render any final order in these proceedings. The powers of this committee are limited to giving of report regarding allegations against the appellant. It is further clear that the authorized officer is the person who at the first stage is competent to determine as to whether the charges against the appellant stand proved or not; that the proceedings before the authorised officer are subject to revisional superintendence of authority under Rule 6-A of Rules, 1973. It is thus clear that the appellant will have an opportunity to raise the questions urged before us before the authorised officer, who will decide these objections. The decision/order passed and rendered by authorised officer shall be revisable by the authority under Rule 6-A of Rules 1973. This being the position, the proviso to section 3(2) of the Law Reforms Ordinance, 1972 is inurmountable barrier in the way of this Intra-Court Appeal. We are, therefore, in no doubt that this Intra-Court Appeal is unmaintainable.
8. Equally insurmountable is second preliminary objection. It came up for consideration in A.F.
Ferguson & Co. v. Sindh Labour Court (PLD 1985 SC 429). In this case the appellant-M/s. A.F.
Ferguson & Company was carrying on business in Karachi. It was governed by Chartered Accountants Ordinance, 1961. It has a large staff which formed a Trade Union. The said Union presented a charter of demands to appellant-firm under section 26 of the Industrial Relations Ordinance, 1969. The said demands were rejected by the appellant on 8-3-1973 on the grounds that the firm was neither an "industry" nor undertaking and so the Ordinance of 1969 was not applicable to it. Feeling aggrieved, the. Respondent-trade union served a strike notice on the appellant-firm but the said notice was repudiated by the appellant on 24-3-1973. Conciliation proceedings failed. Therefore, the respondent/Labour Union filed an application-before the Sindh Labour Court, Karachi. A notice was issued by that court calling upon the appellant-firm to submit its reply. Feeling dissatisfied, the appellant-firm filed a Constitutional petition in the High Court of Sind/calling in question the jurisdiction of Labour Court to decide the dispute. The Trade Union raised a preliminary objection that the petition was premature. The learned Division Bench of the Sindh High Court, although, dismissed the petition, yet it found that the petition was competent.
Against this decision, the appellant preferred unsuccessfully a Civil Appeal before the Supreme Court which too was dismissed yet on different grounds. The Supreme Court, while dismissing the appeal held that the questions raised before the High Court were those which were to be raised and determined by the Labour Court under the provisions of Industrial Relations Ordinance, 1969 and so the Constitutional petition filed by the appellant-firm, without exhausting the remedies provided under Industrial Relations Ordinance, 1969, was not maintainable. It will be extremely advantageous to reproduce the opinion of the Supreme Court in the above case in extenso: "It seems to us that all the points raised above by the parties did require adjudication and as some of them were disputed questions of fact they could only be decided by the Labour Court. Hence, this was a fit case in which all questions falling for determination should have been tried and determined in the first instance by the Labour Court itself. Respondent No. 2, indeed, did raise an objection to the effect that, in these circumstances, the Constitutional petition was not competent, but it was overruled and the Constitutional petition was held to be maintainable on the view that the question involved was whether the Labour Court had not usurped jurisdiction in the case and that the said question was of wide public importance. It was, however, overlooked that in so- holding its effect would be that while some questions stood determined by the High Court, others would still remain for decision by the Labour Court. In our view, the Constitutional jurisdiction of the High Court should not normally be exercised in cases where the entire case will not be completely disposed of. This Court and even the Privy Council, has not favoured piecemeal and fragmentary decisions of causes; see Abdur Rehman v. Haji Mir Ahmad Khan and another (PLD 1983 SC 21), Ibrahim v. Muhammad Hussain (PLD 1975 SC 457) and Nanheal and another v. Umrao Singh (AIR 1931 PC 33). In the circumstances of the present case the prayer for exercising Constitutional jurisdiction of the High Court should, therefore, have been declined. We are, accordingly, of the opinion that the objection raised by respondent No. 2 that the Constitutional petition was premature should have prevailed and the Constitutional petition dismissed on the said ground. The ultimate order passed by the High Court dismissing the Constitutional petition does not, therefore, require any alteration. But this does not imply that we are in agreement with the view taken by it that the appellant --Company constituted an `industry'.
It may be recalled that after the dismissal of the Constitutional petition by the High Court the Labour Court resumed hearing of the matter and has, we understand, already completed the recording of the evidence of the parties but desisted from passing final orders in view of the direction given by this Court not to do so till the decision of the present appeal. Now that the appeal has been finally decided by this Court, the Labour Court should proceed to decide the dispute raised before it by respondent No. 2, as also the objections raised by the appellant-firm against its maintainability and to pass final orders in the light of the relevant law as at present existing, the evidence recorded by it and the observations made above."
9. Applying this principle to the facts and circumstances of the case in hand, we are entirely in agreement with the view taken by the learned Single Judge and find that the Constitution petition filed by the appellant was pre--mature. It is not in dispute that the enquiry committee has not concluded its proceedings and has not submitted a report to the authorised officer; that it will be the only authorised officer who will determine the guilt/innocence of the appellant. It is also not contested that it will be only authorised officer who will decide to impose minor penalty upon the appellant and if he finds that it is a case of imposition of major penalty, he will have to refer the matter to the competent authority. It is not disputed that the final decision to be rendered by the authority shall be subject to appeal. This being the position, we have no hesitation in coming to the conclusion that the principle of prematurity as propounded by the Supreme Court in A.F. Ferguson & Co. v. The Sindh Labour Court and another (PLD 1985 SC 429) was fully applicable to the facts of case in hand. In view of this, the learned Single Judge was eminently correct in dismissing the Constitutional petition in limine. The decision of the learned Single Judge neither suffers from any jurisdictional flaw nor any legal error calling for interference.
10. For the reasons stated above, this Intra-Court Appeal is found to be wholly incompetent and is accordingly dismissed in limine.