ABDUL RAZZAQ A. THAHIM (CHAIRMAN).--- Ms. Sarosh Sultan is presently working as Additional Secretary/Director (O&M), Services and General Administration Department, in BPS-19, Government of the Punjab. Prior to this, she was posted as Registrar, Cooperative Societies. The Government of the Punjab detected some embezzlements in the Cooperative Societies and the respondent No.3, Chief Secretary, acting as Authorised Officer, ordered an inquiry against the appellant under the Government Servants (Efficiency and Discipline) Rules, 1973. The inquiry committee was headed by Ch. Muhammad Ashraf, Secretary, Cooperatives, Government of the Punjab, Lahore. It is stated in the appeal that the appellant was not provided the requisite documents etc. And inquiry was conducted with mala fides. She has also made so many other allegations against the concerned officers. Being aggrieved by order, dated 13-2-1991 passed by respondent No.3, she moved Constitutional Writ Petition No.7451 of 1992 in the Lahore High Court challenging the order, dated 13- 2-1991, the charge sheet dated 25-3-1991 and also the inquiry proceedings. Her petition was admitted to regular hearing and stay was granted. The Government of the Punjab through Secretary, Services and General Administration Department filed Civil Petition for Leave to Appeal No.293 of 1992 before the Supreme Court. Leave was granted by the Supreme Court vide order dated 26th August, 1992. The stay was suspended and finally the Chief Justice of Pakistan in Civil Appeal No.552 of 1992 by order, dated 11-10-1992 stayed the departmental proceedings against the appellant. In the meanwhile, the appellant filed revision under Rule 6-A of the Government Servants (E&D) Rules, 1973 to the Prime Minister of Pakistan which was rejected as per communication dated 14-11-1992 issued by the Government of the Punjab, Services and General Administration Department, Lahore. The appellant filed this appeal under section 4 of the Service Tribunals Act, 1973 on 10-12-1992 before this Tribunal. In this appeal,. It is prayed as under:--
(a) The order dated 13-2-1991 of the respondent No.3, the charge-sheet dated 25-3-1991, order/decision of the Establishment Division rejecting appellant's statutory revision petition and the inquiry proceedings against the appellant are unlawful and mala fide having been initiated by the respondent No.1 with the motive to protect his personal interests and therefore, the same merit to be set aside as having no legal effect.
(b) The respondent No.2 be directed to inquire into the case of the appellant and if after the objective application of the mind a case on the basis of evidence is found against the appellant, an inquiry under the Government Servants (E&D) Rules, 1973 be ordered. And if an inquiry is required, an Officer of the Federal Government be appointed as the Authorised Officer and the same may be held through officers who are not subordinate to the respondent No.1.
(c) Restrain the respondents Nos.1 and 3 from harassing and maliciously prosecuting the appellant.
2. We have heard Mr. Raza Kazim, learned Advocate appearing for the appellant. He has argued that in the interest of justice it is the right of the appellant to have an independent inquiry conducted by an independent officer of the department, which right is being denied to the appellant and she has exhausted all legal remedies including revision under Rule 6-A of the E&D Rules which was also dismissed. He argued that the rejection of revision application is final order whereby he was denied his vested right. He has referred to 1983 PLC (C.S.) 453 and 1984 PLC (C.S.)
659.
3. Mr. Maqbool Elahi Malik, the learned Advocate-General at the outset, took the legal objection that the appeal is not competent under section 4 of the Service Tribunals Act, 1973 and according to him all these orders passed by the Authorised Officer and the competent authority are interlocutory orders with regard to proceedings which are pending against the appellant and the appellant could challenge the final order when passed by the Authorised Officer or the authority, as the case may be. It is argued that these interim orders are not appeal-able according to law. He has referred to PLD 1989 SC 562 and judgment in Civil Appeal No.6 of 1980 (Federation of Pakistan v.
Mazhar Ali). He has also argued that the appellant is at liberty to challenge the order passed under Rule 6-A before the President.
4. This appeal was fixed for preliminary hearing on 7-1-1993. Before considering admission of the appeal, we issued pre-admission notice to the respondents, inter alia, on the following points:--
(i) Maintainability of the appeal in view of the matter for the same cause of action pending in the Supreme Court.
(ii) Competency of the appeal in the circumstances when there is no final order and inquiry proceedings are pending against the appellant.
In the first instance, we would like to deal with the preliminary objection about the maintainability of the appeal. The inquiry against the appellant has been initiated under the Government Servants (E&D) Rules, 1973 by the Punjab Government and according to the learned Advocate-General, the proceedings are at the last stage.
5. The learned counsel for the appellant has referred to Syed Javed Raza v. Secretary, Establishment Division (1983 PLC (C.S.) 453). In that case, the question of quantum of punishment and procedural irregularities were considered by the Tribunal against final order while hearing the appeal, wherein these points were raised. Therefore, this case has no relevancy to the facts of the case in hand as there is no final order. These interlocutory orders were not involved in that appeal.
The other case referred to by the learned counsel for the appellant is Muhammad Nawaz Ghumman v. Government of Pakistan through the Financial Adviser, Ministry of Finance and others 1984 PLC (C.S.) 659. In this case, the Controller of Military Accounts and Pension was Authorised Officer. He did not agree with the findings of the Inquiry Officer and imposed penalty of withholding of next annual increment for two years with cumulative effect. Thereafter, the Military Accountant- General, i.e. The authority in respect of the appellant, called the record of the case and in his revisional jurisdiction conferred on him under Rule 6-A of the E&D Rules, came to the conclusion that the Authorised Officer had awarded light punishment. Therefore, he revised the punishment and ordered recovery of Rs.5,000 from the appellant and his compulsory retirement. His departmental appeal was also rejected. Thereafter, he filed appeal before the Tribunal. In that case, irrespective of the merits of the case, the final order of the punishment was challenged in the Tribunal.
6. The learned counsel Advocate-General has made reference to two cases. The first case is Falak Sher Khan and another v. Secretary to Government of Punjab, Agricultural Department and others (PLD 1989 SC 562) and he contended that it is open to the appellant to have filed appeal to the President against the order passed by the competent authority on his application under Rule 6-A.
The other case of Federation of Pakistan v. Mazhar Ali (Civil Appeal No.6 of 1980). In that case, Mr. Mazhar Ali, Chairman, State Cement Corporation was suspended by the President. A Constitutional petition was filed in the Lahore High Court and thereafter the matter went to the Supreme Court.
The Supreme Court while disposing of the Civil Appeal No.6 of 1980, in the concluding paragraph, has observed as under:-- ---For the purposes of this case, the jurisdiction of the High Court under Article 199 of the Constitution had two important limitations. The more important of these was the exclusive jurisdiction of Service Tribunal, under Article 212 of the Constitution read with section 3 of the Service Tribunals Act in, among others, disciplinary matters concerning civil servant. Suspension pending an inquiry squarely falls within the definition of discipline. The only objection in the context could be that an appeal to the Service Tribunal is competent only against final order and such a regulatory periodic order as of suspension does not qualify as final order and hence is not amenable to the jurisdiction of the Service Tribunal. Where the scheme of a law provides appeal only against the final order, the legislative intent is manifestly one of shutting out all challenges to interlocutory, interim or procedural orders, which do 4,nd could end up in an appeal-able final order. To hold that all such interim, procedural and interlocutory orders could, on account of such exclusion, be brought before superior Courts under Article 199 of the Constitution would not only amount to deflecting the legislative intent, but seriously impede the passing of the final order itself.
An expression of such a legislative intent is found in section 9 of West Pakistan Waqf Properties Ordinance, 1961 (Denial of interim relief in pending proceedings) and section 15 of the West Pakistan Urban Rent Restriction Ordinance (limitation regarding appeal to orders passed under specified sections). In two cases that came to this Court under the former law, Syed Muhammad Ali Shah Bokhari v. Chief Administrator (1972 SCM R 297), Mumtaz Hussain alias Bhutta v. Chief Administrator of Auqaf (1976 SCM R 450), an effort to seek redress in Constitutional jurisdiction was not allowed. In the present case the bar of Article 212 of the Constitution read with section 3 of the Service Tribunals Act excluded the jurisdiction of the High Court under Article 199 of the Constitution.
The other limitation on the jurisdiction under Article 199 of the Constitution is want of other adequate remedy'. It is clear that an order of suspension is interim is character, regulatory in effect and directed toward smooth and expeditious completion of an enquiry at the end of which the order of suspension is substituted by another final order with which it emerges. In respect of such a final order it is impossible to hold that there is no other adequate remedy provided by law. On that view of the matter also the civil servant should be left to face the inquiry and to let it proceed to a conclusion.
We find on a survey of the facts and law that the Constitutional petition filed by the respondent against his suspension and the show-cause notice was not maintainable. Accepting the appeal we set aside the judgment of the High Court and recall the writ that issued. No order as to costs."
In this context, let us refer to section 4 of the Service Tribunals Act, 1973, which reads as under:-- "4. Appeals to Tribunals: --(1) Any civil servant aggrieved by 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 thirty days of the communication of such order to him, or within six months of the establishment of the appropriate Tribunal whichever is later, prefer an appeal to the Tribunal: Provided that--
(a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Ordinance, 1973, or any rule against any such order no appeal shall lie 'to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred; (b)
(c)
The terms and conditions of civil servant are regulated by the Civil Servants Act, 1973 and on infringement of any of his terms and conditions, he has a right to seek redress from the Service Tribunal under section 4 of the Service Tribunals Act, 1973. Section 16 of the Act deals with the Effeminacy and Discipline which provides: "A civil servant shall be liable to prescribed disciplinary action and penalties in accordance with the prescribed procedure."
The position emerges that unless and until the disciplinary proceedings initiated against any civil servant are not taken to logical end or culminate into imposition of penalty, it cannot be brought under the definition of the "terms and conditions" of a civil servant, under section 16 of the Act, and as such cannot be brought for redress of the grievance before the Tribunal under section 4 of the Service Tribunals Act, 1973 as the civil servants, who are aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of their service, can only file appeal before the Tribunal. In the instant case, the departmental proceedings have not yet been finalised, rather the proceedings have been stayed by the Honourable Supreme Court, therefore, no adverse order has been passed against the appellant till this time and no terms and conditions of service have been violated and there being no final order, the appeal is not competent.
7. On the other point of reference made in the pre-admission order, it was argued by Mr. Raza Kazim, the learned counsel for the appellant, that proceedings before the Supreme Court are of independent nature and- this appeal under section 4 of the Service Tribunals Act, 1973 is competent, therefore, without considering the orders in writ petition, this appeal be admitted. He also contended that there is nothing to prevent the Tribunal to pass any order on this appeal. He also argued that the respondents before the Supreme Court had taken the plea that Tribunal has got the jurisdiction in this matter. The learned Advocate-General, has also argued that in view of the facts and circumstances of the case, this Tribunal can pass an independent order and dismiss this appeal as being incompetent. On query, he was of the view that there is no harm if this be kept pending till decision of the Supreme Court. The learned counsel for the appellant as well as the learned Advocate-General have clearly stated that these are the independent proceedings irrespective of the matter being pending in the high Court and the Supreme Court and could be disposed of. Since this appeal has been filed under section 4 of the Service Tribunals Act, 1973 and in our view, these service matters come under the purview of the jurisdiction of the Tribunal and there is no embargo for taking: cognizance and passing appropriate order according to law.
8. For the reasons stated above, we are of the view that this appeal, at this stage when there is no final order is not competent and is accordingly dismissed.