' ABDUL GHANI SHAIKH, J.---Mr. Manzar Alam, Advocate for the petitioner has filed this petition wherein he has stated that the petitioner had joined the Board of Intermediate and Secondary Education, Sukkur as Senior Superintendent on 9-4-1983 and was promoted to the post of Assistant Secretary (Accounts) on 26-6-1988 and he had been performing his duties as such till 10-4-1996 on which date he was appointed as Audit Officer in BPS-18 but it is said by the petitioner that he was reverted on 20-5-1997. The petitioner has challenged this reversion order and has prayed for the following relief:-
(A) To declare that the petitioner is fit to hold or to be appointed as Audit Officer in BPS-18 and subsequent order dated 20-5-1997 of reversion is illegal, without backing of law, in violation of rules and regulations, hit by principle of locus poenitentiae and principle of natural justice.
(B) That it may further be declared that once an employee is selected/promoted by the competent Authority, cannot be reverted.
(C) Costs of the petition.
(D) Any other relief which this Honorable Court deems fit.
' Pre-admission notice was issued to the respondents and the learned Additional Advocate- General. The respondent No, 2 has filed the comments wherein it is stated that the petitioner was not possessing the required qualification for the post advertised and as such his reversion was proper and furthermore the jurisdiction of this Court was said to be barred under Article 212 of the Constitution of the Islamic Republic of Pakistan.
' The learned Advocate for the petitioner was asked to satisfy about the maintainability of the petition. He. In support of his contention. Has submitted that the petitioner was appointed in BPS-18 on 10-4-1996 and his reversion on 20-5-1997 viz. After about more than one year is illegal for the reason that the petitioner has accrued the vested right and he cannot be reverted. He has placed the reliance on the following case-law:--
(1) 1996 PLC (C.S.) 1061.
(2) 1994 PLC (C.S.) 336.
(3) PLD 1996 SC 632.
(4) 1997 PLC (C.S.) 422.
' Mr. Zawar Hussain Jaffri, learned Additional Advocate-General and Mr. Qadir Bux Memon, Advocate for respondents Nos. 2 and 3 have argued that this Court has no jurisdiction as the petitioner is admittedly a civil servant and, therefore, reversion comes within the purview of the terms and conditions of the service and thus, challengeable before the Service Tribunal and not before this Court by way of filing writ petition. They have relied on the case of Abdul Bari v.
Government of Pakistan and 2 others (PLD 1981 Karachi 290) and the case of I.A. Sherwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1049).
' It is an admitted position that the petitioner is a civil servant and the case-law cited by the learned counsel for the petitioner does in no way support the petition.
'In case of Abid Mahmood v. Government of Pakistan through Secretary, Establishment Division, Islamabad and 241 others (1996 PLC (C.S.) 1061 para. 6 at page 1064, of the judgment reads as under:- "The High Court was, therefore, justified in holding that the question of eligibility to be considered for appointment or promotion to a post related to the terms and conditions of service and the jurisdiction of the High Court under Article 199 was ousted on the strength of Article 212 of the Constitution which has a non- obstante clause."
' Case of Hidayatullah v. Government of Sindh (1994 PLC (C.S.) 336) does also not support the case of the petitioner, as in specific term it is held that the jurisdiction of this Court is barred. The relevant portion at page 337, para. 2 reads as under:-- "By now it is more or less a settled position of law that wherever the jurisdiction of the Service Tribunal exists, it is not open to the aggrieved person to invoke the jurisdiction of the High Court under Article 199 of the Constitution of Pakistan, by saying that the order of the departmental authority is without jurisdiction, or it is void, or it is mala fide, or it is in the nature of coram non judice."
' In case of Mrs. Shahida Zahir Abbasi and others v. President of Pakistan and others (PLD 1996 SC 632) the facts are quite distinguishable and, therefore, this authority does not seem applicable in the circumstances of the present case.
' The case of Secretary to Government of N.W.F.P. v. Muhammad Nawaz (1997 PLC (C.S.) 422) is also not relevant for the purpose of deciding the case of the petitioner for the reason that the facts of the reported case are quite different and distinguishable from the case of the petitioner as in the reported case the promotions were made or the basis of examination conducted by the Department itself and the qualified persons were promoted and then the promotions were cancelled. But in the present case no departmental examination was conducted for promotion. The petitioner in the present case has been reverted on account of not possessing the required academic qualification.
Whatever the facts may be, we are of the considered view that the petitioner is admittedly a civil servant and in case of reversion of the petitioner, he has to agitate his grievances before the Service Tribunal as the petitioner cannot invoke the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan by saying that the departmental authority is without jurisdiction or is void or is mala fide as when the jurisdiction of any administrative Court or Tribunal exists appearing in clause (1) of Article 212 of the Constitution of Islamic Republic of Pakistan clearly makes ouster the jurisdiction of this Court to correspond with the impugned orders placed within the jurisdiction conferred on the Tribunal.
' For the above said reasons, this Constitutional petition is dismissed in limine with no order as to costs. The pending Civil Miscellaneous Application 1278 of 1997 has become infructuous and is dismissed.
Petition dismissed.
1998 PLC (C.S.) 1272 [Lahore High Court] Before Mrs. Fakhar-un-Nisa Khokhar, J Mst. NASIRA NAHEED versus SHEIKHPURA SHUJARA DISTRICT COUNCIL it Petition No, 8298 of 1997, decided on 26th March, 1998.
Local Councils Servants (Efficiency and Discipline) Rules, 1981--- ----Rr. 9, 10 & 11--Constitution of Pakistan (1973), Art. 199---Constitutional petition---Dismissal from service---Material available on record did not show that civil servant had committed alleged gross-misconduct on basis of which she was dismissed from service---When an employee of Local Council was found to have committed gross-misconduct, procedure for imposition of major penalty had been provided in Local Councils Servants (Efficiency and Discipline) Rules, 1981 which had prescribed a strict mode of show cause, forwarding charge-sheet of allegations; written defence of accused of such allegation, and/or documentary evidence in support of charge or in defence of accused, a right of cross-examination of witnesses--Any omission of such rules or regulations or its non-observance would vitiate the total inquiry proceedings against accused--- Dismissal order in the present case was not communicated to civil servant against whom major penalty of dismissal from service was imposed---Such omission had shown mala fides and ulterior designs of person conducting inquiry against civil servant---Termination order passed against civil servant in clear violation of Local Councils Servants (Efficiency and Discipline) Rules, 1981, was set aside with cost. [p. 1278] A Kanwar Intizar Muhammad Khan for Petitioner. Syed Afaq Shan and Ikram-ul-Haq for Respondent.
Date of hearing: 26th March, 1998.
' This be considered as admitted case.
2. Brief facts of this case are that a letter was received through post The proper memo. Of writ petition was filed. Parawise comments were submitted and the brief facts narrated in the letter as well as memo. Of writ petition are that the petitioner was appointed as Lady Health Visitor on 22-12- 1992 at Sheikhpur Shujara District Council, Multan and remained as ad hoc appointee till 22-12- 1993. Later on her appointment was extended. She appeared in interview on 4-10-1993 and through Selection Committee her appointment was regularized. According to her she performed her duty with great labor and pain. During the summer she went for installation of one water pump and boundary wall to Z.H.O. And then was taken to the office of Feroze Ahmad, Chief Officer who promised her for installation of water pump and boundary wall. After that both the Officers visited the center of the writ petitioner and the Chief Officer tried to tease her which she felt and then she was told by other employee that she had annoyed the Chief Officer and there will be no installation of water pump and boundary wall and inquiry proceedings were initiated against her. She was told by the Inquiry Officer time and again that if she pleases the Chief Officer who is in love with her then everything will be all right but on her refusal, when next month, she went to take her pay she came to know that she was dismissed from service.
3. Learned counsel for the petitioner filed a proper memo. Of writ petition to challenge the termination order dated 30-1-1996 being void and passed without lawful authority. From the perusal of the documents placed with the writ petition it was found by the Court that lady was still working although from the papers she appeared as dismissed from service. She was never suspended or was allowed to associate with the proceedings calling for major penalty.
4. Interim order was passed by this Court on 24-10-1997 in favour of the petitioner which was assailed in Intra-Court Appeal and was suspended for the time being. Later on Intra-Court Appeal No, 205 of 1997 stood disposed of in view of the statement of the learned counsel that if a direction is given for the disposal of the main petition within a month and during the interregnum period the writ petitioner gives a surety bond to the satisfaction of Administrator, Zila Council, that the respondent will comply with the order passed by this Court. It was observed by the Division Bench that the learned Single Judge seized of the main petition shall decide the main petition within two months. In view of the order of the Hon'ble Division Bench the matter is placed before this Court although no direction can be given to a Single Judge in Chamber to decide the case within certain period but in the interest of justice this case is heard and decided today.
5. Parawise comments were submitted by respondents Nos. 2, 3, 4 and 5 wherein the respondents have objected to the maintainability of writ petition since the same involves question of fact and evidence and that after the amendment in section 2-A Service Tribunal Act, employees of the Zila Council have become civil servants and all matters relating to the terms and conditions of employees of Zila Council lies with the Service Tribunal. Proceedings initiated against the writ petitioner were in accordance with law under the Punjab Government Servants Rules, 1981 and the writ petitioner has remedy or appeal before the Director, Local Government and Rural Development for redressed of her grievance within the period of 30 days of the communication of order. The writ petitioner did not avail of the said remedy and she cannot now challenge the same in writ jurisdiction.
6. I have heard the learned counsel for the parties in detail and have carefully perused the record.
So far as the question of jurisdiction of this Court is concerned the amendment in section 2-A (supra) does not apply to the petitioner's case because the amendment is dated 10-6-1997 and the petitioner was dismissed vide order dated 30-1-1996, therefore, writ jurisdiction is available to the petitioner. According to the record she was allegedly dismissed on 30-1-1996. She was found working in her office even at the time of filing of writ petition which supports her allegation that either she was blackmailed under the garb of dismissal or the dismissal order was never communicated to her properly. A careful perusal of the record would show that in a tour note dated 28-9-1994 the center of the petitioner was found locked. No person was present and condition of dispensary disclosed as it was not opened for a long time and it gave a look of public latrine. The explanation of Nasira Naheed, L.H.V. Was requested to be called for on account of her absence from duty under Efficiency and Discipline Rules by the Chief Officer, Zila Council, Multan. A show-cause notice was given on ? 11-1994. The reply was filed on 13-11-1994. The writ petitioner explained that she went to District Council on 28-9-1994 to get the salary and she has not committed any negligence from her duty. She was not suspended but on 12-2-1994, the Chief Officer recommended that as he is the repartee of the absence of the writ petitioner, therefore, Senior Accounts Officer be appointed as Authorised Officer. On 16-3-1995 the petitioner was charge-sheeted by Ch. Muhammad Sadiq, Senior Accounts Officer, Zila Council, Multan and she was asked to submit her reply within ten days and in case of non-reply she was threatened for imposition of major penalty. The reply was filed on 11-4-1994 with the following words:- {{URDU TEXT}} ' On page 15 of the record statement of Nasira Naheed, L.H.V., dated 6-6-1995 is present and she has stated on oath that on a question that at the time of inspection she had come to Sadar Office, Zila Council for her pay. Whether she went direct to the center or to Zila Council she said that she came direct to Zila Council and she remained there till 1 p.m. But she could not get the pay on 28- 9-1994 because the concerned clerk was not present. On another question that center shows to be a latrine she replied that center had no boundary wall and there is one school of children and there is also a passage for carts and tongas and, therefore, it remained dusty all the times and she had only one Dai who was accompanying her for getting the salary. She had come to Sadar Office District Council directly and remained there till 1 p.m. And could not get the pay because the concerned clerk was not present. On 28-9-1994 he had expressed that it is very difficult for him to decide the inquiry unless he is allowed to get information's from the people of Shaikhpur Shajra Centre. He signed the same in blue ink and in black ink it is written T.P.O. Thereafter, the writ petitioner applied for transfer of inquiry from the Inquiry Officer which according to her was a prejudiced one, and she was informed through printed Letter No,270, dated 21-11-1995 that without proof it is impossible to change the inquiry and the stance taken by the writ petitioner is that she was afterwards dismissed through fake inquiry. She was not allowed to associate with the proceedings according to the rules and regulations and these documents were prepared afterwards to enable the department to show that they have dismissed the petitioner although the dismissal is take.
7. According to the Local Councils Servant (Efficiency and Discipline) Rules, 1981 Chapter III.
(9)(1) Initiation of Proceedings.---If, in the opinion of the authority there are sufficient grounds for proceedings against a servant of the local council, it shall direct the Authorised Officer to proceed against the said servant.
(10) Inquiry Procedure to be observed by the Authorised Officer.---The following procedure shall be observed by the authorised officer when a servant of local council is proceeded against under these rules:
(11) In case where a servant of a local council is accused of subversion, corruption or misconduct, the authorised officer may, require him to proceed on leave, if due. Or, suspend him with the approval of the authority, provided that any continuation of such leave or suspension shall require approval of the authority after every three months.
(3) On receipt of the written defence, it any and after hearing the accused in person, if he so requests, the authorised officer shall decide whether in the light of the facts of the case and in the interest of justice:
(a) Proceedings should be dropped and if he so decides he may drop the proceedings with the approval of the authority; or
(b) an inquiry is necessary and if he so decides he shall appoint an Inquiry Officer or an Inquiry Committee cosisting of two or more persons who or one of whom shall be an officer of the rank senior to the accused or all of the co-accused.
(4) If the authorized officer on consideration of the written defence, if any, and after hearing the accused in person, if he so requests, decides that it is not necessary to have an inquiry conducted against the accused, he shall:
(i) by order in writing inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and
(ii) give him a reasonable opportunity of showing cause against that action.
' Provided ...............................................................................................
(5) On receipt of the explanation, if any, to the show-cause notice issued under sub-rule (4) the authorised officer shall determine whether the charge has been proved. If it is proposed to impose a major penalty he shall pass order accordingly. If it is proposed to 'impose major penalty, he shall forward the case to the authority alongwith the explanation of the accused and his own recommendations regarding the penalty to be imposed.
(2) The Inquiry Officer or the Committee, as the case may be, shall require into the charge and may examine such oral or documentary evidence in support of the charge in defence of the accused, as may be considered necessary and the accused shall be entitled to cross-examine the witnesses against him.
(3)
(4) (4A)
(5)
(6) ................................................................
(7) On receipt of the report of Inquiry Officer or Inquiry Committee, the authorized officer shall determine whether or not the charge has been proved. In case the authorised officer is of the opinion that the charge has been proved.
(a) he may impose a major penalty, if he proposes to do so; or
(b) he shall forward the case to the authority along with the charge-sheet statement of allegations, explanation of the accused, the findings of the Inquiry Officer or the Inquiry Committee and his own recommendations in case he proposes imposition of a major penalty.
8. Keeping in view the rules and regulations regarding the imposition of major penalty I have carefully perused all the documents and have found out that the documents are prepared in a haphazard manner. When the petitioner was dissatisfied with the inquiry and had requested for change of inquiry there is nothing on the file to show that she was communicated the appointment of other Inquiry Officer. There is no order on the file to show that the petitioner was directed to proceed on leave or she was suspended. According to the petitioner she had been working till she filed the instant writ petition. The only order at Serial Nos. 21 to 30 show that the petitioner is deliberately avoiding the inquiry. If she was deliberately avoiding the inquiry there was no need to inform the petitioner that the change of inquiry was impossible. Every employee in an organization is governed by rules and regulations and especially when employee of local council is found to have committed the gross-misconduct then the procedure for imposition of major penalty is given in the aforesaid rules which prescribe a strict mode of show cause, forwarding charge-sheet of allegations, the written defence of an accused of such allegation, oral or documentary evidence in support of charge, or in defence of an accused, a right of cross-examination of the witnesses. Any omission of such rules or regulations or its non-observance will vitiate the total inquiry proceeding against an accused. Imposition of major penalty will amount to fructification of the employee economically, mentally, socially and morally. No such order is sustainable in law. Besides it in the instant case non-communication of dismissal order to the employee shows the mala fide and ulterior designs of the person conducting inquiry.
10. While keeping in view the whole record I have not found any material available on the file that the petitioner has committed gross-misconduct as there is nothing to disbelieve the petitioner that she had gone to cash her salary from the office of District Council in presence of cash book Annexure 'Y' shdwing the attendance of petitioner in the said office and her initials on the cheque and salary of Rs,3,645 about Centre Sheikhpur Shajra on 28-9-1994. The salary was prepared on 25-9-1994, therefore, I accept the writ petition, set aside the impugned order of termination passed in clear violation of Efficiency and Discipline Rules, 1981 and for this reason burden the department with cost of Rs,10,000. Original file of the department be returned by the office after getting the receipt for the same. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.