' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arises out of service matter.
2. The petitioner is working as Upper Division Clerk in the employment of Water and Power Development Authority. It appears that certain complaints were made against him on the basis of which a charge-sheet was issued to him. His case is that the allegations contained in the charge- sheet were adjudicated upon by the learned Ombudsman and found to be incorrect but notwithstanding that the petitioner has been served with a show-cause notice on 23-1-1989. The validity of that notice has been challenged by the petitioner in this Constitutional petition on the ground that it is mala fide, unlawful, without jurisdiction and void.
3. A preliminary objection as to the jurisdiction has been raised by Mr. Muhammad Amir Bhatti, learned counsel appearing on behalf of the respondent who has submitted that by section 17-B of the Water and Power Development Authority Act, 1958, the employees of the WAPDA are deemed to be civil servants for the purpose of Service Tribunals Act, 1973 and as such any dispute which is germane to the terms and conditions of their service can only be adjudicated by the Service Tribunal and not by this Court in view of Article 212 of the Constitution.
4. In reply, the learned counsel for the petitioner has while relying on S.H.M. Rizvi and 5 others v.
Maqsood Ahmad and others (PLD 1981 SC 612) has maintained that as no final order has yet been passed against the petitioner, he cannot file an appeal before the Service Tribunal and, therefore, at this stage the petition filed before this Court is maintainable.
5. I regret my inability to agree with the learned counsel for the petitioner. Although it is correct that no final order has as yet been passed against the petitioner who has challenged the validity of a show-cause notice issued to him but the fact remains that the dispute raised by him relates to his terms and conditions of service and by virtue of section 17-B of the Water and Power Development Authority Act, 1958, the petitioner has status of civil servant and as such the dispute is amenable to the jurisdiction of Service Tribunal. It is unnecessary to enter into any further discussion in view of the pronouncement of the Supreme Court in Abdul Wahab Khan v. Government of the Punjab and 3 others (PLD 1989 SC 508) wherein it was observed that in cases where no final order had yet been passed the civil servant should wait till such order is passed and challenge the same before Service Tribunal. It was further held that the Constitutional petition even against interlocutory and intermediary orders would not be competent.
' In view of what has been stated above, this petition is dismissed as being not maintainable. No order as to costs.
Petition dismissed.
1998 PLC (C.S.) 1202 [Lahore High Court] Before Ch. Ljaz Ahmad, J GHULAM FARID versus INSPECTOR-GENERAL, RAILWAY POLICE and others Writ Petition No, 4232 of 1997, decided on 10th December, 1997.
(a) Pakistan Railways Police (Efficiency and Discipline) Rules, 1996-- ----Rr. 14(3) & 12---Pakistan Railways Police Act (VII of 1977), S. 9---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Misconduct---Employee of Railway Police---Dismissal from service---Departmental appeal also failed but Reviewing Authority converted punishment of dismissal from service into stoppage of increment for period of two years without cumulative effect and ordered reinstatement of employee in service---Such reinstatement was challenged in Constitutional petition---Maintainability---Constitutional petition was objected to by respondents on the ground that basis of charge of misconduct being in area which was assigned to High Court of Balochistan Constitutional petition filed at Multan (Punjab) was not maintainable--- Constitutional petition was, however, filed when police employee was dismAssed after providing show-cause notice to him by Superintendent of Railway Police, Multan, therefore, objection relating to territorial jurisdiction had no force, for, the cause of action had occurred at Multan within jurisdiction of High Court at Multan--High Court was the proper forum for filing petition in the nature of quo warranto. [p. 1205] A
(b) Pakistan Railways Police (Efficiency and Discipline) Rules, 1996--- ----Rr. 12 & 14(3)---Pakistan Railways Police Act (VII of 1977), S. 9---Constitution of Pakistan (1973), Art. 199---Power of review vesting in Inspector-General of Police against punishments awarded to police employees---Extent---Original order whereby penalty was awarded to police employee was not passed by Inspector-General of Police, therefore, review in terms of R. 14(3), Pakistan Railways Police (Efficiency and Discipline) Rules, 1996 was not maintainable---Inspector-General of Police, however, had power in terms of R. 12, Pakistan Railways Police (Efficiency and Discipline)
Rules, 1996 to call for record of punishment awarded to his subordinates and pass appropriate order---Case was remanded to Inspector-General of Police to look into the matter personally and pass appropriate order strictly in accordance with law. [pp. 1206, 1207, 1208] B, C, D & E PLD 1970 SC 98; Mushtaq Warraich's case PLD 1985 SC 159 and Zia-ur-Rehman's case PLD 1973 SC 49 ref. Mian Zafar Yasin for Petitioner.
Sh. Rahim Nawaz for Respondents Nos. 1, 3 and 4. Sardar Ameer Hassan Magsi for Respondent No, 2.
Date of hearing: 10th December, 1997.
' Brief facts out of which the present writ petition arises are that the petitioner is Railway Supervisor.
On 20-8-1996 on the complaint of one Muhammad Altaf respondent No, 2 Amir Hussain recorded F.I.R. No,68 of 1996 against the petitioner under section 161, P.P.C. Read with section 5(2) of Prohibition of Corruption Act, 1947. On the same day another F.I.R. Was recorded under the same offence by respondent No, 2 on the complaint of one Muhammad Saleem and Ghulam Sarwar. The matter was investigated by D.S.P. Railways who vide his report dated 10-10-1996 found that the petitioner was innocent and both the F.I.Rs, were recorded mala fidely which was confirmed subsequently by the S.P. Railways on 14-10-1996. The matter was placed before the Special Judge Central, Multan who cancelled the F.I.R.No, 68/96. The learned counsel for respondent No, 2 pointed out that other F.I.R. Was not cancelled but he admitted this fact that the petitioner was discharged in the F.I.R.No, 71/96. The competent Authority issued a show-cause notice to respondent No,2 under the Pakistan Railway Police (Efficiency and Discipline) Rules, 1996 on the ground that respondent No,2 registered a false case against the petitioner. The respondent No, 2 submitted reply to the show-cause notice. The competent Authority dismissed respondent No,2 vide his order dated 24- 12-1996. Respondent No,2 filed appeal before respondent No,3, who dismissed the same vide his order dated 21-3-1997. The respondent No,2 being aggrieved by the order dated 24-12-1996 and 21- 3-1997 filed a review petition before respondent No, 1 which was accepted vide order dated 8-5- 1997 in the following terms:-- "Taking a lenient view convert the punishment of dismissal from service into stoppage of increment for a period of two years without cumulative effect, and respondent No,2 was reinstated."
' The present petitioner filed a writ of quo warranto on the ground that respondent No,1 has no jurisdiction under the Pakistan Railway Police (Efficiency and Discipline) Rules to pass any order in review application filed by respondent No,2.
2. The learned counsel for the petitioner contended that order passed by Appellate Authority became final by virtue of Rule 14(2) of the said Rules. He further urged that original order was passed by S.P., therefore, I.-G. Police by virtue of Rule 14(3), proviso was not competent to hear the review petition. He further urged that no revision was filed before the Inspector-General under Rule 12 by respondent No,2, therefore, the order passed by respondent No,1 could not be termed as passed under Rule 12. He further urged that respondent No,1 has treated the application himself as review application and order of respondent No,1 also revealed that he considered the same as review petition and relied upon the first sentence of the order that he disposed of the review application. He further urged that provisional power is only available when no appellate order-has been passed by the Departmental Authorities. He further argued that no revision is available against the final order passed by the Appellate Authority. The learned counsel ultimately urged that in case respondent No,1 has a jurisdiction then the matter may be remanded to him to decide the same afresh keeping in view the circumstances of the case and decide the same after applying his mind.
3. The learned counsel for respondents Nos. 1, 3 and 4 contended that writ petition is not maintainable at this Bench as both the F.I.Rs, were recorded at Samma Satta which area was assigned to Bahawalpur Bench. He further argued that matter relates to the terms and conditions, therefore, by virtue of Article 212(2) of the Constitution of Pakistan read with section 4 of the Service Tribunals Act the petitioner has an alternate remedy to agitate the matter before the Service Tribunal. The learned counsel for respondent No,2 controverted the contention of learned counsel for respondents Nos.1, 3 and 4. He further agitated that writ petition is not maintainable as the petitioner is not an aggrieved person. He further argued that by virtue of Punjab Police Rules, the Inspector-General Police has power to review the order of the Deputy Inspector-General. He further argued that respondent No,1 has jurisdiction under rule 12 to modify the order passed by any subordinate at any stage. The learned counsel for the petitioner in rebuttal contended that the order was not passed by respondent No,1 suo motu, therefore, the order passed by respondent No,1 was not valid. He further argued that contents of the order is to be seen which clearly revealed that he disposed of the review petition and did not decide the revision under rule 12.
' I have given my anxious consideration to the contentions of the learned counsel for the parties. It is proper and appropriate to reproduce.The relevant Rules which are reproduced hereunder for ready reference:-- "12. Revision.---(1) The Inspector-General and Deputy Inspector-General or Superintendent of Police may call for the record of punishment awarded by their subordinates and confirm, enhance, modify or annul the same, or make further investigation or direct such to be made before passing orders.
(2) If punishment of dismissal is annulled, the officer annulling it shall state whether it is to be regarded as suspension followed by reinstatement, or not. The order should also state whether service" prior to dismissal shall count for pension or not.
(3) In all cases in which officers propose to enhance any punishment they shall, before passing final orders, give the accused concerned an opportunity of showing cause, either personally or in writing, why his punishment should not be enhanced.
'
14. Appeal.---(1) An appeal shall lie only against the order of dismissal, removal from service, compulsory retirement, reduction in rank or time scales, forfeiture of approved service and imposition of fine.
(2) There shall be one appeal only from the original order, and the order of the Appellate Authority shall be final.
(3) The appeal shall lie to an officer one step higher in rank as shown in the schedule, than the one who passes the original order: ' Provided that in case of orders passed by the Inspector-General of Police, only a review petition shall be admissible.
I intend to decide the preliminary objection raised by the respondents' counsel. The learned counsel for the respondents raised the objection that the writ petition is not maintainable at Multan Bench as both the F.I.Rs, were recorded at Police Station Samma Sattha which area is assigned to the Bahawalpur Bench. The present writ petition is filed as the respondent No,2 was dismissed after providing show-cause notice to him by Superintendent of Railway Police, Multan, therefore, the objection of the respondents has no force as the cause of action accrued in the area assigned to this Bench. The other preliminary objection that the matter relates to the terms and conditions, therefore, by virtue of Article 212(2) read with section 4 of the Service Tribunals Act writ petition is not maintainable has no force as the petitioner filed a writ petition of co warranto with the following prayer:- "Under the circumstances it is respectfully prayed that the order passed by the respondent No,1, dated 8-5-1997 be declared illegal and void and without lawful authority and thus of no legal consequence and further appropriate writ be issued directing the respondent No, 2 to show under what authority of law he held the office as Assistant Sub-Inspector,. Railway Police."
I am fortified by the judgment of the Humble Supreme Court reported as PLD 1970 SC 98. On merits it is no doubt that the order dated 3-5-1997 of respondent No,1 reveals that this order disposed of review petition admitted by Ex-A.S.I. Amir Hussain Shah, Multan Division against the punishment of dismissal from service awarded to him by S.R.P. Vide order dated 24-12-1996. By virtue of Rule 14(3), proviso review is only available in or the order was passed by Inspector-General of Police himself but in the present case it is admitted fact that original order which was upheld by the Appellate Authority was not passed by respondent No,1 Inspector-General of Police, therefore, review under Rule 14(3) of Pakistan Railway Police (Efficiency and Discipline) Rules, 1996 was not maintainable.
Similarly the contention of the learned counsel of the respondents has no force that respondent No,1 Inspector-General of Railway Police has also power under Police Act, 1861 and Rules framed thereunder on the well-known principle of law that special excludes the General. I am fortified by the judgment of the Hon'ble Supreme Court of Pakistan PLD 1985 SC 159 (Mushtaq Warraich's case) and PLD 1973 SC 49 (Zia-ur-Rehman's case). The present controversy between the parties has to be decided only under the provision of Pakistan Railway Police Act, 1977 and Rules framed thereunder. Under Rule 12 of Pakistan Railway Rules, respondent No,1, Inspector-General of Pakistan Railways Police has jurisdiction to call for the record of punishment awarded by his subordinate and pass any order to the following effect:--
(i) Confirm.
(ii) Enhanced.
(iii) Modified or
(iv) Annulled the same, or
(v) Make further investigation, or
(vi) Direct such to be made before passing order.
' It is pertinent to mention here that Rule 12 does not prescribe the following limitations:--
(i) Time limit.
(ii) Suo motu.
(iii) On the application of the aggrieved party.
(iv) At what stage i,e, before the appellate order.
' In view of these circumstances the Inspector-General of Police Railways has ample powers to invoke this rule at any stage, suo motu or on the application of an aggrieved person. Similar to Rule 12 of Pakistan Railways Police WAPDA has also framed Rule 12 under the provisions of WAPDA Act, 1958 which is reproduced hereunder for ready reference: ' Rule 12 of Water and Power Efficiency and Discipline Rules, 1978:-- ' Rule 12 is in the following terms:-- "12. Revision.---The Authority may, either on receipt of a 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 orders reversing acquittal or enhancing the penalty imposed) as it may deem fit, and orders so passed shall be final.
' Note.---In case where the Authority decides to enhance the penalty imposed by the competent Authority, a show-cause notice will be issued and the accused will be given an opportunity of being heard in person."
Rule 12 of the WAPDA was interpreted by the Hon'ble Supreme Court in Muhammad Maqsood's case PLD 1992 SC 242 in which action of the authority of WAPDA was declared valid. The respondent No,1 Inspector-General, Pakistan Railways Police has no power to review the order under Order 14(3), proviso as mentioned above but the Inspector-General of Police has a power to review the order of any of his subordinates under rule 12 on the principle laid down by the Hon'ble Supreme Court of Pakistan in Muhammad Yousaf's case 1992 Pakistan Supreme Court Cases 1964 in which action of authority was also declared valid.
' It is pertinent to mention here that the word modify is purposely used by the competent Authority to extend the scope of Rule 12 and this word is discussed in Bashir Ahmad's case 1984 CLC 2158 and the relevant observation is as follows:-- "The word ' modify' means to alter; a change; an alteration or amendment which introduces now elements into the details or cancels some of them, but leaves the general purpose and effect of the subject-matter intact. Alteration in the said Dictionary means variation; changing; making different. A change of a thing from one form or state to another; making a thing different from what it was without destroying its identity.
11. In the 20th Century Practical Dictionary the word 'modify' means change (to make suitable or less severe).
12. It shows that the, word modify connotes that the order can be altered, changed or varied or it can be made suitable or less severe.
' In this manner, the Superintending Canal Officer is competent to vary or alter an order by modifying the same."
4. In view of what has been discussed above the contentions of the learned counsel of the petitioner have no force. Neither the petitioner nor respondents brought on record the application submitted by the respondent No, 2 to respondent No, 1, who accepted the same. Although respondent No,1 has power to exercise provisional power to modify punishment awarded to respondent No,2 by his subordinate S.P. And confirmed by the Appellate Authority by dismissing appeal of respondent No,2 but his action must be based on reasons and he is not permitted to exercise the power arbitrary. I am fortified by the judgment of the Humble Supreme Court of Pakistan 1993 SCM R 1134 (WAPDA v. Muhammad Riaz Butt). Let a copy of the writ petition be sent to respondent No,1 who shall look into the matter personally and pass an appropriate order strictly in accordance with law without influencing the abovementioned observations.
5. With these observations this petition is disposed of.