1. SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment of the High Court dated 22-4-1993, whereby the writ petition filed by the appellant, herein, was dismissed on the preliminary point that as the petitioner had adequate remedies by way of appeal, review and, revision available to him, the writ petition was incompetent.
2. The brief facts of the case are that the appellant, was serving in Azad Jammu and Kashmir University in the Library Department as Library Assistant on 5-1-1984 when he was transferred to the Library of English Department on 14-11-1987. Subsequently, a criminal case was registered against him under sections 419, 420, 467 and 471, A.P.C. read with section 5 of the Anti-Corruption Act.
3. During the pendency of the criminal case, the disciplinary proceedings were stated against the appellant, herein, and after the conclusion of the inquiry, he was dismissed from service by the appropriate authority. The grievance of the appellant before the High Court was that as the inquiry was not conducted according to the relevant rules, the impugned order was violative of law. A preliminary objection was raised by the respondents in the High Court that the writ petition was not competent because adequate alternate remedies in form of appeal, review and revision, were available to the appellant under the University Rules and, as such, the appellant was not legally competent to invoke the writ jurisdiction. The High Court upheld the preliminary objection and dismissed the writ petition on the ground that as adequate remedies were available 'to the appellant, the writ petition was incompetent.
4. We have heard the arguments and perused the file. Mr. Ghulam Mustafa Mughal, Advocate, the learned counsel for the appellant, has contended that the High Court has committed error in dismissing the writ petition on the ground that the appellant, herein, failed to avail alternate remedies provided in the relevant statute and rules framed thereunder in form of appeal, revision and review and as such the writ petition was not competent. The learned counsel has argued that in the case in hand, the appeal lies to the Syndicate and the Vice-Chancellor is Chairman of the same. He has maintained that in the instant case it is recorded in the impugned order of the Assistant Registrar dated 22-4-1992 that the Vice-Chancellor had also agreed with the findings of the Inquiry Officer after hearing the appellant. Thus, the learned counsel has argued that the Vice- Chancellor has played an active part in getting the impugned order passed and, therefore, the appeal before the Syndicate of which he is a Chairman would be a futile exercise. Thus, according to the learned counsel, the High Court could rightly decide the writ petition on merits and it cannot be said that the writ petition entailed dismissal for failing to avail the alternate remedies. The learned counsel for the appellant has cited following authorities in support of his contention:-- In case reported as Novelty Enterprises Limited, Tariciabad, Mirpur v. Deputy Collector, Excise and Taxation/Sales Tax Officer (1993 CLC 1165), it was observed that as the jurisdiction of the appellate authorities was also challenged by the writ petition, it was not necessary for the petitioner first to avail the remedy by way of appeal before the appellate authority constituted under the relevant statute and, thus, the writ was held as competent.
5. In case reported as Nek Muhammad v. Roda PLD 1986 SC (AJ&K) 23), the Judge of the High Court who was also vested with the power of Custodian passed an order as Judge of the High Court in exercise of revisional jurisdiction. The matter before him which was subject of provisional jurisdiction had also been decided by him as Custodian. It was ' opined that the action of the learned Judge was violative of the principle of natural justice and, thus, the Supreme Court remanded the case with the direction that it should be decided afresh by some other Judge of the High Court.
6. In case reported as Messrs Haroon Brothers v. Drugs Registration Board (1992 CLC 1017), the order passed by the Deputy Drug Controller was challenged by way of an appeal before the Drugs Appellate Board under Rule 4 of the Drugs (Appellate Board) Rules, 1976; during the pendency of the said appeal a writ was also filed before the High Court under Article 199 of the Constitution of Pakistan, 1973. An objection was raised that the writ was filed without exhausting alternate remedy and, thus, was not competent. The Court expressed the view that the remedy sought by way of appeal was not efficacious and speedy and, thus, the writ was competent.
7. In case reported as Registrar, Cooperative Societies, Mirpur v. Muhammad Siddique PLD 1985 SC (AJ&K) 56), it was observed that every alternate remedy does not bar the exercise of writ jurisdiction by the High Court. It was opined that if the alternate remedy is not equally inexpensive, expeditious and beneficial, the High Court is competent to exercise the writ jurisdiction. In The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division (PLD 1972 SC 279), it was observed that ouster of writ jurisdiction in presence of alternate remedy is not a rule of law barring the jurisdiction of the High Court; it is a rule by which the Court regulates its jurisdiction. It was observed that as the order of the statutory body was attacked on the ground that it was wholly without jurisdiction, partial, unjust and mala fide, the High Court had the jurisdiction to grant relief to an aggrieved person in writ, especially so because the power of the appellate authority constituted under the Capital Development Ordinance were limited and, thus, was not adequate for the redressal of the grievance of the petitioner.
8. Sh. Abdul Aziz, Advocate, the learned counsel for the respondents, has opposed the contentions of the learned counsel for the appellant and has referred to a case reported as Abdul Rehman v.
9. Income-tax Officer, Mirpur Circle (1993 SCR 186), wherein it has been held that the High Court can directly entertain a writ petition only if it finds that alternate remedy is not adequate. It was further opined that existence of alternate remedy is a rule of law and not a rule of practice. Thus, if there is adequate alternate remedy, the writ is not competent without exhausting the same.
10. We have given our due consideration to the matter in hand. In the instant case, the impugned order of the dismissal of the appellant was passed by the Assistant Registrar and not by the Vice- Chancellor who is the Chairman of the Syndicate to whom the appeal is competent under section 38 of the University of Azad Jammu and Kashmir Act, 1985 and the Rules framed thereunder. It is correct that the impugned order shows that the Vice-Chancellor has also agreed with the recommendations made by the Inquiry Officer but that itself is not sufficient to hold that the appeal before the Syndicate would have been a futile exercise, especially so when under subsection (2) of section 10 of the Act if the Vice-Chancellor is not able to perform his duties for illness or for some other cause, he can make arrangement for performing his duties. For convenience section 10 is reproduced as under:-- "10. Vice-Chancellor.---The Vice-Chancellor shall be appointed by the Chancellor on such terms and conditions as the Chancellor may determine and shall hold office during the pleasure of the Chancellor for a term not exceeding four years.
2. At any time when the office of the Vice-Chancellor is vacant, or the Vice-Chancellor is absent or is unable to perform the functions of his office due to illness or some other cause, the Chancellor shall make such arrangements for the performance of the duties of the Vice-Chancellor as he may deem fit."
11. Thus, if the appellant had any objection that the Vice-Chancellor should not preside over the meeting of the Syndicate in which his appeal was to be heard, he could raise an objection to that effect and any other arrangement could be made for presiding over the meeting in which the appeal was to be heard. Thus, the mere fact that the Vice-Chancellor agreed with the report of the Inquiry Officer would not render the provisions regarding the appeal to the Syndicate as nugatory.
12. The authorities cited by the learned counsel for the appellant in support of his contention are not applicable to the facts of the case in hand. In case reported as Novelty Enterprises Limited, Tariqabad, Mirpur v. Deputy Collector, Excise and Taxation/Sales Tax Officer (1993 CLC 1165), the writ petition was held competent despite the fact that alternate remedy by way of appeal was available on the ground that even the powers of the appellate authority were also challenged in the writ petition and, thus, the question of availing alternate remedy did not arise. Similarly, the other authorities referred to above, relied upon by the learned counsel for the appellant, are distinguishable because in those cases either the case was one of total absence of jurisdiction or patently mala fide or the statutory provisions regarding the appeal were not comprehensive enough to give adequate relief to the aggrieved person. In the instant case not only the appeal was competent to the Syndicate but the powers of revision and review were also available. It may also be mentioned here that the Syndicate is consisted of a number of members enjoying high status either as Government officials or otherwise. Therefore, the contention that the Vice- Chancellor might have influenced their decision in the matter cannot be upheld, especially so when the objection was available to the appellant that some other person should preside over the meeting called for hearing the appeal in question.
13. In the light of what has been stated above finding no force in this appeal, it is hereby dismissed. No order as to costs.