' This is an application under Order XXXIX, Rules 1 and 2, C.P.C. Whereby the plaintiff has prayed that pending the disposal of the suit the operation of the impugned letter dated 12-10-1998 suspending the plaintiff from the service of the Government of Pakistan may be stayed. The brief facts of the matter as disclosed in the plaint are that the plaintiff was appointed as Appraiser on 6-5-1980 in the office of Collector of Customs Appraisement, Karachi and thereafter, promoted to Principal Appraiser vide letter, dated 27-11-1997. It is the plaintiff's contention that throughout his career he has an unblemished record and consequently the letter of 'suspension dated 12-10-1998 has come as a complete surprise to him whereby he has been alleged to have misconducted himself' without giving any further details of such alleged misconduct. It is further alleged in the plaint that vide his circular dated 18-5-1998 the defendant No,2 viz the Chairman, Central Board of Revenue, Islamabad had directed the defendants Nos,3 to 5 to dispose of and finalize all suspension cases within two months of the date of suspension but so far nothing has been done in the plaintiff's case and not even charge-sheet has been issued to him with the result that the plaintiff's career is hanging in the balance and hence, this suit. It is the plaintiff's further case that the order of suspension was passed at the behest of defendant No,3 viz Collector of Customs (Exports) on the basis of some allegation of under valuation of a consignment shipped on 8-10-1998 when the plaintiff was on duty which resulted in gross loss to the Exchequer. Thereupon, the plaintiff wrote to the defendant No,4 requesting him to provide any evidence of such misdeclaratioon of the consignment in question committed during the plaintiff's duty hours. However, the said defendant was unable to do so vide letter, dated December 30, 1998 issued by one Rafiullah Principal Appraiser with the Customs Department.
2. Consequently, it is the plaintiff's assertion that he has been mala fidely and unlawfully suspended from his service since consignments similar to the one under discussion were previously cleared at the same value which has now become a practice with the Department. It is the plaintiff's further contention that due to a lack of such evidence on the part of the Department, no further progress has been made by the defendants as regards the plaintiff's suspension.
3. It has also been alleged in the plaint that the person who has passed the suspension order viz Additional Collector of Customs defendant No,4 has no jurisdiction as the proper authority in this regard is defendant No,2 and/or 3 alone who could exercise powers of suspension in case of misconduct if any under the rules viz The Government Servants (Efficiency & Disciplinary) Rules, 1973.
4. In the counter-affidavit filed to this application a preliminary objection has been taken to the maintainability of the suit in view of Article 212 of the Constitution to the effect that only the Federal Service Tribunal has the power to deal with the service matters of the plaintiff who is admittedly a Federal Government Servant. So also on the merits of the case it is averred that preliminary investigation has revealed the involvement of the plaintiff in the under valuation and under declaration of the consignment in question, thus, causing heavy loss to the Exchequers and as a result of the same the plaintiff was put under suspension pending formal proceedings in the matter by the department.
5. In support of the application Mr. Khawaja Sharful Islam learned counsel for the plaintiff has submitted that it is settled that the ouster jurisdiction contained in Article 212 of the Constitution of Pakistan would not apply, where the impugned order is not a final order since section 4(1) of the Services Tribunal Act, 1973 contemplates that only a final order whether original or appellate made by the departmental authority in respect of the terms and conditions of the civil servants service is appealable to the Service Tribunal. Explaining further learned counsel says that the impugned order is merely a suspension order, and thus, not being a final order the jurisdiction of this Court is not ousted. In this regard he has relied upon I.A. Sharwani and others v. Government of Pakistan and others (1991 SCMR 1041), Muhammad Azhar v. General 'Manager, (Operation) Power, WAPDA (PLD 1990 Lahore 352), and Abdul Bari and two others v. Government of Pakistan (PLD 1991 Karachi 290).
' On the merits of the case learned counsel has submitted firstly, that the impugned order has been passed by the respondent No,4 who is the Additional Collector of Customs and as such is without jurisdiction as the competent Authority in this respect is the Secretary to the Federal Government viz. Finance Secretary. In this connection learned counsel has referred to SRO 1562 (1) 73, dated 7-11- 1993. Learned counsel's next contention is that in any event the period of suspension could not exceed two months as per circular, dated May 18, 1998 issued by the Central Board of Revenue.
However, although impugned suspension order was issued on 12-10-1998 till the filing of the suit on 20-2-1999 no further steps have been taken in the plaintiff's case and not even a charge-sheet has ben sent to him as per the rules. Learned counsel has further contended that the plaintiff has been condemned unheard as before issuance of the impugned order he was not given any chance of defending himself. Finally learned counsel has submitted that the entire exercise is one which is clothed with mala fides as neither the suspension order discloses the nature to the misconduct allegedly committed by the plaintiff and nor has the investigation in the matter so far carried out by the concerned officer revealed any such wrong doing on behalf of the plaintiff. Consequently learned counsel prays that the application be granted and till the decision of the suit the operation of the impugned order be suspended. In support of his contentions learned counsel has relied upon Wali Ahmed Khan v. Government of Sindh and others (1982 PLC (C.S) 1) Abdul Razzak v.
Federation of Pakistan and 2 others (1992 PLC (C.S) 203), Khwaja Mahmood Ahmad v. Midistry of Education (1992 PLC (C.S) 554), Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others (PLD 1987 Supreme Court 447) M.A. Rehman. v. Federation of Pakistan and others (1988 SCMR 691) and the Chairman District Screening Committee Lahore v. Sharif Ahmad Hashmi (PLD 1976 Suprenie Court 258).
' On the other hand Mr. Fariduddin who is appearing on behalf of defendants Nos,2 to 5 has vehemently opposed the application primarily on the ground that the impugned order is a final order within the meaning of section 4 (1) of the Services Tribunal Act and hence only the tribunal has the jurisdiction in the matter.
' The learned counsel has relied upon Abdul Bari v. Government of Pakistan and 2 others (supra) and the order passed by my learned brother Rashid A. Razvi, J. Dated 26-2-1999 in, Suit No 193 of 1997 Rauf Akhtar Farooqi v. Government of Sindh and others.
' I have gone through the plaint as well as the application under discussion and my conclusions are as follows: ' It would be seen that as per settled law enunciated by the Honourable Supreme Court in the case of I.A. Sharwani and others v. Government of Pakistan and others (supra) the jurisdiction of the Courts is excluded only in respect to the cases in which the Services Tribunal under subsection (1) of section 4, has the jurisdiction. It must, therefore, follow that if the Services Tribunal does not have the jurisdiction to adjudicate upon a particular type of grievance the jurisdiction of the Courts remains intact. Subsequently, in the case of Dr. Ahmad Salman Waris v. Nadeem Akhtar and others (PLD 1997 Supreme Court' 382), it has been held, as under: "In order to make a matter exclusively cognizable by a tribunal under the Act, and to create an ouster of jurisdiction of all other Courts and tribunals under Article 212 of the Constitution, it must be shown that the matter is agitated by a civil servant as defined under the Act, it has arisen from a final order of a departmental authority whether original or appellate, it concerns the terms and conditions of the aggrieved civil servant and that it is not covered by the exceptions mentioned in proviso (b) (i) and.(ii) of section 4 of the Act. If any of the conditions mentioned above are non- existent in a case then, the bar contained in. Article 212 of the Constitution will not be operative..."
' The provisions of section 4' of the Punjab Services Tribunal Act, 1974 are substantially the same as those found in section 4 of the Services Tribunal Act. Consequently, it would now have to be considered whether the facts of the present case would fulfil the criteria laid down by the Honourable Supreme Court in order to attract the sole and exclusive jurisdiction of the Services Tribunal. In this respect it would be seen that as far as the first condition is concerned viz whether or not the plaintiff is a civil servant, the same is not disputed as admittedly the plaintiff is a civil servant. As regards the second condition that whether the impugned order is a final order, reference can be made to the case of Muhammad- Saleh Khokhar v. Engineer-in-Chief, Pakistan Army (1985 SCMR 63) wherein the Honourable Supreme Court has held that where an order of suspension in so far it had taken effect had attained finality then only the Services Tribunal would have the jurisdiction as such order could not be termed an interim order. Similarly in the case of Hidayatullah v. Government of Sindh, a Division Bench of this Court has also held inter alia, that a suspension order once it has achieved finality cannot be termed an interim order. Further, it is also not disputed that the impugned order concerns the terms and conditions of the plaintiff who is a civil servant. As regards the fourth condition that the impugned order must have been made by the departmental authority, in the explanation to section 4 of the Services Tribunal Act, a departmental authority has been defined as an authority other than a Tribunal which is competent to make an order in respect of any of the terms and conditions of civil servants. This explanation was interpreted by the Honourable Supreme Court in the case of I.A. Sharwani v. Government of Pakistan and others (supra) as an authority competent to make orders in respect of the terms and conditions of civil servants. Applying this criteria to the facts of the present case it would appear that the person who was competent to suspend the plaintiff was not the defendant No,4 who is the Additional Collector of Customs, but the Collector of Customs i,e,, defendant No,3 or for that matter the Chairman Central Board of Revenue. As much is readily ascertainable from a perusal of SRO 429(1) 98, dated 30-4-1998 whereby the Competent Authority in terms of Rule 2(2) and (3) in relation to Government Servants holding posts in BPS 3 to 16 or equivalent is the Head of the attached Department or Head of the Subordinate office. As much is office. As much is also admitted before myself by the law officer of the Customs Department, who nevertheless attempted to justify the suspension order on the basis that it had been endorsed by the Collector of Customs. In my view, however, this position cannot be accepted in view of the clear cut provision of the law that only the competent Authority, in this case, the Collector of Customs had the jurisdiction to suspend the plaintiff. In view of the foregoing, in my opinion this Court has the jurisdiction to entertain the suit.
On the merits of the case it would be seen that the plaintiff was suspended on 12-10-1998 and since then no progress has been made. Neither has he been issued a charge-sheet and nor any other inquiry made in the matter as per Rules. This in my view is a blatant violation of the plaintiffs fundamental rights as enshrined in the Constitution viz Articles 4 and 14 viz to enjoy the protection of law and the inviolability of his dignity. Consequently in my view it would be in the interest of justice to remand the matter back to the Customs Authorities with a direction to finalize the plaintiff's case within one month from today as per Rules. The plaintiff is also reinstated in Service with immediate effect. With this observation the suit stands disposed of as only legal issues are involved which have been heard and decided by myself.