' CH. IJAZ AHMAD, J.---We intend to decide the following writ petitions by one consolidated order having similar facts and law: ' W.Ps. Nos. 14771, 14772, 14773, 14774, 15016, 8605, 8094 of 1999, 11621 of 2000, 14642, 15276, 15310, 15709, 16055, 17730, 17881, 17883, 17903, 17909, 18028, 18029, 18084, 18120, 18398, 18495, 18568, 18570, 18617, 18623, 18255, 18188, 18189, 18199, 17871, 19031, 18961, 19011, 19304, 18979, 19689, 19655, 13570, 14095, 14388, 14226, 20070, 20074, 20227, 20392, 20042, 21143, 19994, 17807 and 23461 of 1999, 7970, 7707, 13348, 8439 and 8440 of 2000, 23480 of 1996.
' Brief facts out of which the present Writ petitions arise are that respondents passed the order of premature retirement of all the petitioners. Petitioners challenged the vires of order of their premature retirement through these Constitutional petitions coupled with the prayer that provisions of section 17(1A)(a) of Pakistan WAPDA Act, 1958 be declared as ultra vires to the Constitutional provisions and be struck down.
2. Learned counsel for the petitioners submit that Section 17(1A)(a) of WAPDA Act 1958 conferred unlimited power to the respondent-authority without providing any guidelines for exercise of such drastic powers. Therefore, provision is ex-facie discriminatory and capable of being misused.
Therefore, the aforesaid provision of law is ultra vires of Articles 2-A, 4, 9, 14, 25, 37(e) and 38(b) of the Constitution of Islamic Republic of Pakistan. In support of their contention they relied upon Messrs Benazir Bhutto's case (PLD 1988 SC 416), and PLD 1994 SC 738 (Pir Sabir Shah's case). They further submit that section 17(1A) is also in violation of the law laid down by the Hon'ble Supreme Court in Shariat Appellant Bench. In support of their contention, they relied upon Pakistan and others v. Public at Large and others (PLD 1987 SC 304). They further submit that under the provisions of WAPDA Act there are three parallel modes for taking action against the WAPDA employees as is envisaged by section 17(1A)(b) and section 17(1A)(a). They further submit that Service Tribunal has no jurisdiction to struck down the provisions of WAPDA Act. They further urged that President had no authority to re-enact the Ordinance after four months. In support of their contention they relied upon Collector of Customs Karachi vs. Messrs New Electronics Ltd. (PLD 1994 SC 363). They further urged that provisions of Ordinance are in conflict with the injunctions of Islam. Therefore, same are liable to be struck down.
3. Learned counsel for the respondent submits that writ petitions are not maintainable by virtue of Article 212 read with Section 4 of the Service Tribunal Act. He further submits that number of petitioners whose cases were exactly similar; those petitioners had withdrawn their writ petitions as this Court allowed them to withdraw the writ petitions to avail the proper remedy under the law as is evident by the order of this Court in W.P.No, 1658 of 1999. He further submits that petitioners' counsel failed to point out that any provision of the Ordinance in question is hit by any fundamental right of the petitioners guaranteed by the Constitution in Chapter II. He further submits that Ordinance No, 19 and 20 were challenged in Constitutional petitions which were not found inflict with any of the provisions of the Constitution. The judgment of the High Court was upheld by the Hon' ble Supreme Court in Nisar Ahmad's case (1999 SCM R 1338). He further submits that the provisions of the Ordinance are not in conflict with injunctions of Islam.
4. We have considered the contentions of the learned counsel for the parties and perused the record ourselves. The contention of the learned counsel for the petitioners that provisions are in conflict with injunctions of Islam and are hit by principle of natural justice has no force. In arriving to this conclusion, we are fortified by the law laid down by the Hon'ble Supreme Court in Muhammad Ibrahim Mangrio's case (2001 SCM R 848) and the relevant observation is as follows: "Before parting with this matter, we may observe that the arguments addressed on behalf of the petitioners revolving around the case of Pakistan v. Public at Large (supra) are not quite in order.
The operative part of the judgment in the precedent case reads thus: ' The provisions of the Statutes and statutory rules specified below, under challenge, in these appeals, are found to be repugnant to the Injunctions of Islam; in so far as they do not provide for due notice of the action proposed to be taken and opportunity of showing cause against such action:
(i) Section 13, clauses (i) and (ii) of Civil Servants Act, 1973.
(ii) Section 12, clauses (i) and (ii) of Punjab Civil Servants Act, 1973.
(iii) Section 13, clause (i) of Sindh Civil Servants Act, 1973.
(iv) Section 13, clauses (i) and (ii) of Balochistan Civil Servants Act, 1974.
(v) Section 13, clause (i) of the N.W.F.P Civil Servants Act, 1973.
(vi) Sub-rule (3) of Rule 44 of Pakistan Cantonment Servants Rules, 1954 framed under the Cantonment Act, 1924' ."
' It is not even so much as orally pleaded by the learned counsel appearing on behalf of the petitioners that either subsections (1-A) and (1-B) to section 17 of WAPDA Act have been declared to be against the tenets of Islam or that even any such effort has been made on behalf of the petitioners to obtain such directions from the Federal. Shariat Court under part VII, Chapter 3-A of the Constitution.
' This Court has no jurisdiction to declare the Ordinance against the Injuctions of Islam by virtue of Article 203-G as per law laid down by the Division Bench of this Court in Muhammad Ramzan's case (2001 CLC 158). Certain amendments were made by the respondents in the provisions of the WAPDA Act whereby inter alia subsection (1A) of section 17 has been incorporated and substituted, which was challenged before the Hon' able Supreme Court under Article 184(3) of Constitution and the Hon'ble Supreme Court found that provisions are not in conflict with any provision of the Constitution in Nisar Ahmed's case (1999 SCM R 1338) and the relevant obsepation is as follows: "As regards the amendments in the provisions of the WAPDA Act, whereby, inter alia, subsection (1- A) of section 17 has been incorporated and substituted, it may be observed that more or less identical provision has been on the statute for quite considerable period, action whereunder has been consistently upheld by this Court, inter alia, in the following cases:
(i) Pakistan. WAPDA v. Ahmed. Nawaz 1986 SCM R 571,
(ii) Waseem Ahmed Khan v. WAPDA 1997 SCM R 2000, and
(iii) WAPDA v. Sikandar Ali Abro 1998 SCM R 137.
' Furthermore, prima facie, we have not been able to find any violations of any Constitutional provision by the amendment introduced by Ordinance XX of 1998."
' It is admitted fact that National Assembly and Provincial Assemblies are not functioning at present moment. In such situation, the President of Pakistan or the Governor has the jurisdiction to promulgate or re-enact the Ordinance during this period. In arriving to this conclusion we are fortified by the law laid down by the Hon'ble Supreme Court in Collector of Customs Karachi and others v. Messrs New Electronics (Pvt.) Ltd. (PLD 1994 SC 363) and the relevant observation is hereunder: "But if the National Assembly stands dissolved and its elections could not take place within the stipulated period of 90 days as provided in clause (5) of Article 48 of the Constitution for a reason not attributable to the President and such delay is found by the competent Court justifiable, the President will be competent to re-enact an Ordinance. Shafiur Rahman, J. In his above-quoted opinion has rightly pointed out that there cannot be a legislative vacuum in the interregnum between the date of dissolution and the re-constitution of the Assembly. A State cannot be run if for certain period there is no legislative power vested in any authority to legislate on a particular subject."
' Provisions of sections 17 and 18 of WAPDA Act were challenged before the Federal Shariat Court that the same are in violation of injunctions of Islam which were not declared unlslamic by the Federal Shariat Court reported as PLD 1984 FSC 200 in re-Water and Power Development Authority and the relevant observation is reproduced hereunder: "48. The Holy Qur'an and the Sunah as such do not directly provide for such protection for the employees nor the judgment of this Court on section 13 (i) and (ii) of the Civil Servants Act, 1973 was based upon such direct protection. The reasoning in support of the directions issued under that Act was entirely different. It shall be considered in details in another context in this judgment. It was for this reason that in the case of M. Daryyab Yousaf Qureshi v. Chairman WAPDA (PLD 1983 FSC 17) it was held while considering the vires of section 17 of West Pakistan Water and Power Development Authority Act XXXI of 1958 that Sharia has given much flexibility to the relationship of employer and employee which is a contractual relationship and in that relationship the main guarantees given by Sharia to an employee are:
(i) The immediate payment of his wages.
(ii) Strict adherence to the terms of contract.
(iii) Abstinence from making his work hard and unbearable.
49. Section 17 was not therefore, held to be repugnant to the Holy Qur'an and the Sunnah of the Holy. Prophet. (p.b.u.h.).
50. One of the grounds of safeguard of Civil servants' rights is that the Government is under a duty to provide employment to people and consequently it cannot throw out its servants except for cause and there is ample justification in Sharia for this.
51. This principle cannot apply to private servants or servants other than civil servants unless any law is made for safeguard of their interest or service tenure.
52. Applying this principle it would be clear that the service of Cantonment Board as constituted under the authority of Cantonments Act 11 of 1924 which is a local authority or of the WAPDA and universities which are Statutory Corporations cannot be held to be entitled in Sharia to any other safeguard except safeguards pointed out in the above judgment of Daryab Yousaf Qureshi v.
Chairman WAPDA (PLD 1983 FSC 17)."
' It is recent trend in administrative justice to adopt shorter method of Enquiries for avoidance of unnecessary delay, qua the final decision.
' In arriving to this conclusion we are fortified by the law laid down by the Hon'ble Supreme Court in Bashir Ahmad's case (1991 SCM R 2093). The judgments cited by the learned counsel for the petitioners are distinguished on facts and law.
' In view of what has been discussed above, we do not find that any provision of Ordinance is in conflict with any provision of the Constitution, and these Constitution Petitions have no merits and the same are dismissed.