' This petition and the Connected Petitions bearing Nos.391, 392, 393, 394, 644, 645, 663, 664, 665, 667, 668, 669, 670, 671, 677, 687, 688, 689, 712, 713 and 714 of 2001, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, involving a common question of law and fact are disposed of through this single judgment.
2. The petitioners in these petitions being employees of the Federal Government are under the controlling authority of Central Board of Revenue (Revenue Division), Government of Pakistan, Islamabad. The Chairman, Central Board of Revenue, in pursuance of Establishment Division S.R.O.
No,281(I)/2000 dated 27-5-2000 delegated his power available to him under Removal from Service (Special Powers) Ordinance, 2000 (Ordinance No,XVII of 2000) to all the Collectors of Customs, Sales Tax and Central Excise of the different Collectorates in Pakistan. Consequently, the petitioners in these petitions were placed under suspension by the concerned Collectorates under section 4 of the ibid. Ordinance initially for a period of six months through the separate orders passed on different dates in May, 2000, and on expiry of this period, they were again placed under suspension for another period of six months vide the impugned orders passed in November, 2000..The petitioners have challenged the validity of the orders in question, inter alia, on the following grounds:--
(a) That the orders of their suspension are ultra wires to the Removal from Service (Special Powers)
Ordinance, 2000, promulgated by the President of Pakistan.
(b) That no person in the service of Pakistan can be put under suspension under section 4 (ibid).
Ordinance unless at the first instance an action under subsection (1) of section 3 of the said Ordinance is proposed.
(c) That issue of show-cause notices under subsection (2) of section 3 of Removal from Service (Special Powers) Ordinance, 2000, was necessary before issue of suspension orders under section 4 of the said Ordinance.
(d) That since an Inquiry Officer or the Inquiry Committee under section 5 of the said Ordinance for conducting an inquiry into the conduct of a person who was required to be proceeded against for an action under section 3(1) of the Ordinance was not appointed before issue of show-cause notices, therefore, the suspension orders would have no legal effect. He added that in case such an Inquiry Officer or the Inquiry Committee was appointed which failed to submit the findings and recommendations to the competent authority within twenty-five days of the initiation of an inquiry, the suspension orders would render illegal.
3. Before dilating upon the legality of the orders under challenge which have been passed in exercise of powers under the Removal from Service (Special Powers) Ordinance, 2000, it is essential to determine the question relating to the jurisdiction of this Court to entertain and adjudicate such matters as under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, the jurisdiction of this Court is barred in all matters relating to the terms and conditions of a civil servant which is subject to the satisfaction of the following conditions:-
(i) That the matter relates to the, terms and conditions of service of a civil servant.
(ii) That as provided under Article 212 of the Constitution, the Service Tribunal has been established to adjudicate such matters.
4. Mr. Muhammad Akram Sheikh, Senior Advocate, who represents the petitioners in Writ Petition No,391 of 2001 to Writ Petitions Nos. 394, 645 of 2001 and 713 of 2001, has argued that the bar of jurisdiction under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, is not attracted in the cases in hand and in support thereof raised the following contentions:-
(a) That since no appeal is provided under section 10 of Removal from Service (Special Powers)
Ordinance, 2000, against the orders of suspension passed under section 4 of the said Ordinance, therefore, the petitioners have no alternate remedy to challenge the said order except to invoke the Constitutional jurisdiction of this Court.
(b) That the orders of suspension of the petitioners having been passed in excess of the powers conferred under the Ordinance in question are without lawful authority and despite the same being an interim order would be subject to the judicial review of this Court.
(c) That the appeal under section 10 of the Ordinance is provided only against the final order passed under section 9 of the said Ordinance before the Service Tribunal established under the Service Tribunals Act, 1973, and the Ordinance in question because of its special character having overriding effect on other Service Laws in the filed provided no Forum of appeal against an order passed under section 4 of the (ibid) Ordinance. Consequently, the petitioners would not be in a position to file an appeal under section 4 of the Service Tribunals Act, 1973, before the Federal Service Tribunal.
(d) That the orders having been passed in colourable exercise of power and being tainted with mala fide were not immune from challenging before this Court in its Constitutional jurisdiction.
5. Learned counsel while placing reliance on an unreported judgment of the High Court of Sindh at Karachi in Suit No,765 of 2000 and Constitutional Petition 1861 of 2000, contended that this Court is not absolutely debarred from exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, in service matters and instead it is ousted only in respect of the matters to which the jurisdiction of an Administrative Court or a Tribunal established under. Law extends. He added that undoubtedly the matters relating to the terms and conditions of the service of persons who are or have been in the service of Pakistan including the disciplinary matters are not adjudicatable by this Court in its Constitutional jurisdiction and that the Administrative Courts or Tribunal have the exclusive jurisdiction in such matters, but the orders of suspension of a civil servant under Removal from Service (Special Powers) Ordinance, 2000, would neither as such fall within the category of matters falling within the exclusive jurisdiction of Service Tribunal nor it would he challengeable by way of an appeal by an aggrieved person before the Service Tribunal.
However, the learned counsel for the petitioners on the strength of judgment reported in Mujeebullah Aijaz v. Director-General, Telephone and Telegraph Department and 2 others (PLD 1980 Quetta 58) emphasized that ouster of jurisdiction created by Article 212 of the Constitution would be subject to the establishment of Court or Tribunal under an Act of Parliament and that such an Act should necessarily relate to the terms and conditions of service of a civil servant including the disciplinary matter and thus, the jurisdiction of the Administrative Court or Tribunal is only confined to the matters to which they are conferred exclusive jurisdiction and, therefore, the bar of Article 212 of the Constitution being not absolute, the jurisdiction of this Court under Article 199 of the Constitution is not curtailed to entertain the matters not falling within the exclusive jurisdiction of Service Tribunal. Learned counsel has also placed reliance on I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041) wherein it was held that the jurisdiction of the High Court is excluded only in respect of the cases in which the Service ' Tribunal has the exclusive jurisdiction and if the Service Tribunal has no jurisdiction in a particular matter, the jurisdiction of this Courts would intact.
6. Mr. Kowkab Iqbal, Advocate, representing the petitioners in Writ Petitions Nos. 644, 645, 663, 664, 665, 666, 667, 668, 669, 670, 671, 687, 688 and 689 of 2001 contended that if the order of suspension is an active order in its character, it would be termed as an interim order and such order may not be challengeable but if the order of suspension by inception has assumed the character of a final order and was passive order would always be challengeable. The learned counsel argued that since no appeal is provided against an order of suspension, therefore, the same for all practical purpose would be deemed to be a final order and the petitioners have no alternate remedy to challenge the same, therefore, the bar of the Article 212 of the Constitution would not take away the jurisdiction of this Court under Article 199 of the Constitution in the matter.
7. Learned counsel representing the petitioners in the remaining writ petitions have adopted the arguments of Messrs Muhammad Akram Sheikh and Mr. Kowkab Iqbal, Advocates.
8. Mr. Mansoor Ahmad, learned Deputy Attorney-General assisted by Raja Iftkhar Ahmad Javed, Standing Counsel on the contrary has argued that Civil Servant Act, 1973, and the Service Tribunals Act, 1973, as amended would not debar the petitioners from filing an appeal against the orders of suspension before the Service Tribunal as the word "final order" has been omitted from section 4 of the Service Tribunals Act, 1973, and consequently the petitioners having an alternate remedy of appeal before the Service Tribunal cannot invoke the Constitutional jurisdiction of this Court. He next submitted that the suspension of a civil servant being related to the terms and conditions of his service, is not adjudicateable by this Court due to bar contained under Article 212 of the Constitution and the Service Tribunal shall have the exclusive jurisdiction to entertain such matters.
The learned Deputy Attorney-General has further submitted that the judgment of the High Court of Sindh referred to above on the subject is under challenge before the apex Court in Constitutional Petitions Nos.263, 264 and 265 of 2000 and thus, the question relating to the exercise of jurisdiction under Article 199 of the Constitution by the High Court in the matter is sub judice before the apex Court. ' He while placing reliance on Khalid Mahmood Wattoo v. Government of Punjab (1998 SCMR 2280) has contended that the law laid down by the apex Court on the subject has escaped the notice of learned Judges of the High Court of Sindh at Karachi in the above referred cases.
9. There is no cavil to the proposition that under the Removal from Service (Special Powers)
Ordinance, 2000, the competent Authority is empowered to proceed against a person, who being in service as defined therein is discharging function in connection with the affairs of Federation in the manner specified therein and such person cannot claim that the procedure for the disciplinary action as provided under the Government Servants (Efficiency and Discipline) Rules, 1973, must be followed for action under the ibid, Ordinance. In case an action proposed under the abovesaid Ordinance ended in the form of penalty provided thereunder, a right of representation or review, as the case may be, before the Authority nominated under section 9 of the Ordinance and a right of appeal under section 10 of the said Ordinance is provided before the Service Tribunal established under the law as provided under Article 212 of the Constitution is available. The appeal against an appealable order as provided under Civil Servant Act, 1973, read with Government Servants (Efficiency and Discipline) Rules, 1973, is provided by virtue of section 4 of the Service Tribunals Act, 1973, whereas such an order passed under the removal from Service (Special Powers) Ordinance, 2000, can be challenged by way of an appeal before the Service Tribunal under section 10 of the said Ordinance. Thus, notwithstanding the exercise of powers by the competent Authority either under Civil Servant Act, 1973, read with Government Servants (Efficiency and Discipline) Rules, 1973, or under Removal from Service (Special Powers) Ordinance, 2000, the form of appeal is the Service Tribunal.
10. For the purpose of determination of essential question relating to the maintainability of the present Constitution petitions against the impugned orders and the exercise of jurisdiction by this Court in the matter, the examination of the relevant provisions of the Removal from Service (Special Powers) Ordinance, 2000, Civil Servant Act, 1973, and Service Tribunals Act, 1973, are necessary. Section 3 of subsection (1) of Removal from Service (Special Powers) Ordinance, 2000, provides as under:-- "Section 3(1).--That where in the opinion of the competent Authority, a person in Government or Corporation service, is-
(a) inefficient, or ceased to be efficient for any reason; or (is guilty of being habitually absent from duty without prior approval of leave, or)
(b) guilty of misconduct; or
(c) corrupt, or may reasonably be considered as corrupt, because---
(i) he, or any of his dependents or any other person, through him or his behalf, is in possession of pecuniary (sources) or of property, for which he cannot reasonably account for, and which are disproportionate to his known sources of income; or
(ii) he has assumed a style of living beyond his known sources of income; or
(iii) he has a persistent reputation of being corrupt; or
(iv) he has entered into plea bargaining under any law for the time being in force and has returned the assets or gains acquired through corruption or corrupt practices voluntarily; or]
(d) engaged, or is reasonably believed to be engaged, in subversive activities, and his retention in service is prejudicial to national security or he is guilty of disclosure of official secrets to any unauthorised person; or
(e) found to have been appointed or promoted on extraneous grounds in violation of law and the relevant rules, the competent authority, after inquiry by the Committee constituted under section 5, may, notwithstanding anything contained in any law or the terms and conditions of service of such person, by order in writing dismiss or remove such person from service, compulsorily retire from service or reduce him to lower post or pay scale or impose one or more minor penalties as prescribed in the Government Servants (Efficiency & Discipline) Rules, 1973, made under section 25 of Civil Servant Act, 1973."
11. The competent authority as a result of conclusion of an inquiry by an Inquiry Officer or Inquiry Committee, as the case may, be in the light of the recommendations made in the said inquiry can award punishment to a person as provided under the Ordinance and before that can also put a person under suspension under section 4 of the Ordinance, in case an action is proposed to be taken against such a person under subsection (1) of section 3 of the Ordinance. Section 4 of the Ordinance provides as under:-- "Section 4.--Suspension.--A person against whom action is proposed to be taken under subsection
(1) of section 3 may be placed under suspension with immediate effect if, in the opinion of the competent authority, suspension is necessary or expedient: ' Provided that the competent Authority may, in an appropriate case, for reasons to be recorded in writing, instead of placing such person under suspension, require him to proceed on such leave as may be admissible to him from such date as may be specified by the competent authority."
12. The plain reading of sections 3 and 4 of the ibid Ordinance would show that the competent authority in his satisfaction after passing an order under sections 3 and 4 of the Ordinance, may under section 5 appoint an Inquiry Officer or Inquiry Committee to scrutinize the conduct of a person and in the light of recommendation of said Inquiry Officer or Inquiry Committee, the said Authority may pass an appropriate order. In case, a person is dismissed, removed or compulsory retired from service or reduced to a lower scale or against whom an order has been made under section 3 of the Ordinance by the competent Authority, he can file a representation under section 9 of the Ordinance to Chief Executive within fifteen days and if such an order is passed by the Chief Executive, a review can be filed within the said period. However, any person aggrieved of a final order under section 9 of the Ordinance may prefer an appeal under section 10 of the said Ordinance within thirty days to the Service Tribunal established under Service Tribunal Act, 1973.
Section 11 of the Ordinance provides that the Ordinance shall have effect notwithstanding anything to the contrary contained in the Civil Servants Act, 1973, and the rules made thereunder or any other law for the time being in force except as provided under section 13 of the ibid Ordinance that the proceedings pending under the Civil Servants Act, 1973, and the rules made thereunder on the promulgation of Ordinance shall remain continue.
13. Under the scheme of law, a person aggrieved of an order under the Removal from Service (Special Powers) Ordinance, 2000, or an order under Civil Servants Act, 1973, or the Rules made thereunder is entitled to file an appeal before the Service Tribunal under section 4 of the Service Tribunals Act, 1973. Section 4 of the said Act as amended provides as under:- "Section 4. Appeal to Tribunals.---(1) Any civil servant aggrieved by any order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him [or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal:] ' Provided that:
(a) where an appeal, review or representation to a department authority is provided under the Civil Servants Act, 1973, or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was preferred;
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade; [and
(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969].
(2) Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred--
(a) in the case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time-scale, or to a lower stage in a time-scale, to a Tribunal referred to in subsection (3) of section 3; and
(b) in any other case, to a Tribunal referred to subsection (7) of that section.
14. Undoubtedly, the order of suspension is not a formal order for the purpose of section 10 of the Ordinance in question or under the Civil Servants Act, 1973, but under the amended section 4 of the Service Tribunals Act, 1973, every order passed by the competent Authority in relation to the terms and conditions of a civil servant or a person who is subject to the jurisdiction of the Tribunal is appealable and consequently a suspension order passed either under Civil Servants Act, 1973, or under Removal from Service (Special Powers) Ordinance, 2000, would be appealable before the Service Tribunal as contended by the learned Deputy Attorney-General. The contention of the learned counsel for the petitioners that under section 10 of the Ordinance a right of appeal is provided only against a final order and the interim orders under the said Ordinance are not challengeable before the Service Tribunal apparently appeals to mind, but the Tribunal is not debarred to entertain an appeal against such an order under section 4 of the Service Tribunals Act, 1973. The suspension of a person from service being not separable from his terms and conditions of service and the grievance of the petitioners relating to their service by virtue of Article 212 of the Constitution would exclusively be adjudicateable by the Federal Service Tribunal established under Service Tribunals Act, 1973, and consequently the argument that the orders of suspension passed under the Removal from Service (Special Powers) Ordinance, 2000, being not the final order would not be challengeable before the Service Tribunal has no force.
15. The question under examination is not only confined to the extent of availability of the right of appeal to a person aggrieved of an order passed under section 4 of the Removal from Service (Special Powers)' Ordinance, 2000 or Civil Servants Act, 1973, rather primarily it relates to the jurisdiction of the High Court to entertain such petitions and adjudicate the matter relating to the terms and conditions of a civil servant. There can be no departure to the principle that the power of judicial review under Article 199 of the Constitution in service matters can only be exercised subject to Article 212 of the Constitution and this is settled law that a person who is subject to the Civil Servants Act, 1973, and Removal from Service (Special Powers) Ordinance, 2000, cannot invoke the jurisdiction of this Court either E on the ground of violation of the provisions of the Statute or mala fide taking the plea that the Tribunal is not competent to entertain appeal on such grounds. Under Article 212. Of the Constitution, the Service Tribunal has exclusive jurisdiction in a case, which is 'founded on the terms and conditions of service even if involves a question of violation of law, mala fide or is challengeable on any other ground. In any case, since the orders of suspension fall within the ambit of terms and conditions of service, F therefore, it will not be adjudicateable by the High Court in its Constitutional jurisdiction due to bar of jurisdiction under Article 212 of the Constitution notwithstanding the fact either it is challengeable by way of an appeal before the Service Tribunal or not. The non-availability of an alternate remedy to a civil servant against a specific order would not vest jurisdiction to the High Court under Article 199 of the Constitution or remove the bar of jurisdiction G under Article 212 of the Constitution. This may be observed that the order of suspension passed under the Removal from Service (Special Powers) Ordinance, 2000, despite being an interim order is not challengeable before this Court. For the following reasons:--
(a) It having direct nexus with the terms and conditions of service is not challengeable before the High Court due to bar of jurisdiction under Article 212 of the Constitution.
(b) There is no bar under section 4 of the Service Tribunals Act, 1973, to challenge such an order through an appeal before the Service Tribunal.
(c) In any case, an interim order is not challengeable before this Court under Article 199 of the Constitution.
16. The apex Court in Khalid Mahmood Wattoo v. Government of Punjab and others (1998 SCMR 2280), has held as under:- "The consistent view of this Court has been that a writ petition or Constitution petition under Article 199 of the Constitution is not maintainable by a civil servant in relation to any matter connected with the terms and conditions of service in respect whereof the Service Tribunal has jurisdiction in view of the provisions contained in Article 212 of the Constitution."
' It may be pointed out that the apex Court having considered the cases cited by the learned counsel in support of this petition in the abovesaid case made the following observations:-- "With all due respect for the learned Judges, we are unable to agree with the proposition. In the first place before a Court could examine whether an order is really of the nature mentioned above it must have jurisdiction to undertake on examination and determine the question. As soon as it is shown that a particular order of the departmental authority lies within the ambit of the Tribunal, the jurisdiction of the Civil Courts including the High Court is ipso facto ousted as a result of the barring provisions of Article 212. The High Court would, therefore, not be competent on any ground to examine the validity of an order which falls within the jurisdiction of the Tribunal. The decisions on which reliance seems to have been placed for the view canvassed in support of the argument related to the ouster of jurisdiction under sub-Constitutional legislation and in relation to finality clauses in Statutes. Apparently in such cases the power of judicial review available to the High Court under Article 199 is not affected and, therefore, recourse can be had to the extraordinary supervisory jurisdiction of the High Court to challenge such orders on the ground of nullity. But the situation under Article 212 is entirely different. The ouster contemplated under that Article is of the Constitutional nature and, therefore, of necessity curtails jurisdiction of the High Court totally in respect of the subject-matter committed to the Service Tribunals."
17. In the same judgment, the apex Court while approving the observation relating to the jurisdiction of the High Court made in a case of Amanul Mulk v. Government of N.-W.F.P. Decided by the Full Bench of the Peshawar High Court, observed that the orders which are mala fide, ultra vires or coram non judice or falling within the ambit of Service Tribunal are not challengeable before the High Court in its Constitutional jurisdiction. The observation in the above referred case decided by the Peshawar High Court was as under:-- "In our opinion all that is necessary that the order to be impugned should be an order of the departmental authority and if it is an order of such authority and the Tribunal has been conferred jurisdiction by the law under which it is established, the jurisdiction of the High Court is totally ousted. As a consequence, wherever the jurisdiction of the Tribunal exists, it is not open to the aggrieved civil servant to invoke the jurisdiction of the High Court under Article 199 of the Constitution 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."
18. In this behalf, reference can also be made to Khalilur Rebman and others v. Government of Pakistan and others (PLD 1981 Karachi 750). The relevant portion of the said judgment is reproduced as under:- "Such being the scope of the powers of Service Tribunal, we have no manner of doubt that all the grounds of attack urged before the Tribunal including the grounds of mala fide, ultra vires and coram non judice or within the jurisdiction of the Service Tribunal to determine and, therefore, it follows that the High Court will have no jurisdiction to grant relief on these grounds in respect of order appealable before the Service Tribunal. Incidentally we may also refer to a contention raised before us on the law laid down in Saeed Ahmed Khan's case that even a Constitutional bar on the scrutiny of orders based during the illegimate rules under the Martial Law promulgated on 25th March, 1989, was not held to oust the jurisdiction of the High Court in respect of orders mala fide or in the nature of coram non judice. The real import of the rule laid down in that case has been fully explained in the cited case of Yasme en Qureshi and we do not wish to burden this judgment with further discussion on the untenability of this contention. Suffice it to say that the statement of law made in Saeed Ahmed Khan's case relates to the interpretation of a validation clause in the Constitution, which in our humble view is not at all pertinent to the situation and context of the present controversy which deals with the ouster of jurisdiction by a clear Constitutional provisions.
If the entire field of controversy that could possibly arise in respect of an order passed by a departmental Authority committed under the Constitution to the exclusive jurisdiction of the Service Tribunal, then Article 212 clearly bars the jurisdiction of this Court to entertain any part of such controversy in any proceedings. Their lordship also emphasized in the cited case of Yasmeen Qureshi, the distinction between the scope of jurisdiction of the High Court by way of judicial review and the wide scope of the appellate jurisdiction of the Service Tribunal."
19. In the light of the law laid down by the apex Court in Khalid Mahmood Wattoo's case, the judgment in Ghulam Mustafa Khar's case (PLD 1989 SC 26) will not be applicable in service matters to extend the jurisdiction of this Court on the ground of mala fide which are exclusively adjudicateable by the Service Tribunal as the order impugned is only a step towards the finalization of an action under the said Ordinance. The matter is admittedly pending adjudication before the departmental authority, therefore, the same cannot be permitted to be brought before this Court in the form of parallel proceedings through these Constitution petitions. The final order in consequence to the proceedings under the Removal from Service (Special Powers) Ordinance, 2000, being challengeable before the Service Tribunal, the jurisdiction of this Court in the interlocutory orders under the said Ordinance, is not invokeable.
20. In nutshell, the conclusion is that the grievance of the petitioners in the present petitions relating to the terms and conditions of their service is not subject to the judicial review of this Court due to bar of jurisdiction and consequently these Constitution petitions under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, are not maintainable, which are accordingly dismissed in limine.