' IFTIKHAR MUHAMMAD CHAUDHRY, J.---In these petitions leave to appeal has been sought against the judgment of Lahore High Court, dated 22nd March, 2001 whereby number of writ petitions including the petitions instituted by the petitioners have been dismissed.
2. Learned counsel contended that petitioners alongwith many other civil servants serving either in the 'Income Tax Department' or 'Customs Department' have been proceeded against under the Removal From Service (Special Powers) Ordinance, 2000 (hereinafter referred to as the "Ordinance"). The Government of Pakistan Revenue Division vide Notification No,132-ITE/2000, dated 28th May, 2000 directed suspension of petitioner Muhammad Aslam (Civil Petition 1259 of 2001) alongwith 17 other officers including one Nawal Rai N.Oad, whereas vide Notification No,265- ACE.1/2000, dated 25th November, 2000 petitioner Abdul Wadood Khan (Civil Petition No,1260 of 2001) and Iftikhar Ahmad Tabassum (Civil Petition 1386 of 2001) were also placed under suspension.
According to him some of the suspended officers including Nawal Rai N., Oad, invoked jurisdiction of High Court of Sindh being High Court Appeals Nos.336, 337 and 338 of 2000. The appeals so filed by them were accepted vide judgment dated 1-12-2000. The Government of Pakistan implemented the said judgment because this Court in C.P,L.As. Nos.263 to 265 of 2001 did not interfere in the order of the High Court of Sindh. Whereas the petitioners who invoked writ jurisdiction of Lahore High Court Rawalpindi Bench against the same notifications could not get relief because their petitions have been dismissed inter alia on the ground that the order of suspension passed by the competent authority falls within the definition of terms and conditions of their service, therefore, is appealable under section 4 of the Service Tribunals Act, 1973. Learned counsel explained that under section 4 of the Ordinance the competent authority has been empowered to suspend a person against whom action under subsection (1) of section 3 of the Ordinance has been proposed and a right of appeal under section 10 to an aggrieved person who has been dismissed or removed or compulsorily retired from service or reduced to lower post or pay scale in terms of section 9 of the Ordinance has been provided. Thus, according to him against suspension order no appeal before the Service Tribunal was competent and the right of appeal being creature of law cannot be conferred upon a forum impliedly. Learned counsel also stated that there is conflict of judgments of the High Court on the point whether a suspension order can be made subject-matter of appeal under section 4 of Service Tribunals Act, 1973 or for such order which is continuing for an indefinite period relief can be claimed by an aggrieved person by invoking writ jurisdiction of the High Court.
Reference in this behalf was made to the case of Mir Shahnawaz Marri, ex-Director, Mineral Development v. Government of Balochistan through Chief Secretary, Balochistan, Civil Secretariat Quetta and 4 others (2000 PLC (C.S.) 533) wherein writ was issued in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan directing the Government to reinstate the petitioner. Whereas vide impugned judgment learned Single Judge of Lahore High Court, Rawalpindi Bench has opined that High Court has no jurisdiction to direct reinstatement of an officer who is under suspension for a long period. Learned counsel further stated that suspension for an indefinite period is considered against principles of natural justice and unfairness, therefore, High Court in exercise of Constitutional jurisdiction is competent to set aside the same as it has bee., held in the case of Allauddin v. Chief Commissioner (PLD 1959 (W.P.) Karachi 282). Referring to the case of Nawal Rai N.Oad one of the civil servants who was suspended alongwith petitioners he contended that High Court of Sindh directed his reinstatement and in compliance of the order he not only has been reinstated but has also been posted against available vacancy. However, the petitioners who are also sailing in the same boat are being treated discriminatory because their cases were at par but instead of reinstating and posting them the period of their suspension is being extended from time to time without any legal justification.
3. Mr. Muhammad Nawaz Bhatti, learned D.A.-G. Conceded that so far in the cases of the petitioners no effective departmental disciplinary proceedings have been initiated. However, proceedings against them are likely to commence shortly. Learned counsel also pointed out that Nawal Rai N.
Oad and others were reinstated in service in pursuance of judicial order passed by High Court of Sindh and the order was not conceded to by the department and to register its grievance Civil Petitions for Leave to Appeal were filed before this Court but the same have been dismissed because till then the order of High Court had been implemented. However, now a review petition has been filed which is pending consideration. He was of the opinion that as the suspension of an employee from service falls within the terms and conditions of his service according to section 16 of the Civil Servants Act, 1973, therefore, if the petitioners were aggrieved from their suspension they should have filed appeals before the Service Tribunal in view of the pronouncements of this Court in the Muhammad Sadiq Khokhar v. Engineer-in-Chief Pakistan Army G.H.Q. And another (1985 SCMR 63) Akhtar Ali v. Province of Punjab (PLD 1992 Lahore 127), and Province of Punjab and another v. Ch. Muhammad Ashraf and another (2000 PLC (C.S.) 118)
4. After hearing learned counsel for parties we are of the opinion that inter alia following points emerge for consideration:--
(1) As to whether an order of suspension passed by Competent Authority under section 4 is appealable under section 10 of the Ordinance?
(2) As to whether High Court had no jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan to set aside a suspension order which is unfair, unjust as well as contrary to the principles of natural justice and if the suspension of a civil servant falls under terms and conditions of his service then in view of the scheme of the Ordinance what remedy is available to an employee?
(3) As to whether petitioners have not been treated discriminatory because one of the civil servants who was suspended alongwith them has been reinstated in pursuance of a judicial order passed by High Court of Sindh?
(4) As to whether in the view of section 10 where right of appeal has been provided only to the extent of dismissal, removal or compulsory retirement from service or reduction to a lower post in terms of section 9 of the Ordinance, the judgment passed by this Court in 1985 SCMR 63 and 2000 PLC (C.S.) 118 requires reconsideration?
' Thus, to examine the above contentions leave to appeal is granted.
Civil Miscellaneous No,1118, 1119 and 1144 of 2001:---Learned counsel stated that these cases may be ordered to be fixed alongwith applications even during forthcoming summer vacations subject to availability of Bench because the suspension of the petitioners from service for an indefinite period is unfair, unjust as well as against the principles of natural justice. In view of the request so made by the learned counsel office may fix these cases at an early date subject to soliciting necessary approval from Hon'ble Chief Justice.