' S.A. RABBANI, J.---Appellants are employees serving in Karachi Building Control Authority. On the charge of misconduct, they were suspended and an enquiry was ordered and conducted. Against this action, they filed Suit No,74 of 1997, in the High Court for declaration and permanent injunction.
The learned Single Judge dealing with the suit, rejected the plaint under Order VII, Rule 11, C.P.C., in view of the bar provided in Article 212 of the Constitution. With this rejection of the plaint, costs of Rs,2,000 was imposed on each plaintiff, to be paid to KDA and KBCA with a direction to them to buy computer for their legal departments.
2. This order, passed on 15-6-2000, has been called in question by way of present appeal. Mr. Abid Zuberi, learned counsel for the appellants, submitted that there can be no cavil with the proposition that in respect of an issue relating to the terms and conditions of service of a civil servant, Service Tribunal has exclusive jurisdiction, provided there is a final order, about it, passed by the competent authority. According to him, in the present case, there is no final order that could be challenged before the Tribunal. He submitted that the Enquiry Officer appointed in this case was not a competent ,person to carry out the enquiry, and the only relief sought at the time, when 'issue regarding maintainability of suit was heard, was that the enquiry report was not lawful and was based on malice and was arbitrary, discretionary and violative of the rules of natural justice, and this could not have been challenged before the Tribunal.
3.. Mr. Zuberi submitted that it was neither an interim nor a final order and, therefore, the principle laid down in the case of Abdul Bari (PLD 1981 Kar. 290), does not apply to this case. He further contended that no amendment has been made by the Province to include appeal against an interim order within the jurisdiction of the Provincial Service Tribunal. He relied upon the case of Moeenul Islam, reported in 2000 PLC (C.S.) 1172 wherein it was observed that where the impugned action was not a final order, the jurisdiction of the Service Tribunal was barred under section 4 of the Sindh Civil Service Tribunals Act, and as no remedy was provided, the petition was maintainable. The authority is, obviously, not helpful, because of the distinguishable facts. In that case, a notification, withdrawing temporarily, the earlier notification in respect of the promotion of the petitioner, was challenged. Moreover, it was a Constitution Petition, and not a civil suit, and was held to be maintainable for the reason that no other legal remedy was available. If this is applied in the present case, the suit would not be maintainable.
4. It has been contended that the appellants cannot challenge the enquiry report before the Service Tribunal or any other forum, hence the suit was maintainable. The case of I.A. Sherwani v.
Federation of Pakistan (1991 SCMR 1041) has been relied upon by the learned counsel. It was held in that case that in case Service Tribunal does not have jurisdiction to adjudicate upon a particular type of grievance, the jurisdiction of Court remains intact.
5. A distinguishable feature is that the case before the Supreme Court was relating to petitions filed under Article 184(3) of the Constitution, whereas in the present case the proceedings were initiated by way of a civil suit. Whether the Service Tribunal has jurisdiction to adjudicate upon the grievance in the present case, shall have to be determined in the light of the principle given in the case of Abdul Bari (RD 1981 Karachi 290) in view of the circumstances of the case. The grievance relates to a disciplinary enquiry against the appellants that has, naturally and logically, to culminate in a final order, that would be challengeable before the Service Tribunal.
6. Mr. Muhammad Sarwar Khan, Additional Advocate-General, Sindh, relied upon the case of Abdul Bari (PLD 1981 Karachi 290). It was held in that case that actions or orders in the nature of interlocutory steps and germane to the final order appealable before the Tribunal, will also be outside the jurisdiction of the Court.
7. In the present case, the steps challenged include suspension of the appellants, enquiry conducted and its report and the recommendations of the Enquiry Officer. These actions are patently steps germane to a final order that may be challenged in appeal before the Service Tribunal. The bar thus applies to the present case. We are, therefore, unable to differ with the finding of the learned Single Judge. We feel, however, that the appellants were not liable to pay costs imposed upon them because they are responsible only for presentation of the plaint, which is not an act liable for imposition of any penalty by way of specified costs. The order imposing costs is accordingly set aside. The appeal is dismissed in respect of the main relief. /order accordingly.