' All these petitions involve the same questions of facts and law and are therefore, being disposed of by this common judgment. The petitioners are civil servants who were holding different posts under the control and supervision of the Central Board of Revenue: On 27-5-2000, the President of Pakistan promulgated the Removal from Service (Special Powers) Ordinance, 2000, (hereinafter mentioned as the Ordinance) which, inter alia, enabled the Chief Executive or an officer or authority designated by him to cause the removal of Government servants or persons employed in Government Controlled Corporations and impose other penalties by way of disciplinary action.
2. The preamble to the Ordinance refers to the necessity of removing certain persons from Government or Corporation services in the public interest and for good governance as well as the necessity to provide for speedy disposal of such cases and matters. Section 3 laid down the grounds upon which a Government servant may be dismissed, removed, compulsorily retired or subjected to any other penalty prescribed in the Civil Servants (Efficiency and Discipline) Rules, 1973. This section also stipulates that action can be taken after serving a show-cause notice upon the person proceeded against and after holding an inquiry though in certain exceptional circumstances (enumerated in the amendments brought about in the Ordinance through Ordinance No,V of 2001), the condition of serving notice or holding an inquiry may be dispensed with. Section 4 provides that a person against whom action is proposed to be taken under section 3 may be placed under suspension if in the opinion of the competent authority suspension is necessary or expedient. Sections 5 to 7 relate to the appointments, powers and procedure of inquiry committee and section 8 speaks of order to be passed by the competent authority on the recommendations of such committee. Section 9 deals with the departmental representations and review of orders made by competent authority under section 3. Section 10 provides for an appeal to the Service Tribunal against a final order passed under section 9. Section 11 stipulates that provision of the Ordinance will override other laws.
3. Certain notifications were issued on 27-5-2000, and different officers were notified as competent authorities to take action against civil servants in various pay scales. Such "competent authorities" were also authorised to place persons under suspension for such period as they may consider appropriate. It is alleged that during the next two days i,e, 28-5-2000 and 29-5-2000 about 1000 officers under the respondent No,2 were placed under suspension for a period of six months. By a subsequent order dated 27-11-2000 the period of suspension were further extended for another six months. The petitioners who have remained under suspension for more than 8 months and have admittedly not been served with any show-cause notices or apprised of the allegations against them, have moved this Court under Article 199 of the Constitution, seeking inter alia, a declaration to the effect that the provisions of the Ordinance are ultra vires the Constitution and in any event the orders of suspension are without lawful authority.
4. Notice was issued to the learned Deputy Attorney-General who sought time to obtain instructions and thereafter a written statement representing the respondents point of view was filed in Civil Petition No,1861 of 2000. Admittedly no further proceedings after passing of the suspension order in the form of show-cause notice etc., have been taken against the petitioners nor have the ground on which action is contemplated, been disclosed to the Court. However, it has been contended that the matter relates to terms and conditions of Civil Servants and, therefore, the jurisdiction of this Court is barred. We also requested Mr. Raja Qureshi, learned Advocate- General Sindh who was present in Court on 1-2-2001 to assist the Court. Learned counsel, however, informed us on 6-2-2001 that he has been retained to represent the respondent No,2. Upon our specific query as to whether his clients were in position to give a definite time-frame within which show-cause notices for the purpose of taking further proceedings against the petitioners could be issued, he stated that according-to his instructions it was not possible to do so. Nevertheless he brought to our attention the provisions of the Removal from Service (Special Powers)
(Amendment) Ordinance, 2001 published on 3-2-2001, whereby, through two provisos inserted in section 3(2) the need to give such notice has been dispensed with when the competent authority is satisfied that it is not expedient to do so in the interest of security of Pakistan or where it is satisfied for reasons to be recorded in writing, that it is not reasonably practicable to give the accused such notice. He argued that it was possible that the competent authority had decided, in accordance with such powers, to dispense with show-cause notices. Though the contention appeared farfetched, we adjourned the matter to 13-2-2001 with the direction that the material, if any, upon and which a decision to dispense with show-cause notice have been taken be placed before the Court. On the other hand learned counsel for the petitioners pressed for passing of interim order suspending the operation of the impugned order as had been done in similar cases by the Rawlapindi Bench of the Lahore High Court. Nevertheless, considering that such an order might amount to practically allowing the petitions, we indicated to all learned counsel to be prepared to argue the whole case on 13-2-2001.
5. On 13-2-2001 Mr. Raja Qureshi placed on record a letter from the member (Tax Policy) Central Board of Revenue dated 9-2-2001, stating the CBR would not be in a position to place material against the petitioners before the Court at such short notice. It was further stated that a Petition for Leave to Appeal had been preferred against an earlier judgment of this Court dated 1-12-2000, to which one of us (Zahid Kurban Alavi, J.) was a party and it was expected that it would be taken up for hearing soon. An adjournment, therefore, was sought to enable the CBR to obtain a verdict from the Honourable Supreme Court.
6. We have carefully gone through the above judgment passed in H.C.As. Nos.336 to 338 of 2000 and found that there is little nexus between the question involved in those appeals and those in the present petitions. The respondents in those cases were appointed Officers on Special Duty, pursuant to proposed proceedings against them under the Civil Servants (Efficiency and Discipline) Rules, but no charge-sheets were served upon them. They continued to remain OSDs for about 2 years and upon having approached the High Court in its Original Civil Jurisdiction, a learned Single Judge directed their reinstatement. On appeal, being preferred by the Central Board of Revenue, the Division Bench modified the order of the Single Judge by ordering that disciplinary action should be completed within four months. It was, however, observed that since original action had been initiated under the E & D Rules no action could be taken against them under the Ordinance in view of the bar contained in section 13. We were, therefore, of the view that mere filing of a petition for leave to appeal against the above judgment was not a valid ground for staying our hands and proceeded to hear these matters.
7. Before considering the merits of the case we think it is proper to decide the question of jurisdiction first. Mr. Raja Qureshi learned counsel for the respondent argued that an order of suspension by way of prelude to a final order of removal. Compulsory retirement or other penalty under the Civil Servants Act could only be characterized as one relating to terms and conditions of service and the bar of jurisdiction of this Court under Article 212 of the Constitution would be fully attracted. Reliance was also placed on a recent unreported order of the Lahore High Court, in Writ Petition No,14567-2 (Shaher Bano v. Federation of Pakistan) where a learned Single Judge of the Lahore High Court dismissed a petition questioning the order dated 28-5-2000 on the ground that the issue raised being germane to the terms and conditions of the service of the petitioner, a petition under Article 199 of the Constitution was not maintainable. In the aforesaid order reliance was placed on an earlier judgment of the Hon'ble Supreme Court in Muhammad Sadiq Khokhar v.
Engineer-in-Chief Pakistan Army (1985 SCM R 63) where it was held that an order of suspension which attained finality could be questioned before a Service Tribunal.
8. Indeed, learned counsel is correct to the extent that ordinarily an order of suspension of a civil servant pending disciplinary action would relate to the terms and conditions of his service and it is well-settled that whenever an appeal against an order is maintainable before a Service Tribunal the jurisdiction of this Court under Article 199 of the Constitution to scrutinize the same stands ousted. Nevertheless Mr. Khalid Javed Khan, learned counsel for the petitioner argued that the bar of Article 212 of the Constitution could only apply if the impugned order could be questioned before a competent Service Tribunal and the Ordinance did not provide for an appeal against an order of suspension passed under section 4. Learned, counsel drew our attention towards the provisions of sections 9 and 10 of the Ordinance which reads as under:- "(9) Representation and review:----(1) A person who has been dismissed or removed or compulsorily retired from service or reduced to lower post or pay scale or against whom any order has been made under section 3 by the competent authority, may, within fifteen days from the date of communication of the order prefer a representation to the Chief Executive or such officer or authority as the Chief Executive may designate: ' Provided that where the order has been made by the Chief Executive such person may, within the aforesaid period, submit a review petition to the Chief Executive.
' The Chief Executive, or an officer or authority, as may be designated for the purpose by the Chief Executive, may, on consideration of the representation, review petition and any other relevant material, confirm, set aside, vary or modify the order in respect of which such representation or review petition is made within sixty days thereof.
(10) Appeal.---Notwithstanding anything contained in any other. Law for the time being in force, any person aggrieved by any final order under section 9 may, within thirty days of the order, prefer' an appeal to the Federal Service Tribunal established under the Service Tribunals Act, 1973 (LXX of 1973)."
9. A bare perusal of section 9 would show that unlike Rules 3 and 4 of the Civil Servants (Appeal)
Rules, 1977 the right to prefer a departmental appeal or representation to the Chief Executive or a designated authority is only confined against orders of dismissal, removal, compulsory retirement, reduction to a lower post or imposition of any other penalty. Section 10 relates to appeal before the Federal Service Tribunal but provides that only an appeal against a final order under section 9 may be preferred before the Tribunal. Moreover, section 11 postulates that the provision of this Ordinance are to prevail over anything to the contrary contained in the Civil Servants Act, the rules made thereunder or any other law. It is, therefore, clear that unless a final order causing removal, compulsory retirement or imposing penalty under section 3 has been passed and a representation against the same has been decided under section 9, no appeal would lie to the Service Tribunal.
10. Indeed there could be no cavil with the observations of the Hon'ble Supreme Court in Muhammad Sadiq Khokhar's case (1985 SCM R 63) that if an order of suspension had attained finality it could be questioned before the Service Tribunal and the jurisdiction of this Court would be ousted. The important distinction, however, lies in the fact that under the ordinary scheme of Civil Service Laws a departmental appeal is available against any order pertaining to the terms and conditions of service. And every order original or appellate could be questioned before a Service Tribunal. Under the Ordinance in question a departmental representation or review under section 9 is restricted to orders made under section 3 (and not section 4) and, likewise an appeal to the Service Tribunal can only be preferred against a final order passed on such representation or review. It is well-settled that the bar of jurisdiction of this Court under Article 212 of the Constitution can be attracted only if an appeal before the Service Tribunal is maintainable. If authority is needed one may refer to the celebrated judgment of the Hon'ble Supreme. Court in I.A. Sherwani v.
Federation of Pakistan (1991 SCM R 1041) and the observations in SMH Razvi and others v. Maqood Ahmed Khan and others (PLD 1981 SC 612). In view of the above, we are, with profound respect, unable to share the view of Jamshaid Ali, J. Of Lahore High Court and would hold that his Court has the jurisdiction to entertain these petitions.
11. As to the merits of the case Mr. Khalid Jawaid Khan at the very out set, stated that he would not press the question of the vires of the Ordinance. Nevertheless he raised the following contentions:--
(i) That the impugned orders were beyond the provisions of section 4 of the Ordinance.
(ii) The fact that about 1000 civil servants working under the Control, of the respondent No,2 within two days of the promulgation of the Ordinance itself indicates that such orders were passed without any serious and independent application of mind.
(iii) That the aforesaid orders having been passed without hearing the petitioners amounts to violation of the basic principle of natural justice.
(iv) The fact that the petitioners were not appraised of allegations against them despite a passage of more than 8 months since their suspension showed that no tangible material for the purpose of proceedings against them under section 3 of the Ordinance was available and their continued suspension was mala fide and ultra vires the provisions of the Ordinance;
(v) That despite their entitlement to full emoluments during period of suspension, a civil servant suffers a great deal by way of his prospects or eligibility for promotion and by way of social stigma and as such as a right to call in question any illegal order directing his suspension;
(vi) That the Ordinance is only prospective and no action thereunder could be taken in respect of any act or omission committed prior to its promulgation.. The suspension of the petitioners on 28th/29th May 2000 for anything done prior to the enforcement of the Ordinance on 27th May, 2000 was, therefore, invalid.
12. Though a number of cases were cited before us by the learned counsel for the petitioners in support of the contention raised , we do not think it is necessary to consider each and every ground urged. We nave confined ourselves to examine the question whether the continued suspension of the petitioners in the circumstances discussed above is in accordance with the requirements of the Ordinance and the law and whether such suspension furnishes an adequate ground for the petitioners to invoke the discretionary jurisdiction of this Court under Article 199 of the Constitution.
13. Mr. Raja Qureshi learned counsel for the respondent attempted to argue that the impugned order having been passed by competent authorities designated by the Chief Executive our jurisdiction to examine them stood ousted in terms of paragraph 4(2) of the Provisional Constitution Order, 1999. However, upon being reminded of the monumental decision of the Hon'ble Supreme Court in the celebrated case of Syed Zafar Ali Shah v. General Pervez Musharaf (PLD 1999 SC 869) learned counsel conceded that he could not dispute the authority of this Court to undertake a judicial review of the order but such exercise must be confined to the strict parameters of judicial review. We are inclined to agree to the extent that we cannot substitute our own opinion over that of the competent authority as regards the necessity or expediency to suspend the petitioner. Nevertheless we are required to examine that whether the impugned action was capable of being justified as having been taken for a public purpose in the bona fide exercise of public power and to examine whether the prerequisites contemplated by law for taking such action existed.
14. Before adverting to the relevant statutory provisions, it may be pertinent to refer to the following observations of the Hon'ble Supreme Court in East-End Exports, Karachi v. The Chief Controller of Imports and Exports, Rawalpindi (PLD 1965 SC 605) to understand the genesis of the expression "suspension" in the present context.
"Suspension may be a punitive suspension or one in aid of an. Enquiry. An order in the nature of punishment is always required to be preceded by a properly constituted enquiry. The other kind of suspension is designed to facilitate the due prosecution of the enquiry. Such a temporary suspension is deemed to' be an implied term in every contract of service. Section 16 of the General Clauses Act also lays down that an authority who has got power to appoint has also the power to suspend. It has therefore, been held that if an authority when holding an enquiry, is satisfied that the charge against the public servant is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude, he can suspend him pending the enquiry."
15. It is nobody's case that suspension of the petitioners was effected by way of penalty. Indeed if it were so the orders would be required to be quashed on the simple ground of being in violation of basic principle of natural justice which have not been excluded in the Ordinance. Obviously suspension in the present cases is of the second type mentioned in the above observations and this fact is augmented by the provisions of section 4 itself which reads as under:- "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."
16. Reading the aforesaid section 4 in the context of the entire scheme of the Ordinance it needs to be highlighted that the substantive power of the Government to take action and the rights of the accused employee are not very different from those available under the rules made under the Civil Servants Act. A significant difference, however, is that unlike the ordinary rules this statute is designed at taking prompt action. The preamble itself states that "it is necessary to provide for speedy disposal of such cases and for matters connected therewith...."The proviso to section 3 fixes a mandatory limit of 15 days within which a person proceeded against is to reply to show-cause notice. Section 5, unlike the E & D Rules requires an inquiry committee to make its recommendation within 30 days. Section 9 requires that a representation or even a review petition before the Chief Executive against an order of punishment under section 3 should be decided within 60 days and apparently because of this time limit an appeal against an original order to the Service Tribunal has not been provided for. Construing section 4 harmoniously with the above provisions and noting that the legislature has imposed certain time limit which are not prescribed by the ordinary rules dealing with disciplinary action against civil servant, we have reached the irresistible conclusion that suspension for an'indefinite duration was never envisaged by the Ordinance and the continued suspension of the petitioners without any further steps being taken for the purpose of taking action under section 3 is patently ultra vires the power conferred by section 4 and the scheme of the Ordinance. On the contrary we are constrained to observe that it defies the very purpose of the Ordinance. We may further add that even otherwise all public power is visited with a duty to act reasonably and justly and even when no time limit is prescribed a public functionary is required by law to perform his duty within a reasonable time. One may refer to the judgment of the Hon'ble Supreme Court in Chairman RTA v. Pakistan Mutual Insurance Company (PLD 1991 SC 14).
Therefore, the continued suspension of the petitioners for more than 8 months without proceeding with action under section 3 cannot be justified on any principle.
17. Mr. Raja Qureshi learned counsel for the respondent, however, argued that suspension of the petitioners was only a temporary measure and when they were entitled to receive their full emoluments in view of the judgment of the Honourable Supreme Court in Government of N.-W.F.P. v. I.A. Sherwani (PLD 1994 SC 72) they could have no cause to complain. The argument, prima facie, stands to reason and is also supported by certain observations of the Honourable Supreme Court in East-End Exports case (PLD 1965 SC 605). Mr. Khalid Javaid Khan, however, argued that even if a civil servant does not suffer financial loss, a phenomenal element of social disgrace is involved. He relied upon the judgment of the Honourable Supreme Court in Pakistan and others v. Public-at- Large and others (PLD 1987 Supreme Court 304), where the provisions of section 13 of the Civil Servants Act, 1973, enabling the Government to retire a civil servant upon completing 25 years of service without notice was struck down as being repugnant to Shariat. Learned counsel relied on the following observations of M.A. Zullah, J., Chairman, (as His Lordship then was):-- "The civil servant is forced to retire. Although no fault need be attributed and none is in fact attributed; however, the rules and practice relating thereto assume that it is not without fault or deficiency. Thus, it carries the stigma and disgrace in the public eye. This inference gets confirmed from the fact that the law itself is explicit in informing the enquirer, whosoever may be, that the retirement is in public interest. In other words, the continuance any further in the service of the affected officer is not in the public interest. This cannot be without a fault, deficiency etc. Thus, this type of retirement adversely affects his reputation also. And as the curtailment of service is summary and sudden, the injury to reputation is also pronounced and acts as severe blow to the self respect and dignity of man. Further, it is known in the community of the civil servants that the normal procedure for premature retirement is through an inquiry and opportunity of showing cause. When an officer is retired under the summary procedure and window of only pronouncement of public interest without a visible finding on facts in that behalf, it definitely operates as a penalty and thus, is a penal action and the provision is penal."
18. We find great force in this contention. It also needs to be considered that the law requires that only a Government servant against whom proceedings on account of corruption, misconduct etc. Are contemplated can be suspended. Therefore, a person is identified as corrupt in the public eye the moment an order of suspension is passed and his self-respect and dignity is grossly impaired.
This by itself is a sufficient reason to indicate that indefinite suspension was never contemplated by the Ordinance and was permissible only when it was necessary for the purpose of completing the inquiry.
19. Though we are fully conscious of the need to take strict disciplinary action against those Government servants who have betrayed the solemn trust reposed in them and are found to be corrupt or guilty of acts requiring penal action it is impossible for us to uphold all the impugned orders of suspension. We would, therefore, set aside the impugned orders but leave it to the competent authority to pass lawful order upon finding any basis for proceedings against the petitioners under section 3 of the Ordinance. The case of petitioner No,4 in Civil Petition No,1861 of 2000 (Mrs. Shaher Bano Walajahi) is slightly different. It has been alleged in the written statement filed on behalf of the respondent No,2 that she had questioned the impugned order before Lahore High Court in Writ Petition No,14567/2 which was dismissed in limine by a learned Single Judge (Jamshaid Ali, J.) in terms of the order referred to in para. 7 above. This allegation has not been controverted by her and it has not been contended that the Court passing the order had no jurisdiction to do so, In the circumstances, the judgment became res judicata as against her.
Moreover, she did not disclose this fact in the, memo of petition and having suppressed the same is not entitled to any relief under Article 199 of the Constitution. Therefore, the petition on her behalf is dismissed but subject to the above all the petitions are allowed. The above are our reasons for the short order announced in Court on 15-2-2001..