' Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, the petitioner prays for setting aside the show-cause notice dated 9-1-1996 and subsequent dismissal order of the petitioner dated 30-1-1996.
2. Brief facts of the case are that the petitioner joined the services as Sub-Engineer in Local Government and Rural Development, Government of Punjab on 12-11-1987. Petitioner was dismissed from service. The petitioner filed a departmental appeal which was accepted and the petitioner was reinstated in service vide order, dated 26-5-1988. On 25-12-1990 the petitioner became absent from duty and claimed that he was suffering from severe disease "Schizophrenia, and he was under treatment of qualified doctor at Sargodha and when he became fit, a certificate was issued on 13-12-1993 by the doctor to join the duty. On 18-12-1993 the petitioner submitted his joining report to the respondent No,1 to alongwith the medical/fitness certificate. The Director-General, Health Services, Punjab, Lahore was asked on 6-4-1994 by the respondent Nc.1 to constitute a Medical Board to examine the petitioner medically. According to the petitioner, .Vide letter, dated 29-5-1994 the petitioner was declared medically fit but he was not allowed to resume the duty but on 15-9- 1994 the services of the petitioner were placed at the disposal of respondent No,1 to post the petitioner at R.D. Markex Wan Bhachran, District Mianwali. Respondent No,1 vide order, dated 30-10- 1994 appointed Assistant Director Local Government and Rural Development Mianwali as authorised officer for initiating the inquiry proceeding for the absence from duty of the petitioner during the abovesaid period. According to the petitioner the charge-sheet dated 8-2-1995 was served upon the petitioner. The petitioner submitted a detailed reply. Regular inquiry was conducted by the Project Manager and the authorised officer awarded minor penalty of censure vide order, dated 13-7-1995. The petitioner did not file any appeal against the said order.
3. Respondent No,1 on 9-1-1996 issued impugned show-cause notice for imposing major penalty on the petitioner for his wilful absence from duty for a long period and vide order, dated 30-1-1996 after the receipt of the reply of the petitioner dismissal order, dated 30-6-1996 of the petitioner has been passed. Show-cause notice and the dismissal order are challenged through this petition.
4. Learned counsel for the petitioner contends that as the authorised officer had imposed minor penalty of censure vide order, dated 13-7-1995, the matter became past and closed transaction and respondent No,1 was not authorized to issue the notice for the imposing of a major penalty, thus the subsequent impugned dismissal dated 30-1-1996 is without jurisdiction, without lawful authority and void in the eyes of law. It is further contended that under the Punjab Civil Servants (Efficiency and Discipline) Rules the authority is not authorized to re-open the matter which has already been disposed of by the authorised officer by inflicting the minor penalty including censure. It is further contended as the department did not file any appeal against the order, dated 13-7-1995 the revisional power was not vested in the authority and the impugned notice and subsequent order could not be issued against the petitioner. It is further contended that as the order is without lawful authority having been passed in violation of the rules, thus it is liable to be set aside by this Court in writ jurisdiction. Learned counsel relies upon Abdul Wahab's case (PLD 1989 SC 508) that such orders can be entertained in writ jurisdiction and can be set aside by this Court. Also relies upon L A Sherwani's case 1991 SCM R 1041 at pages 1061, and 1998 SCM R 1948. It is further contended that petitioner is a Sub-Engineer and is not a civil servant under section 2, clause B(3) of Punjab Service Tribunals Act, 1974 and is a workman.
5. Mr. Shan Gull, Advocate appearing on behalf of the respondents has opposed this petition on the ground that the petitioner being a civil servant could only file an appeal against the impugned order before the departmental authority and then before the Service Tribunal and due to the bar contained under Article 212 of the Constitution of the Islamic Republic of Pakistan this petition cannot be entertained and is liable to be dismissed as not maintainable. He relies upon Dr. Ahmad Suleman Waris's case reported in (PLD 1997 SC 382). It is further contended that if for the sake of arguments it is admitted that petitioner is a,workman then he could have filed the grievance petition before the Labour Cqurt or NIRC as the case may be and this Court -cannot entertain this petition and interfere in the impugned orders in writ jurisdiction as is laid down in 1994 SCM R 2213.
6. I have heard the learned counsel for the parties and also perused the record, The petitioner joined the services as a civil servant with the respondents and was being dealt under the service laws. The proceedings were initiated against the petitioner under the E & D Rules, 1975. A decision came in favour of the petitioner when he was imposed minor penalty. He did not challenge the same before any Court or forum allegedly on the ground that the E & D Rules are not applicable to him or he is not a civil servant. The petitioner was served with a show-cause notice by the authority that why the major penalty may not be imposed upon him for dismissal from service and he was dismissed from service through the impugned order. The petitioner could have availed the remedy by filing an appeal against the impugned order (instead of filing this Writ Petition) before the competent authority or before the Service Tribunal. The contention of the learned counsel for the petitioner that petitioner being Sub-Engineer was serving in the Town Committee and was not a civil servant under section 2, clause B(3) of Punjab Service Tribunals Act, 1974 has no force as the petitioner being employee of the. Provincial Government does not fall within the definition of workman under the Factories Act. The petitioner admittedly was doing civil work in connection with the affairs of the Provincial Government and performing of public function falls within definition of public servant under Article 260 of the Constitution of the Islamic Republic of Pakistan. He fell within the definition of civil servant which is reproduced hereunder:-
(b) "Civil servant" means a person who is or who has been member of a civil service of the Province or who holds or has held a civil post in connection with the affairs of the Province but does not include:-
(i) a person who is or who has been on deputation to the Province from the Federation or any other Province or Authority;
(ii) a person who is or who has been employed on contract, or on work-charged basis, or who is or has been paid from contingencies; or
(iii) a person who is or has been a 'worker' or 'workman' as defined in the Factories Act, I 934 or the Workmen's Compensation Act, 1923 (VIII of 1923).
' He had filed this writ petition in 1996. The contention raised by the learned counsel for the petitioner and the case-law cited by him is not applicable to the petitioner's case as the first question in this case is that whether writ petition is competent or not, filed by the petitioner who is civil servant. This writ petition is not maintainable due to the bar under Article 212 of the Constitution of Islamic Republic of Pakistan. In Zahid I Akhtar's case (PLD 1995 SC 530) it has been held that even the order, passed without jurisdiction or with mala fide intention or by incompetent authority regarding matters relating to the terms and conditions of a service of a civil servant are not entertainable in writ jurisdiction by the High Court under Article 199 of the Constitution. The Supreme Court of Pakistan has held in PLD 1.997 SC 382 that when the bar contained under Article 212 of the Constitution of Islamic Republic of Pakistan is applicable. The relevant portion is reproduced hereunder:- "In order to make a matter exclusively cognizable by a Tribunal under the Act and to create an ouster of jurisdiction of all other Courts and Tribunals under Article 212 of the Constitution, it must be shown that the matter is agitated by a civil servant as defined under the Act, it has arisen from a final order of a departmental authority whether original or appellate, it concerns the terms and conditions of the aggrieved civil servant and that is not covered by the exceptions mentioned in povisio(b)(i) and (ii) of section 4 of the Act. If any of the conditions mentioned above are non- existent in a case then, the bar contained in Article 212 of the Constitution will not be operative."
' From the bare perusal of the abovesaid paragraph of the judgment cited on behalf of the petitioner it becomes crystal clear that the petitioner could only file a departmental appeal or the appeal before the Service Tribunal and the writ petition in such circumstances is not maintainable.
In Sayed Mazhar Hussain Bukhari's case (1998 SCMR 1984) it has been held as under:-- "Arts.212 and 199---Constitutional petition under Art.199 of the Constitution---Maintainability--- Constitutional --Constitutional petition under Art.199 of the Constitution is not maintainable by a civil servant in relation to any matter connected with the terms and conditions of his service in respect whereof the Service Tribunal has jurisdiction---Even those orders challenged on the ground of mala fides being appealable before the Service Tribunal are barred by Art.212 of the Constitution to be challenged before High Court under Art.199 of the Constitution."
' Similarly in Khalid Mahmood Wattoo's case (1998 SCM R 2280) it has been held as under:-- "Arts. 199 & 212---Constitutional petition under Art.199 of Constitution---Maintainability---Even where the order is mala fide, the bar of Art.212 of the Constitution is attracted."
' The arguments of the learned counsel for the petitioner regarding the maintainability of this petition are without any force. This petition is not maintainable and is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.