' CH. IJAZ AHMAD, J.---We propose to dispose of the following writ petitions by this judgment: {{TABLE}}
(1) 10758 /2001, (2)11611/2001, (3) 11610/2001, (4) 10638/2001, (5)
11614/2001, (6) 10630/2001, (7) 12848/2001, (8) 10756/2001, (9)
10637/2001, (10) 10752/2001, (11) 11628/2001, (12) 11613/2001, (13)
11615/2001, (14) 10821/2001, (15) 10816/2001, (16) 10819/2001, (17)
10817/2001, (18) 13458/2001, (19) 10624/2001, (20) 13457/2001,(21)
10828/2001, (22) 10823/2001, (23) 13459/2001, (24) 13456/2001, (25)
10837/2001, (26) 11774/2001, (27) 11776/2001, (28) 11773/2001, (29)
10829/2001, (30) 10825/2001, (31) 10820/2001, (32) 10818/2001, (33)
13455/2001, (34) 10822/2001, (35) 11627/2001, (36) 10755/2001, (37)
10620/2001, (38) 10631/2001, (39) 10757/2001, (40) 11617/2001, (41)
11616/2001, (42) 11622/2001, (43) 11619/2001, (44) 11620/2001, (45)
11621/2001, (46) 10632/2001, (47) 11623/2001, (48) 11625/2001, (49)
11626/2001, (50) 13818/2001, (51) 10750/2001, (52) 10629/2001, (53)
10636/2001, (54) 11545/2001, (55) 11544/2001, (56) 11543/2001, (57)
11795/2001, (58) 13453/2001, (59) 11793/2001, (60) 11794/2001,(61)
11586/2001, (62) 11582/2001, (63) 10576/2001, (64) 10824/2001, (65)
13905/2001, (66) 10520/2001, (67) 11792/2001, (68) 12364/2001, (69)
10623/2001, (70) 11618/2001, (71) 10754/2001, (72) 10749/2001, (73)'
10619/2001, (74) 10621/2001, (75) 11624/200I, (76) 10751/2001, (77)
10622/2001, (78) 10760/2001, (79) 10753/2001, (80) 11542/2001, (81)
11612/2001, (82) 11056/2001, (83) 10432/2001; (84) 10433/2001, (85)
11775/2001, (86) 10836/2001, (87) 10563/2001, (88) 10839/2001, (89)
10562/2001, (90) 10682/2001, (91) 10565/2001, (92) 10840/2001, (93)
10768/2001, (94) 10838/2001, (95) 13556/2001, (96) 13558/2001, (97)
11085/2001, (98) 11082/2001, (99) 11083/2001,
(100) 11080/2001, (101)
13833/2001, (102) 11705/2001, (103) 11703/2001, (104) 11698/2001, (105)
11717/2001, (106) 13251/2001, (107) 12470/2001, (108) 1594/2001, (109), 12132/2001, (110)12121/2001, (111) 11735/2001, (112) 11783/2001, (113)
12790/2001, (114)13392/2001, (115) 13381/2001, (11.6) 13389/2001, (117)
13390/2001, (118)13387/2001, (119) 13386/2001, (120) 13382/2001: (121)
13384/2001, (122) 13385/2001, (123) 13388/2001, (124) 13383/2001, (125)
13391/2001,(126) 12715/2001, (127) 12824/2001, (128) 12822/2001, (129)
12825/2001, (130) 1282372001, (131) 13915/2001, (132) 13914/2001, (133)
13917/2001, (134) 13389/2001, (135) 13400/2001, (136) 13460/2001, (137)
13656/2001,(138) 11557/2001, (139) 13420/2001, (140) 12449/2001, (141)
13397/2001, (142) 13199/2001, (143) 13756/2001, (144) 13394/2001, (145)
12615/2001, (146) 13396/2001, (147) 13682/2061, (148) 11449/2001, (149)
11821/2001, (159) 13413/2001, (151) 13395/2001, (152) 14304/2001.'
(i) Writ Petitions at Serial Nos.1 to 113 are by the police officials.
(ii) In cases at Serial Nos.95, 96 and 113 a regular enquiry under the ' Punjab Police (Efficiency ad Discipline) Rules, 1975, has been initiated. In all other cases except in the petition at Serial No,58, show-cause notice has been issued for major penalty after dispensing with the inquiry.
(iii) In writ petition at Serial No,58 proceedings have been initiated under the Punjab Removal from Service (Special Powers) Ordinance (Punjab Ordinance No,IV of 2000).
(iv) Petitions at Serial Nos.114 to 126 are by the employees working in the office of the Accountant- General, Punjab to whome show-cause notices for premature retirement have been issued under the Removal from Service (Special Powers) Ordinance (Ordinance No,XVII of 2000).
(v) Petitions at Serial Nos.127 to 133, 135 to 138, 140, 142, 143, 144, 147 are by the employees of the Provincial Government to whom show-cause notices have been issued under Ordinance No,IV of 2000.
(vi) Petition at serial No,134 is by an employee of the Irrigation Department against the order of his suspension.
(vii) In writ petitions at Serial Nos.139, 141, 145, 146, the employees of the Punjab Government have been put to notice for premature retirement under section 12 of the Punjab Civil Servants Act, 1974.
(viii) Writ petitions at Serial Nos.148 and 149 are by the employees of the WASA of the FDA while writ petition at Serial No,150 is by an employee of the Punjab Social Security Institute. In these three cases, show-cause notices have been issued to them under section 3(e) of Ordinance, IV of 2000.
(ix) Writ petitions at Serial Nos.151 and 152 are by employees of the Pakistan Railway to whom show- cause notices under Ordinance XVII of 2000 have been issued.
3. Detailed submissions were made before us by the following learned counsel:
1. Mr. Farooq Beddar, Advocate,
2. Dr. A. Basit, Advocate,
3. Rana Ijaz Ahmad Khan, Advocate,
4. Mr. Asad Ullah Siddiqui, Advocate,
5. Hafiz Tariq Nasim, Advocate,
6. Mr. Parvaiz Inayat Malik,
7. Advocate, Mr. Ikram Zahid, Advocate,
8. Mr. Nasir Ahmad Qureshi, Advocate,
9. Mr. M.D Tahir, Advocate,
10. Syed Iftikhar Ahmad Shah, Advocate,
11. Mr. Ishrat Ali Javed, Advocate,
12. Mr. M. Yasin Bhatti, Advocate,
13. Hafiz Khalil Ahmad, Advocate,
14. Mr. S. M. Masud, Advocate,
15. Malk Noor Muhammad Awan, Advocate,
16. Mr. Saleem Saigol, Advocate,
17. Mr. Inayallah Cheema, Advocate,
18. Mr. Asif Mehmood Cheema, Advocate,
19. Sheikh Muhammad Siddique, Advocate,
20. Mr. Munawar Ahmad Javed, Advocate,
4. Mr. Farooq Baddar, Advocate, appearing for some of the petitioners, objected to the inclusion of one of us (Ijaz Ahmad Chaudhary, J.) on the Bench on the ground that similar matters i,e, Writ Petition No,10924 of 2001 and others were placed before him who decided these matters on 18-6- 2001 dismissing all the writ petitions on the grounds that not only bar of jurisdcition under Article 212 of the Constitution was attracted but also that a writ petition was not maintainable against a show-cause notice. Having expressed his views, he is disqualified to sit on the Bench. Reliance was placed on the case of Ghulam Rasool and others v. Crown (PLD 1951 FC 62) and Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57).
5. The case of the police officials is that Ordinance IV of 2000 has an overriding effect by virtue of section 11 thereof and section 13 of the said Ordinance saves only the pending proceedings. Thus, the Punjab Police E&D Rules stand repealed by necessary implication and, therefore, the proceedings initiated thereunder are coram non judice. Reliance was placed on Circular Letter No,SOR-III-13/2000 dated 14-5-2000 of the Services and General Administration Department of the Government of the, Punjab according to which after promulgation of Ordinance IV of 2000 action can only be taken thereunder.
6. Show-cause notices/disciplinary proceedings have also been challenged on the following grounds:--
(i) The allegations in the show-cause notices' are seriously disputed questions of fact which require detailed inquiry which has been dispensed with. Instructions Of the Inspector-General of. Police issued on 2-10-1996 to the effect that when disputed questions of fact are involved a regular inquiry was necessary were also pressed on the ground that these constituted departmental practices which should have been followed. Reliance was placed on Nazir Ahmad v. Pakistan and 11 others (PLD 1970 SC 453) and Alamgir v. Divisional Forest Officer, Multan and others (1993 SCMR 603).
(ii) Circular letter dated 30-5-2001 of the Inspector-General of Police with which list of police officials against whom action was required td be taken was referred to contend that the show- cause notice was an empty formality and thus colourable exercise of power as the petitioners are going to be dismissed from service on the basis of already prepared lists. Reliance was placed on Sh. Mudasar Ahmad v. Government of Pakistan and others (1991 PLC (C.S.) 1047) and Federation of Pakistan v. Sh. Abdul Aziz (1998 SCMR 91).
(iii) In some cases action has been initiated on the basis of the secret inquiries with which the petitioners were never confronted. Thus, the departmental authorities have failed to perform the duty of "adequate disclosure". Reliance was placed on Government of the Punjab and another v. S. Tassudaq Hussain Bokhari (PLD 1986 SC 162).
(iv) In some cases even the minor penalties have been made the basis to propose imposition of major penalty which attracts the rule of double jeopardy. Reliance was placed on Muhammad Ashraf and others v. The State (1995 SCMR' 625) and Muhammad Akbar v. S.S.P., Peshawr and others (1995 PLC (C.S.) 349).
(v) That the petitioners were discriminated against.
(vi) The threatened action violates the provisions of Articles 2, 2A, 4, 9, 25 and 38 of the Constitution of the Islamic Republic of Pakistan, 1973.
(vii) In Writ Petition No,12790 of 2001, it was pointed out that show-cause notice was earlier issued to the petitioner which was replied to, and it was withdrawn but on the same allegations a charge- sheet has been served on the petitioner.
(viii)The show-cause notices violate the Injunctions of Islam as the petitioners are not being provided a proper opportunity to defend themselves. Reliance was placed on Pakistan and others v. Public at Large (PLD 1987 SC 304).
(ix) In one case it was contended that an inquiry was held against the petitioners on the charge of corruption which was not proved. However, the successor Deputy Inspector-General of Police issued a show-cause notice on the same allegations.
(x) In some cases the basis to initiate action against the petitioners are the uncommunicated adverse remarks which cannot be pressed for imposition of a major penalty.
7. The case of the petitioners who are being proceeded against under the provisions of Ordinance IV of 2000 is that the said Ordinance is not a valid piece of legislation. Other grounds have also been pressed to challenge the impugned action:--
(i) That by virtue of Proclamation of Emergency dated 14-10-1999, the Constitution has been held in abeyance and as held by the Honourable Supreme Court in the case of Syed Zafar Ali Shah and others v. General Pervaiz Musharaf and others (PLD 2000 SC 869) the legislative authority vested only in the Chief Executive and nobody else;
(ii) the impugned Ordinance was issued under the instructions of the Chief Executive which was against the provisions of Article 128 of the Constitution and violated the basis structure theory - which has been preserved by the Honourable Supreme Court in the case of Zafar Ali Shah (supra).
In any case its life could not extend beyond three months.
(iii) The power to promulgate an Ordinance vested in the Governor and therefore, he could not act on dictation of the Chief Executive.
(iv) The Ordinance was repugnant to the Shariat Act, 1991.
(v) That since Punjab Civil Servants (E&D) Rules, 1975. Already occupied the field, circumstances did not exist justifying promulgation of the ordinance and that the satisfaction as to the existence of the circumstances to justify promulgation of an Ordinance is that of the Governor and nobody else.
(vi) The impugned notices dispensed with a regular inquiry and therefore, the petitioners are being denied a proper opportunity to defend themselves.
(vii) In one case it was brought to our notice that inquiry under E&D Rules, was completed. However, the said course was abandoned and show-cause notice was issued under Ordinance IV of 2000.
(viii)In one case it was contended that an inquiry was held, minor punishment was awarded to the petitioner but on the same allegations he was put to show-cause notice for a major penalty which attracted the rule of double jeopardy.
(ix) Section 3(e) empowers the competent authority to dispense with the services of an employee if he was appointed on "extraneous considerations" but the expression has not been defined in the Ordinance and it has been left entirely to the discretion of the competent authority. The power aforesaid is unbridled and unguided and is being abused.
(x) The allegation of ' extraneous consideration' required a factual inquiry which could not have been dispensed with.
(xi) According to section 3 of the said Ordinance, the competent authority was the Governor or the delegate of the Governor and there was no specific delegation in favour of the authorities issuing show-cause notices to the petitioners;
(xii) In any case, the authorities issuing notices to the petitioners are the delegates of the Governor and since it has already been decided to remove the petitioners, the delegatees cannot act contrary to the wishes of the delegator.
(xiii)The case of the employees of the Statutory bodies of the Provincial Government is that there were appointed years back and their services were fegularized. There was no allegation of corruption or misconduct against them and if at all law or rules were violated while making their appointment these were not violated by the petitioners, these were rather violated by the competent authorities making the appointments. Therefore, the appointments of the petitioner were past and closed transactions and therefore, the provisions contained in section 3(e) is against the settled principle of law and suffers from excessive legislation. Reliance was placed on Administrator, District Council, Larkana v. Gulab Khan and 5 others (2001 SCMR 1320) and Secretary to Government of N.W.F.P. v. Sadullah Khan (1996 SCMR 413).
(xiv) In Writ Petition No,13413 of 2001 it was complained that the faults found with the appointment of the petitioner were that he did not possess the required qualification i,e, M.A. Although he was MBA and that he was short of age. The learned counsel contended that none of the factors identified in the show-cause notice constituted "extraneous considerations" to warrant action under section 3(e) of the Ordinance.
(xv) The said provision does not contain any particular date from which the appointments made are covered thereunder. The authorities have, however, arbitrarily fixed 1-1-1995 as the starting point.
(xvi) The Ordinance is not the bona fide exercise of legislative authority-inasmuch that in fact the donor agencies like the World Bank and I.M.F. Are insisting on downsizing the Government machinery and in pursuance of the wishes of the donor agencies, a large number of civil servants are being targeted for rendering them jobless although the State is bound to provide employment opportunities. The threatened action is, therefore, in derogation of Article 38(b) of the Constitution.
8. As to the maintainability of a Constitutional petition against a show-cause notice the contention was that it was not an inflexible rule, in these cases, it was an empty formality and decision has already been taken to dispense with the services of the petitioners. It is being urged that when absence of authority or excess or abuse of authority was manifest, this Court, in exercise of Constitutional jurisdiction, could remedy the wrong and issue necessary directions in the nature of a writ of prohibition to a public functionary restraining him from doing what he was not authorised by law to do. And, in some cases even pending inquiries were interfered with.
9. It was further contended that right to be dealt with in accordance with law is an inalienable right under Article 4 of the Constitution while under Article 5 obedience to the Constitution and the law is the inviolable obligation of every citizen including public functionaries. Reliance was placed on the following cases:-
(1) Muhammad Azhar v. General Manager Operation (PLD 1990 Lahore 352).
(2) ADBP v. Muhammad Anwar Bajwa and others (1994 SCMR 852).
(3) Muhammad Afzal Khan v. Karachi D.A. And 6 others PLD 1984 Karachi 114,
(4) Edulji Dinshaw Limited v. Income Tax Officer (PLD 1990 SC 399).
(5) Turaj Ahmad Khan v. D.I.-G. Police, Multan (PLD 1982 Lahore 464).
(6) Ataullah Mehr v. Punjab Government 1983 CLC 2903).
(7) Ahsan Saleem v. L -G. Police (1988 PLC (C,S.) 193).
(8) Dr. Ali Sana Shakir Bokhari v. Sabah Mohy-ud-Din (2000 PSC 103).
(9) Messrs East & West Steampship Company v. Pakistan and others (PLD 1958 SC 41).
('10) Subedar Major Gul Zaman v. The Settlement Commissioner, Lahore (PLD 1976 Lahore 1454).
10. As far as bar of jurisdiction under Article 212 of the Constitution is concerned, the following submissions were made:--
(i) An appeal before the Service Tribunal lies only against a final order. As long as no final order is passed, a civil servant could not approach the Service Tribunal because the ouster clause of the Article 212 will only apply if the jurisdiction of the Tribunal extends to a matter. Reliance was placed on LA. Sherwani's case (1991 SCMR 1041).
(ii) The case of the police officials is that since the proceedings are being taken under the repealed rules, therefore, unless some proceedings were being competently taken the bar of jurisdiction was not attracted.
(iii) Action under Ordinance IV of 2000 is not being taken by the competent departmental authorities and the bar of jurisdiction does not apply in view of the law declared by the Supreme Court in Government of the Punjab and others v. Saleem Hussain Gardezi (1985 SCMR 443).
(iv) That by virtue of proviso to clause (2) of Article 212 the ouster clause shall not apply to an Administrative Court or Tribunal established under an Act of the Provincial Assembly unless at the request of that Assembly made in the form of a resolution, Majlis-e-Shoora (Parliament) by law extends the provisions to such a Court or Tribunal. It was contended that the provisions of ouster clause were not extended to the Punjab Service Tribunal as required by the aforesaid proviso.
(v) That since the vires of the Ordinance itself are being questioned, the Punjal Service Tribunal will not have any jurisdiction in the matter because the said Tribunal can only examine the validity of the orders passed by the departmental authorities but cannot go into the question of vires of the Ordinance.
(vi) Not only the ouster clause was contained in Article 212 of the Constitution but it was also contained in Articles 225, 270-A, 247 and 63-A(6). Notwithstanding, the ouster clauses thereunder, the power of judicial review of an administrative action always remains available to the superior Courts if the impugned action is coram non judice, mala fide and without jurisdiction. Reliance was placed on The State v. Zia-ur-Rehman and others (PLD 1973 SC 49), Federation of Pakistan and another v Malik Ghulam Mustafa Khar (PLD 1989 SC 26), Malik Ghulam Mustafa Khar v. Pakistan and others (PLD 1988 Lahore 49), Nabi Bakhsh and another v. The State and others (PLD 1991 Peshawar 10), Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263).
(vii) Since the Constitution has been held in abeyance, the effect of the ouster clause of Article 212 is not the same as it was before the Proclamation of Emergency on 14-10-1999.
(viii) The judgment in which the ouster clause of Article 212 was applied were judgments in personam and each case has to be decided on its own facts.
(ix) There was need to interpret Article 212 in view of the changed socio-economic conditions so as not to throw a public servant at the mercy of the authorities. The observations of the Honourable Supreme Court in Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1992 SC 473) were relied upon.
(x) That every wrong has a remedy and since the petitioners are being wronged, the ouster clause of Article 212 was not applicable. Reliance was placed on Aftab Shahban Mirani v. President of Pakistan and others (1998 SMCR 1863).
(xi) The observations of the Honourable Supreme Court in Zafar Ali Shah's case (supra) were also relied upon to contend that the ouster of jurisdiction of the superior Courts is not to be lightly inferred.
(xii) The Punjab Service Tribunal was not lawfully constituted for the reasons that at present the said Tribunal is being headed by sitting Judge of this Court. Further, the Chairman and the Members are appointed without consultation of the Honourable Chief Justice of this Court and is, therefore, beyond the judicial system contemplated by the Constitution. On this basis it is being urged that the Service Tribunal was not in law, in existence and therefore, the ouster clause will not apply.
(xiii)The Members belong to the executive service and cannot dispense even handed justice as they are prone to the influence of the senior officers of the Executive.
(xiv) The Punjab Service Tribunal was in fact the substitute for the High Court and for appointment of the Chairman and the Members, the same criteria is to be followed which applies in case of appointment of Judges of the superior Courts and other judicial officers. The constitution of the Service Tribunal was thus, repugnant to the concept of independence of Judiciary. Reliance was placed on the cases of Messrs Chenab Cement Product (Private) Ltd. v. Banking Tribunal, Lahore and others (PLD 1996 Lahore 672), Government of Sindh v. Sharaf Faridi and others (PLD 1994 SC 105), PLD 1988 SC 1455, Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607), Al-Jehad Trust v. Federation of Pakistan and others (PLD 1996 SC 324), S.P. Sampath Kumar v. Union of India and others (AIR 1987 SC 386).
(xv)The case of the employees of the statutory bodies/Corporation of Punjab Government is that they are not civil servants, and therefore, the ouster clause of Article 212 of the Constitution does not apply in their cases.
(xvi) The jurisdiction of the Punjab Service Tribunal extends only to hear appeals of the civil servants and unless the employees of the Corporate Autonomous bodies of the Provincial Government were declared as a civil servant the Punjab Service Tribunal will not have any jurisdiction in the matter. Reliance was placed on Syed Aftab Ahmad v. K.E.S.C. And others (1999 SCMR 197).
(xvii) Referring to Ordinance IV of 2000 it was contended that it only applies to Government servants or servants of a Corporation and not to the civil servants, therefore, the right of appeals, to the Tribunal provided by section. 10 is not available to civil servant.
11. On the other hand, the learned Advocate-General submitted that the Governor of the Punjab was fully competent to promulgate Ordinance No,IV of 2000 under the Provisional Constitution Order, 1999 read with Chief Executive Orders Nos.5 and 9. Reliance was placed on the judgment of the Honourable Supreme Court in the case of Zafar Ali Shah (supra) validating the action of 12th October, 1999 and the powers of the Chief Executive as a law giver. The Ordinance having been issued under the instructions of the Chief Executive is a valid piece of legislation and by virtue of Order 9 it operates without regard to the time limit.
12. The writ petitioners have called in question show-cause notices or disciplinary proceedings. The petitions are not maintainable because no adverse order has been passed against them and no prejudice has been caused to them to maintain these petitions which are premature. Reliance was placed on:
(1) Nabi Baldish Khoso v. Branch Manager, National Bank of. Pakistan (2000 SCMR 1017).
(2) A.R. Niazi, Advocate v. Pakistan and others (PLD 1968 SC 119).
(3) Virasat Ullah v. Bashir Ahmad and another (1969 SCMR 154).
(4) Nazir Ahmad Sheikh v. Government of Sindh and another (1998 PLC (C.S.) 607).
' According to the learned Advocate-General it was an inflexible rule and has to be preserved and applied in all cases. Petitioners should submit replies to the show-cause notices where they can raise all questions of law and fact. It was further contended that the Punjab Police (E&D) Rules and Ordinance IV of 2000 provide remedies before departmental authorities and before the Punjab Service Tribunal in case an adverse order was passed against them and that the learned Tribunal could even examine the wires of Ordinance No,IV of 2000.
13. It was contended that the ouster clause of Article 212 of the Constitution Was clearly applicable because the issue raised by the petitioners is germane to their terms and conditions of service and even though no final orders have been passed, the writ petitions are not maintainable. Reliance was placed on Khalil ur Rehman and others v. Government of Pakistan and others (PLD 1981 Karachi 750), Abdul Wahab Khan v. Government of the Punjab and others (PLD 1989 SC 508), Shaheen Akhtar v. Government of Punjab and others (1998 PLC (C.S.) 70), Tahira Fazeelat and others v. Province of Punjab and others (1998 PLC (C.S.) 268) and Muhammad Ashraf Chaudhry v.
Chairman, CBR (PLC 2001 (C.S.) 781).
14. Regarding the employees of the Corporation of the Punjab Government, his contention was that since jurisdiction of the Tribunal has been extended to entertain their appeals the bar of Article 212 will apply even in their case and no amendment was required to be made in the Punjab Civil Servants Act, 1974 or Punjab Service Tribunals Act, 1974.
15. It was next contended that the relationship of the employees of the Corporations with their employer is that of master and servant and therefore, even on this score the writ petitions were not maintainable on their behalf.
16. It was next contended that as far as the police officials are concerned, they cannot approach this Court to seek enforcement of any fundamental right because the provisions of Article 8 have specifically been excluded in respect of a law relating, inter alia, to the police force.
17. Regarding the effect of sections 11 and 13 of Ordinance IV of 2000, his contention was that the Ordinance has an overriding effect to the extent of any inconsistent provision in any other law.
According to him, the Ordinance as well as the Punjab Police (E&D) Rules, provide for dispensing with the regular inquiry and, therefore, there was no inconsistency between the Punjab Police (E&D)
Rules or the Ordinance IV of 2000. Thus, the said rules still occupy the field. He referred to Inspector- General of Police v. Mushtaq Ahmad Warraich and others (PLD 1985 SC 159) to contend that subordinate members of the Police force are governed by the Punjab Police Act and the Police Rules, and the aforesaid E&D Rules were framed under the Police Act and will continue to govern the subordinate police officials.
18. As to the contention of the learned counsel for the petitioners that the authorities initiating action under Ordinance IV of 2000 were not duly empowered under section 2 of the said Ordinance, he produced notification, dated 6-12-2000 showing delegation of power in favour of the authorities named therein.
19. The Punjab Service Tribunal was lawfully and validly constituted. It was asserted that the Chairman of the Punjab Service Tribunal is appointed in consultation with the Hon'ble Chief Justice and by virtue of Article 212, it is the part of the judicial system. Appointment of the Members was regulated by the statutory rules. Reliance was placed on the observations of the Hon'ble Supreme Court in Mahram Ali's case (supra).
20. The learned Deputy Attorney-General was called upon to assist this Court because some cases relate to the employees of the Federal Government and also that interpretation of the provisions of the Constitution and the validity of the legislative powers of the Governor under the instructions of the Chief Executive was also involved. Notice under Order 27-A of the Code of Civil Procedure was also issued to the learned Attorney-General of Pakistan.
21. The learned Deputy Attorney-General submitted that, a particular view taken by a Judge in a particular case does not constitute bias as alleged and that the Judges of the superior Courts have their own judicial conscious. Reference was made to Haji Ghulam Mustafa v. Secretary, Agriculture Department, Punjab (1973 PLC 308), Ms. Benazir Bhutto v. The President of Pakistan and another (1992 SCMR 140), Mian Muhammad Abdullah' v. The Road Transport Corporation, Lahore (PLD 1964 Lahore 743), Major Muhammad Nawaz v. Pakistan (PLD 1970 Lahore 811) and PLD .2001 SC 568.
22. As to the creation of the Tribunals, it was contended that to constitute a parallel judicial system it should be beyond the scope of Articles 173, 202, 203 and 212 of the Constitution. The judicial system contemplated by the constitution is a system as administered by the Courts and the Tribunals constituted under the aforesaid Articles. Reliance was placed on the observations of the Hon'ble Supreme Court in the case of Mahram Ali (supra) and Sh. Liaqat Hussain and others v.
Federation of Pakistan (PLD 1999 SC 504). Reliance was also placed on Jamaat-I-Islami Pakistan v.
Federation of Pakistan (PLD 2000 SC 111) and PLD 2001 SC 607.
23. He referred to the definition of an Administrative Tribunal from the Black's Law Dictionary (6th Edition), to contend that an administrative tribunal is an administrative agency as distinguished from a judicial forum.
24. He next contended that there was no requirement of the Constitution or the law that the Chairman of the Tribunals or the Members should be appointed in the same manner as is followed for appointment to judicial posts.
25. He reiterated the contention that no writ petition was maintainable against a show-cause notice.
26. As to the bar of jurisdiction under Article 212 of the Constitution is concerned, he placed reliance on the case of Khalid Mahmood Wattoo v. Government of the Punjab and others (1998 SCMR 2280), Syed Mazhar Hussain Bukhari v. Secretary Government of Punjab and others (1998 SCMR 1948) and Asadullah Rashid v. Haji Muhammad Muneer and others (1998 SCMR 2129).
27. When questioned as to whether bar of jurisdiction under Article 212 was also applicable to the employees of the Corporations of the Punjab Government, he was of the view that it was not attracted but the writ petitions were not maintainable as the petitioners in the said case had a remedy of a representation before the departmental authorities and thereafter an appeal under section 10 of the Ordinance before the Punjab Service Tribunal in case an adverse order was passed against them. He maintained that in view of applicability of the rule of master and servant in their case, the writ petitions are not maintainable. Reliance was placed on National Bank of Pakistan v. Malik Manzoor Ahmad (1995 CLC 267), Habib Bank Limited and others v. Syed Zia-ul- Hassan Kazmi (1998 SCMR 60).
28. He next contended that Ordinance IV of 2000 or Ordinance XVI of 2000 were validly promulgated and in any case even vires of law could be challenged before the Service Tribunal.
Reliance was placed on Pir Sabir Shah v. Shad Muhammad Khan and another (PLD 1995 SC 66).
29. According to him, a law could only be struck down if it violated any Constitutional provision and on no other ground. Reliance was placed on the case of Sh. Liaqat Hussain (supra). He maintained that there is presumption in favour of validity of a legislative measure and all possible efforts have to be made to save it rather than to destroy it.
30. As far as the justification of the two Ordinances promulgated by the President and the Governor is concerned, he contended that legislation was permissible in occupied field. Reliance was placed on Federation of Pakistan and others v. Muhammad Nawaz Khokhar and others (PLD 2000 SC 26) and the case of Khan Asfandyar Wali (supra).
31. Before adverting to the contentions of the learned counsel for the parties we feel it proper to dispose of the preliminary objection of Mr. Farooq Beddar, Advocate. 'Bias' has been defined in Balck's Law Dictionary, 6th Edition as follows:-- "As used in law regarding disqualification of Judge reference to mental attitude or disposition of the Judge towards a party to the litigation and not to any views that he may entertain regarding the subject-matter involved.
(Emphasis supplied).
' Therefore, merely because a Judge has expressed his opinion in a particular case does not constitute bias. Based on the rule laid down in the case of Khan Wali Khan (supra) the Honourable Supreme Court, in case of Mrs. Benazir Bhutto supra made the following observations:-- "That mere fact that a Judge has dealt with another matter earlier in respect of a. Party to the legal proceedings before him or has given certain decision against such a party upon interlocutory applications in the proceedings before him will not render himself disqualified from hearing the case.
' Reference may also be made to the following observations of the Honourable Supreme Court in Asif Ali Zardari's case (supra).
"In other words the principle is well-settled that a Judge of the superior Court is a keeper of his own conscious and it is for him to decide to hear or not to hear a matter before him."
32. The judgments in the cases of Ghulam Rasool and Khan Abdul Wali Khan (supra) are distinguishable on fats because in those cases the Honourable Judges of the High Court had dealt with the matter as Law Secretary. In case the contention of Mr. Farooq Beddar, Advocate was to be upheld it might result in the collapse of the Judicial system because a petitioner might urge that the issue raised by him was earlier decided by the Judge and, therefore, his case should not be heard by the said Judge. We may also observe that the views formed by a particular Judge in a particular case depend upon circumstances of each case and the assistance rendered by the learned counsel. Therefore, we see no merit in this objection.
33. In all the cases before us, undisputedly, no final order has been passed and the proceedings are being taken under either the E & D Rules, or Ordinance No,IV of 2000, or Ordinance No,XVII-of 2000, or the Punjab Civil Servants Act, 1974 and except writ petition at Serial Nos.148 to 150 all of these are by the civil servants of the Provincial or the Federal Government.
34. According to section 15 of the Punjab Civil Servants Act, 1974 and section 16 of the Civil Servants.
Act, 1973 a civil servant shall be liable to disciplinary action and penalties in accordance with the prescribed procedure. Thus, disciplinary action against a civil servant is part of his terms and conditions of service as envisaged in Article 212(1)(a) of the Constitution. The issue raised in all these petitions is germane to the terms and conditions of the service of the petitioners and any grievance with regard. Thereto will attract the ouster clause of Article 212 of the Constitution. The contention that in the absence of a final order the respective Service Tribunals will not have any jurisdiction in the matter has not impressed us. Initiation of disciplinary proceedings is a preliminary steps towards passing of a final order. In accordance with the provisions of Ordinance No,IV of 2000 and Ordinance No,XVII of 2000 it is only a final order which is appealable. The Legislature, in its wisdom, clearly excluded challenge to an interim order before the Punjab Service Tribunal. We are of the view that if a final order cannot be interfered by this Court, interference in an interim order will manifestly frustrate the object of law. We may reiterate that while interpreting the provisions of a statute no such construction should be placed which might run counter to the object of the law or to render a provision of a statute redundant.
35. The question was examined at some length by a Full Bench of the learned Karachi High Court in the case of Khalil-ur-Rehman (supra) in which the following view was taken:-- "It was then contended that inasmuch as the jurisdiction of Service Tribunal has been confined to entertain appeals from 'final' orders made by the departmental authorities, the jurisdiction in respect of other orders continues to remain intact, so far as the High Court is concerned. In the view that we have taken, there can be no cavil against this proposition of law. However, it seems to us that if the impugned order, although no final as far as the departmental authority passing it is concerned, is in the nature of a step forwards the final orders that may eventually be passed, apparently such interlocutory order will eventually merge in the final order and in any case can be brought up before the Service Tribunal in an appeal from final order. Clearly, therefore, such orders which are in the nature of interlocutory steps and are germane to the final order which is appealable before the Tribunal, will also be outside the jurisdiction of the High Court. However, in all the petitions before us there is no question of an order other than a final order."
' Similar view was taken in Abdul Bari v. Government of Pakistan and 2 others (PLD 1981 Karachi 290).
36. The question then came up for consideration before the Honourable Supreme Court in the case of Abdul Wahab (supra). The writ petition of a civil servant was directed against an interim order which was dismissed and that the matter was taken to the Supreme Court. The petition was dismissed with the following observations: "But the order impugned the High Court vis-a-vis the stage which it has been passed is not appealable. The petitioner would have to wait till such an order is passed against him which is appealable before the Tribunal." (Underlining is ours).
37. Mr. Naseer Ahmad Qureshi and Hafiz Tariq Naseem, Advocates contended that the aforesaid judgment was essentially based on the concession of the learned counsel appearing for the petitioner in the said case and therefore, does not amount to law declared by the Supreme Court.
We are unable to agree in view of the categorical observations of the Honourable Supreme Court noted above which were not based on the concession. In fact it is law declared by the Honourable Supreme Court,
38. The matter was also considered by this Court in the case of Abdul Rahim v. Government of Pakistan and others (1993 PLC (C.S.) 1364). In the said case officials of the Income Tax Department had challenged show-cause notices. The rule laid down in the case of Abdul Wahab Khan was followed and the writ petitions were dismissed.
39. None of the learned counsel cited any judgment of the Honourable Supreme Court showing a departure from the rule laid down in Abdul Wahab Khan's case. Therefore, we are clearly of the view that even if no fmal order has been passed this Court does not have jurisdiction under Article 199 of the Constitution which is subject to the other provisions of the Constitution and Article 212 has the effect of curtailing the jurisdiction of this Court under Article 199 in respect of a matter to which the jurisdiction of the Tribunal extends.
40. A number of judgments were cited before us to demonstrate that notwithstanding ouster clause of the Constitution, this Court interfered in exercise of Constitutional jurisdiction. In the cases of Turaj Ahmad Khan (supra) and Ashan Saleem (supra), this Court interfered in pending inquiries but the bar of jurisdiction under Article 212 was not considered. The judgment in the case of Ali Sana Shakir Bukhari (supra) was based on the concession of the learned Additional Advocate- General.
4 1 . In the case of Muhammad Azhar (supra) this Court interfered against show-cause notice for enhancement of the penalty. In the said case penalty of reduction by one stage in the time scale was imposed on a WAPDA employee on 21-1-1982. He was later removed from the service under the provisions of section 17(1-A) of the WAPDA Act, but on his appeal, he was reinstated by the learned Federal Service Tribunal on 30-1-1989. Thereafter, a show-cause notice was addressed to the petitioner by the General Manager for enhancement of the penalty which was challenged in writ petition which was allowed after holding that the bar of jurisdiction contained in Article 212 was not attracted if the order was without jurisdiction and no appeal was competent before the Service Tribunal. In this case; the judgment of the Honourable Supreme Court in Abdul Wahab Khan's case was not considered. Reliance was heavily placed on the judgment in the case of Federation of Pakistan v. Sh. Abdul Aziz (supra). This Court in exercise of Constitutional Jurisdiction had set aside an order of dismissal passed under the provisions of Removal from Service (Special Provisions)
Regulation, 1969 (MLR 58). By virtue of Article 13-A added to the Provisional Constitution Order, 1981 by virtue of C. M. L.A. Order 3 of 1982, the jurisdiction of all Courts including the Service Tribunal had been taken away. Therefore_ since the jurisdiction of the Tribunal did not extend to examine an order passed under the aforesaid Marital Law Regulation, the question of bar of jurisdiction did not arise.
42. The contention that despite similar ouster clauses in Articles 63-A(6), 225, 247 and 270-A, this Court has jurisdiction in case the orders passed are mala fide, coram non judice and without jurisdiction is equally untenable. A perusal of Articles 270-A and 247 shows that the ouster contemplated is total without providing any remedy to an aggrieved person. The cases in which ouster of the jurisdiction of the superior Courts is to have to he distinguished from the cases in which the aggrieved person has been provided a remedy. So far as Article 225 is concerned, an election could only be challenged by way of an election petition. This contemplates an implied ouster which has been given effect to by the superior Courts. However, where a person is disenfrenchized and is, therefore, not in a position to challenge an election through an election petition he could competently invoke the Constitutional jurisdiction. This is the ratio of the judgment in Ghularn Mustafa Jatoi's case The case of Wukala Mahaz (supra) was a petition directly moved before the Honourable Supreme Court under Article 184(3) of the Constitution to challenge the vires of Article 63-A. The challenge was repelled. It may also be observed that the constraint of Article 199 is not applicable in case of exercise of jurisdiction by the Honourable Supreme Court under Article 184 of the Constitution . For enforcement of fundamental rights. We may also refer to the observations of the lamed Full Bench of the. Karachi High Court in Abdul Bari's case (supra) in which it was held that all the grounds of attack including the ground of mala fide, ultra vires and corm non judice were within the jurisdiction of the Service Tribunal. A similar plea raised before the Honourable Supreme Court was repealed in M. Yamin Qureshi v. Islamic Republic of Pakistan and another (PLD 1980 SC 22).
43. The bar of jurisdiction on the touchstone of Article 212 of the Constitution was also sought to be avoided by urging that the action' under Ordinance IV of 2000 was not initiated by the competent authority as defined in section 2. According to section 2(a) the competent authority means the Governor or any officer duly authorized by the Governor not being inferior in rank to the appointing authority prescribed for the post in question. The learned Advocate-General has placed before us notification dated 6-12-2000 issued under section 2 of the Ordinance authorizing the named functionaries to take action under the said Ordinance. We, therefore, do not find any merit in this contention. Even otherwise the contention that since the proceedings have been initiated by incompetent departmental authorities, therefore, the Punjab Service Tribunal will not have jurisdiction, has no merit. The plea was based on the judgment of Government of Punjab v. Saleem Hussain Gardezi (supra). In the said case the order of Review Board constituted under Martial Law Instruction No,21 was interfered with by the learned Punjab Service Tribunal. The appeal of the Government of Punjab against the said judgment was allowed by the Supreme Court with the observations that the Tribunal could hear appeal only against the orders passed by a departmental authority and thus, the appeal before the Tribunal was not competent. Therefore, a distinction has to be drawn between an authority who is not departmental authority and the authority who is not competent departmental authority. Thus, an order passed by an incompetent departmental authority was also appealable before the learned Tribunal. In this view, we are fortified by a judgment of Division Bench of this Court in Muhammad Aslam Bajwa v. Federation of Pakistan (PLD 1974 Lahore 545)
44. Another limb of submission on behalf of the petitioners was that provision of ouster clause of Article 212 was not extended to the Punjab Service Tribunal as required by the proviso to clause (2).
It may be appropriate to reproduce the aforesaid proviso: "Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution [Majlis-e-Shoora (Parliament)] by law. Extends that provision to such a Court or Tribunal."
' A complete answer to this contention is found in the Provincial Service Tribunals (Extension of Provisions of Constitution) Act (No,XXXII of 1974) according to which the provisions of clause (2) of Article 212 were extended to the Service Tribunals established under the Act of Provincial Assembly of N.-W.F.P., the. Punjab and Sindh on the request, inter alia, of the Punjab Assembly. It was then contended that Punjab Service Tribunals Act was promulgated on 9-6-1974 while Act No,XXXII of 1974 was promulgated on 6-5-1974. The argument loses sight of the fact that the Punjab Service Tribunal was initially established by Punjab Ordinance No,V on 1-4-1974 and according to Article 260(2) of the Constitution, an Ordinance is included in the definition of an "Act of the Provincial Asembly".
45. As far as the vires of Ordinance No,IV of 2000 are concerned we are of the view that it has validly been promulgated by the Governor of the Punjab. Our reasons for this conclusion are as follows. General Parvez Musharaf took over the Government on 12th of October, 1999 and on 14th of October, 1999 a Proclamation of Emergency was issued thereby holding the provisions of the Constitution in abeyance. Provisional Constitution Order No, 1 of 1999 was also promulgated on 14th of October, 1999. Article 2 thereof provides that notwithstanding the abeyance of the provisions of the Constitution the country shall, subject to the said order and orders made by the Chief Executive be governed as nearly as may be in accordance with the Constitution. Clause (2) of Article 2 provides that the Governor of a Province shall act on and in accordance with the instructions of the Chief Executive.
46. .Order No,5 of 1999 was issued on 30-10-1999. Article 2 thereof provides that subject to the provisions of clause (2) of Article 3 of the Provisional Constitution Order No,1 of 1999 the powers and functions of a Governor shall be the same as of a Governor under the Constitution of Islamic Republic of Pakistan, 1973 including the functions and powers of the Chief Minister and such other powers and functions as may be conferred upon him by the Chief Executive. On 15-11-1999 Provisional Constitution Order No,9 of 1999 was issued. Article 4 thereof provides that the Governor of the Province, on the instructions of Chief Executive, shall issue and promulgate Ordinances which shall not be subject to the limitation as in their duration prescribed in the Constitution. However, by virtue of Chief Executive Order No,11 of 2000 the expression "on the instructions of Chief Executive" occurring in Article 4 of Order No,9 was deleted. A cumulative reading of the aforesaid provisions of the P.C.O. And Orders issued by the Chief Executive from time to time makes it clear that the Governor had validly promulgated Ordinance No,IV of 2000 on the instructions of the Chief Executive. It may also be observed that by virtue of Order No,5 of 1999 promulgated on 30-10-1999 the powers and functions of the Governor under the Constitution were preserved while Ordinance No,IV of 2000 was issued on 18-9-2000. Even in accordance with the provisions of P.C.O. No,1 of 1999 the Governor is bound to act in accordance with the instructions of the Chief Executive. Therefore, the contention that promulgation of Ordinance No,IV of 2000 by the Governor violated Article 128 of the Constitution has no merit.
47. The action of 12th of October, 1999 and the actions taken by the Chief Executive on 14-10-1999 i,e, the Proclamation of Emergency and issuance of P.C.O. No,1 of 1999 were brought under challenge before the Honourable Supreme Court in Syed Zafar Ali Shah's case (PLD 2000 SC 869). The Honourable Supreme Court repelled the challenge to the aforesaid actions. The judgment aforesaid was also subjected to a. Review petition before the Honbourable Supreme Court but the same was dismissed on 7-2-2001. See Waseem Sajjad. v. Federation of Pakistan through Secretary (PLD 2001 SC 233). The matter, again came under consideration of the Honourable Supreme Court in the case of Asfandayar Wali (supra) and the view taken in Zafar Ali Shah's case (supra) was reaffirmed.
48. We may also reiterate here that vires of law could only be challenged on the ground of legislative incompetence or violation of any provision of the Constitution. In view of various provisions of Provisional Constitution Order as noted above we are unable to find either the legislative incompetency of the Governor or violation of any provision of the Constitution because the promulgation of P.C.O. 1 of 1999 and various Orders issued by the Chief Executive the provisions of the Constitution shall be deemed to have been altered, as even the power to amend the Constitution by the Chief Executive has been recognised by the Honourable Supreme Court.
49. The challenge to Ordinance No,IV on the ground that the Efficiency and Discipline Rules of the Punjab Government were already in existence and therefore, there was no justification for promulgation of the Ordinances is equally without any merit. A legislative authority is not precluded from promulgating any legislative measure even in the occupied filed. We are fortified by the judgment of the Honourable Supreme Court in Muhammad Nawaz Khokhar's case (supra) and Khan Asfandayar Wali"s case. In any case, the Ordinance brings within its fold the employees of the Corporations of the Punjab Government which otherwise provides a justification for the said Ordinance.
50. The other contention raised to challenge the vires of the said Ordinance was that these were mala fide and the object was to undertake the process of downsizing, the Government machinery on the dictates of the International loaning agencies such as the World Bank or the I.M.F. Apart from the fact that this allegation was only conjectural, we may also observe that vires of a legislative measure is not open to the scrutiny of the superior Courts on the alleged ground of mala fide because legislative measures are presumed to be bona fide. Reference may be made to Fauji Foundation and another v. Shamim-ur-Rehman (PLD 1983 SC 457).
51. We may also observe that even examination of vires of a law under which action is taken against a civil servant will also be within the competence of the respective Service Tribunals'.
Validity of an action against a civil servant is required to be determined in the light of the relevant facts and the law applicable thereto. If therefore, the Tribunal finds that the law under which action is taken against a civil servant was not validly made the action taken thereunder will have to be struck down. If the contention on behalf of the petitioners is accepted it will bring about anomalous situation i,e, that a civil servant should first seek a declaration as to the invalidity of a law and then approach the Tribunal for seeking redress against a particular order passed by a departmental authority. The question was first considered by a Division Bench of this Court in Fazal Ellahi Ijaz's case (PLD 1977 Lahore 549) in which while upholding the bar of jurisdiction under Article 212 the following observations were made:- - "No proceedings over which an administrative Tribunal's jurisdiction extends can consequently be entertained by any other Court merely on the ground that the matter involved determination of the vires of any rule or statute."
' The rule laid down in the aforesaid judgment was affirmed by the Honourable Supreme Court in Iqan Ahmad Khurram v. Government of Pakistan .And others (PLD 1980 SC 153).
52. The question was also considered by this Court in Muhammad Asif v. Secretary to the Government of Punjab (1990 PLC (C.S.) 257) and the following observations were made:- "It is, however, well-settled that the administrative Court or Tribunal established in pursuance of Article 212 of the Constitution is competent like a Civil Court to examine whether or not a law is void by reasons of its conflict with the fundamental rights or is otherwise ultra vires or that a service rule is ultra vires of law."
' Reference may also be made to the case of Pir Sabir Shah (supra) in support of the view taken that the vires of law could be challenged before the Service Tribunal. Reference may also be made to J.B. Chopra and others v. Union of India (AIR 1987 SC 357) in which it was observed:-- "That the administrative Tribunal being a substitute of the High Court had the necessary jurisdiction, power and authority to adjudicate upon all disputes relating to service matter including the power to deal with all questions pertaining to the Constitutional validity or otherwise of such laws as offending Articles 14 and 16,1) of the Constitution."
53. As far as the applicability of bar of Article 212 of the Constitution to the cases of employees of Corporations of the Punjab Government is concerned we are of the view that in their cases as well the bar of jurisdiction applies for the reason that by virtue of section 10 of Ordinance IV of 2000 a right of appeal has been provided to an employee of a Corporation of the Punjab Government against any final order passed under the provisions of Ordinance IV of 2000. Therefore, the jurisdiction of the Punjab Service Tribunal stands enlarged and extends to the grievances of the servants of the Corporations of the Punjab Government. Consequently, they shall be deemed to be civil servants for the purposes of Punjab Service Tribunals Act and therefore, in our view no separate declaration either in the Civil Servants Act or the Punjab Service Tribunals Act was required to be made.
54. A perusal of Ordinance No,IV shows that it applies to persons in Government service (which includes a civil servant) and a person in Corporation service by virtue respectively of clauses (d) and (c) of section 2 of the Ordinance. To our reading this in fact is a beneficial provision for the employees of the Corporations because in case of the petitioners before us i,e, employees of WAPDA, FDA or the Social Security institute their services are not governed by any statutory rules and in case any action was taken against them, they could not invoke the Constitutional jurisdiction because their services are governed by the rule of master and servant. In fact the remedy provided under Ordinance IV of 2000 is in the nature of an inroad in the foresaid principle.
55. A limb of submission to challenge action against WASA employees is that in accordance with delegation of powers the authority to take action vests in the Chief Executive of the Organisation.
We have perused the Notification dated 6-12-2000. It empowers the Managing Director/Chief Executive to take action against the employees of a Corporation. Water and Sanitation Agency of the FDA is headed by the Managing Director who has initiated action against the petitioners before us. As far as the WASA is concerned even if it is a wing of FDA, it is headed by the Managing Director and therefore, as far as the employees of WASA are concerned the Managing Director will be the Chief Executive of the Organization for the purpose of section 2 of Ordinance No,IV of 2000.
56. Another ground pressed before us to avoid the bar of jurisdiction was that the Tribunal was not, in law, in existence on the assertion that it was in the nature of a parallel judicial system. The appointments of the members of the respective Service Tribunal from amongst the executive officers was particularly challenged on the ground that besides not having any judicial training, they were prone to be under influence of senior Officers of the Province and it was not expected from them that they can act independently, fairy and justly. It was further contended that tenure of the Members was not prescribed. Another objection to the constitution of the Provincial Service Tribunal was that presently it is being headed by a sitting Judge of this Court.
57. The Service Tribunals are constituted under Article 212 of the Constitution. To condemn a system as a parallel judicial system it should be one which is not backed by Articles 175, 202, 203 or Article 212 of the Constitution. These were the 'observations made by the Honourable Supreme Court in the cases of Mehram Ali (supra), Liaqat Ali (supra), Jamaat-e-Islami (supra) and Asfand Yar Wall (supra). The appeals against the judgments of the Service Tribunals lie before the Honourable Supreme Court under Article 212(3) of the Constitution. Thus, it is not possible for us to accept the contention that the Service Tribunals are beyond the judicial system contemplated by the constitution so as to constitute a prallel judicial system.
58. As far as the objection that the Punjab Service Tribunal is headed by a sitting Judge we do not find any merit in the contention for the simple reason that the eligibility threshhold, according to section 3(3) of the Punjab Service Tribunals Act, 1974, is that the Chairman should be a person who is qualified to be a Judge of the High Court. A sitting. Judge of the High Court is not, therefore, excluded from the aforesaid provision in the absence of any specific prohibition. It may be recalled that the Administrative Tribunal was first constituted by virtue of the Punjab Civil' Services (Appellate Tribunals) Ordinance No,IV of 1970. The appointment of. Chairman was contemplated by section 3(3) of the said Ordinance which was in para materia with the provisions of section 3 of the Punjab Service Tribunals Act, 1974. We have taken judicial notice of the fact that Mr. Justice S.S. Jan (now retired) was the first Chairman of the said Administrative Tribunal while he was sitting as a Judge of this Court. In any case, our brother Riaz Khayani, J. Stands retired as a Judge of this Court and has been appointed as the Chairman of the Punjab Service Tribunal with effect from 6-8-2001.
59. Another limb of the submission on behalf of the petitioners to: attack the composition of the Punjab Service Tribunal was that section 3 of the Punjab Service Tribunals Act, 1974 provides appointment of the Members from the rank of the executive over which the superior Judiciary has no control whatsoever. The appointment of Members is contemplated by section 3(3) of the said Act and the Punjab Service Tribunals (Qualification of Members) Rules, 1978. According to the aforesaid rules a Member of the Tribunal shall be a person who is not below the status of the Secretary to the Provincial Government with at least 18 years' service in Grade-17 and above. The Tribunal constituted by law framed under Article 212 of the Constitution. It cannot be inferred from Article 212 of the Constitution or the Punjab Service Tribunals Act, 1974 that the Members of the Tribunal should be appointed in consultation with the Honourable Chief Justice of this Court or they should belong to the judicial service. In the case of S.P.S. Sampath Kumar (supra) (Indian) Administrative Tribunals Act, 1985 as amended specifically provides for appointment, inter alia, of the Judicial Members of the Tribunal in consultation with the Honourable Chief Justice of India. It may also be noted that in the aforesaid case the Indian Supreme Court took exception to section 6(1)(c) of the Administrative Tribunals Act, 1985 providing for the appointment of Secretary to Government of India as Chairman of the Administrative Tribunal. The contention on behalf of the petitioners can only be accepted after striking down subsection (3) of section 3 of Punjab Service Tribunals Act, 1974 and it has not been demonstrated that said provision is either contrary to Article 212 of the Constitution or is in excess of legislative competence of the Provincial Legislature.
60. It may, however, be added that according to section 3(3) of the Punjab Service Tribunals Act, 1974 the Tribunal consists of Chairman and two members to be appointed by the Governor and under section 4 an appeal was to be heard by the Tribunal as constituted under subsection (3) of aforesaid Act. No exception could be taken to the composition of the Tribunal because the proceedings were controlled and regulated by the Chairman and as observed above, he has invariably been, a retired Judge of this Court. However, vide Punjab Ordinance II of 1980 section 3-A was added which authorises the Chairman to constitute a Tribunal comprising himself or one member or two members or Chairman and one member. Thus, even one member of the Tribunal could be constituted as a Tribunal which is a deviation from section 3. We are of the view that if one Member who belongs to the executive constitutes a Tribunal it is likely that some cases in which the orders of the Governor or senior officers are attacked he may not be abe to act failry, justly and independently thereby eroding the concept of fair administration of justice.
61. We are quite mindful that the object of section 30-A was to enable the Tribunal to dispose of larger number of cases because if every case was required to be heard by the Tribunal as contemplated by section 3, the disposal of cases before the Tribunal might be retarded. We are, therefore, clearly of the view that the composition of the Tribunal to hear a particular case should be such as to inspire public confidence and ensure that the stream of justice flows unpolluted.
62. The situation can be remedied by the learned Chairman of the Tribunal by directing distribution of work of the Tribunal in such a manner that the cases in which orders of the Governor or other senior officer are involved, are heard by the Tribunal comprising, inter alia, the learned Chairman.
This may not, however, be a substitute for' a permanent satisfactory arrangement as to the composition of the Tribunal. We are of the view that in line with the provisions of (Indian)
Administrative Tribunals Act, 1985 the Tribunal should also have equal number of judicial members from amongst the persons qualified to be Judge of this Court and to been appointed after meaningful consultation with the Chief Justice of this Court and every Bench should be headed by at least one Judicial Member so as to eliminate any misgiving or apprehension of an aggrieved person as regards independent working of the Tribunal. This observation is not to be construed as a direction of this Court to legislate because we are conscious of our limitations but to improve the quality of justice by the Tribunal we very strongly feel that it is required to be done.
63. Since we have come to the conclusion that these writ petitions are not maintainable on account of bar of Article 212 of the Constitution, we do not consider it necessary to examine the question as to the maintainability of a writ petition against a show-cause notice or the other grounds of attack.
64. For what has been stated above, we hold that these petitions are not maintainable on account of bar of Article 212 of the Constitution which are accordingly dismissed. Office is directed to send a copy of the judgment to the Chairman of the Punjab Service Tribunal and Secretary Law, Government of the Punjab, Lahore.