' JAVED IQBAL, J.---This appeal, by leave of the Court, is directed against the judgment, dated, 22- 4-1997 passed by learned Single Judge of the Lahore High Court, Lahore, whereby the writ petition preferred on behalf of respondent has been accepted.
2. Leave to appeal was granted by means of order, dated 23-10-1997 which is reproduced hereinbelow to appreciate the factual and legal aspects of the controversy:-- ' "This is a petition for leave to appeal against the judgment, dated 22-4-1997 of the learned Single Judge of the Lahore High Court passed in Writ Petition No,19573 of 1996, filed by the respondent against the petitioner's officer concerned orders, dated 25-8-1996 imposing major penalty of retirement from service as a result of departmental disciplinary proceedings, allowing the same in the following terms:-- "14. For the foregoing reasons this writ petition is accepted. The impugned order, dated 25-8-1996 through which the petitioner was imposed major penalty of retirement from service is hereby declared to be without lawful authority and of no legal effect and quashed. In the result, he shall be deemed to have never been imposed such penalty and consequently is entitled to all benefits for the period he remained out of service as to salary etc. And other benefits which he would have received had the impugned order of his retirement from service had not been passed. The parties are left to bear their own costs."
2. The brief facts are that the respondents was working as Project Director of Institute of Pottery Development, Shandrah. He was charge-sheeted on the basis of the allegations reproduced in the impugned judgment in paras. 2(i) to (vii). Since reply to the show-cause notice was not found satisfactory, an Enquiry Officer was appointed who, according to the petitioner, after holding proper inquiry found the respondent guilty in respect of the charges referred to in the enquiry report. As a result thereof major penalty of retirement from service was imposed upon the respondent. After that he filed aforementioned writ petition which has been allowed in the above terms. The petitioner has, therefore, filed the present petition for leave to appeal.
3. We have heard Mr. M.N. Beg, learned Advocate Supreme Court for the petitioner, and Mr. Ahmad Awais, learned Advocate Supreme Court for the respondent/caveator. We are inclined to grant leave to consider the question, as to whether the enquiry conducted for taking disciplinary action against the respondent suffered from any infirmity which violated any of the statutory rules which the petitioner had framed. Leave is, accordingly, granted. The interim order, dated 5-6-1997 of this Court will continue till, further orders. The appeal arising out of the above petition may be fixed for hearing at an early date."
3. It is mainly contended by Mr. M.N. Beg, learned Advocate Supreme Court on behalf of appellant that proper opportunity of hearing was not afforded by learned High Court which resulted in serious miscarriage of justice and writ petition preferred on behalf of respondent has been accepted without its admission for regular hearing by depriving the appellant to file proper written statement. It is urged with vehemence that all the necessary formalities, as enumerated in the Government Servants (Efficiency and Discipline) Rules, 1973, hereinafter referred to as the rules, were adhere to strictly and on the basis of sufficient incriminating material major penalty was imposed by the competent authority and respondent was compulsory retired from service vide order, dated 25-8-1996. It is further argued that the learned Judge in Chambers has substituted the well-based conclusion derived by the Inquiry Officer duly concurred by authorized officer and authority with that of his own having no lawful justification whatsoever. It is further contended that primary objection regarding non-maintainability of writ petition was not dilated upon and decided by the learned Single Judge in Chambers as admittedly no departmental appeal whatsoever was filed by the respondent. It is contended that Constitutional jurisdiction as conferred under Article 199 of the Constitution of Islamic Republic of Pakistan cannot be invoked in view of the availability of alternate remedy which was not pressed into service by the respondent for reasons best known to him. The learned Advocate Supreme Court pointed out that the respondent had participated in the Inquiry proceedings as proper opportunity of hearing was afforded to him and the attention of learned Single Judge in Chambers was drawn to the relevant correspondence which were not considered without any rhyme and reason. It is mentioned that disputed questions of facts cannot be decided while exercising Constitutional jurisdiction which otherwise could not have been decided without recording the evidence which aspect of the matter does not fall within the ambit of Constitutional jurisdiction.
4. Mr. Ahmad Awais, learned Advocate Supreme Court appeared on -behalf of respondent and supported the impugned judgment by arguing that the Constitutional jurisdiction could have been invoked in case of injustice or mala fides. It is, however, admitted that no departmental appeal could be filed but with the submission that since the entire atmosphere was hostile and uncongenial as such there could have been no result of filing departmental appeal is it would have been nothing but mere a completion of formality.
5. We have carefully examined the respective contentions as agitated" on behalf of the parties in the light of relevant provisions of law and record of the case. The inquiry proceedings, report of Inquiry Officer, view of authority and impugned judgment have also been perused. Let we mention here at the outset that the impugned judgment is not sustainable on various grounds. It is imperative to note that the main objection regarding the maintainability of writ petition was neither dilated upon nor decided in spite of the fact that it was agitated time and again and incorporated in the comments which is reproduced hereinbelow for ready reference:-- ' "The writ petition is premature. According to the efficiency and discipline rules the petitioner had an opportunity of filing departmental appeal against the orders of the authority within thirty days but the petitioner having no excuse about the charges against him did not avail the opportunity and has filed the instant writ petition without any cause of action just to waste the precious time of this Hon'ble Court as such the writ is not maintainable and is liable to be dismissed."
6. The objection as reproduced hereinabove has been ignored without any lawful justification. It is quite amazing that the respondent had violated the prescribed procedure by not filing the departmental appeal which aspect of the matter escaped unnoticed and resulted in serious miscarriage of justice. Admittedly an alternative remedy was available to the respondent, which should have been availed prior to invoking the Constitutional jurisdiction of High Court. We have not been persuaded to agree with learned Advocate Supreme Court on behalf of respondent that departmental appeal could not be filed due to hostile atmosphere prevailing at the opportune moment in the department for the simple reasons that without having pressing into service proper and efficacious alternate remedy the Constitutional jurisdiction cannot be invoked and besides so no evidence could be brought on record by the respondent showing that disciplinary action was initiated on the basis of mala c fides which can be asserted easily but difficult to prove. It is worth mentioning that the writ petition was decided without proper admission which depicts somewhat haste and the contention of learned counsel has substance that proper opportunity of hearing was not afforded. The learned counsel for respondent has not controverted the said position. A careful scrutiny of record would reveal that a charge-sheet was framed and served upon the respondent by whom reply was submitted and after completion of all the necessary formalities as envisaged under the rules major penalty of compulsory retirement was awarded which was never assailed by filing departmental appeal. There were certain disputed questions of facts which could have been decided on the basis of evidence by the forums available in the departmental hierarchy and High Court should have not entered into the arena of factual disputes and controversies. It is well- settled by now that "the superior Courts should not involve themselves into investigation of disputed question of fact which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation by a suit. The Constitutional jurisdiction is intended primarily for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate inquiry into complicated or disputed fact". 1971 SCMR 110, 1970 SCMR 853, PLD 1964 SC 636, PLD 1983 SC 280, Arshad & Company v. Capital Development Authority 2000 SCMR 1557. The investigation of disputed facts in writ jurisdiction are never considered desirable. In the case of Mian Muhammad v.
Government of West Pakistan (1968 SCMR 1935) it was held:--
(i) In a proceeding in exercise of extraordinary jurisdiction which is usually decided upon affidavits the superior Courts should not involve themselves into investigations of disputed questions of fact which necessitate the taking of evidence.
(ii) This extraordinary jurisdiction is intended for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts."
7. There is no cavil with the proposition that "Constitutional jurisdiction of High Court, would be declined where the petitioner has not exhausted all remedies available to him before filing of Constitutional petition and aggrieved party must approach specific authority for the redressal of his grievances.- Even otherwise "where a particular statute provides a self-contained machinery for the determination of . Questions arising under the Act as where law provides a remedy by appeal or revision to another Tribunal fully competent to give any relief, any indulgence to the contrary by the High Court is bound to produce a sense of distrust in statutory Tribunal." 1989 CLC 1938 (DB), PLD 1989 Kar. 157 (DB). "Where, therefore, a petitioner without exhausting his remedy provided by the statute under which he complained had filed a writ petition, it was held that the application in the circumstances would not lie." (PLD 1990 Quetta 41, PLJ 1990 Quetta 36 (DB), 1987 CLC 1229 (DB), PLD 1988 Pesh. 9, NLR 1988 Scr 1 (DB), PLD 1967 Dacca 6 (DB), PLD 1967 Dacca 708. "In the case of Zafar-ul-Ahsan v. Republic of Pakistan PLD 1960 SC 113, the Supreme Court laid down the principle of the ouster of the jurisdiction of Courts which were not kept in view while passing the impugned judgment. It was held:--
(1) If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust jurisdiction of the Courts is that --
(a) the authority should have been constituted as required by the statute;
(b) the person proceeded against should be subject to the jurisdiction of the authority;
(c) the ground on Which action is taken should be within the grounds stated by the statute;
(d) the order made should be such as could have been made under the statute.
(2) These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority.
(3) If an Appellate Authority is provided by the statute the omission or irregularity alleged will be a matter for that authority, and not for a Court of law."
8. It is mainly prevailed upon the High Court that proper opportunity of hearing was not afforded to the respondent which in fact is not correct as it transpired from record that a full-fledged inquiry was got conducted by Ch. Ahmad Hussain, Project Officer, P.S.I.C. By whom all the mandatory requirements as enshrined in the rules were adhered to in letter and spirit and copies of all the necessary documents were provided to the respondent by the Inquiry Officer personally on 26-7- 1995. The respondent was also allowed to inspect relevant record in pursuant to his request made vide application dated 3-8-1995. The respondent participated in the inquiry on 28-8-1995 but subsequently remained absent on 29-8-1995. The Inquiry Officer sent a letter on 30-8-1995 asking respondent to attend the inquiry proceedings. The respondent after having inspected the relevant record furnished his reply to charge-sheet on 30-8-1995. The statements of witnesses were recorded in presence of the respondent and in recognition whereof he signed the statement sheets. The copies of inquiry proceedings were also cross-examined by the respondent. A careful scrutiny of the record would reveal that the efforts have been made by the respondent to get the matter delayed on one or the other pretext who remained absent again on 4-12-1995 and summoned for 11-12-1995 but he did not turn up. In this regard letter dated 7-12-1995 and note of Inquiry Officer dated 14-12-1995 can be referred. After holding the inquiry, report was submitted to the authorized officer on 18-12-1995 showing that charges Nos.II, and III were proved against the respondent. The authorized officer also provided an opportunity of hearing to the respondent and written explanation in this regard was submitted by the respondent on 8-1-1996. The authorized officer, as per prescribed procedure, submitted his recommendations to the authority. It is worth mentioning that the Managing Director P.S.I.C. (designated as authority) afforded personal hearing to the respondent and ultimately major penalty was imposed and respondent was retired compulsory on 25-8-1996. On the basis of facts and narrated hereinabove it cannot be said that proper opportunity of hearing was not afforded to the respondent. The charges Nos.II and III were proved and it is not understandable that how he-was exonerated by the learned Single Judge in Chamber. It also prevailed upon the learned Single Judge in Chambers that nature of penalty was never suggested by the Inquiry Officer who has rightly done so in view of the provisions as envisaged in rule 6(6) read with rule 7 of the rules. It was not mandatory for the Inquiry Officer to make any recommendation regarding the nature of penalty. Admittedly the case of misappropriation could not be proved against the respondent but his conduct is indicative of the fact that he was having no control on his subordinates which amounts to inefficiency. No doubt that the fake and forged vouchers were prepared by Assistant namely Adnan but being Director ultimately the respondent was responsible for his inefficiency, careless and callous approach towards official duties which amounts to serious misconduct and is apparent on record. How Adnan alone can be held responsible for all the glaring illegalities, serious irregularities, misappropriation, preparation of forged and fake vouchers for which he has been dismissed but the said illegalities/irregularties could not have been committed without the connivance of respondent which was either deliberate or due to alarming inefficiency and lack of propot supervision of the administrative and financial affairs of the department. As mentioned hereinabove the learned Single Judge in Chambers should have not decided the disputed questions of facts while exercising his Constitutional jurisdiction. Be as it may since the respondent has already attained the age of superannuating and the charge of misappropriation could not be proved hence the direction contained in Office Order No,PSIC/MD/S0/323, dated 25-8-1996 pertaining to compulsory retirement regarding recovery of Rs,1,02,546 from his service dues is set aside and order modified up to the said extent. The compulsory retirement of the respondent shall be deemed to have taken place w.e.f, 25-8-1996 when the order was passed by the authority.
9. In view of what has been discussed hereinabove the impugned judgment is set aside and appeal is hereby accepted subject to above modification.