' This judgment shall dispose of Writ Petition No 25483 of 1998, Writ Petition No, 7518 of 1998, Writ Petition No,7519 of 1998 and Writ Petition No 210 of 1999 as in all these matters common questions of facts and law are involved.
2. Brief facts of the cases are as under:-- Writ Petition No, 7518 of 1998
3. The petitioner in this writ petition joined service of PIAC as Administrative Officer. The services of petitioner were terminated vide order dated 12th December 1996. The petitioner filed Writ Petition No, 20417 of 1996 which was disposed of by this Court as the order of termination was withdrawn.
Afterwards show-cause notice was issued to the petitioner by the respondents for removal of services and for personal hearing, which is Annexure-E at page 19 of this writ petition. The allegation in the said notice is that the petitioner procured his service by using political influence.
Secondly that there was no application for appointment of the petitioner on record. Thirdly that the employees already in the service of PIAC had suffered due to direct appointment of petitioner as their promotion had been affected. Show-cause notice is at page 21. The show-cause notice was challenged on the ground that Hon'ble Supreme Court of Pakistan has held that show-cause notice can only be issued on the basis of allegation of misconduct during the service. Through this writ petition the petitioner made prayer that issuance of show-cause notice be declared as illegal, void, to have been issued without lawful authority and with mala fide and the proceedings in the matter may kindly be declared as such. Writ Petition No, 210 of 1999 and Writ Petition No,25483 of 1998 ' Facts of both these cases are almost similar to W.P.No, 7513 of 1998 as in both these cases show- cause notices have been challenged with the similar prayer as is made in the said writ petition.
Writ. Petition No, 7519 of 1998 ' Facts of this case differ only to the effect that in this case the services of petitioner were terminated vide order. Dated 31-3-1998. The same termination order has been challenged.
6. Written statement have been filed by PIAC, in which specific stand has been taken that after the insertion of section 2-A in Service Tribunals Act, the matter pertaining to the terms and conditions of service, this writ petition is not maintainable. PIAC has also alleged that gross factual misstatement has been made in these writ petitions, therefore, the writ petitions are liable to be dismissed. According to para. 13 of the parawise comments it is submitted that the petitioner in Writ Petition No,7518 of 1998 claimed bimself to be MBA from USA, whereas he was only B.A. In 3rd Division. Maintainability of the writ petitions has also been challenged because only issuance of show-cause notice has been challenged in some of said writ petitions. ,
7. The learned counsel for petitioner contends that under Article 189 of the Constitution of Islamic Republic of Pakistan all the Courts and Public Functionaries are bound to follow the dictum laid down by the Hon'ble Supreme Court of Pakistan. Reliance has been placed on the judgment of Hon'ble Supreme Court of Pakistan in Writ Petition No, 1062 of 1998 to contend that show-cause notice for termination of services can only be issued on the allegation 'of misconduct during the service, but in this case the petitioners are not guilty of misconduct during the service. The learned counsel contends that the issuance of show-cause notice is illegal and it be declared as such. The learned counsel for petitioners contends that the appointments in the cadres of petitioners are made directly and only appointment of Pilots, Stepherd and Air Hostress is made on the basis of recommendation. It is further contended that if the services of petitioners are to be terminated on the allegation levelled in the show-cause notice then the service of all other employees are also liable to be terminated. It is further contended that the petitioners are not responsible for the loss of record in the office of PIAC as the petitioners had duly submitted applications and proper appointment letters were issued. It is further contended that after issuance of appointment letters if it have been acted upon the services cannot be terminated on the ground of flaw in initial appointment, especially when the appointment has been made in accordance with the Rules and Policy. The learned counsel has relied upon the cases Maqsood Ahmad, v. Province of N.-W.F.P through Chief Secretary (2001 PLC (C.S.) 1Q31), Pakistan v. Muhammad Himay Ataullah Farrukh (PLD 1969 SC 407), Chief Secretary v. Sher Muhammad Makhdoom (PLD 1991 SC 973), I.A. Sharwani and others v. Government of Pakistan (1991 SCMR 1041), Mushtsq Ahmed Sabto and others v. Federation of Pakistan (2001 PLC (C.S.) 623), Mujeebullah Aijaz, v. Director-General (PLD 1980 Quetta 58), Muhammad Yar Buttar and 4 others v. Board of Governors (1999 SCMR 819), Mubin-ul-Haq Siddiqui, v. Muhammad Iqbal and others (PLD 1964 (W.P.) Lahore 23), Mrs. M.N. Arshad and others v. Miss Naeema Khan and others (PLD 1990 SC 612), Maj.-Gen. (Retd.) Mian Ghulam Jilani, v. The Federal Government (PLD 1975 Lahore 65), Jamshed Ahmad Khan v. Aurangzeb Khan and 47 others (PLD 1964 (W.P.) Peshawar 250), AIR 1959 Supreme Court 814, S.M.Ismail Naqvi and 238 others v.
Federation of Pakistan (2000 PLC (C.S.) 1135), Abdur Rehman v. Secretary, Economic Affairs Division (1983 PLC (C.S.) 98), Raziuddin v. Chairman, PIAC and 2 others (PLD 1992 Supreme Court 531), Munawar Ali v. Government of Sindh and 2 others (1989 PLC (C.S.) 61), Pakistan Engineering Council and 2 others v. Engineer I.A. Osmani and 3 others (1991 SCMR 654), Syed Afzal Hussain Shah and another v. Director-General (1996 PLC (C.S.) 628) and judgments passed in Civil Appeals Nos.330 to 337 and 436 of 1999 and C.P.L.A.No 1062 of 1998.
8. Mr Tallat Farooq Sheikh, Advocate, for petitioner in Writ Petition 7519 of 1998 has adopted the abovesaid arguments. Additionally he has contended that this is writ petition against show-cause notice and the provision of section 3, subsection (3) of Service Tribunals Act provides that the Tribunal is to be established, which consists of Chairman and the members. Likewise the provision of section 3, subsection (7) provides for constitution of a Service Tribunal consisting of Member to be in Civil Service of Pakistan. The learned counsel contends that if some penalty is imposed the appeal shall lie to the Tribunal constituted under section 3(3) and if the appeal is not against the penalty then the appeal shall lie to the Tribunal constituted under section 3(7). The learned counsel contends, that since the Tribunal under section 3(7) is not constituted, therefore, writ petition is maintainable. He relies on the case of I.A. Sherwani (1991 SCMR 1041). It is further contended that the writ petition is maintainable as Chairman of Service Tribunal has not been appointed so far.
9. The learned counsel appearing for PIAC firstly objected the maintainability of this writ petition on the ground that after the insertion of section 2-A in Service Tribunals Act as in this case according to him the appeal only lies before Federal Service Tribunal. It is further contended that the jurisdiction of this Court is barred under Article 212 of the Constitution and the petition is not maintainable. The learned counsel further contends that the arguments of the learned counsel for petitioners that the Service Tribunal is not constituted under section 3(7) of Service Tribunals Act are irrelevant as the employees of PIAC are regulated by non-statutory regulations, which are known as Pakistan International Airlines Corporation Employees (Service and Disciplines )
Regulations, 1986, and there is long series of judgments of superior Courts that writ petition in such- like cases is not maintainable because their terms and conditions are not governed by any Statutory Rules. Reliance in this respect has been placed on United Bank Limited v. Mian Manzoor Ahmad and others (2000 SCMR 749) and PIA and others v. Koural Charm and others (1999 PLC (C.S.) 1539). It is argued that if the petitioners are not civil servants then the matter is of master and servant and can be challenged before other forum and not in writ jurisdiction. It is further contended that the cases where show-cause notices have been challenged are not maintainable as no final action has been taken and the cases are premature. The learned counsel submits that Writ Petition No, 210 of 1999 filed by Shafqat Ullah Khan is not maintainable for the reason that on the same cause of action Writ Petition No, 8229 of 1997 was filed earlier and was withdrawn on 2-6- 1997 with the direction that PIAC shall pass appropriate order in accordance with law, Second Writ Petition No,7027 Qf 1998 was filed against show-cause notice dated 30-3-1998 which was disposed of on 6th July, 1998 with direction that the petitioner should go to the departmental Authorities or Federal Service Tribunal. These facts, according to the learned counsel, have been concealed while filing this writ petition, which is liable to be dismissed on this secore also.
10. I have beard the learned counsel for parties at length and have gone through the impugned notices and termination orders. The pivotal question in this case is that whether this Court can exercise its powers under Article 199 of the Constitution or not, even after induction of section 2-A in le Service Tribunals Act by which the employees of Corporations and Autonomous Bodies have also been included in the definition of civil servant and where the matter relates to terms and conditions of their services the appeal shall lie to Service Tribunal. Admittedly the petitioners are employees of PIAC which is a corporation and after insertion of section 2-A the employees of PIAC are civil servants. The question whether the employees of PIAC are civil servants are not has no bearing in this case as the remedy of appeal before the Service Tribunal is available to the employees of the corporations also. The Service Rules applicable to the petitioners provide for filing of appeal to the Managing Director under Regulation 85 (ibid), which governs the terms and conditions of the PIAC's employees. Hence the adequate remedy available to the petitioners by filing of appeal before Managing Director, hence the writ petitions are not maintainable on this score also. I am fortified by the dictum laid down by the august Supreme Court in case PIAC v.
Koural Channa and others (1999 PLC (C.S.) 1539). Relevant para. Is reproduced as under: -- "The preceding discussion leaves us in no doubt that the introduction of section 2-A in the Act did not change the status of the employees of the Bank into the civil servants insofar their terms and conditions of service were concerned. In spite of introduction of section 2-A in the Act they continue to be governed by the same terms and conditions of service which applied to them before introduction of section 2-A in the Act. The only effect of introduction of section 2-A in the Act was that instead of ordinary remedy available to an aggrieved employee of the Bank in respect of his terms and conditions of service, he became entitled to take his grievance before the Service Tribunal established under Article 212 of the Constitution which alone could determine it now."
11. The orders if passed are mala fide, ultra vires, coram non judice or without jurisdiction come with the ambit of Service Tribunal and the jurisdiction of High Court is excluded due to bar contained in Article 212 of the Constitution. It is also held in Asadullah Rashid v. Haji Muhammad Munir and others (1998 SCMR 2129). Similar view was taken in case United Bank Ltd. v. Mian Manzoor Ahmad (2000 SCMR 749). Again the Hon'ble Supreme Court has held in Miss Rukhsana Ijaz v. Secretary, Education Punjab and others (1997 SCMR 167) the same view as held in Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351).
Relevant portion at page 364 is reproduced as under:- "The other judgment of this Court on the question of jurisdiction of the Service Tribunal to examine the validity of Service Rules and Notifications and the eligibility for promotion to higher posts is the case of Muhammad Anis v. Abdul Haseen (PLD 1964 SC 539). It was held that the above matters pre-eminently fall within the exclusive jurisdiction of the Tribunal, and therefore, the High Court had wrongly assumed jurisdiction in the present case, which did not vest in it."
' In the judgment reported as I.A. Sherwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041) at page 1063 it has been held as under:- "It is evident that it has been consistently held inter alia by this Court that a civil servant if is aggrieved by a final order, whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy, if any, is by way of an appeal before the Service Tribunal even where the case involves vires of a particular Service Rule or a notification or the question, whether an accused civil servant can claim the right to be represented by a counsel before the Enquiry Officer. We are inclined to hold that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated as an order in terms of subsection (1) of section 4 of the Act in order to file an appeal before the Service Tribunal."
' Even if a statutory rule is ultra vires the Service Tribunal has the jurisdiction to strike it down.
Asadullah Rashid v. Haji Muhammad Muneer and others (1998 PLC (C.S.) 1371) refers as under at pages 1372 and 1373:- "The consistent view of this Court has been that a writ petition or Constitutional Petition under Article 199 of the Constitution is not maintainable by a civil servant in relation to any matter connected with the terms and conditions of service in respect whereof the Service Tribunal has jurisdiction, in view of provisions contained in Article 212 of the Constitution."
12. Secondly, the jurisdiction which bars interference by this Court in writ jurisdiction is that the cases have been filed only against show-cause notice issued to the writ petitioner. Issuance of show-cause notice is no adverse action and it is an interim order and an interim order is a step towards final order eventually to be passed, which can only he challenged in Service Tribunal. The High Court cannot interfere in such-like interim orders in view of dictum laid down by Karachi High Court in Abdul Bari's case (PLD 1981 Karachi 290, 303 and 309). In this respect reliance can also be placed on cases. Of Muhammad Mahmood Ali v. Pakistan through Secretary, Ministry of Finance (1984 CLC 142 at page 145) and Nazir Ahmed Sheikh v. Government of Sindh through Secretary, S&GAD, Sindh, Karachi and another (1998 PLC (C.S.) page 607).
13. Due to the reason that this Court has no jurisdiction to entertain these writ petitions without commenting upon the merit of the cases and E without attending the arguments advanced on merits of the case, all the writ petitions are dismissed. No order as to costs.