1. ' Plaintiff is presently employed as Chief Manager of defendant No,1 i,e, National Bank of Pakistan on account of certain embezzlement. Inquiry proceedings followed show-cause notice and charge- sheet, dated 25th July 2001. The plaintiff has sought the following reliefs:
(a) Declare that the show-cause notice and Charge Sheet dated July 25, 2001 issued by the defendant No,1 are false, illegal, mala fide and void.
(b) Declare that the inquiry proceedings against the plaintiff are not independent and are, therefore, illegal, mala fide and void.
(c) Grant a sum of Rs,5m to the plaintiff against the defendant Nos.1 to 3 jointly/severally by way of damages.
(d) Grant permanent injunction prohibiting the defendants jointly and/or severally through their agents/officers/employees or any other person from, taking any action against the plaintiff on the basis of the show-cause notice/charge-sheet dated 25-6-2001 or otherwise and from taking any adverse action against the plaintiff directly or indirectly in any manner whatsoever in respect of his service.
(e) Any other relief which this Hon'ble Court deems just and proper in the circumstances of the case.
(f) Grant costs of the appeal.
2. ' On the first date of hearing, learned counsel for the plaintiff was confronted that in view of insertion of section 2-A in the Service Tribunals Act employees of a corporation or organization established under the Federal Law are now amenable to the jurisdiction of Service Tribunal and in view of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, jurisdiction of this Court is barred. Learned counsel stated, at bar, that at the moment Service Tribunal is not functioning and in view of the urgency that has arisen; in this case, this Court has jurisdiction to entertain the suit in view of the case-law laid down in Mian Abdul Majid and 7 others v. The Chief Administrator of Auqaf, West Pakistan, Lahore PLD 1972 Karachi 66, Muhammad Afzal Khan v. Karachi Development Authority and 6 others PLD 1984 Karachi 114 and United Bank Ltd. v. Messrs Akbar Agencies Ltd. PLD 1987 Karachi 81. In such circumstances, Civil Court do have jurisdiction. Consequently ad interim orders were passed on 22-10-2001 and notices were ordered to the defendants. Today, when the matter came up for hearing before this Court, Messrs Raja Qureshi, and Miss Masooda Siraj Advocates appeared on behalf of defendants and filed Power, written statement and counter- affidavit to the listed application. Learned counsel for the defendants raised preliminary objection as to the maintainability of suit and jurisdiction of this Court. He further stated that the Tribunal is functioning and this Court has no jurisdiction. He has further relied upon S.M. Ismail Naqvi v.
3. Federation of Pakistan (2000 PLC 1135). In support of his contention that exclusion in terms of Article 212 of the Constitution is absolute as any action that may be taken against the plaintiff will be subject to review not only by the Departmental authority but also by Service Tribunal. He, however, urged that merely issuance of show-cause notice or a consequent inquiry does not furnish a ground to rush to the Court.
4. ' Having heard the arguments of learned counsel for the parties and perused the record.
5. ' It will not be necessary to embark upon the factual controversy that has been urged in the suit culminating into the issuance of a show-cause notice/charge-sheet and consequent domestic inquiry subject-matter of the suit, Firstly, as it may prejudice the case of either party secondly, the same are not relevant for the purpose of deciding the objections as raised by learned counsel for the defendant.
6. It is settled proposition in law, that once challenge is thrown on Court, as to its jurisdiction, then it is incumbent on the Court to decide such question in the first instance before proceedings further on merits and once Court comes to a conclusion that it has no jurisdiction then it must abstain from proceedings any further or to embark on merits of the case, such rule of proprietary is reiterated in case reported Asadullah Rashid v. Muhammad Munir (1998 SCMR 2129 at relevant page 2132), wherein, it was held by the apex Court that before taking any decision relating to admission of a Constitutional petition and/or passing interim relief, the High Court should first decide the question of its jurisdiction in the matter. Rule of proprietary as stated above is applicable with full force in exercise of any jurisdiction possessed by any Court, including this Court. Accordingly, I will first advert to the question of jurisdiction.
7. ' Taking up the contention of Mr. Khalid Jawed, learned counsel for the plaintiff that at the moment the Tribunal is not functioning hence this Court has jurisdiction. In support he relied upon the case of United Bank Limited v. Akber Agencies Limited (PLD 1987 Karachi 81). In this case, the Banking Tribunal though constituted in terms of the Banking Tribunal Ordinance, 1984 yet was rendered ineffective by the Government's inaction, as the machinery and other paraphernalia for establishing such Tribunal were not provided for by the Government for list more than 1-1/2 years.
8. Under such peculiar circumstances, the Court entertained the suit of the plaintiff's Bank and ordered issuance of a notice with further direction that the moment Tribunal is functional, the case is to be transferred to the said Tribunal. There is no cavil to the proposition propounded in the abovereferred case. Learned counsel on the other hand has fairly conceded that the controversy as urged in the plaint squarely falls within the exclusive jurisdiction of the Service Tribunal and since at the moment since same is not functioning this Court will have jurisdiction to entertain the suit. Contentions apparently persuasive are without force. In the instant case, the Service Tribunal is very much in existence at Karachi. It is only occasionally, the Bench, for one or the other administrative reasons do not have sitting at Provincial Head Quarters for a short span of time, but office remains open, Registry is fully functional, performs other mistrial functions like presentation of cases, issuance of notices etc. I have personally made enquiries from Federal Service Tribunal and was informed that the Bench do not have sitting for one week only (i,e, from 22 to 29 November, 2001). Occasional non-convening of the Bench for a short period, will not render the Service Tribunal nonfunctional nor, under circumstances, such eventuality confer any jurisdiction on this Court in respect of matter which exclusively fall within the domain of Services Tribunal. The practice, as has developed recently to rush to this Court for interim relief, during such intervening period when the Bench of the Tribunal is not in sitting at Karachi, is indeed deplorable and cannot be approved of, more particularly when the grievance urged is not of a serious nature, no irreparable loss or injury will be caused only illegality in the early stage of enquiry can effectively be remedied and redressed at various domestic level. Under the circumstances, invocation of jurisdiction of this Court on such count is not approved. As far as contention of the learned counsel that the action, even otherwise of the defendants for issuance of a notice and consequential inquiry is mala fide, that will result in miscarriage of justice, can always be subject to judicial review.
9. In support of his contention, he relies upon the case-law as reported in Muhammad Afzal Khan v.
10. Karachi Development Authority in said case the notices were found to be without lawful authority. It was so held, at time when the employees of KDA were not subject to the jurisdiction of Service Tribunal. Much water has flown since the date of above Judgment, laws have been amended. In more recent time the apex Court in Shagufta Begum v. The Income-Tax Officer, Circle-XI, Zone-B, Lahore (PLD 1989 SC 360), ruled that no writ is maintainable to the extent of challenging vires of notice as it should be challenged by filing of reply before issuing authority or the authorities superior thereto. Such view also echoed in the case of Dr. Muhammad Bashir Chaudhry v.
11. Chairman, Sheikh Zayed Hospital and 3 others (2000 PLC (C.S.) 1093) or Dr. Muhammad Rashid Chaudhry v. Chairman Sheikh Zayed Hospital and Post-Graduate Medical Institute, Lahore (2000 PLC (C.S) 1093). In the instant case as can be noted above, the plaintiff has challenged the vires of the notice and charge-sheet on the ground of mala fide and illegality. The inquiry against the plaintiff is at preliminary stage, plaintiff has submitted reply to the show-cause notice and charge- sheet, twice matters was fixed before the Inquiry Officer but was adjourned at the behest of plaintiff, on the pretext that he is not given access to some documents. Learned counsel for the defendant states at bar that the plaintiff will be given access to all such documents as may be used against him, excepting documents containing, classified information. It is further stated that other officers, who are facing similar show-cause notice and charge-sheet are attending the inquiry but the plaintiff is avoiding to face the inquiry which adversely reflect on the bonafide of the claim.
12. ' In the case of Khalid Mehmood Vattoo v. Government of Punjab (1998 SCMR 2280) and Asadullah Rashid v. Muhammad Munir (1998 SCMR 2129), it has been held that the orders even if mala fide, ultra vires or coram non-judice fall within the ambit of Service Tribunal and jurisdiction of Civil Court including the High Court was ipso facto ousted. Therefore, even otherwise, no prejudice will be caused to the plaintiff if the inquiry is allowed to be conducted before the concerned authorized officer, the result of the inquiry is subject to issuance of final show-cause notice, the plaintiff will be entitled to contest and defend the outcome of such final show-cause notice and charge-sheet, the order passed thereon is subject to Departmental remedy and such outcome it again subject to judicial scrutiny by the Service Tribunal. On this Count also jurisdiction of this Court is ousted. For the foregoing reason, I am constrained to hold that the suit is barred under Article 212 of the Constitution, read with. Section 2-A of the Services Tribunal Act, 1973. Plaint is accordingly rejected.
13. So also the application under Order 39, rules 1 and 2 is dismissed with cost. Learned counsel in the last contended that if at all the Court comes to a conclusion the matter should go before the Service Tribunal then. This matter may be transferred to Tribunal and till then ad interim orders may be contained as was done in Suit No,1080 of 2001 of United Trading Society v. Federation of Pakistan. It may be observed that in said case question as to the jurisdiction was not mooted as was done in the instant proceedings. As already observed above once Court comes to a conclusion, that it has no jurisdiction in a particular matter than it must refrain from proceeding further or passing any order, therefore, the said case is of no avail to the plaintiff. It may further be observed that outcome of inquiry is always subject to correction by the hierarchy provided for, under the service laws, up to the Supreme Court.
14. Plaint rejected.