JUDGMENT MUMTAZ ALI MIRZA, J.-- This judgment will dispose of Constitution Petitions Nos. 659, 660, 536, 895, 896, 399, 400, 403, 448, 449, 450, 401, 452, 453, 605, 606, 607, 608, 323, 324, 325, 326, 327, 328, 329, 330, 363, 48, 496, 498, 486, 488, 489, 490, 491, 378, 398, 609, 610, 611, -530, 531, 532, 533, 534, 537 619, 620, 621, 558, 559, 560, 561, 562, 563, 564, 781, 497, 397, 402, 451, 749, 760, 758, 762, 750, 751, 759, 763, 764, 765, 752, 754, 755, 753, 756, 761, 757, 260, 261, 262, 265, 539, 601, 602, 603, 492, 493, 494, 316, 578, 310, 482, 483, 259, 535, 469, 312, 313, 314, 315, 891, 600, 785 of 2001, 2846, 2902, 2548, 2904, 2913, 2965 and 2864 and 2000 (111 in number), as common questions of law and facts are involved in these petitions.
2. The petitioners in all these petitions are civil servants employed in either Income Tax Department or the Customs Department under the administrative control of the Central Board of Revenue, Islamabad. These petitions have been proceeded against under the Removal From Service (Special Powers) Ordinance, 2000 promulgated by the President on 27.5.2000 as amended by Removal From Service (Special Powers) Ordinance, 2001, promulgated by the President on 3:2.2001.
The proceedings initiated against the petitioners in ALI these petitions seek to impose one or more of the penalties enumerated in Section 3 of the Ordinance. As the petitioners were likely to influence disciplinary proceedings set a foot against them under the Ordinance, they were suspended from service on 28.5.2000 under Section 4 of the Ordinance for a period of six months which order of suspension was subsequently extended for another six months on 27.11.2000. Feeling themselves aggrieved of the order of suspension as passed against them, these petitioners have instituted the afore-mentioned petitions under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to call in question the legality of the orders of their suspension on the following grounds:
(i) that the petitioners have been proceeded against under the Special Powers Ordinance, 2000 as amended by the Ordinance, 2001, A reference to the preamble of the Ordinance would show that it has been enacted to make provision for the dismissal, removal etc. Of certain persons from Government Service and corporation Service and as such it is applicable only to a certain category of persons. The petitioners by necessary implication are, therefore, not civil servants as defined in the Civil Servants Act, 1973;
(ii) that the Special Powers Ordinance whereunder the order of suspension has been passed against the petitioners makes only a final order within the contemplation of Section 9 of the Ordinance appealable under Section 10 of the Ordinance. The order of suspension, thus, not being such a final order is not appealable before the Federal Service Tribunal and as such the only remedy available to the petitioners is to invoke the Constitutional jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973; (i.e) that the bar contained in Article 212 of the Constitution is attracted only if an order relates to the terms and conditions of a civil servant and is also such as is appealable before the Federal Service Tribunal. The order of suspension neither relates to the terms and conditions of the petitioners nor is it appealable before the Federal Service Tribunal and as such the jurisdiction of the High Court under Article 199 of the Constitution to entertain the petitions instituted by the petitioners is not ousted;
(iv) that the Special Powers Ordinance, 2000 as amended is a complete code in itself. A remedy of appeal not provided for against the order of suspension in the Ordinance cannot be availed of by the petitioners by having recourse to any other law as the Ordinance as per language used in its Section 11 shall have effect notwithstanding anything contained in any other law, meaning thereby that it shall override all other laws. This being so, the petitioners do not have a remedy of appeal against the order of suspension and have rightly invoked the Constitutional jurisdiction of this Court;
(v) that the order of suspension is bad in. Law in that the petitioners before being suspended were not confronted with any material justifying the initiation of the disciplinary proceedings under Section 3 of the Ordinance;
(vi) that the order of suspension was in the first instance passed for a period of six months on 28.5.2000 and thereafter the same was extended for another six months on 27.11.2000. The Special Powers Ordinance doe snot make any provision for such an order of suspension which is also opposed to the declared object behind the enactment of the Ordinance;
(vii) that the order of suspension being stigmatic in character has condemned the petitioners unheard and as such is violative of the most celebrated principle of natural justice the world over that nobody shall be condemned unheard;
(viii) that the Special Powers Ordinance is violative of the fundamental rights conferred on the petitioners by Chapter No. 1 Part-ll of the Constitution of Islamic Republic of Pakistan, 1973 and being violative of the said rights, it is ultra vires the Constitution. As the petitioners have raised the question of the vires of the Special Powers Ordinance, they cannot have recourse to the Federal Service Tribunal as such a plea cannot be raised there and can mere appropriately be raised before the High Court in its Constitutional jurisdiction;
(ix) that assuming for the sake of argument that the petitioners have a right of appeal before the Federal Service Tribunal, the same is illusory in that the Chairman and the Members of the Federal Service Tribunal are appointed by the Federal Government which has promulgated the Special Powers Ordinance, 2000 as amended. The Chairman and the Members of the Federal Service Tribunal having no security of tenure cannot effectively strike down an action taken against the petitioners under the Special Powers Ordinance;
(x) that the Special Powers Ordinance as originally promulgated on 27.5.2000 provided for suspension as one of the penalties enumerated in section 3 thereof. However, the said section was amended through the amending Ordinance of 2001 and the penalty of suspension was deleted from it. This deletion of the penalty of suspension from Section 3 was not accidental but had an object behind and the object was to make the provision of appeal provided for under Section 10 of the Ordinance available only to a person aggrieved of a final action taken under Section 9 with respect to any of the penalties enumerated in Section 3 of the Ordinance. This would, it was contended, clearly mean that the penalty of suspension having been deleted from Section 3 of the Ordinance, there would be no appeal against the penalty of suspension, the same having been deleted from Section 3 of the Ordinance as aforesaid;
(xi) that by not providing for an appeal against the order of suspension within the meaning of Section 9 of the Special Powers Ordinance, a person aggrieved of the order of suspension was virtually rendered remedies. Hence, the justification for the petitioners to invoke the Constitutional jurisdiction of the High Court for seeking redress against the order of suspension;
(xii) that a learned Division Bench of the Sindh High Court has already held the impugned order of suspension as not being amenable to the jurisdiction of the Federal Service Tribunal. The law laid down by the said learned Division Bench furnished yet another justification for the petitioners to maintain their Constitution petitions before this Court against the order of suspension;
(xiii) that the judgment of the learned Division Bench of the Sindh High Court was binding on this Court sitting singly;
(xiv) that the judgment rendered by the learned Division Bench of the Sindh High Court in the matter of the civil suit instituted by the suspended employees of the Customs and Income Tax Departments was appealed against by the Government in the Honourable Supreme Court and the said honourable Court refused to grant leave against the exercise of jurisdiction by the High Court.
3. The Constitution petitions on coming-up before this Court on different dates were admitted to regular hearing to examine the aforesaid questions of law as raised by the petitioners and notice was directed to issue to the respondent CBR/Government to enter appearance and to meet the case as set-up by the petitioners in the above-mentioned Constitution petitions. Accordingly, pursuant to the notice issued, written statements were filed by and on behalf of the respondent CBR/Government through Mr. Mansoor Ahmad, Deputy Attorney-General for Pakistan. The position taken-up by the learned Deputy Attorney-General for Pakistan in the written statements filed on behalf of the respondents was that the order of the petitioners as civil servants and that the order of suspension being appealable before the Federal Service Tribunal, jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 was expressly ousted by virtue of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
4. The petitioners in these petitions and the connected petitions which are being disposed of alongwith these petitions by this Court's order were represented by Raja Muhammad^ Anwar, Senior Advocate Supreme Court, assisted by Mr. Shafqat Ali Abbasi, Advocate, Dr. Abdul Basit, Advocate, Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court assisted by Dr. Amjad Bukhari, Mr. Khawar Hashmi, Mr. Ikhtiar Khan and Mr. Farrukh Ahmad Khan Lodhi, Advocates, Raja Mahmood Akhtar Khan, Mr. M. Ikram Chaudhry, Sardar Muhammad Aslam, Mr. Amjad Hameed Ghauri, Mr. Abdur Rahim Bhatti, Mr. M. Kowkab Iqbal, Mian Shahid Iqbal, Mr. Haider Hussan, Sh. Riaz- ul-Haq and Ch. Zamurrd Hussan, Advocates, while the respondent CBR/Government was represented by Mr. Mansoor Ahmad, Deputy Attorney-General for Pakistan alongwith Raja Iftikhar Ahmad Javed, Standing Counsel, for the Federal Government, Sh. Izhar-ul-Haq, Advocate, and Mr. Vakeel Ahmad Khan, Member Administration CBR.
5. As Mr. Mansoor Ahmad, learned Deputy Attorney- General for Pakistan In the written statements Tiled on behalf of the CBR/Government has raised a preliminary objection against the maintainability of the Constitution petitions instituted by the petitioners on the basis of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, it appears appropriate that the preliminary objection as raised by the learned Deputy Attorney-General with respect to the ouster of jurisdiction of this Court may be attended to in the first instance. I, therefore, take-up the preliminary objection first and for a while postpone the treatment of the legal questions raised by and on behalf of the petitioners which have been reproduced hereinabove, to be taken-up later. As the objection of the learned Deputy Attorney-General for Pakistan is based upon the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, the same is reproduced hereunder for facility of reference:- "Administrative Courts and Tribunals.
212. (1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act [provide for the establishment of] one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--
(a) matters relating to the terms and conditions of persons [who are or have been] in the service of Pakistan, including disciplinary matters;
(b) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy and tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(2) Notwithstanding anything herein- before contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction Of such Administrative Court or Tribunal extend [and ALI proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal [other than an appeal pending before the Supreme Court] shall abate on such establishment]: 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 it the form of a resolution, [Majlis-e-Shoora (Parliament)] by law extends the provisions to such a Court or Tribunal.
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall prima facie only if . The Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal".
A reference to Article 212(1 )(a) and Sub-Article (2) .Of this Article would show that matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters have been left to be Decided exclusively by the Administrative Court or Tribunal established under clause (1) of Article 212 of the Constitution and the jurisdiction of all other Courts to grant an injunction, make any order or entertain any proceedings in respect of any matter to which jurisdiction of such Administrative Court or Tribunal extends has been taken away.
Not only this Sub-Article (2) further ordains that all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal shall abate on the establishment of the Administrative Court or Tribunal. Thus Article 212(1 )(a)(2) of the Constitution with a view to excluding the jurisdiction of all other Courts including the High Court prefixes the following conditions:--
(i) the dispute must relate to the term and conditions of service;
(ii) the terms and conditions of service must be of the persons in the service of Pakistan; (i.e) the existence of an Administrative Court or Tribunal to entertain the dispute with regard to the terms and conditions of service of persons in the service of Pakistan;
(iv) the competence and the exclusiveness of the jurisdiction of the Administrative Court or Tribunal to entertain the dispute.
6. So far as the conditions mentioned at serial Nos. 3 and 4 are concerned, there is no difficulty in appreciating their meaning, scope and connotation. However, the conditions mentioned at serial Nos. 1 and 2 need to be attended to and explained because these have not to be understood according to one's on thinking but the definition given in the Statute and the Constitution has to be kept in mind in understanding them. I shall, therefore, first attempt to explain as to what are the minings, import and the connotation of term "terms and conditions of service", In ordinary Urdu parlance, the term "terms and conditions of service" means However, the Legislature has not left this phrase to the imagination of a person and has taken care to define the phrase in the Statute itself. The Statute is the Civil Servants Act, 1973 and the relevant sections are Sections 3 to 22 of the Act. While Sections 4 to 22 enumerate the terms and conditions of service of a civil servant, Section 3 says that the terms and conditions of service of a civil servant shall be as defined in this Act (Civil Servants Act, 1973) and the rules made thereunder. Condition No. 2 referred to above was that the terms and conditions of service must be of persons in the service of Pakistan. It is, therefore, necessary to understand the meaning and the connotation of the words "service of Pakistan". This too has not been left to the imagination of a person but has been defined in Article 260 of the Constitution of Islamic Republic of Pakistan, 1973 as under:- Service of Pakistan' means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an Ail- Pakistan Service, service in the Armed Forces and.
Any other service declared to be a service of Pakistan by or under Act of [Majlis-e-Shoora (Parliament)] or of a Provincial Assembly".
To explain as to who is a civil servant, the words used in Article 260 of the Constitution to define service of Pakistan have been bodily lifted and incorporated in Section 2(l)(b) of the Civil Servants Act, 1973. Civil servant has, therefore, been defined as a person who is a member of an All-Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs Of the Federation, including any such post connected with defence.
7. Having explained the meaning and the connotation of the words "terms and conditions of service" as used in the Civil Servants Act, 1973 and Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and having examined the connotation of the words "service of Pakistan" and having seen the definition of a civil servant in Section 2(l)(b) of the Civil Servants Act, 1973, it is now easy to imagine of the nature and character of the dispute which is entertainable by an Administrative Court or Tribunal as referred to in Article 21,2 of the Constitution of Islamic Republic of Pakistan, 1973 and the Service Tribunals Act, 1973. With a view, therefore, to excluding the jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the dispute must relate to:-
(i) the terms and conditions of service;
(ii) the terms and conditions of service must be of service must be of a civil servant; (i.e) there should be a Service Tribunal to entertain the dispute relating to the terms and conditions of the civil servants;
(iv) the dispute should be such as the Service Tribunal should be competent to entertain.
If these for conditions are met, the jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to entertain any such dispute which relates to the terms and conditions of service, of civil servants, for entertaining which there is an Administrative Tribunal and the said Tribunal is competent to entertain the dispute, is completely ousted by virtue of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
8. The above examination of the law was only theoretical so as to show as to when and in what circumstances the jurisdiction of the High Court to entertain any dispute under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with respect to any service matter was ousted. I shall now attempt to apply the above theory to the facts of the case in hand so as to see as to whether the dispute brought before this Court in the above Constitution petitions by the petitioners is such as is the one with respect whereto the Service Tribunal alone has the jurisdiction. It is an admitted position that the only order challenged by the petitioners in all these petitions is the order of suspension passed by the respondent CBR/Government under Section 4 of the Special Powers Ordinance, 2000 as amended. To oust the jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic ' of Pakistan, 1973 to entertain the dispute with respect to the order of suspension, what needs to be shown is:-
(i) that the petitioners are civil servants;
(ii) that the order of suspension as passed against the petitioners is an order which relates to the terms and conditions of service of the petitioners; (i.e) that the order of suspension is an order which is appealable before the Service Tribunal;
(iv) that there exists a Service Tribunal of exclusive jurisdiction to entertain the appeal of the aggrieved * civil servants with respect to the order of suspension.
It has been shown hereinabove in the body of this judgment with reference to Article 260 of the Constitution of Islamic Republic of Pakistan, 1973 read with the definition of a civil servant as contained in Section 2(l)(b) of the Civil Servants Act, 1973 that all the petitioners are civil servants.
Thus, the first condition is met that the dispute must relate to a civil servant. The second condition as hereinabove discussed was that the dispute must relate to the terms and conditions of service.
What, therefore, heeds to be shown is that the order of suspension is an order which relates to the terms and conditions of service of the petitioners/civil servants. In this connection, a reference is made to Section 16 of the Civil Servants Act, 1973 which reads as under:- "Efficiency and discipline: A civil servant shall be liable to prescribed action and penalties in accordance with the prescribed procedure."
This Section 16 of the Civil Servants Act, 1973 reproduced hereinabove is amongst the sections of the said Act of 1973 which define the terms and conditions of service. As per this Section 16, efficiency and discipline is a term and condition of service. Applying this definition as given in Section 16 of the Civil Servants Act, 1973 to the impugned order of suspension, it shall be seen that the order of suspension has been passed under Section 4 of the Special Powers Ordinance in connection the disciplinary proceedings set afoot against the petitioners/civil servants. The order of suspension, therefore, qualifies to be an order which relates to the terms and conditions of service of the petitioners who are civil servants. The phraseology used in Article 212(l)(a) also lends support to the argument that the order relating to suspension having been passed during the course of the disciplinary proceedings is an order which relates to the terms and conditions of service. For facility of reference Article 212(l)(a) is reproduced hereunder:- "matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters".
Having examined the nature and character of the order of suspension as passed against the petitioners with reference to Section 16 of the Civil Servants Act, 1973 and Article 212(1)(a) of the Constitution of Islamic Republic of Pakistan, 1973 and having shown that the order of suspension having been passed against the petitioners during the course of disciplinary proceedings initiated against them is an order which relates to their terms and conditions of service, I shall now refer to the case-law wherein the order of suspension has been held to be an order relating to the terms and conditions of service. Reference in this behalf can be made to:
(1) Muhammad Sadiq *Khokkar v. Engineer-in-Chief Pakistan Army, G.H.Q, and another (1985 SCMR 63), in which it has been held that grievance of a civil servant arising out of the order of his suspension was germane to the terms and conditions of service and the dispute with regard thereto fell within the exclusive jurisdiction of the Service Tribunal under Article 212(2);
(2) Akhtar Ali v. Province of Punjab (PLD 1992 Lah. 127), where the Constitution petition instituted by the petitioner assailing his suspension from service as also initiation of disciplinary action against him was held to be incompetent as the matter relating to the suspension of the petitioner and the initiation of disciplinary proceedings against him was held to be relating to the terms and conditions of service;
(3) Province of Punjab and another v. Ch. Muhammad Ashraf and another (2000 PLC (C.S.) 118), in which the Honourable Supreme Court held that the matters relating to the terms and conditions of civil servants would include suspension from service of a civil servant and Service Tribunal alone had the jurisdiction to adjudicate upon such matters.
Having dealt with the question that the petitioners are civil servants and the order of suspension as passed against them relates to the terms and conditions of their service, I now proceed to examine the question that the order of suspension as passed against the petitioners is an appealable order before the Service Tribunal. The case of the petitioners before this Court is that the order of suspension has been passed against them under the Special Powers Ordinance, 2000 as amended, which is a complete code in itself and has an overriding effect on ail other laws holding the field and that the Special Powers Ordinance, 2000 as amended makes no provision for an appeal against the order of suspension and as such their Constitution petitions to call in question the same are competent before this Court. In order, therefore, to attend to the question as to whether the order of suspension is appealable before the Service Tribunal, it is necessary to reproduce Sections 3, 4, 9, 10 and 11 of the Special Powers Ordinance as amended and Section 4 of the Service Tribunals Act, 1973 as unamended: Section 3 of the Special Powers Ordinance, 2000 as amended.
"Dismissal, removal and compulsory retirement etc.- - (1) Where, in the opinion of the competent authority, a person in Government or corporation service, is--
(a) inefficient, or has ceased to be efficient for any reason, or is guilty of being habitually absent from duty without prior approval of leave; or
(b) guilty of misconduct; or
(c) corrupt, or may reasonably be considered as corrupt, because--
(i) he, or any of his dependants or any other person, through him or on his behalf, is in possession of pecuniary sources or property, for which he cannot reasonably account for, and which are disproportionate to his know sources of income; or
(ii) he has assumed a style of living beyond his known sources of income; or (i.e) he has a persistent reputation of being corrupt; or
(iv) he has entered into plea bargaining under any law for the time being in force and has returned the assets or gains acquired through corruption or corrupt practices voluntarily; or
(d) engaged, or is reasonably believed to be engaged, in subversive activities, and his retention in service is prejudicial to national security or he is guilty of disclosure of official secrets to any unauthorised persons; or
(e) found to have been appointed or promoted on extraneous grounds in violation of law and the relevant rules."
Section 4.
"Suspension.- A person against whom action is proposed to be taken under sub-section (1) of Section 3 may be placed under suspension with immediate effect if, In the opinion of the competent authority, suspension is necessary or expedient: Provided that the competent authority may, in an appropriate case, for reasons to be recorded in writing, instead of placing such person under suspension, require him to proceed on such leave as may be admissible to him from such date as may be specified by the competent authority".
Section 9: "Representation and review.- (1) A person who has been dismissed or removed or compulsorily retired from service or reduced to lower post or pay scale or against whom any order has been made under Section 3 by the competent authority, may within fifteen days from the date of communication of the order prefer a representation to the Chief Executive or such officer or authority as the Chief Executive may designate: Provided that where the order has been made by the Chief Executive such person may, within the aforesaid period, submit a review petition to the Chief Executive.
(2) The Chief Executive/or an officer or authority, as may be designated for the purpose by the Chief Executive, may, on consideration of the representation, review petition and any other relevant material, confirm, set aside, vary or modify the order in respect of which such representation or review petition is made within sixty days thereof'.
Section 10: "Appeal.-- Notwithstanding anything contained in any other law for the time being in force, any person aggrieved by any final order under Section 9 may, within thirty days of the order, prefer an appeal to the Federal Service Tribunal established under the Service Tribunals Act, 1973 (LXX of 1973)".
Section 11.
"Ordinance to over-ride other law.- The provisions of this Ordinance shall have effect notwithstanding anything to the contrary contained in the Civil Servants Act, 1973 (LXX1 of 1973) and the rules made thereunder and any other law for time being in force".
Section 4. Of Service Tribunals Act, 1973. "Appeals to Tribunals'.- Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, which ever is later, prefer an appeal to the Tribunal."
Section 3 of the Special Powers Ordinance, 2000 as amended as reproduced her in above prescribes various penalties which can be imposed on the accused civil servant. Section 4 provides for the suspension of a civil servant against whom disciplinary action is initiated. Section 9 provides that if the order of dismissal, removal, reduction to lower rank or pay scale has-been passed against a civil servant by an authority designated by the Chief Executive, the said civil servant shall have a right to file a Representation to the Chief Executive or such officer or authority as designated by him and in case any such order has been passed by the Chief Executive himself, an aggrieved civil servant shall file a review petition before the Chief Executive under Section 9. The order passed on the representation of aggrieved civil servant by the designated authority or order passed on the review petition of the aggrieved civil servant by the Chief Executive shall be .The final order whereagainst appeal is provided for in section 10. Section 10 enjoins that if a civil servant feels himself aggrieved of a final order within the meaning of Section 9, he shall have a right of appeal before the Service Tribunal. Section 11 gives the Special Powers Ordinance, 2000 as amended overriding effect so as to say that the said Ordinance shall have effect notwithstanding anything to the contrary contained in the Civil Servants Act, 1973 and the rules made therein and any other law for the time being in force.
9. This cursory glance at the provisions of Sections 3, 9, 10 and 11 would show that if a civil servant feels himself aggrieved of a final order within the contemplation of Section 9, he shall have a right of appeal before the Service Tribunal notwithstanding anything to the contrary contained with respect to the filing of appeal against such a final order in any other law. Section 10 which makes provision for appeal nowhere provides that a civil servant can feel aggrieved of a final order only and not of an order simpliciter, if the intention of the law-maker was to debar an aggrieved civil servant from filing an appeal against, an order which was not final, the phraseology used in Section 10 of the Special Powers Ordinance, 2000 as amended would have been in a different language, In that event, it should have provided that not withstanding anything to the contrary contained n any other law for the time being in force, no aggrieved civil servant whether by a final order or by any other order shall have a right of appeal except under Section 10. This, however, is not so as is clear from the bare reading' of Section 10 whereunder the right of appeal has been conferred only against a final order. No other order is mentioned in this Section 10. So far as the overriding effect of Section 11 of the Special Powers Ordinance, 2000 as amended is concerned, a civil servant aggrieved by a final order shall have a right of appeal only under Section 10 of the Special Rowers Ordinance, 2000 as amended and not under Section 4 of the Service Tribunals Act as unamended as the said section also makes a provision for filing of an appeal by an aggrieved civil servant against a final order. Section 4 of the Service Tribunals Act, 1973 was amended by Ordinance XVII of 1997 whereby the word "final" in Section 4 of the Service Tribunals Act, 1973 was omitted. Thus, Section 4 of the Service ' Tribunals Act, 1973 as amended by Ordinance XVII of 1997 now reads that any civil servant aggrieved by any order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within 30 days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal. Thus, pursuant to the amendment made in the Service Tribunals Act, 1973 by Ordinance XVII of 1997, any aggrieved civil servant can file an appeal against any order which affects the terms and conditions of his service.
10. I have already held hereinabove with reference to Section 16 of the Civil Servants Act, 1973, Article 212 Sub- Article (l)(a) of the Constitution of Islamic Republic of Pakistan, 1973 and 1985 SCMR 63, 2000 PLC (C.S.) 118 and . PLD 1992 Lah. 127 that the impugned order of suspension is an order which relates to the terms and . Conditions of the petitioners and with reference to Section 4 of the Service Tribunals Act, 1973 as amended by Ordinance XVII of 1997 that such an order is appealable before the Service Tribunal. Now, neither the order of suspension passed against the petitioners under Section 4 of the Special Powers Ordinance, 2000 as amended is a final order nor is it the case of any of the petitioners that it is so. Section 10 of the Special Powers Ordinance, 2000 as amended which makes provision only for filing of an appeal against a final order is, thus, not applicable to the order of suspension. In the presence of Section 4 of the Service Tribunals Act as amended by Ordinance XVI! Of 1997, none of the petitioners can contend that the order of suspension as passed against them under Section 4 of the Special Powers Ordinance, 2000 as amended is an order which has rendered them remediless and, therefore, they have knocked at the door of this Court by invoking Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The net result of this discussion is that the third condition that in order to oust the jurisdiction of the High Court there must be an appealable order before the Service Tribunal whereagainst an aggrieved civil servant can file appeal is also met. So far as the availability of the Service Tribunal to entertain an appeal against such an order is concerned, it is nobody's case that the Service Tribunal is nonexistent. In short, all the for conditions necessary for the ouster of jurisdiction of the High Court by applying Article 212 of the Constitution are present in this, case in that the order of suspension relates to the petitioners' terms and conditions of service who are civil servants and it is appealable to the Service Tribunal under Section 4 of the Service Tribunals Act, 1973 as amended and the Tribunal is very much in existence to entertain the appeal filed against such an order. This being so, remedy of appeal being available to all the petitioners under Section 4 of the Service Tribunals Act, 1973 amended by Ordinance XVII of 1997, ouster of jurisdiction of the High Court under Article 199 of the Constitution is complete by virtue of the express language of Article 212 of the Constitution. The net result of the foregoing discussion is that this Court has no jurisdiction to entertain the Constitution petitions filed by the petitioners under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 as the same are barred by the express language of Article 212 of the Constitution. For this view of the law which I take as to the ouster of the jurisdiction of the High Court by virtue of Article 212 of the Constitution, I am fortified by the law laid down in Abdul Ban v. Government of ' Pakistan and 2 others (PLD 1981 Kar. 290), Rana Muhammad Sarwar v. Government of Punjab through Services, General Administration and Information Department and another (1990 SCMR 999), Asadullah Rashid v. Haji Muhammad Muneer and others (1998 SCMR 2129), Khalid Muhammad Watto v.
Government of Punjab and others (1998 SCMR 2280) and Muhammad Aslam Bajwa v. Federation of Pakistan (PLD 1974 Lah. 545).
11. Having attended to and disposed of the preliminary objection of the learned Deputy Attorney- General for Pakistan as to the petitioners' Constitution petitions being barred by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, 1 now proceed to attend to the questions of law raised by and on behalf of all the petitioners by their learned counsel which have been reproduced in para 2 of this judgment. The first Such proposition put forth by learned counsel for the petitioners with reference to preamble of the Special Powers Ordinance, 2000 was that the petitioners were not civil servants. This plea of learned counsel for the petitioners was neither innocent nor raised without any object. The object was to oust the jurisdiction of the Federal Service Tribunal to entertain the dispute as canvassed by the petitioners in these petitions. For, it is only the dispute of a civil servant relating to the terms and conditions of his service - which can be agitated against and taken to the Service Tribunal and if, as contended by the petitioners, they are not civil servants, there is no question of their filing an appeal before the Service Tribunal with regard to the dispute as canvassed by them before this Court. However, I have already held with reference to Article 260 of the Constitution of Islamic Republic of Pakistan, 1973 where service of Pakistan has been defined and with reference to Section 2(1 )(b) of the 'Civil Servants Act, 1973 that all the petitioners are civil servants. So the first legal proposition raised by and on behalf of the petitioners that they are not civil servants is answered in die negative and it is held that they are civil servants. Coming now to the second proposition of law raised by learned counsel for the petitioners that the order of suspension not being a final order is not appealable before the Service Tribunal under Section 10 of the Special Powers Ordinance, 2000 as amended, I have already held that the order of suspension not being a final order is nonetheless appealable before the Service Tribunal under Section 4 of the Service Tribunals Act, 1973 as amended by Ordinance XVII of 1997. The third proposition put forth by learned counsel for the petitioners that the order of suspension does not relate to the terms and conditions of the petitioners nor is it appealable before the Service Tribunal in view of the language of Section 10 of the Special Powers Ordinance, 2000 as amended which makes only a final order appealable thereunder has also been held by me while dealing with the preliminary objection of the learned Deputy Attorney-General for Pakistan as incorrect. With reference to 1985 SCMR 63, PLD 1992 Lah. 127 and 2000 PLC (C.S.) 118, I have already held that the order of suspension as passed against the petitioners under Section 4 of the Special Powers Ordinance, 2000 as amended is an order which relates to the terms and conditions of service of the petitioners who are civil servants.
Whether or not the order of suspension is appealable before the Service Tribunal, the said question too has been answered in the affirmative that it is appealable before the Service Tribunal under Section 4 of the Service Tribunals Act, 1973 as amended by Ordinance XVII of 1997. The next contention of learned counsel for the petitioners to the effect that the Special Powers Ordinance, 2000 as amended was a complete code in itself and had no made any provision for filing of an appeal against the order of suspension and as such the same could only be brought under challenge before this Court in its Constitutional jurisdiction is also held to be wholly fallacious. While dealing with the preliminary objection raised by the learned Deputy Attorney- General for Pakistan, I have already held that the order of suspension is appealable before the Federal Service Tribunal under Section 4 of the Service Tribunals Act, 1973 as amended by Ordinance XVII of 1997 and that the provisions of Section 10 of the Special Powers Ordinance, 2000 as amended which provides for an appeal only against a final order have no application for the purposes of the appeal against the order of suspension. The next contention of learned counsel for the petitioners was that the order of suspension was bad in law in that they were not confronted with any material on the basis whereof the disciplinary action was initiated against them prior to the passing of the order of suspension.
The argument, to say the least, is wholly baseless, unfounded and without any merit. Mr. M. Akram Sheikh, Senior Advocate Supreme Court, had specifically raised this objection before this Court. He was prompted to raise this objection on the basis of the language employed in Section 3 of the Special Powers Ordinance, 2000 as amended, which was to the effect that:- "Where in the opinion of the competent authority, a person in Government or corporation service, is--
(a) inefficient or has ceased to be efficient for any reason; or is guilty of being habitually absent from duty without prior approval of leave; or
(b) guilty of misconduct; or
(c) corrupt, or may reasonably be considered as corrupt, because-
(i) he, or any of his dependents or any other person, through him or on his behalf, is in possession of pecuniary sources or of property, for which he cannot reasonably account for, and which are disproportionate to his known resources of income; or
(ii) he has assumed a style of living beyond his known sources of income; or (i.e) he has a persistent reputation of being corrupt; or
(iv) he has entered into plea bargaining under any law for the time being in force and has returned the assets or gains acquired through corruption or corrupt practices voluntarily; or
(d) engaged or is reasonably believed to be engaged, in subversive activities, and his retention in service is prejudicial to national security or he is guilty of disclosure of official secrets to any unauthorized person; or
(e) found to have been appointed or promoted on extraneous grounds in violation of law and the relevant rules".
The contention of Mr. M. Akram Sheikh, Senior Advocate Supreme Court was that the words "is inefficient, has been found to be, is guilty of, has been found to be in possession of", have been used before the charge levelled against each civil servant. These words, according to the learned counsel, were suggestive of the fact that some inquiry had already been held against the accused civil servant on the basis whereof it was being said that he was inefficient or that he had gone corrupt or that he was found to be in possession of pecuniary resources etc. But that the said inquiry had neither been held nor the petitioners confronted with the same. The argument of the learned counsel is wholly mis-conceived. The words used in Section 3 of the Special Powers Ordinance, 2000 as amended denote only the charges against the accused civil servants. The question of confronting them with these charges or of holding inquiry is a question which shall come later after the inquiry officer or the inquiry committee is appointed under Section 5 of the Special Powers Ordinance, 2000 as amended. There was nothing new in the phraseology used in Section 3 of the Special Powers Ordinance, 2000 as amended about which Mr. M. Akram Sheikh, Senior Advocate Supreme Court raised a lot of hue and cry. A- reference to rule 3 of Efficiency and Discipline Rules, 1973 would show that exactly the same phraseology has been used in the said rule, caption whereof is, grounds for penalty. Every one knows that when a civil servant is proceeded against under the Efficiency and Discipline Rules, 1973, the first step is to frame charges against the accused civil servant and at the time of framing the charges, no inquiry has even been held. The inquiry is held only when the charges have been communicated to the accused civil servant and the inquiry officer or the inquiry committee is appointed for the purposes of inquiry, where evidence is led before the inquiry officer or the inquiry committee in support of the charges. The question is, has any civil servant who is proceeded against under the Efficiency and Discipline Rules, ever contended that the inquiry should be held before the framing of charges against him. The answer is, neither has any accused civil servant ever demanded the holding of an inquiry prior to the framing of charges nor has he ever alleged to have been condemned unheard on account of such an inquiry not having been held. The reason is very simple and it is this, that there cannot be an inquiry before inquiry or a trial before trial and this is what Mr. M. Akram Sheikh, Senior Advocate Supreme Court is asking for. During the course of the arguments, the learned Deputy Attorney- General as also Mr. Vakeel Ahmad Khan, Member Administration CBR submitted in the open Court that charge- sheets/lists of allegations have already been served on most of the petitioners and the rest of the charge-sheets/lists of allegations are in the process of being served on the remaining petitioners and that no inquiry shall be held without first putting the accused civil servant on notice as to the charges/allegations against him and that every accused civil servant shall be confronted with the charges/allegations against him during the course of inquiry and that no civil servant shall be punished unless a finding has been recorded against him - after confronting him with the allegations/charges, as formed the basis of the disciplinary action against him. I have no reason to disbelieve or to entertain any doubt about the assurance given by the learned Deputy Attorney-General for Pakistan as also by Mr. Vakeel Ahmad Khan, Member Administration CBR,, Islamabad and feel satisfied that no accused civil servant shall be condemned unheard. The next two propositions put forth by learned counsel for the petitioners relate to the impugned order of suspension. The first ground of attack against the order of suspension is that the Special Powers Ordinance, 2000 as amended does not make any provision for suspending accused civil servant for six months. However, in the case in hand, what to speak of suspension for a period of six months, the same was extended for another period of six months.
Secondly that the order of suspension was stigmatic and had the effect of condemning the petitioners unheard. Taking the last contention first as to the order of suspension being stigmatic, the same is without any basis for the reason that no allegation whatever has been levelled while passing the order of suspension against the petitioners. As to there being no provision in the said Ordinance, 2000 as amended for passing an order of suspension for a period of six months and then extending it for another six months, suffice it to say that in the absence of any provision in the Special Powers Ordinance, 2000 as amended for this sort of suspension, the worst which can be said against the respondent CBR/Government is that the action of the respondent is wholly illegal and Violative of the Ordinance itself. Now, if it is so, remedy of the aggrieved civil servants/petitioners was to challenge this order of suspension in appeal before the Service Tribunal and have it struck down on the aforstated grounds of being illegal and violative of the Special Powers Ordinance, 2000 as amended. However, the illegality of the action of the CBR/Government shall not have the effect of conferring jurisdiction on this Court to entertain their petitions with respect to a dispute which falls squarely within the jurisdiction of the Service Tribunal in view of the express bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
12. The other proposition of the . Petitioners for justifying the maintainability of their Constitution petitions before this Court was that the Special Powers Ordinance, 2000 as amended was violative of the petitioners' fundamental rights conferred on them by Chapter No. 1, Part II of the Constitution of Islamic Republic of Pakistan, 1973 and as such was ultra vires the Constitution. It was contended that the infringement of fundamental rights was a question which could not be gone into by the Tribunal and the appropriate forum for entertaining the dispute relating thereto was the High Court in its Constitutional jurisdiction. This contention of the petitioners like the ones already raised is also misconceived, In the very judgment on which learned counsel for the petitioners heavily relied i.e. I.A. Sharwaniand others v. Government of Pakistan. Through Secretary, Fiance Division, Islamabad and others (1991 SCMR 1041), it has been held that a civil servant cannot by-pass Service Tribunal by adding a ground of violation of the Fundamental Rights and that the Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights, In Fazal Elahi Ejaz and 22 others v. Government of the Punjab and 13 others (PLD 1977 Lah.-549 (D.B.), it has been held that the question of vires of the Statute or the statutory rules can also be gone into by the Service Tribunal. The vires of the Special Powers Ordinance, 2000 as amended can, therefore, be brought under challenge before the Service Tribunal. No ground exists to maintain a petition before this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 on the ground of vires of the Special Powers Ordinance, 2000. In lanan Ahmad Khurram v. Government of Pakistan and others (PLD 1980 SC 153), too it has been held that the Service Tribunal is competent to go into the vires of the Statute or the statutory rules.
13. It was next contended on behalf of the petitioners that even if it was assumed that they had a right of appeal before the Service Tribunal in respect of their grievance arising out of the order of suspension, the said right of appeal was only illusory in that in the absence of any security of tenure of office of the Chairman and the Members of the Tribunal, they could not effectively attend to the petitidhers1 attack directed against the Special Powers Ordinance, 2000 as amended. This .
Argument of the petitioners has not impressed me, either. In fact this plea was raised by learned counsel for the petitioners on the basis of a judgment of the Full Bench of the Lahore High Court i.e. Imran v. Presiding Officer, Punjab Special Court No. VI, Multan and 2 others (PLD 1996 Lah. 542). The hard fact is that in spite of the said judgment of the Full Bench rendered in 1996, the Service Tribunal continues to exist eversible and is exercising jurisdiction in the matters falling within its ambit. Should, however, a Service Tribunal . Fail or falter in attending to a question of law or public importance in exercising its jurisdiction, an aggrieved civil servant can take his appeal to the Honourable Supreme Court and have the illegality, if any, found in the order of the Tribunal set aside. Yet another proposition put forth on behalf of the petitioners was that the Special Powers Ordinance as originally promulgated on 27.5.2000 provided for suspension as one of the penalties enumerated in Section 3 thereof. However, the said section was amended through the amending .
Ordinance of 2001 and the penalty of suspension was deleted from it. This deletion of the penalty of suspension from Section 3 was not accidental but had an object behind and the object was to make the provision of appeal provided for under Section 10 of the Ordinance only to a person aggrieved of a final action taken under Section 9 with respect to any of the penalties enumerated in Section 3 of the Ordinance. This would, it was contended, clearly mean that the penalty of suspension having been deleted from Section 3 of the Ordinance, there would be no appeal against the penalty of suspension, the same having been deleted from Section 3 of the Ordinance, as aforesaid. The argument is altogether without force. The order of suspension has never been held to be a penal order. Suspension is not a penalty like to dismissal, removal, reduction in rank or reduction to lower pay scale etc. The word "suspension" had wrongly been mentioned in Section 3 of the Special Powers Ordinance, 2000 as amended as one of the penalties prescribed by the said section. On realizing that suspension is not a penalty like removal, dismissal etc., it was deleted from Section 3 by the amending Ordinance of 2001. The order of suspension is only incidental and ancillary to the disciplinary action taken against the accused civil servant and holds good for the interim period during which the disciplinary action remains under process. Suspension being not a penalty, there was no question of an appeal having been provided against it in terms of Section 9 under Section 10. However, as an order relating to the terms and conditions of the petitioners, it is appealable under Section 4 of the Service Tribunals Act, 1973 as amended. Remedy of appeal being available against the order of suspension in terms of Section 4 of the Service Tribunals Act, 1973 as amended in 1997, there is no question of the suspended civil servant being rendered remediless.
14. Reliance was placed on the judgment rendered by the Sindh High Court in the matter of the Constitution petition filed by some of the aggrieved civil servants at Karachi against the order of their suspension and it was contended by learned counsel for the petitioners Raja Muhammad Anwar, Senior Advocate Supreme Court that in the said Division Bench judgment, the order of suspension was held to be not amenable to the jurisdiction of the Federal Service Tribunal and that the said judgment was binding on this Court sitting singly. True it was, no doubt, that a learned Division Bench cf the Sindh High Court had recorded a finding to the aforesaid effect but its judgment certainly could not override the law laid down in Muhammad Sadiq Khokhar's case (1985 SCMR 63) and in 2000 PLC (C.S.) 118 wherein the Honourable Supreme Court held the order of suspension as an order relating to the terms and conditions of service and being amenable to the jurisdiction of the Federal Service Tribunal. The other contention of learned counsel for the petitioners was based upon a Division Bench judgment of the Sindh High Court rendered in the matter of the civil suit in which the decree was passed against the respondent CBR/Government and on a petition for leave to appeal being filed by the CBR/Government against the said decree, the Honourable Supreme Court did not interfere and as such the order of the learned Division Bench of the Sindh High Court was upheld. In the first instance, the judgment of the learned Division Bench of the Sindh High Court in the matter of the civil suit instituted by the aggrieved civil servants in the said Court is distinguishable in that the Sindh High Court had dealt with the question of OSDs and in the decree passed by it held that making the aggrieved civil servants as OSDs was a question relating to their fitness to hold the posts previously held by them and as such the said question was held to fall outside the jurisdiction of the Federal Service Tribunal in view of the provisions of Section 4(1) (b) of the Service Tribunals Act, 1973. However, no question of fitness is involved in the petitions under consideration before this Court, It is the settled law that the. Decision rendered by a Court is a precedent for the point mooted and decided. The question of fitness has not been mooted in the present petitions and, therefore, the judgment of the Division Bench of the Sindh High Court is not a precedent of the purposes of these petitions. So far as the question of non-interference by the Honourab'le Supreme Court with the said judgment of the Division Bench of the Sindh High Court is concerned, suffice it to say that the Honourable Supreme Court did not attend fb the merits of the judgment of the Division Bench of the Sindh High Court but simply declined to grant leave against the said judgment on the ground that the department/CBR had Itself implemented the judgment of the Division Bench and as such nothing was left for the Honourable Supreme Court to decide. This observation of the Honourable Supreme Court cannot be held to have approved the judgment of the Division Bench of the Sindh High Court with respect to its merits. It has been contended by learned counsel for the petitioners that because of non- interference by the Honourable Supreme Court with the said judgment of the Sindh High Court/ the same continues to hold the field and being a Division Bench judgment is binding on this Court. It has already been pointed out that the said judgment of the Division Bench of the Sindh High Court stands entirely on a different footing in that, as aforesaid, it has held the order appointing the affected civil . Servants as OSDs as an order relating to their fitness and as such out of the purview of the Service Tribunal and to that extent, the judgment of the High Court of Sindh is correct.
However, the said judgment is not a precedent as aforesaid for the purposes of the present petitions as no question of fitness is involved in these petitions.
15. Having taken-up the legal propositions put forth by learned counsel for the petitioners one by one and having dealt with them in extenso, the same have been found to be without any force and repelled. The net result is that the preliminary objection raised by Mr. Mansoor Ahmad, learned Deputy Attorney-General for Pakistan with respect to the ouster of the jurisdiction of this Court by virtue of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, prevails. All these petitions are, therefore, held to be incompetent because of the said bar of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and are dismissed, as such leaving the parties to - bear their on costs.