MUHAMMAD BOOTA SARWAR vs SECRETARY and others
The petitioner, a civil servant, approached the Sindh High Court through a constitutional petition challenging a show-cause notice issued under section 3 of the Removal from Service (Special Powers) Ordinance, 2000, and sought interim relief to restrain authorities from removing him from service. The core legal question was whether the High Court could entertain a constitutional petition against a show-cause notice issued to a civil servant when the Federal Service Tribunal was temporarily non-functional and no final departmental order had been passed. The Court held that the petition was not maintainable because the petitioner's right to approach the Federal Service Tribunal had not yet matured in the absence of a final departmental order, and passing an interim order would be contrary to the spirit of the law. The Court established the principle that a constitutional petition by a civil servant against a show-cause notice is premature prior to the passing of a final departmental order and exhaustion of remedies before the Service Tribunal, though exceptions may arise if the Tribunal remains unavailable upon the maturation of a statutory right of appeal.
- Is a constitutional petition maintainable against a show-cause notice issued to a civil servant?
- Does the jurisdiction of the High Court bar a civil servant from approaching it under Article 212 of the Constitution of Pakistan 1973?
- When does the right of a civil servant to approach the Federal Service Tribunal mature?
- Can an interim order be passed by the High Court against departmental proceedings before the issuance of a final order?
- Section 3, Removal from Service (Special Powers) Ordinance 2000
- Article 212, Constitution of Pakistan 1973
ORDER
1. Granted.
2. Exemption granted, however, subject to all just exceptions.
2. 3 & 4. The petitioner is admittedly a civil servant and is aggrieved by show-cause notice dated 7th June, 2007 purportedly issued under section 3 of the Removal from Service (Special Powers)
3. Ordinance, 2000, requiring him to show why the major penalty of dismissal from service should not be imposed upon him. The petitioner has submitted his reply to the notice on 18-6-2007 but no order appears to have been passed. It has been prayed that the respondents be directed to withdraw the allegations levelled against the petitioner, appoint enquiry officer to look into his grievance and direct the respondent No,2 to immediately appear and state on oath that he has not committed cybercrime including access to personal data. The petitioner has also sought interim relief praying that the respondents be restrained from removing the petitioner from service.
4. ' Without going into merits, it may be stated at the outset that the petitioner being a civil servant, the jurisdiction to decide such matters is that of the Federal Service Tribunal under Article 212 of the Constitution B and the petition before this Court would normally not be maintainable. However, Mr. Shoa-un-Nabi contends that at this point of time on Federal Service Tribunal is functioning owing to absence of its chairman and, therefore, in the absence of an alternate remedy a petition before this Court could be entertained. Learned counsel seems to be correct to this extent. Nevertheless the difficulty for the petitioner at this stage is that his right to approach the Federal Service Tribunal has not yet matured. An appeal to the Service Tribunal could only be entertained against a final order and that too after the concerned civil servant had preferred a departmental appeal/representation which was either dismissed or remained unattended for at least 30 days. At this stage even a final order has not been passed by any departmental authority. Moreover, passing of an ad interim order at this stage would be contrary to spirit of the law. Accordingly, this petition is dismissed in limine. However, it is made clear that in case a final order against the petitioner is passed and he is unable to seek redress through departmental representation within 30 days and yet a Service Tribunal is not available at that time he could always approach this Court afresh.
Cited by 4 cases
- Abdul Razzaq vs Development 2015 LHC 4487
- Abdul Razzaq vs Lahore Development Authority, etc 2015 LHC 4487, 2015 C.L.R. 1340
- ABDUL RAZZAQ vs LAHORE DEVELOPMENT AUTHORITY, etc. 2016 PLJ Lahore 809
- ABDUL RAZZAQ Versus LAHORE DEVELOPMENT AUTHORITY 2017 PLC(CS)N 27