ABDUL HAMEED vs PROVINCE OF K.P.K. through Chief Secretary, Peshawar

ORDER

' ABDUL LATIF KHAN, J.-- Through instant petition, the petitioner seeks annulment of order dated 11.9.2014, whereby the petitioner was placed under suspension.

2. In essence, the petitioner was serving as Sub-Divisional Forest Officer (BPS-17) in the department of respondents, who was later on placed under suspension due to his illegal activities vide order/ notification dated 11.9.2014, which order has been assailed by petitioner before this Court through filing the instant Constitution petition.

3. Admittedly the petitioner has been suspended by the department and yet no final order has been passed against him. He being employee of Provincial Government is a civil servant and a government servant against whom action under Khyber Pakhtunkhwa Government Servant (Efficiency and Disciplinary) Rules, is proposed to be initiated, may be placed under suspension for a period of ninety days if in the opinion of the competent authority, suspension is necessary or expedient and if the period of suspension is not extended for a further period of ninety days within thirty days of the expiry of initial period of suspension, the Government servant shall be deemed to be reinstated. As per Section 16 of the General Clauses Act, an authority having power to appoint, has also the power to suspend. So if an authority when holding an inquiry is satisfied that the charge against the public servant is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude, he can suspend him pending the inquiry. Besides, suspension is not a punishment and suspension of a government servant during the course of his service A simply means that no work is to be taken from him during the period of suspension. Suspension is only a temporary measure, wherein the petitioner is entitled to receive his full emoluments in view of the judgment of Hon'ble Supreme Court in case titled, "Government of N.W.F.P. v. I.A. Sherwani (PLD 1994 SC 72). If any penalty is imposed against the petitioner, then he has got a right of appeal before the competent authority. He was also entitled to file appeal against his suspension order before the concerned authority but he did not file the same.

4. It is not disputed that either the grievance of petitioner i.e. Suspension pending disciplinary action germane to the terms and conditions of his service and appeal against such order is maintainable before a Service Tribunal. The jurisdiction of the High Court under Article 199 of the Constitution to scrutinize the same is ousted. The, constitutional jurisdiction of the High Court, in such like matters, is ousted by explicit provision of Article 212 of the Constitution. In the instant case, suspension order of the petitioner has been issued by the authority, which has also been conveyed to the petitioner and the same has attained finality. There could be no cavil with the observation of Hon'ble Supreme Court of Pakistan in Muhammad Sadiq Khokhar's case (1985 SCM R 63), that if an order of suspension had attained finality, it would be questioned before the Service Tribunal and jurisdiction of this Court would be ousted. Moreso the writ jurisdiction can only be invoked by an aggrieved person when there is no alternate or efficacious remedy available to him. In the instant case, the petitioner has alternate remedy by approaching the proper forum i.e. Service Tribunal.

5. For the aforesaid reasons, the instant petition being not maintainable stand dismissed. However, the petitioner is at liberty to I approach the proper forum for redress of his grievance.