AZIZUR REHMAN, EX-GENERAL MANAGER, BARA CIGARETTE FACTORY Versus F.A.T.A. DEVELOPMENT CORPORATION PESHAWAR , Raza A. Khan, D.A.-G.

1. S. USMAN ALI SHAH, C.J. --This writ petition has arisen in the following circumstances:--

2. The petitioner was employed as General Manager, Cigarette Factory, Bara, Khyber, Agency. In the events that happened, his services were terminated on 14-1-1981 by the Chairman, F. A. T. A. Development Corporation. He challenged this order in appeal to the President/Chief Martial Law Administrator, Secretary to Government of Pakistan, States and Frontier Regions Division Islamabad and the Board of Directors, F.A.T.A. Development Corporation Peshawar but without waiting for the result of the appeal, he has filed this writ petition with a prayer that the impugned order of the Chairman F.A.T.A. Development Corporation Peshawar may be declared unlawful and without legal effect on continuance of his service.

3. The case of the petitioner is that he took up his initial appointment as General Manager in the Factory on 8-9-1976, vide order of even date of the Chairman F. A. T. A. Development Corporation Peshawar. It was laid down in the said order of his appointment that the petitioner will be on probation for one year with effect from the date of assumption of the charge. Thus, according to the petitioner, he became a permanent employee of the Factory after having undergone the period of probation. The petitioner proceeds to allege that the ,Chairman of the Corporation was not pleased with him and when he applied for sick leave, he (the Chairman) terminated his services by the impugned order:

4. It is urged on behalf of the petitioner that according to his order of appointment, the States and Frontier Regions Islamabad was the appointing authority of the petitioner, therefore, the Chairman of the Corporation would have no jurisdiction to pass the impugned order. It is further urged that no notice was served upon the petitioner before his services were terminated and as it violates the requirements laid down in para. 7(a) of the Corporation Factory Employees Services Standing Orders Part-II, the impugned order, according to the petitioner is, therefore, arbitrary and cannot be sustained in law.

5. As against the case of the petitioner, the learned counsel for the respondent submitted that the Services Standing Orders containing the terms and conditions of service of Factory's employees were promulgated long after the appointment of the petitioner as General Manager of the Factory. He further submitted that no order was ever issued by which the petitioner was made permanent in his service. The learned counsel, therefore, urged that the petitioner cannot claim that he had successfully undergone his period of probation for one year and he became permanent employee of the Factory. In support of this submission, he urged that as a matter of law, an employee in any set up cannot automatically become permanent in his service unless a specific order to that effect is issued by the competent authority. The learned counsel for the respondent next contended that the petitioner was ill-advised to seek remedy from this Court in the exercise of its writ jurisdiction. He argued that the petitioner should have first availed of his remedy against the impugned order before the higher functionaries responsible for conducting the affairs of the Corporation. According to the learned counsel, as the petitioner has not exhausted his remedies in this behalf, legally the constitutional jurisdiction, of this Court is not available to him. He lastly submitted that the service activities of the petitioner were not free from cloud. He pointed out that fire broke out in the Factory destroying huge stock of tobacco. The petitioner was also found to have committed other irregularities causing huge financial loss to the Corporation. The Chief Auditor of the Corporation carried out inquiry and held the petitioner responsible for the losses. In the circumstances, a suit for recovery was filed against the petitioner in the Court of Political Agent Khyber Agency. The suit is presently pending. The learned counsel submits that in order to prevent the petitioner from tampering with the evidence on record, he was temporarily attached to Finance/ Technical Directorate of the Head Office, but there too he, was not conducting himself as a responsible officer and was out to violate discipline, so his services were terminated by the impugned order.

6. After hearing the learned counsel for the parties and on going through the material on record, we have come to the conclusion that this writ petition is liable to be dismissed as, in any case it is premature. The petitioner has not availed of his remedies before the higher functionaries before seeking the relief from this Court in the exercise of its writ jurisdiction. Correct that according to him, he has filed appeal before the higher functionaries but he did not pursue) the same. There is no sense in his assertion made by him in the writ petition that as "the petitioner does not expect that his appeal will be considered fairly and justly", he has filed the present writ petition. There was nothing in his way to pursue his appeal but it appears that he purposely avoided to get a decision from the higher authorities in order to show it an excuse in justification of filing this writ petition. We are not prepared to believe that his appeal was to be kept by the competent authorities in cold storage or a decision adverse to him would be made. Unless the petitioner was able to bring on record a convincing proof that the competent appellate authorities were prejudiced against him, this Court will be reluctant to put a stamp of belief to his allegation in this behalf. In the circumstances, it is clear to us that the petitioner has avoided to avail of his remedies before the competent authorities against the impugned order therefore, this Court will decline to hear him in the exercise of its writ jurisdiction.

7. As a result this writ petition is dismissed with no order as to costs.

8. S.Q./563/P

9. Petition dismissed.