ABDUL RAHIM AWAN Versus GOVERNMENT OF PAKISTAN

ORDER

By this order, I propose to dispose of the following nine writ petitions as common questions of law and facts are involved in all of them.

(1) W.P. 9340‑91, (2) W.P. 9342‑91, (3) W.P. 9393‑91, (4) W.P. 9749‑91, (5) W.P. 9750‑91, (6) W.P. 9751‑91, (7) W.P. 9752‑91, (8) W.P. 9753 91 and (9) W.P. 9754‑91.

2. Petitioners in all these writ petitions are the employees of Income Tax Department and Members and/or office‑bearers of Income‑tax Employees Class III Association, Lahore. They were given show‑cause notices informing them that they were members/office‑bearers of an illegal association and had committed the following irregularities which amounted to misconduct under the Government Servants (Efficiency and Discipline) Rules, 1973:‑‑

"(i) You organised and participated in the elections of defunct/illegal association namely `Income Tax Employees Association Class‑III, Lahore' held on 19‑8‑1991 in violation of the Government Rules on the subject.

(ii) You defied the instructions of the RCIT, Central Region, Lahore contained in his Letter No. RCIT/2(29)511/Admn., dated 17‑8‑1991 prohibiting you from any activity in connection with the elections for . the said defunct‑association.

(iii) You engaged in the election campaign during the office hours in the office premises and thus caused the Government work suspended for days together.

(iv) You also celebrated your victory during office hours in the office premises thus interfering in the smooth work of the office.

(v) While conducting campaign in the elections you conducted yourself in a manner unbecoming of a public servant, raised slogans in the office corridors thereby obstructing the performance of Government duties.

(vi) You spent considerable amount of money on the printing of posters, hand‑bills etc.; in support of your election campaign which is not explainable from your ostensible means.

(vii) You unauthorisedly arranged/organised a musical show without prior permission of the competent authority."

It may pertinently be stated that in the show‑cause notice served on Masood Pervaiz Siddiqui, petitioner in W.P. No. 9749 of 1991, allegations mentioned at serial Nos. (iv) and (vi) above were missing but following two charges were added therein which were not mentioned in the show‑cause notices served on the petitioners in other cases:‑‑

"(3) You pasted or got pasted posters on walls and thereby caused damage to the Income‑tax Office building.

(4) You forced other employees to participate in election of illegal Association."

It was pointed out in all the show‑cause notices that the allegations, if established, would call for a major penalty which includes' dismissal from service. Petitioners were accordingly required to put in their written defence within ten days of the receipt of the show‑cause notices.

3. In all these cases, the petitioners are stated to have submitted their written‑replies to the Authorised Officer controverting the allegations/charges set out in the show‑cause notices. Having done so and while the disciplinary proceedings were still in progress, they approached this Court through these Constitutional petitions to challenge the vires of the show‑cause notices served upon them. Parawise comments were called for from the Authorised Officer, respondent No.4 which he submitted through Mr. M. Ilyas Khan, learned Legal Advisor of the Income Tax Department raising an objection, inter alia, that the petitions were not maintainable and, in any case, were premature in so far as the enquiry was yet to be concluded and the petitioners shall have remedy of appeal in case adverse orders were passed against them.

4. I have heard the learned counsel for the petitioners as also the learned counsel for the Income Tax Department who has appeared at the limine stage.

5. Learned counsel appearing for the Income Tax Department raised a preliminary objection based on the bar contained in Article 212 of the Constitution. Their contention was that the matter, agitated in these petitions related to the terms and conditions of the service of the petitioners which fell within exclusive jurisdiction of the Service Tribunal and as such jurisdiction of this Court was completely ousted by virtue of para. (2) of Article 212 of the Constitution. In support of this contention learned counsel relied upon a number of judgments of the superior Courts.

6. Learned counsel for the petitioners, in reply to the aforenoted preliminary objection submitted that the petitioners' grievance essentially related to the violation of their fundamental right of forming an association enshrined in Article 17 of the Constitution and the terms and conditions‑ of service were involved only in a collateral manner. Jurisdiction of this Court was, therefore, not barred under Article 212 of the Constitution. The grievance made by the learned counsel was that the respondent‑Authorities wanted to eliminate the Association of which the petitioners were the members/office holders and to achieve their objective, sham disciplinary proceedings have been initiated against the petitioners on false and fabricated charges which is a sheer mala fide exercise. It was further contended by the learned counsel that the appeal before the Service Tribunal was competent only against a final order and that the petitioners were, therefore, without any remedy against initiation of disciplinary proceedings. His submission was that there being no remedy available to the petitioners at this stage, this Court would have the jurisdiction to interfere on the principle of 'ubi jus ibi remedium'. In support of his submissions, learned counsel relied upon IA. Sharwani v. Government of Pakistan (1991 SCMR 1041) and Muhammad Azhar v. General Manager (Operation), Lahore (PLD 1990 Lahore 362). In the first mentioned case, retired civil servants who were denied certain increases in the pension on the ground that they had retired prior to a specified date approached the Supreme Court of Pakistan directly under clause (3) of Article 184 of the Constitution making a grievance that they were being discriminated in the payment of enhanced pension in violation of Article 256 of the Constitution. An objection to the competency of the petitions based on Article 212 of the Constitution was raised on behalf of the Government of Pakistan which was repelled and the petitions were entertained by the Supreme Court holding that "the petitioners' case is found solely on the ground of discriminatory treatment in violation of Article 25 of the Constitution and not because of any breach of any provision of the Civil Servants Act or any service rule. Furthermore, the question involved is of public importance as it affects all the present and future pensioners and, therefore, falls with the compass of clause (3) of Article 184 of the Constitution". It was, however, clarified by the Supreme Court in the following sentence that:‑

"----a civil servant cannot bye-pass the jurisdiction of the Service Tribunal by adding a ground of violation of the Fundamental Rights."

Judgment of the Supreme Court is of no help to the petitioners because their grievance is not based solely on the ground of violation of Article 17 of the Constitution. Perusal of the impugned show‑cause notice shows that except for the first two charges, all other allegations relate to the conduct of the petitioners as civil servants. Even otherwise, nothing has been placed on the present record to show that the respondent‑Authorities have prevented the petitioners from forming any association or union. On the contrary, the respondent‑Authorities basing themselves on a judgment of this Court passed in W.P. 5192 of 1990 stated in their memo., dated 8th August, 1991, impugned in these petitions, that "according to this judgment, after the abolition of classes of civil servants, the associations known as Income‑tax Employees Class III or Class IV do not exist in the eyes of law. The employees of the Income‑tax Department, however, can form new service associations with reference to the grades, either jointly or severally, in consonance with the provisions of Rule 28 of the Government Servants (Conduct) Rules, 1964, if they so like" and further directed that all activities in the names of such association be discontinued immediately. The impugned memo., on the face of it, does not involve any violation of the Fundamental Rights contained in Article 17 of the Constitution. The memo in question only sought to give effect to the afore‑referred judgment of this Court and prima facie, it did not involve any violation of right of forming associations or unions. Learned counsel for the petitioners, however, contended that the Authorities misinterpreted and misconstrued the said judgment and further that he has also filed a petition for review of that judgment. The aforesaid statement in the impugned memo. appears to be based on the following observations in the said judg ment:‑‑

"Thus, it is obvious that due to the abolition of various classes of civil servants, the association known as Income‑tax Employees Association (Class‑III) as such does not exist and its existence is against law ......................................................................Employees of Income‑tax Department, however, can now form service association with reference only to the grades, either jointly or severally, in consonance with the provisions of rule 28 of Government Servants (Conduct) Rules, 1964, if they so like."

Be that as it may, since the disciplinary proceedings have not yet concluded, the petitioners may press this point before the Departmental Authorities and apprise them that they have sought the review of the judgment relying on which the Department has declared their Association as illegal. Similarly, the question whether the petitioners have been accused of false charges as contended by the learned counsel is a matter for the Departmental Authorities to examine and determine during the disciplinary proceedings. This A Court sitting in Constitutional jurisdiction cannot examine the disputed questions of fact.

7. As regards the contention of the learned counsel for the petitioners that no appeal is competent before the Service Tribunal against the show‑cause notice and, therefore, the petitioners can invoke Constitutional jurisdiction of this Court, I would like to quote the most pertinent observation of the Supreme Court of Pakistan in an unreported judgment rendered in Civil Appeal No. 6 of 1980 'Federation of Pakistan v. M. Mazhar Ali':‑‑

"Where the scheme of a law provides appeal only against the final order, the legislative intent is manifestly one of shutting out all challenges to interlocutory, interim or procedural orders, which do and could end up in an appealable final order. To hold that all such interim, procedural and interlocutory orders could, on account of such exclusion, be brought before superior Courts under Article 199 of the Constitution would not only amount to deflecting the legislative intent, but seriously impede the passing of the final order itself."

The learned Judges finally took the view that bar of Article 212 of the Constitution read with section 3 of the Service Tribunals Act excluded the jurisdiction of the High Court under Article 199 of the Constitution and "the Constitutional petition filed by the respondent against his suspension and the show‑cause notice was not maintainable". Reference may also pertinently be made to the case decided by the Supreme Court of Pakistan reported as Abdul Wahab Khan v. Government of Punjab (PLD 1989 SC 508). Petitioner in that case approached the High Court in Constitutional jurisdiction while a departmental case was still in progress against him. His petition was dismissed by the High Court and the Supreme Court of Pakistan also declined to interfere with the observation that though the order impugned before the High Court vis‑a‑vis the stage at which it was passed was not appealable "the petitioner would have to wait till such an order is passed against him which is appealable before the Tribunal". Respectfully following these decisions, I hold that merely because no appeal is competent against the show‑cause notice does not mean that this Court should assume jurisdiction in a matter which relates to terms and conditions of the civil servant and. has thus been placed within the exclusive jurisdiction of the Service Tribunal.

8. As regards the bar of jurisdiction based on the provisions of Article 212 of the Constitution, law by now is fairly well‑settled that Service Tribunals have exclusive jurisdiction in matters relating to the terms and conditions of civil servants including disciplinary matters and 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 Tribunals extends. Refer Muhammad Yamin Qureshi v. Islamic Republic of Pakistan (PLD 1980 SC 22) ' wherein it was held that civil servant was entitled to file an appeal before the Service Tribunal against an order or decision of a Departmental Authority made at any time after the 1st July, 1969 and that the orders or acts done without jurisdiction, coram non judice or mala fide were not protected under clause (4) of Article 270 of the Constitution and that the Service Tribunal could examine these orders. In Abdul Bari v. Government of Pakistan and 2 others (PLD 1981 Karachi 290), it was held that the ouster contemplated under Article 212 of the Constitution being of Constitutional nature necessarily curtails the jurisdiction of the High Court totally in respect of the matters falling within the competence of the Service Tribunals and even the orders which are mala fide, ultra vires or coram non judice are within the ambit of Service Tribunal. A Full Bench of the Peshawar High Court in Mian Amanul Mulk v. N.‑W.F.P. (PLD 1981 Peshawar 1) while dealing with Article 212 of the Constitution held that "The provisions of this Article on the very language oust the jurisdiction of all other Courts and as observed by a Division Bench of this Court in the case of Dr. Raja Mansoor Elahi v. N.‑W.F.P. (PLD 1980 Peshawar 81) an order of a departmental authority even if it is without jurisdiction or is mala fide can be challenged before the Tribunal and the, jurisdiction of the Civil Courts and for that matter of the High Court is specifically ousted." Reference may also usefully be made to the case reported in PLD 1983 SC 100 wherein the Supreme Court of Pakistan after examining the provisions of Article 212 of the Constitution and of section 4 of the Service Tribunals Act held that under the new dispensation, the Service Tribunal was made the sole arbiter of all disputes relating to the terms and conditions of civil servants and the jurisdiction of ordinary Courts was altogether excluded in these matters. It was observed that "These provisions leave no doubt that disputes relating to the service rights of civil servants was henceforth being made the exclusive concern of the Service Tribunals". In Collector, Central Excise and others v. Aslam Ali Shah (PLD 1985 SC 82) Supreme Court of Pakistan while setting aside the judgment of Lahore High Court passed in Constitutional jurisdiction, held that the question that an accused employee while defending his case before the Enquiry Officer, was entitled to be represented by a counsel was a matter relating to the terms and conditions of the service and could only be adjudicated upon by the Service Tribunal.

9. Viewed from yet another angle, these petitions are not maintainable. The orders/notices impugned in these petitions are clearly of interlocutory nature against which no appeal is competent. That being so, in view of the E principle laid down by the Supreme Court of Pakistan in the case Ibrahim v. Muhammad Hussain (PLD 1975 SC 457) writ petition to challenge such an order can also not be entertained. In Muhammad Saeed v: Mst. Saratul Fatima and others (PLD 1978 Lah. 1459) it was held that "what the legislature held to be an interlocutory order not by itself fit to be appealable, should not by such a device be held fit enough to attract the more important, and at a higher level, the Constitutional jurisdiction. Any contention, or practice to the contrary, would defeat and deflect the legislative intent, which has been disapproved in Mumtaz Hussain Bhutta v. Chief Administrator, Auqaf etc." Supreme Court of Pakistan also held in Abdul Rahman v. Haji Amir Ahmad Khan and others (PLD 1983 SC 21) that writ petition is not competent against piecemeal decisions on pleas of jurisdictional nature and similar matters. It may also be observed that Constitutional jurisdiction can be invoked and made available only in cases of imminent and grave threat to valuable personal and property rights and that, too, subject to the condition that no other adequate remedy is available. In the instant case, impugned notices by themselves do not cause any tangible damage to the petitioners. Real threat shall be posed to E them only when some adverse order is finally passed against them and as and when that happens, they would have remedy of appeal available to them before the Service Tribunal wherein they would be entitled to take and press all the pleas now being advanced.

10. In the aforesaid view of the matter, all these petitions are not maintainable and are accordingly dismissed in limine.

AA./A‑381/L Petitions dismissed.