1993 PLC(CS) 1035

FAHIM AHMED Versus CHIEF SECRETARY, GOVERNMENT OF SINDH

Citation1993 PLC(CS) 1035

CourtSindh High Court

Judge(s)Haziqul Khairi and Shoukat Hussain Zubedi

1. HAZIQUL KHAIRI, J.‑‑‑ The petitioner, Faheem Ahmed has filed this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan against Government of Sindh, Respondent No. l and six others. His case is that he was recruited as A.S.I. on 24‑11‑86 and was promoted to the post of Sub‑Inspector Police in the year 1989. He was given the award of Rs.15,000 in cash and Class‑I Certificate by the Chief Secretary, Government of Sindh, respondent No. l for good performance of his duties.

2. On 5‑11‑1991, the petitioner while he was serving at Sindh Police Head Quarter, Hyderabad, was transferred to Police Line, Dadu, where he learnt through a Notification No.22977‑8/E‑II, dated 16‑10‑1991 that he was dismissed from service with immediate effect by respondent No.2, namely the Inspector‑General of Police Sindh on the ground of being involved in shady business of stolen cars.

3. It is stated that the petitioner has an unblemished service record having performed his duties honestly and diligently and was never awarded any major or minor punishment. Similarly no departmental enquiry was conducted against him. It is alleged that no show‑cause notice was issued to him before the order of his dismissal was made by the respondent No.2.

4. Preadmission notices were issued to the respondents who filed their comments raising two preliminary objections. Their first objection was that since the matter relates to the terms and conditions of the petitioner who is a Government servant, the Service Tribunal constituted under the Sindh Civil Servants Act, 1973 read with Article 212 of the Islamic Republic of Pakistan, has exclusive jurisdiction and a petition under Article 199 is expressly barred. Secondly the petitioner was dismissed by virtue under Rule 9(b) of the Sindh Police (Efficiency and Disciplinary) Rules, 1988 which does not contemplate any show‑cause notice, hence the order of the dismissal of petitioner was final in nature and could not be questioned. Respondents have not disputed other facts of the case but contended that the petitioner was rightly dismissed for being involved in the business of stolen cars.

5. Before we proceed further, it would be advantageous to reproduce relevant provisions of Article 212 of the Constitution of the Islamic Republic of Pakistan, which run as follows:

6. "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 matter;

(b) ........................................................

(2) Notwithstanding anything hereinbefore 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 extends and 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, other than an appeal pending before the Supreme Court, shall abate on such establishment:

7. 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 in the form of a resolution, Majlis‑e‑Shoora (Parliament) by law extends the provisions to such a Court or Tribunal.

(3) ........................................................ :

8. Mr. Zawar Hussain Jaffery learned A.A: G. brought to our notice a number of reported cases in support of the first named contention raised by the respondents. In Abdul Bari v. Government of Pakistan and two others (PLD 1981 Karachi 290), a Full Bench of this Court while examining the provisions of Article 212 read with Article 199 of the Constitution, held that all grounds of attack urged before Service Tribunal including grounds of mala fides, ultra vires, or coram non judice are within jurisdiction of Service Tribunal to determine and High Court is devoid of jurisdiction to grant relief on such grounds. Subsequently, this position was affirmed by another Full Bench judgment of this Court reported in Khalilur Rehman and others v. Government of Pakistan and others (PLD 1981 Karachi 750) wherein it was observed that once it is shown that an appeal is competent before Service Tribunal the matter will lie outside the pale of the jurisdiction of the High Court. In Mian Amanul Mulk v. N.‑W.F.P. through Chief Secretary, PLD 1981 Pesh.l, a Full Bench of the Peshawar High Court was of the view that Article 212 ousts jurisdiction of all other Courts and orders of Departmental authority even though without jurisdiction or mala fide, can be challenged before Tribunal and jurisdiction of Civil Courts, including High Court was specifically ousted.

9. Learned counsel for petitioner, Mr. Habibullah Sheikh, on the other hand, vehemently urged that the petitioner is not a civil servant and is governed by the Police Act, 1861 read with the Efficiency and Disciplinary Police Rules, 1988. Being a Sub‑Inspector, his case falls under Rule 16(3) which clearly states that Police Rules shall apply. to police officers below the rank of Deputy Superintendent of Police. It was pointed out that despite coming into force of the Sindh Civil Servants Act,1973, the Police Act, 1861 was kept alive under which the said Rules of 1988 were also framed and both remain so on the Statute Book. In support of his contention he placed reliance on Inspector General of Police, Punjab, Lahore v. Mushtaq Ahmed Warraich and others (PLD 1985 SC 159) in, which it was held that Police Act, 1861 and rules made thereunder were not repealed expressly or by implication by the Punjab Civil Servants Act, 1974, and former being special law would prevail over latter law of general application. Elaborating this aspect it was held by the Honourable Judges of the Supreme Court:

10. "The Civil Servants Act is an Act of general application and as earlier said it has no constitutional status. Accordingly, it is as much a law as the Police Ad of 1861 with the added distinction that it is of general application while the Police Act is of special application to the officers of the subordinate ranks of the police force. The same is true with the rules. In this view of the matter, as to which would prevail over the other in case of inconsistency is of no difficulty. It should not be forgotten that the Police Act and the rules framed there under are such as would be applicable to a disciplined force only while the Civil Servants Ad cannot serve this purpose."

11. And further:

12. "Here comparing the two statutes I find that the provisions of the special law are of a disciplinary character and were enacted with the object to fulfil the requirement of a disciplined force, which purpose cannot be achieved if the provisions of the general law were to be applied to them. The field of operation of special law is, therefore, altogether different and limited to one subject, that is, the police force. Hence, there cannot be any possibility of any collision to attract the doctrine of "implied repeal".

13. As to the special position held by police force it was further held:

14. "Though it cannot be denied that the police force is one of the services of the Province and the police officers of the subordinate ranks are members of the service who satisfy the definition of "Civil Servant" yet distinction nonetheless remains that they belong to a disciplined force to which the particular Act and the rules were applied from time immemorial. The added distinction is that when the Constitution was enacted in 1973, the police force being a disciplined force was treated differently as they were excepted from the application of Article 8(1) and (2), now in abeyance with the result that the Police Act and the rules framed thereunder could not be challenged on the basis that they infringed the constitutional rights nor was there any constitutional limitation on the power of the Parliament or the Provincial Assembly to legislate in contravention of clause (1) of Article 8."

15. What follows most importantly and may not be lost sight of is that the exception to fundamental rights guaranteed under Article 8 (1) and (2) of the Constitution of Islamic Republic of Pakistan, 1973, is found in Article 8(3) thereof, to effect that these provisions relating to fundamental rights shall not apply to "any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them." It is thus immaterial whether Article 8(1) and (2) of the Constitution relating to fundamental rights is in abeyance or not (as presently it is not) once it is shown that the petitioner belongs to Police Service and his grievance relates to terms of his service. In such a case he will be' precluded to invoke enforcement of fundamental rights and for all intents and' purposes, he will be governed exclusively for redressal of his grievance under the Police Act, 1861 read with the Sind Police (Efficiency and Disciplinary) Rules, 1988. It may be added here that Rules 6 and 7 of the said Rules provide a self contained machinery by way of revision, appeal and review against disciplinary action against a police officer below the rank of Deputy Superintendent of Police. But what here was maintained by Mr. Zawar Hussain Jaffery, learned A.A.‑G. was that the action taken against the petitioner was under Rule 9(b) of the Sindh Police (Efficiency and Discipline) Rules, 1988, which contemplates that "nothing in Rules 6 and 7 shall apply in case where the authority competent to impose a major punishment is satisfied that for reasons to be recorded in writing by that authority it is not reasonably practicable to give the accused an opportunity of showing cause.

16. No doubt, no person can be condemned without an opportunity to defend himself and that "the principles of natural justice are to be read in every enactment in the absence of a provision to the contrary" as was held in province of East Pakistan and others v. Nur Ahmed and another, PLD 1964 SC 451, but the present case falls under Article 8(3)(a) of the Constitution of the Islamic Republic of Pakistan, which provides Constitutional protection to "any law relating to members of the Armed Forces, or of the Police or of such other forces as are charged with maintenance of public order, for the purpose of ensuring the proper discharge of their duties or maintenance of discipline among them." In this view of the matter the plea of the petitioner that he was not given opportunity of showing cause and was condemned unheard, is not tenable.

17. It may be reiterated in clear terms that Article 212 of the Constitution f the Islamic Republic of Pakistan when read with Article 8(3)(a) thereof by necessary implication ousts the jurisdiction of the Sindh Service Tribunals Act, 1973 and at the same time provides Constitutional protection to the Police Act 1861, under which the Efficiency and Disciplinary Police Rules, 1988 were framed which shall have similar protection if not inconsistent with the Act itself. What may further be added on the authority of Inspector‑General of Police Punjab v. Mushtaq Ahmed Warraich and others PLD 1985 SC 159 (supra) that in case of inconsistency between the Civil Servants Act and the Police Act, the Police Act, 1861 and the Rules framed thereunder being of special application would prevail over the Civil Servants Act which is of general application as the latter cannot serve the, purpose of the former which is applicable to a disciplined force only.

18. In the result, we dismiss the petition but with no order as to costs.

19. AA/F‑208/K Petition dismissed.