MUHAMMAD MAHMOOD ALI vs PAKISTAN THROUGH SECRETARY, MINISTRY OF FINANCE

ORDER

' ALI HUSSAIN QAZILBASH, J.-Muhammad Mahmood Ali Inspector Income-tax, Office of the Departmental Representative, I.T.A.T., Peshawar Branch, Peshawar has called in question through the present petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the action of respondent in issuing notice No, CON-1, dated 11th March, 1979 and show-cause notice No, 2, dated 5th April, 1979 to the petitioner and also the act of contemplating disciplinary action being taken against the petitioner in pursuance of the above two notices.

2. Relevant facts in brief are that the petitioner, it is alleged, with other numerous officials of the Income-tax Department, Rawalpindi had caused obstruction to a police contingent deputed to detect a case which was reported to have occurred on 29th June, 1974 in which a steno-typist attached to the Income-tax Officer Circle Area, Rawalpindi had demanded illegal gratification from an assessee. A case against the petitioner and a number of other officials was registered and the petitioner was later on suspended on 9th September, 1974 by the order of Central Board of Revenue and was served with a show-cause notice under the Government Servants (Efficiency and Discipline) Rules, 1973 by the Commissioner, Income-tax, Rawalpindi on 10th July, 1974. This show- cause notice was replied to by the petitioner but subsequently on 19th April, 1975 the petitioner was charge-sheeted and a Section Officer was appointed as an Enquiry Officer to conduct the inquiry into the charges of misconduct against the petitioner. After the inquiry, the petitioner was found guilty of the charge of misconduct and on 26th July, 1975 he was removed from service by the Income-tax Commissioner, Rawalpindi. The petitioner being unsuccessful in his departmental appeal moved the Services Tribunal, Islamabad through an appeal on 1st September, 1978 who after hearing the parties accepted the appeal and ordered the reinstatement of the petitioner from the day he was removed from service and also allowed him all the consequential benefits w. e. f.

26th July, 1975. The relevant portion of the finding of the learned Service Tribunal is reproduced to facilitate the reference "This Tribunal has been constrained to take their consistent view that since the actions contained in :

(I) Issuing a show-cause notice and later a charge sheet both issued by the Authority

(2) the appointment of an Enquiry Officer made by the Authority ;

(3) issuing the impugned order i. e. The order of removal from service of the appellant passed by the Authority while invoking the enquiry procedure under rule 5 of the Government Servants (Efficiency and Discipline) Rules, 1973. ' are not according to law by eliminating very important link of an Authorised Officer, the entire proceeding was illegal. The actions taken by the Authority (Commissioner of Income-tax Grade 20 is an Authority for Income-tax Inspector, Grade 11) throughout in this case would show that such actions were mala fide. As such the impugned order of the Commissioner of Income-tax passed in removing M r. Muhammad Mahmood Ali cannot be sustained and is set aside."

' In pursuance of the above order, the petitioner was re-instated on 14th January, 1979 w,e,f, 26th July, 1975 but he was again served by respondent No, 2, with another notice No, CON-1, dated 11th March, 1979 on almost the same charges. This notice was replied to by the petitioner on 20th March, 1979 when on 5th April, 1979 a show-cause notice No, 2 was served upon him which was also answered by the petitioner on 14th April, 1979 and he also filed the present writ petition impugning the above two notices contending inter alia that the Service Tribunal vide its order dated 1st September, 1978 had held that his removal from service was illegal and mala fide, that he cannot be vexed twice on the same cause of action, therefore, the above notices are without lawful authority. The petitioner has also annexed the copies of the applications made by him to the relevant Authorities for the payment of his salaries.

3. This writ petition has been vehemently contested by respondent No, 1, on its legal and factual aspects and besides refuting the contentions raised in the writ petition has questioned the very jurisdiction of this Court and the competency of the writ petition as well. He has invited our attention to Article 212 sub-Article (1) clause (a) and sub-Article (2) of the Constitution and submitted that since the matter primarily relates to the terms and conditions of a Government Servant, its decision lies exclusively in the domain of the Service Tribunal and, therefore, the jurisdiction of the High Court under Article 199 of the Constitution is barred. Reliance was placed by him in this regard on PLD 1980 Pesh. 81 and PLD 1980 SC 22. He further submitted that since the appeal of the petitioner was accepted by the Service Tribunal merely on technical grounds, second inquiry into the charges where decision had not been given on merits is not barred. Support in this regard was sought from PLD 1968 Lab.

786.

' As against the above, the learned counsel for the petitioner contended that Service Tribunal vide its order, dated 1st September, 1978 while declaring the removal of the petitioner from service as illegal and mala fide, reinstated him with all the consequential benefits, therefore, the present proceedings against the petitioner is not only mala but is hit by the principle of nemo debet his vexari pro una et eadem causa meaning thereby that "no one ought to be twice vexed for one and same cause" in that the present show-cause notice has been issued on more or less the same charges which were earlier inquired into. Relies on PLD 1964 Pesh.

167.

' As to the jurisdiction of the High Court under Article, 199 of the Constitution is concerned, the learned counsel relying on 'PLD 1978 Lah. 738 submitted that since the action proposed to be taken by the respondent is mala fide, void and without lawful authority, therefore, the petition under Article 199 of the Constitution would be competent in the High Court.

4. After hearing the learned counsel for the parties, we have come to the conclusion that objections as to the bar of the jurisdiction of this Court under Article 199 of the Constitution, as the case stands would not prevail in that the jurisdiction under said Article is ousted in a case where a final order whether original or appellate is made by the departmental authority as laid down in section 4 of the Service Tribunal (Amendment) Act, 1974 and it is in .That case only that the Service Tribunal has the exclusive jurisdiction to adjudicate upon the matter which is taken before it by an aggrieved civil servant in appeal. The two authorities reported in PLD 1980 Pesh. 81 and PLD 1980 SC 22 relied upon by the learned counsel for the respondent would not be applicable in this case because in both the reported cases the High Court was moved under Article 199 of the Constitution where final order in respect of a civil servant had been passed by a departmental authority.

In the case in hand, admittedly only a show-cause notice has been served upon the petitioner and therefore, he could not go in appeal B before the Service Tribunal.

5. As the case stands, in this case we cannot oblige the petitioner by issuing an appropriate writ in his favour on two-fold ground, firstly admittedly his appeal before the Service Tribunal apparently was neither heard nor decided on merits, it was only on the question of law that his appeal was accepted and he, not having been exonerated by the Service c Tribunal from the charge of misconduct, second inquiry on the same charges would neither be a bar nor without lawful authority and the case reported in PLD 1968 Lab. 786 relied upon by the learned counsel for the respondents is applicable in this case wherein their Lordships relying on PLD 1959 SC 276 have held : "Needless to say that the proposed enquiry against the petitioner is wholly in public interest which cannot be throttled by the principles of natural justice which are not attracted for the present case, for the petitioner, we have no doubt will be afforded opportunity to defend himself as on previous occasion."

6. The second ground on which the petition merits dismissal is that the writ petition is obviously premature. As we have earlier stated, in this case only a show cause has been served upon the petitioner and a writ petition, therefore, in such a situation would not be competent. On this D proposition we are supported by two authorities of the Supreme Court reported in 1968 SCMR 317 and 1969 SCMR 154. In the former authority their Lordships while dealing with a similar point have observed :- "There is nothing in this letter to show that a decision of any kind had been made. The contention of the petitioners, therefore, that the Government bad decided to enforce the first notification for the period between 15th March, 1963 to 19th November, 1966 is not supported by any order to that effect on the record. The challenge in that behalf, therefore is premature and possibly an attempt to anticipate any action that the workers may take to enforce their claim for arrears on the basis of the first notification. The contention is that the employer is liable under section 9 of the Ordinance to be prosecuted for payment at a rate lower than the rate declared under this Ordinance to be the minimum rate of wages and in such a case can also be made liable to punishment with imprisonment for a term which may extend to six months or with fine extending to Rs, 500 or both and, therefore, there is at least, it is urged, a threat of such penal action which gives the petitioners a cause of action to invoke the Constitutional jurisdiction of the High Court. We are unable to agree.

If and when the prosecution is started the petitioners will be entitled to raise it by way of defence in that prosecution that the notification itself is illegal or ultra vires or unenforceable ........ ......"

' In the latter authority (1969 SCMR 154) their Lordships have held :- "We are unable to see any point in this leave petition except the uneasiness on the part of the petitioner to undo the notice issued to him by the Settlement Commissioner which merely required that the petitioner should disclose his credential as the transferee of the property in dispute. The learned Single Judge has directed that the entitlement of the petitioner should be duly examined and we see no apparent reason why the petitioner wents to avoid this examination. The grievance of the petitioner at this stage is baseless and premature."

' Before concluding we may, however, observe that in spite of the fact that the Service Tribunal has passed the order of the reinstatement of the petitioner on 1st September, 1978 yet the same has not been implemented in letter and spirit and he has not yet been paid his salary. The non-payment of his legitimate dues not only reflects very badly on the working of the relevant department but it also smacks of something beyond that. They are, therefore, directed that the salaries due to the petitioner may be paid without any further delay.

' In this view of the matter the petitioner is well-advised to appear before the relevant authority and take up all the possible objections he can and may be that he is able to prove his innocence and vendicate his honour.

7. With the above observations, we dismiss the writ petition with no order as to costs.