MUHAMMAD SADIQ KHOKHAR vs ENGINEER IN CHIEF PAKISTAN ARMY, G.H.Q. And Another

1. MUHAMMAD GUL, J.--This Leave Petition is from the judgment of the High Court at Lahore dated 6- 8-1976 whereby writ petition moved by the petitioner herein was dismissed in limine.

2. The petitioner entered service as Superintendent in M.E.S. And was posted in GHQ at Rawalpindi. He claims to be a civil servant and that position does not appear to have been questioned. In due course the petitioner was pointed as instructor and transferred to the Military College of Engineering at Risalpur. From the Military College of Engineering the petitioner was transferred to PAF Establishment in Karachi in July, 1973.

3. It appears that after his transfer to Karachi the petitioner was charged with misconduct in relation to his service in the Military College of Engineering. The Memorandum of Charges was served by the Commandant Military College who also appointed an Enquiry Officer. As a result the petitioner was removed from service on 22-6-1974. His appeal before the Engineer-in-Chief, Pakistan Army was dismissed on 15-8-1974. He filed further appeal before the Service Tribunal constituted under the Service Tribunals Act, 1973, which was pending when the order of his removal was recalled.

4. Accordingly he was re-instated with effect from 3-4-1975 and directed to report for duty to Military College of Engineering. Information to that effect report was also transmitted to the Service Tribunal and as a result the appeal moved by the petitioner was dismissed as having become infructuous.

5. Pursuant to the above order the petitioner reported for duty to the Military College of Engineering but he was again suspended from service and a fresh memorandum of charges of misconduct drawn up by the E-in-C Pakistan Army, Rawalpindi, was served upon him. Instead of facing the enquiry on the fresh charges the petitioner moved the writ petition in the High Court which was dismissed in limine on the ground that it was covered by Article 212(2) of the Constitution. Learned Advocate-on-Record for the petitioner submitted that the second enquiry against the petitioner after his re-instatement amounted to double jeopardy because he was made to answer the charges of misconduct over again after facing the first enquiry which culminated in the removal from service. It was also argued that the order of his removal from service was revoked after full consideration of the case against the petitioner on merits.

6. It seems, however, that the petitioner's appointing authority was E-in-C Pakistan Army but that the petitioner was charged with misconduct and removed from service by the Commandant Military College of Engineering who is lower in rank than the petitioner's appointing authority. Accordingly, he was re-instated but suspended simultaneously, to face a fresh enquiry under the orders of E-in- C Pakistan Army. It is, therefore, wholly wrong to contend that the second enquiry offends against the principles of natural justice or double jeopardy. Indeed, there is nothing on the file to show that the petitioner was in any manner absolved of charges of misconduct.

7. Learned Advocate-on-Record further submitted that section 4 of the Service Tribunals Act, 1973 envisages an appeal against "final order" of the Tribunal and since no final order has so far been made in the fresh enquiry, therefore, the appeal before the Tribunal will be incompetent and the writ petition in the High Court under Article 199 of the Constitution would therefore lie.

8. The argument, however, is devoid of substance. The petitioner feels aggrieved from the order of his suspension and in so far as it has taken effect it has attained finality. It is not disputed either that the petitioner's grievance is germane to the terms and conditions of. Service and a dispute with regard thereto falls within the exclusive jurisdiction of the Tribunal under clause (2) of Article 212 of the Constitution. Non-obstante clause in Article 212(2) gives it overriding effect and consistently with the principle of harmonious interpretation of the Constitution the High Court rightly dismissed the writ petition moved by the petitioner for want of jurisdiction.

9. This petition, therefore, fails and is hereby dismissed.