INSPECTORGENERAL OF POLICE and anothers vs AHMED MUSTAFA

' ALI HUSSAIN QAZILBASH, J.---This appeal by leave arises from the order of a learned Division Bench of the Peshawar High Court, dated 29-7-1984, whereby the writ petition of the respondent was accepted and his reversion and the show-cause notice served upon him by the A.I-G. Crime Branch, were declared to be without lawful authority and of no legal effect.

2. The respondent who was officiating as D.S.P. Was served with a show-cause notice by the appellant on 25-2-1981 on the charges of grave misconduct liable to major punishment under the N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973, and was also placed under suspension. The explanation submitted by him was found unsatisfactory, it entailed departmental inquiry but the findings were not approved by the appellant on the ground that the inquiry has not been conducted in proper manner and as such a fresh inquiry was ordered. This inquiry could not proceed because of certain lacuna in the efficiency and Discipline Rules, and therefore, the respondent was reverted to his substantive post of Sub-Inspector in the interest of service. This punishment, however, hardened the attitude of the respondent and thus, he was served with a fresh show-cause notice on 11-4-1982 under the N.-W.F.P. Police Rules, 1975. The respondent impugned both his order of reversion and the show-cause notice in the High Court through a Constitutional petition on the ground of mala fides which was accepted on 29-7-1984 and the order of reversion and the show-cause notice were held to be without lawful authority.

3. We have heard the learned counsel for the parties and have gone through the judgment of the High Court. The only question which has been raised before us by the learned counsel for the appellants is that since the matter involved was essentially with regard to the terms and conditions of service of the respondent, therefore, the only remedy open to him was to have gone before the Provincial Service Tribunal and his writ petition before the High Court was wholly incompetent. This was controverted by the learned counsel for the respondent whose stand was that since the very order reverting the respondent and issue of show-cause notice were without jurisdiction, so the only remedy available to the respondent was to approach the High Court in its Constitutional jurisdiction, and, therefore, the High Court was justified in allowing the writ petition.

4. After considering the arguments we are of the view that this appeal must succeed. Admittedly the case pertained to the terms and conditions of service of the respondent and under Article 212(2) of the Constitution the only authority which could have been approached in the matter was the Service Tribunal. The writ petition before the High Court was not competent and thus the impugned order cannot be sustained.

5. As a result of the above, the appeal is allowed with no order as to costs.