DIRECTORGENERAL, FIA HEADQUARTERS, ISLAMABAD and others vs MUSHTAQ
This petition for leave to appeal arises from a judgment of the Lahore High Court which allowed a constitutional petition filed by the respondent challenging the initiation of fresh disciplinary proceedings against him after he had been earlier exonerated from similar charges. The core legal questions involve the maintainability of a constitutional petition under Article 199 against pending disciplinary proceedings in light of the bar under Article 212 of the Constitution, and whether the deletion of the word 'final' from Section 4 of the Federal Service Tribunals Act, 1973 by the Service Tribunals (Amendment) Act, 1997 vests exclusive jurisdiction in the Service Tribunal. The Supreme Court granted leave to appeal to consider these contentions, suspended the operation of the impugned judgment, and permitted the inquiry proceedings to continue subject to the condition that no final order or adverse action be taken against the respondent in the interim, thereby laying down principles regarding service matters and tribunal jurisdiction.
- Whether a constitutional petition under Article 199 is maintainable against the initiation of departmental disciplinary proceedings?
- Does the bar under Article 212 of the Constitution oust the jurisdiction of the High Court in service matters following the amendment to the Federal Service Tribunals Act, 1973?
- Whether fresh disciplinary proceedings can be initiated on charges for which an employee has already been exonerated?
- Article 199, Constitution of the Islamic Republic of Pakistan, 1973
- Article 212, Constitution of the Islamic Republic of Pakistan, 1973
- Article 13, Constitution of the Islamic Republic of Pakistan, 1973
- Section 4, Federal Service Tribunals Act, 1973
- Service Tribunal (Amendment) Act, 1997
ORDER
' IRSHAD HASAN KHAN, ACTG. C.J.--This petition for leave to appeal is directed against the judgment, dated 11-1-1999 passed by learned Single Judge of the Lahore High Court in Writ Petition No.5867 of 1998.
2. Brief facts are that the respondent was serving in Central Board of Revenue, Islamabad, in Customs Department as Deputy Superintendent Customs in BPS.14. He was sent on deputation as Assistant Director, FIA in March, 1991. He approached the Lahore High Court through a Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter called the Constitution), challenging therein the order, dated 6-3-1998 and 20-3-1998, whereby fresh inquiry proceedings had been initiated against him, which had been earlier closed/ dropped by the competent authority under the direction of the Minister of Interior, Government of Pakistan.
During the pendency of the writ petition, the respondent challenged the initiation of disciplinary proceedings against him on the basis of charges, which were subject-matter of inquiries (Inquiry Case No.50 of 1989, Inquiry Case No.105 of 1991 and Inquiry Case No.27 of 1992). The grievance of the respondent was that he had been exonerated from all the charges levelled against him in the earlier inquiries, therefore, the fresh inquiry proceedings against him were without lawful authority.
3. The learned Judge in Chambers allowed the writ petition whereby the orders, dated 6-3-1998 and 20-3-1998, were declared as without lawful authority and of no legal effect. It was held that the respondent shall not be prosecuted or punished for the charges levelled against him in Inquiry Case No.2 of 1998, directed to be held by SW. FIA, Lahore.
4. Khawaja Saeed-uz-Zafar, learned Deputy Attorney-General, appearing for the petitioners seeks leave to appeal on the ground that the writ petition in the High Court was not competent as it was directed against the disciplinary proceedings which was barred by Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution). He further contends that the High Court failed to appreciate that the respondent had neither been prosecuted nor convicted, therefore, Article 13 of the Constitution had no application. In support of his contention the learned Deputy Attorney-General relied on Abdul Wahab Khan v. Government of the Punjab (PLD 1989 SC 508), I.A. Sharwani v. Government of Pakistan through Secretary, Finance Division, Islamabad (1991 SCM R 1041), Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351), Ayyaz Anjum v. Government of Punjab Housing and Physical Planning Department through Secretary (1997 SCM R 169), Asadullah Rashid v. Haji Muhammad Muneer (1998 SCM R 2129), Referring Authority (President of the Islamic Republic of Pakistan) v. Khawaja Ahmad Tariq Rahim (1998 SCM R 2132), Khalid Mahmood Wattoo v.
Government of Punjab (1998 SCM R 2280), Muhammad Ashraf v. The State (1995 SCM R 626), Ahmad Khan v. Member (Consolidation), Board of Revenue, Punjab, Lahore (PLD 1990 SC 1070) and Pakistan Tobacco Co. Ltd. v. Karachi Municipal Corporation (PLD 1967 SC 241).
' Khawaja Saeed-uz-Zafar next argued that the learned Judge in Chambers had misdirected himself on the ground that as the order impugned was not a final order the writ petition was maintainable, inasmuch as, it escaped notice of the learned Judge in Chambers that by virtue of Service Tribunal (Amendment) Act (Act XVII) of 1997, the word "final" has been deleted from section 4 of the Federal Service Tribunals Act, 1973. The precise submission is that the appropriate Service Tribunal alone has exclusive jurisdiction in the matter.
5. Leave to appeal is granted to consider the above contentions. Operation of the impugned judgment is suspended till hearing of the appeal. Resultantly, the petitioner is permitted to continue with the inquiry proceedings but neither any final order shall be passed pursuant there to nor any adverse action shall be taken against the respondent in the meanwhile. The appeal shall be listed for hearing during the month of January, 2000.