ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C.P. No.D-678 of 2020

Petitioner : Akhlaq Hussain and others

Through Mr. Nisar Ahmed Bhambharo, advocate

Date of hearing : 16.07.2020

Date of Order : 16.07.2020

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O R D E R

ADNAN-UL-KARIM MEMON, J: Basically the petitioners are seeking declaration to the effect that the certain deduction made from their monthly salary by the respondent Sate Life Insurance Corporation on account of operational/excess cost is illegal, and seek direction to the respondent-corporation to release their all deducted specific amount from their monthly salary of Month of May 2020 till date. Petitioners being aggrieved by and dissatisfied with the aforesaid action of the respondents have approached this Court on 9.7.2020.

2. Upon query by this Court as to how the instant Petition is maintainable against the salary issues of the petitioners which fall within the ambit of expression terms and conditions of corporation employee. He replied that the Respondents have no substantial material against the Petitioners but they have deducted the amount from the salary of the petitioners without holding proper and regular inquiry into the allegations; that malafide intention and ulterior motive of the Respondents is apparent, who are acting in violation of principle of natural justice; that salary does not form part of excess cost, but the same has been illegally calculated towards operational/excess cost. He has contended that they are victim of departmental intrigues, certain portion of their salary has been withheld, on account of operational/excess cost, which is illegal, therefore, this is a hardship case and this Court can hear and decide the matter on merits.

3. Be that as it may, we are only confined to the factum as to whether this Court has jurisdiction under Article 199 of the Constitution to dilate upon the salary issue of the Petitioners.

4. We have heard the learned counsel for the Petitioners and have perused the material available on record.

5. Article 199 of the Constitution, inter alia, provides that the High Court may exercise its powers thereunder only “if it is satisfied that no other adequate remedy is provided by law”. It is well-settled that if there is any other adequate remedy available to the aggrieved person, he must avail and exhaust such remedy before invoking the Constitutional jurisdiction of High Court, whether such remedy suits him or not. In our view, the doctrine of exhaustion of remedy envisaged in Article 199 prevents unnecessary litigation before the High Court.

6. In our humble opinion, one of the reasons for introducing the doctrine of alternate remedy was to avoid and reduce the number of cases that used to be filed directly before this Court, and at the same time to allow the prescribed lower forum to exercise its jurisdiction freely under the law. Moreover, if a person moves this Court without exhausting the remedy available to him under the law at lower forum, not only would the purpose of establishing that forum be completely defeated, but such person will also lose the remedy and the right of appeal available to him under the law. Under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, for the determination of civil rights and obligations or in any criminal charge against him, every citizen is entitled to a fair trial and due process. Therefore, it follows that fair trial and due process are possible only when the Court / forum exercises jurisdiction strictly in accordance with law. It further follows that this fundamental right of fair trial and due process in cases before this Court is possible when this Court exercises jurisdiction only in cases that are to be heard and decided by this Court and not in such cases where the remedy and jurisdiction lie before some other forum. If the cases falling under the latter category are allowed to be entertained by this Court, the valuable fundamental right of fair trial and due process of the persons / cases falling under the former category will certainly be jeopardized. There is a misconception and trend that in any of the situations discussed above Article 199 of the Constitution can be invoked without availing and exhausting the remedy provided by law, on the ground of violation of fundamental rights guaranteed by the Constitution.

7. As the petitioners have not been able to convince us that they have availed / exhausted their remedy in accordance with law before filing this petition.

8. Reverting to the issue of salary of the Petitioners, We disagree with the contention of the learned Counsel for the petitioner that this Court has jurisdiction to entertain the matter in relation to salary of the employees for the simple reason that it has a direct nexus with the terms and conditions of service of the employees and provision of Appeal is provided under Sate Life employees (service) regulations, 1973, against the impugned action of respondents.

9. In the light of the aforesaid proposition, the grievance of the Petitioners cannot be entertained under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973. Consequently, the instant Petition being meritless stands dismissed in limine along with the listed application[s]. However, the Petitioners are at liberty to approach the proper appellate forum and avail/exhaust the remedy as provided under the law, if so advised.

JUDGE