IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Constitutional Petition No.D-1971 of 2011

Present:

Mr. Justice Naimatullah Phulpoto,

Mr. Justice Farooque Ali Channa,

Petitioner : Khurshed Ali Junejo, through Mr. Saleem Raza

Jakhar, Advocate.

Respondents : Province of Sindh & others.

Mr. Muhammad Bachal Tunio, Additional Advocate

General.

Date of hearing: 12.12.2012. Date of Order : 12.12.2012.

O R D E R.

NAIMATULLAH PHULPOTO, J.- Petitioner Khurshed Ali Junejo has invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeking following reliefs :-

i) That, this Honourable Court may graciously be pleased to declare the departmental action against petitioner is unlawful and without justification of law.

ii) That, petitioner may be reinstated in service with all back benefits.

iii) To award cost of this petition to the petitioner.

iv) That, grant any equitable relief which this Hon’ble Court deems fit and proper in the circumstances of the petition.

2/- Facts in brief leading to filing of petition appear to be that petitioner was serving as Supervisor (BPS-5) in Food Department with honestly and hardworking. F.I.R was registered against petitioner by Anticorruption Establishment, Larkana on 08.6.1998, after investigation he was challaned in the Court of Special Judge, Anticorruption, Larkana for offence under Section 409, P.P.C read with Section 5(2) Act-II of 1947. Departmental enquiry was conducted against petitioner, according to him, he was exonerated in enquiry. Inspite of that, competent authority found petitioner guilty and removed him from service on 02.11.1999. Petitioner's departmental appeal was rejected by Director Food, Govt. of Sindh vide order dated 29.1.2000. Petitioner filed appeal No.45/2000 before Sindh Services Tribunal, at Karachi, which was dismissed converting the penalty of removal of petitioner from service to compulsory retirement, so also recovery of 239 wheat bags at the rate of Rs.700/- per bag vide judgment dated 24.6.2005. It is mentioned in the petition that petitioner has been acquitted of the charge of misappropriation by the Special Judge, Anticorruption, in above Anticorruption Case by judgment dated 21.9.2010. Petitioner also moved an application for reinstatement to Secretary, Food Department, the same has not yet been decided.

3/- Notices were issued to respondents for parawise comments.

4/- Secretary, Food Department, Govt. of Sindh, respondent No.2 and Deputy Director Food, Larkana in their parawise comments have stated that petitioner was posted as Food Supervisor as Centre Incharge, WPC Bangul Dero, Larkana. During Crop Season 1996-97 he procured a quantity of 2520 bags of wheat, out of which 1682 bags of wheat were dispatched to Provincial Reserve Centre, whereas remaining 838 bags were misappropriated, therefore, petitioner was suspended. After departmental disciplinary proceedings, petitioner was removed from service on 02.11.1999, his departmental appeal was also rejected by the competent authority. The penalty imposed upon him was assailed and Sindh Services Tribunal while maintaining the penalty converted dismissal of petitioner to "compulsory retirement". It is further stated that departmental and criminal proceedings are neither co-extensive, nor inter-connected. It is stated that petitioner failed to prefer appeal before Hon'ble Supreme Court of Pakistan against the judgment of Service Tribunal.

5/- We have heard the petitioner in person, Mr. Muhammad Bachal Tunio, Additional Advocate General Sindh for respondents and perused the record.

6/- Petitioner was admittedly Food Supervisor (BPS-5) in Food Department, Govt. of Sindh. Petitioner has invoked the Constitutional jurisdiction of this Court under Article 199 of Constitution. The petitioner has challenged departmental action by which he was removed from service. In order to resolve the controversy/legal issue involved in the present petition, it is essential to decide issue of jurisdiction and maintainability of this Writ Petition, at the first instance. In this respect, the provisions of Article 199 of Constitution are very much important.

7/- Article 199 (1) of Constitution of Islamic Republic of Pakistan 1973 is reproduced hereunder :

“199. Jurisdiction of High Court.—(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law.”

It is evident from the perusal of above mentioned Article that Constitutional jurisdiction of the High Court could only be involved if no other adequate remedy is provided in law. In the instant case as mentioned earlier petitioner availed remedy after his dismissal from service before Sindh Service Tribunal and his Service Appeal No.45/2000 was dismissed, however the penalty was converted to that of compulsory retirement. Petitioner moved an application to the Secretary, Govt. of Sindh, Food Department, for reinstatement after acquittal in anticorruption case but his request was turned down while observing that departmental proceedings are entirely different from those of criminal proceedings on criminal charges. Both the proceedings are neither co-extensive nor interconnected. Reference can be made to dictum laid down in a case reported in 2004 SCMR 540, relevant portion is reproduced as under :

“……..There is no bar to proceed departmentally against any civil servant as departmental proceedings are entirely different from that of the criminal proceedings on criminal charges and are neither co-extensive nor inter-connected…..”

“In view of the above, since the officers concerned are charged for mis-appropriation, they can be proceeded against for criminal mis-appropriation under section 409 of PPC notwithstanding the departmental proceedings being initiated against them under the Removal from Service (Special Powers) Sindh Ordinance 2000.

8/- Remedy available to petitioner under the law was to file a petition for leave to appeal before the Honourable Supreme Court of Paksitan against the orders of the Sindh Services Tribunal but he failed to do so.

9/- In above-stated circumstances, the Constitutional jurisdiction of this Court cannot be invoked to get such controversy resolved. The provisions as contained in Article 212 of sub-section (2) of Islamic Republic of Pakistan oust the jurisdiction of all other Courts. Orders of the Departmental authority, even if without jurisdiction cannot be challenged before this Court because other adequate remedy is provided under the law, as such this Court cannot exercise the jurisdiction in service matters in terms of ouster clause provided under Article 212(2) of the Constitution. The provisions as contained in Article 212(2) of the Constitution and Section 6 of the Service Tribunals Act, 1973 make it abundantly clear that after the establishment of Service Tribunal the jurisdiction of all other Courts in service matters has been ousted. Constitutional jurisdiction of High Court, would be declined where the petitioner has not exhausted all remedies available to him before filing of Constitutional petition and aggrieved party must approach specific authority for the redressal of his grievances. Even otherwise where a particular statute provides a self-contained machinery for the determination of question arising under the Act where law provides a remedy by appeal or revision to another Tribunal fully competent to give any relief, any indulgence to the contrary by the High Court is bound to produce a sense of distrust in statutory Tribunal.

10/- In view of the above petition is without force and the same is hereby dismissed.

JUDGE

Qazi Tahir/*

(a) on the application of any aggrieved party, make an order---

(i) directing a perfon performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do do; or

(ii) declare that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect;

(b) on the application of any person, make an order---

(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or

(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or

(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relative to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II.

(2) Subject to the Constitution, the right to move a High Court for ht enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged.

(3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law.”