KARACHI, Dec 3: The Sindh High Court on Monday rejected a petition of a PIA director through which the plaintiff had raised legal objection in respect of the maintainability of the suit based on bar contained in Article 212 of the Constitution.
Justice Shabbir Ahmed of the SHC announced the judgement. The plaintiff had contended that the said article bars the jurisdiction of courts to make any order or entertain any proceedings in respect of matter specified in clause (a) of sub-Article (1) of the same.
Plaintiff Imran Ahmed Khan, who held the post of a director in PIA, was represented by Dr. Mohammad Farogh Naseem. The defendant PIA was represented by Yawar Farooqi.
The plaintiff was appointed director special project in 1994 by the PIA. A show-cause notice was served on the plaintiff for his removal from service on Oct 10, 1997, inter alia, on the ground that his appointment was politically motivated, and that he had crossed the maximum age for induction of regular employee (40 years), and that no post of director was available with the PIA, and against the eligibility requirement viz. masters degree in second division.
The plaintiff replied the show-cause notice. He was placed in surplus pool and after evaluation process it was confirmed that that no violation had occurred and the plaintiff’s appointment was in order.
The then MD also recorded that the plaintiff had been victimized and was unnecessarily placed in the surplus pool without any reason and shifted the plaintiff in main stream.
The plaintiff ultimately was assigned the post of director, notice of his removal was withdrawn on Nov 30, 1999. The plaintiff’s case was that the matter concerning his appointment stood past and closed but despite the same the defendants issued another notice on May 8, 2000, for exactly the same allegation as levelled earlier, which had been impugned through this suit.
The defendants were served with notice of the application and summons of the suit and they filed a counter-affidavit to the injunction application containing, inter alia, that the suit was barred by Section 2A of the Service Tribunal Act and the prayer made in the suit related to the terms and conditions of the employment of the plaintiff, as such in view of Article 212 of the constitution the suit the injunction application was not maintainable in law, the plaintiff said, adding the court has no jurisdiction to entertain and decide the same on merits for want of jurisdiction.
Dr Farogh Nasim, counsel for the plaintiff, conceded that in view of Section 2A of the Act the service under any authority, corporation, body or organisation, established by or under a federal law or which was controlled by the federal government or in which the federal government had controlling share or interest had been declared to be the service of Pakistan for a limited purpose.
He contended that in order to claim ouster of jurisdiction of Civil Court, the condition enumerated in Section 4 of the Act must be attracted, viz in respect of matters relating to the terms and conditions of service, including disciplinary matters and stressed that the matter agitated by the plaintiff do not pertain to the terms and conditions of service.
Yawar Farooqui, counsel for the defendants, urged that in terms of clause 2 of Article 212, once the administrative court or tribunal was established under clause (a), no other court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such administrative court or tribunal extends.
He contended that the Services Tribunal had been established under Article 212 of the Constitution. Such established tribunals had exclusive jurisdiction to entertain the matters enumerated in Article 212(1)(a) of the constitution to the ouster of jurisdiction of other courts.
Justice Shabbir Ahmed observed that it was settled that where the legislature had ousted the jurisdiction of a forum, specially such a forum was devoid of having any jurisdiction in the matter even in a case where action of the executive authority was challenged on the ground of same being mala fide, ultra vires or coram non judice. All grounds of attack, including the grounds of mala fides, ultra vires, or corum non judice, are to be urged before the Service Tribunal; and the civil courts, including the High Court, had no jurisdiction to entertain the matters covered by Article 212 of the Constitution.
“I may state that vires of show-cause notice even cannot be brought under constitutional jurisdiction as ruled by the Supreme Court in Shagufta Begum v The Income-Tax Officer, Circle-XI, Zone-B, Lahore (PLD 1989 SC 360) that no writ is maintainable to the extent of challenging the vires of notice as it should have been challenged by filing of reply before the issuing authority or authorities superior thereto”, Justice Shabbir held.
He also held that so far as the last submission of Mr Farogh Nasim for transfer of the matter to the service tribunal, the civil original jurisdiction of this court cannot be equated with the appellate jurisdiction exercised by Supreme Court in Mohammad Anis (supra), for transfer of suit to the Service Tribunal.
“The upshot of the above discussion is that this court has not jurisdiction in the matter, the suit is not maintainable, the plaint is liable to be rejected u/o 7 Rule 11 CPC. Resultantly, the plaint is rejected, with no order as to costs. Interim order passed earlier on injunction application is vacated, the application is also dismissed”, held Justice Shabbir Ahmed.
