2014 PLP (C (PLC(CS))

MUHAMMAD KHALID MEHMOOD KHAN, J.

Through this constitutional petition, petitioner has assailed the order dated 24-3-2005 passed by Ministry of Information Technology (IT and Telecom Division), Government of Pakistan whereby the Prime Minister of Pakistan has dismissed the petitioner's services from 17-3-2003; petitioner joined Telephone and Telegraph Department, Government of Pakistan in June 1969 as Assistant Divisional Engineer and finally promoted as Member of Pakistan Telecommunication Limited Board on 1-12-2000. On 21-6-2001 petitioner was made OSD on the basis of certain allegations pertaining to year 1995-96 when petitioner was posted as Chief Engineer (M&O). The National Accountability Bureau (NAB) ultimately on 28-8-2002 arrested the petitioner and after 45-days confinement petitioner entered into plea-bargain with the NAB and respondents issued a show-cause notice to petitioner on 23-6-2004 under the Removal from Service (Special Powers) Ordinance, 2000. Petitioner submitted reply to the show-cause-notice but vide impugned Notification dated 24-3-2005 petitioner's services were dispensed with and he was dismissed from service. As the order of dismissal was passed under RSO, 2000; petitioner filed representation/review; the respondents have failed to decide the petitioner's representation/review, the petitioner then filed appeal before the Federal Service Tribunal Lahore; during the pendency of said appeal, petitioner's appeal was abated in terms of judgment of the Hon'ble Supreme Court of Pakistan reported as Muhammad Mubeen us Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 SC 602); however, on clarification the petitioner's appeal was restored and the petitioner again approached the Federal Service Tribunal but during the pendency of said appeal the Hon'ble Supreme Court of Pakistan announced the judgment reported as Allama Iqbal Open University v. Tuffail Hashmi (2010 SCMR 1484) and the employees of Pakistan Telecommunication Corporation Limited (PTCL) were declared not the civil servants. The petitioner's appeal was ultimately disposed off on the point of jurisdiction. Petitioner aggrieved of said judgment dated 12-5-2011 filed C.P.L.A. No.1128-L of 2011 before the Hon'ble Supreme Court of Pakistan which is pending disposal but the Hon'ble Supreme Court of Pakistan in Masood Ahmad Bhatti and others v. Federation of Pakistan (Civil Appeals Nos.239 to 241 of 2011) pronounced judgment whereby the petitioner being the employee of Telephone and Telegraph Department became entitled for bringing his grievance, through constitutional petition.

2. Notices were issued to respondents, they filed report and parawise comments; the respondents had taken the defence that the petition is not maintainable as the petitioner's appeal is pending disposal before the Hon'ble Supreme Court of Pakistan. The petitioner has not approached the Court with clean hands; the petitioner has no cause of action. On merits, the respondents contended that the petitioner has entered into plea bargain with the National Accountability Authority; he has admitted his guilt; petitioner thus is a convicted employee and as such he is not entitled for any relief. The maintainability of petition has primarily been challenged on the ground of territorial jurisdiction of Lahore High Court.

3. Learned counsel for petitioner submits that the impugned order is not sustainable in the eye of law as it has been passed with retrospective effect against the settled principle of law that no executive order can be passed with retrospective effect. He further submits that the impugned notification is violative of principle of natural justice; the petitioner was not given opportunity of personal hearing by the competent authority and as such petitioner has been condemned unheard. The petitioner's review petition under section 9 of RSO, 2000 was not decided nor any decision was conveyed to petitioner which is against the provision of Clause 24-A of General Clauses Act. Learned counsel further submits that this Court has the jurisdiction to entertain and decide the petition as the order of termination has been conveyed to petitioner at Lahore. Hafiz Tariq Naseem Advocate learned counsel for petitioner has relied on Messrs Al-Iblagh Limited Lahore v. The Copyright Board, Karachi and others (1985 SCMR 758), Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others (PLD 1997 SC 334), Alamgir v. Divisional Forest Officer, Multan and others (1993 SCMR 603), Muhammad Amjad v. The Chief Engineer, WAPDA and another (1998 PSC 337), LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 other (2009 CLD 1498) and Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary, Ministry of Information Technology and Telecommunication and others (2012 SCMR 152).

4. Learned counsel for respondents submits that the constitution petition is not maintainable before Lahore High Court, Lahore as the impugned order has been passed by the Prime Minister at Islamabad. He further submits that the petitioner's appeal is pending disposal before the Hon'ble Supreme Court of Pakistan and as such this petition is not maintainable. Learned counsel further submits that petitioner is a convicted employee as he has entered into plea-bargain with the NAB and as such his services were rightly terminated by the respondents from the date when he entered into plea-bargain with the NAB. Learned counsel has relied on Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others (PLD 1997 SC 334), Danish Kaneria v. Pakistan and others (2012 CLC 389), Mrs. Rohi Chaudhry and 2 others v. Federation of Pakistan through Secretary Finance, Ministry of Finance, Islamabad and 3 others (2010 PTD 1233), Messrs Ibrahim Fibres Ltd. through Secretary/Director Finance v. Federation of Pakistan through Secretary/Revenue Division and 3 others (PLD 2009 Karachi 154), Mayzone Pak. International v. Additional Secretary, Government of Pakistan (2002 CLC 388) and Mohtarma Benazir Bhutto and another v. Federation of Pakistan and 2 others (PLD 1999 Karachi 39).

5. Heard, record perused. With the consent of parties, the petition is being decided as pacca case.

6. The respondents have not denied the fact of petitioner being the employee of Telephone and Telegraph Department. The Hon'ble Supreme Court of Pakistan in Masood Ahmad Bhatti's case (supra) has decided the issue regarding application of statutory rules on the employee of Telephone and Telegraph Department and as such as per respondents admission the judgment of Masood Ahmad Bhatti's case (supra) is applicable on the petitioner's case and the petition is maintainable on this count.

7. The main question which requires consideration is the maintainability of petition before this Court on the ground of territorial jurisdiction of Lahore High Court. The argument of learned counsel for respondents is that the impugned order has been passed by the Prime Minister of Pakistan at Islamabad. and as such Islamabad High Court has the exclusive jurisdiction to hear the petitioner's constitutional petition, if any. The learned counsel has relied on a judgments referred above and submits that the impugned action has taken place within the territorial limits of Islamabad High Court and as such Islamabad High Court alone has the jurisdiction to entertain the petitioner's writ petition. The petitioner is attacking the order of termination which has been passed at Islamabad and the dominant object and primary grievance of petitioner has arisen at Islamabad.

8. The argument of learned counsel for petitioner is that the Prime Minister is acting in the affairs of Federation and as such under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 Lahore High Court Lahore enjoys the concurrent jurisdiction to entertain and decide the petition. The impugned order affects the petitioner at Lahore and also served at Lahore and as such cause of action has arisen in favour of petitioner at Lahore within the territorial jurisdiction of Lahore High Court Lahore. Learned counsel for petitioner has relied on a judgment of Messrs Al-Iblagh Limited Lahore v. The Copyright Board, Karachi and others (1985 SCMR 758) and argued that as per the ratio of dictum laid down by the Hon'ble Supreme Court of Pakistan, the constitutional petition is maintainable, before the Lahore High Court Lahore.

9. The main thrust of argument of learned counsel for respondents is on Sandalbar Enterprises' case (supra) and contended that the Hon'ble Supreme Court of Pakistan has held that the court, while entertaining the petition has to see what is dominant object of filing of writ petition and the dominant object in the present case is the setting aside of order dated 24-3-2005 passed by the Prime Minister of Pakistan at Islamabad.

10. For appreciating the argument of learned counsel for parties, the relevant portion of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 and Section 4 of Islamabad High Court Act, 2010 is reproduced hereunder:

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

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

(i) directing a person, 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; or (ii) declaring 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; or ." Section 4 of Islamabad High Court Act, 2010: "

4. Jurisdiction.

Islamabad High Court shall have, in respect of the Islamabad Capital Territory, original, appellate, revisional and other jurisdiction, as under the Constitution or the laws in force immediately before the commencement of this Act is exercisable in respect of the said territory by the Lahore High Court: Provided that Islamabad High Court shall have original jurisdiction in suits and proceedings having pecuniary value of ten million rupees or more."

11. Article 199 of the Constitution referred to above provides that the High Court can issue writs of prohibition, mandamus and certiorari against a person who is: (i) performing functions; or has (ii) done an act or; (iii) has taken proceedings (iv) within the territorial jurisdiction of this Court; in connection with the affairs of the (v) Federation; (vi) Province or; (vii) local authority.

12. The question arose the person against whom an order is sought under Article 199 of the Constitution is a person whether performing function in the affairs of Federation has done any act or initiated any proceeding against the aggrieved person within the territorial jurisdiction of the High Court. The words used in Article 199(a)(i) of the Constitution are "functions in connection with the affairs of the "Federation" or a "Province" or a "local authority". In the present case, the issue is whether the Prime Minister is a person functioning in connection with the affairs of Federation or not. The question of performing function in connection with the affairs of Federation, Province or local authority was examined by the Hon'ble Supreme Court of Pakistan in Salahuddin and 3 others v. Frontier Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others (PLD 1975 SC 244), the Hon'ble Supreme Court of Pakistan has held as under:

"The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving same exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of the Government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, including a body politic or a body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not."

13. The first judgment relied upon by both the parties is case of Sandalbar Enterprises (supra), the Hon'ble Supreme Court of Pakistan in this case has dilated upon the rule of dominant object and held as under:

"We may observe that it has become a common practice to file a writ petition either at Peshawar, or Lahore, or Rawalpindi or Multan etc., to challenge the order of assessment passed at Karachi by adding a ground for impugning the Notification under which a particular levy is imposed. This practice is to be depreciated. The Court is to see, what is the dominate object of filing of the writ petition. In the present case, the dominant object was not to pay the regulatory duty assessed by a Customs official at Karachi."

14. In the above said judgment their lordships although have distinguished Messrs Al-Iblagh Ltd.'s case (supra) on its own facts and ruled that as per facts of the case dominant object was not to pay the regulatory duty assessed by a Custom Official at Karachi but have not revisited the major reasoning of the judgment which reads as below:

"The rules laid down in the said case would, we think be applicable also in the circumstances of this case. The Central Government has set up a Copyright Board for the whole of Pakistan and it performs functions in relation to the affairs of the Federation in all the Provinces. Hence, any order passed by it or proceedings taken by it in relation to any person in, any of the four Provinces of Pakistan would give the High Court of the Province in whose territory the order would affect such a person, jurisdiction to hear the case."

15. The Hon'ble Supreme Court of Pakistan in Mst. Shahida Maqsood v. President of Pakistan and another (2005 SCMR 1746) ruled as under:

"Learned counsel for the petitioner vehemently urged that case of the petitioner would fall under Article 199(1)(a) of the Constitution and not under sub-clause (ii) of the above said Article. Essentially, the learned counsel contended that the question of territorial jurisdiction raised by the High Court was completely irrelevant as the President of Pakistan performs his functions in connection with the affairs of the Federation' throughout the country and every High Court is competent to issue a, direction as contemplated by Article 199 of the Constitution."

16. Thus considering the above, the Hon'ble Supreme Court of Pakistan in this case concluded "we do not find any flaw in the judgment of the High Court, which is not open to any exception".

17. In Dr. Zahoor Ahmed Shah v. Pakistan Medical and Dental Council through Secretary and another (2005 MLD 718), it has been held that "the Court was to see what was the dominant object of filing of the constitutional petition" and in the instant case, dominant object is registration of the petitioner's qualification with the Medical and Dental Council; the office of the Council is located at Islamabad, therefore, in the circumstances, the jurisdiction was held not possessed by the Quetta High Court where it was filed. More or less, same is the ratio of the judgment reported as Dr. Qaiser Rashid v. Federal Secretary, Ministry of Foreign Affairs, Government of Pakistan, Islamabad (PLD 2006 Lahore 789).

18. In Amin Textile Mills (Pvt.) Ltd. v. Islamic Republic of Pakistan and 3 others (1998 SCMR 2389) it was held:

"The matter essentially relates to the demand of the Bank in respect of a loan and other facilities taken by the petitioner at Karachi from the Bank and, as observed, the dues of the Bank are payable at Karachi and even; according to the petitioner, the agreement dated 6-6-1994 with the Bank was executed at Karachi and payments are being made in instalments to the Bank. In filing the writ petition the dominant object was to avoid the demand of the Bank and, in the facts and circumstances Lahore High Court had no territorial jurisdiction in the matter."

19. Messrs Al-Iblagh Ltd.'s case (supra) the Hon'ble Supreme Court of Pakistan opined as under (at pages 758 and 762):

"While dealing with a somewhat similar situation, this Court was called upon to examine the terms of Article 98 of the 1962 Constitution (which are similar in Commissioner, Pakistan and other's case PLD 1968 SC

387. In this case the East Pakistan High Court had held that the said High Court could not exercise jurisdiction with regard to the decisions of the Election Commission of Pakistan as the said body was not located in nor performed its function in the Province of the East Pakistan and, therefore, East Pakistan High Court was precluded on account of territorial limitations, from exercising jurisdiction in connection with orders passed by it. While rejecting this contention it was observed by this Court that:

The plain, meaning of the words.

"a person performing in the Province functions in connection with the affairs of the Centre" excludes territorial limitations, such as, that the person or authority to whom the High Court is empowered to issue writs must be amenable to its jurisdiction either by residence or location within those territories." (underling is ours) It explained that: 'The Central Ministries as well as many Departments of the Central Government as located in Islamabad or at Rawalpindi. Nevertheless they perform functions in both the Provinces in connection with the affairs of the Centre, such as, Defence of Pakistan, External Affairs, Insurance, Copyright, Patent, Design...." (underlining is ours) and found that the orders made or proceedings taken by the said Departments in connection with the affairs of the Central Government but having effect on parties in East Pakistan would be subject to the writ jurisdiction, of the High Court of that Province. The rules laid down in the said case would, we think, be applicable also in the circumstances of this case. The Central Government has set up a Copyright Board for the whole of Pakistan and it performs functions in relation to the affairs of the Federation in all the Provinces. Hence, any order passed by it or proceedings taken by it in relation to any person in any of the four Provinces of Pakistan would give the High Court of the Province, in whose territory the order would affect such a person, jurisdiction to hear the case. The learned Deputy Attorney-General Mr. Munir A. Sheikh who appeared on behalf of the respondent-Copyright Board, supported this interpretation of the constitutional provision in question and submitted that the writ petition filed by the appellant before the Lahore High Court should not have been dismissed for lack of jurisdiction by the said High Court, as it also had jurisdiction to entertain it, concurrently with the, Sindh High Court. We agree and are of the opinion that both the Lahore High Court as well as the Sindh High Court had concurrent jurisdiction in the matter and both the Courts could have entertained a writ petition against the impugned orders in the circumstances of this case. We, therefore, hold that the Lahore High Court has illegally refused to exercise jurisdiction in this case. The case will, therefore, go back to the Lahore High Court for decision of the writ petition filed by the appellant before it for decision on merits, in accordance with law."

20. In Sh. Abdul Sattar Lasi v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs,. Islamabad and 6 others (2006 CLD 18), the petitioner challenged the sale of mortgage properties under section 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 the Division Bench of Quetta High Court has held:

"

8. So far as the territorial jurisdiction of this Court in the matter is concerned, it may be observed that under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 writ could be issued against any person who is performing in the Province any function irrespective of its nature relating to the affairs of the Federation, Province or a local authority within the territorial jurisdiction of a High Court. In the instant petition the petitioner has challenged the vires of section 15 of the Ordinance, 2001 i.e. the law equally applicable to the Province of Balochistan, which in our view is the main relief claimed in the petition whereas; the other reliefs for declaring public auction notices as illegal, void or setting aside auction proceedings carried out in the exercise of powers conferred under section 15(4) are ancillary to the main relief as such this Court has the jurisdiction in the matter which cannot be ousted only on the ground that the properties auctioned and purchased happen to be situated outside the jurisdiction of this Court or that the respondents were residing outside the jurisdiction of this Court because the Jurisdiction conferred on this Court under Article 199 of the Constitution is not contingent upon residence of an aggrieved person but it requires that a person/ authority/ functionary of State against whom order was sought to be issued should be operating or be amenable to jurisdiction of High Court, therefore, the provisions of section 20, C.P.C. could not be pressed into service or to be read in Article 199; as vires of the Federal, Law has been challenged which is applicable to whole of the Pakistan. In this regard, we are fortified by the judgment reported in 1996 CLC p.539. The relevant observations are reproduced herein below:-- The ratio deducible, from the foregoing discussion is, that the jurisdiction of this Court under Article 199 of the Constitution of Pakistan (1973) is not contingent upon the residence of aggrieved person. Equally it is not relatable to places where the writ issued by it will have effect. What is required by this Article is, that the person/ authority/ functionary of the State against whom the writ is sought to be issued shall be operating or be amenable to the jurisdiction of this Court. In other words it means that the writ issued by the Court cannot run beyond the territory subject to its jurisdiction and secondly that the person an authority to whom the Court was to issue writ was amendable to its jurisdiction either by residence or by location within its territory. The elements embodied in section 20 of C P.C. cannot be introduced in Article 199 of the Constitution. Applying this principle to facts and circumstances of the cases in hand, it is quite clear to us that the impugned order was passed by Chairman Federal Land Commission at Rawalpindi; that the Federal Land Commission was/is a Federal Institution and operates within the territories of whole of Pakistan; that it functioned at relevant time at Rawalpindi and it was so clearly amenable to jurisdiction of the High Court of Lahore. We, on this view, have no reason to depart from the view taken by the Division Bench of this Court vide order dated 29-3-1976. In result the preliminary objection raised by the learned Deputy Attorney General is found to be misconceived and is accordingly repelled:"

21. In Superintendent of Police Head Quarter Lahore and 2 others v. Muhammad Latif (PLD 1988 SC 387), the Hon'ble Supreme Court of Pakistan held as under:

"that the Election Commission is a person or authority which exercises jurisdiction in the Province of East Pakistan in connection with the affairs of the Centre namely elections to the office of the President, National Assembly and the Provincial Assemblies and for holding a Referendum as provided for in the Constitution, as such; Commission is subject to the jurisdiction of the High Court notwithstanding that its main office and Secretariat are located in the Province of West Pakistan because the plain meaning of the words "a person performing in the Province functions in connection with the affairs of the Centre" exclude territorial limitation, such as that the person or authority to whom the High Court is empowered to issue writ must be amenable to its jurisdiction either by residence or location within those territories."

22. In Muhammad Idrees v. Government of Pakistan through Secretary, Establishment Division, Islamabad and 5 others (1998 PLC (C.S.) 239), the petitioner of the case was an employee of the Government of Pakistan, in relation to his service an order passed by the Government at Islamabad, which was conveyed to him in Quetta, where he was posted, he filed a constitutional petition with a prayer:

" It is prayed that this Honourable Court may graciously be pleased to issue appropriate direction in nature of writ of mandamus directing respondents to reconsider and finally decide petitioner's 'representation for antedation of his promotion. A preliminary objection was raised by the learned Deputy Attorney-General about the lack of territorial jurisdiction and the Division Bench of the Court, in the judgment authored by the learned Judge, (now the Honourable Chief Justice of Pakistan) held "As far as Federation is concerned, it represents to all the provinces, therefore, if an aggrieved' person residing in any of the provinces, where such order action has been communicated to him, he can invoke the jurisdiction of said respective High Court." Furthermore "Thus, it is concluded that objection raised in this behalf by the learned Deputy Attorney-General has no substance, which is accordingly overruled concluding thereby that this Court has territorial jurisdiction to entertain the Constitutional petition against the functionaries of the Federal Government because cause of action accrued to petitioner against the adverse orders determined to his service interest passed by a competent Authority during his posting at Quetta."

23. In Trading Corporation of Pakistan (Private) Limited v. Pakistan Agro Forestry Corporation (Private) Limited and another (2000 SCMR 1703), it is held:

"The learned Single Judge of the High Court in Chambers has elaborately dealt with this aspect of the matter in the judgment in writ petition and has held that the respondent No.1 having cause of action against Federal Government could bring the Constitutional petition either at Karachi or at Rawalpindi Bench of Lahore High Court. The learned Single Judge rejected the objection of maintainability of the writ petition on the ground that affairs of Trading Corporation of Pakistan are being controlled by the Ministry of Commerce at Islamabad. Before the High Court the relief was not only claimed against the petitioner but was also claimed against the respondent No.2, the Ministry of Commerce, Government of Pakistan at Islamabad as such."

24. The issue came up for discussion in LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others (2009 CLD 1498), the learned Single Judge of the Lahore High Court after considering about all the judgments on the subject has ruled as under:

(A) The Federal Government or any body politic or a corporation or a statutory authority having exclusive residence or location at Islamabad with no office at any other place in, any of the Provinces, shall still be deemed to function all over the country. (B) If such Government, body or authority passes any order or initiates an action at Islamabad, but it affects the "aggrieved party" at the place other than the Federal capital, such party shall have a cause of action to agitate about his grievance within the territorial jurisdiction of the High Court in which said order/action has affected him. (C) This shall be moreso in the cases where a party is aggrieved or a legislative instrument (including any rules, etc.) on the ground of it being ultra vires, because the cause to sue against that law shall accrue to a person at the place where his rights have been affected. For example, if a law is challenged on the ground that it is confiscatory in nature, violative of the fundamental rights to property; profession, association etc. and any curb has been placed upon such a right by a law enforced at Islamabad, besides there, it can also be challenged within the jurisdiction of the High Court, where the right is likely to be affected. In this context, illustrations can be given, that if some duty/tax has been imposed upon the withdrawal of the amounts by the account holders from their bank account and the aggrieved party is maintaining the account at Lahore, though the Act/law has been passed at Islamabad, yet his right being affected where he maintains the account (Lahore), he also can competently initiate a writ petition in Lahore besides Islamabad, this shall also be true for the violation of any right to profession, if being conducted by a person at Lahore, obviously in the situation, he shall have a right to seek the enforcement of his right in any of the two High Courts. (D) On account of the above, both the Islamabad and Lahore High Courts shall have the concurrent jurisdiction in certain matters and it shall not be legally sound or valid to hold that as the Federal Government etc. resides in Islamabad, and operates from there; the assailed order/action has also emanated from Islamabad, therefore, it is only the Capital High Court which shall possess the jurisdiction. The dominant purpose in such a situation shall be irrelevant, rather on account of the rule .of choice, the plaintiff/petitioner shall have the right to choose the forum of his convenience.''

25. Now the question is whether Lahore High Court Lahore has the jurisdiction to issue a writ against an order passed by a person performing in the affairs of Federation. The language of Article 199 (a) (i) of the Constitution is clear. The Prime Minister of Pakistan is a representative of all federating units of Pakistan and is the chief executive of the Government and as such he is a person undoubtedly who is performing functions in the affairs of Federation, There is now question in this case whether the person who passed the order is functioning in Islamabad only and is not maintaining any his offices in other Provinces. The Prime Minister is deemed to be functioning in the entire Pakistan and as such there is no doubt in my mind that the impugned order can be assailed successfully before the Lahore High Court, Lahore.

26. The other argument of learned counsel for respondent, is that under Clause 4 of the Islamabad High Court Act, 2010, Islamabad High Court has the absolute jurisdiction in respect of Islamabad capital territory. The impugned order is passed at Islamabad and the Islamabad High Court is enjoying the jurisdiction; hence the jurisdiction of Lahore High Court is ousted. The perusal of section 4 of Islamabad High Court Act, 2010 will show that Islamabad High Court has the jurisdiction in respect to the Islamabad capital territory original, appellate, revisional and other jurisdiction as under the Constitution or the laws in force immediately before the commencement of the act. Islamabad High Court is enjoying the jurisdiction in respect of said territory which was earlier enjoyed by the Lahore High Court. The words used in Section 4 are "as under the Constitution is exercisable in respect of the said territory by the Lahore High Court, Lahore" which shows that before promulgation of Islamabad High Court Act, 2010, the Lahore High Court was enjoying the jurisdiction on the Islamabad capital territory. The words used in this Section as "is exercisable in respect of the said territory of Lahore High Court" are clear in nature. The word has been used as "is" meaning thereby in spite of promulgation of Islamabad High Court Act, 2010, the Lahore High Court has the jurisdiction on Islamabad capital territory; meaning thereby the Lahore High Court Lahore and Islamabad High Court are enjoying concurrent jurisdiction on Islamabad capital territory.

27. Now the question is whether the impugned order was passed after providing opportunity of hearing to petitioner or not? The perusal of impugned order shows that petitioner's dismissal was affected from 17-3-2003, the petitioner has filed representation against the said order which is pending disposal before the competent authority under RSO, 2000. The question whether the plea bargain of petitioner with NAB can be treated as conviction or not, in the first instance has to be examined by the appellate authority under RSO, 2000. Admittedly the petitioner's representation has not been decided so far and as such in my humble opinion, the argument of learned counsel for petitioner to decide the issue whether plea-bargain amounts to conviction by this Court is pre-mature. The petitioner in the first instance has to agitate this ground before the appellate authority.

28. As far as the question of maintainability of petitioner during the pendency of appeal before the Hon'ble Supreme Court of Pakistan is concerned, the appeal is on different ground as the petitioner's appeal was dismissed by the Federal Service Tribunal on the ground of jurisdiction. After the judgment of Masood Ahmed Bhatti (supra) and as per admission of respondent that the petitioner joined Telephone and Telegraph Department and admittedly at that time the employees of Telephone and Telegraph Department were governed under the statutory rules. This petition is maintainable on the fresh ground that the petitioner's services is governed under the statutory rules of Telephone and Telegraph Department.

29. In view of above, this petition is allowed and the respondent No.2 is directed to decide the petitioner's representation against his termination order within one month on receipt of certified copy of this order. Needless to mention that the respondent appellate authority will provide opportunity of hearing to petitioner in accordance with law. JJK/K-13/L Order accordingl