1976 PLP [C (PLC(CS))

Mukhtiar Hussain v. District Manager, Provincial Transport Service Lyallpur P L D 1966 Lah. 258 Tel. (c) N: W. F. P. Service Tribunals Act (I of 1974)‑

S. 5(3) read with Constitution of Pakistan, 1973, Art. 212‑Transfer of cases‑Competence of Tribunal‑Extends to transfer from one Bench to another‑Application for transfer either to Supreme Court or to Administrative Tribunal Punjab ‑ Not entertainable ‑ Person in civil service of N.‑W. F. P. Government within exclusive jurisdiction of N‑W.F.P. Service Tribunal‑Supreme Court not to hear matter in first appeal falling within jurisdiction of Tribunal but to hear appeal against order of Tribunal in cases involving substantial question of law public importance‑Application, held not maintainable. Syed Mir Muhammad, while posted as Senior Civil Judge, Hazara at Abbottabad, was suspended by the Government of North. West Frontier Province on the recommendation made by the Peshawar High Court, Peshawar, and was charge‑sheeted on two counts which need not be recapitulated here. An inquiry was ordered to look into the charges against him and Mr. Justice Shah Zaman Khan Babar, a Judge of the Peshawar High Court, was appointed as Inquiry Officer to hold inquiry into the matter. After doing all that was required of him the Inquiry Officer held the accused‑officer guilty of both the charges and consequently recommended his removal from service. The inquiry report, as the record shows, was submitted to the Chief Justice, Peshawar High Court, who, in turn, forwarded the same to the Provincial Government, probably with his own recommendations. On considering the inquiry report, the Chief Minister, North West frontier Province being the authority designated under the North‑West Frontier Province Government Servants (Efficiency and Discipline) Rues, 1973 ordered the dismissal from service of Syed Mir Muhammad, on the 14th September 1974. Feeling aggrieved, Syed Mir Muhammad has come to this Tribunal challenging the correctness of the order of his dismissal from service for being illegal, without jurisdiction and mala fide. Alongwith the appeal, he has filed an application for the transfer of appeal to the Supreme Court of Pakistan for hearing of the appeal itself or its transfer to the Punjab Administrative Tribunal. The grounds for transfer, as contained in the application, are that since the Chairman of this Tribunal is still a serving Judicial Officer of the rank of a District and Sessions Judge, and other Members are still serving as Executive Officers under the Chief Minister, the hearing of the appeal by these officers will be violative of the appellant's right of appeal, which legally and by principles of natural justice must be heard and decided by an independent appellate authority, suffering from no inhibition or fear that it will be sitting on the judgment of those who can make or mar the career of the Members of the authority. According to the petitioner, this Tribunal, as it presently stands constituted, cannot be said to be an independent one. By this order, I propose to dispose of the transfer application so submitted by the petitioner. The objection raised by the petitioner against the hearing of appeal by this Tribunal comprehends factual as well as legal aspect of the matter. On factual side, the objection proceeds on the assumption that where an order, which is the subject‑matter of an appeal before the Tribunal, is passed by the Chief Minister, or the Provincial Government, in pursuance of the recommendation made by the Chief Justice, a serving Judicial Officer of the rank of a District and Sessions Judge heading the Tribunal, would be incapable of setting aside or varying such an order on account of annoyance which may be caused to the High Court as a result of reversal or modification of such an order, while no serving Executive Officer will have the courage to apply his own independent mind to such a matter, fearing the displeasure of the Chief Minister or the Provincial Government, believing that these authorities can make or mar their career. On the legal side, the objection refers to the constitution of this Tribunal being legally defective on the ground that the hearing of an appeal by a serving Judicial Officer, and serving Members of the Executive Branch, against the order of Chief Minister passed on the recommen dation of the Chief Justice, would be in violation of the law for the time being in force as also against the principles of natural justice. I shall first dial with the objection on factual side raised by the petitioner which is to the effect that the order of his dismissal, proceeding on the recommendation of the Chief Justice and having been passed by the chief Minister, the Chairman being Judicial Officer of the rank of a District and Sessions Judge and the other two Members serving in the Executive Department being under the direct control of the Chief Minister, will not be in a position to administer justice and to discharge their duties enjoined upon them by law. This objection, it may be pointed out, is without any merit. I cannot possibly conceive that a Judge holding any position in the administration of justice, while discharging his functions as such, can be influenced by extraneous considerations like fear or favour. By alleging that in deciding the petitioner's appeal, the Tribunal will be sitting on the judgment of those who can make or mar the career of the Members of the Tribunal, the petitioner means that the Tribunal would never interfere with any order passed by the Chief Minister or the Provincial Government. It may be stated that there is absolutely no justification for such a view and the petitioner having been a Judicial Officer for long eight years, ought to have realized that there could be no scope for such ideas in the administration of justice. I can have no doubt in my mind about the fact that the petitioner's case, like all other cases, shall be decided on its own merits. It being so, the application for transfer is bound to fail on merits. The next contention raised by the petitioner refers to the constitution of this Tribunal being legally defective. This objection is equally without any substance. In this connection, it may be stated at the very outset that the Administrative Courts/Service Tribunals are the creature of the Constitu tion of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution). Article 212 of the Constitution provides for the constitution of Administrative Courts Service Tribunals and lays down that notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide fox the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of all matters contained in the Article. In pursuance of these provisions, the Governor of the North West Frontier Province was pleased to make and promulgate the North‑West Frontier Province Service Tribunals Ordinance, 1973. It was published in the Government Gazette Extraordinary of the North‑West Frontier Province on the 8th of January 1974. The Ordinance later on became an Act of the Provincial Assembly of the North‑Wept Frontier Province (N.W.F.P. Act I of 1974) and is called the North‑West Frontier Province Service Tribunals Act, 1974 (hereinafter referred to as the Act). It was published in the Government Gazette Extraordinary of 28th March 1974. Section 3 of the Act provides that a Tribunal shall consist of a Chairman being a person who has been, or is qualified to be Judge of High Court and not less than two and not more than four Members each of whom is a person who has for a period of not less than fifteen years held a Class I or an equivalent post under the Federal Government or Provincial Government. In pursuance of these provisions, the Governor of the North‑West Frontier Province was pleased to appoint me as Chairman and Mr Zafar Ali Khan, a Provincial Secretary and Wazirzada Abdul Qayyum Khan, the then Additional Commissioner, Peshawar Division, as part‑time Members of the Tribunal. It will not be out of place to point out at this stage that I am a Judicial Officer for the last about twenty‑five years while the two Members of the Tribunal are also in the service of the Province for a long period, holding class I posts for more than fifteen years. Having held judicial office for a period of move than ten years I am qualified for appointment as a Judge of the High Court. This being the case, there cannot be the slightest doubt about the fact that this Tribunal stands constituted in accordance with the provisions of the Act. Coming now to the objection based on the principles of natural justice, reliance was sought to be placed on certain case reported as P L D 1971 Lah. 829, P L D 1973 Lah. 528, 1972 S C M R 154, 168 and 344. The principles of natural justice, as enunciated in the above authorities, can have no application to the case now before me. The authorities sought to be relied upon by the petitioner had absolutely different facts which have not the slightest resemblance to the instant case. In P L D 1971 Lah. 829 and P L D 1973 Lah. 528, it was held that the observance of the principles of natural justice has to be read in every statute unless the statute itself provides to the contrary and if a person has been condemned unheard by any Court or authority what soever then the order by which he was condemned would be a nullity in law and of no legal effect. This principle has also been affirmed in 1972 S C M R 154, 168 and 344. It will be seen that these authorities affirm the principle of natural justice audi alteram partem (no one should be condemned unheard) by laying down that an order condemning a person unheard is a nullity in law and of no legal effect and that this principle is to be read in every statute unless provided to the contrary. The authorities, however, do not go any further, so as to bring the petitioner's case within their purview. I fail to understand as to how this principle can be stretched to cover the petitioner's case, in which the question of condemning him unheard cannot possibly arise nor was the Act silent with regard to the qualifications for the appointment of Chairman and the Members of the Service Tribunal. It is not even the petitioner's own case that he had been condemned unheard or that there was no provision in the Act regulating the conditions for the appointment of the Chairman and the Members of the Tribunal. In these circumstances, it could not possibly be said, that tae constitution of this Tribunal was legally defective. If the petitioner, however, aims at seeking a declaration from this Tribunal to the effect that the Act whereby this Tribunal came into being, was ultra vires of the Constitution or that it violated the principles of natural justice, the appropriate course for him would be to select the proper forum because this Tribunal is not in a position to grant him such a relief. Needless to say that, it would not be possible for the petitioner to get a relief from anywhere on the basis of the principles of natural justice because it is well established principle of law that in case the Legislature creates a Tribunal suffering from some administrative bias, the Courts cannot challenge its decision on the ground that this was against the principles of natural justice or that the principles of natural justice can overrule the express provisions of a statute. The case of Mukhtiar Hussain v. District Manager, Provincial Trans port Service, Lyallpur (P L D 1966 Lah. 258) was also decided on this principle and it was observed that: "It is impossible to hold that principles of natural justice which remain undefined can overrule the express provisions of a statute. Rules of natural justice, are mere rules of practice to be observed on principles of justice, equity and good conscience, must yield to the provisions of the statute to the contrary." It would thus follow that the principles of natural justice, as put forth by the petitioner, cannot overrule the express provisions of the Act much less can they justify a Court of law to grant him a declaration to the effect that the C relevant provisions of the Act regulating the appointment of Chairman and Members of the Service Tribunal were against the principles of natural justice. Be that as it may, one thing is clear, and that is that the petitioner was not legally entitled to any relief on the plea that the constitution of the Tribunal was legally defective or that the provisions of the Act with regard to the conditions for the appointment of the Chairman and the Members of the Tribunal were opposed to the principle of natural justice. This brings me back to the request made by the petitioner for the transfer of his appeal to the Supreme Court of Pakistan for hearing of the appeal itself or its transfer to the Punjab Service Tribunal. This request, in my view, cannot legally be acceded to. It has already been made clear that there was no foundation for the apprehension expressed by the petitioner that he would not get justice from this Tribunal. This being so, the transfer application cannot succeed on merits. Even on the legal side, the petitioner has no legs to stand upon. It cannot be denied that there is only one provision in the Act governing the transfer of cases pending before the Service Tribunals and that is in clause (3) of section 5 of the Act which lays down that the Chairman may, at any stage, transfer cases from one Bench to another Bench or to the Tribunal. It will be seen that this provision only empowers the Chairman to transfer cases from one Bench to another Bench or to the Tribunal. He has not been empowered to transfer a case to the Supreme Court of Pakistan. It will not be out of place to point out here that there was every justification for the view that the matters in respect of which a Service Tribunal has exclusive jurisdiction can be heard by the Supreme Court of Pakistan only on appeal from the decision of the Service Tribunal and not otherwise. In this context, it may be stated that there is no provision in the Act conferring jurisdiction upon the Supreme Court of Pakistan to hear the matters in first appeal which are ordinarily to be heard and disposed of by a Service Tribunal. The Supreme Court derives its jurisdiction in such matters from Article 212(c) of the Constitution which provides that an appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal. The provisions in Article 212 have been extended to the Tribunals constituted under the North‑West Frontier Province Service Tribunals Act, 1974 by Act No. XXXIII of 1974. In this view of the matter, there cannot be the slightest doubt about the fact that the Supreme Court is empowered only to hear an appeal from the judgment, decree, order or sentence of an Administrative Court/Service Tribunal, and that too, on a substantial question of law of public importance. It has, however, been not empowered to hear an appeal which under the law for the time being in force is to be heard and decided by a Service Tribunal. It thus follows that the present appeal which is to be heard and decided by the Service Tribunal cannot be heard by the Supreme Court of Pakistan. The Punjab Administrative Tribunal also cannot hear this appeal inasmuch as according to the provisions contained in the Act, it is only the North‑West Frontier Province Service Tribunal which can hear and dispose of the appeals filed by the civil servants of the North‑West Frontier Province. For these reason, the request made by the petitioner for the transfer of this appeal to the Supreme Court of Pakistan or the Punjab Service Tribunal cannot be entertained. In view of what tsar been stated above, it is manifest that there is no merit in the transfer application. The result, therefore, is that the transfer application fails and is hereby rejected.