2011 PLP (C (PLC(CS))

SHAHID ANWAR BAJWA, J

With the consent of the petitioner and learned D.A.-G. this petition was finally heard and is being decided in Katcha Peshi.

2. The petitioner joined Pakistan Navy in July, 2005 as Cadet and was promoted as Midshipman in July, 2007 and then promoted as Acting Sub-Lieutenant in January, 2008. Alongwith his training the petitioner was also undergoing a course which if completed would have led to degree of B.E. Mechanical Engineering from NUST University Karachi and had the petitioner been allowed to complete the entire process he would have been granted commission as Sub-Lieutenant and degree of B.E. (Mechanical Engineer). In the month of April 2009 it was alleged that the petitioner stole Credit Card of Co-officer, Sub-Lieutenant Tayyab Jawaid. It was further alleged that such theft took place on 4-4-2009. Thereafter the credit was used twice on 12-4-2009 and once on 16-4-2009. Tayyab Jawaid complained on 19-4-2009. Thereafter departmental proceedings were initiated and on 23-10-2009 the petitioner was withdrawn from training and discharged 'from service. This Constitution Petition has been filed by the petitioner with the prayer that his discharge from service be declared as illegal and also that the action taken against him be declared as violative of principle of natural justice and has been taken without following codal formalities.

3. Petitioner who appeared in person referred to Rule No.30 of Pakistan Navy Rules, 1961 to contend that since the petitioner was an officer of a junior rank it was duty of the Commanding Officer to provide him assistance and such assistance was not provided. Petitioner further referred to Rule 258(20) and contended it was his legal right to be provided with a copy of proceedings of the Board of Inquiry as well as a report made by the Board and this has not been provided to him. Regarding merit of the allegations petitioner submitted that the shopkeeper (owner of a shop by the name of Rising Communication) is a close friend of complainant Tayyab Jawaid from whose shop Tayyab Jawaid has earlier purchased also. He further submitted that Inquiry Committee made equal recommendations against the petitioner as well as Tayyab Jawaid. The departmental authorities have not taken any action against Tayyab Jawaid and have merely penalized the petitioner. Petitioner in this regard besides referring to recommendations made by the Board of Inquiry referred to Paras 5, 7 and 9 of his deposition before the Board of Inquiry.

4. Mr. Ashiq Raza, learned D.A.-G. submitted that as required by Pakistan Navy Rules 33 option of assistance was given to the petitioner but he declined to avail it. Regarding Rule 258(20) he submitted that it is applicable in cases of Courts Martial and it is not applicable in cases which do not lead to court martial. He referred to the proceedings of inquiry and submitted that statement of shopkeeper (Rising Communication) was recorded by Board of Inquiry and an opportunity of cross-examination was given to the petitioner but he did not ask any question in the cross-examination. He further submitted that in the inquiry the petitioner admitted his guilt and also admitted that he paid Rs.10,000 to Tayyab Jawaid. He referred to statement of M. Anis Moodi in respect of transaction and statement of Training Coordination Officer Lt. Cdr. Mustafa Jan regarding admission and payment by the petitioner. Regarding maintainability of the petition learned D.A.-G. relied upon Ex. Lt. Col. Anwar Aziz (PA-7122) v. Federation of Pakistan through Secretary, Ministry of Defence, Rawalpindi and 2 others PLD 2001 SC 549, unreported order of the Supreme Court in Major Muhammad Azhar Khan Mastoi v. Federation of Pakistan, Civil Petition No.1108 of 2010 (order passed by the Supreme Court on 1-7-2010).

5. On the other hand, petitioner relied upon Federal Government and others v. M. Ishaque Qamar PLD 2007 SC 498 to contend that in spite of the provisions made under Article 199 of the Constitution, his petition is maintainable.

6. Learned D.A.-G. further submitted that petitioner has remedy of appeal before the Federal Government under Rule 36 of the Pakistan Navy Rules, 1961 and since the remedy though being available to him has not been availed by him this Constitution Petition is not maintainable.

7. We have considered the submissions made by the learned counsel and have also gone through the record. The petitioner also placed on record a copy of report dated 9-10-2010 given by the Handwriting Expert testifying that on the disputed three slips signatures when compared with admitted writing and signatures of the petitioner are not that of petitioner.

8. In our opinion adequate remedy is available to the petitioner under Rule 36 of Pakistan Navy Rules, 1961. The rule provide as under:- "

36. If the complainant is not satisfied.

If the complainant is not satisfied with the decision on his compliant, he may request that it be forwarded to the next superior authority and so on to the Chief of the Naval Staff and finally to the Federal Government to be dealt with in accordance with Rule 35, and all such requests shall be complied with. The complainant is only justified in appealing direct to a superior authority when the authority to whom such a request is made has neglected or refused to forward the complaint."

9. A perusal of the rule indicates that if the petitioner is not satisfied he has a right to appeal to next higher authority so on to the Chief of Naval Staff and finally to the Federal Government. Thus, the highest hierarchy for appeal appears to be the Federal Government. Record indicates that on 26-10-2009 petitioner wrote an application to the Chief of Naval Staff requesting him to review his case. Nothing has been placed on record by the respondents to establish that his application addressed to the Chief of Naval Staff on October 26, 2009 has been decided. Therefore we would dispose of this petition by directing the Naval Authorities to decide the application dated October 26, 2009 filed by the petitioner. If the petitioner is aggrieved by such decision or such decision is not communicated to him within 30 days of date of this order, the petitioner may appeal to the Federal Government through the Chief of Naval Staff with a direct copy to the Secretary Ministry of Defence.

10. This Constitutional petition is disposed of in the above terms. H.B.T./M-177/K Order accordingly.