P L D 1988 Supreme Court 387 (PLP)

MUHAMMAD AFZAL ZULLAH, J‑‑This appeal through leave of the Court is directed against Judgment dated 23‑1‑1982 of the Lahore High Court; whereby respondent's Constitutional Petition arising out A of an order of his dismissal from police service, was declared to be without lawful authority and the department was given an option to' proceed afresh against him.

2. The respondent was dismissed from service on 27‑12‑1979 when found guilty on charge of embezzlement of Government funds. His departmental appeal having failed, the Punjab Service Tribunal also dismissed his appeal on 10‑8‑1980 after the consideration of merits. The respondent, instead of filing a Petition for Leave to Appeal before this Court under Clause (3) of Article 212 of the Constitution, chose to file a Constitutional Petition in the High Court bringing under challenge, amongst others, the order of the Tribunal dated 10‑8‑1980 also. It was accepted on the ground that the mandatory provisions contained in the Efficiency and Dicipline Rules applicable to the respondent regarding the charge and its communication together with statement of allegations not having been complied with, the order of respondent's dismissal was without lawful authority. While reaching this conclusion, the High Court repelled the argument advanced from the appellants' side that 'the finding given by the tribunals below in this behalf, being a finding of fact, cannot be disturbed in exercise of Writ Jurisdiction." It was observed that "there is little merit in this argument. It is well‑settled that when a special tribunal, which is a final Judge on a question of fact, acts on no evidence it renders its orders liable to be removed through judicial review."

3. The Jurisdictional objection raised from the appellants' side before the High Court on the basis of the bar contained in Article 212 of the Constitution asserting that the only remedy available to the respondent after tribunal's decision was through a Petition for Leave to Appeal before the Supreme Court and not through a Writ Petition, was also overruled with the following observation:‑ "This argument does not deserve any serious consideration, for, under Article 212, an appeal lies to the Supreme Court only if the case involves a substantial question of law of public importance. However, the instant case does not present any such question of law of public importance but nevertheless that being an order based on no evidence and also violative of the mandatory provision of the Police rules, is liable to be struck down in exercise of Constitutional Jurisdiction of this Court."

4. Leave to appeal was granted to examine the legal pleas raised by the appellants' before the High Court.

5. The learned Assistant Advocate‑General reiterated the arguments advanced from the appellants' side before the High Court on the basis of which leave to appeal was granted, while the learned counsel for the respondent re‑asserted the reasons noted above, which prevailed with the High Court in repelling the appellants' arguments.

6. It is necessary to note that the learned Judge in the High Court in reality pre‑judged what the Supreme Court would have done if a petition for leave to appeal would have been filed by the respondent under Article 212(3) of the Constitution. Even if it was thought that the respondent would not have been able to convince the Supreme Court that the case involved a substantial question of law of public importance, the learned Judge could not sit on the judgment of the Supreme Court and that too in advance of its being rendered. The approach of the High Court in this behalf, to say the least, was not correct; inasmuch as after giving a finding which was within the exclusive domain of the Supreme Court under Article 212(3) of the Constitution that "the instant case does not present any such question of law of public importance", it was nevertheless considered a case fit for exercise of constitutional jurisdiction on the basis that the order of dismissal of the respondent was without lawful authority And that too because it was "based on no evidence and also violative of the mandatory provision of the Police Rules." If the order was of that character, this aspect alone would have furnished enough ground at least to examine whether the hurdle created by a constitutional jurisdictional bar was not formidable. The error is so obvious, that no further comment is necessary. The High Court had no jurisdiction to pre‑judge what the Supreme Court had to do if a petition for leave to appeal had been filed before it under Article 212(3) of the Constitution.

7. This does not end the matter. It is, with respect, pointed out that the High Court without saying so in so many words in its writ jurisdiction has, after criticising the order of the tribunal, set it aside for all practicle purposes; without noticing another jurisdictional bar contained in Clause (2) of Article 212 of the Constitution. It reads as follows:‑ "212. (1) (2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), 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 [and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal; other than an appeal pending before the Supreme Court, shall abate on such establishment]: Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Majlis‑e‑Shoora (Parliament) by law extends the provisions to such a Court or Tribunal. (3) 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.

8. This clause (2) provides that "no Court other than the Administrative Court or Tribunal established under Clause (1) of Article 212 shall entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends." The learned counsel for the respondent, while admitting that the jurisdiction of the Service Tribunal in this case did extend to the subject‑matter of the Constitutional Petition moved before the High Court; has presented a novel argument; that the bar to the jurisdiction of other Courts, created by clause (2) referred to above, is only at the stage before an appeal is brought before the tribunal. And further that once the tribunal is approached and the appeal is disposed of by it, the bar remains no more effective, so as to prevent the cognizance of the matter by the High Court in its Constitutional Jurisdiction. We have no hesitation in repelling the argument as untenable and misconceived. The provision does not envisage any such distinction drawn by the learned counsel. The bar would be attracted, even if after filing an appeal before the tribunal, the party concerned does not accept the decision rendered by the tribunal as correct. The only remedy then left is a petition before the Supreme Court under Clause (3) of Article 212.

9. In the light of the foregoing discussion, we hold that the impugned judgment suffers from an obvious error of jurisdiction. The other questions regarding the setting aside of the findings of fact in Constitutional Jurisdiction, therefore, need not be examined. This appeal is allowed with costs and the impugned judgment is set aside. M.B.A. /S‑151/S Appeal allowed.