2018 PLP (C (PLC(CS)N)

KHADIM HUSSAIN TUNIO, J.

This suit is for declaration and recovery of Rs.50,00,000/- and damages filed by the plaintiff above named against the defendants.

2. Briefly facts of the present suit as disclosed in the plaint are that the plaintiff served in the Pakistan Armed Forces, namely Pakistan Navy and Pakistan Air Force, for a collective period of about 23 years, having a flawless career, and during month of May, 1985, the plaintiff was serving with the defendant No.1 being a subordinate to defendant No.2 in the capacity of Squadron Leader and was posted as Liason Officer PAFWA and his services were placed at the disposal of defendant No.3, who never complained against plaintiff during his entire service with Pakistan Air Force. It is further stated that the defendant No.3 was a false, fictitious, fraudulent and superiors organization/Association, which was headed by the wife of defendant No.2, being the patroness-in-chief of the defendant No.3 and the defendant No.2 was the Supreme head of Pakistan Air Force.

3. Through the defendant No.3, the defendants Nos.2 and 4, committed fraud upon the defendant No.1, by conducting private business at the PAF-Base headquarters, which was not permitted under the law and the said defendant No.2 had established commercial shops at different PAF Bases, which were manned by P.A.F. Such private business was conducted under the supervision of the wives of the base Commanders and the funds, so raised were shared/embezzled/used by the Base Commanders according to their own wishers/whims and were never accounted for in the ledges if defendant No.1, however the share of such wrongful gains was distributed amongst the persons having administrative control over the Pakistan Air Force, including the defendant No.2 and the wife of Ex. Chief of Air Staff was deemed to be the First lady and the Supreme head of the defendant No.3, as per convention/tradition/bye-laws of the defendant No.3.

4. Thereafter plaintiff received a show-cause notice No.AHQ/12312/6164/Air Secy/dated 01.09.1986, wherein it was alleged that the plaintiff's performance during his tenure, as Liason Officer PAFWA had been "highly undesirable" and the plaintiff was required to show-cause as to why his case may not be recommended to Federal Government for plaintiff's removal from service. There was no any complaint from the defendant No.3 or its any representative from PAF Base Faisal. Actually certain officers wanted to misappropriate some of the items from PAFWA shop (PAF Base Faisal), which the plaintiff did not permit and the plaintiff tendered his detailed reply to the said show-cause notice and the Board of inquiry was ordered. Thereafter in the month of September, 1987 the plaintiff an order dated 30.08.1987, disclosed that the plaintiff had been removed from service after being aggrieved and dissatisfied from the order dated 30.08.1987, the plaintiff preferred a review petition to the defendant No.2, thereafter defendant No.2 upon illegal, incompetent, mala fide, unlawful, mischievous and mala fide advice of defendant No.4 rejected review the petition vide Letter No.Air HQ/CR/6161 dated 13.03.1988. He further submitted that the defendant No.4 was highly corrupt person and he instituted false, fraudulent and mala fide proceedings against PAF employees and then tried to bargain with the affected persons, those who refused to pay bribes to him were always fired/removed from service and in addition to material damage for which the plaintiff claims Rs.50,00,000/- from the defendants.

5. Thereafter plaintiff sent a legal notice to the defendants dated 07.09.1988, through his advocate requiring the defendant to pay Rs.50,00,000/- but the same remained unreported till date. After removal from service plaintiff was drawing Rs.6200/- p.m. salary and had 12 years of service with excellent chances of promotion and the defendants have malafidely deliberately knowingly and intentionally conducted themselves against the law to remove the plaintiff from service and the defendants had jointly severally acted in gross violation of the mandatory provision of law contained in the P.A.F. Act.

6. The cause of action arose to the plaintiff, firstly on his entry in the P.A.F. service, secondly when the defendant No.1 placed plaintiff's services at the disposal of a false, fraudulent, fake and superiors organization.

7. Plaintiff prayed that this Hon'ble Court may be pleased to pass a judgment and decree in favour of the plaintiff and against the defendants as follow;- (a) Declaring that the removal of the plaintiff from service of defendant No.1 is illegal, unlawful and mala fide, and is as such causative of humiliation, mental torture and demotion to the plaintiff. (b) Directing the defendants to jointly and/or severally pay Rs.50,00,000/- damages to the plaintiff on account of the defamation, humiliation and mental torture caused to the plaintiff by defendant by malafidely/illegally removing him from service. (c) Granting cost of the suit. (d) Passing any other order/s deemed fit and proper under the circumstances of the case.

8. Defendants 1 to 4 filed their written statement and they have stated that the suit is not maintainable and the plaintiff had no cause of action and he was not entitled to the relief prayed for and the suit was barred by general principle of law as it relates to act of state and public policy and the relief prayed for was barred under Articles 199(3), 8(3)(a) read with Article 243 of the Constitution of Pakistan and the plaintiff being ex-member of the Armed Forces, creature of the constitution vide Article 240 of the Constitution of Pakistan had no locus standi to file the present suit.

9. They have submitted that the plaintiff was not commissioned in the Pakistan Air Force as Pilot officer on 24.01.1974, before joining the PAF he was serving in Pakistan Navy. The plaintiff was posted to PAF Base, Faisal as officer in charge personnel Squadron duties and he was also taken to supervise working of PAFWA shop. And they further submitted that the plaintiff being member of the Armed Forces, was in the service of Pakistan. They have also submitted that the wife of Chief of the Air Staff was the honorary head of the defendant No.3 and does not draw and pay, allowances or any other benefit in the capacity. It is further submitted that the aims and objects of the defendant No.3 were to carry out welfare activities for the low paid PAF personnel, widow and children of shuhada. The welfare activities include, inter-alia monetary grants to the poor and low paid PAF personnel, scholarships to their deserving children provision of funds for the marriages of their girls and medical help to the needy etc. They have further alleged that any of the funds are shared embezzled used by the Base commanders as any of the funds are distributed among the alleged persons among the defendants as alleged or otherwise. They have further submitted that the defendant No.3 was a welfare organization of the Pakistan Air Force with its main office at Chaklala. It was headed by the wife of the Chief Commanders at various bases act as Managing ladies and they were her deputies. They supervise PAFWA activities at their respective bases. The defendant No.3 and or its representatives establish shops and other welfare centers. In order to extends helping hand to the defendant No.3 an officer of the defendant No.1 was normally detailed to act as liason officer to super wise the working of the PAFWA shops in addition to his primary duties. They have submitted that the allegations to his primary duties. They have further submitted that the allegations made in the para under reply were unnecessary and scandalous as such are liable to be deleted from the plaint. They have stated that the wife of the Chief of the Air Staff was only honorary head of the defendant No.3 and does not draw any financial benefit for his duty from any source. They have also stated that the PAFWA shops were established only by the defendant No.3 and no other defendant had established such shops. Admittedly the show-cause notice was issued after duly constituted board of Inquiry submitted its report to the concerned authority recommending disciplinary action against the plaintiff and the defendant No.3 was not a legal entity, its activities were controlled and supervised by the officials of the defendant No.1 as to the allegation contained in para 8 of the plaint it is stated that as per averments made hereinabove the show-cause notice was issued on basis of the report of the Board of Inquiry, which was ordered on 30.10.1985 and completed on 07.12.1995. They have submitted that the reply of the plaintiff to show-cause notice was found unsatisfactory and a case for his administrative removal from the service under Rule 17 of the PAF Act Rules, was recommended and forwarded to the Federal Government which was duly approved. And the plaintiff was issued with form pen-1 vide Air HQ/12, 6164/ dated 25.08.1987 and in pursuance thereof the plaintiff was removed from the service w.e.f. 31.08.1987. They have submitted that the competent authority after having considered the review petition rejected it on merits. They have submitted that the plaintiff was removed after following proper procedure. There was no mala fide intention to defame or to harm the plaintiff in any manner. They have further submitted that the plaintiff was a member of the Armed Forces and his services were at the pleasure of the present of Pakistan. Even the fundamental rights had not been guaranteed to the members of the Armed Forces and the plaintiff was no locus standi to file the present suit nor can he claim any of the alleged amount or any part thereof, as damages from the defendants, as alleged or otherwise. They have further submitted that the claim for damages as alleged was not maintainable and the receipt of the notice was admitted, but its contents were denied and the plaintiff made highly offending allegations, used insulting and derogatory language in the notice against the top functionaries of the PAF and the first lady of the PAF and the plaintiff in the due course for the language used in the alleged notice.

10. They have further submitted that the plaintiff had no vested right to remain in service and his services were at the pleasure of the President of Pakistan and the plaintiff was drawing salary of Rs.4801/- per month and there was hardly any chance for the plaintiff's promotion due to his own conduct and the plaintiff was not entitled to the alleged amount or any part under law as well as on merits of the case and the plaintiff was removed from service according the law and the provisions of law applicable to the case had not been violated. They have further submitted that the suit is barred by implication and in the interest of public policy. Furthermore the Armed Forces were creature of the constitution and their conditions of service were governed under special law. It is also submitted that no cause of action had been accrued to the plaintiff as alleged or otherwise against the defendants on the alleged dates or any other date. They have also submitted that the suit was barred by implication and in the interest of public policy, furthermore the Armed Forces were creature of the constitution and their conditions of service were governed under special law and no relief can be granted to the plaintiff and the suit is liable to be dismissed.

11. Vide order dated 19.01.1992 following issues were adapted by court:- Issues:- (1) Whether the suit is maintainable in law? (2) Whether the suit is barred by limitation? (3) Whether any cause of action has arisen to the plaintiff? (4) Whether issuance of show-cause notice to the plaintiff and his removal from service is a mala fide and illegal act? (5) Whether defendant No.4 is a corrupt person and institutes false fraudulent and mala fide proceedings against PAF employees? (6) Whether the plaintiff has suffered humiliation, defamation, mental loss as due to illegal conduct with the defendant? (7) Whether the plaintiff is entitled the relief claimed? (8) What should the decree be?

12. Plaintiff produced his affidavit in evidence, one Nazir Hussain son of Fazle Hussain, as Ex.PW-5/1 along with certified copy of the following documents. He produced the Photostat copies of the documents as Ex. P/1 to P/31 respectively.

13. Defendants examined DW-1 Amanullah son of Sanaullah as Ex.6, who produced copy of the order pertaining to removal of the plaintiff from service with effect from 31.08.1987 at Ex.P/18, Defendants examined DW-2 Anwar-ul-Ghani son of Abdul Ghani as Ex.7, who produced copy of the review petition as Ex.P/19, 5, Defendants examined DW-3 Mehmood Ahmed Siddiqui son of Manzoor Hussain Siddiqui as Ex.8, who produced original record of the proceedings of the Board as Ex.8/1, Defendants examined DW-4 Abdul Salam son of Muhammad Jamil as Ex. 9, Defendants examined DW-5 Mujahid Akhtar son of Shaikh Nisar Ahmed as Ex.10, Defendants examined DW-6 Attaur Rehman son of Muhammad Amin as Ex.11.

14. The counsel for the plaintiff has argued that the burden of issues Nos.1 and 2 lies upon the defendants; defendants have failed to prove the same by leading evidence in support of thereof; that the notice has been issued to the plaintiff under Chapter III of Pakistan Air Force Rules under sections 12 to 20; that the said sections prescribed procedure for taking disciplinary action; that as per section 20 the Federal Government has approved removal, release, retirement of dismissal of an Officer; that the PAF has no authority to take decision in respect of disciplinary matters falling in Chapter III PAF can hold enquiry against the diligent officer and to submit the finding of enquiry to Government of Pakistan for finalization of disciplinary action under Rules 12 to 20 that as per section 21 of Air Force Act, the Federal Government may call upon an officer to resign from Commission as an alternative to removal under Rule 17; that if the officer fails to avail this option, the Federal Government to retire the officer on disciplinary reasons; that the defendants have committed mala fide acts against the plaintiff; that the defendant No.2 appointed two members enquiry committee. The Enquiry Committee held various meetings, failed to adopt proper method of enquiry and did not record evidence while providing opportunity of cross-examination; that the defendant No.1 although served but not contest the claim of the plaintiff; that the written statement has been signed by Mr. Subz Ali Khan of PAF. And failed to file any authority letter to satisfy the court that he is competent to file the written statement on behalf of other defendants; that the defendant No.1 was required under Rule 18 to issue a option notice to the plaintiff to resign from service instead of passing order under Rule 17 for Removal From Service; that the whole exercise is without lawful authority, void, ab initio and not sustainable in law; that the evidence of the plaintiff remained unchallenged and un-rebutted by the defendants; that the plaintiff is entitled to the relief prayed for; that the suit of the plaintiff may be decreed as prayed. He has cited case law reported in PLD 1997 SC 3 (Abbasia Cooperative Bank v. Hakeem Hafiz Muhammad Ghaus and others), PLD 2007 SC 498 (Federation of Pakistan and others v. Raja Muhammad Ishaque Qammar), 1990 SCMR 999 (Rana Muhammad Sarwar v. Government of Punjab), 1993 SCMR 1440 Jan Muhammad v. Karachi Telecommunication, PLD 1996 SC 737, 2001 SCMR 1733 (FPCCI v. Ali Ahmed Qureshi) and 2008 CLD 1230.

15. On the other hand, the counsel for defendants argued that the suit of the plaintiff is not maintainable; that the declaration has been sought but it does not cover all the corners of section 42 of Specific Relief Act; that the suit is hit by the provision of section 162 of PAF and Article 199(3) of Constitution of Islamic Republic of Pakistan, 1973; that the plaintiff was provided remedy under section 72 of PAF, 1953 by filing a grievance petition before Chief of Air Staff and President of Islamic Republic of Pakistan under the provisions of AFO-111-46; that the plaintiff has filed the review petition before Chief of Air Staff but he has not failed further representation before President of Pakistan as such suit of the plaintiff is not maintainable at law and liable to be dismissed; that the suit of the plaintiff is hopelessly time barred; that no cause of action accrued to the plaintiff to file the suit; that the plaintiff has filed present suit with mala fide intention; that the suit of the plaintiff is liable to be dismissed.

16. I have heard learned counsel for plaintiff and learned counsel for defendants Nos.2 to 4 and learned standing counsel for defendant No.1.

17. My findings on above issues with reason as under:- Issue No.1 Negative. Issue No.2 Redundant. Issue No.3 Negative. Issue No.4 As discussed. Issue No.5 Negative. Issue No.6 Negative. Issue No.7 Negative. Issue No.8 Suit is dismissed. ISSUE NO.5 "Whether defendant No.4 is a corrupt person and institutes false fraudulent and mala fide proceedings against PAF employees?"

18. The burden to prove this issue squarely falls upon the plaintiff. In order to prove this issue the plaintiff has alleged that defendant No.4 is a corrupt person and institutes false fraudulent and mala fide proceedings; has also referred and produced documents of other litigation(s), filed by independent officials of PAF but has not examined any of them. I would say that mere production of independent litigation (s), filed by independent persons for their respective grievances, cannot help the plaintiff to prove this issue. Needless to add here that the law itself has provided a mechanism for proving a fact and document. A fact can only be proved by direct evidence which requires examination of the person who is claimed to have heard or seen a thing. Reference may be made to the Article 71 of the Qanun-e-Shahadat Order, 1984 which insists as: "

71. Oral evidence must be direct. Oral evidence must, in all cases, whatever, be direct; If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it. If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds;

19. Since, the plaintiff has not examined any of such employees of PAF so as to substantiate his plea hence mere submission of the copies of the plaint (s) would not be taken as proved because the law also provides mechanism to prove the documents. In absence of examination of plaintiffs of such litigation (s) as witnesses, the words or assertions made therein, are not of any legal value. Even otherwise, it is also a matter of record that the present plaintiff continued working with and under defendant No.4 and made no complaint. Not only this, but it is an admitted position that the plaintiff remained working and serving the defendants without any complaint and even managing the affairs exclusive which he (plaintiff) later (after his removal) alleged as illegal. None would accept such attitude of the plaintiff because the law requires that it was always the duty of an official to point out to the high ups that they are acting in excess of their lawful authority and in violation of law and the constitutional mandate. They may be apprised of the legal consequences flowing from such acts. The compliance of any illegal and arbitrary order is neither binding on the subordinate forums nor valid in the eyes of law. Reference may be to case of as 2014 SCMR 1611 wherein it was held that: Looking at the powers of the Chief Minister for allotment of public property, here a reference to the case of Iqbal Hussain v. Province of Sindh through Secretary, Housing and Town Planning Karachi and others (2008 SCMR 105) will be useful wherein this court has observed as under:- "

3. We are in complete agreement with the view taken by the Division Bench of the High Court when it says that public functionaries including the Chief Minister can deal with the public property only under a prescribed procedure within the parameters of law under a duly sanctioned scheme and not at their whims. Even if such order was passed by the Chief Minister in favour of the petitioner, authorities concerned would not be bound to follow such illegal and void order of a superior authority. It would rather be in the exigencies of good order of administration and their duty to point out to the high ups that they were acting in excess of their lawful authority and in violation of law and the constitutional mandate. They may be apprised of the legal consequences flowing from such acts. The compliance of any illegal and arbitrary order is neither binding on the subordinate forums nor valid in the eyes of law. Reference in this behalf may be made to decision of this Court in (i) Abdul Haq Indhar v. Province of Sindh (2000 SCMR 907 and (ii) Taj Muhammad v. Town Committee (1994 CLC 2214).

20. Since, the plaintiff has not examined any independent person nor he (plaintiff) produced any thing on record that prior to instant matter he (plaintiff) ever complained to his high ups that defendant No.4 is a corrupt person or is involved in such practice. In absence of such material, the plaintiff cannot be said to have proved the issue. Accordingly the issue is answered as negative. ISSUE NO.6 "Whether the plaintiff has suffered humiliation, defamation, mental loss as due to illegal conduct with the defendant?"

21. The burden to prove this issue also lied upon the plaintiff. It, being a well settled principle of law, that in order to prove the damages it is always obligatory upon the plaintiff not only to plead each head of the account of damages whether it be general or special but also to prove the same. A proof of damage(s) does not mean repeating of 'humiliation/ defamation' or 'mental agony' but it requires establishing the same by supportive evidences which is not limited but includes those whom the plaintiff became lower in prestige and honour and medical officer(s) under whom the plaintiff remained under treatment for alleged mental suffering and agony. Reference may be made to the case of Malik Gul Muhammad Awan v. Federation of Pakistan 2013 SCMR 507 wherein it is held as: "

4. It is now a well established principle that the person claiming special damages has to prove each item of loss with reference to evidence brought on record and for general damages as claimed by the petitioner relating to mental torture, agony, defamation and financial loss, those are to be assessed following the Rule of Thumb and the said exercise falls in the discretionary jurisdiction of the court which has to decide it in the facts and circumstances of each case. The courts below having appreciated the evidence led have already determined the damages to which petitioner could be entitled. In order to show that the amount of damages determined by the learned Division Bench vide the impugned judgment is not commensurate with the extent of shock and injury suffered by the petitioner, he has placed on record photocopies of certain documents which were never tendered in evidence during trial or appeal. These documents at this belated stage are of no avail to him. At no stage the petitioner filed application for additional evidence either. The concurrent findings of fact, in the afore-referred circumstances, have not been found by us to be against the record and the law declared. The petition lacking in merit is accordingly dismissed and leave refused."

22. In the instant matter, the plaintiff has not produced any independent witness nor produced a single document so as to establish the issue hence in absence thereof the plaintiff cannot be said to have discharged his burden. Failure of the plaintiff in such like issue is itself sufficient to answer the issue as negative. ISSUE NO.4. "Whether issuance of show-cause notice to the plaintiff and his removal from service is a mala fide and illegal act?"

23. This issue has got two folds one relates to issuance of show-cause notice while other requires determination of removal of service of plaintiff to be legal or otherwise.

24. Before going into details of either parts, I would first insist that the issuance of an explanation or show-cause notice by an employer or an authority since is meant to put the addressee on a notice to explain or show-cause about an allegation or position. An employer has a right to get things explained while an employee is under an obligation to clear his position (explain) because legally an act of employee also binds his employer. Even otherwise, since serving an explanation and show-cause notice prima facie means to provide an opportunity of explanation hence issuance thereof legally cannot be held illegal as same otherwise serves the very first object of fair-trial and universally acknowledged principle that 'no one should be condemned unheard'. Only exception to this would be where the addressee claims such act of employer as mala fide. Therefore, burden shall always be upon the addressee to establish mala fide if he (addressee) intends to challenge legality and competence of issue cause or explanation.

25. Now, I would proceed to discuss the first part of the issue but before that I would insist that 'mala fide' is an abstract term hence is always difficult to prove by some direct evidence but it could only be proved by circumstances which too to the effect that action, challenged as mala fide was initiated out of personal motive so as to hurt or to benefit someone. Reference may be made to the case of Akhtar Hussain Khan v. Federation of Pakistan 2012 SCMR 455 wherein it is held as:- ... In Federation of Pakistan v. Saeed Ahmed Khan (PLD 1974 SC 151), this Court was called upon to dilate upon the mala fides as a ground for exercise of power of judicial review of administrative action and the Court observed as follows:- "Mala fides is one of the most difficult thing to prove and the onus is entirely upon the person alleging mala fides to establish it, because, there is, to start with, a presumption of regularity with regard to all officials acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. As has been pointed out by this Court in the case of the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), mala fides must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case. 'Mala fides' literally means 'in bad faith'. Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself." As per plaintiff himself "These items/goods were sold to the Pakistan Air Force personnel on profits." but perusal of the reply to show-cause notice, submitted by the plaintiff (Ex.P/2) would show an admission on part of the plaintiff himself that: "

7. Reason for selling this V.C.R and cassettes to the shop-keepers in the market was that these items along with some others worth Rupees 70,125/- were purchased from Custom Ware House on credit basis. The list of purchased items is attached as Exhibit 'D'. The practice was that on every Saturday we used to collect the items from the Custom Ware House. But before receiving any item we were to clear all the previous bills. Thus it was required that all the purchased items should be sold to recover the money for the payment of bills within the same week. It is added that previously we had never received the items of more than rupees thirty five thousands. We had also not cleared one or two bills of approximately, amounting to rupees.... Thousands. So I intended to sell these items in the market with a view to get the amount quickly and clear all the outstanding bills ."

26. The plaintiff nowhere claimed that the articles of shop in question were permitted to be sold in open market. The plaintiff cannot deviate from the settled norms or procedure nor can take a plea of acting in good faith for deviating the procedure as 'in charge' of the shop in question, it was his absolute obligation to stick with procedure i.e. to sell articles to Pakistan Air Force Personnel only'. It is also a matter of record that the plaintiff never claimed to have been authorized/permitted by his superiors for selling out the 'customs' article in open market, therefore, mere plea of depositing the amount on following day is of no help for the plaintiff to seek an exception to the wrong, done by him. I would add here that no authority or Court even permitted in law, to do what is not permitted by law or settled procedure, solely applying its own vision/wisdom. Reference in this regard may be made to the case of Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 wherein it is held as: "It is a well known principle of law that where the law requires an act to be done in a particular manner it has to be in that manner alone and such dictate of law cannot be termed as a technicality. ....it is not open and permissible for the Court to pass any kind of order, the courts like, solely on the basis of its (courts) vision and wisdom, rather the courts are bound and obligated to render decisions in accordance with law and the law alone. And in any case the courts have absolutely no authority to act, in a capricious whimsical and arbitrary manner, and / or by violating the provisions of law ."

27. Thus, the issuance of show cause notice to the plaintiff cannot be said to be mala fide or illegal.

28. Now, I would revert to the second part of the issue which relates to an adjudication of removal of services of the plaintiff. Since, I am conscious of the legal position that this answer would first require determination of jurisdiction of this Court, therefore, I feel it quite appropriate and proper to leave the discussion on second part of the issue-4 here which I would resume later after deciding the issues Nos.1 to

3. ISSUES NOs.1 and

3. Whether the suit is maintainable in law? Whether any cause of action has arisen to the plaintiff? Both the above issues appear to be strongly interlinked with each other, therefore, I feel it quite appropriate, just and proper to discuss the same jointly.

29. At the very out-set, I would not deny that removal of plaintiff from his service is sufficient to give him a cause of action to seek legal remedy but before proper forum. It shall never be the whims or wishes which shall give jurisdiction to a forum or authority but it shall only be dictates of law and law only which an aggrieved shall have to follow while pursing his legal remedies. Reference in this regard may well be made to the case of Munawar Hussain and 2 others v. Sultan Ahmed 2005 SCMR1388 wherein it is held as: "

10. For the point in question, this Court has given a clear distinction in case of Muhammad Hussain v. Muhammad Shafi 2004 SCMR 1947. We have already held that when a Court suffers from want of inherent jurisdiction, no amount of consent or acquiescence in the proceedings can invest such Court with such jurisdiction. No question of waiver or estoppel is attracted in such circumstances."

30. Since, question of maintainability of suit and jurisdiction of this Court has been raised seriously therefore, mere arising of cause of action is not sufficient for the plaintiff to escape establishing maintainability of the suit and jurisdiction as well.

31. I am conscious and have gone through the case of Mukarram Hussain v. Federal Government 2017 SCMR 580 wherein honourable Apex Court has attended the non-obstante clause of Article 199(3) of Constitution and held as: .. This Court has time and again faced the question of jurisdiction relating to the orders or action of the Armed Forces and it has been the firm view of this Court that there is no bar of jurisdiction if the same suffers from mala fide, jurisdictional error or coram non judice. This Court in case of Ghulam Abbas v. Federation of Pakistan through Secretary Ministry of Defence (2014 SCMR 1530) has held that "any action or order of any authority relating to armed Forces of Pakistan, which is either coram non judice, mala fide or without jurisdiction, the same could be challenged before the High Court and bar contained under Article 199(3) of the Constitution would cease to operate. In the case of Rana Muhammad Naveed v. Federation of Pakistan through Secretary M/o Defence (2013 SCMR 596) this Court was of the view that there is no prohibition on the High Court to make an order under Article 199(3) of the Constitution if acts, actions or proceedings suffered from defect of jurisdiction or coram non judice. Further in the case of Federal Government through M/o Defence, Rawalpindi v. Munir Ahmed Gill (2014 SCMR 1530) this Court has observed that if an action of the Army Authorities with regard to a serving officer of the Armed Forces or any other person subject to the Army Act is established to be either mala fide, coram non judicie or without jurisdiction then the same could be assailed through a Constitution Petition by such aggrieved person and the bar of jurisdiction under Article 199(3) of the Constitution would have no applicability. Thus, we are very much clear that jurisdiction of this Court can only be justified against orders or actions of the Army Authorities if same are suffering from mala fide jurisdictional error or thus corum non judice but in the case in hand all the elements lack their existence. Moreover, it has been the firm view of the Courts that provisions of the Cr.P.C. would not attract to a case involving an offence dealt with by the Field General Court Martial under the Army Act. More so, we have been apprised by the learned DAG that in view of pendency of these petitions, the JAG Branch of the Army has already initiated the proceedings pertaining compromise in these cases with the concerned authorities and we have been informed that death sentences of the present petitioners have been converted to that of life imprisonment.

32. The above, leaves nothing ambiguous that if an order or action of an authority, relating to armed forces of Pakistan, is established either coram non judice, mala fides or without jurisdiction then same could be challenged by invoking Constitutional jurisdiction of High Court only in exception to Bar provided by Article 212 of Constitution. Since, the plaintiff (an official of Pak Army) does not claim an exception to his status as 'civil servant' therefore, filing of the suit, involving a prayer for re-instatement was/is never maintainable as this Court legally can seek on exception to the binding effect of Article 189 of the Constitution. It has categorically been held in the case of Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 as: "

146. Section 3(2) of the Service Tribunal Act provides that the Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of Civil Servant, including the disciplinary matters. In other words, the jurisdiction of all other Courts is barred by the provisions of the Sindh Service Tribunals Act, 1973, read with Article 212 of the Constitution.

147. Section 4 of the Service Tribunals Act provides Civil Servant with the right of filing an Appeal before the Tribunal, subject to the qualifications provided therein.

148. In this background, all the Civil Courts, including a Judge (in Chambers) of High Court of Sindh, exercising, jurisdiction on the original side as a civil court under C.P.C. cannot entertain a civil suit of a civil Servant relating to the terms and conditions of his service. The exercise of jurisdiction by the High Courts is conferred under Article 175(2) which reads as under:- "175(2) No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law."

149. Article 212 of the Constitution ousts the jurisdiction of High Courts and civil Courts in respect of the matter pertaining to terms and conditions of civil servants. In other words, the provisions of Article 212 do not confer a concurrent jurisdiction to civil Courts, High Courts and Tribunals. The ouster contemplated under the said Article is 1 Constitutional command, and, therefore, of necessity restricts the jurisdiction of civil courts and High Courts on the subject, which squarely falls within the exclusive domain of tribunals. 150 .... Surprisingly, it has been ignored that it is, by now, a settled principle of law that the civil and writ jurisdictions would not lie in respect of the suits or petitions filed with regard to the terms and conditions of Civil Servants, and yet some of the learned Judges of High Court of Sindh have erroneously exercised both civil and writ jurisdictions with regard to the terms and conditions of civil servants.

33. Thus in view of above legal position and binding effect of Article 189 of the Constitution, I have no escape but to say that suit in its present form is not maintainable before law as no amount of jugglery can give jurisdiction to this Court for entertaining a relief, involving reinstatement. Further, the consequential relief of damages is also dependant upon determination of the status of removal of plaintiff as illegal and mala fide which this Court, lacking jurisdiction, cannot decide. It is also not a matter of dispute that Federal Service Tribunal is functional hence proper course for the petitioner was always to approach the proper forum, as was held by the learned High Court, Islamabad while dismissing the petition of serving employees of Inter Services Intelligence (ISI) which was maintained by Honourable Apex Court in the case of Ghulam Rasool v. Government of Pakistan PLD 2015 SC 6 as: "

3. Admittedly the petitioner is enjoying the status of civil servant in terms of Section 2(b) of the Civil Servants Act, 1973. His appointment letter has also been issued under the said Act and the proper forum for redressal of his grievance was Federal Service Tribunal. The Tribunal is functional and the petitioner, if so advised, can approach the said forum for redressal of his grievance. In these circumstances, the impugned judgments are unexceptionable. The petition is dismissed and leave refused."

34. Accordingly, these issues are answered as 'negative'. In consequence thereof, the left discussion with regard to second part of the issue No.4, bas become redundant too. ISSUE NO.2 Whether the suit is barred by limitation?

35. In existence of the discussions in respect of the issue supra the instant issue has become redundant hence needs no further discussion particularly when the plaintiff legally is required to resort his remedies before proper legal forum subject to legal exceptions. ISSUE NO.7.

36. In view of the discussion made in respect of the issues supra, the issue in hand is answer in negative because entitlement of a relief is always consequential to adjudication on merits. Since, the plaintiff has failed in substantiating the issues supra hence this issue would fetch no other answer but a big negation. Accordingly the issue is answered as negative. ISSUE NO.8

37. In view of what has been discussed above, the suit of the plaintiff is hereby dismissed with no order as to costs. ZC/N-32/Sindh Suit dismisse