1981 PLP 325 (SCMR)

ABDUL KADIR SHAIKH, J.--This is a petition for special leave to appeal from the judgment of a Division Bench of Lahore High Court dated 16-9-1980 by which petitioner's appeal against the judgment of a Single Judge of the same High Court was dismissed. The learned Single Judge in the High Court lead dismissed Writ Petition No. 2824-S of 1980, filed by the petitioner by which he called in question the order of his compulsory retirement from service dated 7-5-1980. The reason that has prevailed with the learned Single Judge was that an alternative remedy by way of an appeal to the Service Tribunal was available to the petitioner under the provisions of section 17(1-B) of the West Pakistan Water and Power Development Authority Act, 1958, to challenge the impugned order compulsorily retiring him from service and since the case involved determination of disputed questions of fact which made it necessary to record evidence .and this could be performed by the Tribunal constituted by law to determine such disputes, the exercise of constitutional jurisdiction, in view of the facts and circumstances of the case, was not available to the petitioner. Learned Judges of the Division Bench confirmed this view and dismissed the appeal. Mr. Mumtaz Hussain, learned counsel for the petitioner submits that serious questions-of law were raised before the High Court, and since the order challenged was totally without jurisdiction, the availability of an alternate remedy is no bar to relief sought through a petition in the nature of Prohibition or certiorari. Learned counsel further submitted that the High Court failed to address itself to the plea of malice raised by the petitioner which stands proved by facts apparent on the face of the record, and which operated to render the entire action against the petitioner as illegal and without jurisdiction. After having gone through the record of the case in the light of the submissions made by the learned counsel, we are clearly of the opinion that no exception can be taken against the view that has prevailed with the High Court that it was totally unnecessary to deal with the points raised by the petitioner for the reason that the case involved determination of disputed questions of facts which could not be undertaken without recording evidence, and, therefore, the Service Tribunal was the appropriate authority for the examination of the grievance brought by the petitioner to the High Court for redress through constitutional means. Learned Singe Judge has also rightly observed that in appeal it was open to the petitioner to raise all pleas of facts and the law that were sought to be advanced in support of the petition and, therefore, the exercise of constitutional jurisdiction was not justified. By the refusal to exercise its constitutional jurisdiction under Article 199, the High Court has not violated any law or principle of law. Even on general principles, for the exercise of powers under Article 199, the High Court is, first, to be satisfied that no alternative remedy is provided by law to the petitioner. It is not the case of the petitioner that the remedy by way of an appeal to the Service Tribunal is not available to him. The judgment of the High Court did not leave petitioner without a remedy in the forum concerned, which will surely deal with all points of law and facts indepen dently and uninfluenced by any observations. The petitioner should have availed of that remedy, rather than approached this Court for a direction to the High Court to examine his grievance in exercise of constitutional jurisdiction, or that the grievance be examined by this Court itself, which may or may not be the ultimate result of the appeal, if special leave is granted to the petitioner. For these reasons, this petition is dismissed in limine. Petition dismissed.