2003 PLP (C (PLC(CS))

And whereas in pursuance of decision by Review Committee No.1 held on 1‑12‑2001 it was recommended to retire compulsorily Mr. Ali Bux Sundrani Forester (BS‑6) as per parameters fixed by the Government of Sindh vide Services and General Administration and Coordination Department's letter No. SO(C.VII)S&GAD/7‑343/2000, dated 19‑12‑2000. And whereas from the perusal of relevant record it appears that you have completed 25 years service within the meaning of section 13(I) of Sindh Civil Servants Act, 1973 on 6‑7‑2001. And whereas you were issued show‑cause notice vide this office letter No. B.I.(d)Estt/1153, dated 5‑1‑2001 by showing irregularities committed by you during service period of 25 years. And whereas you submitted the reply to the show‑cause notice issued as above. And whereas you were given opportunity for personal hearing on 20‑2‑2002 vide this office letter No. B.I.(d)/Estt/1466, dated 6‑2‑2002. And whereas during the personal hearing no new point was raised and has repeated the same statement submitted in reply of show‑cause notice which were found unsatisfactory. And whereas I, Mahboob Ali Bhatti, Conservator of Forests Afforestation Circle, Larkana being a competent authority under section 13(1) of Sindh Civil Servants Act, 1973 the case against Mr. Ali Bux Sundrani, Forester (BS‑6) is decided as under:‑ (1) Mr. Ali Bux Sundrani Forester (BS‑6) is hereby compulsory retired from Government Service with immediate effect. (2) Outstanding amount being a damage value and loss sustained by the Government amounting to Rs.309,794 may be recovered from him. Necessary entry may please be made in the Service Book accordingly. Mr. Ali Bux Sundrani, Forester (BS‑6) C/o Divisional Forest Officer, Afforestation Division, Shikarpur. ??????????? ???????????? (Sd.) ? Conservator of Forests, Afforestation Circle, Larkana. No. B. I.(d)Estt/1719 of 01‑02, Larkana dated 6‑3‑2002."

3. The petitioner has not called in question the order of his compulsorily retirement but the direction/order to pay the amount caused as loss to the Government which according to the petitioner is illegal, unlawful, without any authority and jurisdiction and a mala fide act on the part of respondent No.3 is being assailed through this petition.

4. Mr. Abdul Khaliq Bhutto, learned counsel for the petitioner has stated that principle of double jeopardy stands attracted in this case, which is in flagrant violation of Article 13(a) of Constitution of Islamic Republic of Pakistan because removal from the service or dismissal or compulsorily retirement is one punishment and direction to make good loss is a second punishment. On a question as to how this Court is competent to entertain this petition, in view of the bar contained in Article 212 of the Constitution of Pakistan when the exclusive jurisdiction lies with the Sindh Service Tribunal, the learned counsel has argued that an alternate remedy has been provided under Article 199 of the Constitution of Islamic Republic of Pakistan as such he can always invoke the said jurisdiction of this Court. In support of his case the learned counsel has relied upon the cases of Government of Punjab v. Sarosh Sultan (PLD 1995 SC 541) and Messrs Haroon Brothers v. Drugs Registration Board and another (1992 CLC 1017). It is further contended that the order to pay an amount of penalty is an administrative order, which is malicious, arbitrary and patently illegal on the face of it and can be questioned in this petition.

5. Mr. Muhammad Bachal Tonyo, learned Additional A.‑G. has argued that the petition is not maintainable and the concept of double jeopardy is not available as while removing or retiring an employee from service the competent authority has power to direct that the amount outstanding against a civil servant or the amount equivalent to loss caused by him to the Government be recovered from him. In this matter there are specific instances of the loss sustained by the Government at the hands of the petitioner, as such he is liable to make good the said loss to the Government and the principle of double jeopardy does not stand attracted under the circumstances of the case. He has further argued that instead of tiling a departmental appeal or approaching the Sindh Service Tribunal which has the exclusive jurisdiction in such mutters this petition under Article 199 of the Constitution is mis‑conceived and not maintainable.

6. We have considered the arguments advanced by the learned counsel for the petitioner and the learned Additional A.‑G. We have also gone through the case‑law cited at the bar. No doubt under Article 199 of the Constitution of Islamic Republic of Pakistan certain remedies to an aggrieved person are available, but the same are subject to certain conditions and restriction as laid down in the said Article itself and the bar contained under Article 212 of the Constitution which has specifically and categorically ousted the jurisdiction of High Courts in respect of any matter to which the jurisdiction of such Administrative Courts or Tribunal extends. After the decision of the case Abdul Bari v. State (PLD 1981 Karachi 290) by a Full Bench of Sindh High Court the position has been fully clarified that matters relating to or arising out of the terms and conditions of service of a civil servant fall within the exclusive jurisdiction of a Service Tribunal. We are therefore of the considered view that the case‑law cited by the learned counsel for the petitioner has no applicability to the facts of the present case and, therefore, we are constrained to dismiss this petition in limine alongwith listed application. The petitioner may approach the competent forum/Tribunal, if so advised. H.B.T./A‑403/K????????????????????????????????????????????????????????????????????????????????? Petition dismissed.