2003 PLP (C (PLC(CS))

ANWAR ZAHEER JAMALI, J.

Petitioner Sheikh Karimur Rahim, a former civil servant, through this Constitutional petition seeks following reliefs: "PRAYER The petitioner prays that this Hon'ble Court may be pleased: (i) To declare that the impugned orders of the respondents i.e. Suspension Order under M.L.R.-58, bearing C.M.L.A. No.420/27/C.M.L. (M.L.-1) dated 7-1-1970 and Establishment Division Notification No.458 (D.S.A.) 69 dated 10-12-1969 effecting suspension of the petitioner from service w.e.f. 10-12-1969 and dismissal of the petitioner from service w.e.f. 28-4-1970 is/was without lawful authority and of no legal effect and void. ab initio. (ii) To declare that the petitioner is entitled to all the back-benefits including pay and allowances, promotion, pension and other retirement as they would have been raised from time to time so, reached as if the petitioner had continued in service ever since and had retired on attaining the age of superannuation. (iii) To grant such other and/or further relief as this Hon'ble Court may deem fit and proper in the interest of justice keeping in view the facts and circumstances of the case. (iv) To grant costs of the petition."

2. Briefly stated case of the petitioner is that after joining civil service of Pakistan as a C.S.P. Officer, in the year 1965 he was promoted as Collector of Customs Karachi. When latterly petitioner was serving as Deputy Secretary of the Establishment Division he was suspended on 7-1-1970 through a notice suggesting action against him under M.L.R.-58. Charge sheet was issued to the petitioner on the same date to which he submitted his detailed reply on 14-1-1970. Thereafter, during proceedings petitioner appeared before the Military Tribunal No.5 on 11-3-1970 but he was not afforded proper opportunity of hearing and finally on 28-4-1970 through newspapers he came to know about his dismissal from service. The petitioner further unfolded the details of his distinguished service record and the background of his alleged victimization by respondents. He also stated that on 14-9-1995, looking to the decisions in other cases of similar nature, he submitted an application for review of action taken against him under M.L.R.-58 to the President of Pakistan which was dismissed on 13-8-1996, leaving him with no alternative but to file the present petition.

3. On service of notice of petition respondents filed their comments wherein they challenged the maintainability of petition in view of the bar contained under Article 212 of the Constitution as well as on the ground of laches. They further denied the allegations that the Military Tribunals were not functioning in accordance with the provisions of law and during the proceedings before the Military Tribunal petitioner was not provided proper opportunity of hearing in the matter. Referring to the cases of M/s. S.A. Rizvi and S.S. Jafferi respondents submitted that their cases were distinguishable to the case of petitioner as the petitioner did not prefer any appeal before the Service Tribunal as provided under section 4 of the Service Tribunals Act, 1973. Respondents therefore prayed for dismissal of this petition.

4. We have heard learned counsel for the petitioner at length He placed reliance upon the judgment dated 10-4-1994 in C.P. No.D-283 of 1992 and the other judgment dated 1-3-2000 in W.P. No.8593 of 1995 and contended that the whole action resulting in petitioners dismissal from service in the year 1970 was mala fide, malicious arbitrary and illegal and thus liable to be set aside as was done in the two referred cases. However, learned counsel did not dispute that such alleged illegal or mala fide action was thereafter not challenged by petitioner before any forum. He was also unable to give any plausible explanation for such inaction of over 25 years from the side of petitioner i.e. from 28-4-1970 when he was dismissed from service (see paragraph 7 of the petition) till 14-9-1995 when he submitted his review application to the President of Pakistan (see paragraph 10 of the petition).

5. Syed Tariq Ali, learned counsel for respondents, reiterated the pleas raised by respondents in their comments and seriously questioned the maintainability of this petition in view of non-availing of remedy before the Service Tribunal, bar of Article 212 of the Constitution and laches.

6. Judgments cited at the bar by the learned counsel have been carefully perused by us and we have noticed that same are distinguishable and not applicable to the facts of the present case. In another case of Muhammad Ibrahim Parekh v. The Islamic Republic of Pakistan (C.P No.D-312 of 1995) decided by this Court on 20th January 1997, which, was based on more or less similar facts and circumstances, question of laches was examined by a Division Bench of this Court so also the applicability and import of the case of Syed Saeed Jafferi (Supra) and the case of S.A. Rizvi v. Islamic Republic of Pakistan and two others (1991 MLD 1834), refereed in the former case and the petition was dismissed, inter alia, with the following observations: "In both the above cases, upon appreciation of facts and law involved therein, it was found that the action taken by the respondent was void and mala fide, besides finding that both the petitioners had diligently pursued their respective cases and had kept the issue of reinstatement in service alive. On facts, in. both the above referred cases, the petitioners had challenged the order passed by the Federal Service Tribunal declining exercise of jurisdiction, before the Hon'ble Supreme Court and such orders were set aside in appeal. After remand the Federal Service Tribunal passed orders for reinstatement of both the above named persons namely S.A. Rizvi and S.S. Jafferi which had attained finality in due course. The respondent however, in both the cases had refused to implement the judgments of the Federal Service Tribunal pleading immunity under Article 270-A of the Constitution. In such background and after the judgment in Malik Ghulam Mustafa Khar and others (PLD 1989 SC 26), petitions filed for enforcement of judgments delivered by the Federal Services Tribunal were allowed through issuance of appropriate writs."

7. Similarly, in the other case viz. W.P. No.8593 of 1995 the question laches was not allowed to prevail by the Court for the following reasons: "As far as the question of laches is concerned I agree with the learned counsel for the petitioner that his client rushed from pillar to post for the redressal of the grievance. The moment the Federal Service Tribunal was constituted, he immediately approached there and being unsuccessful in the first round because of lack of jurisdiction he filed the petition for leave to appeal before the Supreme Court. After the remand of the case from the Supreme Court he immediately rushed back to the Federal Service Tribunal where he was reinstated. Thereafter, the Establishment Division refused to implement the decision of the Service Tribunal on one ground or the other. All this shows that the petitioner rushed to every available forum for the redressal of his grievance. He made several representations before the Authorities for the implementation of the order of the Federal Service Tribunal but all were of no avail. In these circumstances it cannot be said that the petitioner was not vigilant for availing the relief."

8. In contrast to the above, factual position in the present petition is that there was total inaction from the side of petitioner from 28-4-1970 to 14-9-1995, thus the ratio laid down in the cases of M/s S.A, Rizvi and S.S. Jafferi (supra) is not applicable in the present case. In the two cases relied by the petitioner the petitioners had approached the Federal Service Tribunal, their appeals were ultimately allowed and such orders when challenged by the Government before the Hon'ble Supreme Court of Pakistan were maintained. It was in these circumstances that the High Court exercised its Constitutional jurisdiction by issuing appropriate writs to implement such orders but in the present petition all these things are lacking.

9. From a plain reading of section 4 of the Service Tribunals Act, 1973 it is evident that after this enactment an adequate and efficacious remedy was available to the petitioner as far back as in the year 1973 but the petitioner failed to avail such remedy without any reason whatsoever. Non-availing of such remedy before the Federal Service Tribunal is fatal to the case of petitioner as the factual controversy involved in the matter that whether the proceedings before the Military Tribunal were in violation of principles of natural justice and due opportunity of hearing was not afforded to the petitioner or whether the action taken by the respondents, which ultimately resulted in petitioner's dismissal from service was mala fide, arbitrary and illegal cannot be examined by us in exercise of our jurisdiction under Article 199 of the Constitution at such a belated stage i.e. after more than three decades.

10. From the above discussion it is evident that the view taken by Division Bench of this Court in the case of M. Ibrahim Parekh (supra) is attracted with all force in the present case. We also find that in view of non- availing of remedy before the Federal Service Tribunal by the petitioner pleas of non-maintainability of petition raised by the respondents with reference to section 4 of the Service Tribunals Act 1973. Bar of Article 212 of the Constitution of Islamic Republic of Pakistan 1973 so also laches have much force. Moreover, we are also mindful of the fact that while considering the question of grant of any relief to the petitioner under Article 199 of the Constitution this Court cannot remain oblivious of changed circumstances and subsequent developments which may not justify grant of such discretionary relief to the petitioner at this belated stage.

11. For the foregoing reasons we find no substance in this petition which is accordingly dismissed in limine. M.B.A./K-78/K Petition dismissed.