2005 PLP (C (PLC(CS))

4. In order to meet such an. objection as to the maintainability of the petition the learned counsel for the petitioner has attempted to restate the background in which the notice has been issued and proceedings have been commenced against the petitioner. Besides the allegations of mala fide his prime focus of attack is that the whole action is aimed at to remove the petitioner by any means due to the rift that has prevailed and unworkable-conditions created to disable him from performing his duties and functions. It is contended that respondent No.3 has no power to issue any such show-cause notice under Ordinance IV of 2000, as he was not the competent authority in the matter in terms of the provisions of Section 2 (aa) of the Ordinance. It is contended that the day the judgment was announced in W.P. No.5670 of 04 i.e. 1-7-2004, the show-cause notice was issued which the petitioner was coerced to receive. According to him that was enough to infer the mala fide and the motive of respondent No.3 qua action against the petitioner. He has cited Khuda Bakhsh v. Anwar Hussain, MIC, Kasur and another (PLD 1976 Lah. 919) and Messrs Sh. Abdur Rahim, Allah Ditta v. Federation of Pakistan and others (PLD 1988 SC 670). The learned counsel for the respondents have, however, refuted any such allegation of mala fide attributed to respondent No.3 who contended that the ultimate authority in the matter lies with the Syndicate of the University which is the appointing/removing authority of the petitioner and that any apprehension of the petitioner that the respondent No.3 would remove him, is without any basis.

5. In such context when accusations of parties against each other have their genesis and fall within the factual realm, I would like to refrain from making any comment or observations about the same, which are left to be determined by the appropriate forum.

6. The undisputed position at the present is that no order adverse to the petitioner has been passed except the issuance of show-cause notice dated 1-7-2004, which reads as follows:- "I, in exercise of the powers delegated to me by the Syndicate under Ordinance No.IV of 2000 as competent authority am of the opinion that an inquiry is necessary against you (Prof. Dr. Aftab Ahmad Malik) under Ordinance No.IV of 2000. Accordingly this show-cause notice is being served on you along with the charges and the statement of allegations duly signed by me." In view of the aforementioned charges and statement of allegations you are required to show-cause as to why penalty of dismissal from service as prescribed in section 3(1) (vii) of Ordinance No.IV of 2000 should not be Imposed on you on grounds of corruption, misconduct and inefficiency. Your reply must reach the undersigned within a period of 7 days from the date of receipt of this show-cause notice, failing which it will be presumed that you have nothing to offer in your defence and you admit the charges against you." Statedly an Inquiry Committee has been constituted to hold inquiry into allegations. A definite stance has been taken before me by the learned counsel for the respondents that the petitioner is a person in Corporation service for the purpose of Ordinance IV of 2000 to whom the law laid down by the Full Bench of this Court in Muzafar Hussain case (Supra) is attracted. The implications and ramifications of provisions of Ordinance IV of 2000 were elaborately examined and explored by the learned Full Bench inter alia that:-- "Intention of disciplinary proceedings is a preliminary step towards passing of a final order. In accordance with the provisions of Ordinance No.IV of 2000 and Ordinance No.XVII of 2000 it is only a final order which is appealable. The Legislature, in its wisdom, clearly excluded challenge to an interim order before the Punjab Service Tribunal. We are of the view that if a final order cannot be interfered by this Court, interference in an interim order will manifestly frustrate the object of law. It was further observed:-- "We are clearly of the view that even if no final order has been passed this Court does not have jurisdiction under Article 199 of the Constitution which is subject to the other provisions of the Constitution and Article 212 has the effect of curtailing the jurisdiction of this Court under Article 199 in respect of a matter of which the jurisdiction of the Tribunal extends." As to whether the action was initiated by the competent authority and could be assailed before this Court it was observed that "The bar of jurisdiction on the touchstone of Article 212 of the Constitution was also sought to be avoided by urging that the action under Ordinance IV of 2000 was not initiated by the competent authority as defined in section 2". But such a contention was repelled. The reason is quite obvious that even such a plea could also be taken by the party in case any adverse order was passed before the appropriate forum. It needs no reiteration that a Full Bench judgment of the Court has the binding force and is to be followed. The same was also followed in several cases including Badar Zaman v. Government of Pakistan through Secretary, Establishment and another (2003 PLC (C.S.) 1201). In Khalid Mahmood Ch. case (Supra) The Hon'ble Supreme Court also declined to interfere with an order passed by the High Court that petition qua a show-cause notice under Ordinance No. IV of 2000 was premature and had been dismissed. It was further observed that if any adverse order was passed the petitioner could file appeal before the Service Tribunal in accordance with law. Somewhat similar view was taken by a Division Bench of this Court (of which I was also a member), in Azai M. Asif Jah Bahadur v Government of the Punjab through Education Secretary, Lahore and 3 others (2004 PLC (C.S.) 292). In such view of the matter when it is conceded by the respondents side that the petitioner is being dealt with under the provisions of Ordinance No.IV of 2000 and the proceedings have also been initiated under that law, petition before this Court is not only barred because of the bar contained under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 but also that the show-cause notice itself is not assailable when no adverse order has yet been passed against him. Needless to emphasize that the Ordinance falls within the category of special laws, provisions whereof need to be adhered to strictly. It affords certain safeguards to the persons falling within its ambit and proceeded against. It also provides certain checks on the exercise of power, remedies and the forum to the aggrieved person. The petitioner can justifiably take all such pleas including the competence of the proceedings, the authority of those initiating/ conducting such proceedings, his assertion that the action was tainted with malice and defend his position by all means. As a result this petition is dismissed as not maintainable before this Court. H.B.T./A-23/L Petition dismissed.