ORDER SHEET
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
C.P. No.D-685 of 2019
Petitioner : Muhammad
Harif
Through Mr. Qurban Ali Malano, Advocate
Date of hearing : 14.07.2020
Date of Order : 14.07.2020
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O R D E R
ADNAN-UL-KARIM MEMON, J: This petition has been brought to challenge the office Order
dated 7.7.2020 issued by Secretary to Government of Sindh, Local Government
Board, whereby the services of the petitioner were placed under suspension. The
learned counsel for the petitioner argued that the aforesaid order has been
issued without lawful authority. It is further contended that there was/is no
complaint whatsoever pending against the petitioner during his tenure of
service; that through the impugned order, the petitioner has been restrained
from performing his functions as secretary Union Council which action can only
be taken in terms of any malpractice on the part of petitioner which factum is
lacking in the matter; that prior to impugned order, no show cause notice or charge
sheet was issued to the petitioner nor he was afforded any opportunity of being
heard. Learned
counsel further argued that the impugned order was not in consonance with law;
therefore, it is liable to be struck down. We queried from the learned counsel as to how
the instant Petition is maintainable against the suspension order. He in reply
to the query has submitted that the impugned order cannot be termed as order
passed within the terms and conditions of service of the Petitioner. More particularly, the
suspension order is based on malafide intention; that the petitioner is fully
entitled to be treated in accordance with law. He lastly prayed for allowing
the instant Petition. We
do not agree with the statement of the learned counsel for the Petitioner for
the simple reason that disciplinary proceedings falls within the ambit of
expression terms and condition of service of public servant. A bare perusal of impugned
order dated 7.7. 2020 shows that the Petitioner was suspended without any
charge. Before dilating upon the above, at the first instance we would like to
consider whether the Petitioner can challenge his suspension order in a
Constitution Petition?
2. We may observe here that, indeed the
writ jurisdiction of this Court is not meant to be exercised to compel the
competent authority to set aside the suspension order passed against a public
Servant, for the reason that any such direction would be disharmonious to the
principle of good governance and canon of service discipline. Rather causing
undue interference to hamper smooth functioning of the departmental
authorities, more particular in local Government Department which is meant for
public service.
3. To elaborate on the term “Suspension”.
In law suspension is not defined as a punishment but it is an intervening
arrangement, which is temporary in nature and resorted to prevent the
delinquent official from influencing the outcome of subsequent enquiry on any
of the charges against him. In view of such position, in our view the
Petitioner cannot file a petition against his suspension from service, which is
simply a temporary measure and has been taken to reduce the chances of
tempering in the course of enquiry by them. Against the adverse result of
enquiry, if any, the Petitioner will have the remedy of appeal and in presence
of such adequate remedy; this Court at this juncture will not step in to
declare the suspension of the Petitioner illegal or void. More so, the
Petitioner’s objection on his suspension is technical and procedural in nature,
since it is not his case that the charges mentioned in the suspension order are
the outcome of some malice or ulterior motives and/or against the principles of
natural justice.
4. In such circumstances, we would not
like to exercise our discretion in his favour to thwart the whole process of
disciplinary proceedings against him and
set-aside his suspension order on any of the technical ground, which will
amount to interfering in the right of the authority to enquire into allegations
against the Petitioner. The Petitioner has not been able to show any material
from the record as to how he is prejudiced by his suspension order. At this
juncture learned counsel for the petitioner pointed out that he will not be
able to receive his salary during the suspension period.
5. We are clear in mind that pendency of
the disciplinary proceedings, a final decision against the Petitioner has yet
to be taken by the Respondent-Department.
6. To conclude the matter, we are of the
considered view that the Petitioner has to overcome the clog of pendency of
disciplinary proceedings against him, if not finalized earlier; the
disciplinary proceedings shall be finalized within a period of three months
from the date of decision of this Court.
However it is made clear that during the pendency of suspension period,
the petitioner is entitled for his salary.
In
the light of above discussion the instant Petition merits no consideration and
the same is accordingly dismissed in limine along-with the listed
application(s). Let a copy of this order be communicated to the respondents for
information and compliance.
JUDGE
JUDGE
Faisal Mumtaz/PS