THE HIGH COURT OF SINDH AT KARACHI

C.Ps.No. D-3531, 3739 & 4184 of 2020

 

 

         Present:        Mr. Justice Naimatullah Phulpoto

                                                                                                    Mr. Justice Adnan-ul-Karim Memon

 

 

Date of Hearing                    :           10.05.2022        

 

Date of judgment                 :           16.05.2022

 

Petitioner(s)                           :          Mr. Ali Lakhani advocate for petitioners in C.P.No.D-3531 and 4184 of 2020

 

                                                            Khawaja Muhammad Azeem advocate for petitioner in C.P.No.D-3739 of 2020

 

 

Respondents                          :          Dr. Shahnawaz Memon advocate for respondent No.2 in all petitions

 

                                                            Mr. Muhammad Nishat Warsi D.A.G

 

 

 

   JUDGEMENT

 

 

NAIMATULLAH PHULPOTO, J- We intend to decide captioned Constitution Petitions by one consolidated judgment having similar facts and law.

2.         The relevant facts out of which aforesaid Constitution Petitions arise are that in recent times, a controversy concerning the issuance of flying licenses by Civil Aviation Authority (CAA) has emerged. It is mentioned that Federal Minister for Aviation made statement that most of the flying licenses issued by CAA are fake and have been issued through dubious/unfair means. Petitioners are alleged to have breached software protocols and have created User IDs to generate fake pilot license exams. The Honourable Supreme Court in Suo Moto notice in Case No. 01/2020 vide order dated 21.07.2020 observed in this matter that as a larger national issue was involved and Supreme Court at that stage was not inclined to interfere or micromanage the same and look into individual grievances, such interference hampers and stalls the entire process. It was further observed that departmental proceedings be completed in due course without judicial interference. Relevant paragraph No.11 is reproduced as under:

“11.     At this stage, Mr. Makhdoom Ali Khan, learned Senior ASC has approached the rostrum and submitted that Pilots and other Crew members against whom there are allegations of holding fake licenses and academic testimonials are not being treated in accordance with law by the PIA as well as CAA. He prays that this Court may pass appropriate orders in this regard giving a timeframe within which proceeding should be completed we however notice that the competent authorities have initiated proceedings and in most cases no final orders have so far been passed. We have taken up the matter as a larger national issue and are not at this stage inclined to interfere or micromanage the same and look into individual grievances. Such interference hampers and stalls the entire process. We would let the departmental proceedings be completed in due course without judicial interference. As and when final orders are passed, the aggrieved parties shall have the right to avail such remedies as are provided by the relevant laws before the appropriate fora.”          

 

3.         The Board of Inquiry constituted by the CAA, investigated the violation/malpractices and found PCAA employees including petitioners involved in the issue of fake licenses. Hence, proceedings were initiated against them. In C.P.No.D-3531 of 2020 petitioner Faisal Manzoor Ansari who is an officer associated with CAA’s Licensing Department and working as Senior Joint Director in Licensing Section was served with a show cause Notice dated 21.07.2020 issued by CAA wherein, it is mentioned that Secretary, Aviation Division vide Notification No.11-4/2019-CAA dated 22.02.2019 has constituted a Board of Inquiry (BOI) to investigate the extent of violation/ malpractices observed in examination of Personnel Licenses and to ascertain the involvement of PCAA employees in such violations. Petitioner has been called upon to show cause as to why one or more penalties including termination from service as prescribed under provisions of the Regulations as well as criminal proceedings may not be imposed/recommended against him. Hence, the petitioner filed instant petition and prayed for following reliefs:

                                i.            A declaration that (a) Suspension Notice dated 26.06.2020; (b) Show Cause Notice dated 21.07.2020; and (c) Notice for Personal Hearing dated 30.07.2020; are illegal unlawful, unauthorized and without reason/cause;

 

                              ii.            A declaration that the petitioner has not misconducted as wrongly alleged through Show Cause Notice dated 21.07.2020;

 

                            iii.            Issuance of a Writ of Prohibition suspending operation of (a) Suspension Notice dated 26.06.2020: (b) Show Cause Notice dated 21.07.2020; and (c) Notice for personal hearing dated 30.07.2020;

 

                            iv.            Issuance of writ of Prohibition restraining the Respondents (including persons acting under them, through them and/or on their behalves) from taking any action(s) adverse to the rights of the Petitioner, including (by way of ) dismissal or termination from service, continued suspension from active duty, withholding/deduction of salary and related emoluments, transfer to an outstation, demotion in rank/service etc.;

 

Without prejudice to foregoing & strictly in the alternative

 

                              v.            A declaration that the Petitioner is entitled to the due process;

 

                            vi.            A declaration that Respondents No.2 and 3 (including persons acting under them, through them and/or on their behalves) must strictly abide by procedures contemplated under Regulation 10 to the Civil Aviation Authority Efficiency and Discipline Regulations of 2014;

 

                          vii.            A declaration that the Petitioner is entitled (at law) to be represented by a large practitioner during disciplinary proceedings;

 

                        viii.            Any other relief(s) deemed necessary, just and proper to the given circumstances;

 

                            ix.            Costs of proceedings.

 

4.         Notices were issued against respondents as well as DAG. Respondent No.2 filed comments wherein allegations have been denied and plea is raised that petitioner is working as Senior Joint Director Licensing Branch, he cannot evade his responsibility; that licensing is a composite function of examination followed by issuance of licenses and it was the duty of the petitioner to check/ verify all relevant document especially marks sheets which were issued without signatures of invigilators and in violation of prescribed rules; that Honourable Supreme Court has also issued directions in Suo Moto case to CAA to take departmental action as well as to register criminal cases against all those employees who were found involved in violation of the rules and procedure; that Board of Inquiry investigated the matter and found petitioner involved in cases of fake licenses. As such, show cause Notice was issued to him, which was replied by him. The petitioner was called upon for personal hearing, but instead of appearing for personal hearing, the petitioner invoked constitutional jurisdiction of this Court. As regards to the maintainability of instant petition, it is stated that Honourable Supreme Court in the Suo Moto Case No. 01/2020 has already ordered that departmental proceedings be completed in due course without judicial interference, even then the petitioner has approached this Court without availing an alternate remedy available to him before competent Authority, hence, it is prayed that instant petition is not maintainable under the law and the same may be dismissed.

5.         Petitioner Asiful Haq filed C.P.No.D-3739/2020 working as Senior Joint Director Licensing Department of CAA is aggrieved by a show cause Notice issued to him by the Secretary Aviation Division Annexure-D, Page-107 of the petition, has prayed for the following reliefs:

i.                    A declaration that (a) Explanation dated 02.01.2019; (b) Suspension Notice Dated 26.06.2020, (c) Show cause notice dated 21.07.2020, (d) Notice for personal hearing dated 30.07.2020 are illegal, unlawful, unauthorized and without reason/cause.

 

ii.                  A declaration that the petitioner has not misconducted as wrongly alleged through Show cause notice dated 21.07.2020.

 

iii.                Issuance of a Writ of Prohibition suspending operation of (a) Explanation dated 02.01.2019; (b) Suspension Notice dated 26.06.2020, (c) Show cause notice dated 21.07.2020, (d) Notice for personal hearing dated 30.07.2020.

 

iv.                Issuance of a Writ of Prohibition restraining the Respondents (including persons acting under them, through them and/or on behalfs) from taking any actions adverse to the rights of the Petitioner, including (by way of) dismissal or termination from service, continued suspension from active duty, withholding/ deduction of salary and related emoluments, transfer to an outstation, demotion in rank/service etc.

 

Without prejudice to foregoing & strictly in the alternative

 

v.                  A declaration that the Petitioner is entitled to the due process;

 

vi.                A declaration that Respondents No.2 and 3 (including persons acting under them, through them and/or on their behalfs) must strictly abide by procedures contemplated under Regulations 10 to the Civil Aviation Authority Efficiency and Discipline Regulations of 2014;

 

vii.              A declaration that the Petitioner is entitled (at law) to be represented by a legal practitioner during disciplinary proceedings;

 

viii.            Any other relief(s) deemed necessary, just and proper to the given circumstances;

 

ix.                Cost of the proceedings.     

 

6.         Notices were issued to respondents as well as D.A.G.

7.         Comments have been filed by the respondents. Same pleas have been raised by respondents that constitution petition is not maintainable against show cause Notice, reference has also been made to Suo Moto action initiated by Honourable Supreme Court in the matter and it is pleaded that alternate remedy is available to the petitioner before competent Authority.

8.         The relevant facts in C.P.No.D-4184/2020 filed by petitioner Abdul Raees are that he was serving as Senior Superintendent in Licensing Division. It is stated that prior to show cause Notice neither formal inquiry was held nor petitioner was provided an opportunity to rebut the allegations on the basis of which he was removed from service. The petitioner has prayed for the following reliefs:

                                i.            A declaration that the Board of Inquiry stands de-notified as of 15.12.2019;

 

                              ii.            A declaration that the Respondents (including persons acting under it through it and/or on its behalf) are not bound or in any manner compelled by the findings of the Board of Inquiry;

 

                            iii.            (Without prejudice) A declaration that the Civil Aviation Authority Ordinance of 1981 does not provide for constitution of Board of Inquiry;

 

                            iv.            (Consequently) A declaration that Suspension Order dated 26.06.2020, Show Cause Notice dated 21.07.2020 and Notice for Hearing dated 03.08.2020 are illegal, unlawful and ultra vires the Civil Aviation Authority Efficiency and Discipline Regulations of 2014;

 

                              v.            A declaration that major penalty cannot be invoked/ enforced in the absence of an inquiry (including by way of confrontation of evidence assumed);

 

                            vi.            A declaration that Dismissal order dated 21.08.2020 is illegal, unlawful and ultra vires (a) Articles 2A, 4, 5, 9 and 10A of the Constitution of the Islamic Republic of Pakistan, 1973 and (b) the Civil Aviation Authority Efficiency and Discipline Regulations of 2014;

 

                          vii.            A direction suspending operation of Dismissal Order dated 21.08.2020;

 

                        viii.            A direction restraining Respondent No.2 (including persons acting under it, through it and/or on its behalf) from interfering with or obstructing the Petitioner’s rights in service, including payment of salaries and related emoluments;

 

                            ix.            A direction compelling payment of salaries and related emoluments from 21.08.2020 till date of actual payment thereof;

 

                              x.            Grant any other relief(s) deemed permissible and necessary in the given circumstances;

 

                            xi.            Grant costs of proceedings.

 

9.         In the comments filed by the respondent No.2 allegations have been denied and it is stated that high level inquiry was constituted by the Secretary Aviation to probe into the affairs regarding violation of examination rules/regulations in the personal licenses’ examination and involvement of PCAA employees in such violations/malpractices. It is stated that petitioner ex-Senior Superintendent Personal Licensing Branch has been found involved in malpractices in examination of personal licenses. Accordingly, disciplinary proceedings were initiated against him and he was served with a show cause Notice dated 21.07.2020. He was provided personal hearing on 05.08.2020 and petitioner was found guilty of the misconduct for which major penalty of dismissal from service has been awarded. It is submitted that petition is not maintainable on the ground that petitioner has already been dismissed from service and he has an alternate remedy of appeal before DG, CAA.

10.       Mr. Muhammad Ali Lakhani learned counsel for the petitioners in C.P.No.D3531 and 4184 of 2020 contended that petitions are maintainable under the law as petitioners have challenged actions of the respondent No.1 and conduct of CAA as the same were without jurisdiction. It is further argued that fundamental rights of the petitioners are being violated; that major penalty cannot be imposed upon the petitioners in absence of regular inquiry; that Section 24A of the General Clauses Act provides that every authority exercising powers under statute or law is bound to assign reasons, as to any of the order passed/action taken; that respondents have not brought on record any material to justify the dismissal of the petitioners from service; that CAA should not base findings on the strength of Board of Inquiry report; that no formal inquiry has been conducted against petitioners; that petitioners have not been confronted with material brought on record; that CAA has taken action against petitioners in the light of the orders passed by Honourble Supreme Court in Suo Moto jurisdiction but in absence of the due process of law. Lastly, it is submitted that fundamental rights of the petitioners as guaranteed under Articles 2A, 4, 5, 9 and 10A of the Constitution may be protected and petitioners may be re-instated in the services with back benefits. In support of his contentions, reliance has been placed upon the cases reported as Muhammad Nawaz Khan vs. Multan Development Authority through Director General and two others (2001 PLC (CS) 296), Muhammad Safdar Anjum and 4 others vs. Pakistan International Airline Corporation through Managing Director (2016 PLC (CS) 1219), Muhammad Naeem Akhtar vs. Managing Director Water and Sanitation Agency LDA Lahore and others (2017 SCMR 356) and Tariq Maqsood vs. Government of Pakistan and others (2018 PLC (C.S) 997). Khawaja Muhammad Azeem learned counsel for the petitioner in C.P.No.D-3739/2020 has adopted the same arguments.

11.       Dr. Shahnawaz Memon, counsel for CAA mainly contended that Hon’ble Supreme Court of Pakistan has already taken the cognizance of the matter in Suo Moto Case No.01/2020, therefore, it is submitted that this Court has no jurisdiction to entertain these Constitution Petitions; that disputed questions of facts cannot be investigated while exercising constitutional jurisdiction. It is further contended that matter involves technical knowledge regarding use of the server; that petitioners have not played only with the system in breach of their official duties but also with the lives of the people as fake/bogus pass results were issued to the failure pilots, to fly aircrafts; that this is a case of gross misconduct as petitioners have been found involved in malpractices observed in examination of personal licenses. Lastly, submitted that Constitution Petitions are not maintainable as alternate remedy is available to the petitioners before competent Authority. In support of his contentions reliance has been placed upon the cases reported as Suo Moto Case No.1 of 2020 (2021 SCMR 1080), Messrs Sui Southern Gas Company Ltd. Vs. Zeeshan Usmani and others (2021 SCMR 609), Pakistan Airline Pilots Association and others vs. Pakistan International Airline and another (2019 SCMR 278) and V.C Bacha Khan University Carsadda, Khyber Pakhtunkhwa and others vs. Tanveer Ahmad and others (2021 SCMR 1995). DAG adopted the same arguments.

12.       Petitioners in C.P.No.D-3531 and 3739 of 2020 are admittedly aggrieved by show cause Notices issued by CAA requiring them to show why major penalty of the dismissal from service should not be imposed upon them and petitioner in C.P.No.D-4184/2020 is aggrieved by a dismissal order. It is well settled principle of law that normally constitution petitions are not maintainable against show cause Notice unless yield some results when a real cause of action accrued to the petitioners.

13.       It is well settled law discretionary jurisdiction under Article 199 of the Constitution cannot not be exercised in a vacuum; it must be grounded on valid basis, showing violation of specific and enforceable legal or Constitutional rights. Such discretion must be exercised in a structured and calibrated manner with due regard to parameters put in place by the Constitution as well as the Supreme Court as held in the case reported in the case of Government of Khyber Pakhunkhawa through Secretary Forest, Peshawar and others vs. Sher Aman and others (2022 SCMR 406). However, such factors are lacking in the present petitions. This Court in exercise of jurisdiction vested under Article 199 of Constitution can neither enter into factual controversies nor decide disputed questions of facts.

14.       It is further observed that Honourable Supreme Court in Suo Moto case No. 01/2020 vide order dated 21.07.2020 took up this matter, as larger national issue was involved and observed that any interference hampers and stalls the entire process and directed for completion of departmental proceedings in due course without judicial interference. It was further observed that as and when final orders are passed, the aggrieved party shall have the right to avail such remedies as are provided by the relevant laws before appropriate fora. It is well settled principle of law that judgment of Supreme Court is binding on each and every organ of the state by virtue of Articles 189 and 190 of the Constitution. In this regard reference may be made to Article 189 of the Constitution, reproduced hereunder:

“Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan.”

 

15.       For the aforesaid facts and reasons, these petitions must fail and are accordingly dismissed. However, it is made clear that petitioners may seek alternate remedy available to them under the law, if final orders are passed against them.

JUDGE

JUDGE

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