Irfan Ali Vs Federation of Pakistan

Judgment Sheet

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT.

W.P.No.2330-P/2019

Irfan Ali Versus Federation of Pakistan through Secretary Defense, Rawalpindi Date of hearing 03.11.2021

Mr. Arif Jan, advocate for the petitioner. Mr. Amir Javed, Additional Attorney General for respondent.

JUDGEMENT

IJAZ ANWAR. J:- The instant writ petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the following prayers:

“It is, therefore, most humbly prayed that on acceptance of the instant petition, the respondents may very graciously be directed to act in accordance with Law the impugned order dated 16.10.2018 in respect of removal from service alongwith pre and post proceedings thereto, initiated against the petitioner may

very graciously be declared as illegal, unlawful, without lawful authority, void-ib- initio and of no legal effect, hence be set aside and the petitioner may kindly be re- instated in his respective service with all back benefits in the best interest of justice. That any other relief which has not been specifically asked for and is fit in the circumstances may also be allowed in favour of petitioner.”

The connected Writ Petitions No. 632- P/2019“Liaqat Ali vs Chief of Air Staff Pakistan Air Force, Air Headquarters, Islamabad and another”, 2534-P of 2019 “Muhammad Irfan Khan Vs Chief of Air Staff Pakistan Air Force, Air Headquarters, Islamabad and another”, 2848-P/2019 “Muhammad Hassan vs Federation of Pakistan through Secretary Defense, Rawalpindi”, 5690-P/2019 “Latif Ullah vs Federation of Pakistan through Secretary Defense, Rawalpindi and 4 others”, 601-P/2020

“Khalid Mehmood Arif Vs Airmen

Management Officer AIR Head Quarter, Peshawar and others”, 1734-P/2020 “Mudassir Hussain Vs Federation of Pakistan through Secretary Ministry of Defense, Rawalpindi and another”, 2434-P/2020 “ Asam Uddin Vs Federation of Pakistan through Secretary Defense, Rawalpindi and others”, 2435-P/2020 “Junaid Khan vs Federation of Pakistan through Secretary Defense, Rawalpindi and others” involve identical issue, therefore, we propose to decide all of them through this single judgement.

2.Learned Additional Attorney

General, at the very outset raised a preliminary objection regarding maintainability of these petitions with reference to Article 199 Sub Article 3 of the Constitution of Islamic Republic of Pakistan, 1973 and argued that action taken under

the Military Laws are subject to judicial review by the High Court only on the ground of coram non judice, without jurisdiction or suffering from malafide including malice in law. He placed reliance on the case of Said Zaman Khan and others Vs Federation of Pakistan through Secretary Ministry of Defense and others” reported as 2017 SCMR 1249. He further contended that the boundaries of the available jurisdiction under the constitution cannot be pushed so as to negate and frustrate Article 199

(3)of the Constitution of Islamic Republic of Pakistan, 1973. On merits, he contended that the petitioners were proceeded strictly in accordance with law being employees of the disciplined force. There is no scope of dereliction from duties. Besides, the allegations were such that the said employees have no room in the Pakistan Air Force.

3.Learned counsel representing the petitioners in response to the preliminary objection, placed reliance on the cases of “Umar Islam and 8 others Vs Federation of Pakistan through Secretary Defense Rawalpindi (PLD 2010 Peshawar 137), “Sarfaraz Khan and others Vs Chief of Air Staff (Pakistan Air Force), Islamabad and others” ( PLD 2020 Islamabad 428), Writ Petition No. 1528/2007 of this Court decided on 13.4.2017, “Federation of Pakistan and others Vs Raja Muhammad Ishaque amar and another” ( PLD 2007 Supreme Court 498), “Federal Government M/o Defense, Rawalpindi Vs Lt. Col. Munir Ahmer Gill” (2014 SCMR 1530), “Federation of Pakistan through Secretary Defense and others Vs Abdul Basit” (2012 SCMR 1229), “Rana Muhammad Naveed and another Vs Federation of Pakistan through Secretary M/o

Defense” ( 2013 SCMR 596), “Brig (Retc) F.B Ali and Another Vs The State” (PLD 1975 Supreme Court 506), “Mrs. Shahida Zahir Abbasi and 4 others Vs President of Pakistan and others” (PLD 1996 Supreme Court 632), “Said Zaman Khan and others Vs Federation of Pakistan through Secretary Ministry of Defense and others” (2017 SCMR 1249), “ Ghulam Abbas Niazai Vs Federation of Pakistan and others” (PLD 2009 Supreme Court 866), “Muhammad Hussain alias Julfikar Ali Vs State (Govt. of NCT), Delhi” (2012 SCMR 1610) and Civil Appeal No. 599 of 2020 decided by the august Supreme Court of Pakistan on 07.1.2021 and contended that despite the bar contained in Article 199 (3) of the Constitution of Islamic Republic of Pakistan, 1973, where any action has been found to be without jurisdiction or coram non judice or

malafide, extra ordinary jurisdiction of the High Court can competently be invoked by an aggrieved person. It was further contended that no regular inquiry was conducted into the allegations leveled against the petitioners.

Besides, a summary procedure has been adopted for removal/dismissal of petitioners from service.

He contended that petitioner’s long service career should have been considered while awarding the penalty. Learned counsel for petitioners led us to the allegations leveled against each petitioner and tried to justify that the penalty imposed is harsh and has washed their long service career.

4.Arguments heard and record

perused.

5.Having gone through the

judgements placed reliance by both the parties, we find that all the judgements of the Supreme Court of Pakistan referred by the learned counsel

for petitioners have recently been considered by the apex court in case of Said Zaman Khan and others Vs Federation of Pakistan through Secretary Ministry of Defense and others” (2017 SCMR 1249) and while placing reliance upon the judgement of the Larger Bench of the apex Court in case of District Bar Association Rawalpindi and others Vs Federation of Pakistan and others PLD 2015 SC 401 it was held that:

“In view of the above, there can be no manner of doubt that it is a settled law that any order passed or sentence awarded by a Court Martial or other Forums under the Pakistan Army Act, 1952, included as amended by the Pakistan Army (Amendment) Act, 2015, is subject to the Judicial Review both by the High Courts and this Court, inter alia, on the ground of coram- non-judice, without jurisdiction or suffering from mala fides including malice in law”

6.Thus in order to interfere with the orders of the respondents, it has to be demonstrated that the action taken was without jurisdiction meaning thereby that under the law, the issuance of Show Cause or the order of removal/dismissal was passed by an Authority which was not empowered for issuance of the same under the Pakistan Air Force Act, 1953 or the rules made there under.

Similarly, this Court can also interfere in the matter if the action so taken against a person is tainted with malafide either malice in law or malice in fact.

Now on the touchstone of the above parameters set by the superior courts, we are examining each petition separately.

W.P No. 230-P of 2019

Petitioner Irfan Ali was enrolled as Airman in Pakistan Air Force on 23.11.2010 and rendered about 9 years of service. He was posted at PAF Base, Kohat. In June, 2018, a Board of

Inquiry was ordered against him on the allegation of his involvement in homosexual activities. He was served with a Show Cause notice which was replied by him. The competent authority, after considering his reply to the Show Cause notice, removed him from service.

The record transpires that petitioner was duly served with a show cause notice which was duly responded by him and it was after the receipt of the reply to Show Cause notice that vide order dated 03.10.2018 petitioner was conveyed order of removal from service. His main ground in this case is that no regular inquiry is conducted and as such, the order of his removal from service is not legally tenable.

W.P No. 632-P/2019

Petitioner Liaqat Ali was enrolled as Airman in Pakistan Air Force on 29.1.2005. A Board of Inquiry was ordered at Mirage Rebuilt

Factory, Kamra in February 2018 to inquire into the allegation of being involved in the act of womanizing, drug trafficking and drug addiction.

He was served with a Show Cause notice on the said allegations. After receipt of reply of the petitioner, the concerned Authority removed him from service vide order dated 01.10.2018.

It is the case of petitioner that serious allegation of trafficking narcotics was leveled against him which he has denied in response to the Show Cause notice. However, adopting shorter procedure for his removal from service is not legally tenable.

W.P No. 2534-P/2019

Petitioner Muhammad Irfan was

enrolled as Cadet in Pakistan Air Force in the year 2015. He while on the posting strength of PAF Faisal Air Base Karachi, a Board of Inquiry was ordered against him on the allegation of his

involvement in an indecent act of sexual nature.

He was served with a Show Cause notice and after receipt of his reply, he was dismissed from service.

The case of petitioner is that serious allegation is leveled against him which he has denied in his reply to the show cause notice.

However, no regular inquiry was conducted and shorter procedure was adopted for his removal from service which is not legally tenable.

W.P No. 2848 of 2019

Petitioner Muhammad Hassan was

enrolled in PAF as Airman on 2.2.2016. While being posted at PAF Academy Asghar Khan (Risalpur), in June, 2018, a Board of inquiry was ordered at PAF Base, Kohat to inquire into allegation of his involvement in homosexuality.

He was served with a Show Cause Notice to which he submitted his reply and after

considering his reply, he was removed from service on 22.11.2018.

His case is that serious allegation is leveled against him which he has denied in his reply submitted by him in response to the show cause notice. However, no regular inquiry is conducted and as such, the order of his removal from service is not legally tenable.

W.P No. 5690-P/2019

Petitioner Latif Ullah joined the Pakistan Air Force as Aero Technician (Radio and Radar Technician) on 05.8.2006. The petitioner was charged in a criminal case under section 9-C/15 Control of Narcotic Substances Act who, after trial was convicted on 12.3.2019 to 09 1⁄2 years rigorous imprisonment alongwith fine of Rs. 45000/-. Later, he was administratively dismissed from service by the Competent Authority.

It is the case of petitioner that though he was convicted by the Special Court, Anti Narcotics for 09 1⁄2 years rigorous imprisonment, however, the honourable Islamabad High Court has acquitted him of the charges in appeal vide order dated 21.5.2019 and according to him, any acquittal is to be considered honoruable be it on account of benefit of doubt.

His contention is that such plea was not considered by the respondents.

W.P No. 601-P/2020.

Petitioner Khalid Mehmood joined

Pakistan Air Force as Aero Tech on 25.2.2008.

While posted at PAF Academy Asghar Khan, he was charged in a criminal case vide FIR No.

15.10.2016 under section 506/504/34 PPC. He remained absent from duty and was served with a show cause notice on the charge of absenting himself without leave, using threatening

language to superior officer, destroying service property and Act prejudicial to good order and Pakistan Air Force discipline. He was issued a Show Cause notice to which he submitted reply and after considering the same, was removed from service.

It is contended that though he was

charged in a criminal case under section 506/504/34 PPC, Police Station Takht e Nasrati, Karak, albeit he has since been acquitted by the trial Court on 22.1.2019. He further contended that his absence, if any was not willful. Besides, the allegations of using abusive language with the officers and allegedly destroying a wooden door of detention cell are not based on facts and that such allegations having not been admitted by him required a thorough inquiry, albeit he is dealt with summarily and awarded penalty of removal from service which is not tenable.

W.P No. 1734-P/2020

Petitioner Mudassir Hussain was

enrolled as an Airman on 27.2.1998. In December, 2015 a Board of inquiry was ordered at Air Headquarters Islamabad to inquire into the illegal practices of various serving PAF personnel for collaborating with private coaching Centers/Academies for induction of their candidates in PAF by obtaining money as bribe.

He was dismissed from service on 04.10.2016.

It is case of the petitioner that serious allegation has been leveled against him which has never been admitted by him. However, no regular inquiry was conducted and summary procedure has been adopted in dismissing him from service which is not legally tenable.

W.P No. 2434-P/2020

Petitioner Asam Ud Din was

enrolled in PAF on 05.8.2005. During service while posted at PAF Base Mushaf (Sargodha). A Board of Inquiry was ordered to ascertain the allegation of his indulgence in illegal activities of violation of service rules and obtaining illegal/un- authorized benefits by issuance of unauthorized medicines and Glucometer to Ex. Sepoy Hasnat.

He was dismissed from service on 06.1.2020.

According to petitioner, serious

allegation has been leveled against him which has never been admitted by him. However, summary procedure has been adopted, therefore, his order of dismissal from service is not legally tenable.

W.P No. 2435-P/2020

Petitioner Junaid Khan was enrolled in the PAF as airman and was lastly posted as Senior Aircraf Man in PAF Base Mushaf

(Sargodha). A Board of Inquiry was ordered to ascertain the allegation of his involvement in unauthorized issuance of medicines to Ex.Sepoy Hasnat. He was served with a Show Cause Notice to which he submitted his reply and after considering the same, he was dismissed from service on 10.12.2019.

His case is that serious allegation has been leveled against him which has never been admitted by him. However, no regular inquiry was conducted and as such, the order of his dismissal from service is not legally tenable.

7.In order to ascertain the competency of the authority who has proceeded against petitioners, we find that in accordance with section 19 of Pakistan Air Force Act 1953, the authority to dismiss or remove an officer of the Pakistan Air Force is the Federal Government while in other cases, in terms of section 20, such

authority is bestowed upon the Chief of Air Staff or any officer empowered in this behalf under the Act. Both these sections being relevant are reproduced below:

“19. Termination of Service by Federal Government. Subject to the provisions of this Act and the rules and regulations made thereunder the Federal Government may dismiss or remove from the service any person subject to this Act.

20.Dismissal, removal or reduction by Chief of the Air Staff or other officers. (1) The Chief of the Air Staff, or any officer, empowered in this behalf under the rules may at any time dismiss or remove from the service any person subject to this Act other than an officer.

(2)The Chief of the Air Staff or any officer empowered in this behalf under the rules may reduce to a lower grade, or to a lower rank or to the ranks any non-commissioned officer.

(3)The Chief of the Air Staff or any officer empowered in this behalf under the rules

may reduce to a lower class in the ranks any airman other than a non-commissioned officer.

(4)The commanding officer of an acting non-commissioned officer may order him to revert to his substantive rank as a non-commissioned officer, or if he has no substantive rank, to the ranks.

(5)On active service, an officer commanding the air forces in the field may reduce to a lower rank or to the ranks any non - commissioned officer under his command.

(6)The exercise of any powers under this section shall be subject to the other provisions contained in this Act, and the rules and regulations made thereunder.”

8.In W.P No. 2534-P/2019, the

petitioner Muhammad Irfan was flying officer.

Record transpired that in his case, show cause notice was duly conveyed to him and ultimately the matter of his dismissal was approved by the Ministry of Defense, Federal Government while

in the remaining cases, in terms of section 20 of the Pakistan Air Force Act 1953, the petitioners were proceeded against and removed or dismissed from service. Rule-31-B has provided certain mode according to which cases of misconduct are to be dealt with. Rule-31-B being relevant is reproduced below:

“31-B. Dismissal or removal of persons other than officers. Save in the case where a person is dismissed or removal from service on the ground of misconduct which has led to his conviction by a Criminal Court or a Court Martial, no person shall be dismissed or removed under sub section

(1)of section 20 unless he has been informed of the particulars of the cause of action against him and allowed reasonable time to state in writing any reason he may have to urge against his dismissal or removal from the service.

Provided that if in the opinion of the officer competent to order the dismissal or removal it is not

expedient or reasonably practicable to comply with the provisions of this rule, he may, after certifying to that effect, order the dismissal of removal under this rule where the prescribed procedure has not been complied with shall be reported by the officer authorizing the removal or dismissal to the authority next superior to him.”

9.Keeping in view the above

provision of the Act and the Rules, this Court finds that the authority was duly empowered under the Act and the Rules and under no circumstance, the proceedings so taken can be held to be without jurisdiction. So far as the second question as malice in law and malice in fact are concerned, we find that there were serious allegations and particularly in two cases even the Air Force personnel have faced trial in criminal cases. Thus it is not for this Court to decide for the Pakistan Air Force that which of the personnel

is to be retained and which one is to be removed.

The dictum so laid in the authoritative judgements of the superior courts that the High Court should not act or assume jurisdiction as a Court of appeal is applicable in this case because the Hon’ble Supreme Court has, while interpreting Article 199

(3)of the Constitution of Islamic Republic of Pakistan, 1973 has narrowed down the jurisdiction of High Courts to the extent of Judicial review only in the cases where proceedings are coram non judice, malafide that is malice in law and malice in fact.

10.In the case of Ghulam Abbas vs

Federation of Pakistan through Secretary Ministry of Defense and others” reported as 2014 SCMR 849, it was held that:

“The High Court in its constitutional jurisdiction is not a Court of Appeal and hence is not empowered to analyze each and every piece of evidence in order to return a verdict.”

In the case of Ex.Lt.Col Anwar Aziz Vs Federation of Pakistan through Secretary of Defense Rawalpindi and two others reported as PLD 2001 Supreme Court 549” it was further held as under:

“This Court can interfere only in extraordinary cases involving question of jurisdictional defect when proceedings before that forum become coram non judice or mala fide.”

11.In view of the above, we are of the considered opinion that there were allegations against the petitioners and were very serious in nature. It has never been the case of the petitioners that it was a case of no evidence but their stance is regarding non-holding of regular inquiry. We have examined the provisions of PAF Act and the rules but could not find any express provision of law where under holding of regular inquiry is mandatory, as such, the non obstante

provision in the Constitution i.e. Article 199 (3) impeding the exercise of powers of judicial review by the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 would be applicable in this case.

12.In view of the above, this and the connected writ petitions being not maintainable are dismissed accordingly.

Senior Puisne Judge

Judge Announced on;

Dated. 03.11.2021

(D.B) Hon’ble Mr. Justice Rooh-ul-Amin Khan and Hon’ble Mr. Justice Ijaz Anwar *Amir*