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Constitutional petition- - Lawyers of Pakistan

Constitutional petition-

Citation Name : 2010 PLC(CS) 353 QUETTA-HIGH-COURT-BALOCHISTAN
Side Appellant : ALI GOHAR MAZAR
Side Opponent : FEDERATION OF PAKISTAN through Chief Executive Officer, Quetta Electric Supply
S. 4---Pakistan Water and Power Development Authority Act (XXXI of 1958), S.8(5)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dismissal from service---Appeal---abatement of appeal---Petitioner, who was dismissed from service, after exhausting remedy of departmental appeal, filed appeal before Service Tribunal, but said appeal was dismissed by the Service Tribunal by finding it having been abated---Undisputedly petitioner was employee of WAPDA, set up under Pakistan Water and Power Development Authority Act, 1958---WAPDA, however by exercising its powers wider S.8(5) of Pakistan Water and Power Development Authority Act, 1958, formed companies for different regions including, Quetta Electric Supply Company (QESCO) and services of the petitioner were placed at the disposal of said Company, (QESCO)---Board of Directors of QESCO adopted all existing rules of WAPDA in its meeting---Terms and conditions of petitioner's services had thus been determined, under the Act and Rules made thereunder---Petitioner, in circumstances could not invoke constitutional jurisdiction of the High Court in matters relating to the terms and conditions of his service in view of the clear bar contained in Art.212 of the Constitution---Petitioner was to have approached the Service Tribunal for restoration/revival of his appeal in the light of judgment of apex Court reported, in PLD 2007 SC 681---Petitioner had remedy before the Service Tribunal where he had already filed appeal---Constitutional petition being not maintainable, was dismissed.


Citation Name : 2010 CLC 39 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Rana MUHAMMAD RAFIQUE
Side Opponent : Malik MUHAMMAD ASHFAQ
O. VII, R.11---Punjab Pre-emption Act (IX of 1991), S.17---abatement of right of pre-emption---Plea of----Effect---Plaintiff filed suit for pre-emption in respect of disputed property---Defendant moved an application under O. VII, R.11, C.P.C. seeking dismissal of the suit on the ground that right of pre-emption of the plaintiff had been abated under S.17 of the Punjab Pre-emption Act, 1991---Defendant further asserted that where the pre-emptor alienated a part or whole of his property on the basis of which he had asserted a right of pre-emption, his right of pre-emption stood abated---Trial Court dismissed application of the defendant---Validity---Plaintiff was a co-sharer despite having sold a portion of his holding in the joint Khata---Plaintiff had also shared common amenities and the suit was at its initial stage where evidence was yet to be recorded---Order of the Trial Court whereby it had dismissed the application of the defendant under 0. VII, R.11, C.P.C. was unexceptionable---No illegality or material irregularity had been committed by the lower court---Petition was dismissed.


Citation Name : 2010 PLC(CS) 876 KARACHI-HIGH-COURT-SINDH
Side Appellant : MEHTAB AHMED
Side Opponent : CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, KARACHI
S.2-A---Constitution of Pakistan (1973), Arts.240, 260 & 212---abatement of proceedings Held, cases of employees whose services were not governed by statutory rules stood abated with the result that proceedings and judgments rendered by Service Tribunal also stood nullified---Affected/aggrieved parties were allowed a further period of 90 days to have recourse to the available remedies---Judgments of the Service Tribunal rendered on the basis of S.2-A of the Service Tribunals Act, 1973, which were never challenged before the Supreme Court, had attained finality and shall be implemented by the concerned organizations without dragging the employees into further litigation---Cases in which the services of the employees were governed by statutory rules were not hit by the Supreme Court judgment in Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602---Supreme Court directed that cases of employees whose services were not governed by statutory rules stood abated but other cases would require further hearing on the question whether services of employees in those cases were or were not governed by the statutory rules and same shall be fixed for disposal before appropriate Bench.


Citation Name : 2010 PLC(CS) 158 KARACHI-HIGH-COURT-SINDH
Side Appellant : Syed Agha ZIA-UL-USMAN ALI SHAH
Side Opponent : BOARD OF TRUSTEE OF KARACHI PORT TRUST through Chairman
S. 2(1)(b)---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional petition---Appeal, abatement of---Question to be determined in the case was, whether abatement of appeals/proceedings had been automatic (without any formal orders) or whether a judicial order was needed by Service Tribunal---Supreme Court, in its judgment PLD 2006 SC 602, had held that cases of the employees under S.2-A of Service Tribunals Act, 1973, which did not fall within the definition of "civil servant" as defined in S.2(1)(b) of Civil Servants Act, 1973, would have no remedy before the Service Tribunal, functioning under Art.212 of the Constitution and they would be free to avail appropriate remedy---After the judgment of the Supreme Court certain appeals were abated before the Service Tribunal and in some of those appeals the Registrar of the Tribunal made stereotype order which was challenged before the Supreme Court---Supreme Court in judgment 2008 SCMR 402 had held that separate order was required to be passed in every case by the Service Tribunal after providing opportunity to the parties---Following said order of the Supreme Court, Service Tribunal had started passing judicial order with the signature of Presiding Officer of the Tribunal---Thirty days' time was given to the petitioners to approach the Service Tribunal for making an application for judicial order on their appeals---Cases which were not subject-matter of the question to be determined, should be placed before the relevant Benches.


Citation Name : 2009 PLD 1 SUPREME-COURT-AZAD-KASHMIR
Side Appellant : Mst. HAMEEDA BEGUM
Side Opponent : MAZHAR HUSSAIN
S. 42---Civil Procedure Code (V of 1908), O.XXII, R.3(2)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974) S.42---Suit for declaration---abatement of appeal for non-impleading of legal heirs of deceased appellant---Appeal to Supreme Court---Suit filed by the plaintiff was partly decreed and judgment and decree passed by the Trial Court having been maintained by the Appellate Court, legal heirs of deceased appellant filed appeal before High Court---During pendency of appeal before Appellate Court, plaintiff died---No person was to communicate to the Appellate Court with regard to death of deceased who was a woman as her attorney had gone abroad---Legal heirs of deceased plaintiff who filed appeal before the High Court against judgment and decree of the Appellate Court, filed application in which it was prayed that order of abatement be set aside---High Court not only dismissed said application, but also dismissed appeal holding that appeal filed before the Appellate Court stood abated for non-impleading of legal heirs of deceased appellant---Validity---No order for abatement of appeal was passed by the Appellate Court---Neither any such point was raised before Appellate Court nor same was considered by the Appellate Court, but High Court had found that abatement would automatically operate---Appeal was sub judice before the Appellate Court when the plaintiff died and not before the Trial Court---Had the plaintiff died during the pendency of original suit, even then the suit would not have been dismissed on account of abatement in view of O.XXII, R.3(2), C.P.C., whereby the powers of dismissal of suit on account of abatement had been taken away---Order XXII, R.3(2), C.P.C. had laid down that if no application was moved for impleading legal representatives, it would make no difference---Judgment of High Court was set aside, in circumstances.


Citation Name : 2009 SCMR 956 SUPREME-COURT
Side Appellant : CIVIL AVIATION AUTHORITY through Director-General
Side Opponent : JAVED AHMAD
Art. 199---Removal from Service (Special Powers) Ordinance (XVII of 2000), Preamble---Service Tribunals Act (LXX of 1973), S.2-A---Constitutional jurisdiction of High Court---Scope---Held, after abatement of service appeal and Service Tribunal having taken another view by entertaining service appeal involving departmental penalties and there being no appropriate remedy under the law available to agitate the grievance by the employee, High Court rightly entertained and disposed of the constitutional petition.


Citation Name : 2009 PLC(CS) 679 SUPREME-COURT
Side Appellant : CIVIL AVIATION AUTHORITY through Director-General
Side Opponent : JAVED AHMAD
Art. 199---Removal from Service (Special Powers) Ordinance (XVII of 2000), Preamble---Service Tribunals Act (LXX of 1973), S.2-A---Constitutional jurisdiction of High Court---Scope---Held, after abatement of service appeal and Service Tribunal having taken another view by entertaining service appeal involving departmental penalties and there being no appropriate remedy under the law available to agitate the grievance by the employee, High Court rightly entertained and disposed of the constitutional petition.


Citation Name : 2009 PLC(CS) 79 SUPREME-COURT
Side Appellant : MUHAMMAD ASHFAQ
Side Opponent : MEMBER (REVENUE) BOARD OF REVENUE, PUNJAB; LAHORE
S. 4---Appeal to Service Tribunal---Appellant civil servant, died during pendency of his appeal, which had been filed against the order of his removal/dismissal from service---Service Tribunal was justified in law in passing the order of abatement of appeal in circumstances.


Citation Name : 2009 YLR 1230 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ABDUR REHMAN
Side Opponent : State
S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/109---Bail, grant of---Further inquiry---F.I.R. did not find mention that as to when and where the alleged conspiracy had been hatched by accused persons with main accused for the murder of deceased---Mere giving names of two witnesses in the F.I.R., was not a conclusive evidence against accused persons and possibility of their false implication due to the previous enmity by widening the net; could not be ruled out as the tendency had been developed in the society that maximum number of accused were involved in the occurrence by attributing role of general allegations to them---Veracity of the evidence collected by the prosecution into the allegation levelled against accused persons had yet to be determined by the Trial Court after recording the evidence---Prosecution evidence also did not disclose as to what precautionary measures were adopted after the alleged abetment, to save the life of the deceased after, receiving the information of abatement ---So far as the involvement of accused persons in another case was concerned, according to the Investigating Officer they were declared innocent in that case---Accused persons had succeeded in making out a case of further inquiry in view of such facts and circumstances---Mere commencement of trial was not a ground for outright rejection of bail when case had become one of further inquiry and benefit of doubt at any, stage of the case had to go to accused---Accused persons, in circumstances could not be kept behind the bars for an indefinite period for the reason that the police had failed to arrest them for a certain period---Accused were admitted to bail, in circumstances.


Citation Name : 2009 PLC 340 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MASOOD AKHTAR
Side Opponent : WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA)
Ss. 46 & 48---Grievance petition---abatement of appeal---Review---Earlier, petitioner filed appeal before Federal Service Tribunal, but Registrar of the Tribunal intimated him that in view of judgment (PLD 2006 SC 602) his appeal stood abated---Petitioner promptly served grievance notice and then filed grievance petition before the Labour Court---Respondents raised an objection in respect of competency of grievance petition on the ground that in view of Supreme Court judgment reported as 2008 SCMR 402, judicial order should have been passed by the Service Tribunal with regard to abatement of appeal, whereas no such judicial .order was passed; and only a notice by the Registrar of Service Tribunal was issued---Contention was that without having judicial order of the Service Tribunal, grievance petition before the Labour Court could not have been processed---Labour Court dismissed the grievance petition filed by the petitioner on that score-only, which was assailed in the High Court in appeal, and same was dismissed, which was sought to be reviewed---Validity---Labour Court instead of dismissing grievance petition, should have adjourned the case till passing of judicial order by the Service Tribunal, whereas Labour Court decided the matter in haste and did not wait judicial order of Service Tribunal in respect of abatement of the petitioner's appeal resulting into miseries faced by the petitioner---Order passed by the Labour Court was nullity in the eye of law---Judgment passed in appeal was reviewed and case was remanded to the Labour Court with the direction to decide same afresh on merits.

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