Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

W.P.No.27001/2011
JUDGMENT
Khalid Habib
VERSUS
Pakistan Telecommunication Corporation Limited, etc.
Date of hearing : 18.10.2012
Petitioner by: Hafiz Tariq Naseem, Advocate.
Respondent by: Mirza Aamir Baig, Advocate.
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Muhammad Khalid Mehmood Khan, J. Through this

constitutional petition, petitioner has assailed the order dated
24.3.2005 passed by Ministry of Information Technology (IT and
Telecom Division), Government of Pakistan whereby the Prime
Minister of Pakistan has dismissed the petitioner’s services from
17.3.2003; petitioner joined Telephone and Telegraph Department,
Government of Pakistan in June 1969 as Assistant Divisional
Engineer and finally promoted as Member of Pakistan
Telecommunication Limited Board on 1.12.2000. On 21.6.2001
petitioner was made OSD on the basis of certain allegations pertaining
to year 1995-96 when petitioner was posted as Chief Engineer
(M&O). The National Accountability Bureau (NAB) ultimately on
28.8.2002 arrested the petitioner and after 45-days confinement
petitioner entered into plea-bargain with the NAB and respondents
issued a show-cause-notice to petitioner on 23.6.2004 under the
Removal from Service (Special Powers) Ordinance 2000. Petitioner
submitted reply to the show-cause-notice but vide impugned
Notification dated 24.3.2005 petitioner’s services were dispensed with
and he was dismissed from service. As the order of dismissal was
passed under RSO 2000; petitioner filed representation/review; the
respondents have failed to decide the petitioner’s representation/
W.P.No.27001 of 2011
Khalid Habib v. PTCL. etc.
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review, the petitioner then filed appeal before the Federal Service
Tribunal Lahore; during the pendency of said appeal, petitioner’s
appeal was abated in terms of judgment of the Hon’ble Supreme
Court of Pakistan reported as Muhammad Mubeen us Salam and
others v. Federation of Pakistan through Secretary, Ministry of
Defence and others (PLD 2006 SC 602); however, on clarification
the petitioner’s appeal was restored and the petitioner again
approached the Federal Service Tribunal but during the pendency of
said appeal the Hon’ble Supreme Court of Pakistan announced the
judgment reported as Allama Iqbal Open University v. Tuffail Hashmi
(2010 SCMR 1484) and the employees of Pakistan Tele-
communication Corporation Limited (PTCL) were declared not the
civil servants. The petitioner’s appeal was ultimately disposed off on
the point of jurisdiction. Petitioner aggrieved of said judgment dated
12.5.2011 filed CPLA No.1128-L/2011 before the Hon’ble Supreme
Court of Pakistan which is pending disposal but the Hon’ble Supreme
Court of Pakistan in Masood Ahmad Bhatti and others v. Federation
of Pakistan (Civil Appeal Nos.239 to 241 of 2011) pronounced
judgment whereby the petitioner being the employee of Telephone
and Telegraph Department became entitled for bringing his grievance
through constitutional petition.

2. Notices were issued to respondents, they filed report and

parawise comments; the respondents taken the defence that the
petition is not maintainable as the petitioner’s appeal is pending
disposal before the Hon’ble Supreme Court of Pakistan. The petitioner
has not approached the Court with clean hands; the petitioner has no
cause of action. On merits, the respondents contended that the
petitioner has entered into plea-bargain with the National
Accountability Authority; he has admitted his guilt; petitioner thus is a
convicted employee and as such he is not entitled for any relief. The
maintainability of petition has primarily been challenged on the
ground of territorial jurisdiction of Lahore High Court.
3. Learned counsel for petitioner submits that the impugned order
is not sustainable in the eye of law as it has been passed with
W.P.No.27001 of 2011
Khalid Habib v. PTCL. etc.
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retrospective effect against the settled principle of law that no

executive order can be passed with retrospective effect. He further
submits that the impugned notification is violative of principle of
natural justice; the petitioner was not given opportunity of personal
hearing by the competent authority and as such petitioner has been
condemned unheard. The petitioner’s review petition under Section 9
of RSO 2000 was not decided nor any decision was conveyed to
petitioner which is against the provision of Clause 24-A of General
Clauses Act. Learned counsel further submits that this Court has the
jurisdiction to entertain and decide the petition as the order of
termination has been conveyed to petitioner at Lahore.
Hafiz Tariq Naseem Advocate learned counsel for petitioner
has relied on M/S Al-Iblagh Limited Lahore v. The Copyright Board,
Karachi and others (1985 SCMR 758), Sandalbar Enterprises (Pvt.)
Ltd. v. Central Board of Revenue and others (PLD 1997 SC 334),
Alamgir v. Divisional Forest Officer, Multan and others (1993 SCMR
603), Muhammad Amjad v. The Chief Engineer, WAPDA and another
(1998 PSC 337), LPG Association of Pakistan through Chairman v.
Federation of Pakistan through Secretary, Ministry of Petroleum and
Natural Resources, Islamabad and 8 others (2009 CLD 1498) and
Masood Ahmed Bhatti and others v. Federation of Pakistan through
Secretary, M/o Information Technology and Telecommunication and
others (2012 SCMR 152).

4. Learned counsel for respondents submits that the constitution

petition is not maintainable before Lahore High Court, Lahore as the
impugned order has been passed by the Prime Minister at Islamabad.
He further submits that the petitioner’s appeal is pending disposal
before the Hon’ble Supreme Court of Pakistan and as such this
petition is not maintainable. Learned counsel further submits that
petitioner is a convicted employee as he has entered into plea-bargain
with the NAB and as such his services were rightly terminated by the
respondents from the date when he entered into plea-bargain with the
NAB. Learned counsel has relied on Sandalbar Enterprises (Pvt.)
Ltd. v. Central Board of Revenue and others (PLD 1997 SC 334),
W.P.No.27001 of 2011
Khalid Habib v. PTCL. etc.
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Danish Kaneria v. Pakistan and others (2012 CLC 389), Mrs. Rohi
Chaudhry and 2 others v. Federation of Pakistan through Secretary
Finance, Ministry of Finance, Islamabad and 3 others (2010 PTD
1233), Messrs Ibrahim Fibres Ltd. through Secretary/Director
Finance v. Federation of Pakistan through Secretary/Revenue division
and 3 others (PLD 2009 Karachi 154), Mayzone Pak. International
v. Additional Secretary, Government of Pakistan (2002 CLC 388) and
Mohtarma Benazir Bhutto and another v. Federation of Pakistan and
2 others (PLD 1999 Karachi 39).

5. Heard, record perused. With the consent of parties, the petition

is being decided as pacca case.
6. The respondents have not denied the fact of petitioner being the
employee of Telephone and Telegraph Department. The Hon’ble
Supreme Court of Pakistan in Masood Ahmad Bhatti’s case (supra)
has decided the issue regarding application of statutory rules on the
employee of Telephone and Telegraph Department and as such as per
respondents admission the judgment of Masood Ahmad Bhatti’s case
(supra) is applicable on the petitioner’s case and the petition is
maintainable on this count.

7. The main question which requires consideration is the

maintainability of petition before this Court on the ground of
territorial jurisdiction of Lahore High Court. The argument of learned
counsel for respondents is that the impugned order has been passed by
the Prime Minister of Pakistan at Islamabad and as such Islamabad
High Court has the exclusive jurisdiction to hear the petitioner’s
constitutional petition, if any. The learned counsel has relied on a
judgments referred above and submits that the impugned action has
taken place within the territorial limits of Islamabad High Court and
as such Islamabad High Court alone has the jurisdiction to entertain
the petitioner’s writ petition. The petitioner is attacking the order of
termination which has been passed at Islamabad and the dominant
object and primary grievance of petitioner has arisen at Islamabad.
W.P.No.27001 of 2011
Khalid Habib v. PTCL. etc.
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8. The argument of learned counsel for petitioner is that the Prime

Minister is acting in the affairs of Federation and as such under
Article 199 of the Constitution of the Islamic Republic of Pakistan,
1973 Lahore High Court Lahore enjoys the concurrent jurisdiction to
entertain and decide the petition. The impugned order affects the
petitioner at Lahore and also served at Lahore and as such cause of
action has arisen in favour of petitioner at Lahore within the territorial
jurisdiction of Lahore High Court Lahore. Learned counsel for
petitioner has relied on a judgment of M/S Al-Iblagh Limited Lahore
v. The Copyright Board, Karachi and others (1985 SCMR 758) and
argued that as per the ratio of dictum laid down by the Hon’ble
Supreme Court of Pakistan, the constitution petition is maintainable
before the Lahore High Court Lahore.

9. The main thrust of argument of learned counsel for respondents

is on Sandalbar Enterprises’ case (supra) and contended that the
Hon’ble Supreme Court of Pakistan has held that the court while
entertaining the petition has to see what is dominant object of filing of
writ petition and the dominant object in the present case is the setting
aside of order dated 24.3.2005 passed by the Prime Minister of
Pakistan at Islamabad.

10. For appreciating the argument of learned counsel for parties, the
relevant portion of Article 199 of the Constitution of the Islamic
Republic of Pakistan, 1973 and Section 4 of Islamabad High Court
Act, 2010 is reproduced hereunder:-
“Article 199: Jurisdiction of High Court.

199. (1) Subject to the Constitution, a High Court may, if it is satisfied

that no other adequate remedy is provided by law,---

(a) on the application of any aggrieved party, make an order---

(i) directing a person performing, within the territorial

jurisdiction of the Court, functions in connection
with the affairs of the Federation, a Province or a
local authority, to refrain from doing anything he is
not permitted by law to do, or to do anything he is
required by law to do; or

(ii) declaring that any act done or proceeding taken

within the territorial jurisdiction of the Court by a
W.P.No.27001 of 2011
Khalid Habib v. PTCL. etc.
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person performing functions in connection with the

affairs of the Federation, a Province or a local
authority has been done or taken without lawful
authority and is of no legal effect; or………….”

Section 4 of Islamabad High Court Act, 2010:

“4. Jurisdiction.---Islamabad High Court shall have, in respect of the
Islamabad Capital Territory, original, appellate, revisional and other
jurisdiction, as under the Constitution or the laws in force immediately
before the commencement of this Act, is exercisable in respect of the said
territory by the Lahore High Court:
Provided that Islamabad High Court shall have original
jurisdiction in suits and proceedings having pecuniary value of ten million
rupees or more.”

11. Article 199 of the Constitution referred to above provides that

the High Court can issue writs of prohibition, mandamus and
certiorari against a person who is: (i) performing functions; or has (ii)
done an act or; (iii) has taken proceedings (iv) within the territorial
jurisdiction of this Court; in connection with the affairs of the
(v) Federation; (vi) Province or; (vii) local authority.

12. The question arose the person against whom an order is sought
under Article 199 of the Constitution is a person whether performing
function in the affairs of Federation has done any act or initiated any
proceeding against the aggrieved person within the territorial
jurisdiction of the High Court. The words used in Article 199 (a) (i) of
the Constitution are “functions in connection with the affairs of the
“Federation” or a “Province” or a “local authority”. In the present
case, the issue is whether the Prime Minister is a person functioning in
connection with the affairs of Federation or not. The question of
performing function in connection with the affairs of Federation,
Province or local authority was examined by the Hon’ble Supreme
Court of Pakistan in Salahuddin and 3 others v. Frontier Sugar Mills
& Distillery Ltd. Tokht Bhai and 10 others (PLD 1975 SC 244), the
Hon’ble Supreme Court of Pakistan has held as under:
“The primary test must always be whether the functions entrusted to the
organization or person concerned are indeed functions of the State
involving same exercise of sovereign or public power; whether the control
of the organization vests in a substantial manner in the hands of the
Government; and whether the bulk of the funds is provided by the State. If
these conditions are fulfilled, then the person, including a body politic or a
body corporate, may indeed be regarded as a person performing functions
W.P.No.27001 of 2011
Khalid Habib v. PTCL. etc.
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in connection with the affairs of the Federation or a Province; otherwise

not.”

13. The first judgment relied upon by both the parties is case of
Sandalbar Enterprises (supra), the Hon’ble Supreme Court of
Pakistan in this case has dilated upon the rule of dominant object and
held as under;
"We may observe that it has become a common practice to file a writ
petition either at Peshawar, or Lahore, or Rawalpindi or Multan etc., to
challenge the order of assessment passed at Karachi by adding a ground
for impugning the Notification under which a particular levy is imposed.
This practice is to be depreciated. The Court is to see, what is the
dominate object of filing of the writ petition. In the present case, the
dominant object was not to pay the regulatory duty assessed by a Customs
official at Karachi."

14. In the above said judgment their lordships although have

distinguished M/s Al-Iblagh Ltd's case (supra) on its own facts and
ruled that as per facts of the case dominant object was not to pay the
regulatory duty assessed by a Custom Official at Karachi but have not
revisited the major reasoning of the judgment which reads as below:--
“The rules laid down in the said case would, we think, be applicable also
in the circumstances of this case. The Central Government has set up a
Copyright Board for the whole of Pakistan and it performs functions in
relation to the affairs of the Federation in all the Provinces. Hence, any
order passed by it or proceedings taken by it in relation to any person in
any of the four Provinces of Pakistan would give the High Court of the
Province in whose territory the order would affect such a person,
jurisdiction to hear the case."

15. The Hon’ble Supreme Court of Pakistan in Mst.Shahida

Maqsood v. President of Pakistan and another (2005 SCMR 1746)
ruled as under;
"Learned counsel for the petitioner vehemently urged that case of the
petitioner would fall under Article 199(1)(a) of the Constitution and not
under sub-clause (ii) of the above said Article. Essentially, the learned
counsel contended that the question of territorial jurisdiction raised by the
High Court was completely irrelevant as the President of Pakistan
performs his functions in connection with the affairs of the Federation
throughout the country and every High Court is competent to issue a
direction as contemplated by Article 199 of the Constitution."

16. Thus considering the above, the Hon’ble Supreme Court of

Pakistan in this case concluded "we do not find any flaw in the judgment
of the High Court, which is 'not open to any exception".
W.P.No.27001 of 2011
Khalid Habib v. PTCL. etc.
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17. In Dr.Zahoor Ahmed Shah v. Pakistan Medical and Dental

Council through Secretary and another (2005 MLD 718), it has been
held that “the Court was to see what was the dominant object of filing of
the constitutional petition” and in the instant case, dominant object is
registration of the petitioner's qualification with the Medical and
Dental Council; the office of the Council is located at Islamabad,
therefore, in the circumstances, the jurisdiction was held not
possessed by the Quetta High Court where it was filed. More or less,
same is the ratio of the judgment reported as Dr.Qaiser Rashid v.
Federal Secretary, Ministry of Foreign Affairs, Government of
Pakistan, Islamabad (PLD 2006 Lahore 789).

18. In Amin Textile Mills (Pvt.) Ltd. v. Islamic Republic of Pakistan

and 3 others (1998 SCMR 2389), it was held:--
"The matter essentially relates to the demand of the Bank in respect of a
loan and other facilities taken by the petitioner at Karachi from the Bank
and, as observed, the dues of the Bank are payable at Karachi and even,
according to the petitioner, the agreement dated 6-6-1994 with the Bank
was executed at Karachi and payments are being made in installments to
the Bank. In filing the writ petition the dominant object was to avoid the
demand of the Bank and, in the facts and circumstances Lahore High
Court had no territorial jurisdiction in the matter."

19. M/s Al-Iblagh Ltd.’s case (supra) the Hon’ble Supreme Court
of Pakistan opined as under (at page 758 and 762):-
"While dealing with a somewhat similar situation, this Court was called
upon to examine the terms of Article 98 of the 1962 Constitution (which
are similar in Commissioner, Pakistan and other's case PLD 1968 SC
387. In this case the East Pakistan High Court had held that the said High
Court could not exercise jurisdiction with regard to the decisions of the
Election Commission of Pakistan as the said body was not located in nor
performed its function in the Province of the East Pakistan and, therefore,
East Pakistan High Court was precluded on account of territorial
limitations, from exercising jurisdiction in connection with orders passed
by it. While rejecting this contention it was observed by this Court that:--

The plain meaning of the words.--"a person performing in the

Province functions in connection with the affairs of the Centre"
excludes territorial limitations, such as, that the person or
authority to whom the High Court is empowered to issue writs
must be amenable to its jurisdiction either by residence or location
within those territories." (underling is ours)

It explained that:
'The Central Ministries as well as many Departments of the Central
Government as located in Islamabad or at Rawalpindi. Nevertheless they
perform functions in both the Provinces in connection with the affairs of
W.P.No.27001 of 2011
Khalid Habib v. PTCL. etc.
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the Centre, such as, Defence of Pakistan, External Affairs, Insurance,

Copyright, Patent, Design...." (underlining is ours) and found that the
orders made or proceedings taken by the said Departments in connection
with the affairs of the Central Government but having effect on parties in
East Pakistan would be subject to the writ jurisdiction, of the High Court
of that Province.

The rules laid down in the said case would, we think, be applicable
also in the circumstances of this case. The Central Government has set up
a Copyright Board for the whole of Pakistan and it performs functions in
relation to the affairs of the Federation in all the Provinces. Hence, any
order passed by it or proceedings taken by it in relation to any person in
any of the four Provinces of Pakistan would give the High Court of the
Province, in whose territory the order would affect such a person,
jurisdiction to hear the case.

The learned Deputy Attorney General Mr. Munir A. Sheikh who

appeared on behalf of the respondent-Copyright Board, supported this
interpretation of the constitutional provision in question and submitted
that the writ petition filed by the appellant before the Lahore High Court
should not have been dismissed for lack of jurisdiction by the said High
Court, as it also had jurisdiction to entertain it, concurrently with the
Sindh High Court.

We agree and are of the opinion that both the Lahore High Court
as well as the Sindh High Court had concurrent jurisdiction in the matter
and both the Courts could have entertained a writ petition against the
impugned orders in the circumstances of this case. We, therefore, hold
that the Lahore High Court has illegally refused to exercise jurisdiction in
this case. The case will, therefore, go back to the Lahore High Court for
decision of the writ petition filed by the appellant before it for decision on
merits, in accordance with law."

20. In Sh. Abdul Sattar Lasi v. Federation of Pakistan through

Secretary, Ministry of Law, Justice and Parliamentary Affairs,
Islamabad and 6 others (2006 CLD 18), the petitioner challenged the
sale of mortgage properties under Section 15 of the Financial
Institutions (Recovery of Finances) Ordinance 2001 the Division
Bench of Quetta High Court has held:--
"8. So far as the territorial jurisdiction of this Court in the matter is
concerned, it may be observed that under Article 199 of the Constitution
of Islamic 'Republic of Pakistan, 1973 writ could be issued against any
person who is performing in the Province any function irrespective of its
nature relating to the affairs of the Federation, Province or a local
authority within the territorial jurisdiction of a High Court. In the instant
petition the petitioner has challenged the vires of section 15 of the
Ordinance, 2001 i.e. the law equally applicable to the Province of
Baluchistan, which in our view is the main relief claimed in the petition
whereas; the other reliefs for declaring public auction notices as illegal,
void or setting aside auction proceedings carried out in the exercise of
powers conferred under section 15(4) are ancillary to the main relief, as
such this Court has the jurisdiction in the matter which cannot be ousted
only on the ground that the properties auctioned and purchased happen to
be situated outside the jurisdiction of this Court or that the respondents
W.P.No.27001 of 2011
Khalid Habib v. PTCL. etc.
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were residing outside the jurisdiction of this Court because the

jurisdiction conferred on this, Court under Article 199 of the Constitution
is not contingent upon residence of an aggrieved person but it requires
that a person/ authority/ functionary of State against whom order was
sought to be issued should be operating or be amenable to jurisdiction of
High Court, therefore, the provisions of section 20, C.P.C. could not be
pressed into service or to be read in Article 199; as vires of the Federal
Law has been challenged which is applicable to whole of the Pakistan. In
this regard, we are fortified by the judgment reported in 1996 CLC p.539.
The relevant observations are reproduced herein below:--

The ratio deducible, from the foregoing discussion is, that the jurisdiction
of this Court under Article 199 of the Constitution of Pakistan (1973) is
not contingent upon the residence of aggrieved person. Equally it is not
relatable to places where the writ issued by it will have effect. What is
required by this Article is, that the person/ authority/ functionary of the
State against whom the writ is sought to be issued shall be operating or be
amenable to the jurisdiction of this Court. In other words it means that the
writ issued by the Court cannot run beyond the territory subject to its
jurisdiction and secondly that the person an authority to whom the Court
was to issue writ was amendable to its jurisdiction either by residence or
by location within its territory. The elements embodied in section 20 of
C.P.C. cannot be introduced in Article 199 of the Constitution. Applying
this principle to facts and circumstances of the cases in hand, it is quite
clear to us that the impugned order was passed by Chairman Federal
Land Commission at Rawalpindi; that the Federal Land Commission
was/is a Federal Institution and operates within the territories of whole of
Pakistan; that it functioned at relevant time at Rawalpindi and it was so
clearly amenable to jurisdiction of the High Court of Lahore. We, on this
view, have no reason to depart from the view taken by the Division Bench
of this Court vide order dated 29-3-1976. In result, the preliminary
objection raised by the learned Deputy Attorney General is found to be
misconceived and is accordingly repelled."

21. In Superintendent of Police Head Quarter Lahore and 2

others v. Muhammad Latif (PLD 1988 SC 387), the Hon’ble Supreme
Court of Pakistan held as under;
“that the Election Commission is a person or authority which exercises
jurisdiction in the Province of East Pakistan in connection with the affairs
of the Centre namely elections to the office of the President, National
Assembly and the Provincial Assemblies and for holding a Referendum as
provided for in the Constitution, as such; Commission is subject to the
jurisdiction of the High Court notwithstanding that its main office and
Secretariat are located in the Province of West Pakistan because the plain
meaning of the words "a person performing in the Province functions in
connection with the affairs of the Centre" exclude territorial limitation,
such as that the person or authority to whom the High Court is
empowered to issue writ must be amenable to its jurisdiction either by
residence or location within those territories.”

22. In Muhammad Idrees v. Government of Pakistan through

Secretary, Establishment Division, Islamabad and 5 others (1998
PLC (C.S.) 239), the petitioner of the case was an employee of the
W.P.No.27001 of 2011
Khalid Habib v. PTCL. etc.
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Government of Pakistan, in relation to his service an order passed by

the Government at Islamabad, which was conveyed to him in Quetta,
where he was posted, he filed a constitutional petition with a prayer:--
"It is prayed that this Honourable Court may graciously be pleased to
issue appropriate direction in nature of writ of mandamus directing
respondents to reconsider and finally decide petitioner's 'representation
for antedation of his promotion.

A preliminary objection was raised by the learned Deputy Attorney

General about the lack of territorial jurisdiction and the Division Bench of
the Court, in the judgment authored by the learned Judge, (now the
Honourable Chief Justice of Pakistan) held "As far as Federation is
concerned, it represents to all the provinces, therefore, if an aggrieved
person residing in any of the provinces, where such order action has been
communicated to him, he can invoke the jurisdiction of said respective
High Court." Furthermore "Thus, it is concluded that objection raised in
this behalf by the learned Deputy Attorney-General has no substance
which is accordingly overruled concluding thereby that this Court has
territorial jurisdiction to entertain the Constitutional petition against the
functionaries of the Federal Government because cause of action accrued
to petitioner against the adverse orders determined to his service interest
passed by a competent Authority during his posting at Quetta."

23. In Trading Corporation of Pakistan (Private) Limited v.

Pakistan Agro Forestry Corporation (Private) Limited and another
(2000 SCMR 1703), it is held:--
"The learned Single Judge of the High Court in Chambers has elaborately
dealt with this aspect of the matter in the judgment in writ petition and has
held that the respondent No.1 having cause of action against Federal
Government could bring the Constitutional petition either at Karachi or at
Rawalpindi Bench of Lahore High Court. The learned Single Judge
rejected the objection of maintainability of the writ petition on the ground
that affairs of Trading Corporation of Pakistan are being controlled by
the Ministry of Commerce at Islamabad. Before the High Court the relief
was not only claimed against the petitioner but was also claimed against
the respondent No.2, the Ministry of Commerce, Government of Pakistan
at Islamabad as such.”

24. The issue came up for discussion in LPG Association of

Pakistan through Chairman v. Federation of Pakistan through
Secretary, Ministry of Petroleum and Natural Resources, Islamabad
and 8 others (2009 CLD 1498), the learned Single Judge of the
Lahore High Court after considering about all the judgments on the
subject has ruled as under;
(A) The Federal Government or any body politic or a corporation or a
statutory authority having exclusive residence or location at Islamabad
with no office at any other place in, any of the Provinces, shall still be
deemed to function all over the country.
W.P.No.27001 of 2011
Khalid Habib v. PTCL. etc.
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(B) If such Government, body or authority passes any order or initiates an

action at Islamabad, but it affects the "aggrieved party" at the place other
than the Federal capital, such party shall have a cause of action to agitate
about his grievance within the territorial jurisdiction of the High Court in
which said order/action has affected him.

(C) This shall be moreso in the cases where a party is aggrieved or a

legislative instrument (including any rules, etc.) on the ground of it being
ultra vires, because the cause to sue against that law shall accrue to a
person at the place where his rights have been affected. For example, if a
law is challenged on the ground that it is confiscatory in nature, violative
of the fundamental rights to property; profession, association etc. and any
curb has been placed upon such a right by a law enforced at Islamabad,
besides there, it can also be challenged within the jurisdiction of the High
Court, where the right is likely to be affected.

In this context, illustrations can be given, that if some duty/tax has been
imposed upon the withdrawal of the amounts by the account holders from
their bank account and the aggrieved party is maintaining the account at
Lahore, though the Act/law has been passed at Islamabad, yet his right'
being affected where he maintains the account (Lahore), he also can
competently initiate a writ petition in Lahore besides Islamabad; this shall
also be true for the violation of any right to profession, if being conducted
by a person at Lahore, obviously in the situation, he shall have a right to
seek the enforcement of his right in any of the two 'High Courts.

(D) On account of the above, both the Islamabad and Lahore High Courts
shall have the concurrent jurisdiction in certain matters and it shall not be
legally sound or valid to hold that as the Federal Government etc. resides
in Islamabad, and operates from there; the assailed order/action has also
emanated from Islamabad, therefore, it is only the Capital High Court
which shall possess the jurisdiction. The dominant purpose in such a
situation shall be irrelevant, rather on account of the rule of choice, the
plaintiff/petitioner shall have the right to choose the forum of his
convenience.”

25. Now the question is whether Lahore High Court Lahore has the
jurisdiction to issue a writ against an order passed by a person
performing in the affairs of Federation. The language of Article 199
(a) (i) of the Constitution is clear. The Prime Minister of Pakistan is a
representative of all federating units of Pakistan and is the chief
executive of the Government and as such he is a person undoubtedly
who is performing functions in the affairs of Federation. There is now
question in this case whether the person who passed the order is
functioning in Islamabad only and is not maintaining any his offices
in other Provinces. The Prime Minister is deemed to be functioning in
the entire Pakistan and as such there is no doubt in my mind that the
impugned order can be assailed successfully before the Lahore High
Court, Lahore.
W.P.No.27001 of 2011
Khalid Habib v. PTCL. etc.
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26. The other argument of learned counsel for respondent is that

under Clause 4 of the Islamabad High Court Act 2010, Islamabad
High Court has the absolute jurisdiction in respect of Islamabad
capital territory. The impugned order is passed at Islamabad and the
Islamabad High Court is enjoying the jurisdiction; hence the
jurisdiction of Lahore High Court is ousted. The perusal of Section 4
of Islamabad High Court Act, 2010 will show that Islamabad High
Court has the jurisdiction in respect to the Islamabad capital territory
original, appellate, revisional and other jurisdiction as under the
Constitution or the laws in force immediately before the
commencement of the act. Islamabad High Court is enjoying the
jurisdiction in respect of said territory which was earlier enjoyed by
the Lahore High Court. The words used in Section 4 are “as under the
Constitution is exercisable in respect of the said territory by the
Lahore High Court, Lahore” which shows that before promulgation of
Islamabad High Court Act 2010, the Lahore High Court was enjoying
the jurisdiction on the Islamabad capital territory. The words used in
this Section as “is exercisable in respect of the said territory of Lahore
High Court” are clear in nature. The word has been used as “is”
meaning thereby in spite of promulgation of Islamabad High Court
Act 2010, the Lahore High Court has the jurisdiction on Islamabad
capital territory; meaning thereby the Lahore High Court Lahore and
Islamabad High Court are enjoying concurrent jurisdiction on
Islamabad capital territory.

27. Now the question is whether the impugned order was passed
after providing opportunity of hearing to petitioner or not? The
perusal of impugned order shows that petitioner’s dismissal was
affected from 17.3.2003, the petitioner has filed representation against
the said order which is pending disposal before the competent
authority under RSO 2000. The question whether the plea-bargain of
petitioner with NAB can be treated as conviction or not, in the first
instance has to be examined by the appellate authority under RSO
2000. Admittedly the petitioner’s representation has not been decided
so far and as such in my humble opinion, the argument of learned
 W.P.No.27001 of 2011
Khalid Habib v. PTCL. etc.
-:14:-

counsel for petitioner to decide the issue whether plea-bargain

amounts to conviction by this Court is pre-mature. The petitioner in
the first instance has to agitate this ground before the appellate
authority.

28. As far as the question of maintainability of petitioner during the

pendency of appeal before the Hon’ble Supreme Court of Pakistan is
concerned, the appeal is on different ground as the petitioner’s appeal
was dismissed by the Federal Service Tribunal on the ground of
jurisdiction. After the judgment of Masood Ahmed Bhatti (supra) and
as per admission of respondent that the petitioner joined Telephone
and Telegraph Department and admittedly at that time the employees
of Telephone and Telegraph Department were governed under the
statutory rules. This petition is maintainable on the fresh ground that
the petitioner’s services is governed under the statutory rules of
Telephone and Telegraph Department.

29. In view of above, this petition is allowed and the respondent

No.2 is directed to decide the petitioner’s representation against his
termination order within one month on receipt of certified copy of this
order. Needless to mention that the respondent appellate authority
will provide opportunity of hearing to petitioner in accordance with
law.

(Muhammad Khalid Mehmood Khan)

Judge
*KMSubhani*

Announced in open Court on (18.12.2012).

(Muhammad Khalid Mehmood Khan)

Judge
*KMSubhani*
Approved for reporting.