IN THE HIGH COURT OF SINDH AT KARACHI
C.P. No.D-4441 of 2013
Present:
Mr. Justice Irfan Saadat Khan
Mr. Justice Adnan-ul-Karim Memon
Date of hearing: 06.02.2017 .
Petitioner: Nehal Ahmed Siddiqui through Mr. Abrar Bukhari, Advocate. .
Res. Nos.1 & 2: Province of Sindh and Secretary to the Local Government Housing Town Planning, respectively, through Mr. Abdul Jalil Zubedi, Assistant Advocate General Sindh (AAG). .
Res. Nos.3 & 4: Director General /Chief Executive, Sindh Building Control Authority and Syed Qarar Ali Shah, Deputy Director (Admn-P-II), respectively, through Mr. Muhammad Shahzad Qureshi, Advocate. .
IRFAN SAADAT KHAN, J. The instant petition has been filed with the following prayers:
a) To set aside the impugned dismissal order dated 30.07.2013 issued by the Respondent No.4, the Deputy Director (Admn P-II), KBCA, being inferior officer to the appointing authority /the competent Authority and direct to the respondent No.3 to reinstate in service to the petitioner from the date of his dismissal from service with all consequential service benefits including his pay and allowances as he was drawing before his dismissal from service.
b) The intervening period from the date of dismissal from service dated 30.07.2013 to the date of his reinstatement in service as LDC may graciously be ordered to be treated as spent on duty.
c) To grant any other relief this Hon’ble Court may deem fit and proper in the circumstances of the case.
d) To grant cost of the petition.
2. Briefly stated, the facts of the case are that the petitioner was serving as Lower Division Clerk (LDC) in Sindh Building Control Authority (SBCA), who was removed from service under Removal From Service (Special Powers) Sindh Ordinance, 2000 (hereinafter referred to as “RSO-2000”) vide order bearing No.SBCA/DD(Admn-P-II)/2013/705, dated 30.07.13, which is being impugned in the instant petition.
3. The instant petition was tagged alongwith C.P. No.D-357 of 2014, however the learned counsel representing the petitioner in C.P No.D-357 of 2014, Mr. Abdul Fateh Malik has stated that since the facts of C.P No.D-357 of 2014 are totally different from the facts obtaining in the instant petition, hence these two petitions may be heard and decided separately. The learned counsel for the petitioner, Mr. Abrar Bukhari and the learned counsel representing the respondents have also stated that since the facts of the instant petitions are different, these may be heard and decided separately. Thereafter the instant petition was heard separately at length and was reserved for judgment.
4. Mr. Abrar Bukhari Advocate has appeared on behalf of the petitioner and stated that the impugned order dated 30.07.2013 is not in accordance with law as the same has been passed by an incompetent authority and hence the said order is liable to be whittled down being of no legal effect. The learned counsel in support of his above argument has invited our attention to Section 2(a) of RSO-2000 and stated that since the appointment of the petitioner was made by the Controller of Building (now Director General) on 16.03.1983 hence it is only the Director General who has the authority under the law to pass the impugned order and since the impugned order has not been passed by the Director General hence the it is not in accordance with law and the same is liable to be vacated. He also invited our attention to Section 5 of the RSO-2000 and stated that the parameters as enshrined in the said section have not been fulfilled for terminating the service of the petitioner; hence, on this aspect also the impugned order is not tenable under the law. The learned counsel then read out Section 5 of the RSO-2000 and thereafter stated that before passing the impugned order no opportunity of hearing has been provided to the petitioner. He also stated that neither any enquiry has been conducted nor a proper charge sheet has been issued against the petitioner, hence, in absence of these legal formalities, which according to him are mandatory in nature, the impugned order may be set aside. He further stated that against the impugned order an appeal was preferred by the petitioner but no action on the said appeal filed by the petitioner was taken, hence, on this score also this petition is liable to be allowed with cost. In support of this contention, the learned counsel has placed reliance on the following decisions:
1. Taj Muhammad, Ex-Superintending Engineer Vs. Chairman, Water and Power Development Authority (1990 SCMR 926)
2. Abdul Qayyum Vs. D.G., Project Management Organization, JS HQ, Rawalpindi (2003 PLC(CS) 353)
5. The learned counsel further stated that it is a well-settled proposition of law that no punitive action could be taken against a person without confronting him and since in the instant matter an extreme punitive action i.e. termination of the petitioner from service has been made without confronting, hence, the impugned order is not sustainable in the eyes of law and is liable to be vacated. In support of this contention, the learned counsel has placed reliance on the following decisions:
1. Chief Election Commissioner Of Pakistan Versus Miss Nasreen Pervez (2009 SCMR 329)
2. Naseeb Khan Vs. Divisional Superintendent, Pakistan Railways, Lahore and another (2008 SCMR 1369)
6. The learned counsel further stated that the rules and regulations provided under RSO-2000 and other provisions of law are mandatory in nature and if these laws are not followed then the action taken in this regard are to be considered as non-est in the eyes of law and are liable to be struck down. He further stated that the above anomalies pointed out by him are procedural irregularities which, according to him, were not fulfilled; hence, the impugned order may be set aside. In support of his above contention, the learned counsel has placed reliance on the following decisions:
1. Executive Engineer, Qadirabad Barrage Division Qadirabad and others. Vs. Ejaz Ahmad (2007 SCMR 1860)
2. Osman Ghani Vs. Federal Service Tribunal and another (1986 SCMR 1875)
The learned counsel in the end submitted that since the petitioner has been terminated without fulfilling the legal and codal formalities, hence, he is liable to be reinstated with all back benefits, seniority and other ancillary benefits of which he was entitled to.
7. Mr. Muhammad Shahzad Qureshi Advocate has appeared on behalf of the respondents No.3 & 4 and stated that all the procedural formalities have been followed. He invited our attention to various annexures attached with the statement filed by the said respondents and stated that after fulfillment of all the legal and codal formalities the petitioner was terminated. He further stated that the petitioner was appointed by Deputy Controller (Admn. & Personal) and thereafter was removed by the Deputy Director (Admn-P-II) who is the same authority, hence, the assertion of the learned counsel for the petitioner that an incompetent authority has removed him is incorrect. He also invited our attention to various correspondence made between the petitioner and the department wherein, according to him, the petitioner had accepted his guilt that after taking challan from one person he gave Town Map to the representative of Mr. Aman Aslam which, according to the learned counsel, is a flagrant violation of the rules and regulations, as the petitioner had no authority to accept the challan and to hand over Town Map to the said person. The learned counsel further stated that the final show cause notice was issued to the petitioner by the Director General and at every stage ample opportunity of hearing was provided to the petitioner. The learned counsel in support of his contention invited our attention to the annexures attached with the instant petition and filed through the statement. He in the end submitted that this petition is misconceived and is liable to be dismissed with cost.
8. Mr. Abdul Jalil Zubedi, AAG has appeared on behalf of the respondents No.1 & 2 and has adopted the arguments of the learned counsel for the respondents No.3 & 4 and stated that all procedural and legal formalities were duly fulfilled before termination of the petitioner. He also invited our attention to various documents annexed with the petition and thereafter submitted that in view of these documents, which have been annexed by the petitioner himself, it could easily be inferred that all the legal formalities before termination were fulfilled. He further stated that placing the reliance on sections 2(a) and 5 of RSO-2000 by the learned counsel for the petitioner is also misplaced. He stated that if the provisions of section 5(4) of the RSO-2000 are examined it would be seen that under certain circumstances holding of enquiry is not necessary. He, therefore, in the end submitted that this petition is not maintainable and may, accordingly, be dismissed.
9. Mr. Abrar Bukhari, in his rebuttal, stated that no document has been placed by the learned counsel for the respondents in support of their submissions and have only relied upon the documents placed by the petitioner on record and whatever documents have subsequently been placed on record by the respondents are afterthought on their part. He in the end stated that since the legal and codal formalities have not been fulfilled, hence, impugned termination order may be set aside. In support of his above contention, the learned counsel has placed reliance on the decision given in the case of Jan Muhammad Vs. The General Manager, Karachi Telecommunication Region, Karachi and another (1993 SCMR 1440).
10. We have heard all the learned counsel at considerable length and have also perused the record and the decisions relied upon by the learned counsel for the petitioner.
11. Before proceeding any further, it would be advantageous if provisions of Sections 2(a) and 5 of THE RSO-2000 are reproduced below on which much emphasis has been laid by the learned counsel for the petitioner.
2. Definitions. – In this Ordinance, unless there is anything repugnant in the subject or context-
(a) “competent authority” means, the *[Chief Minister] and where, in relation to any person or class of persons, the *[Chief Minster] authorizes any officer or authority, not being inferior in rank to the appointing authority prescribed for the post held by the person against whom action is proposed to be taken, to exercise the powers of competent authority under this Ordinance, that officer or authority, and, in relation to an employee of a Court or Tribunal functioning under the Provincial Government, the appointing authority or the Chairman or presiding Officer of the Court or the Tribunal;
*[5. Power to appoint an Inquiry Officer or Inquiry Committee.- (1) Subject to the provisions of sub-section (2), the competent authority shall, before passing an order under section 3, appoint an Inquiry officer or Inquiry Committee to scrutinize the conduct of person in Government service or a person in corporation service who is alleged to have committed any of the acts or omissions specified in section 3. The Inquiry Officer or, as the case may be, the Inquiry Committee shall –
(a) Communicate to the accused the charges and statement of allegations specified in the order of inquiry passed by the competent authority;
(b) require the accused within seven days from the day the charge is communicated to him to put in a written defence;
(c) enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessary and the accused shall be entitled to cross-examine the witnesses against him; and
(d) hear the case from day to day and no adjournment shall be given except for special reasons to be recorded in writing and intimated to the competent authority.
(2) Where the Inquiry Officer or, as the case may be, the Inquiry Committee is satisfied that the accused is hampering, or attempting to hamper, the progress of the Inquiry he or it shall record a finding to that effect and proceed to complete the inquiry in such manner as he, or it, deems proper in the interest of justice.
(3) The Inquiry Officer or, as the case may be, the Inquiry Committee shall submit his, or its, findings and recommendations to the competent authority within twenty-five days of the initiation of inquiry.
(4) The competent authority may dispense with the inquiry under sub-section (1) if it is in possession of sufficient documentary evidence against the accused, or for reasons to be recorded in writing, it is satisfied that there is no need of holding an inquiry.
(5) Where a person who has entered into plea bargaining under any law for the time being in force, and has retuned the assets or gains acquired through corruption or corrupt practices voluntarily, the inquiry shall not be ordered.
Provided that show cause notice shall be issued on the basis of such plea bargaining to such person informing of the action proposed to be taken against him on the grounds of such action requiring him to submit reply within fifteen days of the receipt of the notice. On receipt of the reply, the competent authority may pass such orders as it may deem fit]
12. It is seen from the record that the owner of M/s Paki Tex Boards (Pvt.) Limited, situated on plots bearing No.24, 25 & 26, Sector 29, Korangi Industrial Area, Landhi Town, Karachi and the owner of M/s Fancy Veneer & Ply Wood Industries, situated on plots bearing Nos.68 & 69, Sector 28, Korangi Industrial Area, Landhi Town submitted building plan of the structure existing on the aforesaid plots for issuance of approval for the completion /regularization plan through their Director Mr. Aman Aslam. The matter was then processed by the SBCA Authorities and it was found that the above owner is liable to pay an amount of Rs.64,00,000/- being the regularization fee for the said two plots. The owner was then handed over a composite fee challan for depositing the same in the Allied Bank, Civic Centre Branch and further required to produce a copy of the same for obtaining requisite regularization plan. That the petitioner then acted as a middle man and after obtaining copy of paid challan, which was fake and bogus presented the same to the concerned department, obtained the approval and handed over the same to the representative of Mr. Aman Aslam whereas the said amount was not deposited in the relevant account. It is seen from the record that the petitioner has no business to act as middle man between the owner Mr. Aman Aslam and the department to obtain the regularization plan from the department after presenting the challan since his duty was in the Accounts Section as that of Accounts Clerk in Finance Department SBCA.
13. Further upon verification of the challan it revealed that the said amount of Rs.64,00,000/- was never paid and the challan turned out to be fake which was also endorsed by the Manager of the concerned branch of the Allied Bank. It is also seen that upon coming to know about the above fraud the matter was referred by the Director/Incharge Legal Affairs SBCA to the Director General who appointed Mr. Muhammad Ali Qaimkhani as an Inquiry Officer to conduct inquiry and to submit his report within 15 days. The said Inquiry Officer, as per the relevant provisions, issued a show cause notice to the petitioner under Section 3 of RSO 2000 by clearly mentioning the description of the case, allegations leveled against him and providing opportunity of hearing to him and asking him to submit his reply within seven days, failing which exparte decision would be taken. It was also mentioned in the said show cause notice that the petitioner may record his statement and was also asked that whether he wished to be heard in person or not. Thereafter the petitioner furnished his reply wherein though he stated that the allegation of misappropriation of Rs.64,00,000/- was incorrect however admitted that he obtained challan from a representative of Mr. Aman Aslam and presented the same in Korangi Town office and after obtaining the Town Plan handed over the same to the said representative. Thereafter when his reply was not found to be satisfactory, a final show cause notice, as prescribed under RSO 2000, was issued by the Director General himself to the petitioner and the petitioner duly furnished his reply in response to the said final show cause notice.
14. It is also a matter of record that the Inquiry Officer while conducting inquiry not only provided opportunity of hearing to the petitioner but also took into consideration the statement of various others departmental officials and the Bank Manager with regard to the alleged fraud /forgery committed by the petitioner in presenting a fake challan and thereafter obtaining the Town Plan. So far as the allegation that opportunity of hearing was not given to the petitioner in accordance with law is concerned the said objection is also found to be contrary to the records, opportunity of hearing not only with regard to first show cause notice but also of the final show cause notice was duly provided to the petitioner.
15. It is also seen that the appointment letter of the petitioner was issued on 16.03.1983 by the Deputy Controller (Admn. and Personal) who was the competent authority at that time and it was the Deputy Director (Admn-P-II) who issued termination letter dated 30.07.2013 to the petitioner being the present competent authority and both these authorities are of similar denomination i.e. the appointing person and the terminating person are the same authority. Hence the assertion of the counsel for the petitioner that the petitioner has been terminated by an incompetent person by violating the provisions of Section 2 (a) and 5 of the RSO are found to be incorrect in view of the material /evidences available on record and on the perusal of the above two provisions of law, reproduced supra.
16. The allegations with regard to non-issuance of charge sheet is also not tenable as when inquiry was conducted, as apparent from the record, gist of allegations were duly mentioned in the show cause notice dated 21.02.2013 issued to the petitioner, a reply of which was furnished by the petitioner. Hence the claim of the learned counsel for the petitioner in respect of the above submission that before conducting punitive action against the petitioner he was not confronted, is contrary to the records. We have also seen that no procedural irregularities have been pointed out by the learned counsel for the petitioner, since before the termination of the petitioner the legal requirements as enumerated under Section 3 and 5 of RSO 2000 and as per the SBCA Rules with regard to show cause notice, final show cause notice, obtaining reply of the petitioner, conducting inquiry and examination of the witnesses have duly been carried out in the instant matter.
17. It is also a matter of record that letters with regard to initiating criminal proceedings against the petitioner by FIA, Anti-Corruption and concerned SHO were also written. It is also seen from the record that it was only after reaching to the final conclusion about the involvement of the petitioner in the fraud, in the inquiry and further reports of the SBCA Authorities that the action against him was taken i.e. after the fulfillment of requisite legal and codal formalities and after reaching to the final conclusion about involvement of the petitioner in causing substantial financial loss to the respondent department. It is also stated by the learned counsel for the petitioner that an appeal was preferred by the petitioner but no action was taken. So far as this objection is concerned it is seen that the appeal filed by the petitioner was not addressed to the competent authority since the petitioner was under the legal obligation to move a representation to the Chief Minister which admittedly has not been done. The facts of the decisions relied upon by the learned counsel for the petitioner are found to be distinguishable from the facts obtaining in the instant petition.
18. We, therefore, on the basis of the above facts, do not find any justifiable reason to interfere in the termination order issued by the respondent to the petitioner. This petition is, therefore found to be misconceived and bereft of merit and is accordingly dismissed.
JUDGE
JUDGE