Present
Mr. Justice Mushir Alam.
Mr. Justice Aqeel Ahmed Abbasi.
Date of hearing : 29.10.2009
Date of judgment : 26.01.2010
Petitioner : Ghulam Mustafa Khan,
through Mr. Muhammad Naseem, Advocate.
Versus
Respondent : Federation of Pakistan, through
Secretary Ministry of Defence & another,
through Mr. Khalid Jawed, Advocate for respondent No.2 and Mr. Mian Mushtaq, DAG for Federation of Pakistan.
J U D G E M E N T
Aqeel Ahmed Abbasi, J. Through instant petition, the petitioner has challenged the impugned order dated 01.04.2005, whereby, the petitioner was dismissed from services by respondent No.2.
2. The brief facts leading to the instant petition are that the petitioner was appointed as Junior Teacher in BPS-15 on 10.4.1988 and was later promoted as Senior Teacher in BPS-16 vide order No.DHA/04/ESTB dated 19.7.19993. It is stated in the petition that during the period 10.4.88 to 31.5.94 the petitioner's performance in the school, both as a Teacher and Scout Leader, had been at par excellence and no disciplinary proceedings were ever taken against the petitioner. It is also stated that the petitioner was given several awards and Certificate of Merit by respondent No.2 during the service. However, as a shock and surprise to the petitioner he was removed from service vide order No.D-11/Estab/TS dated 24.5.1994. Departmental Appeal was preferred against such dismissal order, which was not decided. Thereafter, Constitutional Petition No.2490 of 1994 was filed in the High Court of Sindh, the same become infructuous due to introduction of Section 2-A of the Service Tribunal Act, 1973. Thereafter, appeal was preferred before the Service Tribunal, Karachi Bench on 22.5.98, wherein the dismissal order was set-aside by the learned Tribunal and the petitioner was reinstated with retrospective effect and with the directions to the respondents for the payment of all the dues and back benefits to the petitioner. Leave to Appeal was preferred by the respondent before the Hon'ble Supreme Court, which was refused. However, while refusing this petition, the Apex Court observed that the respondent may undertake inquiry within a period of four months strictly in accordance with law if so permitted under the circumstances. Under this background of the case, after 11 days the petitioner joined/resumed duties, the respondent issued him Show Cause Notice No.SKBZ/C/118 dated 28th January 2005. The said show cause notice was responded by the petitioner wherein amongst other grounds, jurisdiction and the constitution of the Inquiry Officer was also challenged. However, without prejudice to legal objection the explanation was also submitted which could not found favour with the respondent, hence the impugned order was passed whereby the petitioner was awarded maximum punishment i.e. dismissal from services.
3. When this petition came for hearing on 8.10.2009 before a Bench of this Court it was pointed out by the learned counsel for the respondent that the petitioner is before this court in consequence of the larger Bench order passed in the case of M/s. Muhammad Dawood VS. Federation of Pakistan reported as (2007 SBLR 495) against which order leave to appeal has been granted by the Hon'ble Supreme Court. To this submission learned counsel for the petitioner pointed out that the petitioner was reinstated in service in the light of judgment passed in the case of Muhammad Mubeenul Islam Vs. Federation of Pakistan (PLD 2006 SC 602) by the Federal Service Tribunal but thereafter, during fresh departmental proceedings the petitioner has again been dismissed. Under the circumstances it was ordered that the listed petition may be fixed alongwith other identical cases on 29.10.2009. However, both the learned counsels are ready and willing to proceed with the matter.
4. We have heard both the learned counsels on merits as well as on the issue of maintainability of the instant constitution petition. In order to comprehend controversy in hand, it will be advantageous to refer to the orders passed by the learned Federal Service Tribunal as well as Hon'ble Supreme Court of Pakistan in the case of petitioner. From the perusal of the order of the Federal Service Tribunal, it appears that the grounds of dismissal of the petitioner from service as mentioned in the typed page 7 of such order were as under:
"(1) Warning dated 3.10.1991………….found absent in the
morning assembly.
(2) Warning dated 23.9.1992………….for remaining
absent.
(3) Warning dated 4.11.1992………….late by 5 to 7 minutes.
(4) Warning dated 9.2.1993…………..found absent on
7.2.1993. 8.2.1993
(his two day's pay
was deducted for
above absent).
(5) Warning dated 8.7.1992……………late on 13.1.1994,
16.1.1994, 18.1.1994,
24.1.1994, 26.1.1994
& 30.1.1994.
(6) Warning dated 12.5.1994………….Unsatisfactory result of
Middle Standard
Examination-94.
(7) Warning dated 17.5.1994…………..coming late and no
representation of
scouts on walk-a-
cause organized by
Kidney Centre.
5. To this effect, the learned Tribunal while examining the merits of the case had given its finding in the following terms:
"The perusal of the above picture indicates that in a span of four years service these lapses which were not frequent could not be termed as major or serious lapses to warrant his termination from service. Furthermore, if the appellant was not taking interest in his duties, the appropriate course was to invoke para 5(e) Chapter-III of the Pakistan Defence Housing Authority's Service Regulations, which prescribes procedure for taking action against the employees, charged with misconduct. The allegations, levelled against the appellant warranted an inquiry into the circumstances which compelled the appellant either to come late or remaining absent gives the transport situation of this sprawling City. Such occasions could happen to any employee of any organization in the City."
6. Similarly, on the point of limitation also the learned Tribunal had given its finding in favour of the petitioner. The order of the Tribunal was assailed before the Hobn'ble Supreme Court but leave to appeal was declined. Before the Hon'ble Supreme Court it was conceded by counsel appearing for the respondent that neither any show cause notice was issued to the petitioner nor any inquiry was conducted against him. As regard issue of limitation it was observed by the Hon'ble Supreme Court that since the order of termination passed by the respondent was void abinitio, therefore, the ground of limitation was of no legal consequence. However, while parting with the order dismissing leave to appeal filed by the respondent the Hon'ble Supreme Court observed that the respondent will be at liberty to hold inquiry against the petitioner according to law and take action against him if so permitted by the circumstances. It was further observed that if misconduct is proved on the part of the petitioner he will not be entitled to any consequential benefits. Thereafter, the respondent issued show cause notice dated 28th January 2005 to the petitioner requiring him to explain his causal and careless attitude towards service during the period from 1991 to 1994. The petitioner, besides legal objection on the constitution of the Inquiry Officer and his jurisdiction, submitted detailed reply to the allegations mentioned in the show cause notice. The detail correspondence was exchanged. However, explanation offered by the petitioner was not accepted by the respondent and the petitioner was dismissed from services by the impugned order. Learned counsel for the petitioner has vehemently assailed the entire exercise undertaken by the respondent for being a colourful exercise and abuse of authority by the respondent who having failed to make out a case against the petitioner at the first instance i.e. first round of dismissal proceedings, now attempted to give cover to its earlier illegalities with a pre-determine mind and vengeance against petitioner with ulterior motive. It was further argued that on the same set of allegations the petitioner cannot be charged twice as the same will tantamount to double jeopardy which is not permissible in law. To this effect the learned counsel for the petitioner drew our attention to the allegations mentioned in the show cause notice to be identical with those as mentioned herein above in the order of the Federal Service Tribunal. According to the learned counsel once the same set of allegation could not found favour with the learned Federal Service Tribunal and before the Supreme Court, for charging the petitioner of alleged misconduct, the subsequent exercise by the respondent on the same set of allegation was without jurisdiction and in any manner a colourable exercise which is liable to be scraped on this count. It was further argued that even in terms of Service Rules for Employees of the Pakistan Defence Officers Housing Authority Karachi, 1992, neither the allegations against the petitioner fall within the definition of misconduct as defined in Rule 2 of the said Rules, nor in any case maximum punishment could possibly be awarded to the petitioner consequent to minor lapses and defaults for which respondent had issued warning.
7. In support of these arguments, learned counsel for the petitioner has placed reliance on several case laws on the grounds raised in the instant petition the same are summarized as follows:
(i) That the order of termination since not passed by the competent authority the same is void and liable to be set aside.
Nasir Said v. WAPDA PLD 1987 SC 421
Abdul Bashir and 9 others Vs. Government of Balochistan through Chief Secretary, Civil Secretariat, Quetta and 3 others 2001 PLC (CS) 771
(ii) That if the inquiry once conducted on certain issues by a competent forum the same will not be available for a second round of proceedings is the same will amount to double jeopardy.
Muhammad Saifullah Vs. Province of Sindh, etc. NLR 1986 TD (Ser) 32
Muhammad Khaliq Vs. Board of Intermediate and Secondary Education, Faisalabad and another 2000 PLC (CS) 1373 (Lahore)
(iii) A second enquiry on the same facts is not permissible, being a case of double jeopardy.
The Director General (Field), Agricultural Department, Lahore and another Vs. Haji Abdul Rehman 1989 SCMR 1224
General Manager (Operation), WAPDA Vs. Javaid Aziz Qureshi and others 1998 PLC (CS) 1288/1291.
(iv) Prior furnishing of inquiry report to the accused is a mandatory requirement and if the same was not provided the inquiry report and its findings are not legal and proper.
Syed Mir Muhammad Vs. N.W.F.P. Government through Chief Secretary PLD 1981 SC 176
Syed Altaf Hussain Vs. The President, National Bank of Pakistan, etc. NLR 1991 TD 341/176/651.
(v) Absence from duty or punctuality particularly when the circumstances have been provided is no ground for termination of services. The absence for few days on few occasions does not warrant termination.
Engineer Samiullah Mughal Vs. Chairman, Pakistan Engineering Council and 2 others 2009 PLC (CS) 280.
8. Conversely, the learned counsel for the respondent has raised legal objection regarding maintainability of the instant petition, as according to him, the petitioner cannot seek reinstatement of his employment by filing constitution petition. It has been further argued that since there are no statutory rules framed by the respondent the petition does not lie. According to him, the only relation which could possibly be established between the petitioner and respondent is of Master and Servant, therefore, in term of Article 240 of the Constitution, the petitioner cannot be termed as person in service of Pakistan. In this regard he has placed reliance of the following judgments:
1. Messrs Malik and Haq and another Vs. Muhammad Shamsul Islam Chowdhury PLD 1961 SC 531
2. Muhammad Yousuf Shah Vs. Pakistan International Airlines Corporation PLD 1981 SC 224
3. Pakistan Red Crescent Society and another Vs. Syed Nazir Gillani PLD 2005 SC 806
4. Ms. Zeba Mumtaz Vs. First Women Bank Ltd. and others. PLD 1999 SC 1106
5. The Principal, Cadent College, Kohat and another Vs. Muhammad Shoab Qureshi PLD 1984 SC 170
6. Mrs. Anisa Rehman Vs. P.I.A.C. and another 1994 SCMR 2232
7. Habib Bank Limited and others Vs. Syed Zia-ul-Hassan Kazmi 1998 SCMR 60
8. United Bank Limited and others Vs.Ahsan Akhtar and others 1998 SCMR 68
9. It was further argued that since the Hon'ble Supreme Court has authorised the respondents to take action against the petitioner in accordance with law, hence the impugned action was taken and the petitioner was provided complete opportunity of being heard. According to him, notices were issued, inquiry was conducted by associating the complainant and the order was passed thereon which does not violate any provision of law. Hence the instant petition filed by the petitioner is misconceived in facts and law. Learned counsel also referred Full Bench judgment of this Court in the case of M/s Muhammad Dawood v. Federation of Pakistan 2007 SBLR 495, wherein according to the learned counsel for the respondent it has been held that in case of violations of conditions contained in the contract of employment the rule of Master and Servant will apply and petition could not be maintainable.
10. To this argument, learned counsel for the petitioner vehemently rebutted the contention and referred to the relevant portion of the above cited judgment as contained in para 30(iii) at page 516 is reproduced hereunder for the sake of convenience.
"Where there is violation of law as explained herein above is alleged and within the parameters of the exercise of constitutional jurisdiction of the courts this court would be competent to entertain petitions and grant appropriate relief within the parameters of its jurisdiction under Article 199 of the Constitution."
It was further argued that the objections regarding maintainability of the instant petition are misconceived in law and facts as the case of the petitioner does not relate to the terms and conditions of employment. On the other hand, the instant petition has been filed on the grounds of violation of principles of natural justice, double jeopardy and malafide on the part of respondent and since in the above cited case of Muhammad Dawood v. Federation of Pakistan the Full Bench of this Hon'ble Court having taken cognizance of all such aspects has ruled in favour of filing Constitution Petition under the circumstances. The learned counsel for petitioner further submitted that the case law referred by the counsel for the respondents is not relevant under the facts and circumstances of this case.
11. We have examined the case record and perused the case law relied upon by the parties. As regards objection relating to the maintainability of the instant petition, we are inclined to agree with the learned counsel for the petitioner that the reliance placed by the learned counsel for the respondents on the cases appears to be misconceived particularly in view of the judgment of Full Bench of this Court in the case of Muhammad Dawood v. Federation of Pakistan, as referred to hereinabove. Most of the cases relied upon by the learned counsel for the respondent relate to the relationship between Master and Servant and it has been held that the reinstatement simplicitor could not be sought by invoking constitutional jurisdiction.. However, in the case of Anisa Rehman v. PIDC and others 1994 SCMR 2232, it has been held that even if there are no statutory service rules, if there is any violation of principles of natural justice the constitutional petition would be maintainable, accordingly the appeal of the petitioner was allowed. As regards merits of the instant petition, in view of the peculiar facts of this case, we are of the opinion that the grounds and material used against the petitioner while dismissing him from service are the same/identical which were duly disclosed by the respondents before the learned Federal Service Tribunal. The Federal Service Tribunal, after examining the entire facts and the law, has given a definite finding holding the same to be a minor lapse, which could not possibly warrant termination from service of the petitioner. Similarly, during the hearing of the CPLA filed by the respondent it was conceded by the counsel that neither the show cause was issued to the petitioner nor any inquiry was conducted against him. There was no denial to the fact that the previous service record of the petitioner was unblemished and was found satisfactory. The Hon'ble Supreme Court approved the finding of the learned Federal Service Tribunal and refused the leave to appeal. However, while doing so certain observations were made by the Hon'ble Supreme Court in concluding para 6 of their order, which tempted the respondent to initiate proceedings afresh against the petitioner. The above said para is reproduced hereunder:
"In consequence, leave to appeal is refused and the petition is dismissed. However, the petitioner will be at liberty to hold inquiry against the respondent according to law and take action against him if so permitted by the circumstances. This shall be done within four months from now. In case inquiry is not completed within four months, the respondent will be entitled to consequential benefits from the date of issuance of the impugned order as held by Tribunal. If misconduct is proved on the part of the respondent, he will not be entitled to any consequential benefits."
12. It appears that the respondent considered it as licensee to proceed against the petitioner on the basis of same set of allegation and grounds, which could not be proved before the learned Federal Service Tribunal, were declared to be insufficient ground for awarding major punishment to the petitioner. Such finding of facts was never disputed nor the same was reversed or set aside by the Hon'ble Supreme Court. Under such circumstances, the respondent with the predetermined mind to penalise the petitioner on the same set of allegations cannot be allowed to fill-up the legal lapses prevailed during the first round of proceedings against the petitioner in the second round of proceedings which tantamount to double jeopardy. It is also pertinent to mention that earlier also for similar minor lapses mentioned in the show cause notice, the petitioner explanation was found satisfactory and no disciplinary action or major penalty was awarded to the petitioner by the respondent and the petitioner was merely warned on such lapses. We are unable to understand as to under what circumstances the minor lapses during a period of couple of years became such serious offence warranting the extreme action of dismissal from service by the respondent. Prolong agony of trial upto Supreme Court and undergoing second round of enquiry is more than sufficient punishment for the minor lapse that occurred during long service carrier of the petitioner. Under the facts and circumstance of the case, we are not persuaded to approve the arbitrary conduct of respondent. We are inclined to agree with the proposition of law as enunciated in the case law relied upon by the counsel for the petitioner in para 7, hereinabove, wherein it has been held that the second inquiry on the same facts is not permissible and will tantamount to double jeopardy. We are of the opinion that the entire proceedings undertaken by the respondent were predetermined, based on malafides, the same cannot be sustained in law. In view of hereinabove, the proceedings and the impugned order of dismissal is declared to be null and void and of no legal consequence. The respondents are directed to reinstate the petitioner in service with all back benefits accrued to him during this period.
The petition is disposed of in the above terms
JUDGE JUDGE