ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

 

                                                C.P. No. D- 409 of 2006.

                                                                                                                                               

DATE         ORDER WITH SIGNATURE OF JUDGE

 

                                    For Katcha Peshi

 

30.03.2010.

 

                        Mr. Muhammad Sault Rizvi, Advocate for the Petitioner.

                       

                        Mr. Muhammad Ali Shaikh, D.A.G.

 

Mr. Hakim Ali Siddiqui, Advocate for Respondent.

                        ==

            Through this petition the Petitioner has called in question order dated 01.04.2006 whereby major penalty of compulsory retirement was imposed upon him under Removal from Service (Special Powers) Ordinance, 2000.

            The record reflects that the following charges were leveled against the Petitioner in Charge sheet dated 13th July 2005:-

1.      Taking part in illegal strikes, which is an illegal act of serious misconduct, as any employee of the council cannot take part in such kind of activities.

2.      You went personally to sit on toke hunger strike before the Press Club at Hyderabad. Your this code of misconduct has created hinderess in the pace of official work by involving the management in unethical and unproductive proceedings (Copy of the Newspaper is enclosed).

3.      Attempt to use political source for getting illegal benefits for PCSIR.

4.      Pressurizing the Management to get personal benefits.

5.      Submission of representations with illegal allegations against the department and management, addressed to the higher authorities without through proper channel, which is against discipline & decorum of the council.

            The Petitioner denied the charge. Thereafter a formal inquiry was conducted by the department by dispensing with regular evidence by exercising powers under Subsection (4) of Section 5 of the Ordinance, 2000, and upon find the petitioner guilty, major penalty of compulsory retirement was imposed on 01.4.2006.

            Mr. Muhammad Saulat Rizvi, Advocate, pleads that since the charge leveled against the Petitioner was based on disputed facts therefore, the inquiry by way of evidence could not be dispensed with.

            Mr. Hakim Ali Siddiqui, contends that since the charge was admitted therefore, there was no need for regular inquiry by way of evidence and as such, the order of the department is just and proper.

            We have heard the learned Counsel for respective parties and perused the record.

            It does not appear to be a disputed question that the allegation against the Petitioner contains factual inquiry and after going through the reply we are of the firm view that the Petitioner had denied the charge and therefore, in view of the dicta laid down by the Apex Court in the case of MUHAMMAD HALEEM and another V. GENERAL MANAGER (OPERATION) PAKISTAN RAILWAYS HEADQUARTER, LAHOR and others (2009 S C M R 339), the charges leveled against the Petitioner could only be proved by producing evidence with an opportunity to the petitioner to cross examine the witnesses.

            The rule laid by the apex Court in the aforesaid case is that in a charge of misconduct based on allegation of fact, holding of regular inquiry is essential and dispensation therewith was not permissible.

            In the circumstances, the impugned order dated 01.04.2006 is set aside. However, Respondents would be at liberty to initiate fresh inquiry against the Petitioner in accordance with law within a period of one month.                                              

                                                                                                JUDGE

 

                                                            JUDGE