ORDER SHEET
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Present:
Mr. Justice Shahid Anwar Bajwa &
Mr. Justice Muhammad Ali Mazhar
Constitution Petition No. D-102 of 2011.
Muhammad Akram Solangi and others………..Petitioners
D.C.O, Khairpur and others. ….………….…..Respondents.
Mr. Illahi Bux Jamali Advocate for the petitioners.
Mr. Ghulam Shabeer Shar Advocate for the
Respondent No.2.
Mr. Imtiaz Ali Soomro, Assistant Advocate General.
Date of hearing: 07th February, 2012.
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Muhammad Ali Mazhar J., This constitution petition has been brought to claim following relief(s):
“a. To direct the respondents No.1 to 3 to release the salaries of the Petitioners in their Bank Accounts from the month of October, 2010, continuously without further delay, as the Petitioners and their family members are passing the days of starvation.
b. To grant any other relief, which this Honourable Court deems fit and proper in circumstances of the case.
c. To award the costs of the Petition”.
2. The facts forming the background of this case are that petitioners in the memo of petition contended that they were appointed as Junior Clerk, Sanitary Jamadar, Electrician, Pump Operator, Helper, Chowkidar and Naib Qasid by the respondent No.2, vide office orders dated 5.3.2009, 6.3.2009, 7.3.2009, 9.3.2009, 16.3.2009, 17.3.209 and 18.3.2009, respectively, against the existing vacancies for which they had applied and since their appointment, the petitioners are performing their duties with utmost satisfaction of their superiors. The respondent No.2 issued a letter on 15.6.2010 to the Manager, NBP, Kotdiji Branch for opening new accounts of the petitioners so that they may draw their salaries from their personal accounts. The petitioners got their new accounts opened in NBP, Kotdiji and draw their salaries till September, 2010, but from October, 2010 the respondent No.2 has not released the salaries in the bank accounts of the petitioners and the petitioners time and again approached the respondents No.1 to 3 for release of their salaries but they have denied the payment on one or the other pretext.
3. The respondent No.2 has filed his objections/counter affidavit in which it was stated that the respondent No.2 neither announced nor advertised the posts for recruitment and there is a proper procedure of recruitments so the petitioners were never appointed in the office of respondent No.2 as at that time there was ban imposed by the Government of Sindh on appointments. It was further asserted that the petitioners have produced the bogus, forged, fabricated, manipulated and self managed office orders, but they have not produced medical certificates and joining reports in respect of their appointments. The petitioners are not the employees of the respondent’s department, hence they are not entitled for salaries.
4. The respondent No.3 also filed statement in which it is stated that all the Taluka Municipal Administrations working in Sindh do not come under the Audit Jurisdiction of District Accounts Office and directly working under the control of respondent No.4.
5. The learned counsel for the petitioners argued that all the petitioners were appointed after fulfillment of all codal formalities and they are performing their duties to the satisfaction of their superiors without any complaint. He further argued that the salaries of the petitioners were being credited in their accounts being operated by them in National Bank of Pakistan, Kotdiji Branch. However, since the month of October, 2010 the respondent No.2 stopped their salaries. Due to nonpayment of salaries the petitioners and their family members are facing hardship. He further argued that the respondents have invited the applications for employment through advertisement in Daily Ibrat and Sobh for the same post on which the petitioners are performing their duties, therefore, through a separate application (CMA No.9455/2011), the petitioners have prayed that the respondents be restrained from issuing any appointment order and similar application (CMA No.7119/2011) was also moved earlier with the same prayer.
6. The learned counsel for the respondent No.2 argued that no post was advertised for the recruitment, hence no question for the appointment of Junior Clerk, Electrician, Pump Operator, Helper, Chowkidar and or Naib Qasid, arises. He further argued that there was ban imposed by the Government. He vehemently opposed the contention of the learned counsel for the petitioners that the petitioners were appointed after completing codal formalities rather than he argued that the petitioners have submitted forged and fabricated documents. He averred that the petitioners have failed to attach with the memo of petition any medical certificate or joining report to substantiate that they were employed or were being paid the salaries. He also challenged that no petitioner is performing any duties. The competent authority was Nazim but the appointment letters/orders produced with the petition were issued by the then Taluka Municipal Administration and all such letters were issued with false outward numbers during the period of March, 2009. He concluded that the petitioners are not employees of the respondents department and for this reason, they are not entitled to claim any salary.
7. The learned A.A.G adopted the arguments of the learned counsel for the respondent No.2 and he added that this constitution petition is full of factual controversies and disputed questions of fact. The controversy raised in the petition cannot be resolved without recording evidence.
8. Heard the arguments of the learned counsel for the parties. The petitioners have attached their appointment orders with the petition. All appointment orders were issued by Taluka Municipal Officer, Taluka Municipal Administration, Kotdiji in the month of March, 2009. The petitioners have also attached letter dated 15.06.2010 issued by the Administrator Taluka Municipal Administration on 15.06.2010 to the Manager, National Bank of Pakistan Kotdiji Branch for opening of new accounts of twenty three employees in which out of present eighteen petitioners, only the names of four petitioners viz. Hussain Bux, Muhammad Akram, Zahoor Ahmed and Mureed Hussain are mentioned. The learned counsel for the petitioners filed some more documents through his statement dated 15.11.2011. The most important document is the Bank Advice issued by Administrator Taluka Municipal Administration on 19.08.2010 whereby sum of Rs.2,79,885/- was instructed to be credited in the Bank Account of the employees on account of their salaries. Along with this letter a photo copy of cheque issued by the same authority in the sum of Rs.2,79,885/- dated 08.09.2010 is also attached, which was issued to the Manager National Bank of Pakistan, Kotdiji Branch. Another statement is available on record, which was filed by the learned counsel for the petitioners on 02.02.2012, in which he has mentioned the names of nine petitioners and further stated that the petitioner Nos.6, 7, 8, 10, 11, 12, 14, 16 and 18 were drawing salaries in cash from the Office of Taluka Municipal Administration, Kotdiji and remaining petitioners were being paid their salaries through Bank. The names of nine petitioners said to have been drawing their salaries through their Bank Account are as under:-
(1) Muhammad Akram S/O Mureed Solangi (petitioner No.1), shown at Serial No.24, Account No.7267-6.
(2) Zahoor Ahmed S/O Arbab Ali Sehto (Petitioner No.2), shown at Serial No.8, Account No.7267-6.
(3) Hussain Bakhsh S/O Tando Faqeer Solangi (Petitioner No.3), shown at Serial No.1, Account No.7266-7.
(4) Ghulam Mustafa S/O Naik Muhammad Solangi (Petitioner No.4), shown at Serial No.36, Account No.7311-2.
(5) Muhammad Shafique S/O Muhammad Rafique Solangi (Petitioner No.5), shown at Serial No.35, Account NO.7312-1.
(6) Asif Raza S/O Mir Khan Solangi (Petitioner No.9), shown at Serial No.34, Account No.7288-1.
(7) Irshad Ali S/O Arz Muhammad Gopang (Petitioner No.13), shown at Serial No.3, Account No.7229-3).
(8) Syed Shabbir Ali Shah S/O Imdad Ali Shah (Petitioner No.15), shown at Serial No.16, Account No.6757-3.
(9) Syed Perwaiz Ali S/O Syed Paryal Shah (Petitioner No.17), shown at Serial No.27, Account No.7231-9.
9. Since the counsel for the petitioners attached copies of two cheques dated 08.09.2010 and 19.08.2010 allegedly issued against the payment of salaries of employees through Bank in the sum of Rs.2,79,885/- each therefore we issued notice to the Manager National Bank of Pakistan Kotdiji Branch to appear in court along with relevant record in respect of cheque Nos.909169 and 907800 dated 08.09.2010 and 19.08.2010. On 31.01.2012 Syed Qamar Raza Shah Manager Operation National Bank of Pakistan, Kotdiji Branch appeared and shown us original record. He further confirmed that both the letters dated 19.08.2010 and 08.09.2010 were received in the Bank and proceed of the aforesaid cheques were credited into the accounts of individual employees. This position was controverted by the learned counsel for respondent No.2 and he vehemently denied the issuance of any such cheque. However, he sought time to file copies of account of statement of respondents. Though the counsel for the respondent No.2 sought time to file the Bank statement of the respondent No.2 but along with the statement dated 7.2.2012, he attached copy of Local Board Account Form No.23 and copy of outward register of respondent No.2 in which according to him, the letter dated 19.08.2010 is not mentioned, however, he submitted two pages bank statement in court which confirms the encashment of cheque on account of salary.
10. After minutely examining the material placed on the record, we have no hesitation in our mind to hold that vide bank advice dated 19.08.2010, the salaries of various employees including nine petitioners mentioned above were credited in their Bank Account. However, in order to substantiate the plea that the remaining petitioners were being paid their salaries in cash by the respondent No.2, nothing has been placed on the record by the petitioners, therefore, it cannot be said whether they were being paid their salaries or not. It is also a fact that the petitioners have not submitted any medical certificate or joining report and the whole case is based on the appointment orders, which were issued in the month of March, 2009 and respondent No.2 claims that the same were issued during the ban period imposed by the Government. However, it is a different story that nothing has been placed by the respondent No.2 along with his comments or further statement to show any imposition of ban by the Government during the said period of appointment.
11. We have noted time and again in various petitions filed by employees of different government departments for the payment of salaries, regularization of their services, posting orders or the issue of appointment orders on the basis of offer letters, in which mostly the representative of the department come up with a plea that the appointment orders or offer letters are forged, fabricated and manipulated. In most of the cases, attempt is made either to shift the blame or burden on their predecessor, who issued letters or on the employees with the allegation that the documents have been forged and manipulated. In the case in hand also, the respondent No.2 took the plea that all the appointment letters/office orders are forged and fabricated even the respondent No.2 has emphatically avowed that no petitioner is performing his duties, therefore, question of payment of salary does not arise.
12. It is worth mentioning that not a single word has been uttered that after receipt of the notice of this petition with copies of appointment orders/letters, what concrete steps were taken by the competent authority whether any discreet enquiry was conducted by the competent authority to determine the responsibility or accountability of a person, who allegedly issued forged appointment orders. Even no efforts appear to have been made to ascertain whether the Taluka Municipal Officer who signed the appointment letters was ever questioned who was allegedly not competent to appoint. It has more or less become a fashion which we have experienced in many cases here that every successor-in-interest blames his predecessor-in-interest and use to take up a plea that he has recently joined and if any wrong is committed, it was committed by his predecessor for which, he cannot be held liable or responsible. In this case also, the respondent No.2 has not come up with clear line of defence as to whether any inquiry and or investigation was carried out against the alleged forged appointment orders and as to what action was taken against the delinquent. The answer is nil, however due to this inaction, the petitioners are suffering hardship and privation which is totally unlawful and against the well settled principle and norms of good governance.
13. This petition was instituted in the month of January, 2011 and since 10.08.2011, the respondent No.2 is being represented by their counsel. All the petitioners are claiming that they are performing their duties against their respective posts. Nothing has been placed on record to say that the petitioners have been issued any show cause notice that their appointment letters are forged and they should explain as to why these letters should not be cancelled. Even no personal affidavit of Taluka Municipal Officer was filed who was performing duties as Taluka Municipal Officer, Kotdiji in the month of March, 2009 when the appointment orders were issued to the petitioners with a clear statement that he never issued the appointment orders. The reckless and callous attitude shown by the respondents is nothing but the exploitation.
14. To enjoy the protection of law and to be treated in accordance with law is inalienable right of every citizen. Reading of Article 4 of the Constitution of Islamic Republic of Pakistan shows that it incorporates the doctrine of equality before law or equal protection of law and no action detrimental to the life, liberty, body, reputation or property of any person can be taken except in accordance with law. Public functionaries are supposed to function in good faith honestly and within the precincts of his power so that person concerned should be treated in accordance with law.
15. Non-payment of salary to a person would tantamount violation of fundamental rights guaranteed under Articles 2-A, 3, 4, 9, 14 and 18 of Constitution of Pakistan. If the person served others for his services, no reward was given to him is not the practice of a civilize world. To earn the livelihood is also a fundamental right of a person, which has also been recognized in Islam. Our religion Islam has specifically emphasized that the reward of service of a person should be paid to him immediately after completion of his service. Islam has forbidden making slave a man by a man. All mankind is equal in the eyes of Almighty Allah. Allah, the Almighty has created or sent man in this world as independent and not as a slave and when Allah, the creator has granted fundamental rights to a person this right cannot be snatched from him by another man. To earn a livelihood is also a fundamental right of a person and to lead the life according to his own will and sources is his inalienable right and to lead a life in this world and to enjoy the facilities the blessing of Almighty Allah is not only legal and Constitutional right but it is also a basic and fundamental right of a person who comes in this world and for leading such life the emoluments is the requirement and the Legislature has termed it as a salary or wages. Reference can be made to 2001 PLC (C.S) 1073.
16. Article 3 of the Constitution makes its incumbent upon the state to ensure elimination of all forms of exploitation and the gradual fulfillment of fundamental principles from each according to his ability, to each according to his work. Under Article 38 of the Chapter, Principle of policy, it is provided that the state shall secure the well being of the people, irrespective of sex, caste, creed, or race by raising their standard of living by preventing concentration of the wealth and means of production and distribution in the hands of a few to the detriment of general interest and by ensuring equitable adjustment of right between employer and employee and landlord and tenant.
17. In the above context, the honourable Supreme Court in the case of Ikram Bari, reported in 2005 SCMR 100 held that Islamic welfare state is under obligation to establish a society, which is free from exploitation wherein social and economic justice is guaranteed to its citizens. Objectives Resolution, by virtue of Art.2-A of the Constitution, has been made substantive part of the Constitution which unequivocally enjoined that in State of Pakistan the principles of equality, social and economic justice as enunciated by Islam would be fully observed which would be guaranteed as fundamental rights. Principles of policy contained in Art.38 of the Constitution also provide that the State should secure the well-being of the people by raising their standards of living and by ensuring equitable adjustment of rights between employer and employees and provide for all citizens, within the available resources of the Country, facilities for work and adequate livelihood and reduce disparity in income and earnings of individuals. State is obliged under Art.3 of the Constitution, to ensure the elimination of all forms of exploitation and gradual fulfillment of the fundamental principle, from each according to his ability, to each according to his work.
18. In the case of Zahid Ahmed v Province of Sindh, reported in 2012 PLC (C.S) 124, my learned brother Shahid Anwar Bajwa-J held in the case of Education Department that if there are irregularities in the appointment of the petitioner, it is available to the departmental authorities to take action under the relevant efficiency and disciplinary rules and after due process bring employment of the petitioner to an end, but it is not available to the departmental authorities to on the one hand say that appointment of the petitioner is wrong and then on the other hand take no action and continue to take work from the petitioner. Such conduct i.e., taking work from someone and not paying him for it amounts to exploitation, which is forbidden by Article 3 of the Constitution, denial of right of life which is forbidden by Article 9 of the Constitution and slavery and forced labour which is forbidden by Article 11 of the Constitution. Authority given to a public servant is a sacred trust and the public servant is required to perform his duties honestly and diligently. If any wrong is being committed by his subordinate, it is his duty to ensure that not only the act of wrong is brought to an end but also the delinquent officer is taken to task in accordance with the rules. If the public servant does not act in accordance with the above principles, either he is complicit or is merely negligent and, therefore, must be burdened with requisite consequences.
19. In the case of Zahid Ahmed (supra), the Division Bench of this Court disposed of the petition with the direction that current salary of the petitioner be paid on regular basis by deducting 50% of it from the salary of EDO and 50% from the salary of Headmaster. The EDO and Headmaster, both were directed to take steps for initiating appropriate actions to determine whether the appointment of the petitioner is in violation of law and if the petitioner is found of any misconduct, take disciplinary action against him in accordance with law within three months. It was further ordered that arrears, if any, shall depend upon the final result. The reason for allowing aforesaid relief in the above petition decided at Circuit Court, Larkana is obvious that the petitioner in aforementioned case not only submitted joining report to the concerned authority, his service book was also prepared which was countersigned by the competent authority and petitioner was signing the attendance register regularly and was attending duty which fact was not disputed, but in the case in hand the whole reliance is based on appointment orders only without submitting any letter of medical or joining report. Even no proof is submitted to show that the petitioners are performing their duties. These essential documents have not been produced along with memo of petition or even at subsequent stages when the counsel for the petitioners availed at least two opportunities for filling additional documents through statements.
20. So far as the claim of the salary of nine petitioners who were being paid their salary through NBP, Kotdiji in this case is concerned, at least for payment of one month salary, the petitioners have established that salary was credited in their bank accounts which pertains to the month of August, 2010 and which fact was also admitted by the representative of the bank when he appeared in court but for the remaining period, it is not established through any convincing documentary evidence that the petitioners are performing their duties regularly. The respondent not only disputed the appointment orders but also refuted the claim of the petitioners that they ever performed their duties.
21. It is well settled principle that this court under its Constitutional jurisdiction under Article 199, cannot embark upon complicated, controversial or disputed question of facts. Truthfulness or otherwise of the factual disputes cannot be determined without inquiry and recording of evidence for which this court is not an appropriate forum for resolving intricate questions of facts. Counsel for the petitioners admitted by filing statement in the court that nine petitioners were paid salary through bank and remaining petitioners were being paid salary by hand. Whether the petitioners are working or not, whether they have been lawfully appointed or not and whether authority issued appointment orders in favour of the petitioners, was competent or not, all such crucial questions require detailed inquiry and evidence, which we at this stage cannot resolve, but at the same time, we are also cognizant of the fact that instead of non suiting the petitioners on the sole ground that under Article 199 of the Constitution, we cannot embark upon the factual, controversial, complicated or disputed question of facts, we within the sphere of our dominion and in the interest of justice deem it appropriate to constitute a inquiry committee to probe whole issue in view of our observations made supra that it has become consistent practice of various departments/institutions to simply walk up to the court and challenge the authenticity or veracity of documents either on the ground that person issued the same had no authority or the documents placed in court are forged and manipulated and make the lis full of complicated and disputed question of facts so that this court may avoid to embark upon realm of factual controversy. It is also a matter of grave concern that unfortunate employees are facing serious hardship and torment in the court due to inaction and inefficiency of concerned department. Even in some cases we have observed that the employees were regularly working on their jobs and also signing the muster roll as in the case of Zahid Ahmed (supra) but their appointments were denied in the court.
22. The good governance is largely dependent upon upright, honest and strong bureaucracy particularly in written Constitution wherein important role of implementation has been assigned to bureaucracy. Object of good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind. Such objective can be achieved by following rules of justness, fairness and openness in consonance with command of Constitution enshrined in different Articles including Arts 4 and 25 of the Constitution. Once it is accepted that the Constitution is supreme law of country, no room is left to allow any authority to make departure from any of the provisions of law and rules made thereunder. Reference can be made to 2011 PLC (C.S) 1130.
23. As a result of above discussion, we would like to dispose of this petition along with listed applications in the following terms:
a. The competent Authority i.e. Secretary Local Government (respondent No.4) shall constitute a three members high powered committee who shall conduct fair, transparent and impartial inquiry in the matter and verify the authenticity and genuineness of the appointments orders of the petitioners and submit report to the Secretary Local Government who will take immediate action on the inquiry report. The inquiry shall be completed within a period of one month positively without any fail.
b. The propriety demands that respondent No.2, who filed the counter affidavit and vehemently refuted and opposed the claim of the petitioners shall not be a member of inquiry committee.
c. All the petitioners will be summoned by the inquiry committee and will be intimated exact date of hearing, time and venue to appear personally along with their original documents and will be allowed ample opportunity of hearing to defend their cause.
d. If the appointment orders are found to be genuine and incontrovertible and if the petitioners are found to have performed their duties at any point of time or have been performing their duties, the petitioners shall be entitled to the salaries from the date of their joining or the period for which they have actually performed their duties and the competent authority shall ensure the payment of salary forthwith.
e. Inquiry committee shall also examine why salary of the nine petitioners was credited in their bank account if their appointment orders are forged and fabricated.
f. And if no salary bill was passed by the audit department then how cheque was issued and deposited in the bank.
g. The committee shall also inquire and examine whether the authority who issued the appointment orders was the competent authority or not and if it is found that the appointment letters were issued without having lawful authority, the competent authority shall take severe action against all the persons found involved and issued appointment orders to the petitioners without lawful authority.
h. The respondent No.2 has taken the plea that appointments letters are forged. The committee shall also examine this aspect and if the appointment orders/letters are found by the inquiry committee to be forged or manipulated and issued with the collusion of any employee/staff member of the concerned department, the competent authority shall initiate severe disciplinary and penal action against the delinquent. The competent authority shall also take all remedial and corrective measures to avoid issuance of such forged and bogus appointments orders in future.
i. However, it is clarified that before taking any disciplinary or penal action against the delinquent person, he should be afforded an opportunity of being heard.
j. On conclusion of inquiry within the stipulated period of time, a copy of inquiry report shall be submitted by the Secretary Local Government to the Additional Registrar of this Court, which shall be placed before the Bench of this court in chamber for further orders and necessary action.
24. Office is directed to transmit copy of this order to the Secretary Local Government and learned Additional Advocate General Sindh for compliance.
Sukkur:- Judge
Dated. 9.5.2012 Judge