C. P. NO. D-4010/ 2012
Present:
Mr. Justice Aqeel Ahmed Abbasi.
Mr. Justice Muhammad Junaid Ghaffar.
Lt. Cdr (R) Abdul Aziz Narejo ---------------------------------Petitioner
Versus
Karachi Port Trust & another ----------------------------- Respondents
Date of hearing: 29.08.2014
Petitioner: Through Mr. Mansoorul Haq Solangi Advocate.
Respondent: Through Mr. Ahsan Ghani Siddiqui Advocate.
J U D G M E N T
Muhammad Junaid Ghaffar, J. Through instant petition, the petitioner has impugned the order dated 10.9.2012 passed by the respondent No. 2, whereby the services of the petitioner have been reverted with immediate effect (being adhoc employee) in terms of SL-7 Esta Code 2012 which includes termination from service.
2. Briefly the facts as stated in the Memo of Petition are that the petitioner who by qualification is a Bachelor of Engineering (Electrical) was initially recruited in the Engineering Services of Pakistan Navy and served for 11 years, whereafter the petitioner retired as a Lieutenant Commander. The petitioner after retirement from the service of Pakistan Navy, pursuant to an advertisement published by respondent No. 1 for the post of Electrical Engineer in (BPS-18) applied for the same, but, was selected and appointed as Assistant Electrical Engineer (BPS-17) in the Mechanical and Electrical Engineering Department of respondent No. 1 vide order dated 16.10.1996. It is further stated that though the advertisement was for the post of Electrical Engineer (BPS-18) in Planning & Development Division, however, the petitioner was appointed as Assistant Electrical Engineer in BPS-17 on adhoc basis with malafide intent on the pretext that at the relevant time no post existed in (BPS-18), whereas according to the petitioner, clear vacancy existed in (BPS-18), in the Planning & Development Department. It is the case of the petitioner, that several representations were made by the petitioner for grant of (BPS-18) and on one such representation, the Manager Personnel in his summary dated 24.9.1996 admitted that the petitioner is qualified for the post of Deputy Chief Electrical Engineer (BPS-19) / Electrical Engineer (BPS-18), however, the Management of respondent No. 1 did not pay any heed to such recommendations of the Manager Personnel. It is further stated that thereafter on 25.2.2000, the petitioner was terminated from service on the ground that the very appointment of the petitioner was irregular, against which the petitioner preferred a representation to the Secretary Communication, Government of Pakistan who vide order dated 29.3.2001, informed the management of respondent No. 1 that the resolution of the Board of Trustees dated 12.1.2000,on the basis of which the petitioner was terminated from service, stands modified and the decision regarding termination of service of the petitioner stands rejected by exercising powers under Section 79-A of the Karachi Port Trust Act, 1886. However, such decision of the Ministry of Communication dated 29.3.2001 was not implemented, whereafter the petitioner approached the Federal Services Tribunal by filing an appeal which was allowed vide judgment dated 6.2.2002, whereby the respondent No. 1 was directed to reinstate the petitioner with all back benefits. The respondent No. 1 thereafter, challenged the order of the Federal Service Tribunal by filing Civil Petition for Leave to Appeal bearing No. 347-K/2002 before the Hon'ble Supreme Court, and after having failed to get any favourable relief, did not pursue the same which was accordingly dismissed vide order dated 2.8.2004 by the Hon'ble Supreme Court for lack of prosecution. After reinstatement, the petitioner kept on making representations to the management of respondent No. 1, as several other In-service or retired officers of Pakistan Navy, who were junior in rank to the petitioner, had already been inducted on higher grade and posts than the petitioner, and on 16.2.1998 the General Manager (Administration) of Respondent No. 1 recommended, that in view of the rank of the petitioner he is eligible for (BPS-18) and it would be in the interest of respondent No. 1, if the petitioner's case is considered for promotion as Electrical Engineer in (BPS-18) in the Planning & Development Division, where the vacancy also exits. On such recommendation, the case of the petitioner was referred to the Internal Selection Committee by the Chairman of respondent No. 1. However, the Human Resource Department of respondent No. 1, did not consider such recommendation as according to the petitioner the officers controlling the affairs of respondent No. 1, were biased against the petitioner. It is further stated that in the year 2007 once again interviews were held for promotion of Electrical Engineer in (BPS-18) and though the petitioner was called for such promotion, however, once again the petitioner was not finally considered by an illegally constituted Sub-committee of officers, who had been inducted in Senior Grades to the petitioner, whereas such officers were junior in rank when they were working in the Armed Forces along with the petitioner. It is further stated that the said Sub-committee recommended promotion of two junior most officers vide order dated 19.6.2007, out of which one was a clerk having only 7 years service, and had acquired the degree of BE-Electrical unlawfully, while continuing his job during the same hours when the classes were being conducted in the University. According to the petitioner, after having failed in their nefarious designs, the respondents have illegally and malafidely once again terminated the services of the petitioner vide impugned order dated 10.9.2012 on false allegation of misappropriation of diesel on 2.2.2008, and on the basis of an inquiry conducted by the officers who had a personal grudge against the petitioner, as the petitioner had arrayed these officers in Constitutional Petition No. D-2141/2006 before this Court, wherein the petitioner had sought seniority over these officers on the ground that they were junior to the petitioner in the Naval Service and had been unlawfully appointed on senior posts in KPT / Respondent No.1
3. Mr. Mansoorul Haq Solangi learned Counsel for the petitioner contended that the impugned order is based on malafides and has in fact been passed for taking revenge from the petitioner. Per learned Counsel the officers In charge of the Management of respondent No. 1, were biased against the petitioner as the petitioner was continuously claiming his seniority over such officers, who were junior in rank to the petitioner during the period of service with Pakistan Navy. Learned Counsel further contended that first charge sheet was issued to the petitioner on 9.8.2008 which was duly replied by the petitioner on 22.9.2008 and in addition to this, the petitioner also approached the Ministry of Ports & Shipping, Government of Pakistan whereby the Ministry was requested to constitute an independent inquiry committee as the officers already appointed were biased against the petitioner. Thereafter another inquiry committee was constituted which once again included an In-service Lieutenant Commander of Pakistan Navy who was on deputation and was biased against the petitioner. The said enquiry report dated 15.5.2009 was finalized on the basis of the earlier charge sheet and concluded that the charges levelled against the petitioner stands proved. Thereafter on the basis of such inquiry report a show cause notice dated 21.7.2009 was issued to the petitioner which was duly replied by the petitioner vide letter dated 28.7.2009. Per learned Counsel as the petitioner had raised serious allegations against the members of the inquiry committee, the respondent No. 1 on the advice of Manager (Legal Affairs) sought an opinion from its Legal Advisor, who advised the management of respondents, to conduct a fresh inquiry into the whole affair as it would not be possible to legally justify the said inquiry report before a Court of Law. Learned Counsel further contended that on the basis of such advice another inquiry committee was constituted, who after detailed examination of the whole affair submitted its report on 16.6.2011, whereby the petitioner was exonerated from the charge of alleged theft of diesel oil, and recommended for issuance of a warning to the petitioner. Learned Counsel further contended that the impugned order dated 10.9.2012 has been passed on the basis of charge sheet dated 9.8.2008 and Show Cause Notice dated 21.7.2009 which was based on inquiry report dated 15.5.2009, whereas the respondents have failed to consider the second inquiry report dated 16.6.2011, whereby the charges against the petitioner stood dropped. Per learned Counsel the respondents had no authority to terminate the service of the petitioner on the basis of an inquiry which was no more in field. Learned Counsel further contended that in the alternative, even otherwise the General Manger (Administration) of respondent No. 1 who had issued the impugned order, had no authority or jurisdiction to pass any such order as in terms of the KPT Act, 1886 such authority vest in the Chairman of KPT in respect of employees of (BPS-16) to (BPS-18). Learned Counsel further submitted that in fact, the General Manger (Administration) who had passed the impugned order was an officer on deputation in the service of respondent No.1, and his appointment itself had been held to be unlawful and irregular, and in support of such contention, the learned Counsel has referred to Ministry of Ports & Shipping's Memorandum dated 17.7.2013, placed on record through affidavit in rejoinder, whereby it has been directed by the Ministry of Ports & Shipping that the said General Manager (Administration) is deemed to have never been appointed on deputation or permanently absorbed in KPT, and has further directed that the KPT Board through its Chairman, may immediately constitute a three member Committee to review all the orders passed by the said General Manager (Administration) during the period he was presumed to be on deputation with KPT. Learned Counsel further contended that it has been further directed through the said memorandum that the Chairman KPT is required to clearly categorize the orders / decisions taken by the said General Manager (Administration), that required revalidation with full justification and also those that required formal withdrawal. In view of such position, the learned Counsel contended that even otherwise the impugned order cannot be sustained and given effect to. In support of his contentions the learned Counsel has relied upon the cases of Pakistan International Airlines Corporation Vs. Abdul Ghafoor and others (SBLR 2004 SC 1), Water & Power Development Authority Vs. Abbas Ali Malano and another ( NLR 2004 Service 12), Sarfaraz Ahmed Vs. Government of Sindh (SBLR 2006 SC 150), New Jubilee Insurance Company Limited Vs. National Bank of Pakistan, Karachi (PLD 1999 SC 1126), Qazi Abdul Jalil Vs. NWFP Forest Development Corporation (2010 SCMR 1933)
4. Conversely Mr. Ahsan Ghani Siddiqui, learned Counsel appearing on behalf of the respondents contended that the impugned order has been correctly passed as the appointment of the petitioner was illegal, and further, the inquiry committee in its report dated 15.5.2009 had concluded that the charges levelled against the petitioner were proved, whereafter a proper show cause notice was issued to the petitioner on the basis of which the impugned order has been passed resulting in termination of service of the petitioner. Per learned Counsel the inquiry report dated 15.5.2009 had fully implicated the petitioner in theft of diesel; hence the petitioner was rightly dismissed / terminated by the respondents.
5. We have heard both the learned Counsel and perused the record. Since a short controversy is involved, by consent of both the learned Counsel instant petition is being disposed of at Katcha peshi stage.
6. It appears that the petitioner was appointed initially on adhoc basis as Assistant Electrical Engineer in (BPS-17) on 16.10.1996 and since then has been working with respondent No. 1. It further appears that immediately after his appointment, the petitioner had approached the respondents for making his appointment as permanent in (BPS-18) and on one such representation, the Manager Personnel vide summary dated 24.9.1996 had recommended for the promotion of the petitioner in (BPS-18), however, such recommendation was not finalized. In the meantime the petitioner’s services were terminated vide order dated 25.2.2000 on the ground that the appointment of the petitioner, was illegal and beyond the mandate of the authority and powers conferred upon the Chairman of respondent No. 1. The petitioner being aggrieved preferred an appeal before the Federal Service Tribunal vide appeal dated 14.6.2000 and also approached the Ministry of Ports & Shipping, who vide its memorandum dated 29.3.2001 by exercising powers under Section 79-A of the Karachi Port Trust Act, 1886, directed the respondent No. 1 to modify its order, whereby the petitioner’s services were terminated and also rejected the decision of such termination. The petitioner's appeal was also pending before the Federal Service Tribunal and during such pendency, the Ministry of Ports and Shipping had issued its Memorandum dated 29.3.2001, whereafter the Service Tribunal vide its order dated 6.2.2002, keeping in view the directions of Ministry of Ports & Shipping dated 29.3.2001, had allowed the appeal of the petitioner by directing the respondent No. 1 to reinstate the petitioner in service in the same position which was being enjoyed by the petitioner, prior to its termination along with all back benefits. The said judgment of the Federal Service Tribunal dated 6.2.2002 was impugned by the respondent No. 1 before the Hon'ble Supreme Court, by filing a Civil Petition for Leave to Appeal bearing No. 347-K/2002, however, did not pursue the same diligently, and resultantly the Hon'ble Supreme Court vide its order dated 2.8.2004 was pleased to dismiss the same in the following manner:-
"Neither the petitioner nor ASC or the AOR for the petitioner have entered appearance. It seems that, after reinstatement of the respondents, petitioner Trustees of the Port of Karachi have lost interest in these petitions, which are accordingly dismissed for lack of prosecution."
7. Thereafter the petitioner was reinstated into service. However, subsequently, it has been once again alleged that the petitioner was involved in theft of diesel worth Rs. 27066/- on 2.02.2008, therefore, the petitioner was issued a charge sheet dated 9.8.2008 which was contested by the petitioner, wherein the constitution of the Inquiry Committee was challenged by the petitioner. Subsequently, the Ministry of Ports & Shipping in response to letter dated 17.12.2008 of Respondent No.1, advised vide its letter dated 01.01.2009, that in order to give a fair trial to the petitioner, it would be appropriate to reconstitute the inquiry committee with impartial members by excluding those against whom the petitioner had already filed Constitutional Petition before this Court. Thereafter another inquiry committee was constituted which again included an In-service Lieutenant Commander of Pakistan Navy, who was on deputation in KPT. The petitioner once again challenged and objected the appointment of such officer in the Inquiry Committee, as according to the petitioner, no useful purpose would be served by carrying on with the said Inquiry. The petitioner did not appear before the Inquiry Committee which continued against the petitioner Ex-parte, and such inquiry report dated 15.05.2009 concluded that charges against the petitioner stand established, whereafter a show cause dated 21.7.2009 was issued to the petitioner. However, before the proceedings could be finalized against the petitioner, the respondent No. 1 sought legal advice vide its letter dated 15.6.2010 from the Legal Advisor, who vide letter dated 19.6.2010 addressed to the Manager (Legal Affairs), Karachi Port Trust, observed that in view of several lacunae in the inquiry report dated 15.5.2009, it would be appropriate for the management to hold a fresh inquiry, as according to the learned Legal Advisor, if the matter goes to any Court of law, the findings of the inquiry committee/report will not be approved by any such Court of law. It further appears from the record that on the basis of such advise, another inquiry committee was constituted for conducting a fresh inquiry and the said inquiry committee, vide its report dated 16.6.2011 was pleased to hold that it would not be possible to ascertain any financial loss to KPT, as the total quantity of diesel received in the power house was much less than the consumed quantity of diesel, and therefore, it was not possible to ascertain any financial loss being caused to KPT due to any act of the petitioner. However, the Committee came to the conclusion that the petitioner did not render his service up to the requirement, and recommended that a warning be issued to the petitioner, for being careful and vigilant in future assignments.
8. On a careful examination of the entire record, it appears that after the first Inquiry report dated 15.5.2009, the petitioner was issued a show cause notice dated 21.7.2009, whereby explanation was sought from the petitioner on the basis of Inquiry Report dated 15.5.2009. It is pertinent to note, that no further substantial proceedings took place, pursuant to such show cause notice dated 21.7.2009, and in the meantime another Inquiry Committee was constituted in consonance to the advice of the Legal Advisor of Respondent No. 1. The said Inquiry was conducted thereafter and a report dated 16.6.2011 was issued, wherein it was concluded that the charges against the petitioner were not proved, and it was recommended that a warning be issued to the petitioner. Therefore, once a second Inquiry was conducted on its own by the Respondent No. 1, in which the petitioner stood exonerated, the show cause notice dated 21.7.2009 issued on the basis of Inquiry Report dated 15.5.2009 was no more in field and in fact for all practical and legal purposes, had abated and was non-existent in the eyes of law. In view of such position there was no reason with the respondents to hold the petitioner guilty of an alleged offence which was never proved and was rather dropped by the second Inquiry Committee in its report dated 16.06.2011. It is trite law that nobody shall be condemned unheard whereas, no adverse action shall be taken against a person unless he is confronted with the allegations and charges against him through a proper show cause. Whereas in the instant matter, after the second Inquiry dated 16.6.2011, there was no such show cause or charge sheet in field as the earlier show cause notice dated 21.7.2009 had already abated. Hence, the impugned order dated 10.9.2012 which has been passed on the basis of the earlier charge sheet dated 9.8.2008 and the show cause notice dated 21.7.2009 which were non-existent on that date, is without any lawful authority and without jurisdiction and cannot be sustained in law. On scrutiny of the impugned order dated 10.9.2012 it appears that the termination order has been passed against the petitioner on the same set of allegations which were not proved against the petitioner by the subsequent inquiry report dated 16.6.2011, wherein the maximum recommendation by the inquiry committee was issuance of a warning letter to the petitioner. It would be advantageous to reproduce the impugned order dated 10.9.2012 which reads as under:-
"KARACHI PORT TRUST
(ADMIN DIVISION)
NO. EC1690/2007/2133
Dated 10.09.2012
OFFICE ORDER
1. WHEREAS, in pursuance of exercise of powers conferred by the Chairman Directive # 01/2011 under Section 23 of the KPT Act of 1886 I, Rauf Akthar Farooqui, General Manager (Admin), Karachi Port Trust, after affording you, Lt Cdr (R) A. Aziz Narejo, P NO. 7197, AAE of M&EE Department, KPT, two opportunities of personal hearing on 25th Aug 2008 and 27th Feb 2012 by the Competent Authority, am of the opinion that the charges brought against you stand proved.
2. NOW WHEREAS, you were explained the charges levelled against you in the Charge Sheet, AND WHEREAS, after hearing you explanation given during personal hearing and in writing given by you in reply of Final Show Cause Notice, I find no cogent reason which justifies your 'Misconduct' of committing an act prejudicial to good order and service discipline in terms of KPT Offices &Servant (E&D) Rules 1973, you are guilty of Misconduct for the following:-
a) Illegally taking diesel of Power House East Wharf in your private Car Reg. NO. AC-4747, as you were caught red handed on 02.02.2008 at about 0910 Hrs and during tenure from July 2007 to 02.02.2008 of posting as AEE Power House East Wharf Karachi.
b) Giving unlawful directives to staff to transfer Diesel Oil of Power House (E/Wharf) in your private car Reg. NO. AC-4747.
c) Wilful disobedience for not appearing before the preliminary committee thereby refused to comply lawful orders of KPT management.
d) Illegal use of diesel oil of power house East Wharf in y our private car/vehicle causing loss to employer viz. KPT, amounting to Rs. 27066.25.
e) Involving yourself in a conduct prejudiced to good order, service discipline and unbecoming of an officer and gentleman.
3. NOW THAT, in view of the above you are hereby reverted with immediate effect (being adhoc employee) in terms of SL-7 Esta Code 2012 which includes termination of Service.
4. Please acknowledge receipt.
Sd/-
RAUF AKTHAR FAROOQUI
GENERAL MANAGER (ADMIN)"
9. On perusal of the above it appears that the petitioner was allegedly granted personal hearing on 25.8.2008 and 27.2.2012 by the competent authority and it has been further stated that in the opinion of the General Manager (Administration) the charges brought against the petitioner stand proved. It is an admitted position which could not be controverted by the learned Counsel for the respondents, that no fresh show cause notice was issued to the petitioner after the second inquiry report dated 16.6.2011, and the impugned order has been passed on the basis of earlier charge sheet dated 09.08.2008 and show cause notice dated 21.07.2009. It has been further noted with concern that in fact, while holding the petitioner guilty of misconduct through the impugned order dated 10.9.2012, the General Manager (Administration) has reproduced the contents of the earlier charge sheet dated 9.8.2008 and the show cause notice dated 21.07.2009 verbatim, despite the fact that thereafter another inquiry was conducted and report dated 16.06.2011 was available on record which concluded that the charges could not be proved against the petitioner and Inquiry Committee had recommended that only a warning be issued to the petitioner. In our opinion, the impugned order dated 10.9.2012 is not based on proper appreciation of facts and application of an independent mind as the same has been passed on the basis of an inquiry report which was no more in field. In view of such position the petitioner cannot be saddled with a harsh penalty of such grave nature whereby the petitioner has been terminated from service on the basis of an inquiry which is non-existent in the eyes of law. At the most, the petitioner could have been served with a fresh show cause notice on the basis of the subsequent inquiry report which had recommended issuance of warning to the petitioner, whereafter proper proceedings could have been concluded in accordance with law. If the impugned order is sustained, then the same would amount to double jeopardy to the petitioner, which cannot be allowed or permitted in the instant matter. If any authority is needed we may refer to the case of Ghulam Mustafa Khan Vs Federation of Pakistan and another reported in 2010 PLC (C.S) 426 in which one of us namely Aqeel Ahmed Abbasi J., was also a member and speaking for the Division Bench has observed as follows:
“It appears that the respondent considered it as licence 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 Honourable 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 career of the petitioner. Under the fact and circumstances 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 enquiry on the same fact 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.”
10. In view of hereinabove facts and circumstances, we are of the view that the impugned order 10.09.2012 cannot be sustained and is hereby set aside and the respondents are directed to reinstate the petitioner in service with all back benefits accrued to the petitioner during this period. Consequently, instant petition was allowed by us vide short order dated 29.8.2014 by setting aside the same and these are the reasons in support thereof.
11. Petition stands allowed in the above terms.
J U D G E
J U D G E