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Petitioner: WALL AHMED KHAN VS Respondent: GOVERNMENT OF SIND AND 6 OTHERS
Court Name: Sindh High Court Judge(s): Ajmal Mian, Z.C. Valiani Title: WALL AHMED KHAN vs GOVERNMENT OF SIND AND 6 OTHERS Case No.: Constitutional Petition No, 177 of 1977 Date of Judgment:1981-05-31 Reported As: 1982 PLC (C. S.) 1 Result: Suit remanded
JUDGMENT
JUDGMENT ' Ajmal MIAN, J.-(1) The petitioner through this petition has prayed for the following reliefs: (i) "This Hon'ble Court is pleased to declare that the petitioner is governed by the Rules set out in para. 3 of this petition and that the amendments made by the Chief Engineer of the K. D. A. In the Recruitment Rules, 1953, vide his Office Memo. No, F. 1 (42)-Estt.II./60 dated 3th/9th July, 1960 (Annexure 'G') are without jurisdiction or lawful authority and are null and void. (ii) This petitioner further prays for direction from this Hon'ble Court to be addressed to Respondents Nos. 1 and 2 requiring them to restore to the petitioner his rank, status, cadre and pay scale to which the petitioner could be entitled but for the unlawful amendments made in the Recruitment Rules by the Chief Engineer, K. D. A. In July, 1960 and to provide to the petitioner all such benefits and advantages as the petitioner would be entitled to but for the said unlawful amendments in the Recruitment Rules. (iii) The petitioner prays for direction addressed to the respondents and 2 to implement the assurance given to the petitioner by the respondent No, 2 (Annexures "F", "H" and "N") to this petition. Lastly, the petitioner prays for an order declaring the charge sheet dated 5th January, 1977 (Annexure `Z-2') and the proceedings initiated thereunder against the petitioner to be without lawful authority and also mala fide. (iii-A) The petitioner prays for a declaration that the order dated 25th August, 1980 (Annexure Z/12) removing the petitioner from the service of the K. D. A. Is ultra vires, illegal, mala fide and without lawful authority and the petitioner be directed to reinstate-in service with all due seniority, rights and back benefits.
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(iv) The petitioner prays for such other or alternative reliefs as to this Hon'ble Court may, in the circumstances of the case, appear just and proper and (v) Costs of the petition are also prayed." 2. (a) The brief facts leading to the filing of the above petition are that the (petitioner entered into the service of the then Karachi Joint Water Board (hereinafter referred to as the K.J.W.B.) a statutory body constituted under the Ordinance XIII of 1949. He continued to serve K.J.W.B. Until the same was merged with the K.D.A. Constituted under the President's Order V of 1957, whereby the services of the petitioner were transferred w,e,f, 14th March, 1958 on the same terms and conditions, benefit and privileges, which he was enjoying. It has been averred by the petitioner, that on 16th July, 1957 the petitioner was specially deputed by the Finance Adviser of the K.J.W.B to scrutinize and to report as to the irregularities and fraud alleged to have been committed by the staff of the Pay and Account Office of the Circle Division, in respect of the purchases made by them. As a result of the scrutiny of the record, it was allegedly found that huge amount had been misappropriated. It has been further averred that the respondent No, 3, which is presently working as the Director (Finance and Accounts) K.D.A. Along with other officers and staff were found involved in the aforesaid alleged irregularities. In consequence of the submission of the report by the petitioner, the persons involved were sent up for trial in the Anti-Corruption Court, but during the trial, one of the main co- accused had died. After that another co-accused, namely, Syed Ibne Ali Zaidi, presently working as a Superintendent in the Accounts Department moved them. Supreme Court of Pakistan for the abashment of the proceedings and, thereafter, the proceedings were quashed. It has also been averred that in this connection the services rendered by the petitioner were commended by the relevant authorities and the petitioner was issued a letter of appreciation dated 6th January, 1958. It has been further averred that the Officers, who were involved in the aforesaid embezzlement were inimical to the petitioner and this animosity grew with the lapse of time and they exerted influence and presume to spoil the service record of the petitioner. Consequently the petitioner was involved in the month of November, 1959 in the alleged false and fabricated case resulting in the suspension of the petitioner. But eventually the petitioner was honourably acquitted line the year 1969. It has also been asserted that during the period which lapsed between the date of suspension and the re-instatement to the post of Superintendent, Circle Office, the respondent No, 2, that is, the K.D.A. Appointed and promoted certain Officers to various posts allegedly in flagrant contravention of Recruitment Rules then in force in the K.D.A. It has also been averred that the petitioner made representations against the aforesaid appointments and promotions effected by the Authority, but in reply he was informed by the respondent No, 2 through his letter dated 1st March, 1960 that his case was not considered, as he was under suspension and because of the pending Court proceedings against him. He was also informed that upon the termination of the Court proceedings in favour of the petitioner and re-instatement, his case would be considered. (b) It has been further averred that the Chief Engineer (Water) K.D.A. Vide his Memo. No, F- 1(42)/Estt.-II/60 dated 8th/9th July, 1960 unauthorisedly and illegally amended the Recruitment Rules, 1953 by his executive order in spite of the restrictions imposed by Article 120(2)(ii) of the K.D.A. Order, whereby the post of Superintendent held by the petitioner on permanent footing with effect from 7th November, 1958, was downgraded and brought below the rank, category, status and petition of the Office assistant, with the result that a new channel of promotion to the post of Superintendent Circle Office, and that of the Office assistant was prescribed. In pursuance of the aforesaid unlawful amendment of the Rules the petitioner was offered a post of office assistant and that the Deputy Secretary (Establishment K.D.A. By his office memorandum No, F-II- Estt.-12/(2)/62/Volume-1/7572 dated 22nd August, 1962 informed the petitioner that he would be entitled to the pay scale of Superintendent with effect from 7th November, 1958 as prescribed by the Government of West Pakistan and also to the promotion to the post of Assistant Secretary with
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effect from 16th January, 1960, in case the amendment made by the Chief Engineer, K.D.A. Was not acceptable by the Central Government. However, the petitioner declined the aforesaid offer. The question of fixation of the petitioner's pay and his representations against the aforesaid illegal amendment of the Rules by the Chief Engineer came up for consideration from time to time before the various authorities, who appreciated the services rendered by the Petitioner but expressed their liability to grant the petitioner lawful dues and promotion because of the amendment in the Recruitment Rules by the Chief Engineer. The petitioner, also filed a representation before Governing Body, K.D.A. On 31st July, 1968 which was rejected vide resolution No, 56 dated 11th August, 1969 in the following terms "To reject the representation put forward by the Circle Office Superintendents to further revise, their pay scale. They, however, have the option to retain their old Sind Government scale, if they are at a loss in adopting the new scales." ' It has been averred that since the petitioner was aggrieved by the aforesaid resolution of the Governing Body, denying him his entitlement to the proper scale of pay the post of Superintendent, he on 22nd July, 1970 preferred an appeal to the respondent No, 1, which ultimately came up before the Secretary, Local Government. The above appeal was duly entertained, processed and parawise comments were sent for from the respondent No, 2 and that while submitting the parawise comments to certain documents were discussed by the respondent No, 2, but the Government pointed that the said documents were available on the departmental files. Eventually the above appeal came up before the Secretary, Local Self-Government Mr. Mazhar Rafi, who finally passed the order holding that appeal did not lie to the Provincial Government, which decision was conveyed to the petitioner on 26th April, 1975 vide letter dated 20th March, 1975. (c) The petitioner on 20th April, 1975 submitted a representation to the Chief Secretary of the respondent No, 1 against the decision of the Secretary (LG). Thereupon, the Chief Secretary called for parawise comments from the Secretary (LG). The petitioner made another representation on 10th July, 1975 to the Chief Secretary of the respondent No, 1 followed by an application on 22nd July, 1975 and finally on 26th February, 1976. The petitioner also submitted a protest petition (against the order of the Secretary (LG) in respect of the long outstanding grievances to the authorities, namely, Government of Sind, Chief Minister of Sind and Minister for Local Government of Sind which reached the Secretary (LG), who in turn called upon the petitioner to explain, as to why he had submitted his protest direct to the authorities and that how the petitioner had obtained the Government and the K.D.A. Correspondence. In response to the above notice, the petitioner submitted the explanation dated 4th May, 1976, while the matter was still pending with the Provincial Government, the petitioner was served with an office memo. Dated 8th November, 1976, whereby he was promoted to the post of the Assistant Accountant, and was informed that non- acceptance of the post would be indicative of his mala fide and that he would be transferred to other equivalent post if the petitioner declined to accept. The petitioner in his representation to the higher authorities also pleaded mala fide against the officers, Aqeel Ahmed Siddiqui (respondent No, 5). Mohammad Manzoor Ahmed, Director (Finance Accounts) respondent No, 3 and Saghir Ahmed Chishti, Deputy Chief Administrative Officer, K.D.A. (respondent No, 4) who allegedly attempted to harm the petitioner for ulterior motive. Subsequently, on 7th January, 1977 the petitioner was served with a charge sheet dated 5th January, 1977, together with the statement of allegations of the alleged charge of misconduct by the Director-General K.D.A., who also appointed an enquiry Officer to hold formal enquiry against the petitioner and that the grounds upon which the charge sheet was based were that the petitioner submitted his protest petition dated 26th June, 1976, direct to the authorities, namely Government of Sind, Chief Minister of Sind, Minister of Local Bodies, Government of Sind. Upon receipt of the above charge sheet, the petitioner filed the above writ petition inter alia challenging the above charge-sheet on the grounds mentioned
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therein, which included the competency of the Director-General to issue the charge sheet, or to appoint an Enquiry Officer. It may be pertinent to mention that upon filing of the above petition this Court by a consent order dated 27th May, 1977 ordered that the enquiry proceedings against the petitioner may proceed, but no adverse order shall be passed. However, while the above petition was pending disposal the respondent No, 2 on or about 20th June, 1979 served upon the petitioner with a fresh show cause notice against the allegations listed in the memorandum attached to the said show cause notice. It has been averred that the second show-cause notice served for the different language, in which it was couched, had embodied materially the same allegations, which were the subject matter of the first show cause notice dated 5th January, 1977. Upon the receipt of the above second show cause notice the petitioner filed Misc. Application No, 2566/79 for an ad interim injunction for restraining the respondent No, 2 from giving any effect whatsoever, to the said show cause notice of which a notice was ordered by this Court to the respondent but the above application was not heard for one reason or the other and that the above application was fixed for hearing alongwith the petition for regular hearing. It has been further averred that when the case came up for hearing alongwith the above application, one of the dates, the respondent requested and obtained an adjournment. Thereupon, the learned counsel for the petitioner invited the attention of the Court to the Order dated 29th October, 1979 and also to the subsequent orders and also expressed his apprehension that unless proceeding in respect of the second show-cause notice would not be stayed the petitioner might be removed from service. Thereupon, the Court had allegedly observed that they did not believe that the second respondent would be so indiscreet. While the above constitutional petition was pending, the petitioner received an Office memorandum dated 25th August, 1980 informing him that his reply to the show cause notice dated 20th June, 1979 had been found unsatisfactory and that he has been removed from the K.D.A. Service with immediate effect. Upon the receipt of the above memo the petitioner applied for the stay of the operation and also requested for the amendment of the petition. The petitioner's prayer for permission to amend the main petition was allowed and in consequence thereof the amended petition was filed on 22nd September, 1980 wherein the aforesaid removal order was also challenged. 3. (a) The respondent No, 2 filed a counter-affidavit dated 14th November, 1977 to the main petition. However, upon amendment of the petition an additional counter-affidavit dated 12th January, 1981 was also filed on the aforesaid date. The respondent No, 2 in their aforesaid counter affidavits have averred that the decision of the petition requires consideration of complicated and disputed questions of fact which cannot be decided without oral and/or documentary evidence and that the petitioner ought to have filed a civil suit before Civil Court instead of invoking the constitutional jurisdiction of the Court. It was also averred that in fact the petitioner had filed the Civil Suit before a Civil Court bearing No, 470/66 on 23rd October, 1966 seeking a declaration that he was entitled to be promoted to the post of Head Clerk from 4th December, 1952, to the post of Assistant Circle Office Superintendent from 30th May, 1953 to the post of Circle Office Superintendent from 7th November, 1958 and to the post of Superintendent, Chief Engineer's Office from 20th April, 1966, and that the petitioner had further sought a mandatory injunction in the aforesaid suit for a direction that he should be promoted to the post of Superintendent, Chief Engineer's Office or its equivalent post. The above suit was dismissed somewhere in 1971/1972 and that the petitioner was not entitled to file petition on similar foundations which were the basis of the suit. It was also averred that the petitioner was facing departmental enquiry for misconduct, for illegality having access to the possession of the confidential Government documents. It was further averred that at the time of merger of KJWB with the K.D.A. The petitioner was holding the post of provisional storekeeper and that the petitioner was never promoted as Superintendent and that no cadre/post of Superintendent Circle Office, existed with neither the K.D.A. Nor it exists at present. It was averred
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that the petitioner was promoted as Circle Office Superintendent on 20th February, 1961. The Chief Engineer (Water) K.D.A. Was neither competent nor he actually amended KJWB non-technical (nongazetted) Staff Recruitment Rules,1953, as framed by the Government or that because of the above amendment another channel of promotion to the post of Superintendent Circle Office, assistant were prescribed. The post held by the petitioner was of the Circle Office Superintendent, which was for below the post of Superintendent and even one step below the post of assistant, according to KJWB Rules. It was also denied that the petitioner was denied the promotion because of the unlawful amendment in the year 1960 by the Chief Engineer in the Recruitment Rules. It was reiterated that no amendment was made. It was also averred that no appeal was competent under the provisions of KJWB appeal Rules of 1956 or of 1953 after the merger of KJWB with the K.D.A., nor any appeal was competent to the Chief Secretary. It was also averred that the petitioner was rightly called upon to show as to how he laid his hand over the documents which he could not have access of possession of. In para. 45 of the first counter-affidavit, it was averred that the petitioner in Suit No, 470/66 did not refer to the so-called documents filed as Annexures A to G and I to N, nor raised any plea on the basis of the aforesaid documents, It was also averred that so such documents exist or existed. (b) in the additional counter-affidavit reference to the various representations made by the petitioner directly to the higher authorities has been made. It has been averred that the petitioner in his aforesaid appeals/representations gave details of certain confidential correspondence between the Secretary, Local Government and the KDA the copies of which were not endorsed to the petitioner and also made reference to certain other documents, to which he was not expected to have access and that he made certain false and frivolous and mischievous allegations against the senior Officers of the KDA. It has been denied that the second show-cause notice relates to the same allegations, which were the subject matter of the first charge sheet. It has also been averred that the second show cause notice was based on the allegations, which had no connection with the accusations made in the first charge-sheet. It has been denied that the petitioner services were governed exclusively by the KJWB Rules. It has further been averred that the rules framed under KJWB Ordinance, 1949, were saved so far as these were not inconsistent with the KDA Order, 1957 and that the services of the petitioner were governed by the KDA Order and the service regulations made thereunder. It has been further averred that the petitioner was holding the post of Circle Office Superintendent and his grade was equivalent to Gr. 10 of the revised National Pay Scales, 1977, and that the competent authority to take action against the Petitioner was the Director-General under Article 8 of the KDA Order, 1957, as amended, and that the allegation that the action ought to have been taken by the Chairman of the Department is misconceived and untenable. It has also been averred that under Article 8 (3), the appeal lies the governing body of the KDA against the decision of the Director-General and that the petitioner having not availed of the remedy available to him is not entitled to invoke the constitutional jurisdiction. It has been averred that the question of the petitioner's promotion was the subject-matter of suit No, 470/66 filed by him which was later dismissed and that many pleas now raised in the Petition were not taken by the petitioner in the suit. 4. (a) In support of the above Petition, Mr. Mohd. Ali Sayeed learned counsel for the petitioner has made the following submissions:- (1) That in view of the statement made by the respondent No, 2 in para. 15 of the counter-affidavit to the effect that the Chief Engineer (Water) had not amended the Recruitment Rules in 1960 and that he was not competent to make any such amendment, the petitioner is entitled to all the benefits/promotions, which were withheld on the assumption that the above Recruitment Rules were amended by the Chief Engineer in 1960.
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(ii) That the first charge-sheet dated 5th January, 1977 was ex facie without jurisdiction' i,e,, quoram non judice inasmuch as the Director-General, KDA had no power to issue the above charge-sheet as the Petitioner continued to be subject to the KJWB Rules, 1956. (iii) That the show cause notice dated 12th June, 1979 also issued by the Director-General, KDA is also without jurisdiction for the aforesaid reason. (iv) That even otherwise, the aforesaid second show-cause notice dated 20th June, 1979 was issued mala fidely more or less on identical allegations, which were the subject-matter of the first charge-sheet with the object to frustrate the above petition and the stay granted by this Court and therefore, any action in pursuance thereof is void and Without jurisdiction. (v) That the dismissal of the petitioner without providing a reasonable opportunity to the petitioner to meet the charges is against the principle of natural justice. (vi) That in view of the fact that the respondent No, 2 is a local authority a petition for re- instatement in service against the aforesaid respondent is competent in view of the language employed in Article 199 of the Constitution, particularly, because of the definition of the word 'person' given therein. (vii) That in any case the petitioner would be satisfied if this Court would only give a declaration to the effect that removal of the petitioner from service is without lawful authority. (b) On the other hand, Mr. Ali Ahmed Fazeel, the learned counsel for the respondent has made the following submissions:- (i) That the Petition suffers from laches inasmuch as the alleged amendment in the Recruitment Rules was made by the Chief Engineer in 1960. (ii) That the petitioner after having filed Suit No, 470/66 is the Court of IIIrd Civil Judge, at Karachi in respect of the alleged cause of action allegedly accrued to the petitioner on account of the degrading of the post of Superintendent in Circle Office, no relief can be granted in respect thereof in the above petition. (iii) That under Article 120 (2) (ii) read with Article 8 (2) of the KDA Order only those rules of the Karachi Joint Water Board Rules, 1956, were saved, which were not inconsistent with the provisions of the aforesaid Order, and therefore, the Director-General of the KDA was competent to issue the charge-sheets and show-cause notice to the Petitioner in view of Article 8 (2) of the KDA Order. (iv) That no writ can be filed against a show-cause notice. (v) That since the Petitioner was not holding a public Office a writ of mandamus for restoration of the Office is not competent. (vi) That the action of issuing of the above show-cause notice dated 20th June, 1979 with the statement of allegations was not mala fide. (vii) That in view of Regulation No, 71 of the KDA Employees Service Regulations, 1973, it was not incumbent to hold any enquiry before passing of the impugned order of dismissal. (viii) That the Petitioner has not availed of alternate remedy by way of appeal against the dismissal order and, therefore, the Petition is not competent. 5. (a) Before dealing with the contentions of the learned counsel for the parties on merits, it may be appropriate to take up the question of 'aches. IL this regard it may be noticed that the petitioner has claimed various reliefs in be Petition. In my view the doctrine of laches cannot be pressed into service in respect of the reliefs pertaining to the first charge sheet and the second charge sheet show cause notice, and the order of dismissal from the services, whereas the petitioners' reliefs in respect of the alleged illegal amendment of the Recruitment Rules in 1960 by the Chief Engineer prima facie seem to suffer from laches. It may be pertinent to observe that the alleged amendment in the Recruitment Rules was made by the Chief Engineer on 8th July, 1960 (annexure G to the Petition). The petitioner's various representations were rejected prior to the filing of the suit
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in 1966. However, it has been urged by Mr. Muhammad Ali Sayeed that the superior Courts have overlooked the delay of number of years in cases in which justice so demand. ' In support of his contention on the question of laches. Mr. Fazeel has referred to the case of Shaikh Shaida I. Rasul Siddiqui v. Chief Engineer, Irrigation Department, West Pakistan and another (1) and the case of Muhammad Latif v. Settlement Commissioner and others (2). Whereas Mr. Muhammad Ali Sayeed has referred to the case of Pakistan v. Shaikh Abdul Hameed (3), the case of Chairman, District Screening Committee v. Sharif Ahmad Hashmi (4), the case of MI s. Lever Bros. (Pak.) Ltd., Karachi v. Market Committee, Rahimyar Khan (5) :- (1) With reference to 1960 Lahore case, it may he observed that the petitioner in the aforesaid case was a Zilladar in the Irrigation Department of the Government of West Pakistan. The Petitioner's services were terminated under the Public Conduct (Screening) Ordinance, 1959, on…
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