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Petitioner: FIDA HUSSAIN VS Respondent: CHAIRMAN BOARD OF INTERMEDIATE AND SECONDARY EDUCTION, MULTANHonorable Justice Syed Iftikhar Hussain ShahAbdul Rasheed Sheikh,Sh. Shahid Waheed
2012 P L C (C.S.) 483
[Lahore High Court]
Before Rauf Ahmad Shaikh and Syed Iftikhar Hussain Shah, JJ
FIDA HUSSAIN
Versus
CHAIRMAN BOARD OF INTERMEDIATE AND SECONDARY EDUCTION, MULTAN and another
Review Application No.2 of 2007 in Writ Petition No.551 of 2006, heard on 25th October, 2011.
(a) Government Servants (Efficiency and Discipline) Rules, 1973---
----Rr. 4, 5 & 6---Constitution of Pakistan, Art.199---Civil Procedure Code (V of 1908), S.114 & O.XLVII, Rr.1 & 2---Review of High Court judgment---Dismissal from service---Leakage of examination papers---Applicant served as a senior clerk in the Board of Intermediate and Secondary Education (Board), for last 14 years---Question paper of Chemistry-II of Intermediate examination for the year 1998 was leaked because of which said paper could not be conducted and same was replaced and regular inquiry was initiated---Applicant and his three other colleagues were served with charge sheet and during inquiry a report was prepared in which the applicant was found guilty---Upon submission of inquiry report, authorized officers served the applicant with a show-cause notice for major penalty of dismissal from service---Applicant submitted his reply to the show-cause notice and alleged that no incriminating evidence was available against him and the report of the inquiry officer was based on surmises and conjectures and also requested that the matter be probed through proper handwriting expert---Authorized officer imposed major penalty of dismissal from service, whereafter, committee of three members constituted by the Board, through its order, recommended dismissal from service of applicant and three other persons---Applicant preferred departmental appeal against his dismissal before Provincial Secretary Education Department (Higher Education), which vide its order also rejected applicant's appeal---Applicant assailed both the orders through constitutional petition, which was also dismissed---High Court in constitutional petition had thoroughly examined the record, appreciated the contentions raised by applicant and minutely examined the inquiry report and also considered the case- law produced by the counsel for the applicant and thereafter dismissed the constitutional petition---High Court while considering the constitutional petition had observed that during inquiry, the inquiry officer had observed all the formalities required under Rr.4, 5 & 6 of Government Servants (Efficiency and Discipline) Rules, 1973, had framed charge, obtained reply, recorded the evidence in support of the allegation, allowed the applicant to cross-examine the witnesses and to produce the evidence in rebuttal in his defence---Applicant had not brought on record any fresh material entitling him for review of the impugned judgment and there was no point of law which escaped notice of High Court while deciding the constitutional petition---Applicant having failed to point out any cogent reason and legal justification for the review of the impugned judgment, his review application was dismissed.
PLD 2006 SC 175; 2001 SCMR 256; PLD 1998 SC 363; PLD 2006 SC 175; 2008 SCMR 763; 2008 SCMR 723; 1991 SCMR 2330; PLD 1973 SC 110; PLD 1989 SC 335; 2006 PLC (C.S.) 110; 2000 PLC (C.S.) 678; Jan Muhammad v. General Manager Karachi 1993 SCMR 1440 and Federation of Pakistan v. Noor Jamal 2004 SCMR 294 ref.
(b) Punjab Board of Intermediate and Secondary Education Act (XIII of 1976)---
----Ss. 20 & 21---Constitution of Pakistan, Art.199---Dismissal from service---Constitutional jurisdiction of High Court---Scope---Applicant was an employee of the Board of Intermediate and Secondary Education and was dismissed as a result of disciplinary proceedings against him and departmental appeal filed by applicant was also dismissed---Rules and Regulations framed by the Board of Intermediate and Secondary Education, governing the terms and conditions of its employees, under Ss.20 & 21 of the Punjab Board of Intermediate and Secondary Education Act, 1976 were not statutory rules, therefore the orders of dismissal of the applicant could not be interfered by invoking the constitutional jurisdiction of the High Court.
2000 PLC (C.S.) 678 rel.
(c) Civil Procedure Code (V of 1908)---
----S. 114 & O. XLVII, Rr.1 & 2---Review application---Scope---Powers of review are quite limited which are exercised quite sparingly and only in exceptional cases in which some important aspect of the matter escaped notice of the court or was not considered and as such error was apparent on the judgment under review.
Abdul Rasheed Sheikh for Appellant.
Sh. Shahid Waheed, Legal Adviser for Respondent No.1.
Date of hearing: 25th October, 2011.
JUDGMENT
SYED IFTIKHAR HUSSAIN SHAH, J.--- The petitioner Fida Hussain has filed this review application under section 114 read with Order XLVII, Rules 1 and 2, C.P.C. of the Code of Civil Procedure 1908 for the review of order dated 25-1-2007 passed by the learned Single Judge in Chamber in Writ Petition No.551 of 2006.
2. Learned counsel for the petitioner has contended that during inquiry, rules Nos.4, 5 and 6 of Government Servant (Efficiency and Discipline) Rules, 1973 were violated; that the petitioner was not given personal hearing and he was not provided an opportunity to produce oral as well as documentary evidence; that the portion of statement of the petitioner that figure "3" appearing on the envelop was resembling with the figure appearing on page "8" of the statement, was denied by the petitioner but the same has been treated and considered as admission which is in violation of the dictum laid down in "PLD 2006 SC 175"; that the report of handwriting expert was not obtained by the inquiry officer and without the expert opinion, the statement of the petitioner could not be treated as admission in view of the case-law supra; that the petitioner has denied on oath about the allegation of his involvement in leakage and the figure "3" is not in his hand; that the expert opinion was necessary before imposing the major penalty but this aspect of the case was not considered; that the authority has not given any show-cause notice or an opportunity of personal hearing to the petitioner and has acted counter to the guidelines laid down by the Hon'ble Supreme Court in "2001 SCMR 256"; that the additional and alternate prayer of the petitioner was not taken into account; that the penalty of dismissal from service imposed on Riaz Bashir was reduced to the reduction of grade but the same was not considered while deciding the writ petition and passing the order required to be reviewed. Relies on "PLD 1998 Supreme Court 363", "PLD 2006 Supreme Court 175", "2008 SCMR 763 [Supreme Court of Pakistan]", 2008 SCMR 723", 1991 SCMR 2330", "PLD 1973 Supreme Court 110" and "PLD 1989 Supreme Court 335".
3. On the other hand, learned counsel for respondent No.1 has contended that the learned Judge in Chamber has considered all the contentions of the petitioner and has dismissed the petition vide an elaborated judgment dated 25-1-2007; that no fresh material has been produced by the petitioner on the file justifying the review of the aforesaid judgment. Furthermore, the Service Rules of the Board of Secondary Education, Multan are not statutory in nature; therefore, no writ petition was competent. Learned counsel for respondent No.1 has relied upon "2006 PLC (C.S.) 110 [Supreme Court of Pakistan]" and "2000 PLC (C.S.) 678 [Lahore High Court]".
4. We have heard the learned counsel for the parties and have also gone through the judgment under review.
5. The petitioner Fida Hussain was serving as a Senior Clerk in the Board of Intermediate and Secondary Education, Multan from last 14 years. There was a leakage in the Question Paper of Chemistry-II of Inter-examination in year 1998, therefore, the said paper could not be conducted and the same was replaced and regular inquiry was initiated. The petitioner and his three other colleagues were served with the charge sheet and they denied the allegations and their involvement in the leakage of the paper, however during inquiry the petitioner was found guilty vide report dated 10-2-2001.
6. After the submission of inquiry report, the authorized officer served the petitioner with a show-cause notice for major penalty of dismissal from service. The petitioner submitted reply to the show-cause notice and alleged that no incriminating evidence was available against him and the report of the inquiry officer is based on surmises and conjectures. It was also requested that the matter be probed through finger print expert. The authorized officer imposed the major penalty of dismissal from service vide his report dated 26-2-2001. Thereafter, a committee of three members constituted by the Board, recommended dismissal from service of four persons vide order dated 27-7-2001.
7. The petitioner preferred departmental appeal before respondent No.2, Secretary Education Department (Higher Education), Government of Punjab, Lahore against his dismissal, which was also rejected vide order dated 3-1-2006. Thereafter, both the orders dated 27-7-2001 and 3-1-2006 were assailed through the writ petition.
8. Learned Judge in Chamber had thoroughly examined the record, appreciated the contentions raised by the learned counsel for the petitioner and observed that during inquiry, the inquiry officer observed all the formalities required under Rules 4, 5 and 6 Government Servant (Efficiency and Discipline) Rules, 1973, framed charge, obtained reply, recorded the evidence in support of the allegation, allowed the petitioner to cross-examine the witnesses and to produce the evidence in rebuttal in his defence, minutely examined the inquiry report and also considered the case-law produced by the learned counsel for the petitioner especially case-law titled "Jan Muhammad v. General Manager Karachi (1993 SCMR 1440)" and "Federation of Pakistan v. Noor Jamal (2004 SCMR 294)" and thereafter dismissed the writ petition.
9. All the contentions raised by the learned counsel for the petitioner were raised at the time of hearing of writ petition and were duly considered while passing judgment dated 25-1-2007. No fresh material has been brought on record or has been pointed out by the learned counsel for the petitioner entitling him for the review of the impugned judgment. The powers of review are quite limited which would have been exercised quite sparingly and only in exceptional cases in which some important aspect of the matter escaped notice of the Court or was not considered and such error was apparent in the judgment under review but in this case there is no such point of law which escaped notice of the learned Judge in Chamber while deciding the writ petition.
10. Furthermore, the petitioner was an employee of the Board of Intermediate and Secondary Education, Multan. He was dismissed from service as a result of disciplinary proceedings against him. The departmental appeal filed by him was also dismissed. The Rules and Regulations framed by the Board of Intermediate and Secondary Education, Multan governing the terms and conditions of its employees, under sections 20 and 21 of the Punjab Board of Intermediate and Secondary Education Act, 1976 are not statutory rules, therefore, the orders of dismissal of the present petitioner could also not be interfered by invoking the constitutional jurisdiction of this Court in view of the case-law reported as "2000 PLC (C.S.) 678". Learned counsel for the petitioner has failed to point out any cogent reason and legal justification for the review of the judgment dated 25-1-2007, as such the review application merits dismissal.
11. For what has been discussed above, the review application in hand is without any merits, the same stands dismissed.
M.W.A./F-1/L Review dismissed.