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Petitioner: M. ASLAM SYED VS Respondent: QUAID-E-AZAM UNIVERSITY, ISLAMABAD
1995 P L C (C
1995 P L C (C.S.) 1029
[Lahore High Court]
Before Raja Abdul Aziz Bhatti, .J
Dr. M. ASLAM SYED
Versus
QUAID‑E‑AZAM UNIVERSITY, ISLAMABAD
Writ Petition No. 171 of 1993, heard on 3rd April, 1995
(a) Quaid‑e‑Azam University Act (XXVIII of 1973)‑‑‑
‑‑‑‑S. 22‑‑‑Government Servants (Efficiency and Discipline) Rules, 1973, Rr. 8 & 18 [as adapted by Quaid‑e‑Azam University]‑‑‑Removal from service‑‑ Validity‑‑‑University Professor's leave application was not placed before Syndicate which was the Competent Authority to grant or refuse such application‑‑‑Where no other leave was available, Syndicate had the authority to grant leave out of "leave not due"‑‑‑Vice‑Chancellor, Registrar or any other authority had no competency to consider Professor's application and pass order of refusal thereon‑‑‑Mandatory requirement of placing Professor's application before Syndicate having not been fulfilled, proceedings against him were void ab initio, being not in accordance with law‑‑‑Edifice built by the University and proceedings concluded in removing Professor from service could not be considered to be valid under any provision of law.
(b) Quaid‑e‑Azam University Act (XXVIII of 1973)‑‑‑
‑‑‑‑Ss. 33 & 27(i)‑Government Servants (Efficiency and Discipline) Rules, 1973, Rr. 8 & 18 [as adapted by Quaid‑e‑Azam University]‑‑‑Removal from service‑‑‑Misconduct‑‑‑Proceedings for misconduct against University Professor‑‑‑Appointment of Professor Emeritus as Enquiry Officer‑‑ Validity‑‑‑Professor Emeritus could not be appointed as Enquiry Officer to hold inquiry and give findings which was purely an exercise of administrative and executive function‑‑‑Enquiry Officer's conduct even otherwise was not fair and impartial‑‑‑University having adapted Government Servants (Efficiency and Discipline) Rules, 1973, it was required to have notified "Authority" and "Authorised Officer" but same was not done‑‑‑Show‑cause notice and charge -sheet sent to Professor under the signatures of Registrar (who was not competent) had no legal authority‑‑‑Such procedure for holding inquiry had impaired validity of show‑cause notice and charge‑sheet completely‑‑ Additionally, show‑cause notice containing proposed action issued to Professor was also illegal and improper‑‑‑Penalty must have been specifically mentioned‑‑‑Enquiry Officer's desire to appear before Syndicate to pursue his report with a view to obtain desired result was acceded to, which indicated mala fides and departure from statutory requirements‑‑‑Removal from service was not warranted in circumstances.
(c) Quaid‑e‑Azam University Act (XXVIII of 1973)‑‑‑
‑‑‑‑S. 9‑‑‑Government Servants (Efficiency and Discipline) Rules, 1973, Rr. 8 & 18‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Removal from service‑‑ Departmental appeal‑‑‑Rejection of departmental appeal on the ground that Chancellor (Appellate Authority) could entertain no such appeal‑‑‑No opportunity of being heard was provided to University professor before passing order on his such appeal‑‑‑Rejection of departmental appeal in such a manner was against interest of justice.
(d) Quaid‑e‑Azam University Act (XXVIII of 1973)‑‑
‑‑‑‑S. 27‑‑‑Government Servants (Efficiency and Discipline) Rules, 1973, Rr. 8 & 18 [as adapted by Quaid‑e‑Azam University]‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Removal of Professor of University from service without show‑cause notice and without ‑valid inquiry‑‑‑Effect‑‑ Removal of Professor from service on basis of defective and invalid inquiry being bad in law, without jurisdiction, arbitrary and oppressive was declared to be ineffective in the eye of law;‑‑Professor was re‑instated in service from the date he was removed from service and he was also granted back benefits.
Bashir Ahmad Ansari for Petitioner.
Muhammad Munir Peracha for Respondent.
Date of hearing: 3rd April, 1995.
JUDGMENT
The brief facts of the case are that Dr. M. Aslam Syed the petitioner is qualified educationist having obtained degrees of MA. from Punjab University in 1968, M. Phil from Columbia University, New York U.S.A. in 1978 and Ph.D from Columbia University New York, U.S.A. also in 1978. He served as Lecturer in History in the Punjab University, Lahore and also in Quaid‑e Azam University. He was appointed as Associate Professor, Department of History, Quaid‑e‑Azam University, Islamabad in the year 1981. After some time, he was appointed as Professor of History in the same University in September, 1987. During the period from September, 198(1 to September, 1982 he had been visiting Professor; South Asia Regional. Studies, University of Pennsylvania, Philadelphia. From 1981 to 1988 he served as Visiting Professor in Islamic History at Harvard University, Cambridge, U.S.A. On 13‑10‑1988 while the petitioner was holding the post of Professor of History in the Quaid‑e‑Azam University, Islamabad, he was selected as Quaid‑e‑Azam Distinguished Professor in Columbia University, New York, USA, where he served up to 7‑1‑1991.
2. Before relinquishing the charge as Distinguished Professor in Columbia University, New York, U.S.A. on 26‑12‑1990 the petitioner applied for one year leave Ex‑Pakistan to the respondent. Instead of granting leave, the petitioner was directed to report for duty immediately and to that effect telegram dated 24‑2‑1991 and Letter No.7/73 Estt. 228, dated 26‑2‑1991 were sent to the petitioner under the signatures of Deputy Registrar (for Registrar). However, later on it was also pointed out to the petitioner by the respondent that no leave of any kind was available to his credit. During the interregnum period, the wife of the petitioner who is also a Government servant, was sent on deputation to the United Nations 4y the Government of Pakistan. She was posted in Thailand. The minor children of the petitioner were also with them. Because of these affairs the petitioner explained his inability to report for duty in pursuance of the aforesaid telegram and letter. Even on this the petitioner was not granted leave or permission to enable him to prepare for repatriation. On 22‑4‑1991 the petitioner received a charge‑sheet under the signature of the Registrar of the respondent with the allegation that he absented from duty with effect from 1‑1‑1991 and further levelled allegation that his absence was wilful and unauthorised. On the receipt of charge‑sheet, the petitioner submitted his reply on 10‑5‑1991. Quite surprisingly on 5‑6‑1991 the Registrar of the respondent sent show‑cause notice to the petitioner asking him as to why his services should not be terminated of his wilful and unauthorised absence from the duty for the aforesaid period and also for non‑compliance with the instructions of the University. According to the learned counsel for the petitioner, it was also mentioned in the letter that the respondent reserves its right for recovery of liquidated damages as per service bond executed by the petitioner for availing sabbatical leave at the Harvard University, Cambridge, U.S.A. Taking into count of the aforesaid factors and annoyance exhibited by the functionaries of the respondent, the petitioner joined duty as Professor of History with the respondent on 6‑7‑1991. The petitioner was allowed to resume duty on the same date (F.N.) in pursuance to the decision of the Syndicate of the respondent.
3. After the lapse of considerable period, on 23‑9‑1991 the petitioner was informed that Dr. Razi‑ud‑Din Siddiqui had been appointed as an Enquiry Officer to inquire into the petitioner's absence and he was directed to appear before the Enquiry Officer. In compliance with the direction, the petitioner appeared before the Enquiry Officer. The Enquiry Officer submitted his inquiry report to the Vice‑Chancellor of the respondent, who endorsed it to the Registrar vide letter dated 20‑11‑1991 with the direction to be placed before the Syndicate. The Vice Chancellor also informed the Syndicate that the Enquiry Officer desired to appear in person before the Syndicater, when his report already presented, is considered. On the other hand, the copy of the enquiry report was never sent to the petitioner. To the utter surprise of the petitioner the Enquiry Officer submitted second report in pursuance of Letter No.20‑7/73 Estt. 642, dated 28‑4‑1992 holding the petitioner's absence from 1‑1‑1991 to 5‑7‑1991 as wilful and unauthorised. Copy of the second inquiry report was also not given to the petitioner. He emphasized that regarding imposition of any penalty no show‑cause notice was issued to the petitioner after the submission of both the aforesaid reports. Ultimately on 1‑8‑1992 vide Notification No.20‑7/73 Estt. 1068 the petitioner was removed from service with immediate effect on the charge stated above i.e. unauthorised and wilful absence from duty."
4. Against the order of removal the petitioner filed review petition before the Syndicate challenging propriety and legality of his removal from service on 29‑8‑1992. But his review petition was rejected by the Syndicate vide Memo. No.20‑7/73 Estt. 1557, dated 30‑11‑1992. An appeal was preferred before the Chancellor President of Pakistan but it was not considered on merit being not competent as per order dated 10‑1‑1993 conveyed to the petitioner.
5. Through the present writ petition learned counsel assails the order dated 1‑8‑1992 of the respondent whereby the petitioner has been removed from service as Professor of History, Quaid‑e‑Azam University, Islamabad as being in the absence of lawful authority, arbitrary, discriminatory, harsh, oppressive, mala fide and ineffective on the rights of the petitioner inter alia on the following grounds:‑
(A) that in the case of granting or refusing leave Syndicate of the University is the only competent Authority. In the petitioner's case leave application was never considered by the Syndicate (Competent Authority) to grant or refuse the leave as provided by para.19(2) of the Service Statutes. As per Rules of Business of the Syndicate the leave application was to be considered and decided in the meeting of Syndicate. He further maintains that without having passed any legal and proper order regarding granting or refusing leave by the competent Authority, there is no cause of action to initiate disciplinary proceedings against the petitioner.
"(B). That the petitioner was informed that his request for leave was refused on the ground that no leave of any kind was due to the petitioner. As per contention of the learned counsel for the petitioner under the Service Statutes leave NOT DUE could also be granted for a period of 365 days. Even this aspect was neither considered nor brought to the notice of the Competent Authority.
(C). That under section 22(2) of the Quaid‑e‑Azam University Act 1973, it was the Syndicate alone who could suspend, punish and remove the petitioner from service and that too in the prescribed manner. But so far the requisite Rules "Prescribed Manner" have not been framed and adopted. Without framing that the very purpose of the Quaid-e‑Azam University Act, 1973 stands defeated and in such like action cannot be taken. Similarly section 27(i)(j) of the Quaid‑e‑Azam University Act 1973 provided that Statutes may be made to regulate or prescribe matters relating to efficiency and discipline of the University employees. But this requirement has lost sight of the respondent to regulate or prescribe the matter. Under section 27(2) ibid, however, the Civil Servants (Efficiency and Discipline) Rules, 1973 have been adopted, which as per contention has Statutory force in the matter of efficiency and discipline of the University employees and teachers.
(D). That in the case of the petitioner extreme penalty has been imposed that is the removal from service. But while issuing the charge‑sheet, the respondent failed to comply with the mandatory provisions of the Civil Servants (Efficiency and Discipline) Rules 1973. Learned Counsel further states that:‑
(i) No Authorised Officer was appointed by the Competent Authority.
(ii) No charge‑sheet was issued by 'any Authorised Officer.
(iii) The procedure required to be observed by the Enquiry Officer, was not deserved within the meaning of Rule 6 of the Civil Servants (Efficiency and Discipline) Rules, 1973.
(iv) No notice was issued to the petitioner for showing cause against the proposed punishment. '
(E) That it is quite interesting, which exhibits annoyance of the functionaries of the respondent that before appointment of an Enquiry Officer and any inquiry was held, charge‑sheet bearing No.20‑7/73 Estt. 466, dated 22‑4‑1991 was issued to the petitioner by the Registrar of the University. The Registrar is not competent to decide about the appointment of the Enquiry Officer and issue show‑cause notice and even to propose extreme penalty of the termination from service. But in spite of all this being unauthorised functionary of the respondent acted in the matter as an absolute authority, which is wholly illegal, mala fide and having no legal justification. Awfully in the matter, the Registrar of the respondent announced the decision to punish the petitioner before appointing an Enquiry Officer. The decision, so taken was neither by the Competent Authority nor by Authorised Officer.
(F). That in the similar matters the normal practice of the respondent is to grant leave for much longer period. It needed some time to make arrangements for the entire family to shift to Pakistan. The petitioner was not expecting that he would be given discriminatory treatment. The petitioner reported back and resumed the duty within 6 months. Resumption was allowed by the Syndicate. The petitioner rendered service creditably till 1‑8‑1992 when his services were terminated. Allowing to resume the duty by the Syndicate has waived the right of the respondent to take disciplinary action against the petitioner. Refusal to grant leave is discriminatory action because in the following c4ses the respondent granted leave for much longer period:‑
(a) Dr. M. Afzal, Professor of Chemistry, overstay for one year and 9 months.
(b) Dr. S.U. Sheikh, Associate Professor, Department of Chemistry overstay from two months and 13 days and again two months 21 days in the year 1983‑84. He was terminated and reinstated by the Syndicate under similar charge.
(c) Dr. Q.K. Ghori, Professor of Mathematics, overstay for one‑year 8 months.
(d) Dr. Naseer Ahmad, Professor of Chemistry, overstay for one year and four months.
(G) The learned counsel has also challenged the appointment of Professor Razi ud din Siddiqui as an Enquiry Officer on the ground that he was appointed as Professor Emeritus by the Syndicate under section 22(2)(0) of the Quaid‑e‑Azam University Act 1973. A Professor Emeritus cannot be assigned any administrative and executive duties.. Thus, his appointment as an Enquiry Officer inquiry is outside the jurisdictional ambit as required under Quaid‑e‑Azam University Act, 1973.
(H) That m the first report, the Enquiry Officer had not given finding as to whether the absence of the petitioner is unauthorised. After the lapse of five months, on the direction of the Registrar the Enquiry Officer gave finding vide his second report dated 9‑5‑1992, which was held in the absence of the 'petitioner that "absence" was wilful and unauthorised. This back ground leading to the ultimate finding by the Enquiry Officer compels to believe that the Enquiry Officer in fact applied with the wishes of the respondent's functionaries. Above all the petitioner was not provided opportunity to be heard, when the second inquiry was conducted and report prepared. Thus, the respondent violated the principle of Audi Alteram Partem. It was also evident that the Enquiry Officer unprecedently, on his own accord desired that he be allowed to appear before the Syndicate at the time, the report was to be submitted and considered. This abnormal procedure indicates that the functionaries of the respondent determine to victimize the petitioner. In addition to this certain observations were made by the 'Enquiry Officer reflecting malice against the petitioner.
(I) That the petitioner served the institution for about 23 years (four years in the Punjab University and 19 years at Quaid‑e‑Azam University) and removal has been ordered at the juncture, when he was almost heading to complete his distinguished career as educationist in serving the institutions of learning. The petitioner has been victimized.
(J) The Registrar of the respondent is not a competent Authority to deal with the affairs, hence the proceedings are nullity in the eyes of law.
6. On the grounds mentioned above, the learned counsel for the petitioner seeks that the writ petition may be accepted, the order dated 1‑8‑1992 whereby the petitioner has been removed from service be declared without lawful authority, Arbitrary, discriminatory, harsh, oppressive, mala fide and ineffective etc. He be also granted all back benefits.
7. On the other hand, learned counsel for the respondent contends that the petitioner was granted one-year sabbatical leave with effect from 1‑9‑1987 to 31‑8‑1988. No kind of leave was due to the petitioner. He was, therefore, accordingly informed through telegram and letter for not granting leave as prayed for by him. His request for grant of medical leave was also rejected considering self contradictory ground as Dr. Aslam Syed has already informed that due to some on going research commitments and family obligations, he was unable to join the University. Request to grant leave was rejected and he was informed. In spite of all, he failed to join duty in time as such the respondent was constrained to take action against him. He was served with the charge‑sheet. Reply of the charge‑sheet was found unsatisfactory and he was given show‑cause notice on 5‑6‑1991.
8. The Syndicate in its meeting on 25‑7‑1991 resolved that an inquiry may be conducted against him. The inquiry report was placed before the Syndicate in its meeting on 26‑3‑1992, where it was sent back to the Enquiry Officer to look into the specific charges contained in the charge‑sheet/show‑cause notice and give definite findings in the matter. According to the learned counsel for the respondent, the Syndicate resolved the charge stood proved against him and decided to remove the petitioner from service. Review petition was also considered and rejected lawfully. He admits that the matter was dealt with under the procedure given in the Government Servants (Efficiency and Discipline) Rules, 1973, which were adopted by the respondent.
9. On the ground of discriminatory treatment the contents of sub‑paras‑Mi to iv of the writ petition have been denied through reply but the learned counsel hesitates to press while arguing the case.
10. Learned counsel for the respondent admits that the application was to be placed before the Syndicate to consider for granting or refusing the leave but it was not' done so. He admits the provision that leave not due could be granted for a period of 365 days. The rejection of leave application order has been passed by the authority, who had no jurisdiction to refuse the leave application of the petitioner. It has been evasively replied that leave was considered and refused by the authority who was not competent to do so. Learned counsel further admits that the charge‑sheet and show‑cause notice have been sent by a person who was not legally competent. He conceded the legal position that show‑cause notice could be issued by the authorised officer only and no body else. The definition of authorised officer is mentioned in Government Servants (Efficiency and Discipline) Rules; 1973. Learned counsel for the respondents states that authority to issue show‑cause notice was Syndicate only. He maintains that though the notice was issued under the signatures of unauthorised officer but on the instructions of the Syndicate. Quite interesting phenomenon has been pointed out during reply regarding the designation of the authorised officer. Learned counsel even failed to point out the name who was designated as authorised officer in the case.
11. Regarding the appointment of Razi‑ud‑Din as Professor Emeritus has been admitted, while answering objection that any Professor Emeritus cannot perform any administrative and executive function, the respondent kept silent making no indicative reply. Lastly learned counsel for the respondent seeks that the writ petition be dismissed, as the petitioner is not entitled to the grant of relief in the given circumstances.
12. I have heard the learned counsel for the parties, considered the arguments, perused the record and fully applied my mind to the relevant law and rules applicable in the matter.
13. With a view to deal and adjudicate upon the facts and arguments of the parties, the functioning set up of the respondent framed under the relevant law and certain statutes of the University is to be looked into. For that end, relevant legal lay out is to be reproduced to understand the working and authority to be exercised department wise by the respondent. Chapter‑IV of the University of Islamabad Act, 1973 enumerates the authorities of the University wherein "The Syndicate" is given at Sr. (ii) and the list of the authorities which consisted of certain persons given in section 21 subsection (1) of the Act. The Syndicate is an authority under the Ordinance of the Statutes to exercise general supervision of the affairs and management with certain other powers enumerated in the aforesaid Ordinance. Chapter‑VI of the Act 1973 also deals with the authorities of the University while Chapter‑V deals with the Statutes, Regulations and Rules. In the present case Rule 30 is fully relevant, which is reproduce as under:‑‑
30(1) The Authorities and the other bodies of the university make rules consistent with this Act, the Statutes and the Regulations to regulate the conduct of their business and the time and place of meetings and related matters. Provided that the Syndicate may direct the amendment or the annulment of any rules made by another Authority or body (excepting the Senate) under this section. Provided, further that, if such other Authority or body is dissatisfied with such direction, it may appeal to the Senate, whose decision in the matter shall be final.
(2) The Syndicate may make rules to regulate any matter relating to the affairs of the University, which by this Act is not specifically required to be provided for by Statutes or Regulations."
14. Chapter‑VII deals with the general provisions starting from Rule 33(1), which is reproduced below:‑‑
"33(1) Except as otherwise provided, no officers, teachers or other employees of the University holding a permanent post shall be reduced in rank, or removed or compulsory retired from service, unless he has been given a reasonable opportunity of showing cause against the action, pr proposed to be taken."
It is mandatory provision of affording opportunity to show cause in the matter when some employee is to be removed or compulsory retired from service. There is definition in clause‑II of Act NOXXVIII, 1973 where "Teacher including Associate Professor, Assistant Professor, Lecturer and such other persons as may be declared to be Teacher by the Regulation. There is Statute regarding the appointment of Professor Emeritus, it has 8 paras. In the present case para 3 is relevant, which is reproduce below:‑
"3. "The `Professor Emeritus' shall, for all purposes of courtesy and on ceremonial occasions, be upon the same footing as a member of the Syndicate, but as such shall not be entitled to membership of any University body or to exercise any administrative and executive functions."
15. Service Statute in para. 1 of Rule 6(1) which says that appointing authority is the Syndicate to the extent of employees in category‑I. In the case of category 11 the appointing authority is Vice‑Chancellor. According to Rule 8 no employee of the University shall be removed from service unless dealt with under (Efficiency and Discipline) Rules, 1973. An important para of the Statute which deals with the leave and leave salary is para‑4. Rule 18 (1),stated below deals with the categories of leave which are admissible to the University teachers.
(a) Casual leave.
(b) Medical leave.
(c) Study leave.
(d) Extraordinary leave.
(e) Maternity leave
(f) Sabbatical leave.
16. But this Rule 18 was amended and circulated vide Letter No.F.4‑1/76 UE‑I, dated 25‑7‑1991. According to which four other categories of leave have been added, which are given below:‑‑
(1). Earned leave
(2). Special leave.
(3). Leave not due.
(4). Leave prior to retirement.
With the aforesaid legal plane there is no doubt that any category of leave if available could have been sanctioned by the competent Authority. In clause (2) after sub‑clause (f), some sub‑clauses have since been added showing the…
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