Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: ABDUL HAMID SIDYDIQUI VS Respondent: BOARD OF DIRECTORS, AKLASC,
2001 P L C (C
2001 P L C (C.S.) 457
[(Azad J&K)]
Before Khawaja Muhammad Saeed. C.J. and Syed Mansoor Hussain Gillani, J
ABDUL HAMID SIDYDIQUI
versus
BOARD OF DIRECTORS, AKLASC, through Chairman and 3 others
Writ Petition No. 108 of 1993, decided on 14th November, 2000.
(a) Azad Jammu and Kashmir Civil Servants Act (VI of 1976)----
----S.23---Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, Rr.5, 6, 7 & 8---Azad Jammu and Kashmir Industrial Relation Ordinance, 1974, S.30---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition ---Competency- -Writ petition was resisted on the ground that petitioner had alternate remedy before Labour Court under S.30 of Azad Jammu and Kashmir Industrial Relations Ordinance, 1974---Authority, a statutory corporation, was functioning under the supervisory control of the Government and the high- ups of Corporation were appointed through transfer by the Government-- Employees of the Corporation were performing their functions in connection with the affairs of the State within the meaning of S.44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974---Azad Jammu and Kashmir, Civil Servants Act, 1976 and Azad Jammu and Kashmir Civil Servants ( Efficiency and Discipline) Rules, 1977 having been made applicable to employees of Corporation by its Board of Directors, employee of Corporation not being "worker" or. "workman" was not entitled to avail remedy under Azad Jammu and Kashmir Industrial a lions Ordinance 1974before Labour Court.
Rafque Akhtar Choudhary's case PLD 1982 SC (A1&K) 1 4; 1983 PLC 887; 1983 PLC 498; 1992 PLC 632; 1997 PLC 367; 1998 PLC (Labour) 390: 1999 PLC 428; Muhammad Rashid Choudhary v. Chairman, AKLASC and others 1993 PLC (C.S) 1201; Personnel Manager, Bata (Pakistan) Ltd.. Lahore v. Muzaffar Ali 1985 PLC 786; 1984 PLC 1105 and Income Tax Officer, Central-III, Karachi v. Eruck maneckji and others 1991 SCMR 1447 ref.
(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----Rr. 5, 6, 7 & 8---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition---Civil servant---Inquiry proceedings-- Appointment of Authorised Officer and Inquiry Committee being directly in conflict with the provisions of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, all the proceedings conducted against the petitioner under provisions of said Rules, were coram non judice---Proceedings against petitioner having been conducted in flagrant disregard of the mandatory procedure prescribed under the Rules, order passed against petitioner was null and void.
(d) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----S. 44---Writ petition---Rule that the High Court would not entertain the writ petition when any other appropriate remedy was available was not a rule of law barring the jurisdiction of the High Court, but a rule by which the Court would regulate its own jurisdiction.
Messrs S.S. Salar & Co. v. Ch. Muhammad Sarfaraz and 2 others PLD 1984 SC (AJ&K) 77 rel.
(e) Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---
----Rr. 5,6, 7 & 8---Disciplinary action against civil servant ---Procedure-- Authority and Authorised Officer had to exercise the power in respect of disciplinary action against an accused civil servant---Initially it was for the Authority to decide as to whether any disciplinary action against a civil servant was to be taken under the provisions of the Rules or not---If in the opinion of the Authority proceedings against civil servant were necessary, it would appoint an Authorised Officer and direct him to proceed against civil servant under the Rules---Authority, after giving such directions would be out of picture and Authorised Officer would emerge and play a prominent role under the Rules and would decide whether or not inquiry against civil Authority---Authority in such circumstances would again emerge on scene and after providing -right of hearing to the civil servant, would be competent to pass order as deemed proper.
(f) Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---
----Rr. 5, 6, 7 & 8---Inquiry proceedings---Objective behind making the provision for the Authority, Authorised Officer and Inquiry Officer or Inquiry Committee and of assigning each one of them distinct functions in the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline Rules, 1977 was to ensure the scrutiny of the charge against any civil servant at different levels by different persons independently of each other.
(g) Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---
----Rr. 5, 6, 7 & 8---Inquiry proceedings---Inquiry Committee simply relied upon applications received by it by post and prepared inquiry report without recording, statements of persons who had sent the applications---Mandatory for the Inquiry Committee to record statement of said persons in presence of the accused civil servant giving him opportunity to cross-examine them before relying on those applications--- Enquiry having been conducted against the spirit of Azad Jammu and Kashmir Civil Servants (Efficiency of Discipline) Rules, 1977, order based on said inquiry report and on the recommendation of a person who was not legally competent to act as an Authorised Officer, was devoid of any legal force.
Chief Administrator, Auqaf v. Muhammad Ramzan and others PLD 1991 SC 102 and Pakistan and others v. Public-at-large and others PLD 1987 SC 304 ref.
Abdur Rashid Abbasi for Petitioner.
Advocate-General and Raja Muhammad Hanif Khan for Respondents.
JUDGMENT
SYED MANSOOR HUSSAIN GILLANI, J.----The petitioner has invoked the extraordinary jurisdiction of this Court under section 44 of the Azad Jammu and Kashmir Interim Constitution Act. 1974 to impeach the order passed on December 28, 1992 by the Minister Forest whereby he was dismissed from his service and the Collector, Land Revenue. Muzaffarabad was directed to recover from him an amount of Rs.7,97.176 as arrears of the land revenue.
2. Admitted facts are the petitioner wasp inducted in the service of the AKLASC in the year, 1975 as Forest Supervisor. He got promotion as Supervisor Grade-A in the year, 1988. He served the AKLASC in different capacities at various places in Azad Kashmir. The present dispute pertains to his tenure as Sale Assistant, Muzaffarabad, the post against which he was posted on November, 21, 1988. He was served with a charge-sheet on February 4, 1992 by Mr. Muhammad Yunus Awan, Additional Commissioner. Development in his .capacity as Authorised Officer. The charge-sheet contained allegations of a loss of Rs.9,71,063 to the department. The authorised officer in the charge- sheet which he issued to the petitioner on February 2 1992, directed him to submit his written reply within 14 days before Mr. Rashid Ahmed Katal, Managing Director, AKLASC and Chairman. Inquiry Committee.
The petitioner availed this opportunity and submitted his rep y to the charge-sheet on February 22, 1992 in which he specifically denied all the allegations levelled against him. He also requested the Chairman. Inquiry Committee to disassociate one Muhammad Rashid Khan, Accountant AKLASC from the body of Inquiry Committee as, according to him, he was responsible for the loss. The petitioner also expressed his no-confidence in the Inquiry Committee on account of certain reasons mentioned by him in his written reply to the charge-sheet. According to him, he was involved in a false case in order to save the skin of save other perso responsible for the loss to the department.
In the light of Inquiry Report, another show-cause notice was issued by Muhammad Yunus Awan in his capacity as authorised officer to the petitioner on June 1, 1992 in which besides previous allegations. it was alleged that he out of the misappropriated amount of Rs.10,74,295, had deposited an amount of Rs.2,77,119 on October 8, 1991, thus, the balance amount of Rs.7,97,176 was recoverable from him.
The petitioner submitted his written reply to the said notice within the stipulated period in which he once again expressed his no-confidence in the proceedings which were conducted by the Inquiry Committee besides refuting all the allegations and charges attributed to him in the second show -cause notice. He totally denied to have ever deposited an amount of Rs:2,77,119 in any Bank. He also repeated his allegation that in order to save the skin of some other persons, it is wrongly attributed to him that he had deposited and amount of Rs.2,77,119, in the Bank on October 8, 1991. He also lodged ,a complaint with the Authorised Officer, in his reply that he had not been furnished with the copies of the documents which had been relied upon by the Inquiry Committee in its report.
Finally on December 28, 1992, the Minister Forest in his capacity as Authority under the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 (hereinafter shall be referred as Discipline Rules) passed the impugned order whereby the petitioner was removed from his service as well as an amount of Rs.7,97,176 was ordered to be recovered from him as arrears, of the land revenue. This order was assailed by the petitioner through a Constitutional petition before this Court on February 11, 1993. The learned Judge seized of the petition felt it appropriate to invite comments from the department before passing any appropriate order on this petition.
The learned counsel for the respondents tiled their comments on March 3, 1993. In the comments, the maintainability of the writ petition was challenged on the ground that the petitioner had got a right of appeal before the Board of Directors, AKLASC. Without availing that remedy provided by the relevant statute, the writ petition was not maintainable. The learned Judge agreed with the suggestion of the learned counsel for the respondents and consigned the writ petition to the record room and directed the petitioner to seek the redress of his grievance through available departmental remedy before approaching this Court.
The petitioner thereafter filed ant appeal before the Board of Directors, AKLASC on March 18, 1993. He also made a request in it that the operation of the impugned order, dated December 28, 1992 be suspended to the extent of recovery, of the amount till the disposal of his appeal. However, on July 25, 1993, the Collector, District Muzaffarabad was moved by the AKLASC Authorities seeking recovery of the amount from him as arrears of the land revenue. The Collector, District Muzaffarabad, on their application, directed the Tehsildar/Assistant Collector Grade-I, Muzaffarabad for the recovery of the amount as arrears of the land revenue from the petitioner. The petitioner was thus, again constrained to seek the redress of his grievance through the instant writ petition on October 13, 1993.
During the pendency of his writ petition before this Court, the Appeal Committee constituted by the Board of Directors, AKLASC served a notice upon the petitioner on November 14, 1993 for the hearing of his departmental appeal. The petitioner submitted his reply before the Committee that under the compelling circumstances he has invoked the writ jurisdiction of the High Court and has also secured a stay order. He also submitted that the Appeal Committee constituted for hearing of his appeal was headed by Mr. Rashid Ahmed Katal who by that time, had been elevated as Managing Director, AKLASC, is not acceptable to him as he had acted head of the Inquiry Committee against him. The appeal of the petitioner was ultimately dismissed by the Board of Directors, AKLASC on May 12, 1994. The petitioner thereafter amended his writ petition and challenged this order with the permission of the Court through the amended writ petition.
In the written statement, the respondents have denied any bias of the Members of the Inquiry Committee about the petitioner. They have also denied that inquiry was not conducted in accordance with the law. According to the respondents, the impugned order was passed in accordance with law and rules enforced and the objection about the conduct of the Inquiry Committee and authorised officer, in the memorandum of the writ petition, was unfounded and without any lawful justification.
In the background of these facts, lengthy arguments were addressed by the learned counsel for the parties. They also filed their written arguments in the Court in which the points pressed by them during their oral arguments were repeated by them.
Mr. Abdur Rashid Abbasi, learned counsel for the petitioner assailed the impugned order both on legal grounds as well as on merits. According to him, Inquiry Committee was not lawfully constituted as such it was not competent to inquire into alleged allegations against the petitioner. Impugned order based on the report of the illegally constituted Inquiry Committee, is unsustainable. According to the learned counsel, this Inquiry Commission was appointed by Muhammad Yunus Awan in his capacity as authorised officer. The very appointment of Muhammad Yunus Awan is bad in law because prior to his appointment as authorised officer, he had conducted the inquiry in the matter and his inquiry report was also relied upon by the Inquiry Committee in para. 4(2) of its report dated 29-4-1992. Moreover, his son was involved in the case and was also included in the list of accused employees of the AKLASC. He, therefore, was not independent and impartial person to assume and play the role of a Judge in his capacity as authorised officer, Moreover, according to the learned counsel, he being personally interested in the result of the proceedings on account of involvement of his son, Masud Iqbal, Junior Clerk, was debarred under rules to act in the case as authorised officer. It is pertinent to mention here that this ground is specifically raised in the writ petition which is supported by an affidavit. The respondents have denied this ground in their written statement but no counter-affidavit has been filed by them. In the absence of the counter-affidavit, we have no option left but to accept this fact that Masud Iqbal who was also facing charges alongwith the petitioner and others, is the real son of Muhammad Yunus Awan Authorised Officer. The respondents impliedly, in our view, have admitted Masud Iqbal as son of Muhammad Yunus. However, Masud Iqbal was acquitted by the Inquiry Committee as such his guilt was not under consideration before the authorised officer.
The learned counsel for the petitioner besides relying on the provisions of the Azad Jammu and Kashmir (Efficiency and Discipline) Rules, 1977, relied on Rafique Akhtar Choudhary's case reported as PLD 1982 SC (AJ&K) 124. In this case the seniority of Naib Tehsildar, determined by the competent authority, was set aside by the Hon'ble Apex Court of Azad Kashmir simply on the ground that the officer who determined the seniority, his son was amongst the Naib Tehsildar whose seniority was under consideration. It was held by the Hon'ble Supreme Court that:--
"However, a person be honest and independent, it is always against rule of propriety to associate himself when his personal interests were involved in a particular case."
His second objection is that the inquiry was conducted in violation of the relevant law and well recognised principle of natural justice as the same was conducted at the back of the petitioner who was not afforded reasonable opportunity of hearing and was not provided an opportunity to cross-examine the witnesses who appeared and deposed against him nor he was provided with incriminating material or evidence used against him or any opportunity of producing evidence was given to him. He in support of this argument referred before us three applications which were received through post. According to the learned counsel, these applications prima facie, have been written by the same person and contained almost, the same allegations. The alleged authors of these applications never appeared before the Inquiry Committee but the Committee relied upon their applications as is apparent from para 4(11-2) of the inquiry report. According to him, these three applications if left out from consideration then no other evidence is available against his client. He further argued that, according to the roaster of duties his client had no business to receive the alleged misappropriated amount from the customers and later its deposit in the Bank. It was the duty of some other persons but is wrongly attributed to his client. The learned counsel further argued that in fact Inquiry Committee was under the influence of the fact finding report which was earlier prepared by Muhammad Yunus Awan and Abdur Rasheed Katal, Chairman of the Inquiry Committee. Under the influence of these reports, the Inquiry Committee submitted fresh report before authorised officer who illegally by assuming the role of a Judge, made recommendations against his client. In support of his claim, he relied on para. 4(2) of the inquiry report wherein it is laid down that:--
Again in para. 4(7), the Inquiry Committee has mentioned about the report prepared by Muhammad Yunus Awan in the following words:--
Besides the above-referred` objections about the conduct of the Inquiry Committee, the learned counsel seriously challenged its Constitution under the provision of the Discipline Rules, 1977. According to him inquiry was conducted against 9 employees of the AKLASC. Two out of nine employees were General Managers Finance and Accounts. The head of Inquiry Committee was Mr. Rashid Ahmed Katal who was himself the General Manager of AKLASC. The other member was Abdul Qayyum Mughal, a Senior Budget Officer, Finance Department. The members of the Inquiry Committee, according to the learned counsel, were not senior in rank to the above-referred two accused employees of the AKLASC who were General Managers Finance and Accounts. Therefore, the very constitution of the Inquiry Committee was against the spirit of Rules.
Raja Muhammad Hanif Khan, learned counsel for the respondents in his lengthy arguments supported the, impugned order.
During the pendency of the writ petition, before us, an affidavit was filed by one Azhar Mahmood as Secretary of the AKLASC Board to the effect that Abdul Rashid Katal was an officer of Grade-20 whereas above referred two persons, namely, Mehmoodul Hassan and Saeed Ahmed were General Managers Finance and Accounts AKLASC respectively in Grade-18. He in support of the affidavit also filed in the Court copies of two Notifications No. Admn:/A-20(11)/V/90, dated 16-9,1990 and No. Admn./A 2(17)/IFV/96, dated 3-4-1996. According to first notification, Rashid Ahmed Katal was Conservator of Forests in B-18 when he was sent on deputation to AKLASC and posted as General Manager AKLASC, Mirpur in his own pay and scale. Through the second notification, the said Rashid Ahmed Katal, Chairman of the under-challenged inquiry committee was promoted to a post in Grade B-20. 'The notification was given effect from May 4, 1995. The same ground was taken by the learned counsel for the respondents to, justify the constitution of the Inquiry Committee.
In the light of the above-referred arguments, it was argued by the learned counsel for th! petitioner that impugned order is not maintainable as it is contrary to the provisions of Discipline Rules, 1977, besides it is also mala fide. He requested that his client be reinstated in service with all back benefits. On merits of the case, the learned counsel argued that there is no material or evidence on the relevant record to substantiate the allegation made against his client.
While opposing the arguments, Raja Muhammad Hanif Khan the learned counsel for the respondents argued that the petitioner has got alternate remedy - before the Labour Court. under the Azad Jammu and Kashmir Industrial Relations Ordinance, 1974. His writ petition is, therefore, liable to be dismissed. According to him, the petitioner was employee of Grade B-11 in the services of AKLASC. Irrespective of this fact that what amount he was drawing as his pay, he was not holding, any administrative post in the affairs of the corporation, therefore, was covered by the definition of workman. He in support of his contention referred the following authorities:--
(1) 1983 PLC (Labour) 887, 498; (2) 1992 PLC (Labour) 632; (3) 1997 PLC (Labour) 367; (4) 1998 PLC (Labour) 390; and (5) 1999 PLC (Labour) 428.
In the light of the objection raised by the learned counsel for the respondents, the question which needs determination is as to whether the present writ petition is maintainable in the light of the facts and circumstances of the case.
The learned counsel for the respondents argued that the petitioner has got an alternative remedy available before the Labour Court under section 30 of the Industrial Relations Ordinance, 1974. He in support of his contention relied upon certain cases. We have gone through the report of these cases. The dispute in these cases, was raised by the employees of some Textile Mills, Pakistan Railway and employees of different banks who under law could raise their grievance under the Industrial Relations Ordinance, 1969 before the Labour Court. These authorities, therefore, have got nothing common with the present case.
AKLASC, no doubt, is a statutory Corporation and is functioning under the supervisory control of the Government. The high-ups of this Corporation are appointed through transfer by the Government out of the employees of the Forest Department. Thus, 'in our view, the employees of the Corporation are performing their functions in connection with the affairs of the State within the meaning of section 44 of the Azad Jarnmu and; Kashmir Interim Constitution Act, 1974. For this purpose rightly the Civil Servants Act and Discipline Rules under the authority of section 23 of the Civil Servants Act, 1976. have been made applicable through adoption by the Board of Directors of AKLASC. The learned counsel for the respondents has rightly referred the case titled Muhammad Rashid Choudary v. Chairman, AKLASC and others (1993 PLC (C.S.) 1201) wherein the apex Court has held that the Members in the service of the AKLASC are governed by appropriate Orders/Rules of the Government The same view was expressed by this Court and apex Court in a recent judgment titled Raja Ali Asghar v. Muhammad Hafeez Ullah. Even otherwise the petitioner does not fall within the definition of worker or workman as contained in the Industrial Relations Ordinance, 1974. According to that definition a person who is working in supervisory capacity or drawing his wages exceeding Rs.600 per month cannot avail the remedy under the Industrial Relations Ordinance, 1974.
There is no cavil that at the time when the present proceedings were initiated against the petitioner, he was an employee of the AKLASC as Supervisors in Grade-A in the basic pay scale 13, therefore, was not entitled to avail remedy under the Industrial Relations Ordinance, 1974 before the Labour Court. This view is fully supported by the authorities referred by the learned counsel for the petitioner which shall be discussed in upcoming part of this order.
In 'Personnel Manger,' Bata (Pakistan) Ltd., Lahore v. Muzaffar Ali (1985 PLC 786), it was laid down that a foreman of Bata Shoe Company was not workman as he was drawing his pay at Rs.1,142 per month.
In (1984 PLC 1105), a Supervisor of Bahawalnagar Sugar Mills was not treated as worker or workman as he was drawing his pay above Rs.800.
In the light of above reasons, in our view: the petitioner was not entitled to seek remedy before the Labour Court under the provisions of the industrial Relations Ordinance, 1974. In our view, as all the proceedings right from the appointment of authorised officer up to the passing of the impugned order by the Authority, had been taken in total disregard of the provisions contained in the Discipline Rules, 1977. This petition, even otherwise, is maintainable before this Court on the grounds that impugned order was the result of proceedings conducted in total disregard of the Discipline Rules.
The extraordinary writ jurisdiction trade available to this Court under section 44 of the Azad Jammu and Kashmir Interim Act, 1974 could not be treated as substitute for an appeal or revision. This jurisdiction can be availed favourably in extraordinary circumstances by showing that the impugned order under challenge is wholly without jurisdictional competence.
In a case titled 'Income Tax Officer, Central Circle-III, Karachi v. Eruck Maneckji and others' (1991 SCMR 1447), it was held that as the Income Tax Officer had acted in arbitrary or oppressive manner against the respondent therein, his writ petition was maintainable…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.