Full Judgment Text & Judicial Ruling

2008 P L C (C

2008 P L C (C.S.) 394

[Federal Service Tribunal]

Before Justice (R) Tanvir Bashir Ansari, Chairman and Saeed Ahmed Zaidi, Member

ASMAT ULLAH KHAN

Versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division and another

Appeal No.131(P)(C.S.) of 2004, decided on 5th September, 2007.

(a) Interpretation of statutes---

----`Mandatory direction' and one which was `merely directory in nature'---Distinction---Imperative or mandatory enactment was one which was couched in such language as to make the violation of a statute subject to a penalty, whether express or implied---Whenever a statute provided for imposition of penalty as a consequence of its non-compliance, the statue was necessarily to be regarded as mandatory---Where, however, no such penalty was decipherable to be attached to the non-compliance, the enactment would, be considered to be directory only, the substantial compliance with which was considered sufficient.

Niaz Muhammad Khan v. Mian Fazal Raqeeb PLD 1974 SC 134; Maulana Noor-ul-Haq v. Ibrahim Khalili 2000 SCMR 1305; Ghulam Hassan v. Jamshed Ali and others 2001 SCMR 1001; Mafiziullah v. Manaiullah and others PLD 1963 Dacca 318 and Nasrullah v. The State PLD 2001 Pesh. 152 ref.

(b) Removal from Service (Special Powers) Ordinance (XXII of 2001)---

---Ss. 3, 5, 6, 7 & 10---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appeal---Appellant was dismissed from service after issuing him show-cause notice and holding inquiry against him on allegation of misconduct and certain irregularities---Inquiry proceedings were commenced against appellant and appellant who. submitted his detailed defence reply, had participated in said inquiry---Subsequently appellant did not appear initially on medical grounds---Record showed that appellant at a later stage of the inquiry deliberately refused to participate in the same; in such circumstances, there was no merit in the contention of appellant that inquiry was held against him ex parte or that the procedure adopted by the Inquiry Officer was violative of the principles of natural justice---Conclusion arrived at by the Inquiry Officer did not appear to be against any established principle of law or natural justice---Proof of alleged irregularities of each charge against appellant was strong enough to warrant the findings of the Inquiry Officer that charges were proved---Entire disciplinary action commencing from the issuance of the fresh charge-sheet and culminating in the impugned order of dismissal, were in accordance with law and were not in violation of any principle of natural justice---Appellant, held, was rightly dismissed from service.

Shah Abdur Rashid for Appellant.

Khalil-ur-Rehman Abbasi, for Respondents along with Abdul Hakeem Rahi, S.O. Estt. Division and Khalid Hussain, Assistant as D.Rs.

Date of hearing: 5th September, 2007.

JUDGMENT

JUSTICE (R) TANVIR BASHIR ANSARI (CHAIRMAN).---This appeal is directed against the order of dismissal from service dated 31-1-2004 against which the appellant preferred a departmental appeal which remained unactioned within the prescribed period of 90 days.

2. Briefly, the facts of the case are that the appellant was employed as Assistant Director (B-17) in the Immigration and Passport Department, Dera Ghazi Khan. A charge-sheet, dated 31-1-1995 was firstly served upon the appellant containing allegations pertaining to the period when he served as Assistant Director, Passport in Dera Ismail Khan from 1992-1993. After conducting an inquiry and issuance of a show-cause notice the appellant was dismissed from service vide order dated 4-12-1997.

3. This order of dismissal was challenged before this Tribunal in Appeal No.62(P) of 1998. This appeal was heard along with' Appeal No.312(P) of 1998 filed by the appellant's co-accused namely Haji Hameedullah Khan. Both these appeals were decided vide judgment dated 27-7-1999. The order of dismissal was set aside on the ground the inquiry proceedings were not validly held and a direction was issued to the respondent-Department to hold a fresh inquiry to be concluded within a period of four months.

4. Afresh charge-sheet dated 17-11-1999 along with statement of allegations was served upon the appellant on 10-12-1999 i.e. after the period of four months prescribed by this Tribunal. The allegations against the appellant were as under:---

"(1) He accepted 33 applications in the absence of applicants/without Police verification/punched Identity Cards/bogus documents. (Annexure "A")

(2) He accepted 422 passport applications on the basis of forged character certificates/bogus Identity Cards/column of profession left blank/without putting initials on Declaration forms. (Annexure "B")

(3) He granted 93 passports on the basis of fake documents/ character certificates/bogus Identity Cards. (Annexure "C").

(4) He granted 14 passports without mentioning profession/on punched Identity Cards. (Annexure "D").

(5) He accepted and granted 27 passports on the basis of forged documents/character certificates/bogus/pouched Identity Cards. (Annexure "E").

(6) He accepted and granted 20 passports without entry of profession/in the absence of applicants/without police verification. (Annexure "F")."

Simultaneously Mr. Sultan Ahmed Khan was appointed as Enquiry Officer. The appellant objected to the initiation of disciplinary proceedings mainly on the ground that as the proceedings were not initiated or concluded within the prescribed period of four months, the same could not validly be continued.

It is also manifest from the record that on 16-12-1999, the appellant filed a Miscellaneous Petition No.799 of 1999 before this Tribunal praying that the inquiry proceedings not having been taken within the prescribed period of four months as prescribed in the judgment of the Tribunal dated 27-7-1999, the department be restrained from proceeding further with the same. This application was not entertained by the Registrar of this Tribunal vide note, dated 20-3-2001. Subsequently the appellant filed a constitutional petition in the Peshawar High Court bearing Writ Petition No.116 of 2000 on 21-6-2000 praying that the fresh inquiry proceedings be quashed and the order of suspension from service issued after 27-7-1999 be set aside. The Honourable Peshawar High Court passed the following order in its judgment dated 27-3-2001:

"(5) Because there is an order of reinstatement in favour of the petitioner and because thereafter he was suspended but on record there is no approval of the authority extending the period of suspension, therefore, petitioner shall be considered to be reinstated and of course entitled to all back-benefits from the date of order of the Tribunal till date and onwards. Our this order, however, is subject to the result of fresh enquiry as ordered by the Federal Service Tribunal on 27-7-1999. This petition is allowed in the above terms." (underlining is ours).

5. Thereafter on 28-4-2001, the appellant was directed to submit his reply to the charge-sheet to the Enquiry Officer, Instead of complying with the same, the appellant insisted that no fresh inquiry could be conducted after expiry of four months. He subsequently filed Contempt Petition No.252 of 2001 in the Peshawar High Court which was decided on 22-10-2002 in the following terms:--

"(4) This writ petition is, therefore, dismissed in limine as not pressed with the observation that this Court has not passed any order for initiating any inquiry against the petitioner. As a matter of fact, it has made a reference to the inquiry already ordered by the Federal Service Tribunal in its judgment dated 27-7-1999." (underlining is ours).

6. Although in the meanwhile on 6-11-2001, the appellant had submitted his reply to the charge-sheet, dated 17-11-1999, he on his own understanding of the orders of the Peshawar High Court, dated 27-3-2001 and 22-1-2002 decided not to join the inquiry proceedings considering the same to be void. The appellant once again approached this Tribunal through M.P. No. 195 of 2002 praying for stay of the inquiry proceedings. This Tribunal vide order dated 9-9-2002 did not find it fit to interfere with the inquiry proceedings and passed the following order:--

"In these circumstances and at this stage, without going into questions of powers of this Tribunal regarding review or implementation, we do not see any reason to interfere with the proceedings and preempt any final order which the respondent department may pass. The petitioner has the right to file an appeal if he feels aggrieved by any order that may be passed as a result of the proceedings. The Petition is rejected as misconceived and not maintainable. Parties be informed accordingly."

7. The appellant participated in the inquiry proceedings in the beginning. Later the appellant did not appear first on medical grounds and then on the ground of apprehended contempt of Court. The inquiry was concluded on 21-5-2002 wherein all the six charges were established against him.

8. After the conclusion of the inquiry proceedings, the authorized officer issued show-cause notice on 27-9-2002. The appellant submitted his reply thereto on 22-10-2002. Not considering the reply to be satisfactory, the Competent Authority passed the impugned order, dated 31-1-2004 whereby the appellant was dismissed from service.

9. We have heard Mr. Shah Abdur Rashid, Advocate for the appellant and Mr. Kahlil-ur-Rehman Abbasi, Advocate for the respondents and perused the record.

10. The foremost ground urged by the learned counsel for the appellant is that the period of four months fixed by this Tribunal in its judgment, dated 27-7-1999 passed in Appeal No.62(P) of 1998 was mandatory and that its violation must entail the vitiating of the entire proceedings of the fresh inquiry. It is vehemently contended that this Tribunal had fixed the aforementioned period consciously and it was the bounden duty of the department to have concluded the de novo inquiry proceedings strictly within the period of four months and that continuance of the disciplinary proceedings beyond this period was wholly void.

11. In order to appreciate the correct import of this contention, it is necessary to distinguish between a mandatory direction and one which is merely directory in nature. An analogy for the purpose can be fruitfully drawn from the nature of such statutes and enactments. According to Maxwell on Interpretation of Statutes an imperative or mandatory enactment is one which is couched in such language as makes the violation of a statute subject to a penalty whether express or implied. Whenever a statute provides for imposition of penalty as a consequence of its non-compliance, the statute is necessarily to be regarded as mandatory. Where however, no such penalty is decipherable to be attached to the non-compliance, the enactment is considered to be directory only, the substantial compliance with which is considered sufficient. This principle of interpretation of statutes has been enunciated in Niaz Muhammad Khan v. Mian Fazal Raqeeb PLD 1974 SC 134, Maulana Noor-ul-Haq v. Ibrahim Khalili 2000 SCMR 1305, Ghulam Hassan v. Jamshed Ali and others 2001 SCMR 1001, Mafiziullah v. Manaiullah and others PLD 1963 Dacca 318 and Nasrullah v. The State PLD 2001 Pesh. 152.

12. Applying this principle in understanding the direction given by this Tribunal in Appeal No.62(P) of 1998 it becomes manifest that while ordering the holding of a de novo inquiry a direction to conclude the same within the period of four months was not accompanied by the visitation of any penalty if the fresh inquiry was not concluded within the prescribed period. That this direction was merely directory in nature is also manifest from the judgment passed by the Honourable Peshawar High Court on 27-3-2001 wherein it was emphasized as under:--

"Our this order, however, is subject to the result of fresh enquiry as ordered by the Federal Service Tribunal on 27-7-1999."

The Honourable Peshawar High Court was conscious of the fact that the inquiry proceedings had not been concluded within four months as prescribed in the order of this Tribunal dated 27-7-1999 and subjected its decision to the result of fresh inquiry which, in contemplation of the High Court was yet to be concluded.

The appellant considered the holding of the fresh inquiry as contempt of the Peshawar High Court's order dated 27-3-2001 which prompted him to file Contempt Petition No.252 of 2001. The same was dismissed vide order dated 22-10-2002 wherein the holding of the fresh inquiry by the FST was referred to by it. It is noted that even on 22-10-2002 the fresh inquiry had not been concluded and no exception to its non-conclusion was taken by the Peshawar High Court.

Further the appellant again approached this Tribunal through Miscellaneous Petition No. 195 of 2002 praying for staying of the inquiry proceedings. Vide order dated 9-9-2002 this Tribunal had not seen any reason to interfere with the inquiry proceedings or to preempt any final order which might be passed by the department.

13. The above narration would clearly depict the intention of the Tribunal in treating the direction contained in its order dated 27-7-1999 to be directory only. The inquiry which was undertaken involved complicated allegations and required a detailed treatment. The inquiry proceedings were concluded and the inquiry report was submitted on 21-5-2002. A perusal of the inquiry report persuades us to hold that this was a substantial compliance of the direction issued by this Tribunal.

In view of this discussion we find no merit in the contention of the learned counsel for the appellant which is rejected.

14. It is next contended on behalf of the appellant that the inquiry proceedings and the inquiry report were perverse as those were not supported by any material on the record. It is further asserted that the inquiry proceedings were conducted ex parte and behind the back of the upon 2007 SCMR 1355 to insist that the appellant had to be paid salary for higher post for the period he was not allowed to perform the higher duties because of his non-promotion owing to none of his fault for incomplete service record and that he was entitled to promotion from the date his juniors were granted promotion. The contention of the learned counsel for the appellant in Civil Appeal No.1599 of 1999 (Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi, Academy of Administrative Walton Training, Lahore and others). {On appeal from the judgment, dated 7-12-1998 of Federal Service Tribunal, Islamabad passed in Appeal No.124(L) of 1980} is correct and that the Tribunal could not ante-date of Mr. Niazi besides the judgment in Niazi's case was in personam and not in rem.

3. The learned counsel for the respondents contended that the appeal was not maintainable having become infructuous after superannuation of the appellant on 9-3-2006' and that in any case he was cleared for promotion on 21-4-2004 during the pendency of his appeal and before his superannuation on 9-3-2006 and that in case he wanted to claim higher pay of the post on the basis of a claim for pro forma promotion, he should have submitted an amended appeal. He also argued that no ante-dation of promotion was allowed in view of the dictum laid down vide 2003 PLC (C.S.) 212. The learned counsel for the appellant, however, rebutted that the judgment 2003 PLC (C.S.) 212 is in personam and not in rem. The learned counsel for the respondents argued that all reported judgments are in rem. He argued that the appellant was superseded in 2003 due to his weak record of service and `other reasons' and he was informed that only the best of the lot was selected as Chief Engineer which is a selection post. He argued that perusal of section 9 of Act, 1973 unequivocally postulates that criterion for selection for promotion to the higher-grade rests upon the decision of the Competent Authority. No other forum/authority can assume the duties which specifically have been assigned to the Competent Authority. In regard to pro forma promotion, he relied on 1985 PLC (C.S.) 26 to stress that it could not be claimed as a right and it was absolutely for the department to see that the circumstances of the case it could be granted pro forma promotion. In this case before us we are in accord with the department when we find that at this belated stage if pro forma promotion granted to the appellant from 1968, it will definitely change the entire structure of the cadre and will open floodgate of litigation amongst its strength." (Muhammad Saleem Bhatti v. Secretary to Government of Punjab, Agriculture Department, Lahore and 2 ethers). He further argued that not a word has been mentioned in the appeal of the appellant for pro forma promotion which has been argued by the learned counsel for the appellant to be allowed to him. He also argued that the appellant was promoted on 21-4-2004. He also said that the appellant had not impugned his supersession made vide order, dated 15-6-2001.

4. The learned counsel for the appellant argued in rebuttal that the appellant's prayer is complete in all respects for the relief being sought. In regard to the appeal against the order, dated 15-6-2001, he said that a joint appeal was made against both the orders, dated 15-6-2001 and 19-4-2003 and it was considered and rejected on merit and the appellant's contention in Ground No.8 that promotion of the appellant to the post of Chief Engineer in October, 2001 meeting was not considered in accordance with rules was not denied. He emphasized that in the circumstances of the case, the departmental authorities should consider granting him a pro forma promotion in pursuance of section 9 of the Civil Servants Act, 1973 read in conjunction with the dictum laid down vide 1985 PLC (C.S.) 26 cited above, especially when it is not going to cause any complication to the cadre or structure of the service as here only a personal claim for pay and pension is involved.

5. We asked for the Minutes of the Meetings of the Senior Selection Board held on 24-5-2001, 2-4-2003 and 21-4-2004. It is observed therefrom that the status of the ACRs for the last five years was mentioned in the working papers along with 6 other elements of the overall ACR score and score for integrity and quality of output, enquiry position and the status of the senior management course and the remarks by the department which were made the basis of the Board's decision declared as tit/superseded or deferred, as the case may be. In the status of the reports the appellant's report of 1997 was shown as not available in the meeting held on 24-5-2001. Only two officials at Serial Nos.2 and 3 namely S.S. Tanveer Hussain and Ghulam Saghir with overall score 77.3 and 76.2 respectively were declared fit as against the appellant at Serial No.4 with score of 74.6 was superseded whereas only two other persons superseded were at Serial Nos.1 and 5 who did not meet the threshold. The appellant was shown as attending the Senior Management Course. The other persons including Serial Nos.8, 9 and 10 who had higher score than the appellant were deferred for not having attended the Senior Management Course. The reasons for the appellant's supersession were not mentioned. In the meeting of 2-4-2003, while the report of 1997 was still shown as not being available, he was allowed two additional marks as Instructor in Training Institute raising his overall score to 78.6 which was higher than that of Mr. Abdul Rashid, serial No.9 of the three persons declared fit whereas the appellant was once again superseded for the stated reasons of 'weak record and other reasons'. In the meeting of 21-4-2004, he was declared fit with the overall score of 77.9 along with another official with score of 76.1.

6. Heard the arguments and perused the record. No reason was recorded for the supersession of the appellant on 24-5-2001. Despite the ACR of 1997 being not available, his score of 74.6 was comparatively better than that of 72.3 of his junior at Serial No.7, namely Mr. M. Ilyas who was declared fit. The learned counsel for the appellant is justified in arguing that the appellant deserved to be deferred pending completion of his record and his Senior Management Course that he was attending at the time as was done in the case of all others who had not attended the course. It also belied the respondent's reply that the best of the lot was selected. Similarly in the meeting of 2-4-2003, his report for 1997 still being not available, his score was 78.6 but he was superseded for the recorded reasons of "weak record and other reasons" whereas another official, Mr. Abdul Rashid with lesser score of 76.7 was declared fit hence his record was not comparatively weak and "other reasons" of his supersession were also not specified. On 21-4-2004 he was declared fit with the overall score of 77.9 which though highest of the others', was yet lesser than 78.6 when he was considered on 2-4-2003. He had higher score than the minimum threshold when his case was considered on all the three occasions. Being thus, unjustified, we convert his supersession' on 24-5-2001 and 2-4-2003 to deferment. However, in the wake of his superannuation during the pendency of the appeal, his promotion cannot be ante-dated through a reconsideration of his promotion nor he could be reconsidered by the Selection Board in view of the dictum laid down vide 2003 PLC (C.S.) 212. As the appellant came to the Tribunal on 19-5-2003 before his superannuation on 9-3-2006 when his appeal had already been pending with the Tribunal for three years, it is a factor that was beyond his control. Had it been decided before he superannuated, his case could have been considered for retrospective promotion by the Selection Board with effect from the date of the deferment as has now been judicially determined to be the case. Earlier he suffered for want of non-completion of his record, a factor that was beyond his control and now he is likely to suffer again if the dictum of non-ante-dation of promotion on account of his retirement which constitutes again a factor beyond his control is rigidly applied against him. There is nevertheless, a redeeming feature in his case that he was declared fit for promotion on 21-4-2004 during the pendency of his appeal. Now after conversion of his earlier supersessions into deferment as decided above by us entitles him to a consideration for promotion from the date he was superseded and that consideration has already taken place as he was declared fit for promotion on 21-4-2004. We, therefore, hold that the department may extend the fitness determined by the Selection Board for his promotion on 21-4-2004 to also cover the earlier periods of deferment for the purpose of granting him pro forma promotion from the date his juniors were promoted and this is what has been prayed for that he be given the benefit of pay of the higher post as he was technically prevented from working in terms of the dictum laid down vide 2007 SCMR 1355, 1985 PLC (C.S.) 226, 1994 SCMR 2232 and 2005 PLC (C.S.) 579 and relied upon by the learned counsel for the appellant in his arguments.

7. In view of the foregoing, we hold that as analyzed and determined in paras.5 and 6, the appellant's supersession on 25-4-2001 and 2-4-2003 was not justified and convert that into deferment for' the reasons mentioned in the same paragraphs and since he happened to be promoted on 21-4-2004 during the pendency of his appeal, he is entitled to pro forma promotion from the date his immediate junior was, promoted with benefit of fixation of pay from 24-5-2001 with all consequential pensionary benefits.

8. No order as to costs. Parties be informed.

H.B.T./50/FST Order accordingly. ***

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