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Petitioner: RIZWAN AKHTAR VS Respondent: UNIVERSITY OF THE PUNJABHonorable Justice Syed Jamshed AliAsmat Kamal Khan and C.M. Sarwar,Syed Mohsin Abbas Naqvi
2003 P L C (C
2003 P L C (C.S.) 1508
[Lahore High Court]
Before Syed Jamshed Ali, J
RIZWAN AKHTAR
Versus
UNIVERSITY OF THE PUNJAB through Vice‑Chancellor, Quaid‑e‑Azam Campus, Lahore and 4 others
Writ Petition No.2360 of 2001, heard on 10th April, 2003.
(a) Punjab University Employees (Efficiency and Discipline) Statutes, 1975‑‑‑-
‑‑‑‑Statutes Nos.5, 6(2), 6(3) & 7‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Inquiry proceedings‑‑‑Competent Authority, appointed Authorized Officer under Statute No.5 of Punjab University Employees (Efficiency and Discipline) Statutes, 1975 to proceed against civil servant‑‑‑Authorized Officer was to decide whether in the facts of the case and in the interest of justice any inquiry should be conducted by Inquiry Officer or Inquiry Committee and in case it was so decided, Inquiry Officer or Inquiry Committee was to be appointed by Authorized Officer under Status No.6(2) of Punjab University Employees (Efficiency and Discipline) Statutes, 1975‑‑‑If, however, Authorized Officer, acting under Statute 6(3) of Punjab University Employees (Efficiency and Discipline) Statutes, 1975 would decide that it was not necessary to have an inquiry conducted through an Inquiry Officer and Inquiry Committee, he would 'proceed in the matter by informing civil servant of the action proposed to be taken and the grounds of action and give him reasonable opportunity of showing cause against proposed action‑‑‑When Inquiry Officer or Inquiry Committee was appointed, Authorized Officer, would frame the charge and communicate the same to accused civil servant as required by Statute No. 7 of Punjab University Employees (Efficiency and Discipline) Statutes, 1975 and then Inquiry Officer or Inquiry Committee would hold an inquiry‑‑ Authorized Officer, in the present case, framed the charge‑sheet, but it was not brought on record whether any decision was taken by Authorized Officer as contemplated by Statute No.6(2) or 6(3) of Punjab University Employees (Efficiency and Discipline) Statutes, 1975‑‑‑Framing of charge, according to Statute No.7 of Punjab University Employees (Efficiency and Discipline) Statutes, 1975. would follow only after an Inquiry Officer or Inquiry Committee was appointed, but Authorized Officer in complete ignorance of said Statutes, after issuing charge‑sheet to the civil servant, himself proceeded to hold inquiry‑‑‑Procedure adopted by Authorized Officer, was wholly alien to said Statutes.
Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others 2001 SCMR 934; Board of Intermediate and Secondary Education, Sargodha through Secretary v. Abdur Rehman 1988 SCMR 1711 and University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali 1992 SCMR 1093 ref.
(b) Punjab University Employees (Efficiency and Discipline) Statutes, 1975‑‑‑--
‑‑‑‑Statutes Nos.5, 6(2), 6(3) & 7‑‑‑Constitution of Pakistan (1973), Arts.4 & 199‑‑‑Constitutional petition‑‑‑Termination of service‑‑‑Statutory Rules, principle of‑‑‑Natural justice, violation of‑‑‑Petitioner working as junior clerk in the University was proceeded against under Punjab University Employees (Efficiency and Discipline) Statutes, 1975 oh allegations of forgery, inefficiency, misconduct and corruption and his services were terminated after holding inquiry against him‑‑‑Charge brought against the petitioner, contained three allegations i.e. wrong tabulation of result, making bogus award lists and forging the result of candidate‑‑‑Inquiry report of Authorized Officer showed that charges brought against petitioner were not proved as neither he had wrongly tabulated the result nor had made bogus award lists nor had forged the results‑‑‑Inquiry Officer found that co‑accused had entertained bogus re‑checking award lists‑‑‑Allegation on which petitioner had been punished did not form part of charge‑sheet and. petitioner was condemned unheard because no opportunity to defend himself against allegation was provided to him‑‑‑Authorized Officer, in circumstance had clearly violated Punjab University Employees (Efficiency and Discipline) Statutes, 1975‑‑‑Competent Authority had only approved the recommendations of Authorized Officer with non‑speaking and sketchy order‑‑‑Appellate order also did not show that case of petitioner, was considered fairly and in accordance with Statutes of University which were statutory rules‑‑‑Even if services of an employee of a Statutory Corporation were not governed by statutory rules; the employer amenable to Constitutional jurisdiction was under a duty to act justly 'and fairly in accordance with mandate of Art.4 of the Constitution‑‑‑If tenure of employees of Statutory Corporation had been left at the total discretion of employer, even then no exemption from application of principle of natural justice could be claimed‑‑‑In case of breach of rule of natural justice, corrective judicial process could be applied‑‑‑A Statutory Corporation could not be heard to say that it would be at liberty to violate its own rules and then to fall back on the plea that rules being non‑statutory, Courts should shut their eyes even if their action was arbitrary, contrary to their own regulations, unjust and unfair‑‑‑Employee of a Statutory Corporation could not be removed under cover of total and absolute discretion is violation of principles of natural justice‑‑‑Petitioner, in the present case was condemned unheard, and Authorized Officer who himself was prosecutor, had himself held inquiry‑‑‑High Court partly allowed Constitutional petition declaring terminating the service of petitioner as without lawful authority with direction that appeal pending before Appellate Authority should be decided afresh in accordance with law with a. speaking order.
Khalid Pervez v. Punjab Seed Corporation 1989 PLC (C.S.) 444; Syed Akbar Ali Bokhari v. State Bank of Pakistan and 7 others PLD 1977 Lah. 234; Muhammad Yousuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224; Evacuee Trust Property Board and another v. Muhammad Nawaz 1983 SCMR 1275; Indian Institute of Technology v. Mangat Singh 1973(2) SLR 46; Sukh Dev Singh and others v. Beghatram Sardar Singh Raghwamshi and another AIR 1975 SC 1331; Multiline Associates v. Ardeshir Cowasjee 1995 SCMR 362; Lal Din v. Vice Chancellor and others 1994 PLC (C.S.) 880; Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180; Atta‑ur‑Rehman v. The Province of West Pakistan PLD 1968 (W.P.) Lah. 185; Muhammad Ashraf v. D.G., Multan Development Authority 2000 PLC (C.S.) 796; Muhammad Akram v. Ferman Bi PLD 1990 SC 28; Dr. Ghulam Mustafa Chaudhry v. Dr. Muhammad Ashiq Khan Durani 2000 PLC (C.S.) 385; Mrs. Aneesa Rehman v. Pakistan International Airliness Corporation and another 1994 SCMR 2232; Asif Peter v. D.G.,M.D.A., Multan and others 2000 PLC (C.S.) 1360 and U.P. Warehousing Corporation v. Vijay Narayan AIR 1980 SC 840 ref.
(c) Administration of justice‑‑‑
‑‑‑‑ Authority who had framed regulations, was bound to follow said regulations and a departure therefrom, would amount to exercise of the power in an arbitrary and unregulated manner defeating the very purpose for which regulations were framed.
Asmat Kamal Khan and C.M. Sarwar for Petitioner.
Syed Mohsin Abbas Naqvi for Respondents.
Date of hearing: 10th April, 2003.
JUDGMENT
The petitioner, while working as Junior Clerk in the Computer Section of the Examination Branch of the University of the Punjab, was proceeded against under the Punjab University Employees Efficiency and Disciplines Statutes 1975 on the allegations that "you have been found guilty of wrongly tabulating the result and making bogus award lists of Roll No.22078 and 16017 of B.A. Second Annual Examination, 1995 with the help and connivance of other employees. You forged the result and declared the candidates to have passed the examination in which they were failing". According to the charge‑sheet the allegations if proved would constitute "forgery" "inefficiency" "misconduct and corruption .
2. In reply to the charge‑sheet, the petitioner declined the allegation and a request was made to the Authorized Officer to ask Dr. Naveed A. Malik, Incharge, Computer Section, to enlighten the Authorized Officer about the duties assigned to the petitioner. The Authorized Officer himself conducted the inquiry and according to his finding the forged result cards were issued by the petitioner from the Computer Section on 28‑4‑1997 based on the information fed by Mr. Shahbaz Ahmed Khan co‑accused and delivered to the Examination Branch through Mr. Mumtaz Ahmed Khan, Junior Clerk, Examination Branch. These cards were treated as lost and case was initiated for issuance of duplicate result cards. It was further held that these results were proceed by Mr. Shahbaz Ahmed Khan. He had entertained bogus re‑checking award lists. As far as the petitioner is concerned, it was held that he issued the duplicate result card (forged) and did not object to the application for not being processed through the Controller of Examination and thus he printed the duplicate result cards without proper legal authority to support the corruption. Accordingly, he recommended termination of the services, inter alia, of the petitioner. The competent authority heard the petitioner. The Deputy Registrar (Admn‑II), placed the recommendation of the Authorized Officer before the Competent Authority i.e. the Registrar on, which on 17‑1‑2000, the following order was passed:--
"Recommendation of the Authorized Officer on page 113 are approved."
The petitioner filed an appeal before the Vice‑Chancellor/Chairman of Syndicate which was rejected vide order dated 22‑1‑2001. The petitioner is aggrieved of the aforesaid orders.
3. The learned counsel for the petitioner contends that the Authorized Officer, could not have conducted the inquiry himself. According to the finding of the Inquiry Officer, the charge as brought against the petitioner was not proved and he was punished on the allegation which was not subject matter of the charge‑sheet. Therefore he was condemned unheard. Another grievance was that the Authorized Officer did not record any evidence in the presence of the petitioner and that he himself cross examined the petitioner against till cannons of justice and fairplay. He further submits that the competent authority i.e. the Registrar passed a mechanical order without applying his mind, likewise the order of the Appellate Committee is also non‑speaking. The entire proceedings were contrary to the aforesaid Efficiency and Discipline Statutes and stand vitiated. Reliance was placed on Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others (2001 SCMR 934) to contend that deviation from the rules and regulations by the employer violates the principles of natural justice. He further contended that although these Statutes have been framed by the University of the Punjab under section 31 of the University Act (Punjab Act No.IX 1973), nevertheless these are statutory. Reliance was placed on Board of intermediate and Secondary Education, Sargodha, through its Secretary v. Abdur Rehman (1988 SCMR 1711), according to which the regulation, framed by the Board of intermediate and Secondary Education, Sargodha under Boards of Intermediate and Secondary Education, Act (No.XIII) 1976 were held to be statutory.
4. On the other hand the learned counsel for the Punjab University, vehemently relied on University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali (1992 SCMR 1093) according to which the regulations framed by the University of Punjab were not statutory and, therefore; this Constitutional petition was not maintainable. He further submits that since the aforesaid statutes were not statutory, the principle of master and servant is attracted disentitling the petitioner to the relief claimed in the writ petition. About holding of the inquiry by the Authorized Officer, his contention was that under Statute No.6(3) of the aforesaid statutes, the Inquiry Officer could himself proceed against the petitioner without appointing an Inquiry Officer.
5. I have considered the submissions made by the le: rued counsel for the parties and have perused the record. In this case, the competent authority i.e. the Registrar vide order dated 26‑2‑1998, appointed Dr. Subhan Ali Bhatti, Assistant Professor, Department of Mathematics University of Punjab as Authorized Officer under Statute No.5 providing for a direction to the Authorized Officer to proceed against University employee. After the said direction was received, the Authorized Officer was to decide whether in the facts of the case or the interest of justice an inquiry should be conducted by the Inquiry Officer or Inquiry Committee. In case it was so decided the Inquiry Officer or the Inquiry Committee was to be appointed by the Authorized Officer under Statute No.6(2). If, however, the Authorized Officer, acting under Statute No.6(3), decides that it was not necessary to have an inquiry conducted through an Inquiry Officer and Inquiry Committee he shall proceed in the matter by informing the employee of the action proposed to be taken and the grounds of action and give him reasonable opportunity of showing cause against the proposed action. When an, Inquiry Officer or Inquiry Committee is appointed the Authorized Officer, shall frame the charge and communicate it to the‑accused as required by Statute No.7 and then the Inquiry Officer or Inquiry Committee had to hold an inquiry. In this case the Authorized Officer framed the charge‑sheet which is dated 2‑3‑1998. It has not been brought on record whether any decision was taken by the Authorized Officer as contemplated by Statute No.6(2) or 6(3). The framing of charge, according to Statute No.7, follows only after an Inquiry Officer or Inquiry Committee is appointed. However, in complete ignorance of the aforesaid statutes, after issuing charge‑sheet to the petitioner the Authorized Officer himself proceeded to hold an inquiry. The procedure adopted by the Authorized Officer was wholly alien to the aforesaid statutes.
6. The charge as brought against the petitioner, as reproduced above, contained three allegations, i.e. wrong tabulation of the result making bogus award lists of Roll No.22078 and 16017 and forging their result. From the inquiry report (of, the Authorized Officer) it is clear that the charge as brought against the petitioner was not proved as neither the petitioner had wrongly tabulated the result nor had made bogus award list, nor had forged the results. The Inquiry Officer found that Mr. Shahbaz Ahmed Khan had entertained bogus re‑checking award lists. Thus, the allegation for which the petitioner has been punished did not form part of the charge‑sheet and, therefore, he had no opportunity to defend himself against the said allegation i.e. that the petitioner issued duplicate result cards without proper and legal authority. Thus, the petitioner was condemned unheard besides clear violation of the aforesaid statutes by the Authorized Officer. I have also noticed that the competent authority i.e the Registrar only approved the recommendation of the Authorized Officer with a non‑speaking and sketchy order. Likewise the appellate order also does not show that the case of the petitioner was considered fairly and in accordance with the statutes of the University.
7. Reliance of the learned counsel for the petitioner on the judgment in the case of BISE Sargodha (supra) is inapt because in the said case the regulations were framed by the Board with the approval of the Government while in the present case, it was the University of the Punjab who had framed the regulations. On the question whether regulations framed by a statutory body by virtue of the powers derived from a statute were or were not statutory, I was able to lay my hands on a few judgments. In Khalid Pervez v. Punjab Seed Corporation (1989 PLC (CS) 444) the regulations framed by the Seed Corporation under section 25 of the Punjab Saeed Corporation Act, 1976 were under consideration. This Court recorded the following observations:‑‑
"This is not the case here as the Punjab Seed Corporation Act, 1976 does not provide that the Regulations to be framed by the Board are to receive approval of the Government. The Regulations have been framed by the Board in exercise of powers vesting under section 25 of the Act. These Regulations so framed have been duly published in the Punjab Gazette. The Regulations being the statutory instrument have the force of law. This being the position the petitioner is entitled to invoke Constitutional jurisdiction of this Court if any action prejudicial to the petitioner‑employee in derogation of or violation of any such rule or regulation is taken. In support of this view, reliance may be placed on Syed Akbar Ali Bokhari v. State Bank of Pakistan and 7 others PLD 1977 Lah. 234; Muhammad Yousuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224; Evacuee Trust Property Board and another v. Muhammad Nawaz 1983 SCMR 1275".
8. In the case of Indian Institute of Technology v. Managat Singh (1973 (2) SLR 46), the Delhi High Court made the following observations:
"The word, "statutory" has always been used to include not only Parliamentary legislation but also subordinate legislation such as rules and regulations. The procedure of disciplinary action, basing the order on evidence and the giving of reasons for orders are not matters governed by the contract of employment. In fact, they are not relevant in a contractual relationship at all. If these regulations are, therefore, to have any effect, they must be regarded as law. Otherwise, they would be merely pious homilies. The contravention of the regulations is, therefore, a contravention of a statutory obligation and not of a contract."
9. In Sukh Dev Singh and others v. Beghatram Sardar Singh Raghwamshi and another (AIR 1975 SC 1331), the Indian Supreme Court expressed the following view:‑‑ .
"33. There is no substantial difference between a rule and a inasmuch as both are subordinate legislation under powers conferred by the statute. A regulation framed under a statute applies uniform treatment to every one or to all members of same group or class.. The' Oil and Natural Gas Commission, the Life Insurance Corporation and Industrial Finance corporation are all required by the statute to frame regulations, inter alia, for the purpose of the duties and conduct and conditions of service of officers and other employees. These regulations impose obligation on the statutory authorities. The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by Courts to invalidate actions in violation of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The regulations in the cases under consideration give the employees a statutory status and impose restriction on the employer and the employee with no option. to vary the conditions. An ordinary individual in a case of master and servant contractual relationship enforces breach of contractual terms. The remedy in such contractual .relationship of master and servant is damages because personal service is not capable of enforcement. In cases of statutory bodies, there is no personal element whatsoever because of the impersonal character of statutory bodies. In the case of statutory bodies it has been' said that the element of public employment or service and the support of statute require observance of rules and regulations. Failure to observe requirements by statutory bodies is enforced by Courts by declaring dismissal in violation of rules and regulations to be valid. This Court has repeatedly observed that whenever a man's rights are affected by decision taken under statutory powers, the Court would presume the existence of a duty to observe the rules of natural justice and compliance with rules and regulations imposed by statute. "
10. Reference may also be made to Multiline Associate v. Ardeshir Cowasjee (1995 SCMR 362) in which the Hon'ble Supreme Court was considering the Karachi Building Town Planning Regulations, 1979 framed by the Karachi Development Authority under the provisions of the Sindh Buildings Control Ordinance, 1979 and the following observations were made:‑‑
"Rules and Regulations are subordinate and delegated legislation deriving authority and legal cover from the provisions of the Ordinance."
From the perusal of the above judgment it appears that if the source of subordinate legislation is found in the Statute, such rules or regulations are statutory.
11. In Lal Din v. Vice‑Chancellor and others (1994 PLC CS 880), while interfering against an. order directing compulsory retirement of an employee of the Punjab University, this Court made the following observations:‑‑
"Learned counsel for the respondents submitted that the writ petition is not maintainable because relationship between the petitioner and respondents/University is that of Master and Servant. This argument in the facts and circumstances of this case is not tenable. Admittedly the petitioner's service was governed and regulated by the Rules and Regulations framed by the University under the statute to which University owes its creation. According to these rules an employee is to continue in service unless removed in accordance with the disciplinary proceedings retire on attaining the age of super annuation which is 60 years. One of the criteria for determining whether relationship between the employer and the employee is that of Master and Servant, is whether the Master was , vested with absolute and uncontrolled power to relieve the employee from his duties at his whim which is not the case here. Since petitioner s service was governed by the rules and regulations, therefore, he was entitled to continue in service till the attainment of age of super annuation i.e. 1‑7‑1993, his date of birth being 1‑7‑1933 as such the argument has no force."
12. Since, however, I am bound by the dictum of the Hon'ble Supreme Court in the case of the University of Punjab (supra), I am of the view that even when the services of an employee of a statutory corporation are not governed by the statutory rules, an employer, amenable to Constitutional jurisdiction, is under a duty to act justly and fairly in accordance with the mandate of Article 4 of the Constitution. Even if the tenure of employees of statutory Corporation had been left at the total discretion of the employer, even then no exemption from application of the principles of natural justice could be claimed. And, in case of breach of the rules of natural justice corrective judicial process could be applied. Further, I am of the view that a statutory Corporation cannot be heard to say that it will be at liberty to violate its own rules and then fall back on the plea that the rules being non statutory, the Courts should shut their eves even if their action is arbitrary, .contrary to their own regulations, unjust and unfair.
13. The Master servant thereby only professes test the "King can do no wrong". To plead the said theory without regard to the particular facts of a case in respect of employment in the statutory bodies will amount to conceding absolute and totally unregulated discretion to the employer and may Therefore bring about miscarriage of justice. In Olga Tellis v. Bombay Municipal Corporation (AIR 1986 SC 180) right to livelihood has been considered as necessary attribute of life and was, therefore, recognized as a fundamental right. Therefore, an employee of a statutory Corporation cannot be removed under the cover of total and absolute discretion in violation of principles of natural justice. I may add that absolute discretion in a ruthless master and is wholly incompatible with the rule of law and the protection provided by Article 4 of the Constitution. That protection will become illusory if the Master‑Servant theory was to be indiscriminately applied in all cases of employment in statutory Corporations. There was a time in distant past when the public servants were to hold office during the pleasure of the President or the Governor and even the salary of a public servant was the bounty of the Crown. It will not be out of place to mention here the following observations of Mr. M. R. Kayni, J. (as he then was) in Atta‑ur -Rehman v. The Province of West Pakistan (PLD 1968 (WP) Lahore 185):
"I add this note with a view to laying greater emphasis on the futility of the phrase "during pleasure" occurring, in Article 180, I had occasion to say in an Introduction to a Commentary (1) that members of the public services were said to hold office during the pleasure of the President or the Governor, as though any one…
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