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Petitioner: NAVEED AHMED VS Respondent: BOARD OF GOVERNORS, CADET COLLEGE PALLANDRI through Chairman and 5 others
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Ghulam Mustafa Mughal Title:NAVEED AHMED vs BOARD OF GOVERNORS, CADET COLLEGE PALLANDRI
through Chairman and 5 others Case No.: Writ Petition No.271 of 2004 Date of Judgment:2004-08-16 Reported As: 2005 PLC (C.S.) 1001 Result: Petition accepted Judgment ORDER ' This writ petition is directed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby orders of respondents passed on 14-7-2003 and 5-3-2004 have been challenged for having been passed without lawful authority. ' The precise facts forming the background of this petition are that petitioner herein was appointed as Lecturer English in Cadet College Pallandri vide order dated September, 7, 1998. It is claimed that petitioner stood confirmed in his appointment vide notification dated 13-3-2000. In view of rule 10(5) of Rules known as Cadet College Pallandri (General Conditions of Service) Rules, 1996 on 12- 9-2001, the petitioner on expiry of probation period stood confirmed. It is further claimed that the petitioner had performed his duties to the utmost of his capability, efficiency, honesty and devotion, which has been acknowledged by respondent No.3, vide his letter dated 10-8-2001. It is stated that respondent No.3 nourished a grudge against the petitioner on account of his inability to contribute in the monthly saving fund raised by him without any backing of law and rules. The petitioner requested to refund the amount already contributed through an application on 17-10- 2001 and on account of the afore-mentioned demand a warning was issued to the petitioner on 20-10-2001. The lien of the petitioner was refused to be retained with Cadet College Pallandri and consequently the refused to be retained with Cadet College Pallandri and consequently the petitioner couldn't join in F.G. Inter College Kotli despite selection overthere. It is alleged that in January, 2003 respondents initiated process for termination of petitioner's service on the baseless allegation that petitioner is Qadiari. A writ petition was filed before this Court for restraining the respondents to proceed against the petitioner on the ground stated therein. However, in the
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comments the respondents undertook not to oust the petitioner from service on the basis of his faith. In view of the undertaking and comments the petition was disposed of by this Court on 12-3- 2003 directing therein that the competent authority shall strictly adhere to the relevant rules in case of any disciplinary Action against the petitioner. It is also claimed that on the same date an explanation was sought from the petitioner and was also warned to improve his conduct. The petitioner was also issued a show-cause notice by the respondents along with the list of allegations. It is stated that the services of the petitioner stood terminated from the College on account of his unsatisfactory service, average grade in A CRs, misconduct and indiscipline attitude, vide order dated 14-7-2003. This order was also challenged by the petitioner before this Court through a writ petition on 29-7-2003. The petition was disposed of on the ground that a review filed on behalf of the petitioner against his termination order is awaiting disposal before the Board of Governors, which was directed to decide the matter within 60 days. The Board of Governors heard the petitioner and vide its order dated 3-6-2004 upheld the decision of termination from service of the petitioner. The above proceedings and orders are the subject-matter of this writ petition. It is alleged that the proceedings have been conducted in utter disregard of the mandatory procedure contained in the relevant service rules. It is also stated that the petitioner has not been provided with an opportunity of hearing before passing the impugned order and the punishment awarded to him couldn't be imposed in view of the provisions contained in Efficiency and Discipline Rules. It is also the case of the petitioner that neither the inquiry has been conducted nor the petitioner has been associated with any such inquiry. The Board of Governors has also not conducted the proceedings in a rightful manner and all the proceedings have been conducted on wrong assumption of facts. ' The facts stated in the writ petition have been controverted by the respondents by filing separate written statement. In the written statement filed on behalf of respondents Nos.2 and 3 it is alleged that petitioner was on probation and was not confirmed by the competent authority, therefore, his termination is not mala fide or without jurisdiction. It is also stated that petitioner was time and again advised to improve his conduct but failed, therefore, his services were terminated. It is also stated that proceedings taken as well as decision made by the respondents are strictly in accordance with the spirit of relevant provisions contained in the rules and no illegality or irregularity has been committed by the respondents. Respondents Nos.1, 4, 5 and 6 have filed written statement on the same lines and grounds which have been listed in the written statement filed on behalf of respondents Nos.2 and 3, therefore, need not be repeated. ' Mr. Abdul Rasheed Abbasi, the learned Advocate appearing for the petitioner, in support of the petition raised following submissions:-- (i) that the whole proceedings taken against the petitioner are mala fide, coram non judice, perverse and capricious for having been conducted in total disregard of the Cadet College Pallandri/Board Employees (Efficiency and Discipline) Rules, 1996; (ii) that the services of the petitioner were terminated on the ground of misconduct, disobedience and for being disrespectful. Thus these punishments couldn't be awarded in view of rule 4(b) (iv) of the said rules and if allegations are proved, even then the punishment provided under rule 4(a) (i) & (ii) read with clause (d) could not be imposed; (iii) that the petitioner has not been provided with the right of hearing before passing the impugned order; (iv) that the order has been passed on wrong assumption of facts showing the petitioner as a probationer whereas the fact of the matter is that petitioner was appointed on 7-9-1998 and in view of the rules the maximum period required for confirmation in service is 2 years, which stood expired on 7-9-2000, even in case of extension of the probationary period the petitioner stood confirmed on 12-9-2001, therefore, termination of the petitioner is based on speculation;
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(v) that the proceedings have not been taken in accordance with the dictates of rules. Neither a copy of the inquiry report has been furnished to the petitioner, nor the petitioner has been heard by the authorities before imposing the alleged penalty; and (vi) that petitioner has been discriminated and has also been denied the right of equality before law and equal protection of law. The learned Advocate, to support his submissions, referred to and relied upon the following cases: (i) 2004 PLC (C.S.) 843. (ii) PLD 1981 SC 176; (iii) 1983 CLC 266; (iv) PLD 1978 SC (AJK) 37; (v) PLJ 2001 SC (AJK) 50; (vi) 2003 SCMR 1505; (vii) 2002 PLC 163. (viii) 1992 SCR 370. ' In a case titled "Abdul Haq Mughal v. Muhammad Naseer Usmani and 2 others" (2004 PLC (C.S.) 843 it was opined that it is an established principle of law that an act is required to be performed in a particular manner. The act must be performed according to the prescribed manner or not at all. This view is based on a earlier judgment of the apex Court, reported as (PLD 1978 SC (AJK) 37). ' In the case titled "Syed Mir Muhammad v. N.-W.F.P. Government through Chief Secretary" (PLD 1981 SC 176) it was opined that rules 5 and 6 implicity require that a copy of inquiry report to be furnished to the accused official to enable him to offer his explanation with regard to adverse findings, if any, recorded against him and it was further opined that such requirement cannot be brushed aside by saying that such a course would amount to serving of a second show-cause notice. ' In the case titled "Ch. Munawar Hussain Bhatti v. WAPDA and 4 others" a similar view was taken and it was opined that appellant has a right to know as to which charge stood proved against him and he could discover this only from tile final show cause which is indispensable legal requirement. ' In a case titled "Govt. Of Azai Jammu and Kashmir v. Syed Mujahid. Hussain Naqvi" (PLJ 2001 SC (AJK) 50) it was opined that. "It is mandatory for Authority to observe principle of natural justice. Orders of reversion in lower grade or rank and order of dismissal from service are treated major penalties under Civil Servants (Efficiency and discrpline), Rules, 1977 and under their provisions, particularly rule 8 thereof, it is mandatory for an authority to observe principle of natural justice before passing such orders". ' In case titled "Khalid Saeed v. Shamim Rizvan and others" (2003 SCMR 1505) the same principle was reiterated. ' In Abdul Hameed Siddique's case (2002 PLC 163) it was opined that before awarding the major penalty of removal from service and passing an order for recovery of amount of alleged loss to the Department, the Authority was bound to provide opportunity of hearing to respondent. It is further opined that proceedings against the respondent have been conducted under the Efficiency and Discipline Rules in flagrant disregard of mandatory procedure prescribed in the relevant rules, which illegality has vitiated the whole proceedings. ' In a case titled "Hussain Ahmed Islahi v. Azad Govt. And others" (1992 SCR 370), the same principle was followed. It was additionally held that appellant was not given an opportunity of personal hearing which was the mandatory requirement and the order of penalty was declared as illegal and invalid. ' Mr. M. Tabassum Aftab Alvi, the learned Advocate, arguing on behalf of the respondents, referred to the minutes of the meetings of the Board of Governors held on 5-6-2002 and 5-3-2004 and contended that the impugned orders have been culminated from the afore-stated
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meetings/decisions of the Board of Governors, which have not been challenged by the petitioner, therefore, the petition merits dismissal in view of law laid down in 1992 SCR 214, 1997 PLC (C.S.) 1115, 1996 PLC (C.S.) 901 and 2002 PLC (C.S.) 1282. The learned Advocate further argued that as the petitioner was on probation, therefore, no notice was necessary to him as is visualized by the Cadet College Pallandri (General Conditions of Service) Rules, 1996, Reliance was placed on 1996 SCMR 770, 1999 SCMR 123, PLD 1974 SC 393 and PLD 1968 SC 47. It was also argued that neither the rules nor the facts argued at Bar have been challenged in the pleadings, therefore, the petitioner is estopped to raise any objection. ' In the case titled "Mirza Lal Hussain v. Custodian of Evacuee Property and others" (1992 SCR 214) it was opined that it is not a universal rule which may be necessarily applied in every case without regard to the consequences. While this rule would apply to cases where a person who is adversely affected by such an order doesn't come to know of its existence and has had no occasion to challenge the order there is no warrant for the conclusion that a void order should be left unchallenged. This principle was reiterated in Muhammad Naseer Jahangiri's case (1996 PLC (C.S.) 1115) and Ch. Muhammad Zaman's case (1996 PLC (C.S.) 901. This principle was also followed in Muhammad flays Khan's case (2002 PLC (C.S.) 1282. The other authorities cited by the learned Advocate as 1992 SCMR 770, 1989 SCMR 123, PLD 1974 SC 393 and PLD 1968 SC 47 in support of the argument that service of a probationer can be dispensed with without any show-cause notice. The pages referred to and relied upon are not correct; therefore, I am unable to discuss the authorities in detail. ' I have heard the learned Advocates for the parties and perused the record carefully. It is an admitted position that the service of the petitioner has been regulated by the rules known as Cadet College Pallandri (General Conditions of Service) Rules, 1996 and Cadet College Pallandri/Board of Employees Efficiency and Discipline Rules, 1996. For proper appreciation of the controversy in light of the respective arguments of the learned Advocates for the parties the relevant provisions contained in both the rules are reproduced as under: ' Cadet College Pallandri ' (General Conditions of Service) Rules, 1996. "10. PROBATION AND CONFIRMATION (1) A person appointed by initial recruitment to a substantive post shall remain on probation for a period of two years. A person promoted from a lower post to higher post shall remain on probation for a period of one year. (2) A person appointed to a substantive post/promoted to a higher post shall ordinarily be confirmed in that post and pay scale on the satisfactory completion of the probationary period. (3) The Appointing Authority may permit a period of officiating appointment, ad hoc appointment or contractual appointment on an equivalent or a higher post to be counted towards the probationary period for the purpose of confirmation on substantive post on which the employee holds a lien. (4) On or before the completion of the probation period, or the extended probationary period, as the case may be, the Appointing Authority may, if in the opinion of the said authority the work and conduct of the employee have not been satisfactory, dispense with the services of the employee, provided that the employee has been given a reasonable opportunity to show cause against such action. (5) On the expiry of the period of probation, the employee shall be confirmed if found suitable or the period of the probation may be extended for a further period not exceeding half of the period of probation. Before the completion of the extended period of probation, the Appointing Authority shall record or order, either confirming the probationer from such date as the Authority may deem fit or discharging him. If the services of the employee are not terminated before the expiry of the
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prescribed extended probationary period, he shall automatically stand confirmed in post on the expiry of that period. (6) In case of confirmed College/Board employee who is promoted to a higher post, the probationary period shall be one year. In the event of his being found unfit for the higher post, he may be reverted to his substantive post during the probation period, or his probation period extended further not beyond the period of six months. If such reversion order is not passed during the probation period/extended probation period, he shall automatically stand confirmed in the higher post." ' Cadet College Pallandri/Board Employees Efficiency and ' Discipline Rules 1996 "1. GROUND FOR PENALTIES. ' Where a College/Board employee, in the opinion of authority. (a) is inefficient, or has ceased to be efficient, whether by reasons of infirmity of mind or body, or otherwise, and is not likely to recover his efficiency; or . (b) is guilty of misconduct; or (c) is corrupt, or may reasonably be considered corrupt because:-- (i) he is or any of his dependents or any other person through him on his behalf is in possession (for which he cannot reasonably account) of pecuniary resources or of property disproportionate to his known source of income. Or (ii) he has assumed a style of living beyond his ostensible means, or (d) is engaged, or is reasonably suspected for being engaged, in subversive activities, or is reasonably suspected of being associated with others engaged in subversive activities, and whose retention in services is, therefore, considered prejudicial to national security, the authority may subject to the provisions of sub rules (4) (d) impose on him one or more penalties. 4. PENALTIES. ' The following are the minor penalties and major penalties namely:-- (a) Minor penalties: (i) Censure. (ii) The withholding of increment or promotion, for specific period; stoppage at efficiency bar for specific period. (b) Major Penalties: (i) recovery from pay of the whole or any part of any pecuniary loss caused to the college by negligence or breach of order, (ii) reduction to a lower post or pay scale, or to a lower stage in a pay scale. But an employee cannot be reduced lower than the post or scale on which he was initially recruited; (iii) compulsory retirement. (iv) Removal/termination from service. (v) Dismissal' from service. (c) Removal from service does not, but dismissal from service does, disqualify from future employment. (d) For misconduct any penalty in sub-rule (a) may be imposed, but the penalties to be ordinarily imposed for inefficiency shall be these set out in clause (ii) of sub-rule (a) and (i) (ii) or (iii) of sub- rule (b), and for corruption or subversion these set out in clauses (iii) (iv) or (v) of sub-rule (b) (e) No authority subordinate to that by which a College/Board employee was appointed shall be competent to impose on him any penalty set out in clauses (ii), (iii), (iv), (v) of sub-rule (b) of rule- 4. 5. INQU IRY PROCEDURE. Inquiry procedure in cases of subversion:
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(a) when a college/Board employee is to be proceeded against under clause (d) of rule 3, the authority:-- (i) may by order in writing, require the college/Board employee concerned to proceed on such leave as may be admissible to him and from such date as may be specified in the order; (ii) shall follow the procedure laid down in sub-rule (e) of rule-6 except in cases where the Chairman/Principal has decided that it would be prejudicial to the security of Pakistan/Azad Jammu and Kashmir or the person to be given reasonable opportunity of showing cause against the action proposed to be taken with regard to him. (b) In cases where it has been decided to deny opportunity of showing cause as per sub-rule A (ii). (i) The accused shall, by order in writing, be informed of the action proposed to be taken in regard to him giving grounds of that action. (ii) The Chairman shall appoint an Inquiry Officer constitute of Inquiry Committee consisting of:-- (a) Three members of the Board in case of Officers appointed by the Board. (b) A member of the Board and two senior members of the College staff in case of other staff. The Inquiry Officer or the Committee will probe into the charge and will submit its findings to the Chairman. (iii) The Chairman shall not be required to consult the Board before passing such orders on the findings as he may think fit. (c) In case of any ambiguity in these rules arises the Law/S&GAD Department of the Government of Azad Jammu and Kashmir shall be consulted and its opinion obtained, before starting the proceedings. (d) All proceedings in case of subversion shall be secret and no information relating to such proceedings shall be disclosed to any unauthorized person. 6. INQU IRY PROCEDURE IN CASE OF INEFFICIENCY, MISCONDUCT AND CORRUPTION:-- (a) When a college/Board employee is to be proceeded against under clauses (a), (b) or (c) of rule 3, the procedure in the following sub-rules shall be observed:- (b) The Authority may, if he thinks fit, appoint an officer of the college to which the college employee belongs to examine and report on the allegation against him to enable the Authority to decide whether a formal inquiry should be held. (c) If the Authority decides that a formal inquiry should be held it shall decide further whether the allegations, if established, would call for a minor or a major penalty. (d) (i) In cases calling for a minor penalty, the Authority of such officer as may be appointed by it in that behalf, shall frame a charge and in making it known to the accused shall call upon him to answer it within a specified time, which shall not be less than seven days nor more than fourteen days, and to state, together with his answer, whether he desires to be heard in person or to lead evidence in defence. (ii) On receiving the answer, the Authority, or the said officer shall if satisfied that there is a prima facie case, and if the alleged accused has so desired, give him the opportunity to be heard in person and to lead evidence in defence, provided that the Authority or the said officer may for reasons to be recorded, refuse to call a particular witness or to summon or admit particular evidence. (iii) If the alleged accused fails to answer within the specified time or having answered fails to appear or absents himself from the proceedings, the Authority or the said officer may proceed with the inquiry and record findings. (e) (i) In case calling for a major penalty the Authority having power to impose the penalty shall frame a charge, communicate it to the accused together with a statement of the allegation on which it is
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based and of any other circumstances which the Authority proposes to take into consideration when passing order on the case. (ii) The Authority shall require the alleged accused, within a reasonable time, which shall not be less than seven days nor more than fourteen days, from the day the charge has been communicated to him, to put in a written defence, stating at the same time whether he desires to be heard in person. (iii) If the accused so desires, or if the Authority concerned so directs, an Inquiry Officer to be appointed under rules-5 shall held an oral inquiry at which oral evidence shall be heard as to such of the allegations as are not admitted and the accused shall be entitled to cross-examine the witness against him to give evidence in person and to have such witnesses called for the defence as he may wish, provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a particular witness or to summon or admit particular evidence. (iv) The proceedings shall contain a sufficient record of the evidence and the Inquiry Officer's report of his findings and the grounds thereof. (v) When the Authority, having considered the report, has arrived at a provisional conclusion as to the penalty to be imposed, the accused (sic) and supply him with a copy of the report and call upon him to show cause within a reasonable time, which shall not be less than seven days and not more than fourteen days, why the penalty proposed should not be imposed. The Authority shall take into consideration any cause shown by the accused before passing orders. (0 Nothing in the preceding sub-rules shall apply:-- (i) Where the accused is dismissed or removed from service or reduced in rank on the ground of conduct which has led to a fine or of sentence of imprisonment; or (ii) Where the Authority competent to dismiss or remove a person or to reduce him in rank is satisfied that for reasons to be recorded by that Authority, it is not reasonably practicable to give the accused an opportunity of showing cause." ' A perusal of the provisions contained in Efficiency and Discipline Rules reproduced hereinabove reveals that for proceedings against an employee of the College or the Board the first step has to be taken by the Authority under clause (a) of rule 5 that requires the college/Board employee concerned to proceed on such leave as may be admissible to him and from such date as may be specified in the order. Under rule 5(b) the accused shall, by order in writing, be informed of the action proposed to be taken in regard to him giving grounds of that action. It is also postulated by the rules that the Chairman shall appoint an Inquiry Officer or constitute an Inquiry Committee as is visualized by rule 5(b) (i) and (ii). For the inquiry the procedure laid down in rule 6 has strictly to be observed. The basic and elementary requirement of rule 6 is that the Authority may, if he thinks fit, appoint an officer of the college to which the college employee belongs to examine and report on the allegation against him to enable the Authority to decide whether a formal inquiry should be held. This clause of rule 6 only visualizes to a preliminary or facts finding inquiry on the basis of which the Authority has to make up his mind for further proceedings. Under rule 6(c) on the basis of material the Authority will decide that whether a formal inquiry should be held or not? The Authority shall also decide as to whether the allegations, if established, would call for a minor or a major penalty. Under clause (d) of rule 6 in cases calling for a minor penalty the Authority or its delegatee shall frame the charge in making it known to the accused and shall call, upon him to answer it within specified time. On receiving the answer the Authority has to further judge and satisfy itself that whether there is a prima facie case against the accused and on affirmative conclusion the accused shall be given an opportunity to be heard in person and defence. Under clause (e) sub-clause (i) in cases calling for a major…
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