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Petitioner: CIVIL AVIATION AUTHORITY through Director-General VS Respondent: JAVED AHMADHonorable Justice Syed Zawwar Hussain JafferyMakhdoom Ali Khan,Syed Iftikhar Hussain Gillani
2009 P L C (C
2009 P L C (C.S.) 679
[Supreme Court of Pakistan]
Present. Abdul Hameed Dogar, C.J., Syed Zawwar Hussain Jaffery and Muhammad Farrukh Mahmud, JJ
CIVIL AVIATION AUTHORITY through Director-General
Versus
JAVED AHMAD and another
Civil Appeals Nos.509 and 571 of 2008, decided on 20th March, 2009.
(On appeal from the judgment, dated 23-4-2008 passed by the High Court of Sindh at Karachi, In Constitutional Petition No D-970 of 2007).
(a) Removal from Service (Special Powers) Ordinance (XVII of 2000)---
---Preamble---Service Tribunals Act (LXX of 1973), S.2-A---Misconduct---Compulsory retirement---Employee was neither dealt with fairly nor any enquiry was conducted in the matter---Departmental authorities, in spite of remand of the case by the Service Tribunal, dilated upon the merits of the case and formed its earlier opinion and became prejudiced towards the employee on the basis of other complaints and no opportunity in defence was provided to him---Department, in spite of reinstatement order, passed by High Court, did not allow the employee to join service which reflected that department had made up its mind to deprive the employee of his right---Departmental action on the statement containing 23 allegations which included additional allegations, was taken on malice and predetermined desire to get rid of the employee---Appeal of employee before the Service Tribunal having been abated High Court had the power to give directions to the effect that the employee may be reinstated in service however, in the present case, High Court wrongly observed that his intervening period may be treated as extraordinary leave without salary---No jurisdictional error, infirmity and illegality having been found in the impugned judgment, the same was maintained by the Supreme Court.
Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 200;, SC 602: Raja Riaz v. Chairman, Pak Space and Upper Atmosphere Research Commission 2008 SCMR 402; Muhammad Idrees v. Agriculture Development Bank of Pakistan and others PLD 2007 SC 681 ref.
(b) Constitution of Pakistan (1973)---
---Art. 199---Removal from Service (Special Powers) Ordinance (XVII of 2000), Preamble---Service Tribunals Act (LXX of 1973), S.2-A---Constitutional jurisdiction of High Court---Scope---Held, after abatement of service appeal and Service Tribunal having taken another view by entertaining service appeal involving departmental penalties and there being no appropriate remedy under the law available to agitate the grievance by the employee, High Court rightly entertained and disposed of the constitutional petition.
Makhdoom Ali Khan, Senior Advocate Supreme Court, Arshad Ali Chaudhry, Advocate-on-Record and M. Iqbal Chief Human Resources, Civil Aviation Authority for Appellant (in Civil Appeal No.509 of 2008).
Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Mehr Khan Malik Advocate-on-Record for Respondent No.1 (in Civil Appeal No.509 of 2008).
Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Mehr Khan Malik Advocate-on-Record for Appellant (in Civil Appeal No.571 of 2008).
Babar Ali, Advocate Supreme Court, Ch. Akhtar Ali, Advocate?-on-Record, Obaidul Rehman Abbasi, Regional Legal Officer, Civil Aviation Authority for Respondents (in Civil Appeal No.571 of 2008).
Date of hearing: 19th February, 2009.
JUDGMENT
SYED ZAWWAR HUSSAIN JAFFERY, J.--- These appeals, by leave of the Court, are directed against the judgment, dated 23-4-2008 passed by learned Division Bench of the High Court of Sindh at Karachi in C.P. No. D-970 of 2007 and the same are being disposed of by a common judgment as common questions of law and public importance are involved.
2. Brief facts, as enumerated in these appeals, are that Javed Ahmed (respondent in Civil Appeal No.509 of 2008 and appellant in C.A. No.571 of 2008) was inducted as a Deputy Manager on 10-5-1983 by the Civil Aviation Authority, a statutory Corporation formed under the Pakistan Civil Aviation Authority Act, 1982. He was promoted as a Corporate Manager in the year 1991. However, his performance in various jobs assigned to him by the Department remained unsatisfactory. There were a large number of complaints and successive acts of misconduct against him. Proceedings were initiated against him under the Civil Aviation Authority Service Regulations. A show-cause notice dated 14-4-2003 was issued to him. He filed his reply to the said show-cause notice. Personal hearing was also given to him by the Chairman, Civil Aviation Authority Board/Secretary, Defence. The allegations against him were duly proved. His reply was found unsatisfactory and he was awarded the punishment of compulsory retirement from service. He filed an appeal against his compulsory retirement before the Federal Service Tribunal. The Federal Service Tribunal after scanning the whole proceedings against him observed that the proceedings should have been initiated under the Removal from Service (Special Powers) Ordinance, 2000 (hereinafter referred to as R.S.O.) rather than the Civil Aviation Authority Service Regulations as R.S.O. has an overriding effect over all other laws. In view of this position the Federal Service Tribunal ignoring the merits of the case remanded the case of Javed Ahmad for the de novo proceeding strictly in accordance with the relevant laws on the basis of allegations as contained in the show-cause notice, dated 14-4-2003. He was serving in PG-9 of the Civil Aviation Authority which pay scale is equivalent to BS-18. As per Government Notification, dated 27-5-2000 the Managing Director/Chief Executive Officer of the said Organization was the officer authorized to exercise the powers of the competent authority under the R.S.O. Then on 20-12-2004 the competent authority issued an "order of inquiry" against Javed Ahmad as to comply with the aforesaid judgment of the Federal Service Tribunal and initiated de novo proceedings under R.S.O. by appointing an Inquiry Committee. On 5-1-2005 the Inquiry Committee issued a statement of allegations upon Javed Ahmad. In response to the statement of allegations he submitted a written defence on 10-1-2005. As per direction of .the Inquiry Committee, dated 11-1-2005 Javed Ahmed put his appearance on 15-1-2005 and he was asked to file a written reply. He entered into a chain of correspondence with the Inquiry Committee raising various frivolous objections. Show-cause notice dated 14-4-2003 was based upon the entire service record of Javed Ahmad alleging "a number of glaring complaints from various quarters showing the attitude of Javed Ahmad towards service and uncalled for behaviour including his doubtful integrity, stubbornness, over inquisitiveness, use of unfair means to acquire information, misuse of official authority and information, impersonation and indulging in other uncalled for activities". The statement of the allegations was served upon him which was the basis of show-cause noticed dated 14-2-2003. The following allegations which were duly supported were levelled against Javed Ahmad:--
"(a) Indiscreet, unbalanced, uncalled for activities with other functionaries of the airport.
(b) Aggressive behaviour, loose talk and threatening, adverse report from Intelligence Bureau.
(c) Violating the channel of correspondence in service.
(d) Termination of deportation with Maritime Security Agency due to "misconduct and hideous activity".
(e) Report of undesirable conduct from "Ministry of Defence" alleging attempts to threaten and bribe the witnesses.
(f) Using Naval rank despite being debarred from using the rank. Report from "Ministry of Defence" that the Navy had terminated the commission of the respondent No.1 and due to misconduct thereby debarring the respondent No.1 to use rank with his name.
(g) Not disclosing the reason for termination of service from the Pakistan Navy.
(h) Disrespect to service discipline and norms. Using influence for postings.
(i) Picking up quarrels, harassing the staff, misbehaving and using abusive language with the seniors.
(j) Report of grave misconduct of the respondent No.1 through Ministry of Defence.
(k) Causing loss to official vehicles and "managing" withdrawal of minor penalties awarded by the competent authority.
(l) Sexual harassment of a lady doctor.
(m) Misuse of official communications.
(n) Grossly misbehaving with senior Pilots.
(o) Report from Naval Headquarter that the commission of the respondent No.1 had been terminated due use of unfair means.
(p) Misbehaving with a corporate executive who was a senior citizen.
(q) Reports of corruption and illegal gratification received through City Nazim, Karachi.
(r) Uncalled for behaviour with High Commission of Pakistan while on a course in Singapore.
(s) Illegal construction on Government property.
(t) Report from ISI alleging that the respondent No.1 was a "corrupt officer, involved in corruption, womanizing/drinking and impersonation". This report quoted specific instances including molesting a lady on the promise of getting her a job in CAA and impersonating as a General.
(u) Report from Military Intelligence that the respondent No.1 had impersonated and unfairly used the name of Military Intelligence.
(v) At the time of employment in CAA, concealing the fact that respondent No.1 was Matric 3rd Division, inter 3rd Division and Graduate 3rd Division and that he had been terminated from Pakistan Navy on misconduct."
The Inquiry Committee after concluding the proceedings submitted its detailed findings to the competent authority finding laved Ahmad fully liable for each allegation levelled in the statement of allegations. In the light of the findings of the Inquiry Committee the competent authority served a show-cause notice upon Javed Ahmed on 30-3-2005 to show cause as to why major penalty of "dismissal from service" should not be imposed on him under section 3(1)(e) of the R.S.O. Javed Ahmad was also provided all the proceedings as well as the findings recorded by the Inquiry Committee along with the show-cause notice. Javed Ahmed submitted his reply to the said show-cause notice on 9-3-2005 denying all the allegations against him and asked for personal hearing. Personal hearing to him was provided on 19-3-2005 by the competent authority and he denied all the allegations against him and also made a written statement. Then on 25-3-2005 the competent authority after considering all aspects of the case awarded the major penalty of "compulsory retirement" to him.
3. Javed Ahmad being aggrieved and dissatisfied challenged the aforesaid order before the Federal Service Tribunal Karachi Bench through service appeal. While the appeal before the Federal Service Tribunal was pending, Javed Ahmed was informed through a notice issued by the Registrar of the Federal Service Tribunal that his appeal had abated in the case of Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602. It will be advantageous to reproduce the observation of the Federal Service Tribunal vide letter dated 30-6-2006 informing Javed Ahmad through Assistant Registrar that learned Federal Service Tribunal has directed him to inform the litigants in their respective service matters. The aforesaid letter is as under:---
"Federal Service Tribunal, Karachi
Dated the 30th June, 2006
I have been directed to inform the litigants in their respective service matters, that pending cases or proceedings, which are not protected or covered by the judgment of the apex Court, dated 27-6-2006 in Civil Appeals Nos.792 to 816 of 2005, etc. shall stand abated and that they i.e. litigants have been mandated by the apex Court to resort to the competent forums for redressal of their grievances within 90 days and the bar of limitation provided by the respective laws shall not operate against them till the expiry of the stipulated period. Further, it may be noticed that as held in 1999 PLC (C.S.) 1316.
There cannot be two opinions with regard to settled legal proposition that where abatement of appeal/proceedings results us as a consequence of operations of law, such abatement becomes operative ipso facto at once and there is no need or legal requirement for obtaining any formal order or declaration from the said forum or Court being seized of the matter and time wasted before those forums therefore, cannot be availed of by the concerned party under the guise of "pursuing the matter before competent forum" as in fact after abatement of the proceedings such forum cannot be held to be competent or proper forum. The only corollary pursuant to such discussion is that litigation before incompetent forum does not justify condonation of delay. We are fortified to hold so by relying upon the rules enunciated in the following precedents:--
(1) PLD 1983 SC 385(2), (2) 1975 SCMR 259, (3) 1985 SCMR 333, (4) 1985 SCMR 890, (5) 1991 SCMR 1841 and (6) 1997 SCMR 1167.
You are nevertheless being informed that your case Appeal No.297(K)(C.E.) of 2005 stood abated w.e.f. 27th day of June, 2006.
By order
(Sd.) (G.H. Channer), Assistant Registrar
Mr. Javed Ahmad son of Maj. (Rtd.) Ghulam Farooq, Resident of House No.63/0, Block 2, PECHS Society, Near Masjid Alflah, Karachi."
In the light of the direction of the Federal Service Tribunal vide letter, dated 30-6-2006 Javed Ahmed filed a constitutional petition before the High Court of Sindh, Karachi, challenging his compulsory retirement from service of the Civil Aviation Authority. The said petition was fixed before the learned Division Bench of the High Court on several dates for hearing from 29-5-2007 to 18-3-2008. On 18-3-2008 when the matter came up for hearing before the learned Division Bench of the High Court, the counsel of the Civil Aviation Authority pointed out irregularities and raised a fundamental objection regarding the maintainability of the petition. Javed Ahmed filed Constitutional Petition No. D-970 of 2007 under Article 199 of the Constitution of the Islamic Republic of Pakistan with the following prayers:---
"(a) To set aside and quash impugned order, dated 26-3-2005 (Annexure "P") and order the reinstatement of the petitioner in service of the respondent No. 1 or anybody in its succession with continuity with full back benefits/salaries treating the intervening period as on service as the petitioner continues to be unemployed.
(b) To declare the impugned orders to be illegal and against the principles of law and non-existent.
(c) To pass/issue such orders and make such other directions which are deemed to be necessary, fit and appropriate in the circumstances of the case redressing the grievances of the petitioner.
(d) Cost of the petition."
Respondent No.2 (Ministry of Defence) was impleaded as party by Javed Ahmad in the High Court of Sindh but no relief was claimed against it as it was only a pro forma respondent. It was prayed by the learned counsel for the Civil Aviation Authority that the Honourable Court may first decide the fundamental objection about the maintainability of the petition and after the decision on the maintainability of the petition, the Court may hear the submission on merits of the case if so warranted. But the learned Division Bench after hearing the learned counsel for the respective parties on the fundamental objection of the maintainability of the petition reserved its judgment. The same was listed for announcement in the cause list for 16-4-2008. However, neither the judgment was announced on the said date nor any reasons for non-announcement of judgment were assigned. Thereafter the judgment was signed on 23-4-2008 and the petition of Javed Ahmad was allowed. In the light of the judgment of the High Court, Sindh Javed Ahmed reported for duty to the Civil Aviation Authority along with certified copy of the impugned judgment on 25-4-2008 but the Civil Aviation Authority did not assign duties to Javed Ahmad in the light of the judgment nor he had been inducted by not implementing the same. Civil Aviation Authority have approached this Court by filing C.P. No.547 of 2008 whereby leave was granted.
4. Mr. Makhdoom Ali Khan, Senior Advocate Supreme Court appearing on behalf of Civil Aviation Authority has contended that in the previous round of litigation the order of compulsory retirement of Javed Ahmed passed by the department was assailed before the Service Tribunal at Islamabad which through its judgment set aside the order of the department of compulsory retirement of Javed Ahmed and directed de novo proceedings. Thereafter a fresh order of compulsory retirement of Javed Ahmed was passed by the department which was assailed before the Federal Service Tribunal which was of the opinion that because of the case of Muhammad Mubeen-us-Salam, the appeal of Javed Ahmad had abated and he was intimated to the said effect through a letter written by the Registrar of the Federal Service Tribunal. Whereas the view of learned Advocate-Supreme Court that the appeal was competently filed before the Federal Service Tribunal and it could not abate merely through a letter of the Registrar of the said Tribunal. Therefore, the appeal shall be deemed to be pending. But at the same time Javed Ahmed approached the High Court of Sindh through Constitutional Petition No. D-970 of 2007 and learned Division Bench of the High Court vide its judgment dated 23-4-2009 allowed the constitutional petition and ordered reinstatement of Javed Ahmad. It was inter alia contended that the issue of the maintainability was raised before the High Court, as it is apparent from the last paragraphs of the impugned judgment yet the High Court did not attend to the same. It was vehemently argued that because of the parameters laid down in Muhammad Mubeen-us-Salam case, the constitutional petition before the High Court was not maintainable. Prima facie, we find force in the arguments of the learned counsel of Civil Aviation Authority. Leave was granted to examine whether the constitutional petition filed by Javed Ahmad before the High Court was competent and whether the High Court was competent to order reinstatement of Javed Ahmad and whether the High Court was not competent to decide the issue of the maintainability of the constitutional petition which was specifically raised before it. The learned counsel has further urged that the impugned judgment is contrary to the judgment of this Court in the case of Raja Riaz v. Chairman Pak. Space and Upper Atmosphere Research Commission 2008 SCMR 402. In the instant case Civil Aviation Authority has acted strictly in accordance with law and the entire exercise of the dismissal of Javed Ahmad from the service of the department had been carried out in transparent, judicious and equitable manner after providing full opportunity of defence to Javed Ahmad. It has been held by this Court in Muhammad Mubeen-us-Salam case that the employees of Public Sector Corporation or Authority in the absence of any statutory rules cannot be deemed to be public servants and claim damages was the only remedy available to Javed Ahmed by breach of the terms of contract. It is further pointed out by the learned counsel that as per statement of allegations over 30 allegations had been levelled directly against Javed Ahmed which were duly supported by official records and Javed Ahmed was provided full opportunity to disprove such allegations. The Inquiry Committee after examining the defence advanced by Javed Ahmed gave categorical findings of fact on each allegation holding Javed Ahmed guilty of the allegations levelled against him. In support of his arguments he has relied upon Raja Riaz v. Chairman Pakistan Space and Upper Atmosphere Research Commission, Karachi 2008 SCMR 402. Javed Ahmed also filed C.P. No.681 of 2008 against the impugned judgment of the High Court of Sindh and also challenged the portion of the impugned judgment as to disallowing the salary to him for the intervening period when he remained out of the job since 18-6-2003. The said C.P.L.A. came up for hearing on 18-6-2008 and leave was granted and it was directed that both the appeals be clubbed together and fixed for hearing. He has also placed on record a photo copy of C.As. Nos.1555, 1558 to 1560, 1564, 1990 and 2734 to 2736 of 2006 delivered on 16-10-2008 by this Court wherein it was held by this Court that the Federal Service Tribunal had taken a somewhat different view by entertaining the service appeals, involving the departmental penalties imposed under the provision of Removal from Service (Special Powers) Ordinance XVII of 2000. The appeals were allowed and impugned judgments passed by the Federal Service Tribunal were set aside. Therefore, the appeal preferred by Javed Ahmed before the Federal Service Tribunal may be presumed to be pending for a decision afresh.
5. Conversely, Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court, appearing on behalf of Javed Ahmed has contended that Constitutional Petition No.D-970 of 2007 was presented on 23-4-2007 in the High Court of Sindh against the order dated 26-3-2005 passed by the department whereby Javed Ahmed was compulsorily retired from service. His petition was allowed by the learned High Court vide order, dated 23-4-2008 by setting aside the departmental order, dated 26-3-2005 with the direction that Javed Ahmed may be reinstated in service and his intervening period without service may be treated as extraordinary leave without salary. Since the departmental order, dated 26-3-2005 was set aside and Javed Ahmed was entitled to all benefits available to him under the law and the salary for the intervening period as he remained out of job since 18-6-2003. Javed Ahmad was not dealt with fairly and after remand of his case by the Service Tribunal the department took the matter as prestige and ignored the relevant law and failed to provide natural justice. The disciplinary proceedings were not carried out according to paras.5.05, 5.07 and 5.08 to 5-16 of Civil Aviation Authority Service Regulations. The case of misconduct could not be proved against Javed Ahmed. The punishment of compulsory retirement was contrary to the mandatory provisions of R.S.O. The de novo trial was illegal and liable to be set aside as the same was contrary to the orders of the Federal Service Tribunal as well as the principle of de novo trial. Therefore, the portion of impugned judgment of the High Court treating the intervening period without service as extraordinary leave without salary is not sustainable in law. The statement of allegations dated 4-1-2005 contains not only new allegations but some of the old allegations were missing. The statement of the allegations was not in accordance with the relevant law as the same was signed by the Director-General posing himself to be the competent authority whereas he is not the competent authority under the R.S.O. The inquiry was also concocted contrary to the norms of the inquiries as there was no prosecution statement. There were several charges which do not constitute misconduct under the law. None of the allegations were proved in the inquiry proceedings whereas Javed Ahmad was punished on the allegations of so-called complaints and material supplied by others but no such person was examined in the inquiry and on the basis of hearsay evidence Javed Ahmad was found guilty which was not substantiated. Javed Ahmad should not suffer by the act of State/functionary as he was falsely involved in the litigation and his prayers had been allowed by the High Court through the impugned judgment. The point of maintainability as agitated by the learned counsel of the Civil Aviation Authority was taken into consideration by the High Court of Sindh in its impugned judgment. The disciplinary proceedings against Javed Ahmad under the Civil Aviation Authority Service Regulations were illegal, ab initio, null and void as in view of the promulgation of R.S.O. disciplinary proceedings had to be taken under the said Ordinance and not under the Civil Aviation Authority Service Regulations, therefore, it was argued before the Federal Service Tribunal that it was a case of misapplication of law, therefore, without adverting to the merits of the case the matter was remanded to Civil Aviation Authority for de novo proceeding against Javed Ahmad strictly in accordance with the relevant laws on the basis of same allegations as contained in the show-cause notice, dated 14-4-2003. The Appeal No.616(K)(C.E.) of 2003 filed by Javed Ahmad was allowed and the impugned orders were set aside with the direction that Javed Ahmed shall be reinstated in service but question of payment of back-benefits shall depend upon the result of de novo proceedings. The de novo trial was directed by the Federal Service Tribunal to be done "strictly in accordance with the relevant law". The statement…
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