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Official Citation: 2017 SCMR 347
Court / Jurisdiction: Sindh High Court
Year of Decision: 2018
Decision Date: 2018-04-05
Parties: Asif Abbasi vs N.E.D University & others
This judicial decision was delivered by the Sindh High Court on 2018-04-05. The matter involves proceedings between Asif Abbasi and N.E.D University & others, officially reported as 2017 SCMR 347. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 2017 SCMR 347
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan, Adnan-ul-Karim Memon Title: Asif Abbasi vs N.E.D University & others Case No.: C.P No.D-3292 of 2012 Date of Judgment:2018-04-05 Reported As: 2018 SHC 602 Result: Petition disposed of
Judgment ADNAN-UL-KARIM MEMON, J: - Through the instant Petition, the Petitioner has prayed for the following relief(s). i) Declare that the major penalty of dismissal form service against the petitioner by Respondent No.3 (Syndicate) in pursuance of clause 5(1) (b) (iv) of the NED University Employees Efficiency & Discipline Statues 1990 vide order dated 11.11.2011 is without lawful authority and is illegal, unlawful, unconstitutional, mala fide, arbitrary , discriminatory and in violation of principle of natural justice, equity and fairness. ii) Declare that dismissal order dated 11.11.201 1 was passed under NED University Employees Efficiency & Discipline Statues 1990 which is repealed law not in field after the Removal from Service (Special Powers) Sindh Ordinance 2000. iii) Set aside the order dated 11.11.2011 passed by the Respondent No.3 (Syndicate) without lawful authority and order for the reinstatement of the petitioner in service on his substantive post of Assistant Professor in BPS-19 in the department of civil Engineering NED University of Engineering & Technology Karachi with all back benefits. iv) Declare that the act of the respondent No.2 (Vice Chancellor) for keeping the review application pending for the last 9 months despite the reminder of the Petitioner dated 19th May, 2012, is based on mala fide intention of the Respondent NO.2 (Vice Chancellor) and is illegal, unlawfu l, mala fide, arbitrary and in violation of principle of natural justice, equity and fairness. v) Declare that the so-called ex-parte inquiry conducted absent the Petitioner without complying with the order of this Hon'ble Court dated 25.11.2008 and 11.01.2010 is based on mala fide intentions of the respondents and is illegal, unlawful, unconstitutional, having no legal ef fect. 2. Brief facts of the case are that the Petitioner was appointed as Lecturer in BPS-17 on 7t October , 1997 in the Respondent N.E.D University and thereafter he was appointed by the Respondent University as Assistant Professorh
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in BPS-18 vide order dated 30.07.2005. It is the claim of the Petitioner that he performed his duty with dedication and honestly in the Respondent University . The Petitioner has further submitted that the Respondent University due to certain allegations issued him a Charge Sheet dated 19t July, 2006 under the Provision of Claus e 6 of the University Employees Efficiency & Discipline Statute, 1990. Thereafter the Respondent No.5 was appointed as an inquiry officer and disciplinary proceedings against the Petitioner were initiated under the Removal from Service (Special Powers) Sindh Ordinance, 2000 (RSO, 2000), as well as, NED University Employees Efficiency & Discipline Statute, 1990 read with the Removal from Service (Special Powers) Sindh Ordinance, 2000 having an overriding effect on other laws in force. It is averred in the Petition that if there were allegations against the Petitioner, he should have been proceeded against in accordance with the relevant law and not otherwise and the Respondent No.5 on the basis of an incomplete inquiry, submitted his report to Respondent No.2, without even considering the points raised by the Petitioner in his final reply and the Respondent No.2 submitted the Report to the Respondent No.3 without serving Final Show Cause Notice on him, which is against the E & D Statutes, as well as, RSO 2000. However, the Respondent No.3 decided to impose major penalty of removal of the Petitioner from service in terms of clause 5(1)(b)(iii) of the NED University Employees Efficiency & Discipline Statue, 1990 as amended. The Petitioner has further averred that Final Show Cause Notice was served upon him by the Respondent No.4 vide letter dated 23d September 2006 and the Petitioner replied to the said Show Cause Notice on 6t October 2006; but, finally he was removed from service by the Respondent University vide their office order dated 20.11.2006. The Petitioner filed a Review Petition dated 4t December, 2006 under Section 36 of the NED University of Engineering & Technology Karachi Act, 1977, which was rejected by the Respondent University vide its letter dated 16.02.2007. The Petitioner impugned the order in Constitutional Petition No. D-358/2007, which was filed on 20.11.2006 and this Court vide order dated 25.11.2008 set aside the impugned termination order with direction that the proceedings, if any, may be initiated against the Petitioner under RSO, 2000 with further direction to the Respondents to allow the Petitioner to cross-examine the witnesses and thereafter complete the inquiry within two months after his reinstatement. It is further averred that the Petitioner was not reinstated in service, he was compelled to file an application against the respondent No.2 for contempt of the Court order, which was disposed of vide this Court's order dated 11.01.2010 on the basis of the statement of the Respondent's counsel assuring reinstatement of the Petitioner. Accordingly, the Petitioner was reinstated in service by the Respondent No.4 on 18.01.2010 and the Respondent No.5 issued letters to the Petitioner, directing him to appear in the inquiry proceedings, but the Petitioner did not participate in the inquiry proceedings and thereafter the Respondent No.5 conducted ex-parte proceedings of the inquiry against the Petitioner. The Petitioner was then called for personal hearing by the Respondent No.3 on 20.09.2011, wherein he appeared in person and reiterated his earlier stance taken in his letters to the Registrar and the Inquiry Officer of the Respondent University. The Respondent No.3 awarded major penalties of dismissal of the Petitioner from service vide its resolution No. Syn-162.9(b) dated 20.09.2011 in pursuance of the Clause 5(1)(b)(iv) of the NED University Employees Efficiency & Discipline Statue, 1990. Order dated 11.11.2011, to this effect, was then delivered to the Petitioner on 03.12.2011. The Petitioner being aggrieved by and dissatisfied with the order regarding his dismissal from service filed the instant Petition. 3. Upon notice, the Respondent-University filed para-wise comments and denied the allegations. 4. Mr. Ahmed Ali Ghumro, the learned counsel for the Petitioner has contended that throughout the disciplinary proceedings, conducted against the Petitioner , the Respondent No.2 (Vice-Chancellor) was biased with the Petitioner , who has inferred that the Petitioner vide order dated 30.03.2006, but, the fact is that the Petitioner never resigned from the service. According to him this of the Respondent No.2 was illegal, mala fide, unconstitutional, ultra vires, discriminatory , arbitrary and is in violation of the principles of natural justice, equity and fairness. He further submitted that on the basis of a one-sided unfair enquiry conducted by the Respondent University under RSO, 2000 and University Employees Efficiency and Discipline Statute, 1990 a major penalty for removal of the Petitioner from the service vide order dated 20.11.2006 under University Employee s Efficiency & Discipline Statute, 1990, was imposed. He stated that the Chancellor of the Universities in Sindh/ Governor Sindh, vide order dated 14t June, 2001 had communicated to all the Vice Chancellors of the Universities that in future all the universitiesh r h h h
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must take action against their employees under the Removal from Service Laws. The Petitioner assailed the order dated 20.11.2006 regarding his removal from service through Constitutional Petition No. D-358/2007, which was disposed of by setting aside the order dated 25.11.2008 with direction that the proceedings initiated against the Petitioner would be treated under RSO, 2000, and the Petitioner would be provided an opportunity to cross examine the witnesses and produce his own witnesses, if he desires necessary and a fresh enquiry report would be completed within two months and submitted before the Syndicate. According to him, the Court 's order was not complied with upon which the Petitioner filed application for contempt of the Court order 's dated 25.11.2008 against the Respondent No.1. The Court observe d that on the strength of the order dated 25.11.2008 the Petitioner stood reinstated and was asked to participate in the enquiry . The Counsel for the Respondents stated that a formal order would be issued to the Petitioner where after he would be obliged to participate in the enquiry . The Counsel for the Petitioner continued to argue by referring to the office order dated 18.1.2010 issued by the Respondent No.1 in pursuance of the Court 's order dated 11.1.2010 stated that neither the Petitioner was reinstated as per the spirit of the Court 's order dated 25.11.2008 nor enquiry was conducted and a concocted report was placed before the Syndicate in its meeting on 20.9.201 1. He submitted that the Petitioner denied all the allegations before the Syndicate, however , the Syndicate vide its Resolution No. Syn. 162.9 (b) dated 20.9.201 1 passed in pursuance of Clause 5 (1) (b) (iv) of NED University Employees Efficiency & Discipline Statutes 1990, dismissed the Petitioner from the service, which action; according to him is against the Court 's order dated 11.1.2010 and mala fide. The Counsel further concluded that the Gove rnor/ the Chancellor of the Universities circulated order dated 14t June 2001 to all the Vice Chancellors of the Universities that in future all the Universities would take action against their employees under the Removal of Service (Special Powers) Sindh Ordinance, 2000 having an overriding effect upon other laws and according to him from which it is crystal clear that the order dated 11.11.201 1 regarding dismissal of the Petitioner 's service is mala fide and unlawful as well and against principles of natural justice. The Counsel further argued that the Respondent No.5/Enquiry Officer is also member of the Respondent No.3/Syndicate, who participated in the proceedings relating to the petitioner wherein the penalty imposed on the Petitioner was enhanced from removal of the service to that of dismissal from the service, which is also violation of the Court 's Order dated 25.1 1.2008 and is illegal. 5. Mr. Khalid Jawed learned counsel for the Respondent University argued that the Petitioner has challenged his dismissal from service by the Respondent NED University under the NED University Employees Efficiency and Discipline Statute 1990, which are Non-statutory Service Rules and as such the Constitutional Petition filed under Article 199 of the Constitution is not maintainable in law as the relationship between the Petitioner and Respondent University is that of "Master and Servant"; that it is well settled that where the conditions of service of the employees of a statutory body are not regulated by Rules/Regulations framed under the Statute but only Rules or Instructions are issued for its internal use, any violation thereof cannot normally be enforced through writ jurisdiction and they would be governed by the principle of "Master and Servant."; that no action and/or inaction on the part of the answering Respondents impugned in this Petition has been taken in disregard of any of the procedural requirements and there is no violation of principle of Natural Justice; therefore, the Constitutional jurisdiction of this Court under Article 199 of the Constitution, 1973 cannot be invoked and as such the interference by invoking writ jurisdiction of this Court cannot be asked for as prayed by the Petitioner.; that the Petitioner has claimed his alleged rights on the basis of Instructions, Rules issued by the Respondent University namely NED University Employees Efficiency & Discipline Statute 1990, which have not been treated as Statutory Rules of the nature, which would bring the case of the University within the qualification that its employees in case of any grievance could maintain action on the ground of breach of such instructions/rules of service under Article 199 of the Constitution 1973. He further argued that by virtue of non-statutory rules of the Respondent University employment of the Petitioner with the answering Respondent University was purely contractual; hence, the Petitioner was governed by the principle of "Master and Servant" and the Petitioner is not an aggrieved person to file Constitutional Petition, who had already joined the Sir Syed University of Engineering & Technology on 6t September 2008 and is continuing there in the capacity of Assistant Professor in Civil Engineering Department, hence the Petitioner is not legally entitled to file the instant Petition, who was given several opportunities to appearh h
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before the Enquiry Committee, but he blatantly refused to appear on the premise that first he be reinstated in service then he would appear . Per learned counsel this is hardly a ground to take the plea of not appearing before the enquiry committee and he has committed misconduct. Therefore, the Petitioner is not entitled to be reinstated in service and he was dismissed from service vide impugned order dated 11.11.201 1 after complying all requisite formalities and after providing ample oppo rtunities to the Petitioner to defend his case, but to no avail, the Counsel concluded. He further stated that the Respondents have not violated any Provision of RSO 2000 as alleged. He lastly prayed for dismissal of the instant Petition. 6. We have heard the learned counsel for the parties and perused the material available on record and case law cited at the bar . 7. First of all, we address the question of maintainability of the instant Petition under Article 199 of the Constitution. Prima-facie, it appears that NED University of Engineering & Technology Karachi is a public Sector University and a statutory body in terms of Sindh Act No III of 1977. As per Section 3(3) of Sindh Act No III of 1977, Respondent- University is a Body Corporate performing functions in connection with the affairs of the Province. The functions of University have an element of Public Authority hence; the same is amenable to Writ Jurisdiction. In this view of the matter , the status of Respondent-University can ordinarily be regarded as a person ? performing functions in connection with the affairs of the Province within the meaning of Article 199 (1) (a) (ii) read with Article 199 (5) of the Constitution. The test laid down by the Honorable Supreme Court in Paragraph 50 of the judgment rendered in the case of Pakistan Defense Housing Authority & others vs. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707 ) is fully applicable to the instant Petition. The Honorable Supreme Court while discussing the status and functions of various authorities held that:- "these are statutory bodies, performing some of the functions which are functions of the Federation State and through the exercise of public power, these bodies create public employments. These bodies are therefore "persons" within the meaning of Article 199(1) (a)(ii) read with Article 199(5) of the Constitution. If their actions or orders passed are violative of the Statute creating those bodies or of Rules/Regulations framed under the Statute, the same could be interfered with by the High Court under Article 199 of the Constitution." (Emphasis added). 8. Respondent-University being a Public Sector Entity is receiving funds from the Government of Sindh pursuant to Section 47(2) of the Sindh Act No. III of 1977 and the Government is exercising powers in connection with the affairs of the University , which include appointment of Vice Chancellor of the University . Furthermore, as per The Sindh Universities and Institutes Laws (Amendment) Act, 2014, the legislature has made amendments in the laws of 20 Universities/Institute of Sindh to maintain uniformity in the Organization, Management and control of public sector Universities in the Province of Sindh. The amendment provides for that the Vice Chancellor shall be appointed by the Chancellor of the Respondent-University on the advice of the Government, for a period of four years, which may be extended for one more term on such terms and conditions as the Government may determine. Therefore, it is clear that the Government of Sindh has role in the af fairs of Respondent University . 9. In view of the Provisions referred to in the statute of the Respondent University , it is obvious that the Government of Sindh has control of the affairs of the Respondent-University . Guidance is also taken from the decision of the Hon'ble Supreme Court given in the case of Abdul Wahab and others Vs. HBL and other s (2013 SCMR 1383 ). In this judgment, the Honorable Supreme Court has held that two factors are most relevant i.e. the extent of financial interest of the State/Federation in an Institution and the dominance in the controlling affairs thereof. The same principle is laid down in the case of Salahuddin Vs. Frontier Sugar Mills and Distillery Ltd. (PLD 1975 SC 244), and therefore this Court has jurisdiction to entertain this Petition. 10. So far as the objection of learned counsel for Respondent- University on the issue of statutory and non- statutory rules is concerned, in similar circumstances in respect of statutory or non-statutory Rules of University , the Hon'ble Supreme Court of Pakistan has taken into consideration the above referred proposition in the case of Rector National University of Science and Technology (NUST) Islamabad and others Vs. Driver Muhammad Akhter rendered in Civil Appeal No.495 of 2010 decided on 28.04.201 1, held as under:-
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"4. The learned counsel produced a copy of the statutes called the National University of Sciences and Technology (Enforcement of Academic, Service, and Financial Matters) Statutes, 2005, made by the Board of Governors in exercise of the powers conferred upon it by subsection (2) of Section 21 of the University of Sciences and Technology Act, 1997, in order to "regulate the creations of institutes and faculties etc and for enforcement of academic, service, appointment, discipline and financial matters". Section 21 of the Act provides for making of statues to regulate, inter alia, service, pension and fringe benefits and other terms and conditions of services of the employees of the University. Subsection (2) provides the procedure that "Draft of the statues shall be proposed by the Executive Committee for approval by the Board which may approve them or refer them back for reconsiderations". Subsection (3) further mandates that "no statue shall be valid until it has been approved by the Board/Chancellor." Section 21 neither requires approval of the Government of the proposed statues or its notification. It prescribes its own procedure. The draft statutes become enforceable upon its approval by the Board of Governors. The case of Chairman, State Life Insurance Corporation v Hamayun Irfan (ibid) is clearly distinguishable as there the Regulation making power conferred by the statute on the Corporation required the previous approval of the Central Government, followed by notification of the Regulation in the official gazette. The Court was, therefore, interpreting the particular rule making power, while holding and as a matter of fact such requirements were fulfilled and that the Regulations were statutory. We have no doubt in our minds that the National University of Sciences and Technology (Enforcement of Academic, Service, and Financial Matters) statutes, 2005, are statutory in nature as they were framed in accordance with the procedure prescribed in the statute. Since this was the only ground on which leave was granted, the appeal is dismissed." (Emphasis added). 11. For the above proposition of the law, a guidance has also been sought from the Judgment of Hon?ble Apex Court rendered in the case of Shafique Ahmed Khan and others Vs. NESCOM through Chairman, Islamabad and others ( PLD 2016 SC 377 ) has held as under:- "Fact that certain rules or regulations were framed without the approval of the Federal Government was not the sole criteria to term them as non-statutory in nature. It was indeed there nature and area of efficacy which were determinative of their status. Rules dealing with instructions for internal control or management were treated as non-statutory while those whose area of efficacy were broader and were complementary to the parent statute in the matters of crucial importance were statutory. The Rules framed under Section 7, 9 and 15 of the Act fell in the latter category as they were not only broader in their area of efficacy but were also complementary to the parent statute in matters of crucial importance. It would rather be nave and even myopic to equate the rules of the authority dealing with matters of crucial importance having so wide a scope and area of efficacy with the instructions meant for internal arrangement and thereby depriving them of their statutory status. Although, said rules had not been framed with the intervention and approval of the Federal Government, but that would not prevent them from being statutory. Firstly because, approval of the Federal Government was not required either under Section 9 or 15 of the Act; secondly because, all those who called the shots were already part of the authority while framing the rules, and thirdly because, the scope and area of their efficacy not only stretched beyond the employees of the authority but over reached many other strategic organization including nuclear and space related technologies systems and matters, as mentioned in section 8 and 9 of the Act. Rules enacted and approved by members of the Authority under Section 7, 9 and 15 of the Act also did not require another approval of yet any other personage." 12. The above principle in respect of the statutory or non-statutory nature of the statute has further been strengthened by the decision of the Hon?ble Supreme of Pakistan in the case of Muhammad Zaman and others Vs. Government of Pakistan through Secretary Finance Division (Regulation Wing), Islamabad and others( 2017 SCMR 347) and in paragraph No.7 has held that:- "According to the judgment delivered in Civil Appeal No.654/2010 etc. titled Shafique Ahmed Khan, etc v. NESCOM through its Chairman, Islamabad, etc. the test of whether rules/regulations are statutory or
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otherwise is not solely whether their framing requires the approval of the Federal Government or not, rather it is the nature and efficacy of such rules/regulations. It has to be seen whether the rules/regulations in question deal with instructions for internal control or management, or they are broader than and are complementary to the present statute in matters of crucial importance. The former are non-statutory whereas the latter are statutory." (Emphasis added). 13. In the light of the above dicta, it is safely concluded that that the instant Petition is maintainable and can be heard and decided on merits by this Court while exercising Constitutional jurisdiction under Article 199 of the Constitution, 1973. 14. On merits, we hereby proceed to determine the controversy between the parties with respect to dismissal from service of the Petitioners by Respondent-University .The basic allegations against the Petitioner are as follows:- "You failed to assess the examination scripts and submit the result of the following theory papers of the Annual Examinations 2005, which were delivered to you on 07.12.2005 by the Examination Department. 1. CE 104: Engineering Materials First Year (Civil Eng.) 149 Scripts 2. CE 104: Engineering Materials First Year (Urban Engg.) 37 Scripts i). failed to assess properly the examination scripts of the following theory papers of the Annual Examinations 2005, which were delivered to you on 17.1 1.2005 by the Examination Department. 1. CE 205: Mechanics of Solids-I Second Year (Civil Engg) 1 15 Scripts 2. CE 212: Mechanics of Solids-I Second Year (Urban Engg) 26 Scripts ii) failed to submit the result of theory papers within specified time period i.e. latest by 03.12.2005 but also had caused damage to and torn-out the papers form five examination scripts before all the scripts were recovered from your custody by a University team headed by the Chairman, Department of Civil Engineering on 22.12.2005 from your residence. iii).failed to submit the Award Lists of the practical examinations conducted for the following papers within specified time period: 1. CE 104: Engineering Materials First Year (Civil Engg) 2. CE 104: Engineering Materials First Year (Urban Engg) 3 CE 205: Engineering Materials First Year (Civil Engg) 4.CE 212: Engineering Materials First Year (Urban Engg) iv) failed to perform the duty to good order…
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