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Petitioner: NASEEM AHMED VS Respondent: BALOCHISTAN DEVELOPMENT AUTHORITY through its JUDGMENT
Court Name: Balochistan High Court Judge(s): Abdul Qadeer Chaudhry, Amir-ul-Mulk Mengal Title:NASEEM AHMED vs BALOCHISTAN DEVELOPMENT AUTHORITY through its
JUDGMENT
Reported As: PLD 1990 Quetta 8 Result: Petitions dismissed Judgment JUDGMENT AMIRU-UL-MULK MENGAL, J.--By this common judgment we intend to dispose of C.P. No.188 of 1988, C.P. No. 189 of 1988, C.P. No. 190 of 1988 and C.P. No.191 of 1988 filed by Naseem Ahmed C.P. No.192 of 1988 and C.P. No.193 of 1988 filed by Waqar Alam and C.P. No.194 of 1988 filed by Nishat Nabi Qureshi, since the facts involved and the legal points raised in all these petitions are identical. There were allegations of misconduct and misappropriation of huge quantity of material and money to the tune of several lacs of rupees against the three petitioners who were all employees of B.DA. Facts if succinctly stated reveal as under:-- 2. Petitioner Naseem Ahmed was appointed on 3-3-1976 in NPS-19 as General Manager (Operations) Balochistan Development Authority (hereinafter referred to as the "BDA") under the provisions of the Balochistan Development Authority Act (Act X of 1974) (hereinafter referred to as the "Act of 1974") and as General Manager (Operations) the petitioner was Incharge of the affairs of the following projects namely:-- INDUSTRIES SECTOR: (a)Brick Plant Quetta. (b)Tiles Factory Quetta. (c)Marble Processing Plant, Quetta. (d)Khuda-i-Dad Glass Factory, Quetta. MINING SECTOR (a)Flourite Mining Industries Kalat. (b)Quartzite Mining in Lasbella district.
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(c)Building Stone Project in Lasbella District. Besides as General Manager Operations, the petitioner also held extra charge of Managing Director of Pakistan Chrome Mines Limited for years 1980 to 1984. In addition to the aforesaid, the petitioner was also assigned the Secretaryship of Board of Directors for Balochistan Sulphere (Private) Limited (a joint venture of BDA with private sector). 3. Petitioner Waqar Alam was appointed as Deputy Manager (Research) BDA on 16-10-1975 in BPS- -16. He was promoted in B.P.S.-17 in June, 1976 and later to B.P.S.-18 in February, 1985. During the aforesaid period the petitioner worked as Deputy Manager, Manager (I&M) Plant Manager and Additional General Manager. While posted as Manager Bricks Plant, the petitioner was also directed to hold additional charge of Tiles Factory Quetta until further orders vide order of General Manager (Industries), dated 8-1-1978 and the said charge was held by him from 9-1-1978 to 25-1-1978. 4. Petitioner Nishat Nabi Qureshi was offered the post of Exploration Geologist, on 18-4-1982 in Grade-17. He was appointed as Manager Flourite Project in 1983 where he remained uptil 1985. Thereafter he was appointed and posted as Manager (in office) BDA. 5. On 2-6-1985 a report was lodged by one Mr. Irfan Mehmood Durrani of BDA with anti-Corruption Establishment Quetta wherein allegations of shortage of Tiles in Tiles Factory and other acts of omissions and commissions against certain officers of BDA were levelled. Thereupon F.I.R. No,10-Q of 1985 was registered under section 409/467/471, P.P.C. Read with section 5(2) of Act II of 1947. 6. Agha Aman Shah, the present Chairman of the BDA took over the charge of BDA in January, 1987 and noted certain misconduct and misappropriation on the part of officials of BDA. He informed the Board of Directors that some enquiries are pending against the said officials to which the Board decided as under:-- "the above enquiry should be conducted by a neutral body, such as Chief Minister's Inspection Team, co-opting such members who are technically qualified to find negligence, alleged misappropriation and mismanagement on the part of the officers of BDA." The Chairman further requested the Secretary Finance who is also the Chairman Governor's Inspection Team to help BDA for nominating neutral enquiry officer for pending enquiries of BDA." Seven officers including the present petitioners were placed under suspension. In subsequent meeting held on 31-3-1987 four more officers were suspended. On 1-10-1987 petitioner Naseem Ahmed was served with an explanation order in respect of the allegations detailed therein (ANNEXURE 'E.). Subsequent thereto a show-cause notice, dated 26-11-1987 was issued (ANNEXURE T). The same was replied on 20-12-1987 (ANNEXURE `M'). It was mentioned in reply that the petitioner had been handicapped in his defence because despite applications, he was not supplied with copies of certain documents. 7. Regarding supply of copies it may be pointed out that a Record Committee was constituted for taking over and showing relevant record of the documents which would be required by the petitioners, under the Rules so as to enable them to submit their replies in the stipulated period of 14 days. 8. All the three petitioners were placed under suspension. They made representations to the Board of Directors for recalling orders of suspension. This was followed by appeals submitted to Chief Secretary of Balochistan for similar action. Thereafter the Chairman on 1-7-1987 constituted a Fact Finding Enquiry Committee and one Major (Retd) Muhammad, General Manager (Ship Breaking) was appointed as Enquiry Officer. He submitted his inquiry report on 10-10-1987. Ultimately petitioner Naseem Ahmad was found guilty and punished as under:-- C.P. No,188 of 1988. "CHARGE PUNISHMENT No,1 Demotion to next lower rank and recovery of Rs,6,49,137/- No,2 Demotion to next lower rank.
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No,3 Stoppage of one increment. No,5 and 6 Removal from service and recovery of Rs,35,000. No,10 Demotion to next lower rank. Nos.15 and 16 Severe reprimand. C.P. No,189 of 1988. (i) "Both the accused officials namely (Naseem Ahmad) petitioner and Waqar Alam are dismissed from BDA Service with immediate effect. (ii) The cost of loss due to shown as excessive consumption of coal amounting to Rs,508832/-89 is apportioned equally between the two officials and shall be recovered from their P-Fund and gratuity: (iii) The cost of recycling and over burning amounting to Rs,70,000 is apportioned equally amongst the two accused officers and shall be recovered from their pay, P-Fund and gratuity: (iv) The cost of shortage of 1451530 bricks amounting to Rs,5,73,545 is apportioned equally amongst the two accused officers and shall be recovered from their pay, provident fund and gratuity. (v) Cost of over payment of workers amounting to Rs,20,300/- is apportioned equally amongst the two accused officers and shall be recovered from their pay, provident fund and gratuity. (vi) Cost of donation of 30000 bricks (unauthorisedly donation) amounting to Rs,15,000 shall be recovered from the Provident Fund and gratuity of the accused Naseem Ahmad." C.P. No, 190 of 1988 1. CHARGE PUNISHMENT 1. Purchase of Imported/ Dismissal from Service. Local Machinery. 2. Shortage of Flourite Dismissal from Service and ore at Site. Recovery of Rs,30,14,853 as 50% cost of 5207 tons of flourite from his salary P-Fund and Gratuity. 3. Irregularities/Misapp ropriation in the sale of Flourite to private parties.Demotion to next lower rank. Severe reprimand. 4. Mis-Management of the account of Flourite Project.Demotion to next lower rank Demotion to next lower rank with recovery of Rs,25,000 stoppage of one increment. C.P. No,191/1988. (a) stoppage of three increments: (b) Cost of 7652 tiles amounting to Rs,20,405 may be recovered from the pay, P.Fund and Gratuity of the Officer. Allegations made regarding petitioner Waqar Alam were in respect of shortage of tiles in Tiles Factory and other acts of omissions and commissions. It is further evident from the record that case was initially processed by Martial Law Authorities and then by anti-Corruption Establishment. In its report the anti-Corruption Establishment concluded as under:-- "In view of the above it is very difficult to fix responsibility of shortage of tiles on any one or some of the officers as no proper record has been maintained in the Tiles Factory or BDA Office. This Establishment is therefore left with no alternative but to state:- "That all those who remained Incharge of the Factory from June, 1975 to October 1978 and the Supervisory Officers of the Factory may be held responsible for the loss as well as negligence of
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duty." However the Fact finding Enquiry submitted the report and the said petitioner vide office order, dated 4-2-1988 was found guilty and punished as under:-- C.P. No, 192 of 1988 (i) Both the accused officials namely Mr. Naseem Ahmad and Mr. Waqar Alam are dismissed from BDA service with immediate effect; (ii) The cost of loss due to shown as excessive consumption of coal amounting to Rs,508832.89 is apportioned equally between the two officials and shall be recovered from their pay, provident fund and gratuity; (iii) The cost of recycling and over burning amounting to Rs,70,000 is apportioned equally amongst the two accused officers and shall be recovered from their pay, provident fund and graduity. (iv) The cost of shortage of 1451530 bricks amounting to Rs,5,73,545 is apportioned between the two accused officers and shall be recoverd from their pay, provident fund and gratuity. (v) Cost of over payment of workers amounting to Rs,20,300 is apportioned equally amongst the two accused officers and shall be recovered from their pay, provident fund and gratuity. (vi) Cost of donation of 30,000 bricks (unauthorised donation) amounting to Rs,1500 shall be recovered from pay, provident fund and gratuity of the accused officer Mr. Waqar Alam." C.P. No, 193 of 1988 1. CHARGE PUNISHMENT Mr. Waqar Alam Malik and Mr. Mir Ahmad Khajjak are two Officers mainly responsible for tampering with the record and making second register in order to over their misdeeds.The petitioner was demoted to next lower rank; whereas Mr. Mir Ahmed Khajjak was ordered to be reinstated with immediate effect. It may be submitted that this was not the allegation either in the Explanation letter or the show- cause notice. 2ND CHARGE Loss of 53737 tiles relatable to period 20-3-1977 to June, 1978. The petitioner and two other officers were declared responsible for the loss of tiles and penalty to the extent of total cost of tiles was imposed on all the three officers amounting to Rs,1,07,474 to be borne in equal share. The other two officers were M/s Mir Ahmad Khajjak and Musa Khan Khaijak. The share of each of three officers came to Rs,35,834/67 "to be recovered from pay P.Fund and gratuity.'" Petitioner Nishat Nabi in C.P. No, 194 of 1988 was found guilty and punished as under:-- CHARGE PUNISHMENT CHARGE PUNISHMENT (1) Purchase of imported Local Machinery. Severe reprimand. (2) Shortage of Flourite one at site. Dismissal from Service and recovery of Rs, 30,14583 as 50% cost of 5,207 tons of flourites from his salary, P-Fund and Gratuity. (3) Irregularities/Misappropriation in the sale of fluorite to private parties.Demotion to next lower rank No recovery to be effected since it already included in the recovery made in case of total shortages of flourites. (4) Mismanagement in the account of Flourite Project.Severe reprimand. Demotion to lower rank. In view of the fact that the accused officer has
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fraudulently made payment to a company/Firm jointly owned by him this case may be referred for criminal proceedings. Stoppage of three increments. 9. Being aggrieved of the order of the Chairman, the petitioners filed separate appeals to the Board of Directors of BDA. The Board of Directors was presided over by the Chairman BDA. With certain modifications in punishments substantially the appeals were dismissed by the Board on 12-6-1988. 10. Representations were made by the petitioners to the Additional Chief Secretary (Dev.) Planning and Development Department, Government of Balochistan, but no decision thereon had been made or communicated to the petitioners. In such circumstances the petitioners have moved this Court by filing these Constitutional petitions. 11. Heard Mr. Muhammad Aslam Chishti, for petitioners Naseem Ahmed (in four petitions) Waqar Alam in (two petitions) and Nishat Nabi Qureshi and Mr. Basharatullah for respondents Nos.1 and 2 and learned Advocate General Balochistan for respondent No,3. 12. Mr. Muhammad Aslam Chishti, learned counsel for the petitioners urged the following points in support of these petitions:-- (a) That Board of Directors was alone competent authority to have initiated proceedings against the petitioners and action initiated by Chairman was in fact without lawful authority. In this respect the learned counsel contended that hearing of appeal by Board of Directors could not cure this illegality. (b) That while passing the impugned order, dated 21--2-1988, Chairman BDA acted solely on the report of Fact Finding Inquiry and no reasonable opportunity was afforded to the petitioners by the said Fact Finding Inquiry therefore, the petitioners have been condemned unheard. (c) The Chairman BDA right from the initiation of action against the petitioners till the passing of final order acted in an arbitrary and mala fide manner, in that he tried his utmost to change the Rules of 1974 and to bring fresh Rules by introducing the Balochistan Development Authority (Efficiency and Discipline) Rules, 1987. (d) That even under the aforesaid Rules, the petitioners had a right of reasonable opportunity which was denied to them. (e) That being punishing authority, the Chairman could not preside over the meeting of Board of Directors while sitting in appeal against his own order. (f) That the Balochistan Development Authority (E&D) rules of 1987 are ultra vires and are in contravention of the BDA Act of 1974 and of Rules of Business. It was alternately submitted that even if these rules be held as intra-vires, the discretion exercised by the Chairman was arbitrary, being against the direction of Board of Directors regarding initiation of independent inquiry and no just decisions could be arrived at except by an unbiased official. (g) That appellate order passed by the Board of Directors is not a speaking order. (h) That no hearing was afforded to the petitioners while deciding appeals. (i) That the petitioners have a good case on merits as no reasonable' man could come to the same conclusion on the basis of material as was inferred by the Chairman. 13. While controverting the aforesaid pleas Mr. Basharatullah, learned counsel for the BDA submitted:- (a) That the Chairman is the competent authority under the Rules as such he was competent to initiate action against the BDA employees. (b) That in the show-cause notice the petitioners have failed to challenge the appointment of competent authority being in violation of sections 2(a) and 3 of the Act of 1974. In the appeal also the petitioners did not raise the plea that the competent authority was Board of Directors but according to their plea it was the Government which was competent Authority. In this respect
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another objection raised by Mr. Basharatullah was that in these petitions filed on 31-8-1988 question regarding Chairman as authority has not been raised although the same was raised by a separate application dated 19-6-1989. So much so that even in appeal before the Board of Directors this plea was not taken. (c) That Chairman neither acted mala fide nor was biased since a bar is created only when there is pecuniary interest or proprietary interest and both of these are missing in the present case. (d) That as far as hearing of appeal by the Board of Directors including the Chairman, is concerned according to the counsel there is positive intention of legislature that the Chairman shall preside over every meeting. As no contravention of legislative intent has been made, therefore no injustice has been done. It was additionally submitted that section 13 of Act of 1974 has been complied with which provides that services of an employee may be terminated by giving one month's notice from either side etc. Without assigning any reason. That Rules of 1987 are intra-vires and that the Government retained the powers under section 30(1) of Act of 1974 to make Rules. That as per Rule 11 all the pending cases have to be dealt with according to Rules of 1987. Adoption of summary Procedure was not mandatory but was discretionary. The authority was competent to forego to adopt the other course. 14. The learned Advocate-General Balochistan while supporting the respondents urged as under:-- - (a) That it is authority of BDA which is competent to appoint or remove the officials of BDA and not Government. In this respect the learned A.G. Submitted that there are two categories of employees of BDA:-- (i) employees appointed by the Government i.e, The Chairman and the Board of Directors; (ii) employees appointed by the Chairman. The first category consists of public servants who can be transferred to any other Department and vice versa, but Government is not appointing authority regarding the second category. The second category is of Employees of BDA, appointed by Chairman. (b) The BDA Rules of 1974 were not notified and therefore were nonexistent until the BDA Rules of 1987 were framed. Mention of said Rules in section 11 was in order to remove the doubts. (c) That Chairman was delegated powers as competent authority and since this point was not raised at preliminary stage, therefore documents with that effect could not be produced. (d) That the petitioners committed misconduct and were involved in misappropriation of huge BDA funds and furthermore question of terms and conditions of their service is involved therefore, writ may not be issued in their favour. 15. Before dilating upon the points so raised we would like to refer to the laws applicable in determining the points which are:-- (1) Balochistan Development Authority Act of 1974. (2) Balochistan Development Authority Employees Service Rules, 1974. (3) Balochistan Development Authority Employees (Efficiency and Discipline) Rules, 1974. (4) Balochisan Development Authority (Efficiency and Discipline) Rules, 1984. (5) Balochistan Development Authority (Efficiency and Discipline) Rules, 1987. (6) Rules of Business of 1976. 16. It would be expedient to firstly determine question about the rules which are applicable to the employees of BDA. The learned counsel for the petitioners strenuously urged that BDA Employees (E&D) Rules, 1974 are applicable on all fours and BDA (E&D) Rules 1987 were introduced by the efforts of the new Chairman Mr. Aman Shah in order to victimise the present petitioners. It was further averred that these Rules in fact are ultravires of BDA Act of 1974.
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17. In order to resolve the issue we have to divert to the Act of 1974. Section 30 of the Act of 1974 is relevant for the purpose which reads as under:--- 30(1) The Government may by notification in the Official Gazette make Rules for carrying out the purposes of this Act." 18. From the plain reading of Section 30(1) of the Act, it becomes crystal clear that there are two legal requirements which give sanctity to Rules, viz; firstly that it is the Government who is the competent Authority to frame Rules and secondly that such Rules are to be notified in the Official Gazette. There is no dispute that E&D Rules of 1987 were framed by the Government of Balochistan and were notified in the Official Gazette of November, 4, 1987 whereas E & D Rules of 1974 though framed by the Government but were never notified in the Official Gazette. Similarly E & D Rules of 1984 were never notified in the official Gazette, thus when Rules of 1987 were framed and notified in the official Gazette there existed E & D Rules of 1974 and E & D Rules of 1984 in the field although the same were not notified. 19. Rules which require notification in the official Gazette under a relevant Act but which are not so notified generally carry no proper legal sanction and are not binding on the principle that if law requires something to be done in a particular manner then the thing must be done in the said manner and in no other manner. There is no cavil with the proposition that E & D Rules of 1974 as well as E & D rules of 1984 were not notified as required by section 30(1) of Act of 1974. Same therefore may be held as mere instructions giving guidelines but cannot be treated as rules having a binding force. We therefore find substantial force in the contention of learned Advocate General Balochistan that E & D Rules of 1974 had no statutory sanction because these were not notified in the official Gazette and were in violation of section 30(1) of Act of 1974. This perhaps was the reason why the Chairman felt it necessary to bring to the notice of the Government to frame Rules. The Government therefore, framed rules of 1987 and got the same notified in the official Gazette on November, 4, 1987. 20. Mr. M. Aslam Chishti, in support of his contention relied on Rule II of Rules of 1987 and submitted that in this said Rule it was clearly mentioned that E & D Rules of 1974 are hearby repealed, meaning thereby that these rules were applicable prior to the framing of Rules of 1987. Rule II of Rules 1987 is hereby reproduced:-- "11. Repeal.--The Balochistan Development Authority (Efficiency and Discipline) Rules 1974 are hereby repealed. Pending cases if any shall be deemed to be pending under these Rules." The counsel for the respondents attempted to rebut this argument in two ways. Mr. Basharatullah the learned counsel for BDA urged that Rule II must be read as it is, which clearly shows that pending cases if any shall be deemed to be pending under these Rules which clearly means that even if Rules 1974 were enforced prior to the promulgation of Rules of 1987, the same cannot be made applicable in pending cases as Rule 11 lays down that all pending cases shall be deemed pending under these Rules (Rules of 1987) and the cases of present petitioners were pending. 21. Pending cases means cases which are undecided or which are awaiting decision or settlement. Reliance was placed on Fajar Ali and others v. Mst. Jamila and others as reported in PLD 1969 Lah. Page 545. Mr. Aslam Chishti argued that the affect of repeal would be that previous operation of any enactment so repealed shall not be disturbed and the repeal would not affect in any manner the operation of law/rules which were repealed. But the said argument is devoid of any force because in section 6 of the General Clauses Act it is clearly mentioned that "unless a different intention appears", the repeal shall not affect the operation of previous enactments. Here in the cases in hand, it is clearly mentioned in rule 11 that pending cases shall be deemed to be pending under these Rules, thus the Government made its intention quite clear that pending the issue differently that the words "that rules of 1974 are hereby repealed" were used in order to remove the doubts because those Rules were framed by the Government but were never notified in the official
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Gazette as provided under the Act of 1974. These therefore were mere instructions. Reliance was placed on the cases of Muhammad Osman Ghani v. M. Ahmed, C.S.P. Election Tribunal and others (PLD 1967 Dacca 786). A George v. Pakistan International Airlines Corporation (PLD 1971 Lah. 748) and the Principal Cadet College Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170). 23. As we have already observed in the preceding paras that Rules of 1974 were not notified in the official Gazette, therefore, the same were mere instructions having no statutory sanction as such the Rules of 1974 or Rules of 1984 are not applicable in the cases of petitioners. 24. From the above discussion we are inclined to conclude that the cases of present petitioners are governed under the Rules of 1987. 25. This would bring us to the second limb of the argument advanced by the learned counsel for the petitioners that E&D Rules of 1987 are ultravires to the BDA Act and Business Rules. It was argued that E&D Rules of 1987 are ultravires of the Act of 1974 because BDA is controlled by the Government of Balochistan through its Planning and Development Department which is headed by Additional Chief Secretary (Dev.) But no powers under the rules have been reserved for the Government either as competent authority or as appellate or even revisional authority, thereby all powers have been concentrated in the Chairman and as no powers have been left under these Rules with the Government therefore, these rules are ultravires to the BDA Act. 26. This argument is devoid of any force as it has got intrinsic contradictions because it is the Government itself which has framed these Rules. BDA Act of 1974 was passed by the Provincial Assembly Balochistan on 4th of June, 1974 and assented to by the Governor to provide for the establishment of a Development Authority for the promotion of economic and industrial development of the province.…
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