Full Judgment Text & Judicial Ruling

2012 P L C (C.S.) 359

[Islamabad High Court]

Before Riaz Ahmad Khan, J

Dr. Syed SIBTAIN RAZA NAQVI

Versus

HYDROCARBON DEVELOPMENT INSTITUTE OF PAKISTAN, ISLAMABAD through Secretary and 3 others

Writ Petition No.4088 of 2010, decided on 24th June, 2011.

(a) Hydrocarbon Development Institute of Pakistan Act (I of 2006)---

----Ss. 20 & 21---Hydrocarbon Development Institute of Pakistan Service and Financial Rules, 2009, R.13.1--Government Servants (Efficiency and Discipline) Rules, 1973, R.6(2)---Removal from Service (Special Powers) Ordinance (XVII of 2000), Preamble---Constitution of Pakistan, Art.199---Constitutional petition---Removal from service---Petitioner was issued charge-sheet by the Institute under Rule 6(2) of Government Servants (Efficiency & Discipline) Rules, 1973---Petitioner replied to the said charge-sheet after which show-cause notice along with statement of allegations was issued to him---Penalty of removal from service was imposed upon petitioner and his departmental appeal was also rejected---Petitioner's contention that enquiry was not conducted in accordance with law and charge sheet, show-cause notice and his removal order were not issued by competent authority---Validity---Charge sheet was properly replied to by the petitioner and thereafter inquiry was conducted in which petitioner had participated and was provided an opportunity of hearing in person---Petitioner had made statement that his reply to the charge sheet was what he wanted to say and did not want to add anything else to it, therefore it could not be said that enquiry was conducted in absence of the petitioner---Show-cause notice was properly replied to by the petitioner and order of removal from service was passed by competent authority as provided in Hydrocarbon Development Institute of Pakistan Service and Financial Rules, 2009, therefore, contention of petitioner that removal from service order was not issued by the competent authority, was not correct---All legal requirements were fulfilled and it could not be said that order passed against petitioner was in violation of any law or rules---Constitutional petition was dismissed in circumstances.

(b) Civil Servants Act, (LXXI of 1973)---

----S.2---Service Tribunals Act, (LXX of 1973), S.2-A---Hydrocarbon Development Institute of Pakistan Act, (I of 2006), Ss.20 & 21---Hydrocarbon Development Institute of Pakistan Service and Financial Rules, 2009, R.13.1---Constitution of Pakistan, Art.199---"Civil servant"---Definition---Scope---Petitioner was not civil servant under the Civil Servants Act, 1973 but the Rules governing his services were statutory, so only remedy available to him was to file constitutional petition.

PLD 2006 SC 602 ref.

Muhammad Shoaib Shaheen for Petitioner.

Abdul Rashid Awan for Respondents Nos.1 and 3.

Shafi Muhammad Chandio, D.A.-G. for Respondent No.2.

Date of decision: 24th June, 2011.

JUDGMENT

RIAZ AHMAD KHAN, J.--- This judgment is directed to dispose of Writ Petition No.4088 of 2010.

2. Facts constituting the background of present writ petition are that the petitioner was appointed as General Manager, POL, Hydrocarbon Development Institute of Pakistan. He was issued charge sheet dated 12-6-2009 under Rule 6(2) of Government Servants (Efficiency and Discipline) Rules, 1973. The petitioner submitted his reply dated 22-6-2009. Thereafter, show-cause notice dated 29-7-2009 was issued to the petitioner along with statement of allegations. The petitioner filed reply dated 13-8-2009. Thereafter, major penalty of removal from service was imposed upon the petitioner vide impugned order dated 25-11-2009. The petitioner filed departmental appeal dated 9-12-2009, but the same was rejected vide order dated 5-3-2010. Feeling aggrieved of the same, the petitioner filed the present writ petition.

3. Learned counsel for the petitioner submitted that the petitioner was not provided an opportunity of personal hearing by the competent authority. The alleged enquiry was not conducted in accordance with law. It was further submitted that the impugned orders were not issued by the competent authority as provided in Removal from Service (Special Powers) Ordinance, 2000. Similarly, charge sheet and show-cause notice were not issued by the competent authority.

4. On the other hand, learned counsel for the respondents submitted that the Rules governing the services of the petitioner are non-statutory, so writ cannot be issued. It was further submitted that the petitioner himself had participated in the enquiry and the impugned order was passed in accordance with law, rules and procedure.

5. I have heard learned counsel for the parties and have also perused the record.

6. The record shows that Hydrocarbon Development Institute of Pakistan had originally come through resolution, however, afterwards Act No. 1 of 2006 was passed, which provided the establishment of Hydrocarbon Development Institute of Pakistan. Section 20 of the said Act provided that "all employees, officers, consultants, advisers and other staff employed in any capacity in the former Institute immediately before the commencement of this Act shall stand transferred to the Institute on the same terms and conditions of service on which they were employed immediately before such transfer and shall be deemed to be the employees of the Institute under this Act." Section 21 of the Act provided that "the employees of the Institute shall be deemed to be civil servants for the purpose of the Service Tribunals Act, 1973". Under the said Act "Hydrocarbon Development Institute of Pakistan Service and Financial Rules, 2009" were framed. Rule 13.1 of the said Rules provided that "the Board shall prescribe regulations governing efficiency, conduct and discipline of employees, provided that until such regulations are enforced, the authority competent to appoint a person in service of the Institute shall be competent to take any disciplinary action in accordance with the Government Servants (Efficiency and Discipline) Rules, 1973 and Removal from Service (Special Powers) Ordinance, 2000." In other words, all employees were deemed to be civil servants, but since in PLD 2006 SC 602 it is provided that "persons working in the Government controlled Corporations would not be deemed to be holding a post under section 2-A of the Service Tribunals Act, 1973 unless there is warrant under law i.e. that a statute governs appointments and regulates terms and conditions." In the present case, the petitioner is not civil servant under the Civil Servants Act and therefore, could approach Federal Service Tribunal, but the Rules governing the services of the petitioner are statutory, so only remedy available to the petitioner was to file writ petition.

7. As far as facts of the case are concerned, admittedly the petitioner was issued charge-sheet dated June 12, 2009 by the authorized officer under Rule 6(2) of Government Servants (Efficiency and Discipline) Rules, 1973. The said charge sheet was properly replied by the petitioner and thereafter enquiry was conducted. In the said enquiry, the petitioner had participated and was provided an opportunity of hearing in person. He had made statement that his reply to the charge sheet was what he wanted to say and does not want to add anything else. As such, it cannot be said that enquiry was conducted in absence of the petitioner. Thereafter, show-cause notice was issued to the petitioner, which was properly replied by the petitioner. Consequent to the same, the impugned order was passed. The impugned order was passed by the competent authority as provided in Hydrocarbon Development Institute of Pakistan Service and Financial Rules, 2009. As such, the contention of learned counsel for the petitioner that the impugned order was not issued by the competent authority, is not correct. All the legal requirements were fulfilled and it cannot be said that the order passed against the petitioner was in violation of any law or rules.

8. In the above circumstances, I find no force in this writ petition and the same is hereby dismissed.

M.H./8/Isl. Petition dismissed.

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