2011 SCMR 480 (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.

This petition has been filed against the judgment dated 26-1-2010 passed by the High Court of Sindh, Karachi.

2. Brief facts of the case are that in the first round of litigation the respondent was removed from service without adhering to recognized principle and rule of law and he was deprived of his livelihood. As a result of such action he had to knock the door of Service Tribunal for redressal of his grievance. The Service Tribunal vide judgment dated 3-12-2002 considered his case on merit and concluded that order of termination of his service was not sustainable, therefore, appeal was accepted and he was reinstated. Relevant portion is reproduced hereinbelow:-- "....Further more, the perusal of the record indicates that the appellant's performances has been meritorious which is evident from the fact that he was confirmed after his appointment and was also promoted from BPS-15 to BPS-16 on 19-7-1993 i.e. about ten months before his service were terminated. It is difficult to accept that a person, who has been promoted two and half years after his confirmation can become inefficient after ten months after promotion. There appears to be some misunderstanding or mala fide intention, which made the respondents to summarily dispense with the services of the appellant. The appellant also submitted record of his performance, as far educational aspect was concerned by submitting details of results, achieved by the students of the respondent's School in his subject, has not been specifically rebutted by the respondents and, as such it will be difficult to say that the appellant had become inefficient or had shown laxity in his academic duties. The respondent's contention that he was warned seven times is also not very serious enough lapse on the part of the appellant, as would be apparent from the following facts:- (1) Warning dated 3-10-1991 Found absent in the morning assembly. (2) Warning dated 23-9-1992 For remaining absent (3) Warning dated 4-11-1992 Late by 5 to 7 minutes (4) Warning dated 9-2-1993 Found absent on 7-2-1993, 8-2-1993 (his two day's pay was deducted for above absent) (5) Warning dated 8-7-1992 Late on 13-1-1994, 16-1-1994, 18-1-1994, 24-1-1994, 26-1-1994 and 30-1-1994 (6) Warning dated 12-5-1994 Unsatisfactory result of Middle Standard Examination-94 (7) Warning dated 17-5-1994 Coming late and no representation of scouts on walk-a-cause organized by Kidney Centre. The perusal of the above picture indicates that in a span of four years service these lapses which were not frequent could not be termed as major or serious lapses to warrant his termination from service. Furthermore, if the appellant was not taking interest in his duties, the appropriate course was to invoke para 5(e) Chapter-III of the Pakistan Defence Officers Housing Authority's Service Regulations, which prescribes procedure for taking action against the employees, charged with misconduct. The allegations, levelled against the appellant warranted an inquiry into the circumstances, which compelled the appellant either to come late or remaining absent gives the transport situation of this sprawling City. Such occasions could happen to any employee of any organization in the City." Against the above order, petition for leave to appeal being No.80-K of 2003 was filed, which was dismissed.

3. It seems that again on 21st January, 2005 a show-cause notice was given to the respondent and on conducting inquiry he was dismissed from service on 1st April, 2005. Against this order he preferred a Constitution Petition No. 1767 of 2006 under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Learned Division Bench of the High Court accepted the petition vide impugned judgment, as such instant petition has been filed for leave to appeal.

4. Learned counsel for the petitioner at the outset candidly conceded that vide show-cause notice dated 28th January, 2005 the petitioner department proceeded against the respondent for the same charges, which were considered by the Service Tribunal and relief was given to him in C.A. 570-K of 1998. This decision was maintained by this Court as is evident from the para reproduced hereinabove. The case of the petitioner was that earlier proceedings were conducted without following the procedure but this time procedure was followed and allegations were proved against him, as such the High Court should have not interfered with the proceedings of the department.

5. Learned counsel appearing for the respondent vehemently opposed the petition and contended that it was against the fundamental right and principle of natural justice that a person against whom earlier allegations have not been established/proved, cannot be held responsible or can be proceeded again for the same charges. Therefore, he prayed for dismissal of the petition.

6. We have heard the learned counsel for the parties at length and have gone through the earlier judgment dated 3-12-2002 passed by the Service Tribunal in Appeal No.570-K of 1998 and other record so made available.

7. As it is admitted by the learned counsel appearing for the petitioner that the respondent was being proceeded against on the basis of same charges, which were the subject-matter of the earlier proceeding; we have no reason to differ with the findings recorded by the High Court. In the first round of litigation the Service Tribunal had examined in depth the charges on the basis of which he was terminated and concluded that lapses being alleged against him were of the minor nature therefore, were not sufficient for imposing major penalty of dismissal from service. The conduct of the petitioner seems to be not free from mala fide because once the Service Tribunal set aside the proceedings against him and that judgment was not interfered with by this Court on facts, there was no occasion to again proceed against him for the same charges, which is against the natural principle of justice. As far as observations of initiating fresh proceedings are concerned, it does not mean that the petitioner should be proceeded again on the same charges, which have not been found correct in the earlier proceedings. The same were given only to be used for the purpose of conducting inquiry if there are the charges other than the earlier charges on which his service was terminated. The High Court had exercised jurisdiction, under the circumstances, in proper manner, therefore, no interference is called for.

8. It is observed that the respondent has been dragged in the Court for no satisfactory and plausible reason as is evident from the facts and circumstances of the case, noted hereinabove. Thus, the leave to appeal is declined and the petition is dismissed with special cost of Rs.10,

000. M.H./A-7/SC Petition dismissed.