1995 PLP (C (PLC(CS))

(J) The Registrar of the respondent is not a competent Authority to deal with the affairs, hence the proceedings are nullity in the eyes of law.

6. On the grounds mentioned above, the learned counsel for the petitioner seeks that the writ petition may be accepted, the order dated 1‑8‑1992 whereby the petitioner has been removed from service be declared without lawful authority, Arbitrary, discriminatory, harsh, oppressive, mala fide and ineffective etc. He be also granted all back benefits.

7. On the other hand, learned counsel for the respondent contends that the petitioner was granted one-year sabbatical leave with effect from 1‑9‑1987 to 31‑8‑1988. No kind of leave was due to the petitioner. He was, therefore, accordingly informed through telegram and letter for not granting leave as prayed for by him. His request for grant of medical leave was also rejected considering self contradictory ground as Dr. Aslam Syed has already informed that due to some on going research commitments and family obligations, he was unable to join the University. Request to grant leave was rejected and he was informed. In spite of all, he failed to join duty in time as such the respondent was constrained to take action against him. He was served with the charge‑sheet. Reply of the charge‑sheet was found unsatisfactory and he was given show‑cause notice on 5‑6‑1991.

8. The Syndicate in its meeting on 25‑7‑1991 resolved that an inquiry may be conducted against him. The inquiry report was placed before the Syndicate in its meeting on 26‑3‑1992, where it was sent back to the Enquiry Officer to look into the specific charges contained in the charge‑sheet/show‑cause notice and give definite findings in the matter. According to the learned counsel for the respondent, the Syndicate resolved the charge stood proved against him and decided to remove the petitioner from service. Review petition was also considered and rejected lawfully. He admits that the matter was dealt with under the procedure given in the Government Servants (Efficiency and Discipline) Rules, 1973, which were adopted by the respondent.

9. On the ground of discriminatory treatment the contents of sub‑paras‑Mi to iv of the writ petition have been denied through reply but the learned counsel hesitates to press while arguing the case.

10. Learned counsel for the respondent admits that the application was to be placed before the Syndicate to consider for granting or refusing the leave but it was not' done so. He admits the provision that leave not due could be granted for a period of 365 days. The rejection of leave application order has been passed by the authority, who had no jurisdiction to refuse the leave application of the petitioner. It has been evasively replied that leave was considered and refused by the authority who was not competent to do so. Learned counsel further admits that the charge‑sheet and show‑cause notice have been sent by a person who was not legally competent. He conceded the legal position that show‑cause notice could be issued by the authorised officer only and no body else. The definition of authorised officer is mentioned in Government Servants (Efficiency and Discipline) Rules; 1973. Learned counsel for the respondents states that authority to issue show‑cause notice was Syndicate only. He maintains that though the notice was issued under the signatures of unauthorised officer but on the instructions of the Syndicate. Quite interesting phenomenon has been pointed out during reply regarding the designation of the authorised officer. Learned counsel even failed to point out the name who was designated as authorised officer in the case.

11. Regarding the appointment of Razi‑ud‑Din as Professor Emeritus has been admitted, while answering objection that any Professor Emeritus cannot perform any administrative and executive function, the respondent kept silent making no indicative reply. Lastly learned counsel for the respondent seeks that the writ petition be dismissed, as the petitioner is not entitled to the grant of relief in the given circumstances.

12. I have heard the learned counsel for the parties, considered the arguments, perused the record and fully applied my mind to the relevant law and rules applicable in the matter.

13. With a view to deal and adjudicate upon the facts and arguments of the parties, the functioning set up of the respondent framed under the relevant law and certain statutes of the University is to be looked into. For that end, relevant legal lay out is to be reproduced to understand the working and authority to be exercised department wise by the respondent. Chapter‑IV of the University of Islamabad Act, 1973 enumerates the authorities of the University wherein "The Syndicate" is given at Sr. (ii) and the list of the authorities which consisted of certain persons given in section 21 subsection (1) of the Act. The Syndicate is an authority under the Ordinance of the Statutes to exercise general supervision of the affairs and management with certain other powers enumerated in the aforesaid Ordinance. Chapter‑VI of the Act 1973 also deals with the authorities of the University while Chapter‑V deals with the Statutes, Regulations and Rules. In the present case Rule 30 is fully relevant, which is reproduce as under:‑‑ 30(1) The Authorities and the other bodies of the university make rules consistent with this Act, the Statutes and the Regulations to regulate the conduct of their business and the time and place of meetings and related matters. Provided that the Syndicate may direct the amendment or the annulment of any rules made by another Authority or body (excepting the Senate) under this section. Provided, further that, if such other Authority or body is dissatisfied with such direction, it may appeal to the Senate, whose decision in the matter shall be final. (2) The Syndicate may make rules to regulate any matter relating to the affairs of the University, which by this Act is not specifically required to be provided for by Statutes or Regulations."

14. Chapter‑VII deals with the general provisions starting from Rule 33(1), which is reproduced below:‑‑ "33(1) Except as otherwise provided, no officers, teachers or other employees of the University holding a permanent post shall be reduced in rank, or removed or compulsory retired from service, unless he has been given a reasonable opportunity of showing cause against the action, pr proposed to be taken." It is mandatory provision of affording opportunity to show cause in the matter when some employee is to be removed or compulsory retired from service. There is definition in clause‑II of Act NOXXVIII, 1973 where "Teacher including Associate Professor, Assistant Professor, Lecturer and such other persons as may be declared to be Teacher by the Regulation. There is Statute regarding the appointment of Professor Emeritus, it has 8 paras. In the present case para 3 is relevant, which is reproduce below:‑ "3. "The `Professor Emeritus' shall, for all purposes of courtesy and on ceremonial occasions, be upon the same footing as a member of the Syndicate, but as such shall not be entitled to membership of any University body or to exercise any administrative and executive functions."

15. Service Statute in para. 1 of Rule 6(1) which says that appointing authority is the Syndicate to the extent of employees in category‑I. In the case of category 11 the appointing authority is Vice‑Chancellor. According to Rule 8 no employee of the University shall be removed from service unless dealt with under (Efficiency and Discipline) Rules, 1973. An important para of the Statute which deals with the leave and leave salary is para‑

4. Rule 18 (1),stated below deals with the categories of leave which are admissible to the University teachers. (a) Casual leave. (b) Medical leave. (c) Study leave. (d) Extraordinary leave. (e) Maternity leave (f) Sabbatical leave.

16. But this Rule 18 was amended and circulated vide Letter No.F.4‑1/76 UE‑I, dated 25‑7‑1991. According to which four other categories of leave have been added, which are given below:‑‑ (1). Earned leave (2). Special leave. (3). Leave not due. (4). Leave prior to retirement. With the aforesaid legal plane there is no doubt that any category of leave if available could have been sanctioned by the competent Authority. In clause (2) after sub‑clause (f), some sub‑clauses have since been added showing the Vice‑Chancellor as the sanctioning authority in case of earned leave and special leave. But in case Leave Due the Syndicate is the sanctioning authority. For the case in hand the legal position emerges as follows:‑ (A) The petitioner's leave application should have been placed before the Syndicate for consideration to grant or refuse it. (B) The Syndicate was the authority to grant leave to the applicant out of "Leave not due" in case no other leave was available to his credit. (C) The Vice‑Chancellor, the Registrar or any other authority had no competency to consider the leave application and pass order of refusal, as has been ordered in the present case. In all cases of NPS No.17 and above the authority is the Syndicate.

17. To sum up, it was mandatory for the respondent to place the leave application before the Syndicate, which was the competent Authority in the matter either to refuse or grant the leave. No such steps were taken and the leave application was never placed, admittedly, before the Syndicate in any meeting and dealt with as per requirements of law. Thus, the proceedings against the petitioner are void ab initio being not in accordance with law. The edifice built by the respondent and the proceeding concluded in removing the petitioner from service cannot be considered as valid under any provision of law.

18. The legal provisions above are concerning the appointment of Professor Emeritus (as in the present case Professor Razi‑ud‑Din Siddiqui) such appointee shall for all purposes of courtesy and on ceremonial occasions, be upon the same footing as a member of the Syndicate, but as such shall not be entitled to membership of any University Body or to exercise any administrative and executive functions. This provision of statutes, debars the appointment of Professor Razi‑ud‑Din Siddiqui as Enquiry Officer to hold inquiry and give findings which is purely an exercise of administrative and executive function. Thus, his acting as Enquiry Officer and holding inquiry once or twice to probe into the affairs of administrative and executive function is devoid of legal sanctity. Lastly his pursuing the case even before the Syndicate meeting tentamounts to indicate as if he was much prosecutor instead of Enquiry Officer. He has put all efforts to arrive at the desired conclusion to get the petitioner removed from service. His efforts were thus not fair and impartial. The Enquiry Officer's Report under these circumstances cannot be acted upon and made basis for removing the petitioner from service. The procedure adopted by the respondent was sheer violation of law.

19. Admittedly, "Efficiency .and Discipline Rules" have been adopted by the respondent in the matter as mentioned in section 27(1)(j) of the Quaid‑e -Azam University Act, 1973. It was compulsory for the university to notify authority or authorised office appointed in the matter in accordance with the Efficiency and Discipline Rules, but it has not been done. Consequently, the show‑cause notice and the charge‑sheet given and sent under the signatures of the Registrar, (who was not competent) has no legal authority. Hence it impairs the validity of show‑cause notice and charge‑sheet completely. In this regard OM No.7‑2‑1979, dated 18‑11‑1979 para. 1 is relevant, which is reproduce below:‑‑ "Departmental action against civil servants of the Federal Government for subversion, corruption, misconduct, inefficiency etc. is generally taken under the Government Servants (Efficiency and Discipline) Rules, 1973. It has come to notice that in a large number of cases the procedure laid down in the‑ rules is not properly adopted by the officers designated as `Authority', `Authorised Officer' and `Enquiry Officer'. Failure to fully comply with the requirements of the rules impairs and at times vitiates the disciplinary proceedings and the order imposing a penalty on an accused is frequently set aside by the appellate authority or the Service Tribunal, if challenged before it:"

20. Additionally, the show‑cause notice issued under Rules containing proposed action, is also illegal and improper. The requirements of law is that penalty must be mentioned specifically in the terms of Rule‑

3. In the present case this provision too has been ignored. On the other hand, when the final report was allegedly submitted before the Syndicate, the Enquiry Officer desire was acceded to appear before the Syndicate to pursue the report with a view to obtain the desired result. This indicates mala fide and big departure from the Statutory requirements.

21. The petitioner's appeal was rejected on short ground "It does not lie with the Chancellor under the Rules" "but before passing this order and the petitioner was informed, vide letter dated 10‑1‑1992 he should have been called upon in this regard, by providing him an opportunity to be heard. But not done so, which too is against the interest of justice. From these facts, it is evident that the so‑called Enquiry Officer Professor Razi‑ud‑Din Siddiqui took highly illwill of the petitioner saying that he would take action and seek legal remed3 against the respondent in case his demand was not accepted. Seeking remedy in the legal right of every citizen and no body can snatch such a guaranteed right Admittedly, Vice‑Chancellor appointed Professor Razi‑ud‑Din Siddiqui a: Enquiry Officer in the matter. Learned counsel for the petitioner rightly challenged his appointment as Enquiry officer, being incompetent to be appointed. Even in the present case Vice‑Chancellor is not competent Authority to appoint Enquiry Officer.

22. Similar violations of law have been committed in the matter of show -cause notice. Copy of the show‑cause notice has been placed on record, which shows that notice was issued on 5‑6‑1991 under the signatures of the Registrar. I have gone through the contents of the show‑cause notice no where it is mentioned that show‑cause notice was issued by the authorised officer or at the instance of competent Authority. Quite alarming to note that in show‑cause notice, the Registrar went on to mention penalty, which was to be imposed. Almost same is the case in charge‑sheet issued on 22‑4‑1991. The charge sheet and show‑cause notice both gave definite impression that the disciplinary action was started on behalf of Registrar. Letter dated 26‑2‑1991 bears signatures of 'Deputy Registrar "for Registrar". According to the contents of this letter the leave application was at the most considered and decided by the Registrar alone. All these facts are unrebutted.

23. In para. `M' of the writ petition certain names of the Professors have been mentioned who were granted Ex‑Pakistan leave for a longer period, whereas, in the case of present petitioner "leave not due" leave was neither considered nor sanctioned. From the record, there is no hesitation to conclude that the proceedings are mala fide which ended in victimizing the petitioner for having not committed any fault. No authority, or functionary of the Government can be permitted by law to act in discriminatory manner car for ulterior motive, with a view to victimize the employee.

24. For the foregoing reasons; the removal of the petitioner from service is bad in law, without jurisdiction arbitrary an oppressive. It is declared ineffective in the eyes of law. The writ petition is accepted. The writ‑petitioner is reinstated in service from the date he was removed from service. The respondent is further directed to reinstate him with all back benefits because he was made to suffer agony of his removal from service, for a considerable time for which there is no legal justification. No order as to costs. AA./M‑2087/L Petition accepted.