1993 PLP (C (PLC(CS))

Syed Mir Muhammad v. N: W.F.P. Government through Chief Secretary PLD 1981 SC 176 rel. Muhammad Rashid Malik for Petitioner Faqir Muhammad Khokhar DA. ‑G. and Ahmad Hassan Khan for Respondents Nos., 2 and 4 Date of hearing: 22nd September, 1992. Dr. Mrs. Khalida Razi petitioner herein, by means of this Constitutional petition calls in question the validity of order dated 16th July, 1979 passed by respondent No.2 whereby she was compulsorily retired from service. The relevant facts of the case are that the petitioner was appointed on 7‑9‑1968 as Research Officer in the Pakistan Council of Scientific and Industrial Research (hereinafter referred to as PCSIR). She was promoted on 20th September, 1974 as Senior Research Officer. She was posted in that capacity at Peshawar PCSIR Laboratories. In 1976 she was married to one Major Muhammad Razi Ullah Khan who was at the relevant time posted at Abbottabad. A year later, he was transferred to Ordinance Centre, Malir Cantt., Karachi. The petitioner applied for her transfer to Karachi to join him but her request was declined. Simultaneously she applied for leave which was initially declined but later on regularized vide letter dated 17‑2‑1979. Due to her illness and family circumstances, she could not pull on with her duties at Peshawar and again on 17‑3‑1979 applied for extraordinary leave but her application was rejected on 19‑3‑1979. She was charge‑sheeted for misconduct by the Director, PCSIR Laboratories, Peshawar while acting as Authorised Officer under the Government Servants (Efficiency & Discipline) Rules, 1973 and on the following day viz. 20‑3‑1979 he appointed an Inquiry Committee for proceeding in the matter. The petitioner had earlier submitted applications to the Chairman, PCSIR expressing that the Director was inimical and biased against her and was bent upon harming her, nevertheless he was appointed as an Authorised Officer by respondent No.2 in response to letter dated 18‑2‑1979 sent by the former to the respondent No.2 (See Annexure D‑19). The petitioner was served with another charge‑sheet by the Director, PCSIR, Peshawar on 19‑4‑1979 for her absence and leaving the station without permission. The Inquiry Committee proceeded ex parte. The respondent No.2 vide impugned order dated 10‑7‑1979 compulsorily retired her from service. Afterwards, she moved several applications/representations against the aforementioned order to the various authorities including the President of Pakistan, Prime Minister of Pakistan, the Ombudsman and also filed an appeal against the aforesaid order before the Federal Service Tribunal but of no avail. Hence this petition.

2. Learned counsel for the petitioner contended that the Director, PCSIR, Peshawar (Dr. Riaz Ali Shah) who lodged complaint against the petitioner was inimical towards the petitioner and she had expressed in writing to the various authorities against his biased attitude, he was therefore not competent to act as Authorised Officer in the case. The Authorised Officer appointed the inquiry committee but did not provide her copy of the report made by the committee nor supplied copy of his recommendation for her compulsory retirement. She was therefore deprived to offer her explanation against the report of the inquiry committee recorded ex parte for consideration of the competent authority. It was contended that by non provision of the report of the inquiry committee and recommendation of the Authorised Officer the case of the petitioner was highly prejudiced. It was next argued that once the PCSIR adopted the provisions of Government Servants (Efficiency & Discipline) Rules, 1973, it was necessary for the Authorised Officer and the competent authority to have followed the procedure laid therein in letter and spirit but the provisions of the relevant rules were not followed in the case of the petitioner. Learned counsel relied on Syed Mir Muhammad v. N.‑W.F.P. Government through Chief Secretary (PLD 1981 SC 176) and Federation of Pakistan and 2 others v. Abdul Razzaq (1983 SCMR 229) in support of his submission.

3. Learned counsel for the contesting respondents on the other hand stated that the writ petition suffers from laches. The petitioner was compulsorily retired in 1979 but she filed the present petition in 1990. He however did not deny, the petitioner's having moved several applications for the redress of her grievance after the impugned order was passed against her. Learned counsel, however, maintained that it was imperative for the petitioner to have approached this Court within reasonable time after the passing of the impugned order. The next contention advanced by the learned counsel for the respondent was that the PCSIR was a statutory body, the employees whereof were governed by the relationship of master and servant. The petitioner is not a civil servant, she therefore cannot invoke the Constitutional jurisdiction of this Court. She could file a suit for damages in the event she considered that her compulsory retirement was illegal. Learned counsel, however, candidly affirmed that neither the copy of the inquiry report was provided to her, nor recommendations of the Authorised Officer were supplied to her to submit explanation for consideration of the competent authority.

4. I have considered the arguments advanced by learned counsel for the parties and have thoroughly perused the documents available on the file. It is true that the leave availed by the petitioner was later on regularised and allegations forming basis of the charge to that extent in the first charge‑sheet were untenable. I am of the view that there is hardly any need for going into the merit of the charge‑sheet because the disposal of case can be made on facts established on record namely that she was not provided copy of the inquiry report to tender her explanation for consideration of the competent authority. The Authorised Officer himself lodged complaint against the petitioner as such, he was not competent to act as Authorised Officer, she moved application to the authority against the Authorised Officer, before she was charge‑sheeted, therefore, her apprehension that he was biased against her was not ill‑founded. The Supreme Court in Syed Mir Muhammad's case and Abdul Razzaq's case referred hereinbefore, clearly held that by non‑supply of the inquiry report to the accused officer to enable him to offer his explanation with regard to adverse findings, if any, recorded by the inquiry officer amounted to denial of providing him reasonable opportunity of defence. This petition, therefore, merits acceptance on these grounds alone. As for the contention of the learned counsel for respondent, that petitioner's case is covered by the principle of master and servant and the writ petition is not competent, it is pointed out that the PCSIR had adopted the application of the Government Servants (Efficiency & Discipline) Rules, 1973 in the disciplinary matters of its employees any action taken in derogation or in violation thereof can be set aside in writ jurisdiction. In the case of The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170) and in case of Anwar Hussain v. Agricultural Development Bank of Pakistan and another (PLD 1984 SC 194) the Supreme Court has taken the view that even an employee of a corporation can maintain a writ petition if there has been a violation of any provision of law or of any statutory rules of service. This view was re‑affirmed in Karachi Development Authority and another v. Wali Ahmed Khan and others (1991 SCMR 2434). The objection of the non‑maintainability of the petition on the point of relationship of master and servant, therefore, cannot by pressed into service in. the instant case. The petitioner's case was grossly prejudiced and the entire proceedings of the inquiry vitiated. As regards the question of laches, suffice it to say, that the basic order passed and proceedings held being without jurisdiction, no period of limitation therefore would be reckoned against the petitioner. The order compulsorily retiring the petitioner being void no limitation would run in the matter. It is not denied by the learned counsel for the contesting respondent that the petitioner had been knocking at the door of every possible authority for the redress of her grievance after the passing of the impugned order, which amply shows that she had been vigilant all along. For all the reasons highlighted above, I hold that the impugned order of compulsorily retiring the petitioner was unwarranted under the law and is hereby declared to be of no legal effect. Before parting with this case, I may observe, with regret that since 1979, the petitioner has not been paid her the dues by the respondent although she was entitled to consequential benefits even under the impugned order. In the result, this petition is allowed, with no order as to costs. A.A./K‑56/L Petition accepted.