2008 PLP (C (PLC(CS))

ARSHAD BIN AHMAD (MEMBER-III).

Appellant Muhammad Nawaz Sheikh, former Assistant Controller Examination, Punjab University has impugned the order of his compulsory retirement dated 14-7-2006 issued by the respondent No.1/Registrar of the University of Punjab on behalf of the respondent No.3/Vice Chancellor of the said university.

2. Brief background of the case is that the appellant was served with a charge sheet along with statement of allegations dated 1-2-2006 by Zahid Karim Khan, Assistant Professor/Inquiry Officer under Punjab Removal from Service (Special Powers) Ordinance, 2000 with the following charges:

Charge Sheet (1) According to the contents available from documents provided to me as Inquiry Officer, the award of English Language Paper-B is bogus as the signatures of the officials thereon are fake. (2) The award list of English Paper "A" of 45 marks is also doubtful as its fictitious roll number has been changed from 421 to 521. (3) You appeared in B.A. Second Annual Examination, 1993 under Roll No.42231 and your result was declared "R.L./result later. English-B remaining pass". As award "A" and "B" both become doubtful that is why you waited for proper time (up to 10 years) and never asked for the notification while it was needed at many occasions during your service. Finally you managed to post yourself as Assistant Controller Examination and you issued Notification No.1609 of your own result, dated 6-11-2004 under your own signature declaring yourself pass under Roll No.42231 after 10 years. . In his reply the appellant denied the charges altogether. However, the Inquiry Officer held the appellant guilty. After a personal hearing granted to the appellant on 2-6-2006 by the respondent No.1, he was compulsorily retired from service vide impugned order dated 14-2-2006. The appellant preferred departmental representation before the Chairman, Syndicate of the University on 27-7-2006 which was still pending when the appellant after expiry of the mandatory period filed the instant appeal.

3. Learned counsel for the appellant contended that the charge sheet was issued unauthorizedly by the inquiry officer, while the statement of allegations was unsigned. He contended that since the very initiation of disciplinary proceedings were illegal under the Punjab Removal from Service (Special Powers) Ordinance, 2000 therefore, the impugned orders being nullity in the eyes of law. On merits of the case it was contended that the result which was alleged to be bogus was complied/tabulated and verified in 1994 by one Khalid Mirza, Junior Clerk the Administrative Officer, Assistant and Deputy Controllers Examinations respectively, at a time when the appellant was not working in the examination branch. It was further contended that the appellant had no hand in issuing of the notification which was prepared by Shahid Ali, Junior Clerk checked by Assistant Maqbool Khan and signed by Khadim Hussain, Administrative. Officer (Exam-II) before it was issued under the authority of the Deputy Controller (Exam) University of Punjab, who had duly verified the veracity of the notification from the record and found the same correct. It was further contended that the B.A. result card issued on 17-10-1994 was also issued under the signatures of the then Assistant Controller (Exam) when the appellant was serving in the Department of Encyclopedia of Islam. His result was duly verified by the Examination Branch whereafter he was allowed two advance increments. It was further contended that the appellant appeared in M.A. (Punjabi) Examination, 1999 held in May 2001 and he was declared successful on the basis of verification by the Examination Branch and allowed two further advance increments. It was contended that by merely relying on the presumption that since the appellant was serving as Assistant Controller (Exam), he was involved in the alleged fraud, he cannot be held responsible as he was declared pass in B.A. in the year 1994 when he was not working in the examination branch. It was further contended that if the allegations against him were true, it was necessary that all the officers/officials, who remained posted in the examination branch since 1993 to 2004 should have been arrayed as co-accused and a joint inquiry conducted. On the allegations about the fictitious Roll No.42231 under which the appellant was declared pass in B.A. it claimed that it was not fake and that the result was genuine.

4. Learned counsel for the respondents, on the other hand, argued initially on the basis of the parawise comments that the university is working under its own statutory rules in the nature of departmental instructions or directions. However, when his attention was drawn towards para-1 of the charge sheet and statement of allegations, the letter for personal hearing issued by the Deputy Registrar (Admn-II) and the impugned orders whereby the entire proceedings were conducted under Punjab Removal from Service (Special Powers) Ordinance, 2000 he could not controvert the applicability of the Punjab Removal from Service (Special Powers) Ordinance, 2000 in this case. They admitted that the contentions of the respondents contained in the parawise comments contradicting the aforesaid position was not sustainable. As for the legal lacunae about the illegal charge-sheet, the legal counsel as well as the departmental representative representing the respondents conceded that it was a grave lacunae and a violation of the relevant law.

5. After hearing the arguments on both sides in some detail and perusing the record, it is established that, disciplinary proceedings initiated against the appellant were ab-initio void in that under the explanation under section 5 of the Punjab Removal from Service (Special Powers) Ordinance, 2000, it has been clearly mentioned that the order of inquiry and statement of allegations shall be sign by the competent authority and that the inquiry officer shall only communicate the charge-sheet to the accused. The competent authority being the Registrar/respondent No.1 for the appellant, the inquiry officer could not sign the charge sheet. Secondly, the personal hearing was also found to have been granted by the Vice-Chancellor/respondent No.2 who was not the competent authority on whose orders the respondent No.1/Registrar as the competent authority issued the impugned orders whereas he should have himself granted the' personal hearing and taken a decision independently.

6. Without going into merits of the case, in view of the foregoing grave legal lacunae the disciplinary proceedings being ab-initio void, the impugned orders are set aside and the appellant is reinstated in service to face fresh proceedings including regular inquiry proceedings providing the opportunity of defence to the appellant under the law. The competent authority shall than proceed to pass independent orders according to the law. The period the appellant spent on compulsory retirements a result of the impugned orders shall also be decided as per the law. If any adverse order is passed the appellant shall be given the right of appeal under the law. There shall be no order as to costs. H.B.T./46/PST Appeal Allowed.