2018 PLP (C (PLC(CS)N)

MADASSIR KHALID ABBASI, J.-- Through this constitutional petition under Article 199 of the Constitution, petitioner, a contract employee has challenged the legality of order dated 03.05.2010 passed by respondent No.3, whereby appointment of the petitioner, as Elementary School Educator has been withdrawn and order dated 02.09.2010 passed by respondent No.1 whereby appeal preferred by the petitioner, was dismissed.

2. Brief facts of the case are that in pursuance of an advertisement published by respondents for the recruitment of different school educators including the Elementary School Educator, petitioner applied for the said post. After scrutiny of documents and necessary formalities a merit list was prepared by responder wherein the name of petitioner was mentioned at Sr. No.12 and subsequently she was issued appointment letter on 09.01.2010. Petitioner assumed the charge in Government Girls Middle School Chak No.51/12-L on 13.01.2010 and performed her duties as Elementary School Educator for four months. Respondent No.3, on 02.04.2010 issued a show-cause notice to the petitioner for seeking explanation regarding the documents of the petitioner including experience certificate issued by respondent No.4 and thereafter, vide impugned order dated 03.05.2009 passed by respondent No.3, the appointment of the petitioner was withdrawn on the charge of misconduct and getting employment on the basis of a fake/bogus experience certificate. Moreover, it has been alleged in the said order that the petitioner committed cheating and fraud. Feeling aggrieved, petitioner preferred an appeal before respondent No.1 which met with the same fate vide order dated 02.09.2010. Hence, this writ petition.

3. It is contended by the learned counsel for the petitioner that impugned orders passed by respondents Nos.1 and 3 are against the law and facts of the case as the said respondents miserably failed to appreciate the statement of the respondent No.4 in which she categorically verified the certificate of the petitioner which is not only signed by the headmistress of the said school but also verified by respondents Nos.2 and 3 as well. Further contends that no regular inquiry was conducted to establish the allegations of cheating forgery and fraud. Moreover, petitioner has been deprived of her fundamental rights.

4. On the other hand, learned Assistant Advocate General supported the impugned orders and submits that experience certificate filed by the petitioner along with the application was bogus one with the fictitious signatures of Headmistress as well as Dy. District Education Officer (W-EE), Tehsil Chichawatni. Further submits that by way of said experience certificate, the petitioner attained five additional marks in the process of recruitment. Submits that in terms of Clause-13 of the contract dated 09.01.2010, if at any stage, it is discovered that the petitioner/employee has secured the appointment on the basis of bogus/forged documents or through deceitful means, the appointment shall be considered to be void. Learned law officer has also relied on Clause-8 of the contract whereby appointment shall be liable to termination on one month's notice or payment of one month salary in lieu thereof by either side without assigning any reason and prayed for dismissal of this petition. It is further contended that the petitioner being contract employee could be terminated by giving one month notice or payment of one month's salary without holding regular inquiry and competent authority could dispense with the same when allegation leveled against the employee/petitioner had found to be proved on the basis of documentary evidence. Learned Assistant Advocate General has vehemently opposed the petition on the ground that petition, filed by a contract employee is not maintainable. Principle of master and servant is applicable in the present case. Petitioner might, if so, advised sought his remedies before the appropriate forum.

5. Arguments heard. Record perused.

6. Critically important and primary dimension of this case is that as to whether the services of the petitioner could be terminated, prior to the expiry period of the contract, without holding regular inquiry, where it is followed by the stigma of practicing forgery and fraud.

7. No doubt that the services of the petitioner are governed by the terms and conditions of a contract and could be terminated in certain cases, it has been laid down by the higher courts that competent authority could dispense with holding of inquiry, but this principle varies from case to case. Where the services of an employee has been terminated specifically on the charge of getting employment on the basis of fake/bogus experience certificate, coupled with cheating and fraud, in such situation, keeping in view the provisions of Article 10-A of the Constitution and principles of natural justice, it is incumbent upon the employer to hold factual inquiry, giving full opportunity to the delinquent official to defend himself and prove his innocence, particularly where the employee has been stigmatized reflecting moral dishonesty, because, he may not suffer by getting himself disqualified for any employment in further.

8. In this particular case, petitioner was dismissed from service on the allegations that she got employment by submitting fake/bogus experience certificate whereas stance taken by the petitioner is that the experience certificate was issued by respondent No.4 which is signed by Deputy District Officer and District Education Officer (Women) Elementary. Petitioner has also brought on record a reply which she had submitted before respondent No.3. Although the plea taken by the respondents is that the petitioner did not appear before respondent No.3 inspite of the fact that a show-cause notice was issued to the petitioner. For a while, if stance of the department is taken as correct, even then, it was incumbent upon the appellate authority, while adjudicating upon the appeal filed by the petitioner to take into consideration the above narrated aspects of the case, when, admittedly petitioner appeared before respondent No.1 at the time of hearing of the appeal against the termination order. Appellate authority dismissed the appeal without taking into consideration the afore-stated aspects of the case. Nature of allegation and defence taken by the petitioner certainly requires a detail factual inquiry. Article 10-A of the Constitution deals with right to fair trial and due process. Although term fair trial has not been expressly defined, keeping in view the broad, universal recognized principles of law, with reference to fundamental rights of a citizen. Reliance is placed on PLD 2012 Supreme Court 553.

9. To dispense with the regular inquiry is a discretion which lies with the competent authority; however, it must be exercised fairly with application of mind keeping in view the principle of natural justice and equity. Reliance is placed on "Government of the Punjab, through Secretary, Health Department, Lahore and others v. Riaz ul Haq" (1997 SCMR 1552) wherein it has been held that: "

Termination of service

Misconduct

Regular enquiry

If an accused civil servant/employee is charged with misconduct of the nature which cannot be proved without holding of regular enquiry, the removal or dismissal from service of a civil servant on the basis of summary enquiry is not sustainable in law

Charges of defiance of orders of superiors; being rude to his colleagues and having concealed the factum of having a job in another department, which the civil servant had denied involved factual controversy which could not be resolved without holding regular enquiry and services in such a situation could not be terminated without such enquiry." In another case reported as "Muhammad Riaz v. Medical Superintendent, Service Hospital, Lahore and 2 others" (2016 PLC (C.S.) 296) it has been held that: "

8. By bare perusal of Section 7 of PEEDA Act, it is apparent that authority has been vested with a right to dispense with regular inquiry against an employee, but one must not lose sight of the fact that whenever any discretion is given to an authority, it has to be exercised not arbitrarily but honestly, justly, and fairly right in consonance with the spirit of law, after application of judicious mind and for substantial reasons. For this purpose, the nature of allegations against the accused has to be considered. In a case when it is clear to the authority that the allegations could be decided with reference to admitted record or he forms an opinion that un-rebuttable evidence on the touchstone of QANUN-E-SHAHADAT, to prove the charge against the accused/employee is available on the record, the procedure for regular inquiry (Section 5 of the PEEDA Act), may be dispensed with, otherwise, the ends justice demand an inquiry through an Inquiry Officer or Inquiry Committee. Although, to dispense with regular inquiry is discretion left for the authority to be gauged, yet, the word "decision" has been used in the said section, and the definition of word "decision" has been given in BLACK's Law Dictionary Eighth Edition (Bryan A. Garnder), as under:

"A judicial or agency determination after consideration of the facts and the law; esp., a ruling, order, or judgment pronounced by a court when considering or disposing of a case." Thus, as a matter of fact this discretion has been made in the nature of judicial decision, which has to be exercised with due care and caution keeping in mind the principles of natural justice, fair trial and transparency, so that no prejudice should be caused to the accused/employee. There can be a situation where real fate of allegations can only be adjudged by a regular inquiry and not by mere textual proof. The legislatures further emphasized that if the authority after considering the nature of charge or charges and the material before him, concludes that regular inquiry is to be dispensed with, then the authority shall record reasons in that respect. The sole object behind careful drafting of said provision is indicative of the fact that legislature intended that the discretion which was being left up to the authority, must be exercised judiciously and not arbitrarily. It is for the above reasons that the Hon'ble Supreme Court of Pakistan in the case reported in 2003 SCMR 1110 held that requirement of regular inquiry could be dispensed with in exceptional circumstances. Where recording of evidence was necessary to establish the charges, then departure from requirement of regular inquiry under the Rules would amount to condemn a person unheard."

10. Since the contract dated 19.01.2010, subject matter of these proceedings has already expired. However, the stigma remains attached to the petitioner.

11. In this view of the matter, what has been discussed above, case of the petitioner is remanded to respondent No.3 who shall conduct an inquiry, affording opportunity of hearing/defence to the petitioner/all concerned and then pass an order in accordance with law. Disposed of, in above terms. ZC/S-56/L Petition disposed of.