1986 PLP 231 (MLD)

MUHAMMAD ZAHOORUL‑HAQ, J.‑‑This petition is directed against the orders of the respondent No.2, who had decided to dismiss the petitioner from service on the charge of mis‑use of power and had recommended the same to respondent No.1 for according sanction to the same. The relevant facts are that the petitioner was serving with Karachi Port Trust as Electric‑Charge‑man Grade I, in 1975. On 9‑8‑1975, some employees of K.P.T. were apprehended at about 1‑15 p.m. for trying to take away unauthorisedly some tubes and chokes‑out of K.P.T. premises at the N.O.B. Gate. One Raziuddin allegedly‑ approached to the petitioner for issuing a gate pass for taking out tubes and chokes to the Head‑office for the illuminations. The petitioner issued the said pass. Later on he withdrew the said gate pass when he came to know that the said electrical goods had already been stopped " being taken away. On 11‑8‑1975, the petitioner reported the matter to K.P.T. Authorities for action against Miskeen and Jabber. But in that letter he did not talk of any gate pass issued by him to Raziuddin. The K.P.T. Authorities instituted a preliminary inquiry into the matter which was conducted by Mr. Mazher Iqbal Shaikh, after notice to the petitioner. He came to the conclusion that two persons attempted to pilfer the matter but were intercepted and they were Raziuddin and the driver of the vehicle. That every thing was pre‑planned and that Raziuddin had taken the support of two labourers Jabbar and Miskeen. In respect of the petitioner it was stated that the Chargeman Nazir Hussain had issued, the gate pass to utilise that material in head office but at the same time he reported the matter immediately to Electrical Engineer. The K .P. T. thereafter, framed the following charge against the petitioner:‑‑ "Misconduct for misuse of your position by issuing gate pass No.32 Book No.510 at 2‑30 p.m. to one Mr. Raziuddin son of Jaffar Khan on 9‑8‑1975 for K.P.T. vehicle No. KAK‑3147 in order to regularise unauthorised removal of K.P.T. property viz. Electrical Tubes and Chokes." The inquiry was conducted by Mr. M.A. Ansari. The petitioner participated in the same and it was held as under:‑

"From the above evidence it is evident that though the accused Mr. Nasir Hussain had the knowledge that these articles were issued for Shed. No.8 but in spite of that he issued the gate pass for taking the electrical articles outside the gate." The Enquiry Officer had further held:‑-- In the absence of store chit from chargeman of Head Office, clearly suggests that Mr: Nasir Hussain wanted to pass these articles from gate for some ulterior motives. It seems that through the gate, Mr. Nasir Hussain in order to save himself instructed the Sub‑Inspector Watch and Ward to send the article and cancelled the gate pass. The Enquiry Officer, however; suggested a light punishment for stopping increment for one year. It may be noted here that Watch and Ward Officers have not appeared before the Enquiry Officer. The Board of Karachi Port Trust was, however, not satisfied with the said inquiry report and considered the same to be vague and inconclusive and, therefore, appointed Mr. Zaheeruddin Qureshi to conduct further inquiry into the matter. Mr. Zaheeruddin Qureshi conducted the inquiry after notice. The petitioner participated in the said inquiry and his statement was recorded. The statements of Raziuddin, Shah Muhammad, Miskeen, Jabber, Asif and Sarwar Sub‑Inspector were also recorded. The petitioner had taken up that he had issued the gate pass in good faith, on the asking of Raziuddin but he could not explain as to why he had given the gate pass to Raziuddin at 2‑00 p.m. but yet he had mentioned the time of giving the gate pass as 12‑00 noon. In this respect the following is the observations of the Enquiry Officer:‑

"In reply to a further question, Mr. Nasir Hussain admitted that Mr. Raziuddin came to him at 2‑00 p.m. on 9‑8‑1975 for issue of a Gate Pass in respect of the material in question. But the time which was given in the Gate Pass was 12 Noon and Mr. Nasir Hussain could not reconcile the difference between the time given in the Gate Pass and the time at which Mr.Raziuddin approached him for the issue of Gate Pass." The Enquiry Officer concluded as under:‑

"From the statement of witnesses, more particularly of Mr. S. G . Sarwar, Sub‑Inspector, Watch and Ward, and other evidence documents, as also the replies given by Mr. Nasir Hussain in his cross‑examination as per Appendix 'K' 'I have come to the conclusion that the contention or stand taken by Mr. Nasir Hussain that he prepared the Gate Pass in good faith (without proper requisition, viz. Demand Chit and Store chit) is absolutely incorrect and there is ground to believe beyond reasonable doubt that he has narrated a concocted story. There is sufficient evidence to draw a conclusion to the fact that Mr. Nasir Hussain has misused his official position by issuing a Gate Pass in question as there was no genuine and valid demand particularly for the reason that there was no demand and store chits to show that the material was actually issued for its alleged use in Head Office. " By the order, dated 9‑8‑1981, the petitioner was dismissed from the service but the same was withdrawn‑on 19th August, 1981, as the K .P. T . found some defects in its order of 9‑8‑1981. On 29‑9‑1981 K .P. T. issued a show‑cause notice to the petitioner; as to why he should not be dismissed, and after taking into consideration the representation made by the petitioner the K . P. T . resolved to dismiss the petitioner and recommended the same for according sanction to the Government of Pakistan. The Government of Pakistan had eventually sanctioned the same in October, 1981. The petitioner had taken up the position that he had been absolved of any complicity in the two inquiries that had been held against him by Mr. Mazher Iqbal Shaikh and Mr. M.A. Ansari. However, we find that the same is not the position. We have perused the documents produced by Mr. Zaheeruddin Khan, the learned counsel for the K.P.T. in response to C.M.L.A. No.1386 of 1985 made by the petitioner and we have reproduced from those documents the relevant material as mentioned above and we find that the inquiry conducted by the Enquiry Officer Mr. M.A Ansari has clearly established that the petitioner was not free from liability in the matter, although there was some vagueness in the narration of the part played by the petitioner: In report of Mr. M. A. Ansari he had come to the conclusion that the charges seem to have been proved against him. Therefore, the contention of Mr. Malik Muhammad Said, learned counsel for the petitioner that Mr. M.A. Ansaril had absolved the petitioner of any liability in the matter is completely unfounded. Moreover, the last inquiry conducted by Mr. Zaheeruddin Qureshi, had found the petitioner guilty of the charge, and, therefore, the petitioner cannot say that he was not involved in the matter of taking away of the articles from K.P.T. premises. The fact, that the petitioner admitted that he issued the gate pass at 2‑00 p.m. but gate pass showed that it had been issued at 12 Noon, the petitioner was no able to give any explanation as to why he put the wrong time. Since' the goods have been detected at 1‑15 p.m. at N.O.B Gate, therefore, making out a gate pass at 2‑00 p.m. by the petitioner and yet giving the time of 12 Noon in the said gate pass clearly shows that the petitioner had tried to justify the act of those persons who had tried to take away the goods. His explanation that he did so in good faith is hardly believable because in good faith he should have specified the correct time when he was issuing the gate pass. Mention of wrong time in the pass belies good faith. In view of the inquiry report of Mr. M.A. Ansari and Mr. Zaheeruddin Qureshi, one cannot escape from the conclusion that the petitioner had acted in very irregular manner and tried to justify the act of those persons who wanted to misappropriate the goods. It may be clarified here that the head office of K.P.T. had never sent for such material. It may also be mentioned here that if the gate pass had been genuinely issued by the petitioner to those persons who wanted to take away the goods, then no one would have been the importance of the gate pass is obvious and hence, the complicity of the, petitioner is indicated. Mr. Malik M. Said had argued that holding of several inquiries was against the principle of natural justice. He had relied upon P L D 1964 Pesh. 167(172), where it was held as under:‑-- "Whatever the legal position it is clear that it is against the principle of natural justice to hold repeated inquiry into the same charges, unless it is held that the findings of previous inquiries are not accepted, by competent authority." In the present case, we have seen that the inquiry by Mr.Mazher Iqbal was only a preliminary inquiry and, therefore, it could not be treated as a full‑fledged inquiry. The first full‑fledged inquiry, after charge, was made by Mr. M.A.Ansari but he had made a vague report, and therefore, K.P.T. decided to institute another inquiry by Mr.Zaheeruddin Qureshi. We are of the view that in view of the fluctuating attitude of Mr. M.A. Ansari and in view of the fact that the prosecution witnesses had not appeared before him, the K.P.T. was justified in instituting a fresh inquiry. Therefore, in this case the principles of natural justice were not breached and the petitioner had full opportunity to present his case. There seems to be hardly any justification for this petition and the same was, therefore, dismissed by a short order on 19‑2‑1986. Mr. Muhammad Zaheeruddin Khan had raised preliminary point that writ cannot be issued against K.P.T. and it was merely a statutory body and had its own rules and regulations. The short answer to this objection is that in this case the K . P. T. itself had moved the Government of Pakistan for according sanction to the order of dismissal of the petitioner, therefore, the Government was a necessary party as without sanction of Government, the order of K.P.T. was incomplete. Since the petitioner had sought an injunction against the Government itself, therefore, the petition was competent. The net result of this, however, is that the petition stands dismissed. M . Y . H . Petition dismissed.