2009 PLP (C (PLC(CS))

SYED PIR ALI SHAH, J.

Through this Constitutional petition abovenamed petitioner has sought the following reliefs:

(i) Set aside the impugned order, dated 8-9-2003 (Annexure "H" to this petition) and restore the petitioner's original position i.e. Deputy Manager along with all consequential benefits, arrears of pay and allowance etc.; (ii) Upgrade the A.C.Rs. of petitioner filed in as Assistant Manager and consider him for promotion with other batchmates; (iii) Any other relief which this Honourable Court may deem fit and proper under the circumstances of the case. Precisely the facts leading to this petition are that the petitioner earlier filed a Constitutional Petition bearing No.D-1651 of 2006 before this Court to resolve the jurisdictional controversy, a full bench was constituted which pronounced its judgment on 12-3-2007 by holding that the cases arising out of action under Removal from Service (Special Powers) Ordinance, 2000 (as amended) and in similar cases noticed in the judgment, relief of restoration would be maintainable. The petitioner having failed to challenge order of abatement, and now in the light of judgment, dated 12-3-2007, he has filed fresh petition with additional documents and appropriate prayer of restoration in service with consequential benefits. The petitioner has moved an application for withdrawal of Petition bearing No.D-1651 pf 2006. Accordingly the petitioner preferred the instant petition. Heard, both the sides at length and we have also gone through the material available before the Court. Mr. Ch. Rasheed Ahmed, learned counsel for the petitioner, had submitted that the petitioner was in service of respondent No.2 since 17-11-1982 and lastly the petitioner has been working as Deputy Manager. The respondent issued a statement of allegations and charges dated 3].-7-2003, under the Removal from Service (Special Powers) Ordinance, 2000 (as amended) to the petitioner, who furnished his reply on 6-8-2003 deny all such allegations. Learned counsel for the petitioner argued that so-called inquiry was conducted wherein the petitioner cross-examined the witnesses and his statement was also recorded. It is stated that on the basis of partial, fake, frivolous and unfair inquiry, the Inquiry Officer had submitted his report and on such fake and frivolous report, a final show-cause notice dated 27-8-2003 was served on the petitioner and its reply was subsequently submitted by the petitioner wherein he denied all the allegations. Learned counsel had further argued that during the relevant period i.e. 30-6-2003, the petitioner was on leave. It is further stated that the petitioner and two other officers were also supervising officers and both were charge-sheeted for the same allegations; but the petitioner has been made an escape goat and has been punished malafidely and discriminatory which is prohibited under Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan. Learned counsel contended that Mr. Rasheed Khan, J.O. the account holding officer was actually responsible for the alleged inaction. On petitioner's pointation, he was also charge-sheeted and was found guilty and was also punished by demoting him. Learned counsel for the petitioner further stressed that both the Officers and J.O. were reinstated/restored to same grade without any penalty whereas petitioner was singled out and ignored. It has been mentioned that the petitioner was served with a final show-cause notice dated 27-8-2003 and the same was appropriately replied and explained comprehensively. That despite submission of satisfactory reply the petitioner was demoted to the post of Assistant Manager. Learned counsel has argued that issuance of modified statement of allegations dated 12-8-2003, is without lawful authority hence, of no legal consequences. That the petitioner had not committed any misconduct nor any allegation has been proved against him. That the inquiry was a mere farce and a cloak and the findings of Inquiry Officer are also perverse and unsustainable. Learned counsel for the petitioner urged that on the date/dates of alleged occurrence/incident the petitioner was on leave. The date as 30-6-2003, of alleged occurrence could not be attributed to the petitioner as admittedly, he was on leave on this date and no misconduct as alleged could be committed by the petitioner being on leave. Learned counsel further submitted that the petitioner has been discriminated against others namely General Manager, D.G.M, who was found guilty and punished by demotion which punishment was converted into stoppage of increments and ultimately let off. That the discriminatory treatment by awarding major punishment to the petitioner is contrary to the Constitution. He further argued that the petitioner had been vigilant and efficient in pointation of faults requiring repairs and replacements but the officers/seniors sitting over the whelm of affairs paid no heed on the issue. On the other hand, learned counsel for the respondent has referred following portions of the order, dated 12-3-2007 passed by the full bench of this Court:

"All petitions pertaining to removal under the provisions of Removal from Service (Special Powers) Ordinance, 2000, having been taken in exercise of statutory powers are maintainable and this Court would be competent to consider whether the action complained of is in accordance with 'the provisions of the Ordinance;" "Where there is violation of law as explained herein above is alleged and within the parameters of the exercise of constitutional jurisdiction of the Courts, this Court would be competent to entertain petitions and grant appropriate relief within the parameters of its jurisdiction under Article 199 of the Constitution." On the basis of the aforesaid findings the learned counsel for the respondents argued that the petitioner is required firstly to show whether the action complained of is in accordance with the provisions of. Removal from Service (Special Powers) Ordinance, 2000 and then if there is violation of law in terms of the provisions of the Ordinance as alleged and falls within the parameters of constitutional jurisdiction of this Court under Article 199 of the Constitution. That the petitioner has failed to specifically show that the impugned action against him is violative of or not in accordance with the provisions of the Ordinance and even points of factual controversy under the guise of discrimination under Articles 4 and 23 of the Constitution, cannot be lawfully raised to invoke the jurisdiction of this Court under Article 199 of the Constitution the petition is liable to be dismissed. Learned counsel for the respondents argued that the inquiry against the petitioner was held in accordance with law and he was provided full and fair opportunity to defend his case. Statements of the witnesses were recorded and the petitioner was afforded full opportunity to cross-examine during the inquiry proceedings. Learned counsel has submitted that the reply of the petitioner was considered by the competent authority and the finding of the Inquiry officer as per inquiry report dated 22-8-2003 were also considered by the competent authority before awarding the impugned penalty to the petitioner. The SOA&C was rectified and he was informed accordingly and the words "forwarded to him on 20-6-2003" were deleted from the charges. It is further argued that the SOA&C was rectified and he was informed accordingly and the words "forward to him on 30-6-2003" were deleted from the charges hence the objection raised by the petitioner having been taken care of properly by rectifying SOA&C through a corrigendum, merits no consideration. Learned counsel further argued that being the sectional head, it was the responsibility of the petitioner to monitor the jobs by the juniors and that he was rightly found to be responsible/guilty of the charges amounting to misconduct under the Ordinance of 2000 as amended. Learned counsel for the respondent further argued that the petitioner's reply to the show-cause notice was duly and properly taken into consideration by the competent authority before deciding to award him the penalty. He was also provided opportunity of hearing and it was further observed that all the legal requirements are fulfilled and the penalty was awarded to him on the basis of report of the Inquiry Officer and punished with the impugned penalty accordingly. Along with this petition the petitioner has annexed statement of allegations and charges dated 31-7-2003 as Annexure "A" which reads as under: -- You being D.M. (Stores VII) S&L Section failed to point out nomination of 1st signatory of Pakistan Steel S&L Imprest Account and kept quiet from 13-9-2002 till a note for above nomination was moved by a Junior Officer and forwarded by on 30-6-2003. Your above acts of gross negligence and dereliction of duty are prejudicial to good service order and discipline. In reply dated 6-8-2003 (Annexure "B") the petitioner has stated as under:

"(2) The allegations and charges of any gross negligence or dereliction of duty on my part in any manner whatsoever is fully denied. It may be pointed out that I am one of a signatory of Imprest Account of S&L Section and nomination of 1st signatory is/was not within my jurisdiction because I do not deal the imprest matters/reimbursements from Advance Section. My role is like a trustee/signatory of a joint account, so as to exclude the chances of embezzlement of corporation's money. (3) It is submitted that for signing the cheque anyone officer from Group "A" and Group "B" are required to sign the cheque, which I have been performing without any complaint. There is no written SOP/Circular making it obligatory on my part for nomination of 1st signatory from Group "A". This function was being performed by Mr. Rahseed J.O. who deals the imprest account. He always used to initiate the case for nomination of signatories from Group "A" and "B". The nominations of Mr. Khursheed Ahmad Ex-Incharge (Stores) and his predecessors as 1st signatory of S&L Imprest were also done by him, which leave no doubt that my responsibility has been misidentified resulting into issuance of the charge-sheet to me. (4) It is further pointed out that the note under reference was also moved by Mr. Rasheed while I was on leave, which clearly demonstrates that he was the concerned person for initiating the note, as was done by him in this case and that `too in my absence. Initiating the note in my absence amply demonstrates that my involvement in initiating the note was next to nil. In case if I would have been responsible for initiating the note that Mr. Rasheed would have not initiated the note himself and would have certainly waited for my joining the duty. All these aspects may be given due consideration by the learned Enquiry Officer. Annexure "C" dated 20-6-2003 has also been filed by the petitioner whereby he was sanctioned leave w.e.f. 23-6-2003 to 4-7-2003. Annexure "D" dated 7-7-2003 has been filed in respect of extension of leave sanctioned for the period from 5-7-2003 to 11-7-2003. Annexure "E" dated 12-8-2003 is a corrigendum of the statement of allegation which reads as under:

"Please read in the statement of allegations and charges served on you vide letter No.ME&IC/AJA/2003/696, dated 31-7-2003 as under:

"You being D.M. (Stores VII) S&L Section failed to point out nomination of 1st signatory of Pakistan Steel S&L Imprest Account and kept quiet from 13-9-2002 till a note for above nomination was moved by a Junior Officer." Instead of ""You being D.M. (Stores VII) S&L Section failed to point out nomination of 1st signatory of Pakistan Steel S&L Imprest Account and kept quiet from 13-9-2002 till a note for above nomination was moved by a Junior Officer and forwarded by you on 30-6-2003." You may incorporate changes in your reply dated 6-8-2003 to the statement of allegations and charges already received on 6-8-2003 in the light of the above corrigendum on or before 15-8-2003." Annexure "F" is memorandum, dated 7-4-2004 whereby the punishment of Muhammad Rashid Khan. Junior Officer (P.No.208876) of Stores Department, in this very enquiry from penalty of demotion to the grade of Junior Officer i.e. PSE-1(A) was converted into reduction of four stages lower in the time scale of Junior Officer PSE-1(B). Petitioner has produced copy of show-cause notice dated 27-8-2003 served upon him after completion of enquiry which is Annexure "G" and the same was replied by the petitioner vide his reply dated 4-9-2003 as Annexure "G-1". In his reply the petitioner has stated as under: "That the Enquiry Officer has tresspassed from the allegations and charges communicated to me by pronouncing me guilty of not initiating the case for nomination of the first signatory. At the same time, he had assumed me as Account Holder/Incharge of Department. He had therefore erred to note that neither I was account holder nor Incharge of Department. It is a recorded fact that Mr. Rashid Khan, J.O. had been the Imprest Account Holder and the Incharge of the Departments was Incharge (Store) who is custodian of the Imprest Account of S&L Section. My role was confined to only 2nd signatory of Group "A". (2) At first, I was issued a totally wrong charges vide SOA&C dated 31-7-2003 wherein it was claimed that I had forwarded the note on 30-6-2003 moved by a Junior Officer. On my pointing out that I was on leave on 30-6-2003 and did not forward any note, the charges were revised through a corrigendum, dated 12-8-2003, which was illegal because the order of inquiry was passed on the basis of the charges communicated to me earlier. (3) Another fact which was ignored by the Enquiry Officer was that before my posting as Section Head (S&L), my predecessor had been operating the Imprest Account and during that period too, the Incharge (Store) did- not sign the cheques of S&L Imprest Account. (4) During the cross-examination, the prosecutor could not prove following:-- (i) Whether the Secretary's Memorandum No.Sec-I(11)/77, dated 30-4-1977, was in practice. (ii) Whether the Purchase Manual, 2002 issued by Secretary, Pakistan Steel on 27-5-2003 was circulated for information of all concerned. (5) The Prosecutor in reply to my Q.No.8 had openly admitted that Secretary, Pakistan Steel Memorandum dated 18-6-2002 allowed the defendant to sign the cheques because the said memorandum envisaged that the Imprest Account No.CD-33 with Habib Bank Limited Steel Mill Branch, was to be jointly operated by any two representing one from each group. The said memorandum did not contain any stipulation or bar that I was supposed to sign the cheque in case if First Signatory in Group "A" was not available for any reason. Therefore, the findings of the Enquiry Officer are invalid and cannot be relied upon. He has referred to Purchase Manual, 2002 but the same was not circulated at all. Neither it has so far been circulated for information or compliance by the Imprest Holder. The Enquiry Officer had also failed to note that the conditions set forth in the Purchase Manual pertained to the Imprest Account of Purchase Department and it had neither been made applicable on other department's imprest accounts till date. (6) Neither I was Custodian (Head of Department) no Imprest Holder, therefore, the allegations and charges levelled against me were unwarranted. In my defence, I had quoted the example of Mr. Noor Muhammad Awan Ex-A.M. Education Department who was issued SOA&C for the sole reason that being holder of Imprest Account he did not initiate the case for change of signatories. This leaves. no doubt that the responsibility for initiating change of signatory always remained with Imprest Holder. (7) In view of foregoing facts and submissions it is requested that the show-cause notice may please be withdrawn and disciplinary action against me may kindly be dropped please. I desired to be heard in person." Annexure "H" dated 8-9-2003 is a memorandum whereby the petitioner was penalized and his position was reduced to one stage lower in the pay scale i.e. demotion to the post of Assistant Manager (PSE-II). Annexure "J" dated 22-8-2003 is enquiry report/proceedings along with findings in all six leaves (pages 37 to 47 of the file). In view of above documents annexed along with this petition it is crystal clear that the respondent-Department initiated departmental proceedings against the petitioner in haphazard way and, as such, after the reply furnished by the petitioner-Department became vigilant and issued amended charge-sheet/statement of allegations. The stance taken by the petitioner is in clear terms that he was on sanctioned leave from 23-6-2003 to 4-7-2003 which was subsequently extended from 5-7-2003 to 11-7-2003. Obviously, statement of allegations and charges found against the petitioner on the face of it are vague and irrelevant. The enquiry conducted in the matter reflects that the same was not in accordance with due procedure and, as such, it deviates from the normal rules and regulations. The defence put forth by the petitioner has not been taken into consideration at all. In view of Annexure "F" Muhammad Rashid Khan, Junior Officer, in this very enquiry was initially penalized but afterwards his penalty of demotion to the junior grade was converted to minor penalty of withholding of four increments. The case of the present petitioner was at par with the case of Muhammad Rashid Khan it, therefore, follows that the discriminatory attitude was adopted with petitioner Abdul Jabbar Abro against whom not a single adverse action was taken in the past. Had, it been so that his service record was dark then of course, department could have been justified to have adopted stern action against him. As mentioned above, the impugned order, dated 8-9-2003 gives bad smell of discrimination, tantamounting an act of nepotism and favouritism and the same cannot be sustained in the eye of law. The petitioner has rightly invoked constitutional jurisdiction of this Court and, as such, this constitution petition is hereby allowed as prayed. Above are the detailed reasons in respect of short order dated 15-4-2008 through which this petition was allowed. M.H./A-174/K Petition allowed.