Muhammad Asif vs Secretary etc.

JUDGMENT SHEET

LAHORE HIGH COURT, BAHAWALPUR BENCH,

BAHAWALPUR

JUDICIAL DEPARTMENT

Writ Petition No.5337-2014-BWP

Muhsammad Asif Vs Secretary Health Department, Govt. of the Punjab, Lahore, etc Date of hearing: 23.12.2014

Appellant by: Mr. Muhammad Sohail Iftikhar, Advocate.

Respondents by: Mr. Muhammad Tahir Saeed Ramay, AAG

MIRZA VIQAS RAUF, J:- The petitioner through

instant petition has challenged the orders dated 25th of March, 2014, passed by respondent No.1, whereby he has upheld the order dated 7th of October, 2013 passed by respondent No.2 imposing the major penalty of “termination of contract” upon the petitioner.

2.Precisely the facts necessary for the adjudication of instant petition are that the petitioner was appointed as School Health & Nutrition Supervisor BS-17 at BHU Chak No.217/M, Tehsil Chishtian, District Bahawalnagar vide appointment letter No. 2952/EDO(H)BWN dated 23rd of July, 2010 issued by the District Coordination Officer, Bahawalnagar. The employment of the petitioner was contract employment and he was appointed on temporary basis; Initially contract period was fixed for three years from the date of assumption of charge. The said period was extendable for a further period subject to good performance and conduct to be evaluated by the Appointing Authority. During the currency of his employment the petitioner was departmentally proceeded and resultantly vide order dated 7th of October, 2013, major penalty of “termination of contract” was imposed upon him. The said order of termination was upheld

by the Secretary Health, Government of the Punjab, Health Department, vide order dated 25th of March, 2014.

3.Learned counsel for the petitioner contended that the services of the petitioner were terminated on account of absence from duty and inefficiency, which are not even substantiated from the relevant record. He further submitted that even the Inquiry Committee upon completion of the Departmental Inquiry recommended that the absence of the petitioner may be considered as leave without pay and his services may please be allowed to continue. Learned counsel further added that the Inquiry Committee has not recommended imposition of the major penalty but the Competent Authority without assigning any reason imposed the major penalty of termination of contract upon the petitioner. He maintained that the order dated 7th of October, 2013 passed by respondent No.2 is illegal and unlawful.

Learned counsel for the petitioner further contended that though respondent No.1 was competent to take cognizance of the illegality committed by respondent No.2 but the said respondent, without applying his own mind upheld the order of termination in a capricious manner.

4.Conversely the learned Law Officer appearing on behalf of the respondents, while controverting the arguments advance by the learned counsel for the petitioner submitted that upon the conclusion of the inquiry, the Inquiry Committee concluded that the charges leveled against the petitioner regarding the absence from duty are proved. Thus the Competent Authority was equipped with the powers to differ with the recommendations of the Committee and imposed any of the penalty provided under the law. He further maintained that the contract of employment of the petitioner expired on 23rd of July, 2013. So the instant petition, even otherwise has become infructuous. Learned Law Officer further contended that the petitioner being a contract employee has no vested right to invoke the extra-ordinary jurisdiction of this Court.

5.I have heard the learned counsel for the petitioner as well as the learned Law Officer appearing on behalf of the respondents and also perused the record with their assistance.

6.The petitioner was appointed for the post of School Health & Nutrition Supervisor (BS-17) at BHU Chak No.217/M, Tehsil Chishtian, District Bahawalnagar vide appointment letter No. 2952/EDO(H)BWN dated 23 rd of July, 2010. As per terms of employment the appointment of the petitioner was temporary and on contract basis and the period of the contract was initially fixed for three years from the date of assumption of charge, however, the same was extendable for a further period subject to good performance and conduct to be evaluated by the Appointing Authority. As per clause 11 of the appointment letter, the contract appointment shall neither confer any right for regular appointment nor any such appointment shall be regularized the same is reproduced below:-

“11. NO RIGHT OF REGULAR APPOINTMENT: Contract appointment shall neither confer any right for regular appointment nor shall such appointment be regularized.”

7.Similarly clause 17 relates to the termination of the contract which read as follows:-

“17 TERMINATION OF CONTRACT. Your contract will be liable to be terminated on one month’s notice or on deposit of one month pay in lieu thereof, on either side. Your contract will also be liable to be terminated on account of poor performance/undesirable conduct or unauthorized/ willful absence from duty.”

8.The petitioner was proceeded departmentally under the Punjab Employees Efficiency Discipline and Accountability Act, 2006 on the charges of misconduct i.e. willful absence from duty w.e.f. 25.02.2012, not attending any meeting, not providing visit plan and non-submission of visit reports, as reported by the DDO(H) Chishtian District Bahawalnagar vide his letter No.113/DDO(H) dated 24.01.2013. The Inquiry Committee was constituted

vide order dated 19th of June, 2013 with the mandate to probe/investigate the matter regarding willful absence from duty.

9.Upon completion of the inquiry the committee concluded that the charges leveled against the petitioner regarding the absence from duty w.e.f.

25.02.2012 to 31.01.2013 are proved. However, the Committee recommended as under:-

“1. The absence period of the accused officer may be considered as leave without pay. However, keeping in the view of humanitarian grounds, his service may please be allowed to continue.

2.The DDO (H) Tehsil Chishtian & Medical Officer/IC BHU: concerned may be directed to keep vigilant eye regarding the attendance/performance of the accused.

3.He may be warned to be more careful in future as this privilege cannot be given again.”

10.The District Coordination Officer, Bahawalnagar being the Competent Authority, while exercising his powers, disagreed with the recommendations of the Committee and imposed the major penalty of “Termination of Contract” upon the petitioner vide order dated 07.10.2013.

The petitioner initially filed Writ Petition No.6769 of 2013 against the said order which was disposed of vide order dated 9th of December, 2013 in the following manner:-

“ C.M.No.4348/2013/BWP

Seeks placing on record copy of representation, which the petitioner has submitted to Secretary Health, Punjab, Lahore alongwith postal receipt. The request of the petitioner is allowed. C.M stands disposed of.

MAIN CASE.

Let a copy of the representation be sent to the Secretary Health, Punjab, Lahore with the direction to decide the same within one month under intimation to this Court through Deputy Registrar (Judl.) With this direction, the petition is disposed of.”

11.The respondent No.1 on receipt of said order called the petitioner for personal hearing. However vide order dated 25.03.2014 the respondent No.1 rejected the representation of the petitioner.

12.Before adverting to the other merits of the case I would like to first dilate upon the issue that as to whether District Coordination Officer, Bahawalnagar being Competent Authority was vested with the Power to differ with the recommendations of the Inquiry Committee and impose the major penalty of “termination of contract”. In this context I feel no hesitation to seek guidance from the dictum laid down by the Hon’able Supreme Court of Pakistan regarding the matter in issue. The first judgment on the subject is in the case of “ABDUL RASHID vs. C.S.C and another” (1989 SCMR 1417) Wherein it is held that “ undoubtedly the appellant has been favourably commented upon by the Inquiry Officer but under the rules the Authorized Officer and the Authority are under no obligation to agree with the recommendations.” There is yet another view on the same subject in the case of “ABID HUSSAIN vs. CHAIRMAN, NESCOM, ISLAMABAD and another” (2009 SCMR 1025), wherein the Hon’ble Supreme Court has laid down following principle:-

“The Inquiry Officer had recommended the stoppage of promotion of a period of 14 years, but the competent authority, not agreeing with the quantum of punishment, ordered the removal from service. Learned counsel challenged this conduct, believing, that the competent authority had no jurisdiction to disagree with the recommendation of the Inquiry Committee. We do not agree with the argument because the competent authority has every jurisdiction and power to disagree with the Inquiry officer, especially on the quantum of punishment.

The learned counsel for the petitioner further assailed the action of the competent authority, that before disagreeing with the Inquiry Officer, no show-cause notice was issued to the petitioner. In this connection, we would look into the show-cause notice dated 10-3-2004 (P.39), the contents whereof would clearly suggest that it was served after the submission of inquiry report and it was clarified to the petitioner that the punishment involved could include

dismissal from service. The petitioner, therefore, was not condemned unheard.”

13.Furthermore in the case of “GOVERNMENT OF N.W.F.P and others vs. ASIQ IQBAL” (2010 SCMR 1345) at page 1348 the Hon’ble apex Court held as under:-

“Let we make it clear at the outset that “the recommendations of the Inquiry Committee are not binding upon the Competent Authority” Abdul Rashid v. C.S.C. 1989 SCMR 1417 and any actions as may be deemed fit and proper can be taken by the Competent Authority subject to law with one exception that such action must be supported with reasoning.”

14.However, in the case of SECRETARY, GOVERNMENT OF PUNJAB (C & W) and others vs. IKRAMULLAH and 5 others” (2013 SCMR 572), the Hon’ble Supreme Court of Pakistan has observed in the following way:- “Having heard learned Law Officer and learned counsel for the respondents, we find that a two member committee comprising of senior officials of the C & W Department was constituted to inquire into the allegations leveled against the respondents and the said committee in the detailed report has discussed the role attributed to the respondents in the light of the evidence recorded during inquiry and came to the conclusion in case of respondent in Civil Petition No.733-L of 2012 (IkramUllah) that none of the charges stood proved; in case of respondent in Civil Petition No.737-L of 2012 (Iftikhar Ahmed) that some charges were proved and it recommended minor penalty of withholding of two increments for two years; in case of respondent in Civil Petition No.755-L of 2012 (Syed Atta Hussain) that some of the charges were proved and minor penalty of withholding of one increment for one year was recommended; in case of respondent in Civil Petition No.1988-L of 2012 (Ameen Ahsan Shah) that some of the charges were proved, some were partially proved and one charge was not proved and it recommended reduction of three stages in his pay scale and

withholding of promotion for three years when due; in Civil Petition No.1989-L of 2012 (Qazi Altaf Hussain Shah) that some of the charges were proved, some were partially proved and one charge was not proved and it recommended penalty of reduction by two stages in pay scale and withholding of promotion for three years when due. Similarly in Civil Petition No.1990-L of 2012 (Asif Shaheen Khan) one charge was proved and four other charges were not proved and it recommended minor penalty of withholding of two increments for one year. The Competent Authority without assigning any reason to disagree with the findings of the Committee with reference to the evidence collected enhanced the penalty and converted the same into major penalties as indicated in column No.4 of the chart referred to in para 3 above. There is no cavil to the proposition that the competent authority on receipt of the report from the inquiry officer of the inquiry committee can proceed in any of the options available to him in terms of subsections (2) to (8) to section 13 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006. However, while doing so, it has to follow the procedure laid down therein and if it proposes to enhance the penalty it has to give reasons germane to the charges leveled and the evidence collected during inquiry and that too with reference to the liability of each of the officers who were inquired into. Unfortunately the Competent Authority did not give any reason whatsoever except that he had gone through the record and the defence pleas of the respondents and had also personally inspected the road, defective construction of which was a moot point during inquiry. Mere deplorable condition of the road at site was not enough to hold each respondent guilty unless the Competent Authority specifically had referred to the role and liability of each one of the respondents in the light of material/evidence collected during inquiry. Learned Law Officer on court query, could not dispute the fact that the competent authority neither gave any reason for enhancing the penalty nor apportioned

the liability of each of the respondents specifically. Even the site inspection of the road was carried out, it is not denied by the learned Law Officer, after four years of the completion of the said project and that too in absence of the respondents.”

15.The above view was further elaborated in latest judgment of the Hon’ble Supreme Court of Pakistan in the case of “ASIF YOUSAF vs.

SECRETARY REVENUE DIVISION, CBR, ISLAMABAD and another” (2014 CSMR 147), the relevant extract from the same is reproduced below:- Leave was granted by this Court in terms of the order dated 14-2- 2011, which reads as follows:-- “2. Leave is granted, inter alia, to consider whether before converting the minor penalty as suggested by the Inquiry Officer into major penalty of dismissal from service competent authority has served the notice upon the petitioner and whether sufficient material was available before the competent authority to pass order impugned before Service Tribunal. Since a short question is involved office is directed to fix the main appeal within two months. The parties can file additional documents if any, in support of their respective contentions” We have heard learned counsel for the appellant and learned Deputy Attorney General at some length and have gone through the precedent case-law to which reference was made by learned counsel for the appellant i.e. Khalid Mansoor v. Director FIA (2008 SCMR 1174) and Abid Hussain v. Chairman, NESCOM (2009 SCMR 1025). There is no cavil to the proposition that the Competent Authority is not bound by the recommendation of Inquiry Officer qua the award of penalty to the accused officer. However, while disagreeing and awarding higher penalty than recommended by the Inquiry Officer, he has to firstly provide opportunity of hearing to the accused officer and secondly, he has to pass a reasoned order with conscious application of mind. The tenor of the order passed to which reference has been made above indicates that although the Inquiry Officer had found the appellant to be negligent in his conduct and the charge of ‘mal-administration’ was not proved yet the Competent Authority while awarding him major penalty of dismissal

from service found that “there was substantial evidence on record to prove the charges”. There is no reference to the evidence or material which found favour with the Competent Authority to award major penalty of dismissal from service. Admittedly there was no allegation that the accused officer was guilty of corruption or of financial gain.

16.From the above quoted case law it is now settled proposition that though the Competent Authority is not bound by the recommendations of Inquiry Officer/Inquiry Committee in the matter of awarding of penalty to the delinquent official, however, while disagreeing and awarding the higher penalty other than as recommended by the Inquiry Officer/Inquiry Committee, the Competent Authority has to firstly provide opportunity of hearing to the concerned official and secondly he has to pass reasoned order after conscious application of the mind to the facts of the case. Perusal of order dated 7th of October, 2013, reveals that the Competent Authority while disagreeing with the recommendations of the Inquiry Committee and imposing major penalty of termination of contract has duly applied the said conditions thus there is no illegality with the said order to this extent.

17.The petitioner was admittedly a contract employee and his term of employment was three years which ended on 3rd of July, 2013 and even as per clause 17 of the term of contract, his services can also be terminated on account of poor performance/ undesirable conduct or unauthorized/willful absence from duty. The petitioner, being the contract employee has no locus standi to file the instant petition. In this regard reliance can be placed on the case of “ABID IQBAL HAFIZ and others vs SECRETARY, PUBLIC

PROSECUTION DEPARTMENT, GOVERNMENT OF THE PUNJAB,

LAHORE and others” (PLD 2010 S.C 841) wherein the Hon’ble Supreme Court of Pakistan in the case of contract employees held as under:- “ The learned Prosecutor-General Punjab produced the voluminous record of appointments of the petitioners/prosecutors for our perusal. The offer letters of

appointment issued to the prosecutors provided, inter alia, as under:- ( 1) The appointment will be temporary and on contract basis till arrival of selectees of Punjab Public Service Commission or the selectees under contract appointment policy;

(2)The appointment will be subject to review/confirmation by a committee constituted for the purpose.

In some cases, the appointment on contract was made “till the recruitment under Contract Appointment Policy” while in others the appointment was made “ till arrival of the incumbents of the posts”. In some of the cases, the above noted condition No.2 regarding review/confirmation by the Committee may not have been mentioned, but the fact remained that there was no ambiguity in the terms and conditions of service offered to the petitioners. The termination of their services was contingent upon the occurrence of specific eventualities, viz., the arrival of the selectees of the Committee or those of the Commission, or the failure of the incumbents to clear the prescribed test/interview by the Committee constituted for the purpose. The orders of termination of services of the petitioners were passed after anyone of the afore-said eventualities had occurred. In the circumstances, the judgments cited by the learned counsel for the proposition that the Government was estopped from taking advantage of its own lapses, irregularities or illegalities were not attracted in the present case. The action impugned before the High Court was taken by the Government, not at its own, but in pursuance of the orders of the High Court. Having accepted the said conditions of service, the petitioners had no locus standi to file the writ petitions seeking writs of prohibition and mandamus to the respondents to refrain from terminating their services and to retain them on their present posts on regular basis, which the learned Full Bench of the Lahore High Court rightly declined to issue. Further, it was argued by some of the counsel before the Full Bench of the Lahore High Court that since their clients/petitioners had been cleared/retained by the Committee, they would continue in service for the period of the contract appointment, i.e. until the arrival of the selectees of the Commission or those of the Committee. Such an argument was destructive of the plea of the learned counsel for the petitioners before us that the Department was debarred from making temporary/officiating appointments for a long period with mala fide intention in the

light of the law laid down in Abdul Majid Sheikh’s case (supra) and Jafar Ali AkhtarYousafzai v. Islamic Republic of Pakistan PLD 1970 Quetta 115 and later turning up to terminate their services on the eventualities, which were their own creation.”

17.Similarly in the case of “ FEDERATION OF PAKISTAN through Secretary Law, Justice and Parliamentary Affairs Vs. MUHAMMAD AZAM CHATTHA” (2013 SCMR 120), the Hon’ble Supreme Court of Pakistan while dealing with the issue akin to the issue in hand laid down the following principle:-

“It is not only the respondent whose notification of the appointment was declared unconstitutional but there were so many others along with him, as is evident from the notification dated 10-11-1996, referred to hereinabove, whose services were terminated. So it is abundantly clear that respondent lost his job because of the judgment of the Lahore High Court and for this reason alone, perhaps he had not challenged the order of termination of his contract before any forum for a considerably long period. The question is that a person whose fate has been so determined, although he was a contract employee, had no legal entitlement to continue in contract employment because subject to holding him entitled to draw salary in lieu of the notice period, he could not have agitated the matter in any manner. In addition to it, it is a cardinal principle of law that a contract employee instead of pressing for his reinstatement to serve for the leftover period can at best claim damages to the extent of unexpired period of his service.”

18.Thus no cavil left that the petitioner, being contract employee cannot invoke the extra ordinary jurisdiction of this Court for the enforcement of contractual obligations with regard to his employment. So far the contention of the learned counsel for the petitioner with regard to regularization of his services are concerned, it is held that as per clause 11 of the appointment letter it was laid down that the appointment shall neither confer any right for regular appointment nor shall such appointment be regularized. Thus the petitioner is even precluded to agitate such plea through the instant petition. However, for the sake of guidance reliance can be placed on the Suo Motu case No.15 of 2010 reported in (2013 SCMR 304). The relevant extract from the said judgment relating to

the present issue is contained in Para No.15 at page 312 of the said judgment, which is reporduced below for convenience and ready reference:- “In the year 1993, the Provincial Zakat Council decided to engage part time workers for the maintenance of record at the fixed remuneration of Rs.200 per month. The Central Zakat Council on 13.10.1994 set up a scheme for Zakat Clerks, which, besides other conditions, decided that the appointments will be contractual; that they be paid fixed salaries and shall be appointed by the Chairman District Zakat Committee subject to endorsement of the Central Zakat Committee. It was on such terms that the petitioners were employed by their respective District Zakat Commkittees. This background demonstrates the nature of their employment being for specific purpose. Be that as it may, the fact remains that the petitioners are contractual employees and on that score according to the consistent view of this Court do not have vested right for regular appointment. See Government of Balochistan v. Zahida Kakar (2005 SCMR

19.The nutshell of the above discussion is that the petitioner being contract employee was rightly proceeded departmentally on account of charges of misconduct and his services were terminated by invoking the provisions contained in the Punjab Employees Efficiency Discipline and Accountability Act, 2006. The petitioner has failed to point out any illegality or perversity in the orders impugned herein. This being so, the petition in hand fails and is dismissed without any order as to costs.

(Mirza Viqas Rauf) Judge Ramzan

APPROVED FOR REPORTING

JUDGE