Mohamad Rashid vs University Of Engineering etc.

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

W.P. No.26155 of 2013 Muhammad Rashid Versus University of Engineering and Technology, Lahore, etc.

Sr. No. of order/ Date of order/ Order with signature of Judge, and that of parties of counsel, proceeding Proceeding where necessary 30.9.2021 Mr. Basharat Ali Gill & Rao Faheem Akhtar, Advocates for the petitioner.

Hafiz Tariq Naseem & Mr. Sajjad Hussain Shah, Advocates for respondents.

This Constitutional petition has been filed to assail orders dated 09.8.2012 and 05.7.2013 of the university authorities that culminated in compulsory retirement of the petitioner from service as a result of disciplinary proceedings.

2.Background facts are that case of fake provisional degree of B.Sc Civil Engineering in favour of one Sajjad Hussain (94-civil-797) got identified in 2010 and an inquiry was constituted to probe into the matter. In light of the findings of the probe committee, syndicate of the university (the “competent authority”) in its meeting held on 12.3.2011, ordered initiation of inquiry under the provisions of the Punjab Employees Efficiency Discipline and Accountability Act, 2006 (the “Act”) against number of employees including the petitioner Muhammad Rasheed as former senior clerk (BS-09) of the Examination Branch. The precise charge against the petitioner was that manual and computerized DMCs had been issued by the Examination Branch due to the negligence of dealing staff that included the petitioner and that entry of fake Comprehensive Result Notification in Dispatch Register at Serial No.345 dated 12.6.2003 had been made. Inquiry was duly conducted

in which the petitioner participated. He was found guilty as charged and recommendation of major penalty of compulsory retirement from service under section 4(b)(iv) of the Act was made. On receipt of findings/recommendations of the inquiry committee the competent authority proceeded further and in exercise of powers under section 13(5)(ii) of the Act, finding the charge to stand proved against the petitioner, major penalty of removal from service was imposed with immediate effect from the date of order of 09.8.2012 through which the decision was communicated. The petitioner preferred an appeal by invoking section 16 of the Act before the Chancellor of the university (the “appellate authority”) who by order dated 05.7.2013 pursuant to section 16(2)(c) of the Act converted the penalty of removal from service handed by the competent authority into compulsory retirement. Interference against both these orders of 09.8.2012 and 05.7.2013 passed by competent authority and appellate authority, respectively, is being demanded by filing this Constitutional petition.

3.Learned counsel for the petitioner submits that findings of the inquiry report were not based on correct analysis of the facts; that inquiry was not completed within the period prescribed under section 10 of the Act which obliges the inquiry committee to complete its proceedings and file a report within 60 days of the initiation of the inquiry proceedings; that other co- accused Ashraf Bhatti and Naveed Iqbal whose role in the case was established were awarded minor penalty of withholding of one year’s increment for both whereas petitioner was given the major penalty of compulsory retirement and that petitioner had been discriminated

against; and that findings of both forums below are not in accordance with law and that in the circumstances interference in Constitutional petition was warranted.

4.Learned counsel for the respondents has vehemently controverted the stance of the petitioner. He submits that none of the provisions of the Act were violated; that due process was followed and opportunity of hearing was given at every stage; that petitioner participated in the proceedings wherein every right was provided to him for rebuttal of allegations against him; that the competent authority rightly imposed the penalty of removal from service which was converted by the appellate authority according to the request and objection of the petitioner that such penalty was not in line with the report of the inquiry committee that had recommended compulsory retirement and that this stance is clearly recorded in grounds “f” and “j” of the Constitutional petition wherein the petitioner specifically states that recommendation of the inquiry committee had to be given weightage; that in fact this was done by the appellate authority by converting the penalty of removal from service to compulsory retirement, as such, objection of the petitioner stood already addressed by the order dated 05.7.2013 of the appellate authority. It is further added by co-counsel for respondents that the petitioner himself admitted that he had signed the DMCs issued by the Computer Section although took the defence that they had been verified by one Usman Ghani, Junior Clerk of the Computer Section before the petitioner signed but that nevertheless the signatures on the fake documents were admitted. Emphasis in this regard in particularly placed on para 9 of the Appeal filed before the Vice-Chancellor available

at page 56 of the instant file as also the Appeal filed before the appellate authority placed at page 50 as well as ground “g” of the Constitutional petition wherein stance has been reiterated that the petitioner did sign the DMCs verified by Usman Ghani, Junior Clerk.

5.Perusal of documents appended with this petition shows that on initiation of inquiry under the authority of the competent authority charge-sheet was issued to the accused personnel and they were directed to file their written defence. Petitioner submitted his written defence dated 23.4.2011 and participated in the inquiry proceedings. During the inquiry proceedings he was specifically asked if he wished to add anything further to his written defence to which he responded in the negative and put a second signature on his reply to betoken this. He was cross-examined by the committee and two reports from handwriting experts brough on record were duly considered. The first report had been relied upon by the petitioner that used the word “similarity” to characterize the comparison between his handwriting on admitted specimen and the fake documents. This word, as per petitioner, implied that the signatures upon the fake documents that were alleged to be his, in fact were not as the word “similarity” meant there was some difference between the two. To thoroughly interrogate the reasonableness of his denial based on the semantic distinction attempted to be drawn by the petitioner, the inquiry committee contacted the Director Forensic Science Laboratory, Punjab, Mr. Ijaz Khan for his opinion on use of the word “similarity” in the report issued by the said laboratory. It was opined that use of the term “similarity” did not imply dissimilarity or difference; but rather in applicable

parlance denoted presence of sufficient resemblance between the two specimens of handwriting under scrutiny to be treated as belonging to one person. A second report by handwriting expert Muhammad Ashraf Mallick, who had been engaged by the inquiry committee in the matter, further corroborated and confirmed that the entry of the fake Comprehensive Result Notification in Dispatch Register at Serial No.345 dated 12.6.2003 did bear petitioner’s handwriting. The charge of involvement in preparation of fake result notification, after consideration of the attendant circumstances, the written defense taken by the petitioner, his articulation of his defence during the inquiry proceedings, the expert evidence in the form of two reports by handwriting experts, was concluded by the inquiry committee to stand established against the petitioner and major penalty of compulsory retirement from service under section 4(b)(iv) of the Act was recommended. The competent authority thereafter issued show-cause notice dated 12.5.2012 on filing of the inquiry report in response to which he filed his reply dated 16.5.2012. Keeping in view the inquiry report wherein the charge against the petitioner stood proved, his written reply to the show cause and the gravity of the matter involved, the competent authority imposed major penalty of removal from service vide order dated 09.8.2012. Aggrieved by the said order the petitioner filed appeal under section 16 of the Act before the appellate authority wherein one of the grounds for objecting to the order dated 09.8.2012 of removal from service was that the competent authority was obliged to follow the recommendations of the inquiry committee wherein compulsory retirement was given and that as

such the competent authority, in awarding the penalty of removal from service, had overstepped the mandate of the authority that could be rationally exercised. However perusal of section 10 of the Act that deals with inquiry committee’s proceedings, findings and recommendations, shows that no such fetter is imposed on the powers of the competent authority as the third proviso to section 10(6) of the Act clearly states that the recommendations of the inquiry committee shall not be binding on the competent authority. Petitioner was heard by the appellate authority, as revealed from the appended documents, that duly considered the objections raised by him as recorded in his appeal, the defence taken by him, the report of the inquiry committee and the stance of the department and, thereafter, passed a detailed order dated 05.7.2013 whereby the findings of the inquiry committee were approved in line with the decision of the competent authority; but keeping in view the recommendation of compulsory retirement contained in the report of the inquiry committee, despite the gravity of the matter, the penalty of removal from service was converted to compulsory retirement. As such, the objection of the petitioner against the order of the competent authority was accepted to this extent by perhaps taking a compassionate view.

6.Indulging in the enterprise of manufacturing fake documents/degrees or colluding in the act, presents grave ethical turpitude. Academic institutions are symbols of civilization in modern society and good institutions serve as benchmarks of a nation’s social development. The integrity of its teachers and the reputation of such institutions that are home to

production of knowledge, is part of the esteem within which the students who qualify from them live out their personal identities and upon which their professional prospects in life are built. Reputation of academic institutions and their national and international reception is founded on the ethically uncompromising truth- seeking activity of its faculty members and the students who study there. The commerce of fake academic antecedents can demolish this credibility built over decades and impair their functioning and is anathema to their very conception. Tolerance against such acts must, therefore, be maintained at absolute zero.

7.In the instant case, after conduct of detailed inquiry, the involvement of the petitioner in the manufacturing of fake degree was established as two forensic reports read in conjunction were found to be convincing by the inquiry committee comprising three professors of the university including Prof. Abdul Jabbar Bari, Director IEE&R (Convener), Prof. Dr. Muhammad Ashiq, Civil ENGG. Dept. (Member) and Prof. Dr. Sajjad, Haydar, IEE&R (Member) assisted by Mr. Zargham Nusrat, Deputy Registrar (Acd) as the Departmental Representative. Full opportunity was given to the petitioner to participate in the proceedings and defend himself. He filed his written statement after issuance of charge-sheet and he was given every opportunity of furthering his defence based on it as well as in addition to it. He was also cross-examined. The petitioner denied that he had any involvement in the fake provisional degree in favour of Sajjad Hussain (94-civil-

797)but the stance that the fake documents did not bear his handwriting, rang hollow against the two reports of handwriting experts. The inquiry committee disbelieved

him after giving him every opportunity of defense and concluded that the charge of misconduct with respect to preparation of the fake result notification stood proved against him. His objection that the inquiry committee was bound to submit its report to the competent authority containing clear findings as to whether the charges against him stood proved or not along with specific recommendations of exoneration or imposition of penalty, within 60 days, and by not doing so the proceedings before the inquiry committee were vitiated is without any force. The inquiry report itself indicates that the inquiry committee had duly obtained extension in time for completion of the process from the competent authority which was permissible under the first proviso to section 10(6) of the Act. Even otherwise, this objection on its own as a bald assertion and without showing any material prejudice to the petitioner caused by the delay, will be of no significance as the third proviso to section 10(6) of the Act clearly states that the inquiry shall not be vitiated merely on the grounds of non-observance of the time schedule for its completion.

8.At various points in his pleadings before different forums as well as in the instant Constitutional petition, the petitioner himself accepts his signatures but wants to suggest that he could not be held responsible as the fake documents had already been verified by Usman Ghani, a clerk from the Computer Section. This manoeuvre to ward off his own responsibility only drives the petitioner deeper into quicksand. The version not only is inconsistent with his earlier defence before the inquiry committee where he had taken the plea that the handwriting as matter of fact did not belong to him at all but is also otherwise fallacious as the computer clerk

verification could hardly exonerate him of his duty as a signatory to the document. If his argument were to be accepted the diligence and perfection that multiple stages in the process of finalization of university degrees created to ensure their accuracy as evidence of the student’s performance and the university’s endorsement of his/her capabilities, might be altogether an exercise in futility. The stance taken by the petitioner as such was neither truthful nor logically supportive of the conclusion he wished to be drawn from it.

9.The inquiry committee after proper proceedings made recommendation of imposition of major penalty of compulsory retirement in the obtaining conditions. The competent authority by its order dated 09.8.2012, given the gravity of the charges that stood proved, awarded major penalty of removal from service, which could not be said to be unwarranted. The appellate authority by its order dated 05.7.2013 after thorough examination and consideration of the entire matter, watered down petitioner’s just desert to align with the recommendation of the inquiry committee by awarding compulsory retirement, perhaps out of compassion, as learned counsel for the respondent university informs that given the length of his service, compulsory retirement admitted him to pensionary benefits.

10.Findings of fact recorded against him, the charges of fabrication of academic documents being of grave nature that involved the reputation of educational institutions is a matter of national concern and which stood established against the petitioner, the finalization of penalty of compulsory retirement does not call for any interference at this stage. The plea that certain other personnel were penalized with less intensity compared

to the petitioner shall raise serious concern for the university authorities who are directed to soul search in this respect. However, this in itself is not deemed to be a good ground to interfere in the discretionary jurisdiction of this Court in the facts and circumstances of the case. The petitioner in fact having been admitted to pensionary benefits as a result of compulsory retirement from service upon being found guilty of involvement in the charges leveled against him, has already had a soft landing in proportion to acts committed. Even otherwise employees found guilty of the acts of breach of code of conduct and rules cannot be thrust back upon the organization for its potential to act as the proverbial spanner in their smooth, transparent, aboveboard and efficient operations.

11.Under the circumstances and on consideration of the facts and circumstances of the case it is observed that all relevant factors were duly examined and dealt with by the appellate authority in passing its order dated 05.7.2013. No serious misreading or non-reading or any jurisdictional, procedural or legal error could be pointed out during the course of hearing or from the appended documents, as to warrant any interference in the discretionary jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan,

12.As a result of the above, instant Constitutional petition is dismissed.

(RASAAL HASAN SYED)

JUDGE

Approved for reporting

JUDGE

*Rabbani*