Lt. Col Syed Jawaid Ahmed (Rtd) (Petitioner) VS Pakistan Defence Officer Housing Authority & Ors (Respondent)

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a ORD ER SHE ET.

IN THE HIGH COURT OF SINDH,

\ h

KARACHI \

CorISt. peririon No.D_1933 of2008 Date Order witlr signature of Judge Petitioner- Lt. coroner (rtd.) Syed Jawaid Ahmed through Mr. Muharnmad A-rshad Khan Tanoli. advocate.

ls:a r:l:r* Officers Housing Authority and others through Mr. Khali<l Javed. aclvocate

MUHAMMED KARIM KIIAN AGHA. J..

The pefitioner, as alleged in the petition, was appointed in June, 2004 as Vice principal of pakistan Defence Officers Housing Authority, SKBZ College, Karachi. Aftei retirement of the then Principal of the College the petitioner took over the charge of Acting Principal olt 01.7.2004 and performed his duries as principal till 05.5.2005. Thc petitioner applied to become principal against the vacant post and was initially overlooked by Respondent No l when Brigadier (rtd.) Muha&mad AIi Javed was selected and appointed to the said post.

2.When the post of principal became vacant on 25.g.200g the petitioner feared that he would again be overlooked for promotion to the post ofprincipal by Respondent No.l so he filed Const. petirion No.D _t276l2lugin this Coun

seoking dircction that the rcspondents may be ordered to appoint him as Plincipal with fi.rlther direction to restain the respondents fiom { recruiting/inducting any other pemon as prirrcipal of SKBZ College. Status_quo was granted by this Court in the said petition on 25.6.200g in favour of the petitiooer, however, this petition was dismissed in limine on 02,9.200g.

3.According to the petitioner, as per Inductior/promotion policy of respondent No.l, 75oZ promotions in grade lg and above are to be made fiom

the staff held on roll of the college alld 25%o ate to be inducted directly and as

y/ such he had a sftong case to be appointed prircipal.

2 \s:

The petitioner contends that Respondent No retaliated on account of him filing the aforesaid petition by unlaEfulty terminating f,i" s"."ic"" ll, its letter dated 0g.g.200g for no apparent reason (hereinafter referred to as the "Impugred Order')

5.ln nutshell, the p€titioner,s case is that he has been condemned unheard and removed from service arbitradly and that he has not b€en provided recou$e of the provisions of Removal tom Service (Special powers) Sindh Ordinance 2000 (hereinafter refened to as the ,,Ordinance, 2000,,).

6.Leamed counsel for the petitioner, during his arguments, submitted thar the Service Rules of 1992 for the employees of respondents had not been framed by the competent authority pursuant to presideDt,s Order 7 of 19g0.

Fulthelmore, the petitioner had not rcceived one month,s notice, as requircd under Section 5(a) of Service Rules,

7.Wilh rcgard to maintainability of the perition, leamed counsel for thc petitionor, submitted tbat the respondent No.l was a nofl statutory corporatioq aad relied on the cases of MUHAMMAD DAWOOD v. FEDERATION OF PAKISTAN (SBLR 2007 Sindh 495) and TANVEER_UR_REHMAN v.

PAKISTAN INTERNAIIONAL {RLINE

CORPORATION (PLC 2OO9 CS

a

8.In support of hi-s various contentioN leamed counsel for thc peritiorcr t has placed reliance ol the followiug casesi (i) YVI{qryAD DAwooD v. FEDERATToN oF pAKrsrAN AND OTHERS (2007 PLC (CS) 1046r (ii) SAKHAWAT ALI v. DEpUTy COMMISSTONER/CHATRMAN (1998 PLC l9),

(iii)IMAM SHAH v. COVERNMENT OF N.W.F.P (pLD

2004 SC

(iv)AHMAD HASSAAN v. GOVERNMENT OF PUNJAB (pLD 2004 sc 694) (v) {|yP _!tNK LIMITED v. GHULAM MUSTAFA xHArRArr (2008 scMR l5l6)

9.Or the orher hand the rcspotrdents, as a prelimina4r point, conterded {x

relationship between respondent - No.l and its employees (including the _t! petitioner) was one of master and seryant and as such this petition was nol maintainable.

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10.Leamed couruel fo! the respondents, also initially contended that the petitioner's post had been abolished and as such his prayer ofreinstatement was not maintai[able. He further contended that the petitioner,s academic, professional and seryice experience did rct medt him to be appointed as Principal ofSKBZ College. The petitioner did not even hold an M.A. in English Litelature. He was, therefore, not appointed to the post of principal because he lacked the qualifications rcquired for the posr.

] 11. The minutes dated 04.09.2008, signed by the Administrator of Respondent No l, headed ,,Disciplinary Officers_ Lt Col @ Syed Jawaid Aluned, Vice principal DA SKBZ College,, C.the Mirutes,) irdicare that the petitioner had a history of misbehavior and ir particular as reproduced in part below had been involvgd in numercus cases ofalleged sexual harassment.:_ 'The officer, _allegedly, has also been involved in nurnerous cases of sexual harassmenr of was due to his activities rhat Ex. "orr"ugu." ii, "o]'leieiii female in Dir aa;g", i,ll""r,i" i."", re-plac,ed with glass door. No case was ever pursued for the sake of DHA reputation and also thar complainant" appear as witnesses due to social ;".;;;l;;;;;

following names can be quored as rel.erence:_ ".rpf.*i,i..,--["ilr.i (i) Dr. Shazia Iqbal d/o Dr. Mtfiammad lqbal Ex MO DA Med Centre

(ii)Ms eurrat_ul_Ain d,/o Mr. Abdul Hamid Oamar Ex Asst profSKBZ Colleg

"6.. In view ofabove, it is recommended that StaffNo.4279 Lt.

::l,JR) sy.9 Jawaid Ahmed. vi". p.i;.i;"t';f';; d[;; Lollege may be terminated from DHA sve under para Ill of Service Rules for Emptoyees ot- pDOHA- r de: 5a Chapter lif"g-:;j''

7.Submitted for approval ofpara 6 ante please.

sd, - B.ig.

(Kamran Aziz Qazi) Admini-trator DHA 4 Sep 08 +P' President Executive Board

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!...^lay- 6 alnroved, to be enacted upon ASp. Don.r you have a MISCONDUCT Clause? ADDHA '

9.Pl take action as apprcved by the pEB. Dir Edn" .)f

12.lVhen confionted with these excerpts ofthe minutes Leamed counsel for the respordents conceded that the petitioner,s services were teminated on account ofallegations ofmisconduct as opposed to the abolition ofhis post.

13.Accordingly pursuant to the rccommendations contained in the Minutes leamed counsel contended that respondent No.l, as it was entitled to do,

T lawfully dismissed the petitioner under Rules, 1992, without giving the petitioner Section 5(a), Chapter III of Service righr of hearing thrcugh the Impugned Order.

14' Leamed counsel for the respondents has contended that the Executivc Board under President's Order 7 of l9g0 had full powers to make Service Rules for the respondent No.l and thereby repelled the petitioner,s contention that thc rules had been passed \ryithout lauful authority.

15.In support of his various contentions the leamed counsel for the respondents has placed reliance on the following casesi

r (i) Y1!il {Jp HAe v. MUHAMMAD sHAMsuL rsLAM (pLD (ir)

(iiD (iv) 196l sc 531) Pltl:TA-N RED CRESCENT SoClETy v. NAZIR (PLD 2005 sc 806)

lJ.A co_RpoRAiroN v. sHAHABUDDTN (1993 pLC (cs) l) ZE^B-A MUMTAZ v. FrRST woMEN 1r06) crLLANr

Bar,K r_ro. fpr_o'i6qi sc

(v)RAZIUDDIN v. CHAIRMAN. p.r.A. CORPN.

(vi)yusuF SHAH v, pAKISTAN fpLD t992 SC 5l I ) Y.YylyyAD AIRLTNES CORPORATION (PLD i98I n rrenN,qiio:r.rar

SC 224]

(vii)c,norr collecr. roHer v. MUHAMMAD llrygpll.

SHOAB (PLD I984 SC I70)

(viii)ANWAR HUSSAIN v. DEVEL]. BANK OF PAK]STAN (pLD

1984 SC 194)

(ix)ANWAR_HUSSAIN v. A.D.B.P. ( I992 SCMR I I t2)

(x)HABIE BANK LIMTTED v. Z|A_UL_HASSAN 'KAZMT (re98 scMR 60, 68)

(xi)MUHAMMAD MIJMT AZ JAVED T, PAKISTAN (1988

CLC

u). t965)

16.trVe have reviewed the documents on record and considered the arguments ofthe leamed counsel for the respective parties, in detail. a

17.With regard to the maintainability of this petition, under Article 199 of the Constitution, 1973, there is little doubt, as earlier rulings ofthis Court have shown, that such a petition does lie against the rcspondcnts. Reliance is placed on the case of MUSTAFA LAKHANI v. pAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY (pLD 2005 Karachi I88) and MUSTAFA LAKHANI v. PAKISTAN DEFENCE oFFICERS HoUSING AUTHoRII,Y (2008 scMR 6ll). Funhemore, according to the court,s record two furthcr writ petitions against the Respondent bead,g const, petitior No.D_2057l2006 and CoDst. Petition No.D464l2008, under Article I 99 of the Constitution,

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have already been admitted by this Coun for regular hearing.

18.With regard to the Service Rules, 1992 of respondert No.l, these are non-staturory and according to MUHAMMAD DAWOOD,S case (ibid) there implementation is subject to challenge before this Cout under Article 199 of the constitution, 1g73, especially as regards the question of natural justice aod right lo be heard. Reliance is placed at paragmphs 29(D(iD(ii, and 30(iii) of

f MUHAMMADDAWOOD' s case (supra), which are leproduced herein belowi

'29. . From the above somewhal d(,lailed discussion, we have arrived at the following conclusions:

(i)"lrrespective ofan employee ofa State controlled corporation not being a civil servant the corporation themselves continue to remain amenable to the jurisdiction of this Court under Article 199 ofthe Constitution.

(i0 The rule_of master antl servanr is inapplicable to cases where lhere is \ iolation of statutorv provisions or ofany olher Iaw.

(iiD The expression ,violation of law, would not be confined merely to violation of any specific provision of a slatute bul rhe expression .law., as observed by Hamurdnl Rehman. J.. tas hjs lordship rhen \,!as) in Govemment of Wesl Pakistan vs. Begum Aga Ab<lul Karim Sorish (PLD_ I96q SC 14 .i lt) and oughi ro be .D< considered in irs gener.ic sense as connoting all

that is rreared. as Iaw in rhis counrD including even thejudicial principles laid down l-rom rimi to time by the superior comts. It means according to lhe accepted norms of legal process and postutates a strict performance ofall the functions dutles. hid down hy law. lr may. insrance, rnctudes lhe principles of narural iusrice. rhe public d!t) lo acl lairly and honesrll and absence or mataltdes in lact and lar,!. In all such cases the Coun would be comlletenl to granl reliel o[ temsEtemenr "

30.As a consequeacei i\ i0............

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iii)Where there is violation oflaw as explained herein above is alleged and within tt" p."r"t"* oi-if," exercise of constitutional juiisdiction of the Courts this Coud would be comp€rent to entenain petitions and grant appropriare relief within rh" p*a;"i";-;; irs judsdiction under Article 199 of the Constitut'ioi.

19.We do not consider it necessary to delve into the questiot as to whether or not Service Rules, 1992 of the respondent No.l have been framed by the competent authodty. This is because the essence ofthe case revolves around th€ termination of the petitioner without him being afforded an opportunity of defending allegations against him which can be adequately dealt with without

entering into a detailed and time consuming discussion about the legality of various rules.

20.As the Respondent is a slatutory body and falls within the purview of t Anicle 199 of the Constitution of Islamic Republic of pakistan therefore, consider that the employees of respondent petitioner) are brought within the ambit of Ordinance. 1973, we,

No.l (including the

21.This would be in consonance with thc Respondents own past actions since in Const. Petition No.D-20522006 and Const. petition No.D-464l2008, alluded to above, the Respondent had sought to teminate the service of the respective petitioners based on Ordinance 2000.

22.Before tuming to Section I I we would like to observe that in our view it V,,\< would seem to be both unjust, inmoral, unethical and agaiDst the spirit of fair t

play for any Institution to teminate an employee who had been in an .,

Institutions service for around 7 years ostensibly on the $ounds of misconducEl_.- . , without even affording that employee an opportunity to respond to thos& allegations. This is more so in a developing society which does not have a fully

developed welfare state for the effected employee to fall back on and who may find himself at the mercy ofunscrupulous employers during recessionary times.

23.Audi alterarn partem, namely that no one should be condemned unheard, is a well settled principle of law. In the case of NAZIR

AHMAD PANHWAR

v. GOVERNMENT OF SNDH (2005 SCMR l8t4) rhe foltowing observarion

was made by the Supreme Court.

"There can be no denial $at right to personal

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hearing to a person against whom an adverse I order is to be made to be equated with I fundamental right and an adverse order made I uirhout affording him an opponuniry of personal

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hearing is to be lreated as a void ordei... I 24, Although this right is not absolute, based on the facts and circumstances of this case, the petitioter should have been afforded this right beforq passing

any adverse order against him. As such on this point alone the Impugned Order

is liable to be set aside.

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25.Section I I ofoidinance, 2000, prcvides as follows:_ "ll. The provisions of this Ordinance shall have effect notwithstanding anlthing to the conhary contained in the Sindh Civil Servants Act, 1973 and the rules mad" tn"r" ,na"iii iry othel latt for time beiry in force.,, (italics add,ed)

26.In an (as yet) uorcported judgment dated 15.4.2009, passed in Const. Petitior No.D-1690/2007, this Coun, whilst fully analyzing in detail the impact of Section I l, bearing in mind the receDt relevant authorities of the Suprcme

Cout, held that Section 11 of Ordinaace, 2000, overrides all other laws includilg those other laws and regulations in respecl of other statutory \l)r bodies/corporations etc.

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27 For convenience sake, paragraphs 12 and 13 of the said judgment are

reproduced hereunderi

"12. In our view, from the above discussed case law, it is clear I that the Honourable Supreme Court of pakistan ha; time ;; again regarded the provisions of Ordinance, 2000, { being general in natue and on thar account held that from the aaie" of iis promulgation it has overriding effect over other special Statutes on the subjecl and it has impliedly repealed rhe Ruies in rhe orher Statules

1 3.. _This being the position, we have no option but to hold that disciplinary proceedings againsr the p.,i,ion.r"on i1'liau^o1- 9f 1q.06.2004 urder lhe Sralules of lgao. afier the Dromulparion of the Ordinance. 2000. wirh effect lrom 30'h Augusr. :060. flar" vitiated lhe.whole proceedings againsl him lnciua;ng the i;,ai oroer regardrng fie termination of his service. Resullantl). rhis petition is allowed........',

28 Particular reliance is placed on the following excerpts of the following authorities.

29.In the case of I.G.He FRONTIER CORPS AND OTHERS v. GHULAM HUSSAIN AND OTHERS (2004 pLC (CS) u87), the Hon,ble Supreme Cout has held thatr

"Il is rDrewortiy lhat prior to promulgation of Ordinance, 2000 there were Efficiency and Discipline Rules which were applicable ro ail Civil Servants. ln some of cases rhe departments have framed Efficiency and Discipline Rules like WAPDA etc.

but aRer rhe promulgation of Ordinance, 2000 which essentiallv is a geneml law in irs narue and it has impliedly repealed eariii Elficiency and Discipline Rules by dint of ie ,""tion t t .,,

30.In the case of FEDERATION OF PAKISTAN THROUGH D.c.

MILITARY LANDS AND CANTONMENT RAWALPINDI AND OTHERS

v. SYED IBRAHIM SHAH AND OTHERS 92007 pLC (CS) 1288), dilating up,on the scope of Sectiofl I I of the Ordinance, 2000, the Honourable Supreme

Coun has again held that the prcvisions of Section I I ofordinance 2000 having

overriding effect would make the procaedings under the pakistan Cantonmenr Service Rules ineffective. The Court, therefore, without taking any exception to

7-f the judement of the Tribunal, dismissed the petition on that account by placing

1 its reliance or the case ol AZIZULLAH MEMON v. PROVINCE OF SINDH AND OTHER (2007 SCMR 229). v

31.In the case of TANVEER HUSSAIN v. DIVISIONAL

SUPERINTENDENT, PAKISTAN RAILWAY AND 2 OTHER (PLJ 2006 SC

1092), the Honouable Supreme Court has held as under:_ "lt may also be pointed out that the Ordinance is a sDecial law which has been promulgared in public inreresr and for good govemance to provide for measures, inter alia. dismissal- removal etc. of cerlain persons lrom Gorerrurent serlice and corporation service and ro pror ide .peedy disposal of cases and further thal rhe provisions of rhe Ordinance have been giren over-riding effect notwithstanding anything to the contrary contained in an) other la\\ for the time being in l-orce dealin! with subject-matter falling uithin the scope ofthe Ordinance. Ii this view of the matter also, the provisions of section l0 of the Ordinance will have over-riding effect over proviso (a) to sub- section.(l) of Section 4 of the Act, which stands impliedly repealed."

32.This being the position, Section 1l overrides Service Rules, l9-q2 of respondents, as such. respondent No.l is obliged to follow the provisions contained in the Ordinance 2000 before initiating any action against any of its employees.

33.Accordingly, we hold that the Impugned Order is ofno legal effect and 'r_- direct the respondents, if they so chose, to hold inquiry against the petitioner with regard to the allegations leveled in the minutes against him by adopting .---.--..-..-:.--.-<--.. all

codal formalities under the Ordinance, 2000.

In the above tems, Consr. Petirion No.D-l933 of200g is disposed of.

Karachi,

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Dated: r8.5.2009. Justice $,b