Kaloo Khan VS OGDCL through its CEO etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P. No.953/2018 Kaloo Khan and others Versus OGDCL and others Date of Hearing: 13.04.2018 Petitioners by: Ch. Afrasiab Khan, Ch. Hannan Din, Rai Azhar Iqbal Kharal, Abdul Hafeez Amjad, Advocates and Barrister Saad Khan.

Respondents by: M/s Khurram M. Hashmi, Kashif Ali Malik, Sultan Mazhar Sher, Javaid Iqbal Wains and Mushtaq Hussain Bhatti, Advocates, Mr. Arfan Ullah, Law Officer, O.G.D.C.L.

MIANGUL HASSAN AURANGZEB, J:- Through this judgment, I propose to decide writ petitions No.953/2018, 758/2018, 759/2018, 760/2018, 883/2018, 911/2018, 930/2018 and 962/2018, since they entail common questions of law and fact.

2.Through the abovementioned writ petitions, the petitioners, who were all employees of respondent No.1, impugn office memoranda issued by respondent No.1 between November, 2017 to January, 2018, whereby major penalty of "dismissal from service" was imposed on the petitioners after having being found guilty of misconduct (submission of bogus educational testimonials during the course of their employment with respondent No.1).

3.Learned counsel for the petitioners submitted that the petitioners had served with respondent No.1 for several years; that the educational certificates in question had not been submitted by the petitioners in order to gain employment with respondent No.1; that the imposition of major penalty of dismissal from service on the petitioners was too harsh for submitting bogus educational testimonials during the course of their employment; that the imposition of the said penalty carries a stigma and operates to the petitioners’ detriment; that the imposition of the said penalty had prejudiced the petitioners’ chances of gaining employment elsewhere; that since some of

the petitioners are on the verge of retirement, the imposition of a major penalty on them would deprive them of all their retirement/pensionary benefits; that the petitioners had never been found wanting or deficient in the performance of their duties; that the petitioners are low paid employees and therefore should have been dealt with in accordance with labour laws applicable to workmen; that the submission of bogus educational testimonials does not fall within the definition of “misconduct” as defined in O.G.D.C.L. Employees Service Rules, 2002 (“the Service Rules, 2002”); that the very institution of the disciplinary proceedings against the petitioners was unlawful; that out of the four major penalties contained in Rule 122(2) of the Service Rules, 2002, the harshest penalty of "dismissal from service" was imposed on the petitioners; that the petitioners could have been awarded a lesser penalty under the said Rules; that penalties of “fine” or “withholding of increment or promotion” or “reduction to a lower post” could have been imposed on the petitioners; that no reasons have been given for the imposition of major penalty of dismissal from service on the petitioners; and that the petitioners had been discriminated against inasmuch as other similarly placed persons had been awarded major penalty of “reduction to lower post”.

4.Furthermore, it was submitted that all the petitioners had completed their probationary periods; that since the petitioners have had a long association with respondent No.1, equity weighs in their favour; that as per respondent No.1’s policy contained in circular dated 01.09.2015, an employee who is compulsory retired from service is entitled to retiring benefits as admissible under the applicable rules/regulations; that since the petitioners were “workmen”, the penalties contained in Section 15 of the West Pakistan Commercial and Employment (Standing Orders) Ordinance, 1968, should have been imposed on the petitioners; that since the petitioners had not been informed in writing about the alleged misconduct within one month of the submission of the educational testimonials (which have been alleged to be bogus),

disciplinary proceedings could not have been initiated against the petitioners; that the approval of the petitioners’ employer had not been obtained before the said penalties were imposed on the petitioners; that the definition of misconduct contained in Rule 118 of the Service Rules, 2002, does not include the submission of bogus educational certificates by any of respondent No.1’s employees; and that the submission of bogus educational certificates does not fall in the “instances of misconduct” listed in Rule 119 of the said Rules. Learned counsel for the petitioners prayed for the writ petitions to be allowed and for the impugned office memoranda to be set-aside.

5.On the other hand, learned counsel for respondent No.1 submitted that the petitioners had submitted fake educational certificates in order to either gain employment with respondent No.1 or to obtain service benefits/increments during the course of their employment with respondent No.1; that respondent No.1 initiated proceedings against the petitioners after the various educational boards had verified that the petitioners’ educational certificates were found bogus; that initially when action was taken against the petitioners, they had filed writ petitions No.1489/2016 etc. before this Court, which were dismissed, vide judgment dated 31.07.2017; that in the said judgment, this Court endorsed the observation made by the National Industrial Relations Commission in its order dated 19.08.2015 that an inquiry could not be dispensed with while proceeding against the petitioners; that thereafter, regular inquiries were conducted against the petitioners; that the petitioners were issued show cause notices and charge sheets; that respondent No.1 meticulously followed the procedure for a regular inquiry against the petitioners set out in Rules 125 to 127 of the Service Rules, 2002; that in none of the writ petitions has it been pleaded that the educational certificates submitted by the petitioners were not found bogus; and that lesser punishments were awarded to those employees, who had submitted genuine educational certificates but had been tempered with.

6.Furthermore, it was submitted that a writ petition filed by O.G.D.C.L. employee who had submitted a bogus B.A. certificate in order to gain service increments was dismissed by the Division Bench of this Court, vide judgment dated 10.05.2016, passed in intra Court appeal No.53/2016; that the said judgment was upheld by the Hon'ble Supreme Court, vide order dated 22.01.2018, passed in civil petition No.4016/2016; that in the said order, it was observed that action was expected to be taken against those employees of respondent No.1 who had availed service benefits on the basis of fake degrees; that the regular inquires against the petitioners culminated in the imposition of major penalties of dismissal from service upon them; and that since no legal infirmity in the proceedings conducted against the petitioners have been identified, the instant writ petitions are liable to be dismissed. Furthermore, it was submitted that the instant petitions were not maintainable, since the petitioners had not availed the alternative remedy of an appeal provided in Rule 133 of Oil and Gas Development Regulations, 1994.

7.I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.

8.On 08.03.2011, the Management Services Wing of the Establishment Division (Government of Pakistan), informed the Secretary, Petroleum and Natural Resources Division, Islamabad, that the Prime Minister of Pakistan had directed that measures should be taken to authenticate degrees/certificates of all Federal Government employees of the respective Ministries/Divisions, their Departments, Subordinate Offices and Autonomous Bodies under their administrative control. As a first step, the degrees/certificates of employees of both Federal Government as well as Autonomous/Semi-Autonomous Bodies/Corporations working in BS-17 to BS-22 or equivalent were to be verified by making a reference to the Universities/Institutions concerned which had issued the degrees/certificates. The concerned Secretaries and Heads of

the Departments/Organizations were to satisfy themselves about the genuineness of the degrees/other documents. A certificate along with the list of officers whose degrees/certificates had been verified was to be furnished to the Establishment Division within a period of forty five days.

9.On 09.05.2012, the Managing Director of respondent No.1 ordered that all degrees, diplomas and certificates submitted by all existing employees (officers and staff) should be verified on priority basis but not later than six months. It was also ordered that in future all degrees, diplomas and certificates of new inductees should be verified from the issuing authorities within six months of the appointment.

10.On 24.04.2013, the management of respondent No.1 issued the following circular:- “Management has taken a serious note of cases where fake degrees/certificates have been submitted to acquire employment/benefits associated with services.

02.To eliminate the practice, following guidelines should be adopted:

i)All cases of fake degrees/certificates are to be processed on the basis of uniform standards & principles and no exceptions is to be made.

ii)Obtaining appointment, by meeting minimum qualification, through the use of fake testimonial(s) should invariably lead to a dismissal case.

iii)Cases where fake degrees/certificates have been used to obtain promotions or increments should be dealt with strictly. Necessary instruction for stoppage of benefit, disqualification, debarment, etc. to be issued in such cases.”

11.On 03.12.2013, the management of O.G.D.C.L. issued the following circular, which was distributed to all the employees, including the petitioners:- “Management has taken a serious note of cases where fake degrees/certificates have been submitted to acquire employment/benefits, etc. associated with service at a later stage.

02.To eliminate the practice, management has decided that irrespective of the fact that fake degree/educational certificates, etc. are submitted to the Company at the time of induction i.e., Joining the service of the Company or at a later stage to seek some other benefits, etc., the employee found guilty of submission of fake degrees/certificates should be terminated from the service of the Company.”

12.The management of any organization is well within its rights to issue such a circular and to verify the authenticity and genuineness of the educational testimonials of all its employees whether such testimonials were submitted by the employees in order to gain employment or subsequently in order to gain service benefits. In the event, after such a verification process it is found that the educational certificates submitted by the employee to the employer, were not genuine, the employer can proceed departmentally against such an employee.

13.In pursuance to the abovementioned decisions and circulars of respondent No.1, the verification process of the educational certificates/degrees of respondent No.1’s employees was initiated. The correspondence on the record between respondent No.1 and the educational Boards shows that the educational certificates/degrees submitted by the petitioners were found to be bogus. This caused respondent No.1 to initiate disciplinary proceedings against the petitioners. Some of the petitioners were issued show cause notices who invoked the jurisdiction of N.I.R.C. by filing grievance petitions. The said petitions were dismissed by the N.I.R.C. with the observation that an inquiry could not have been dispensed with while proceeding against employees who were alleged to have committed misconduct by submitting bogus educational testimonials. Writ petitions filed against the judgments of N.I.R.C. were dismissed by this Court. Thereafter, admittedly regular inquiries were conducted against the petitioners. These inquiries culminated in the issuance of office memoranda, whereby major penalty of "dismissal from service" was imposed on the petitioners. The petitioners were found guilty of having submitted bogus educational testimonials either to gain employment with respondent No.1 or during the course of their employment with respondent No.1. The bogus educational certificates and the purpose for which such certificates were used by the petitioners are set out in "Schedule-A" hereto.

14.I have gone through the petitioners’ pleadings in their writ petitions. It is pertinent to note that none of the petitioners have taken the position that their educational certificates submitted in order to gain employment in respondent No.1/Company or during the course of their employment with respondent No.1/Company were genuine. The petitioners’ primary concern is that the imposition of major penalty of "dismissal from service" is too harsh a penalty for the submission of bogus educational certificates. None of the petitioners have pointed out any legal defect in the procedure adopted by respondent No.1 in conducting inquiries against the petitioners.

15.As regards the contention of the learned counsel for the petitioners that employment was not gained by the petitioners by submitting the bogus degrees in question, because no academic qualifications were required by O.G.D.C.L. for appointing the petitioners, suffice it to say that the Hon'ble’ Supreme Court in the case of Deputy District Officer (Revenue), Qasoor Vs. Muhammad Munir Sajid (2013 SCMR 279), has held that the conduct of an employee submitting a fake educational certificate at the time of his employment knowing it will boost his chances for selection, was not entitled to be considered for selection. In that case, the department had imposed the penalty of dismissal from service on the respondent/employee for submitting a fake F.A. certificate at the time of his employment. The Punjab Service Tribunal set-aside the penalty of "dismissal from service" on the ground that since the basic educational qualification required for the respondent’s appointment was matriculation, and not F.A., the respondent could not be dismissed for submitting a fake F.A. certificate. The Hon'ble Supreme Court set-aside the decision of the Punjab Service Tribunal and restored the penalty of "dismissal from service" imposed on the respondent by the department. Paragraphs-4 and 5 of the said report are reproduced herein below:- “4. The learned counsel for the respondent was not in a position to dispute that the F.A. certificate produced by the respondent was fake. The respondent, who was present in-

person, when confronted about the genuineness of the certificate, admitted that he had not passed F.A. examination but alleged that the certificate was included in his testimonial by another candidate to spoil his chances of selection. We do not see any sense in this argument as to why would a competing candidate furnish a fake certificate, which if not detected would give an edge to the respondent. Furthermore this was not his case during the inquiry or before the Tribunal where he asserted that the certificate was genuine. There can be no two opinions that the certificate was indeed forged.

5.The Tribunal holding that the respondent was even otherwise eligible for selection on the basis of Matric certificate and thus his F.A. was not relevant has lost sight of the fact that this would have entitled the respondent to additional marks, which in fact he was granted. The main question here is the conduct of the respondent by producing a fake F.A. certificate in his testimonials, knowing well that it boosted his chances, disentitled him to be even considered for selection.”

16.As regards the contention of the learned counsel for the petitioners that the submission of a bogus educational degree/certificate does not come within the meaning of “misconduct” and therefore the petitioners could not have been subjected to disciplinary proceedings, I am of the view that the submission of a bogus educational degree/certificate by a person in order to gain employment or during the course of his employment comes within the meaning of “fraud”. It is not just a fraud on the organization where employment is sought or where service benefits/increments are obtained on the basis of bogus educational degree/certificate but it is also a fraud on the deserving candidates/applicants who would have deservedly gained employment but for the despicable act of submission of such educational degree/certificate by the delinquent employees. The submission of bogus educational degrees/certificates, in my view, is not just a fraud but a ‘cardinal sin' which ought to be dealt with in the strictest possible terms. Through such an act other deserving candidates are deprived of their livelihood. Recently, the Hon'ble Supreme Court, in its order dated 22.01.2018, passed in civil petition No.4016/2016, has held as follows:- “2. It has been noticed that during the course of hearing before the learned Islamabad High Court, the Petitioner admitted that he had presented fake degree to the Respondents, which

admission is reflected in paragraph No.6 of the impugned judgment dated 10.05.2016. In this view of the matter, the Petitioner could not invoke the equitable jurisdiction of the learned High Court nor any relief could be granted, hence, the Writ Petition has been correctly dismissed. The learned counsel states that other employees of the OGDCL are also in similar situation but no action has been taken against them. This fact has not been conceded by the Respondents. However, we except that similar action will be taken against all the employees who have enjoyed the benefits from the OGDCL on the basis of fake degrees. A compliance Report, in this behalf, shall be filed within three months from today for examination by us in Chambers.

3.We are also surprised to note that in the eyes of OGDCL, preparation and utilization of the fake degree is not a criminal offence, as no criminal proceedings have been initiated. This laxity on the part of the OGDCL is not acceptable. We expect, the OGDCL which is a public sector entity to fulfill its duty and initiate criminal proceedings against all those persons who have violated the law and presented fake documents.”

17.The management of respondent No.1 is cautioned that in awarding penalties, it must not discriminate amongst the employees who are found guilty of submitting bogus educational degrees/certificates. Any discrimination in this regard would render the management liable to be proceeded against in accordance with the law. The anomalies and the disparity in the award of penalties in such cases must be rectified at the earliest.

18.Rule 131 of the Oil & Gas Development Company Limited Employees Service Rules, 2002 provides that a person on whom a penalty is imposed shall have a right to appeal to the appellate authority provided where a penalty is imposed by order of the Board of Directors, there shall be no appeal but the person concern may apply for review of the orders. In the case at hand, it is an admitted position that the major penalties of dismissal from service were not imposed on the petitioners by the Board of Directors of respondent No.1. Additionally, Regulation No.133 of the Oil & Gas Development Corporation Employees (Service) Regulations, 1994 is couched exactly in the same terms as Rule 131 (ibid). There is nothing on the record to show that any of the petitioners had availed the remedy of the appeal in accordance with the above mentioned Rules and Regulations. This is an added reason why these writ petitions ought to be dismissed.

19.Finding no illegality, irregularity or procedural impropriatory in the proceedings conducted by respondent No.1 against the petitioners, the writ petitions are dismissed with no order as to costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

ANNOUNCED IN AN OPEN COURT ON ________/2018.

(JUDGE)

APPROVED FOR REPORTING

Qamar Khan*

Uploaded By: Zulqarnain Shah

"SCHEDULE-A"

Writ Petition No.953 of 2018

Educational Purpose for Sr. Petitioner’s Date of Date of Document Submitting # Name Appointment Dismissal declared Fake Document Fake / Forged

1.Kaloo Khan 13.10.1988 18.12.2017 SSC (Matric) Used for as regularization Causal Store as Helper Well Operator

2.Bakhtiar 25.03.1995 02.01.2017 SSC (Matric) Used for Gul as appointment Laboratory and Tester promotion

3.Muhammad 20.03.1995 19.12.2017 SSC (Matric) Used for Mushatq as appointment Lower Clerk and promotion.

Division

Writ Petition No.758 of 2018 Educational Document Purpose for Sr. Petitioner’s Date of Date of declared Submitting Fake # Name Appointment Dismissal Fake / Document Forged

1.Muhammad 15.06.1991 19.12.2017 HSSC Used for Tariq as appointment & LDC promotion

Typist

2.Naeem 05.07.2006 18.12.2017 HSSC Used for Shahzad as appointment

LDC

Typist

3.Muhammad 06.04.1996 18.12.2017 HSSC Used for getting Suleman as weightage in Well promotion Attendant

4.Syed Raza 04.09.1990 19.12.2017 SSC Weightage of 2 Hussain as (Matric) marks was Shah Mechanic given for job & Helper 2 advance increments w.e.f.

Writ Petition No.759 of 2018

Sr. Petitioner’s Date of Date of Educational Purpose for # Name Appointment Dismissal Document Submitting declared Fake Document Fake / Forged

1.Sheikh 27.05.1990 19.12.2017 B.A degree Used to acquire Muhammad as 04 advance

Shafique LDC increments

Typist

2.Ghani 01.06.1995 as 19.12.2017 Failed to Used to acquire Rehman LDC Submit B.A 04 advance / degree increments Typist

Writ Petition No. 760 of 2018

Educational Document Purpose for Sr. Petitioner’s Date of Date of declared Submitting # Name Appointment Dismissal Fake / Fake Document Forged

1.Mumtaz 06.04.1986 19.12.2017 SSC Used for Hussain as (Matric) appointment Assistant as Assistant Store Man Store Man & further promotions

2.Khurram 29.08.1996 19.12.2017 SSC Used for Shahzad as (Matric) appointment Well Attendant

3.Ikhlaq 03.07.1994 18.12.2017 HSSC Granted Ahmad as Naib Qasid advance but later increment on re-designated higher as qualification i.e.

Medical Helper F.A basis.

4.Shahid 18.02.1986 19.12.2017 SSC Used for Akhtar as (Matric) promotion & Store Helper 2 advance increments

5.Safeer 20.08.1996 18.12.2017 SSC Used for Hussain as (Matric) appointment as Well Attendant Well Attendant &2 time promotion in service

6.Saleem 29.08.1993 18.12.2017 SSC Used for Masih as (Matric) promotion in Store Helper service & 02 advance increment based on qualification

7.Gultasib 03.08.2004 18.12.2017 SSC Used for Hussain as (Matric) conversion as Helper Engine Driver Class-IV and then promotion to Engine Driver Class III

8.Jamshaid 27.10.2005 19.12.2017 SSC Used for Iqbal as (Matric) promotion 5 Lab Attendant marks were granted on Matriculate basis

9.Khalil-ur- 08.09.1991 18.12.2017 SSC Used for Rehman as (Matric) appointment Ferro printer

10.Yasir Rauf 03.08.2004 18.12.2017 SSC Used for Qureshi as (Matric) promotion Lab Attendant

11.Shafqat 12.08.2004 19.12.2017 SSC Granted 3 Mehmood as (Matric) advance Helper Survey increments on SSC basis

12.Adeel 09.04.2005 18.12.2017 SSC Used for job - 2 Mehmood as (Matric) marks were Helper given as higher (Communicati then requisite on) qualification.

Weightage of 5 marks w.e.f.

13.Muhammad 29.04.1992 18.12.2017 SSC Used for Aslam as (Matric) application for Shooting grant of three Helper advance increments & promotion

14.Mumtaz 17.12.1990 18.12.2017 SSC Used for 2 extra Ahmed as (Matric) marks for job Shooter Helper and weightage of 5 Marks from Shooting Helper to Shooter

15.Hakim 23.12.1990 19.12.2017 SSC Used for Khan As (Matric) appointment Well Attendant

16.Abid 20.13.1979 18.12.2017 SSC Used for Mehmood As (Matric) appointment Production & and further re- Attendant DAE designation - Weightage of 5 marks was given for SSC & 5 marks for DAE for APT to Plant Tech on

17.Naeem 07.12.1994 18.12.2017 SSC Used for Akhtar as (Matric) appointment – Sample was given extra Catcher marks and granted three advance increments

18.Rafiq 25.01.2018 SSC Used for Bhatti 27.01.1991 (Matric) promotions As Store Helper

19.Muhammad 18.12.2017 SSC Used for Shabbir 17.06.1991 (Matric) conversion as As dispatcher and Naib Qasid promotion

20.Mr. Fayyaz 15.11.1994 18.12.2017 SSC Used for Hussain as (Matric) appointment Telephone and promotion Lineman

Writ Petition No. 883 of 2018

Sr. Petitioner’s Date of Date of Educational Purpose for # Name Appointment Dismissal Document Submitting declared Fake Document Fake / Forged

1.Syed 21.11.1994 18.12.2017 HSSC For grant of 2 Muhammad as Advance Abbas Daftri increments Shah w.e.f.

Writ Petition No. 911 of 2018

Educational Document Purpose for Sr. Petitioner’s Date of Date of declared Submitting # Name Appointment Dismissal Fake / Fake Document Forged

1.Saeed 20.08.1996 18.12.2017 SSC Used for Ahmed as (Matric) appointment & Well Attendant promotion

2.Kamran 03.08.2004 18.12.2017 SSC Used for Nawaz as (Matric) appointment Well Attendant

3.Tariq 16.11.2005 18.12.2017 SSC Used for Mehmood as (Matric) appointment Well Weightage 5 Attendant marks w.e.f.

4.Abdul Rauf 03.08.2004 18.12.2017 SSC Used for as (Matric) appointment& (Initially promotion appointed as as Dispatcher Helper on casual basis)

5.Muhammad 23.11.2005 17.12.2015 SSC Used for Ejaz as (Matric) appointment/as Hussain Mud Attendant per Clause 8.5 of 21st MOS, was placed from NMG-6 to NMG 12 based on SSC

6.Kamran 03.08.2004 10.02.2015 SSC Used for Bashir as (Matric) appointment Store Helper Applied for 2 increments but not given due to fake SSC

Writ Petition No. 962 of 2018 Educational Document Purpose for Sr. Petitioner’s Date of Date of declared Submitting # Name Appointment Dismissal Fake / Fake Document Forged

1.Hassan 07.12.2005 05.01.2018 SSC For grant of 2 Muhammad as (Matric) Advance Helper increments w.e.f.

2.Sajid 17.11.2005 20.01.2015 SSC Used for Mehmood as (Matric) appointment& Engine promotion Driver

3.Muhammad 20.06.2005 25.02.2016 SSC Used for Jalil as (Matric) appointment Well Attendant

4.Malik 30.06.2003 19.12.2017 SSC Used for Nazar as (Matric) Appointment Hussain Dispenser

Writ Petition No.930/2018 Educational Document Purpose for Sr. Petitioner’s Date of Date of declared Submitting # Name Appointment Dismissal Fake / Fake Document Forged

1.Maqbool 30.01.1995 19.12.2017 B.A. Used for Hussain as appointment& Plant Operator promotion

2.Muhammad 10.07.1995 as 19.12.2017 HSSC Used for Sadique Junior Plant appointment & Operator promotion

3.Rahim Gul 14.05.1995 as 19.12.2017 SSC Used for L.D.C. (Matric) regularization

as Well Operator

4.Amir 02.05.2005 as 19.12.2017 SSC Used for Qasim Helper (Matric) appointment & Electrician promotion

5.Maqsood 01.03.1990 as 19.12.2017 SSC Used for Khan Engine Driver (Matric) regularization

6.Fazal 24.01.1995 as 19.12.2017 SSC Used for Usman Lab Assistant (Matric) appointment & promotion

7.Kamran 01.10.1987 as 19.12.2017 SSC Used for Mirza Helper (Matric) regularization (Electrician)

8.Muhammad 13.01.1996 as 19.12.2017 SSC Used for Azam Helper (Store) (Matric) appointment & promotion