IN THE HIGH COURT OF SINDH, KARACHI

 

C.P.NO.D-1595 OF 2006

 

                       Present

 

                  Mr. Justice Muhammad Ali Mazhar

                      Mr. Justice Muhammad Iqbal Kalhoro

 

 

Zaeem Aziz Qureshi                  Vs.           PIAC & Another

                                                                         

 

Date of hearing 21.09.2015

 

 

Mr.Salahuddin Ahmed, Advocate for the Petitioner.

Mr.Jawed Asghar Awan, Advocate for the Respondent No.1.

                                       

JUDGMENT

 

Muhammad Ali Mazhar J. Through this constitution petition the petitioner has challenged the compulsory retirement order dated 24.05.2006 issued under the provisions of Removal from Service (Special Powers) Ordinance, 2000.

 

2.The brief facts of the case are that the petitioner was lastly posted as Manager (Marketing) in pay group 8. On 3.8.2004, he was served with a notice of inquiry under Section 3 (1) (b) of the Removal From Service (Special Powers) Ordinance, 2000 and one Moin Rauf was appointed to conduct inquiry into the allegations of financial irregularities during the period in which the petitioner was posted as Manager-Norway and Manager-France. The petitioner submitted reply and denied all the allegations. The inquiry was conducted and thereafter, on 29.7.2005 the petitioner was served with a show cause notice along with copy of inquiry report and on 5th August 2005, the petitioner submitted his reply, however on 24.5.2006 the petitioner was compulsorily retired. The petitioner submitted the representation on 2.6.2006 under section 9 of the RSO 2000 against the impugned order of compulsory retirement but within the stipulated period of time no decision was communicated to the petitioner, so he preferred an appeal to the Federal Service Tribunal, but the Assistant Registrar, Federal Service Tribunal declined to entertain the appeal for want of jurisdiction vide its endorsement dated 29.8.2006.

 

3. The learned counsel for the petitioner argued that the petitioner was appointed as Sales Promotion Officer in 1976 and lastly he was holding the post of Manager (Marketing) in pay group 8. The inquiry officer conducted inquiry and recommended the demotion of the petitioner. The reply of show cause notice was properly submitted by the petitioner which was not considered by the management. The petitioner was afforded the opportunity of personal hearing before Chairman PIA on 26.8.2005 but he was compulsorily retired vide order dated 24.5.2006 under the provisions of RSO 2000. Against the order, the petitioner approached to the FST but his appeal was returned mainly for the reasons that PIA did not have any statutory rules. The learned counsel argued that impugned order is unlawful and has been passed with mala fide intention. To meet the question of maintainability, he referred to the dictum laid down by the hon’ble Supreme Court in the case of Pakistan Defence Officers Housing Authority v. Lt.Col. Syed Jawaid Ahmed reported in 2013 SCMR 1707 in which it was held that the order passed by corporation even those  lacking statutory rules under RSO 2000 may be examined by the High Court in their writ jurisdiction. It was further contended that the compulsory retirement order was not passed by the competent authority which is a mandatory requirement under Section 3 of the RSO 2000. Vide SRO 281(1)2000, dated 27.5.2000 the Managing Director/Chief Executive Officer  of the corporation has been authorized  to exercise  powers under Section 3 of the RSO 2000 in relation to person holding the post including BS-16 to BS-19 and the petitioner was holding the post of Manager (Marketing), Pay Group 8, which was equivalent to BS-19. Since the competent authority in this case was the Chairman PIA, therefore, except him, no other person could pass the order under Section 3 of the RSO 2000, and even in the show cause notice dated 29.7.2005 it is clearly mentioned that competent authority is chairman PIA and the hearing shall be conducted before him, despite that the compulsory retirement order was signed by the H.R. Manager (Marketing). He further pointed out that on one hand, in paragraph 3 of the impugned order it is mentioned that personal hearing shall be conducted by the Chairman and CEO but on the contrary in paragraph 5 it is stated that the Management has decided to compulsorily retire the petitioner. The record further reflects that the decision to remove the petitioner was made by Employee Leadership Team  (ELT), which is a committee comprising senior PIA Officers and not by the competent authority. Learned counsel also referred to the minute No.7 attached with the PIA’s reply and argued that on the second  page of this minute it was written that “case was discussed in ELT and the decision of compulsory retirement from PIA was taken”. Even this noting was not signed by the Chairman PIA, but Senior Vice President (H.R) and Administration. PIA’s own record reveals that the decision of compulsory retirement was not taken by the competent authority, but the lower management. Learned counsel then referred to the minutes of  28th ELT meeting convened on 24.5.2006 and argued that though the presence of Chairman is shown in the minutes of meeting where decision of compulsory retirement was taken but he argued that this minutes are merely a draft of minutes of meeting. It was further contended that the delegated statutory powers cannot be sub-delegated. The powers to compulsory retire the petitioner vested exclusively in the competent authority i.e. Chairman PIA and not in any other management committee or team. It was the responsibility of competent authority to decide the fate of the petitioner with independent application of mind. He further argued that the removal of petitioner from PIA was predetermined and this decision was taken prior to the show cause notice, inquiry proceedings and personal hearing. In this regard he referred to the paragraph 5 of the minutes of meeting available at page 741 of the court file and argued that the  decision to terminate the petitioner was taken in the third  meeting of ELT, while show cause notice was issued on 29.7.2005. It  was further averred that inquiry officer recommended the penalty of demotion, while pursuant to the show cause notice dated 29.7.2005, the petitioner was called upon to show as to why he should not be dismissed. Though the opportunity of personal hearing was afforded to the petitioner by the Chairman PIA but this was merely a formality as the decision to remove the petitioner was already taken much earlier. Nothing was mentioned in the impugned order as to why penalty recommended by inquiry officer was not inflicted and what were the reasons for the enhancement of punishment which led to a compulsory retirement. Learned counsel further argued that during the pendency of this petition the petitioner reached to his superannuation on 19.2.2013, therefore, the question of reinstatement does not arise, however, direction may be issued to PIA to pay all the emoluments and benefits to the petitioner till the age of superannuation i.e. 19.2.2013 with all post-retirement benefits.   

 

4. The learned counsel for the PIA submitted his synopsis. He argued that the petitioner was found guilty in the inquiry thereafter he was compulsory retired from the service. The letter was issued under the signature of  HR Manager (Marketing). In para 4 of the letter it had been clearly stated that it is the management who decided to compulsory retire him. The point in issue is whether decision of compulsory retirement was made by the competent authority under the scheme/provision of the Removal From Service (Special Powers) Ordinance, 2002. The learned counsel for the petitioner contended that the letter of compulsory retirement was not issued by the competent authority and there was no decision at all made by the Chairman regarding punishment imposed upon the petitioner. The Minute No.2 dated 8.5.2006, carries a hand written note that the case was considered in the Employees Leadership Team (ELT) meeting and decision of compulsory retirement of the petitioner was taken. The endorsement was made by one Mr.Waseem Bari the then SVP, HR and Admin. Due to omission the exact office note of employees leadership team (ELT) committee’s meeting could not be produced. The minutes of the meeting of Employees Leadership Team (ELT) dated 24.5.2006 were produced during arguments which shows that the Employees Leadership Team committee was comprising eleven members including Chairman of the Corporation. The minutes of the meeting reveals that Mr.Tariq Kirmani, Chairman and CEO was very much present in the 28th Employees Leadership Team  meeting held on 24.5.2006. The Agenda regarding the decision of compulsory retirement of petitioner is mentioned in paragraph 2.5. He further argued that when it is established that approval/decision was made by the competent authority then it becomes immaterial under whose signature the decision was conveyed. The HR Manager (Marketing) had just conveyed a decision already made in the ELT meeting. In support of his contention, the learned counsel referred to the case of “Lal Khan vs. Punjab Labour Appellate Tribunal”, reported in 1995 SCMR 1758 in which the apex court held that “Order of dismissal of a workman was not required to be passed by the employer himself. All that was required by law is approval of employer. Where the workman failed to establish that such approval was not granted by the employer, dismissal of employee was not interfered with by the supreme court”.

 

5. Heard the arguments. The inquiry against the petitioner was conducted on the charges of financial irregularities which he allegedly committed during his posting in Paris and Oslo and the niceties of wrongdoings are mentioned in the statement of allegations. The inquiry was conducted under the provisions of RSO 2000. Five witnesses appeared in inquiry proceedings and fair opportunity was also given to the petitioner to cross examine them.  We have also examined the inquiry report dated 7.10.2004 and found out that ample opportunity was provided to the petitioner to defend the charges of misconduct. The charges were proved and the petitioner was found guilty, however the inquiry officer recommended the punishment for demotion to a lower pay group and recovery of amount. It is also an admitted fact that during pendency of this petition, the petitioner attained the age of superannuation, therefore, learned counsel for the petitioner stepped down the prayer for reinstatement in service however, he argued that the compulsory retirement order may be set-aside and the petitioner may be allowed all retiring benefits till his age of superannuation.

 

6. The bone of contention in this lawsuit is whether the management could take different view than the recommendations made by the inquiry officer and whether the H.R. Manager (Marketing) (PIA) can be considered competent authority and consequently the compulsory retirement order signed by him is valid and lawful under the provisions of RSO 2000. If we delve into the definition of “Competent Authority” provided under Clause (aa),  Section 2 of the Removal from Service (Special Powers) Ordinance 2000, it means the “Prime Minister” and or any officer authorized by prime minister not being inferior in rank to the appointing authority prescribed for the post held by the person against whom action is proposed to be taken. However, vide Act II of 2003, Gazette of Pakistan, Extraordinary dated 16.7.2003 the word “prime minister” was substituted for chief executive and through the same amendment, clause (a) inserted by Ordinance No.V of 2001 dated 3.2.2001 was omitted. Under SRO 281(1)/2000 dated 27.5.2000, the Chief Executive authorized the officer shown in column No.3 of the Table I, II, III to exercise the powers of competent authority under Section 3 of the RSO in respect of the class of persons shown in Column No.2. Table I refers to the persons employed in the Federal Secretariat or serving in post or belonging to a service group or cadre administratively controlled by ministry or division. Table II is relevant for the persons employed in an attached department or a subordinate office of the Federal Government. While the Table III is meant for the persons employed in the corporations. The competent authority for the holders of posts in BS-16 to BS-19 and equivalent is the Managing Director/Chief Executive Officer of the Organization by whatever name may be called. The petitioner’s counsel argued that the petitioner was employed in pay group 8 which was equivalent to BS-19 and this assertion was never objected or controverted by the respondent No.1, therefore, for all intent and purposes, the competent authority in the case of the petitioner was Managing Director/Chief Executive Officer. Even in the compulsory retirement order the word competent authority is used who ordered departmental inquiry against the petitioner and it is further mentioned that the petitioner was provided an opportunity of personal hearing before the Chairman and CEO but in paragraph 4, the H.R. Manager Marketing stated that the management has decided to compulsorily retire the petitioner from PIA service. Since inquiry was conducted against the petitioner under the provisions of RSO 2000 and the action was also taken under the provisions of RSO, therefore we have to revisit the provisions of RSO 2000 though it was repealed on 1.2.2010 by virtue of Removal from Service (Special Powers) (Repeal) Act, 2010. Under Section 5 of the RSO, the powers were vested in the competent authority to appoint an inquiry officer or inquiry committee before passing an order under Section 3 to scrutinize the conduct of a person in Government service or a person in corporation service who committed any of the acts or omissions specified in Section 3. The detailed mechanism and procedure for the inquiry is provided under Section 5 and the inquiry officer as the case may be inquiry committee was bound to submit findings and recommendations to the competent authority within 25 days of initiation of inquiry. Under Section 8, it was provided that every finding recorded by the inquiry officer or as the case may be the inquiry committee under Section 5 shall with the recommendations provided for in that section be submitted to the competent authority who may pass such orders thereon as it may deem proper in accordance with the provisions of the Ordinance. This Ordinance had overriding effect on Civil Servants Act and the Rules made therein and any other law which was being in forced. 

 

7. Paragraph 8 of the inquiry report pertains to the recommendations. The inquiry officer clearly stated that since the charges proved are of serious nature therefore, major penalty is warranted against the accused officer besides recovery of financial loss caused by him to PIA. Consequently, he recommended punishment for demotion to lower pay group and in sub-para (b) he also made recommendations separately for recovery of amount from the petitioner. What transpires from the report that the inquiry officer himself observed that major penalty be imposed but recommended for demotion to lower pay group. The question whether the management was bound to accept the recommendations of the inquiry officer? The answer is in negative. It is well settled that the management is not bound to impose the penalty as recommended by the inquiry officer but in case of any deviation or decision to impose any penalty other than recommendation, the management is bound to inform the employee in the show cause with the reason of such deviation. The show cause notice dated 19th July, 2005 distinctly mentions in paragraph 4 that the inquiry officer has recommended to impose penalty of demotion along with recovery of financial losses, however the gravity of the allegation proved against the petitioner warrants dismissal from service along with recovery of Rs.48,69,158/- and the petitioner was called upon under sub-section (2) of the Section 3 of RSO 2000 to show cause as to why the proposed punishment of dismissal from service along with recovery of above amount should not be imposed upon him. In the case of Mehboob Ahmed Soomro v. Federation of Pakistan & others reported in 2010 PLC (C.S) 911, while dilating and expatiating the provisions of RSO 2000, the learned division bench of this court held that the conduct of inquiry and report of inquiry officer is purely a question of fact which could not be entertained and decided in constitutional jurisdiction of this court. The respondents are not under obligation to follow the recommendation of inquiry officer and maximum punishment provided under the law could be inflicted by the authority which could not be said to be illegal. In the case of Ghulam Qasim Khan v. Federation of Pakistan & another reported in 2005 PLC (C.S) 1475, the apex court reckoned that “Section 3 of Ordinance, 2000 in general and 3(i)(e) in particular authorizes the competent authority to impose any of the punishment given in sub-clause (e) as well as in Government Servants (Efficiency & Discipline) Rules, 1973. Section 3 read with Section 8 authorizes the competent authority to pass such order on the report and recommendation of the inquiry committee or inquiry officer, as it may deem proper in accordance with the provisions of Ordinance. How such punishments are to be in accord with the provisions of the Ordinance, is fully described in Section 3 thereof. It is therefore, held that the competent authority is not bound to follow the report of the inquiry officer which in the very term of the section is of recommendatory statute. Recommendations, in view of Sections 3, 5 and 8 of the Ordinance, cannot be construed to be binding upon the competent authority”.

 

8. The next question be in need of our consideration is whether the compulsory retirement order of the petitioner could be passed by the H.R. Manager (Marketing) and whether he may be considered competent authority under the provisions of RSO 2000? It is an admitted fact that the competent authority in this case is Chairman/CEO. Under Section 8 of the RSO 2000, every finding recorded by the inquiry officer with the recommendation was to be submitted to the competent authority for passing orders as it may deem proper in accordance with the provisions of this Ordinance. Though the learned counsel for the respondent No.1 argued that in the 28th ELT Meeting dated 24.5.2006 whilst the decision of compulsory retirement was taken, the Chairman and CEO of PIA was also present therefore, it was not essential to sign compulsory retirement order personally by him and after compulsory retirement, the personal hearing was also afforded by the competent authority. In our considerate view, the provisions of RSO 2000 were meant to provide  measures inter alia dismissal, removal etc. of certain persons from government service and corporation service with the intention to provide speedy disposal of some cases and the matters connected therewith or ancillary thereto. This special law was crafted for special purposes in which an internally constituted “Employee Leadership Team” (ELT) was foreign and unfamiliar. While exercising the powers under RSO 2000, the authority was obligated to follow the letters of law in its true fundamental nature and perspective. The compulsory retirement order cannot be defended on the premise that since the Chairman/CEO of PIA was present in the ELT meeting therefore, there was no need to sign the compulsory retirement order by him. The RSO 2000 itself provided complete procedure and mechanism since the inception of inquiry till dismissal or removal from service, therefore, we are of the firm standpoint that the compulsory retirement order was not issued by the competent authority but an incompetent person in contravention of Section 8 of the RSO 2000. The case of Lal Khan (supra) cited by the learned counsel for the PIA is found distinguishable. The apex court expounded the law with regard to  relationship of employer and employee under the provisions of West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance 1968.

 

9. Concomitantly, another important facet cannot be ignored in tandem that under the constitutional jurisdiction we cannot sit over the inquiry report, which was the dominion of the competent authority. Serious allegations were leveled and proved in the inquiry and exact figure of loss was also mentioned in the show cause notice therefore the inquiry report cannot be wiped out or wrecked due to reason alone that retirement order was not signed by the competent authority but the circumstances demand that the management may be afforded an opportunity to make another study of the case and pass appropriate order.

 

10. In the wake of above discussion, the compulsory retirement order dated 24th May, 2006 is set-aside which was issued by an incompetent person in violation of Section 8 of RSO 2000. However, the setting aside of aforesaid compulsory retirement order shall not preclude and impede the competent authority from passing an appropriate order afresh after right and proper consideration of inquiry report in accordance with law. Petition is disposed of in the above terms.

 

Judge

Judge                     

 

Karachi,

Dated: 2.11.2015