ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Constt. Petition
No. D-84 of 2016
|
Date |
Order with signature of Judge |
Present:
Mr. Justice Aqeel Ahmed Abbasi &
Mr. Justice Muhammad Faisal Kamal Alam
1. For hearing of CMA No. 1380/2016.
2. For Katcha Peshi.
3. For Hearing of CMA No. 566/2016.
4. For Hearing of CMA No. 209/2016.
Date of hearing: 17-05-2016
M/s T. David Lawrence & Tahir Hussain
Mangi, advocate for petitioner.
Mr. Saqib Jamal, Manager Legal, NADRA.
Mr. Yousuf Ali, Standing Counsel.
O
R D E R
MUHAMMAD FAISAL
KAMAL ALAM, J.
Through instant petition, the
petitioner had initially challenged office order dated 02.01.2016 [annexure-A/7
at page No.55 of present case file], whereby the petitioner was suspended on
account of departmental enquiry and also impugned the show-cause notice dated
04.1.2016 [annexure-A/9 at page No. 69 of present case file] and sought the following
reliefs:-
a) To declare that the impugned suspension
Office Order dated 2nd January, 2016 and impugned Show Cause Notice
dated 04.01.2016 Annexure ‘A-9’ issued to the petitioner by respondents NADRA
are illegal, unlawful, based on mala fide intention and ulterior motives, are
coram non judice and of no legal affect, for the legal reasons that the
questioned disputed of CNICs of the petitioner, her husband and her minor child
stood resolved in terms of Annexure ‘A-2’, ‘A-3’, ‘A-4’, ‘A-5’, ‘A-6’, and
‘A-7’, and in particular to the statement made by the respondents NADRA in
their comments specifically in para ‘H’ of the comments that “A fact finding inquiry was conduced against
board that it is not necessary to conduct regular inquiry against the
respondent No.6 as respondents No.6 and 7 got cleared their cards by paying the
prescribed processing fee as per SOP/Policy of Dup formulated under section 14
of NADRA Ordinance, 2000”.
b) To direct the respondents NADRA to withdraw
the impugned suspension order dated 02nd January, 2016 ‘Annexure –
A-10’ and impugned Show Cause Notice dated 04th January, 2016
‘Annexure A-9’ and, restore the status/position of the petitioner, as she was
enjoying before issuance of the said impugned suspension order and impugned
Show Cause Notice viz; Deputy Director HR Branch HRQ Sukkur.
c) To direct the respondents NADRA to act
strictly in accordance with the law in the light of their statement before this
d) To grant another relief which this
e) To award the cost of petitioner against the
respondents NADRA.
The facts
leading to the filing of present petition are that the petitioner was in the
employment of respondent No.2, National
Database and Registration Authority [NADRA] and when the petition was filed she was working in the Regional
Headquarter of respondent No.2 at Sukkur as Deputy Director (HR) (RHO Sukkur),
having employment reference No.ERP367. As per the contents of petition, the
petitioner joined the service of respondent No.2 way back on 25.4.2002 in NRC,
Larkana. Owing to some complaint against the petitioner that she was holding
three CNICs [computerized national identity cards] at a time, an enquiry was
ordered and fact finding board was constituted, which gave its finding and
recommendations that ------
The petitioner further pleaded that after getting cleared from the above
enquiry she continued her employment with respondent No.2 and worked in an
efficient and diligent manner for which she also received appreciation
certificate and different project allowances. According to petitioner in previous constitution petition No.D-2816/2012
filed by one Ghulam Hyder Khan as pro bono publico, the present petitioner and
her minor son were also made respondents being respondents No.6 and 7, besides
NADRA main respondent. In that petition baseless allegations were leveled
against the present petitioner [Mst.Samina Pathan]. Present respondent No.2
[NADRA] in its parawise comments had categorically mentioned that the present petitioner had
already cleared herself by following the procedure and paying the prescribed
process fee for holding duplicate CNIC. To further substantiate her stance the
present petitioner has filed parawise comments of present respondent [NADRA] in
the earlier above mentioned petition No.D-2816/2012 as annexure A/7, which is
available at page 55 of the present case file. The said petition was
subsequently dismissed for non-prosecution by order dated 21.5.2014 passed by
this court.
It
would be advantageous to reproduce the relevant portion of reply submitted by
respondent NADRA in other disposed of petitions, as follows:-
“2.
That para No.2 is incorrect and vehemently denied. Further, the
respondent No.6 was neither suspended nor any regular inquiry was conducted
against her. The respondent No.6 got cleared her cards as per SOP/Policy of Dup
formulated under section 14 of NADRA Ordinance, 2000.
3. That
para No.3 is incorrect. The respondent No.7 also got cleared his CNICs as per
Dup clemency policy formulated under section 14 of NADRA Ordinance, 2000.
According
to petitioner, she was surprised when the respondent/NADRA allegedly reopened
the above mentioned closed and settled issue of duplicate National Identity
Cards (DUP CNIC) and issued the
petitioner above mentioned show cause notice (04.01.2016) in terms of Rule 2(4)
of Government Servants (Efficiency and Discipline Rules 1973), which was
responded too by the petitioner through her counsel dated 08.01.2016 (within
seven days as specified).
Admittedly
before issuance of the said show cause notice, the petitioner was suspended by
respondents vide above referred suspension order of 02.01.2016, compelling the
petitioner to invoke the extra ordinary constitutional jurisdiction of this
court by filing instant petition.
Notices
were issued to respondent/NADRA on 11.01.2016 for 26.01.2016. On 20.01.2016,
i.e. in the intervening period the petitioner moved an adjournment application
for antedating the present petition on the ground that after service of notice
of the instant proceedings, the petitioner has been terminated by office order
dated 13.01.2016. Consequently on 20.01.2016 this court has observed that the
termination letter will be subject to further orders of this Court, while
restraining the respondents from taking further action. On 26.01.2016, the
respondent/NADRA filed its comments and raised an issue of maintainability of
instant petition which responded too by the learned counsel of petitioner (Mr.
T. David Lawrance), by contending that since the petitioner is not a civil
servant, therefore, the bar contained under Article 212 of the Constitution of
Islamic Republic of Pakistan 1973, shall not be attracted to the present
proceedings, besides the action of respondent/NADRA while statidly illegal.
In
the comments filed by respondent/NADRA
to the instant petition much emphasis is led on the legal aspect of the
case and corresponding paragraphs of the petition relating to factual aspect of
the entire controversy has not been as such refuted.
Mr.
Saqib Jamal, Manager Legal of respondent/NADRA has argued that the instant
constitutional petition is pre-mature also, as the petitioner has already
preferred departmental appeal against the above referred impugned referred
termination order and as per the learned counsel, his client respondent/NADRA
will decide the said appeal in accordance with law and after giving opportunity
of hearing to the petitioner. In his comments, he has relied upon number of judicial
proceedings in support of his arguments that if the alternate remedy is available,
the proceedings of the nature are not maintainable and merits dismissal.
In
the intervening period the petitioner side has also filed an application-CMA
No. 1380/2016 (on 08.02.2016) under Order 6 Rule 17 of C.P.C, seeking
amendments in the present petition on account of her post termination scenario,
which has been vehemently opposed by the respondent/NADRA by filing objections
thereto.
In
the present state of circumstances, the issue of maintainability and
availability of alternate remedy should be decided first. It is an undisputed
fact as is also evident from the impugned office order (02.01.2016) that
Director General of respondent/NADRA before initiation of any disciplinary
proceedings against the petitioner had first suspended her, by taking the
cognizance on the basis of news broadcasted on various T.V Channels. It is also
deniable fact that Efficiency and Disciplinary Rules 1973 are also applicable
to the employees of respondent organization. The same is also evident from the
impugned show cause notice appended with the main petition as annexure A-9 at
page 69 of the case file. This show cause notice had been issued by Brig (R)
Nasar Ahmad Mir, Director General (Operation) in the capacity of being the
authorized officer as envisaged under Rule 2(3) of the above referred rules. At
the case of reputation as mentioned herein above that the said show cause
notice was replied by the present counsel of the petitioner by way of detailed
response, which is available as annexure A-11 with the present petition.
Instead of affording an opportunity of hearing to petitioner, the impugned
termination letter was issued admittedly while this court has cease of the
matter. It is also an undeniable fact that the employees of respondent/NADRA
are not civil servants and status of respondent/NADRA is of an independent
autonomous statutory body which aspect has been established and performed its
functions under the National Database Registration Authority Ordinance 2000 (The Governing Law). More so respondent/NADRA
has its own service rules, viz the National Database Registration Authority
Employees (Services) Regulations 2002, which has been notified under SRO 118
(K.E)/2002, which were made in exercise of the powers conferred by Section 45
of the above governing law, meaning thereby the service regulations of
respondent/NADRA are statutory in nature. By virtue of regulations 23 under
Chapter 3 (Conduct and Discipline), the afore mentioned E & D Rules to the
extent mentioned in the said regulations have been made applicable to the employees
of respondent/NADRA since the provisions relating to mis-conduct as provided
under the above E & D rules have to be applied mutandis departmental under
disciplinary proceedings, therefore, the petitioner was also subjected to said
E & D Rules. The E & D Rules mentioned in the impugned show cause notice
are reproduced herein below for the sake of ready reference:-