IN THE HIGH COURT OF SINDH,

BENCH AT SUKKUR

 

Constitutional Petition No. D-4540 of 2016

Constitutional Petition No. D-787 of 2017

Constitutional Petition No. D-1865 of 2019

Constitutional Petition No. D-1874 of 2019

Constitutional Petition No. D-32 of 2020

 

 

Before:

Adnan-ul-Karim Memon and

Yousuf Ali Sayeed, JJ

 

Sikander Ali Junejo, Advocate, for the Petitioner in C.P.No. D-4540/2016 and 1874/2019

Shabbir Ali Bozdar, Advocate, for the Petitioner in C.P. No. D-787/2017

Jamshed Ahmed Faiz, Advocate, for the Petitioners in C.P.No. D-1865/2019

Qurban Ali Malano, Advocate, for the Petitioners in C.P.No. D-32/2020

 

M/s Achar Khan Gabole and Shah Nawaz Waseer Advocates, for the Respondent/Chief Municipal Officer, Municipal Committee Ghotki in C.P. Nos.D-4540/2016, 787/2017, 1865/2019 and 32/2020

Mr. Ahmed Ali Shahani, Assistant Advocate General Sindh

Mr. Mehboob Ali Wassan, Assistant Advocate General Sindh

 

Dates of Hearing    :         14.07.2020 and 23.07.2020

 

 

ORDER

 

YOUSUF ALI SAYEED, J-       The Petitioners in Constitutional Petitions Numbers D-4540/16 and D-787/17 on the one hand and Constitutional Petitions Numbers D‑1865/19, 1874/2019 and 32/2020 on the other, have approached this Court under Article 199 of the Constitution from opposite ends of the spectrum, in as much the alleged grievance of the two Petitioners in the former set of cases (the “Complainants”) is that numerous irregular appointments had been made by the Municipal Committee, Ghotki (the “MCG”) in the year 2013, which, per their contention, ought to be probed and declared illegal, whereas the grievance of the Petitioners in the latter set, being 304 erstwhile employees of the MCG (the “Employees”), is that they had been validly appointed to and held different posts in various grades between BPS-1 to BPS-14 but were wrongly removed from service without due cause and in violation of the principle of natural justice, as the relevant termination orders that have been impugned are said to have been issued by the Chief Municipal Officer (“CMO”) of the MCG without prior notice to show–cause or an opportunity of hearing.

 

 

2.     Learned counsel appearing on behalf of the Employees argued that they had been validly appointed in service and had been working at their respective posts since that time, but even if their appointments were regarded by the Respondents as being irregular and questionable, the Employees ought to at the very least have been issued with show-cause notices specifying the particular allegations and afforded a proper of opportunity of rebuttal and  hearing  prior to any punitive action being taken by way of their removal from service. They maintained that such modalities had not been adopted by the Respondents in the matter of their removal and that they had thus been condemned unheard. They contended that the terminations orders issued to the Employees were consequently bad in law and ought to be set aside.

 

 

3.     On the other hand, learned counsel representing the MCG as well as the law officers appearing on behalf of the Province invited attention to the Statement dated 13.07.2020 submitted on behalf of the Local Government Department of the Government of Sindh (the “LGD”) under signature of the concerned Secretary and maintained that, as had been stated therein,  the LGD had directed the CMO, MCG to take legal action in accordance with law against fake bogus employees in Municipal Committee Ghotki on 19.11.2019 in light of the aforementioned Order made by this Court on 31.05.2017 in C.P. No. D-787/17, and the CMO, MCG had then accordingly terminated the services of 309 such persons. They submitted that the action was lawful and in accordance with Sindh Local Government Act 2013 and the Sindh Councils (Conduct of Business) Rules 2016, and was also in accord with a Resolution earlier passed on 20.09.2016 at a council session of the MCG, where it had been decided to terminate the services of those persons, as they were found to be beyond the sanctioned strength and thus deemed to be a financial strain on Government resources. It was submitted that such appointments were void ab-initio, as an examination of the budget books of the MCG for the year 2011-12 and 2012-13 revealed the total sanctioned posts to be 328 in BPS-1 to 17, whereas the employees found to have been working in the MCG numbered 638 in all, albeit that no approval had been given for the creation of new posts. With reference to the Statement dated 13.07.2020, it was contended that, as had been mentioned therein, the appointment of (286) bogus employees had been made by the then Chairman/ Taluka Municipal Officer, namely one Faisal Memon, on 18.01.2013, when the statute holding the field was the Sindh Peoples Local Government Ordinance 2012, (promulgated on 07.11.2012 and repealed on 25.02.2013), under which he lacked the competence to do so. It was contended that the appointments made were therefore ultra vires, illegal and ab initio void. It was emphasized that the was a significant financial implication to the said bogus appointments, amounting to a loss of Rs.19,824,000/- to the exchequer, and that the National Accountability Bureau, Sukkur, was in the midst of an ongoing inquiry against him in that regard. It was prayed that the Petitions of the Employees be dismissed so that the amounts received by them between the years 2013 to 2019 could be duly recovered.

 

 

4.     As has come to the fore from the Statement submitted in the matter on behalf of the LGD, the action taken by the MCG towards termination of the Employees was ostensibly precipitated by an Order made on 31.05.2017 in one of the Petitions of the Complainants, being C.P. No. D-787/17, which reads as follows:

 

       “Mr. Ayaz Ahmed advocate holding brief for Mr. Sikander Ali Junejo advocate for the petitioner in C.P No.D-1910/2014 and C.P No.D-4540/2016. Respondent No.6 filed the counter affidavit to main petition, wherein he has stated that respondent No.4 terminated the services of 64 persons vide order dated 01.07.2013 and continued the payment of salaries to those 64 employees and those 64 employees are still getting their salaries. When we asked to the learned counsel for respondents No.6 to 8 as to whether any action has been taken by the respondents against those persons who obtained their employment on the basis of fake documents and why their salaries have not been stopped. He requests for directions of this Court. Respondent No.6 when he has already found that the appointment letters were fake, the respondents No.6 to 8 are directed to take legal action strictly in accordance with law against those officials.

 

     To come up on 21.08.2017 a/w C.P No.D-1910 of 2014 and C.P No.D-4540 of 2016.”

 

 

 

5.     From that standpoint, it merits consideration that the Order of 31.05.2017 itself dictated that the action to be taken as directed should be “strictly in accordance with law”, which necessarily means adherence to the requirements of natural justice and in the normal course entails the issuance of a show-cause notice so as to afford an opportunity to the person(s) sought to be proceeded against to submit their response as a precursor to a hearing. That being so, it is pertinent to observe that upon such a ground being raised by the Employees and it being alleged that show-cause notices had not been issued, the termination Orders were suspended vide the Orders made on their petitions for that reason.

 

6.     This is apparent from the operative part of the relevant Orders made in C.P. Nos. 1864/19 and 1874/19 on 24.12.2019 in both cases, which reads as follows:

    “4&5.  Learned Counsel for petitioners contended that the petitioners were appointed by the respondent No.5 Chief Municipal Officer, Ghotki on different posts in the year, 2013 and they were getting their salaries up to November, 2019. He further contended that without serving show-cause notice upon the petitioners, they have been terminated by the respondent No.1 Chief Municipal Officer Ghotki, who is not competent to terminate the services of the petitioners.

 

         Consideration raised requires consideration.

             

Let notice be issued to the respondents and learned Addl.A.G. for 29.01.2020. Meanwhile, the operation of impugned order dated 09.12.2019 is hereby suspended till the next date of hearing.”

 

 

7.     Similarly, the Order of suspension made on 17.03.2020 in C.P. No. 32/20, as reproduced below, also proceeds along similar lines:

       

    “Mr. Wajid Ali Shah Advocate files on behalf of the respondent No.4 which is taken on record, requests for time to file parawise comments. Mr. Qurban Ali Malano Advocate for petitioners submits that in CPD No.1874/2019, impugned order was suspended and his case is same and identical, hence the petitioners are also entitled for the same relief. Learned Counsel for respondent No.4 raised no objection for suspension of impugned order dated 24.12.2019. He further contended that without serving show-cause notice upon the petitioners, they have been terminated by the respondent No.2 Chief Municipal Officer Ghotki, who is not competent to terminate the services of the petitioners. Learned Counsel for respondent No.2 raised objection.

 

              Contention raised requires consideration. Time granted to learned Counsel for respondent No.4 to file comments. Meanwhile, the operation of impugned order dated 23.12.2019 is hereby suspended till next date of hearing. It is made clear that if the learned Counsel for petitioners fails to appear on next date of hearing, interim order already granted shall be recalled. To come-up on 02.4.2020.”

 

 

8.     When the argument raised on that ground was examined and a query was posed to learned counsel appearing for the MCG as well the learned law officers appearing on behalf of the Province, they drew attention to a copy of a solitary Show-Cause Notice bearing No. MC/GHK/1244 dated 09.12.2019 that had placed on record, but which, rather than being addressed to an individual Employee, was strangely addressed commonly to all 10 of the Employees who are the Petitioners in C.P. No. 32/20 and that too, in the very order that they have been arrayed in the Memo of that Petition. Suffice it to say that this appears quite unusual and can scarcely be a coincidence, hence creates a certain element of doubt in the matter. Furthermore, there were even otherwise no further notice(s) pointed out in respect of the remaining Employees whilst the copies of the show-cause notice coupled with postal receipts placed on record by the respondents may have sufficed to otherwise demonstrate that the initial requirement of natural justice had been met, under the circumstances of the case, where the many hundred petitioners have maintained in unison that such notices were never received by them, the position is further clouded by the contention raised in the very Statement submitted on behalf of the LGD, wherein it has inter aliabeen averred that:

 

“The said employees’ appointment is in complete contravention of rules and Schedule of Establishment of Municipal Committee Ghotki. Further, as the initial appointment of the petitioners was itself unlawful and bogus, it does not merit the usual requirement for call for explanation, show-cause notice and advertisement in newspaper before termination.”

       

 

 

9.     Needless to say, such an explanation would not have been incorporated in the Statement submitted on behalf of the LGD other than in an attempt to cover a lacuna. Furthermore, it also merits consideration that even if the particular notice and postal receipts are taken at face value, the particular notice on which reliance has been placed by the Respondents itself does not properly encapsulate the allegation(s) to which a response is sought to beelicited, in as much as after addressing the intended recipients the same simply reads as follows:

 

“Subject:     Show Cause Notice

                            

Whereas you appear to be guilt of misconduct mentioned below.

 

         And whereas, there is sufficient ground that disciplinary action should be taken against you as per rule.

 

         And whereas, it is not necessary to have an inquiry conduct through an Enquiry Officer or Enquiry Committee due to the primafacie of the charges.

 

         Now, therefore in exercise of the powers conferred by me under the rules, you are hereby called upon to show within (fourteen) days from receipt hereof as to why any or all the penalties describe under the rules may not be imposed upon you for the alleged misconduct, that is;

 

         In the light of Government order No.SO-II(LG)17-74/2019/Suk dated 19th November, 2019 where in it is directed and given the reference of orders of Honourable High Court of Sindh at Sukkur passed in C.P. No.D-787 dated 31.05.2017 statement submitted by Chairman Municipal Committee which is crystal clear about your fake employment.

 

         Your reply, should reach the undersigned within 14 days of the receipt of this notice failing which, it shall be presumed that you have nothing to offer in your defense and further appropriate legal action shall be taken against you.

 

         Please state in writing whether you wish to be heard in person.

 

                                            Chief Municipal Officer

                                            Municipal Committee

                                                      Ghotki.

 

 

Copy to:-

 

01. The Additional Advocate General of Sindh Sukkur.

02. The Secretary, Local Government Department Sindh Karachi.

03. The Chairman Municipal Committee Ghotki.

04. Copy of this show-cause notice may be pasted on the Notice board of office for acknowledgement of above employees.

05. Office file.”

 

 

10.   As is readily apparent, the cited document is bereft of material particulars and the referred Statement said to have been submitted by the Chairman Municipal Committee is not even mentioned as being attached or enclosed therewith. As such, even if it is accepted that such communique was sent to the Employees, ex facie the same is deficient and does not properly satisfy the test of what constitutes a valid show-cause notice, as per the judgment in the case reported as Caretex v. Collector Sales Tax and Federal Excise PLD 2013 Lahore 634, where it was observed by a learned Divisional Bench of the Lahore High Court that:

 

“8.   Show-cause Notice, is a foundational document, which is to comprehensively describe the case made out against the taxpayer by making reference to the evidence collected in support of the same. It is the narration of facts in the Show-Cause notice along with the supporting evidence which determines the offence attracted in a particular case. Show-Cause Notice is not a casual correspondence or a tool or license to commence a roving inquiry into the affair of the taxpayer based on assumptions and speculations but is a fundamental document that carries definitive legal and factual position of the department against the taxpayer.”

 

        Whilst the aforementioned observation was made in the context of a taxation matter, the same is in our view one of general application, squarely and equally applicable to the instant case.

 

 

 

11.   As such, whilst the Employees were, at the very least, to be properly confronted with the allegations as to the invalidity of their appointments so as to be able to properly respond thereto, under the given circumstances of the case they do not appear to have been extended such an opportunity, which militates against the well settled principles of natural justice, enshrined in the maxim audi alteram partem. Whilst this time honoured principle is so well established as to scarcely require any authority, the judgments of the Honourable Supreme Court in the matters reported as (1) The University of Dacca through its Vice-Chancellor and (2) The Registrar, University of Dacca v. Zakir Ahmed, Abdul Hafeez Abbasi & others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others 2002 SCMR 1034, and Pakistan International Airlines Corporation, through MD, Karachi v. Nadeem Murtaza Khan 2007 PLC (C.S.) 334, are cases in point.

 

12.   When confronted, learned counsel for the MCG and the law officers representing the Province were unable to controvert this position.

 

13.   Consequently, the termination Orders impugned by the Employees cannot stand and are set aside, with the Respondents being directed to process their cases afresh through the following procedure:-

 

(a).     A Committee shall be constituted by the Chief Secretary of the Government of Sindh, consisting of fair, impartial and sufficiently senior officers within seven days from the date of receipt of this order, which shall hold its first meeting within 15 days thereafter and shall individually scrutinize the case of each of the Employees, after granting a meaningful hearing. 

 

 

 

 

(b)     In case any of the appointments made in favour of the Employees are then found to be bogus/illegal, such Employee(s) shall be terminated from service by the competent authority vide a speaking order and may be proceeded against as per law for recovery of the amounts unduly had and received. The payment of salaries to the Employees would be subject to the outcome of the enquiry in each case

 

(c)      The Committee shall conclude the aforementioned exercise within a maximum period of 90 days from the date of its first meeting and submit a compliance report through the Additional Registrar of this Court within the aforementioned timeframe.

 

(d).    Due action is also then to be taken against any persons found to be complicit in the making of the bogus/illegal appointments(s).

 

(e)      All the Petitioners shall appear before the CMO, MCG within a period of seven days of the date of this Order and provide him their current addresses and telephone contact details for the purpose of being summoned to appear before the Committee.

 

 

14.   The captioned Petitions stand disposed of along with all pending applications in the foregoing terms.

 

 

                                                                                      JUDGE

                                                                  JUDGE

 

 

Ihsan.