IN THE HIGH COURT OF SINDH, SUKKUR BENCH, SUKKUR

C.P No.D-1227 of 2021

Petitioner: Tarique Hussain through M/s. Malik Naeem Iqbal and Deedar Ali M. Chohan, advocates

Respondents No.1to5: Province of Sindh through Secretary Health Department, Sindh Secretariat Karachi and others through Mr. Asfand Yar Kharal, AAG alongwith Dr. Anwar Ahmed F.P. DHO Office Sukkur on behalf of Respondents No.1 & 3 and Dr. Ramesh Kumar Sukkur Health Division on behalf of Respondent No.2

Date of hearing: 15.02.2022

Date of decision: 06.04.2022

O R D E R

Zulfiqar Ali Sangi, J: Through this petition, the Petitioner seeks following reliefs:-

i) Declare that the impugned suspension order dated 13.04.2021 and impugned 09.06.2021, 11.06.2021 and Final Show Cause Notice dated 27.07.2021 are illegal, unlawful, capricious, malafide, arbitrary, discriminatory, ultra vires of the law and constitution, in violation of principles of natural justice, equity and fairness having no legal effect whatsoever and set-aside the same forthwith;

ii) Restrain the respondents, their agents, attorneys, representatives, officers or anybody acting on their behalf from taking final adverse actions against the petitioner till final adjudication of this petition.

iii) Suspend the operation of impugned suspension order dated 13.04.2021 and impugned 09.06.2021, 11.06.21 and Final Show Cause Notice dated 27.07.2021 and/ or restrain the Respondent No.2, his agents, attorneys, representatives, officers or anybody acting on his behalf from passing any final adverse order against the petitioner till final adjudication of the petition.

iv) To grant any other relief, which this Honourable Court deems fit and proper in the circumstances of the case.”

2. Learned Counsel for the Petitioner, at the very outset, submitted that petitioner was appointed as Junior Clerk (BS-11) in Health Department and was posted at Account Section DHO Office Khairpur; besides he holds impeccable and unblemished career spanned over a considerable period; however Respondents instead of appreciating the efforts of Petitioner, implicated him in a false, malafide, concocted and motivated disciplinary proceedings. He next contended that upon vacant position of Account Assistant (BS-11), petitioner submitted an application to DHO Health requesting therein that he has vast experience in accounts matter, therefore, he may be re-designated in the post of Account Assistant, which was duly forwarded by DHO Health Khairpur to Secretary, Health Department; that an application was moved by anonymous person to Anti-Corruption Establishment, Khairpur, who enquired from DHO regarding allegations leveled against the Petitioner who vide letter dated 03.12.2020, negated the allegations as well as issued “No Enquiry Certificate” in favour of Petitioner; that on the application of the petitioner, the committee members also recommended that the petitioner will be re-designated from the post of Junior Clerk to Account Assistant; that all of sudden, Respondent No.4 got annoyed with the petitioner due to personal grudge and issued a letter dated 06.04.2021 to M.S. KMC Hospital Khairpur for issuance of fresh medical fitness certificate of Petitioner though the petitioner was appointed in the year 2011 after fulfillment of all codal formalities, hence there was no need of fresh medical fitness certificate but despite of that Respondent No.4 illegally issued letter in order to victimize the petitioner; that thereafter correspondence/reply has been made regarding allegations leveled against petitioner with Respondent No.1 but all were went in vain and the services of the petitioner were placed under suspension vide impugned letter dated 13.04.2021; that impugned suspension order is illegal as the same was issued without any statement of allegation, hence same may be declared as void and ab-initio; that impugned suspension order and the impugned show cause notices are without lawful authority, unconstitutional and in violation of principles of natural justice; that charges leveled against the petitioner are groundless, malafide, vague and without any substance, therefore, instant petition may be allowed as prayed. In support of his contention; he placed reliance on the case of Ramzan Ali Hemani vs. Habib Bank Ltd. and another (2009 MLD 1424).

3. Learned AAG representing the State submitted that the services of the petitioner were placed under suspension after full-fledge inquiry as he committed misuse of social, electronic and print media against competent authority with criminal intention for achieving the personal gains; besides his medical fitness certificate was sent to Medical Superintendent KMC for verification, who vide letter dated 26.08.2021, found his medical fitness certificate being bogus and fabricated; that as per claim of petitioner that he was appointed at District Health Office, Khairpur, in the year, 2011, a letter dated 29.03.2021 was issued to concerned office for submission of his personal file and Service Book but the same were not available in the office record and on reminder, he started misbehaving with the officials of the office of District Health Office, Khairpur and launched media campaign with the intention to blackmail the office staff of DHO, Khairpur; besides committee constituted to probe allegations leveled against the petitioner, recommended for disciplinary action. Lastly, learned AAG submitted that instant petition is misconceived and is liable to be dismissed as the petitioner failed to defend himself regarding the allegations leveled against him including his fake appointment; besides he tried to avert the verification process of his appointment by using channels of blackmailing through social, print and electronic media against the DHO and office staff posted at DHO office, Khairpur.

4. We have heard the learned Counsel for the Petitioner as well as learned AAG and have perused the material available on record with their able assistance.

5. Admittedly the petitioner is civil servant and was issued show-cause notice on the allegation of his fake appointment and after show-cause notice an inquiry was conducted and thereafter a final show-cause notice was issued to him. The petitioner during proceedings was also suspended and after receiving final show-cause notice he filed Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, with the above prayers. It is observed that initially the District Health Officer Khairpur vide letter No. DHOK/(Estt.)/ 6906 dated: 29-03-2021 directed the petitioner to submit original file and service book for verification and report to higher authorities. The petitioner instead of providing the relevant documents made complaints against the said officer and started campaign on electronic, print and social media with certain allegations against his higher officer and said allegation were included in the inquiry.

6. We have scanned the letter dated: 09-04-2021 issued to the petitioner by the District Health Officer Khairpur under the reference of his earlier letter dated: 29-03-2021 which reflects that medical certificate submitted by the petitioner at the time of his initial appointment was verified and was found bogus, therefore an explanation was called through latter No. DOHK/( )/ 8133/36 dated: 09-4-2021, which reads as under:-

“SUBJECT: EXPLANATION

Reference: This office letter No: DHOK/6906/09 Dated, 29.3.2021

As you are required to submit your original personal file and original Service Book to this office instead of submitting the required documents, you are misbehaving in the office and use bad names for undersigned and other officials. You are also using social media and face book using objectionable language.

However, your fitness certificate photocopy bearing out word No.958 dated, 03.02.2011 was sent to Medical Superintendent KMC Civil Hospital Khairpur for verification where it was proved that your Medical fitness certificate is fake/fabricated as per letter received from Medical Superintendent KMC Civil Hospital Khairpur vide letter No:MS/K.M.C/C.H/KHP/(GEN) 6753 Dated 02.04.2021.

Your above activities are objectionable and your appointment seems to be illegal and fake.

You are hereby called upon to explain your position within three days (03) of receipt of this letter otherwise disciplinary action will be taken against you under E&D rules and your name will be sent to cybercrime department for legal action as per cybercrime acts.

Sd/=

DISTRICT HEALTH OFFICER

KHAIRRPUR”

7. It is further observed that due to misuse of social, electronic and print media by the petitioner against his high officials he was suspended vide office order No. DHOK/ 8369/75 dated: 13-04-2021 which reads as under:-

“OFFICE ORDER

Mr. Tarique Hussain Chajro Junior Clerk BPS-11 District Health Office Khairpur is hereby placed under suspension with immediate effect due to the misuse of Social, electronic and print media against undersigned and others officials with criminal intentions for achieving of the personal gains.

Furthermore, your appointment record was checked by undersigned and it was found fake and fabricated. You are placed under suspension headquarter is fixed at Director Health Services Sukkur Division Sukkur.
sd/=

DISTRICT HEALTH OFFICER

KHAIRPUR”

8. Thereafter the inquiry committee was constituted and after an inquiry such report was furnished vide letter No. DHSS/SUK/DIV/ 600/ 2021 dated: 27-05-, the inquiry committee in its report recommended as under:-

RECOMMENDATIONS

“On the basis of above facts and findings it has been observed by the enquiry committee that Mr. Tarique Hussain Chajjro Junior Clerk DHO Office Khairpur has manipulated the process of recruitment by submitting fake/fabricated Medical Fitness Certificate. The appointment order of Mr. Tarique Hussain Chajjro for the post of junior Clerk is fake and fabricated. He has tried to avert the verification process initiated by District Health officer Khairpur regarding his appointment in service for the post of Junior Clerk by using channels of blackmailing through social media against the District Health Officer Khairpur Mirs and other officials of District Health Office Khairpur.

It is therefore, requested that disciplinary action may be taken against him as E&D Rules 1973, Civil servants Act/ Government policies because his appointment is illegal and based on fake and forged documents required for appointment in service for the said post.

The salaries and benefits drawn by him since his appointment in 2011 in unlawful manner may be recovered from him.”

9. The petitioner after the recommendations of the enquiry committee received a show-cause notice dated: 09-06-2021 and the petitioner replied the same. The contents of show-cause notice reads as under:-

“SUBJECT: SHOW CAUSE NOTICE”

In exercise of the powers conferred by Rule-4-A read with Sub-Rule 5 of the Sindh Civil Servants (E&D) Rules, 1973, I Dr. Irshad Ahmed Memon, Director General Health Services Sindh Hyderabad as an “Authority”

I am of the opinion that in view of the allegation that you have committed act of misconduct and indiscipline detail of which is given below, there are sufficient grounds that disciplinary action be taken against you under the said rule and

I therefore inform you through this notice on the above grounds it is proposed to take disciplinary action against you under the Sindh Civil Servants (E&D) Rules 1973, and you are accordingly called upon to Show Cause as to why one of the major penalty prescribed under the said rule should not be imposed.

The act of misconduct is as under:-

1. It has been reported by enquiry committee that DHO Khairpur has stated that you were appointed in the period of former DHO Khairpur in the year, 2011. He has issued letter to you vide No.DHOK/East/6906-09 dated 29.03.2021 for submission of personal file and service book because your personal file and services record were not available in the office and subsequent reminder were issued but you did not submitted the service record rather started misbehaving with officials of DHO Office and launched the social electronic and printed media campaign against the officials of DHO office with the intentions of blackmailing.

2. The Medical Superintendent KMC Hospital Khairpur has been declared as per verification record of Medical and Physical Fitness Certificate bearing No.958 dated 03.02.2011 found fake/fabricated.

3. As per Outward Register of DHO, Office Khairpur mention in your office order No.1101-03/ dated 25.01.2011 were found fake and factitious.

Your acts are highly objectionable and tantamount to misconduct.

Your reply should be reach the undersigned within 07 days of the receipt to this notice failing which it will be presumed that you have declined to offer any explanation.

You should state within the same period if you want to be heard in person.

Sd/=

DR. IRSHAD AHMED MEMON

DIRECTOR GENERAL

HEALTH SERVICES SINDH @ HYDERABAD”

10. After the show-cause notice and its reply furnished by the petitioner a final show-cause notice was issued to the petitioner on 27-07-2020(2021) with reference to letter dated: 09-06-2021 which reads as under:-

“SUBJECT: FINAL SHOW CAUSE NOTICE

WHEREAS you were served show cause notice under Rule-4 read with Sub-Rule (3) of Rule 5 of Sindh Civil Servants (E&D) Rules 1973 vide this Directorate General letter No. DGHSS/S-G-II/(Khairpur)-27309-14 dated 09-08-2021

AND WHEREAS the reply of show cause notice is found un-satisfactory.

NOW THEREFORE, in exercise of the powers under Clause (D) Sub-Rule-4 of Rule 5 of the said Rule, I Dr. Irshad Ahmed Memon, Director General Health Services Hyderabad and “Authority" call upon you to finally show cause as to why any one of the penalty including “Dismissal from Service” as prescribed under Rule 4 of the Sindh Civil Servants (E&D) 1973 should not be imposed upon you.

Your reply should reach the undersigned within 07 days of the receipt of this notice otherwise it shall be presumed that you have nothing to say in your defense and an expert decision be taken against you which may lead to your dismissal from service.

Please mention if you want to be heard in person.

Sd/=

DR. IRSHAD AHMED MEMON

DIRECTOR GENERAL

HEALTH SERVICES SINDH HYDERABAD”

11. It is observed that the purpose of conducting departmental inquiry is to find out whether a prima facie case of misconduct is made out against the delinquent officer for proceeding further. The guilt or innocence can only be thrashed out from the outcome of inquiry and at the same time it is also required to see as to whether due process of law or right to fair trial was followed or ignored which is a fundamental right as envisaged under Article 10-A of the Constitution. Article 10-A of the Constitution is reproduced as under:-

“10-A. Right to fair trial.---For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.”

12. A distinction also needs to be drawn between a regular inquiry or preliminary/fact finding inquiry. A regular inquiry is triggered after issuing show cause notice with statement of allegations and if the reply is not found suitable then inquiry officer is appointed and regular inquiry is commenced (unless dispensed with for some reasons in writing) in which it is obligatory for the inquiry officer to allow evenhanded and fair opportunity to the accused to place his defense and if any witness is examined against him then a fair opportunity should also be afforded to cross examine the witnesses, whereas a discrete or fact finding inquiry is conducted at initial stage but internally to find out whether in the facts and circumstances reported, a proper case of misconduct is made out to initiate disciplinary proceedings. The standard of proof looked-for in a departmental inquiry deviates from the standard of proof required in a criminal trial. In the departmental inquiry conducted on the charges of misconduct, the standard of proof is that of “balance of probabilities or preponderance of evidence” but not a “proof beyond reasonable doubt”, which strict proof is required in criminal trial. The doctrine of natural justice communicates the clear insight and perception that the authority conducting the departmental inquiry should be impartial and delinquent civil servant should be provided fair opportunity of being heard as has been held by the Honourable Supreme Court of Pakistan in case of Usman Ghani v. The Chief Post Master, GPO, Karachi and others (Civil Appeal No.1-k of 2021), order dated: 28.12.2021.

13. In the case of Muhammad Murtaza and another v. The Deputy Commissioner, Anti-Corruption Establishment, Bahawalpur and others, (1997 PLC (C.S.) Lah. 214), the petitioners who were officials in Health Department had challenged enquiry proceedings conducted against them on allegation of corruption. It was held in para 6 that "petitioners are admittedly civil servant and therefore amenable to the Efficiency and Discipline Rules. Even otherwise, the petition is premature, petitioners may, if so advised, raise all the legal objections qua legality of the inquiry in question before the Enquiry Officer. If such objections are raised, the Inquiry Officer shall decide those objections in the first instance and then proceed with the matter strictly in accordance with law".

14. In the case of Hamid Hayat v. Director General Excise and Taxation and 3 others (2021 P L C (C.S.) 1578), it was held by the Lahore High Court in para No.8 that “Needless to spell out that the inquiry officer has to carry out proceedings in accordance with the law and to taint the conduct of proceedings by the inquiry officer on the basis of pre-emptive apprehensions in itself does not dovetail to the principles of propriety. Without commenting upon the merits of the case to the prejudice and/or detriment of the parties in the instant case, it is well within the rights of the petitioner to raise any such objections before the competent forum by establishing any irregularity and/or mala fide in and during the disciplinary proceedings or against the recommendations of the said inquiry officer. Therefore, it is misconception to assert that the appointment and/or change of inquiry officer is a separate and independent administrative and executive action not falling within the scope of disciplinary proceedings and hence out of the purview of the bar contained under Article 212. Even otherwise, such an interpretation would imply that while the punishment inflicted in furtherance of the disciplinary proceedings is to be challenged before the Service Tribunal, the appointment and/or change of inquiry officer does not fall within the jurisdiction of Service Tribunal being an administrative/executive action. This would engender an anomalous position which is not envisaged under the law. In view of unequivocal pronouncements of the august Supreme Court on the subject and constitutional bar contained in Article 212, this Court has no jurisdiction even to entertain the proceeding that relates to terms and conditions of service of a civil servant.”

15. The Honourable Supreme Court of Pakistan in case of Asadullah Rashid v. Haji Muhammad Muneer and others, 1998 SCMR 2129, held that constitutional petition under Article 199 of the Constitution by civil servant in relation to any matter connected with the terms and conditions of service in respect whereof the Service Tribunal has jurisdiction, in view of Article 212 of Constitution is not maintainable. Orders even if mala fide or corum non judice, fell within the ambit of Service Tribunal and jurisdiction of Civil Courts including High Court is ipso facto ousted as result of barring provision of Article 212 of the Constitution. Furthermore, the Service Tribunal has given "exclusive jurisdiction" under Article 212 of the Constitution, for redressal of grievance of the petitioner, who admittedly is a civil servant, in respect of terms and conditions of civil service, including disciplinary action. The bar contained in Article 212 of the Constitution has also been sufficiently dilated upon by the Honourable Supreme Court of Pakistan in various pronouncements and has held in unequivocal and clear terms that the bar is absolute. Reliance is place on the cases of Ali Azhar Khan Baloch and others v. Province of Sindh and others, 2015 SCMR 456; National Assembly Secretariat v. Manzoor Ahmed and another, 2015 SCMR 253; Peer Muhammad v. Government of Balochistan through Chief Secretary and others, 2007 SCMR 54 and Khalid Mahmood Wattoo v. Government of Punjab and others, 1998 SCMR 2280). The Honourable Supreme Court in case of Ali Azhar Khan Baloch and others v. Province of Sindh and others, 2015 SCMR 456, in para No. 142. Has observed that “The High Court of Sindh, overlooking the aforesaid observations, has continuously entertained the Civil Suits and Constitutional Petitions in defiance of Article 189 of the Constitution. We did communicate to the High Court of Sindh through the Registrar that the High Court of Sindh does not have jurisdiction over the aforementioned issues and that a Civil Servant can only approach the Services Tribunal for redress of his grievances, but this direction has not been cared about by some of the learned Judges, overlooking the provisions of Articles 175, 189 and 212 of the Constitution.”

16. In the case of Federation of Pakistan through Secretary Establishment Division, Islamabad v. Shafqat-ur-Rehman Ranjha and others (2021 SCMR 153), Honourable Supreme of Pakistan in para No. 13 has held as under:-

“13.  The next question before us is whether a Constitution Petition before the High Court was maintainable before the High Court in exercise of its extra ordinary jurisdiction under Article 199 of the Constitution. Having held that no fundamental right of the Respondent had been violated the answer to the said question has to be in the negative. Further perusal of Rule 2(a)(iii) of the Civil Servants (Appeal) Rules, 1977 (hereinafter referred to as the "Appeal Rules") provides that an order by the Prime Minister is appealable to the President. In the instant petition, no such appeal was filed. Instead the Respondent chose to file a Writ Petition before the High Court. A right of appeal being available under the rules which was admittedly not availed, the High Court should have refrained from exercising in extraordinary constitutional jurisdiction which is equitable and discretionary in nature. We have found the exercise of discretion by the High Court in this matter not in consonance with settled principles of law on the subject considering the specific facts and circumstances of this case. The issues raised clearly fell within the ambit of Federal Service Tribunal in terms of Article 212 of the Constitution of Islamic Republic of Pakistan. Consequently, we find that the impugned judgments of the High Court are unsustainable. Both the said judgments are accordingly set aside with the result that Writ Petition. No.3234 of 2017 shall stand dismissed. This appeal is accordingly allowed.”

17. The contentions of learned counsel for the petitioner that during the enquiry the petitioner was suspended and his salary was stopped by the respondents, therefore, constitutional petition before this court is maintainable has too no force as the suspension of a civil servant is germane to the terms and conditions of service and only the Service Tribunal has exclusive jurisdiction to entertain such matters and this Court sitting as it did under Article 199 of the Constitution has no jurisdiction to proceed in such petition in view of the clear bar contained in Article 212 of the Constitution. In case of Province of Punjab and another v. Ch. Muhammad Ashraf and another (2000 P L C (C.S.) 118) the Honourable Supreme Court has held that “We are inclined to agree with the learned counsel for the petitioner that the matters relating to terms and conditions of service of the civil servants also include suspension, from service of a civil servant and that the Service Tribunal alone has the jurisdiction to adjudicate upon such matters in appropriate proceedings. The jurisdiction of the High Court is clearly barred in such matters under Article 212 of the Constitution.” The Honourable Supreme Court in another case of Muhammad Sadiq Khokhar v. Engineer‑in‑Cheif Pakistan Army, GHQ and another (1985 SCMR 63) has held that “The petitioner feels aggrieved from the order of his suspension and in so far as it has taken effect it has attained finality. It is not disputed either that the petitioner's grievance is germane to the terms and conditions of service and a dispute with regard thereto falls within the exclusive jurisdiction of the Tribunal under clause (2) of Article 212 of the Constitution. Non-obstante clause in Article 212(2) gives it overriding effect and consistently with the principle of harmonious interpretation of the Constitution the High Court rightly dismissed the writ petition moved by the petitioner for want of jurisdiction.”

18. It is further observed that no final order has been passed by the deportment against the petitioner in lieu of an enquiry as stated above. Thus based upon the above facts and the circumstances of the case in hand we are of the opinion that at this stage, initiation of the writ petition under Article 199 of the Constitution, in presence of bar under Article 212 of the Constitution, is unwarranted and premature. The petition being not maintainable is hereby dismissed.

J U D G E

J U D G E