ORDER SHEET

ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

C.P.No.D-142 of 2009

C.P.No.D-245 of 2008

DATE ORDER WITH SIGNATURE OF JUDGE

16.12.2009

Mr. Zameer Ghumro Advocate for Petitioner.

Mr. Abdul Aziz A. Shaikh Advocate for respondents

Mr. Muhammad Ali Shaikh D.A.G for the State

Ahmed Ali Shaikh J: By this single order, we intend to dispose of C.P.No.D-245 of 2008 and C.P.No.D-142 of 2009 as both arise out of same subject matter.

2. These proceedings have very chequered history. The petitioner was serving as Regional Officer Karachi in Trust for Voluntarily Organizations (TVO) and on 22.07.2008, he filed c.P.No.D-245/2008 with following prayers:-

a) To declare the act of the respondent No.2 exceeding his powers whereby created circumstances to damage the service career of the Petitioner. Therefore, same be declared as ultra virus illegal and beyond the law;

b) That, by restraining respondent No.2 from harassing the petitioner in such manners as elaborated above directly or indirectly developing pressure upon the petitioner for pressurizing him to tender his resignation.

c) That, by a perpetual injunction this Honourable Court may kindly be pleased to direct the respondent No.2 not to take any adverse order against the petitioner till pending decision of present petition.

d) That, any other relief deemed just and proper be granted.

e) Cost be borne by the respondents;

3. During pendency of above said petition, some new development had taken place and vide order dated 10.09.2008 the petitioner was removed from service by Chief Executive Officer Trust for Voluntarily Organizations, hence the petitioner filed C.P.No.D-142 of 2009 and prayed as under;-

1. Declare that removal of Petitioner without charge sheet and Inquiry is illegal, unlawful, malafide, vindictive, coram non-judice and is violation of principle of law that no one should be condemned un-heard and the same is void ab-initio.

2. Direct the respondents to reinstate the Petitioner to his original Place of posting with same terms and conditions with immediate effect;

3. Direct the respondents to compensate and any adequate damages to the petitioner for suffering humiliation at the hands of respondents;

4. Suspend the operation of the impugned order till disposal of the instant petition.

5. Any other relief this Honourable Court may deem proper and appropriate in the circumstances of the case.

6. Costs of this petition.

4. From the pleadings, it appears that the petitioner was working in Trust for Voluntarily Organizations with dedication and honesty. In the year 2001, he tendered his resignation which was accepted but he was again employed by the Organization keeping in view his performance, competency and integrity. The respondent No.2 is highest decision making body of the Organization (TVO). The respondent No.3 is the Chief Executive Officer of the T.V.O, who has personal grudge with the petitioner and was bent upon to remove the petitioner by hook or crook. The respondent No.4 & 5 are heads of appraisal teams of projects carried in Hyderabad Region. On 09.04.2008 the petitioner addressed a letter to the respondent No.3 with a request for his promotion to the next higher grade as per service rules of the TVO as he was ignored by the respondent No.2 while the other officers of the Organization were promoted to next higher grade. The respondent No.3 instead of considering such genuine request of the petitioner treated the same as an act of defiance and started to target the dedicated and selfless role of the petitioner. From the record, it appears that appraisal team was appointed for appraisal of TVO funded projects for safe drinking water in Sindh in January, 2008. That team was headed by Principal of Board of Directors (Respondent No.4) and another member of Ministry of Social Welfare and Special Education (Respondent No.1). The petitioner had reservations about team members as the respondent No.4 had personal grudge with him as he did not provide him pumps for his village, whereas the other member of team who being a senior research officer had nothing to do with the appraisement of the projects of TVO. The above team reported discrepancies in seven projects out of 42 undertaken in Hyderabad Region initiated by various NGOs. The petitioner had no nexus with the aforesaid projects as the same projects were apprised by the Assistant Regional Officer Hyderabad Region independently and under his supervision and Assistant Regional officer was responsible for reports directly to the head office. It is further clarified that the powers of Assistant Regional Officer and Regional Officer are same and under the policy, they had to report directly to the Head office Islamabad separately and independently. The role of Regional Officer TVO is limited and has no financial role in the projects. The petitioner asserted that the appraisal report without notice issued to the Assistant Regional Officer Hyderabad, who was responsible for their monitoring. Instead, the petitioner was made escape goat and on 11.08.2008 a notice was issued against him by the Chief Executive Officer whereas no such notice was issued to the Assistant Regional Officer Hyderabad, who was responsible for the said projects. The Petitioner replied the notice and contested the allegations leveled in the findings of Appraisal Team, following which the respondent No.3 appointed the respondent No.5 for conducting appraisal and inquiry. All of sudden, the petitioner came to know that he had been removed from the job without issuing any charge sheet or providing an opportunity of hearing in violation of rules 14 and 15 of the TVO Employees Service Rules, 1995 vide order dated 10.09.2008 issued by the respondents, which is impugned in these proceedings.

5. The respondents have filed their comments by which they denied the contents of the petition and stated that the impugned order has been passed in accordance with law and service rules of TVO and the petitioner was provided reasonable opportunity. They further stated that the procedure for disciplinary action as provided under rule 14 of TVO Employees Service Rules 1995 has been adopted, therefore, the impugned order does not call for any interference.

6. It is inter alia contended by the learned counsel for the petitioner that the petitioner has been condemned unheard, neither he was provided any opportunity of hearing nor confronted with the material and documents on the basis of which the impugned order has been passed which amounts violation of the law of natural justice. It is further contended that the procedure for disciplinary action as provided in rule 14 of TVO Employees Service Rules 1995 was not followed as the statements of complainant, the reporting officer and any other relevant witnesses were not recorded in presence of the petitioner, therefore, such witnesses could not be cross examined nor the statements of defence witnesses were recorded, therefore, the impugned order amounts sheer violation of rule 14 of TVO Employees Service Rules, 1995. He further contended that since penalties provided in rule 15 of TVO Employees Service Rules could be imposed if the requirements of rule 14 are fulfilled and in absence of such procedure the impugned order is not sustainable and same be declared null, void, abinitio and of no legal effect.

7. Mr. Abdul Aziz Shaikh Advocate for respondents No.3 & 4 defended the impugned order on the ground that the proper procedure as provided in rule 14 of TVO Employees Service Rules, 1995 was followed and the petitioner was provided full opportunity, therefore, same is not liable to be declared null and void.

8. Mr. Muhammad Ali Shaikh learned Deputy Attorney General half heartedly supported the impugned order.

9. From the pleadings, it appears that on 24.11.2009, the learned counsel for the respondents was directed to place before this court, “the inquiry proceedings” showing that the inquiry was conducted under rule 14 of TVO Employees Service Rules,1995 but he could not submit the same. On 11.12.2009 the learned counsel for the respondents again failed to place inquiry proceedings before this court and instead of placing the same, he sought adjournment for want of instructions from the respondents. Time was granted to him. On 16.12.2009 when the matter was fixed for arguments, learned counsel for the respondents very frankly conceded that he could not submit the inquiry proceedings as the respondents had not conducted such inquiry. He tried to convince us that on the request of petitioner, they had adopted the short procedure instead of procedure provided in rule 14 of TVO Employees Service Rules 1995.

10. We have heard the learned counsel for the parties and have perused the record. The controversy in the proceedings revolves around rule 14 of T.V.O Employees Service Rules 1995, which for convenience reads as under:-.

“14. PROCEDURE FOR DISCIPLINARY ACTION.

14.1 The procedure to be adopted when proceeding with disciplinary action against any employee will be as under:-

a) On the occurrence of an alleged act of misconduct, the employee shall be given 7 days notice in writing to explain, in writing, the circumstances of misconduct alleged against him, within the time specified in the notice. On receipt of the explanation, the Appointing Authority may appoint an Inquiry Officer to conduct an inquiry into the alleged misconduct;

b) If considered necessary by the Appointing Authority, the employee may be suspended for not more than a month at a time during the period of inquiry. The order of suspension shall be in writing and shall take effect immediately on service of notice on the employee. During the period of suspension, the employee concerned shall be paid a subsistence allowance equal to 50% of the gross salary.

c) The inquiry officer, when appointed, shall record the statement of the complainant, the reporting official, and of any other relevant witnesses, in the presence of the accused, who may cross examine such witnesses. Such cross-questions and answers shall be duly recorded. The Inquiry Officer shall then record statements of witnesses in defense. He shall then record his own opinion, giving a definite verdict of guilt, or otherwise, and submit the inquiry report to the Appointing Authority.

11. The Service of employees of Trust for Voluntarily Organization is governed by T.V.O Employees Service Rules, 1995 and for all purposes the respondents are under statutory obligation to follow the rules (supra). From the plain reading of the above rule, we are clear in our mind that the impugned order was passed in sheet violation of above rule. During pendency of the proceedings, learned counsel for the respondents was directed to produce the record of the inquiry proceedings but he could not produce the same. He further admitted that no such inquiry specifically in terms of rule 14 of T.V.O was conducted. We have noticed that rule 14 provides procedure for conducting enquiry which has not been followed and petitioner’s services were terminated by slipshod manner. The rules must be followed in its letter and spirit to avoid injustice.

12. We for the aforesaid reasons are of the considered view that the impugned order dated 10.09.2008 is null, void without lawful authority and is accordingly set-aside. The petitioner stands reinstated with back benefit. However, it will be open to the Respondents to initiate proceedings against the petitioner subject to fulfillment of the rules of the respondents.

12. For the foregoing reasons, we had allowed the above petitions vide short order dated 16.12.2009.

JUDGE

A.K