' M. JAVED BUTTAR, J.--- Both these petitions are directed against judgment, dated 10-4-2006 passed by the Punjab Service Tribunal Lahore, whereby Service Appeal No,2227 of 2004, instituted by Prof. Dr. Muhammad Rafique Asim (hereinafter referred to as petitioner), was partly allowed and while maintaining the penalty of compulsory retirement from service, the penalty of recovery of Rs,1,00,000 from the petitioner was set aside.
2. The petitioner was a Professor in the Department of Computer Science and Information Technology in the University of Engineering and Technology, Lahore (hereinafter referred to as respondent). He was proceeded against on various charges under the Punjab Removal from Service (Special Powers) Ordinance No,IV of 2000.
3. The following charge-sheet was served on the petitioner:-- "I, Lt. Gen. (R) Muhammad Akram Khan, Vice-Chancellor, University of Engineering and Technology, Lahore, in exercise of the powers delegated to me by the Syndicate in its 2/2004 meeting dated 1-4-2004 under Punjab Removal from Service (Special Powers) Ordinance, 2000 (IV of 2000), and in the light of the documentary evidence provided against you have levelled the following charges/allegations against you (Prof. Dr. M. Rafique Asim C.S. & IT Department):--
(a) Persistently resorting to misconduct in the meetings of the Syndicate as under:--
(1) On 2-12-2002 during the discussion by the Syndicate on signing of MOU on Huawai/UET joint telecommunication and IT Centre (HUJTC), when your proposal to appoint you as Director of the same centre was opposed by some members; you started talking in an aggressive and uncouth manner You shouted, stood up in your seat and threatened to walk out of the meeting thus vitiating the sanctity of the Syndicate. You were so obsessed in promoting your personal interest that you forgot all courtesies, etiquettes and norms and bullied every member who differed with you.
(2) On 11-1-2003 during meeting of the Syndicate when a member of the Syndicate tried to clarify that HUJTC will not be placed under any department, you ridiculed him, kept grumbling and misbehaved with him.
(3) on 31-5-2003 during meeting of the Syndicate you insisted on reversing the decision of the Syndicate about the transfer of teachers from Electrical Engineering Department to CS & IT Department, calling it illegal. When you were told that the transfer was legal and reversal of the decision would legally invoke cancellation of all such cases of transfer, including your own, you became furious and started criticizing the Syndicate and its members in a loud voice. Your conduct was so irrational that you crossed all limits of decency and discipline.
(4) On 31-5-2003, during discussion by the Syndicate on probing into the complaint of the staff of CS & IT Department, you without understanding the issue tried to link that with the transfer of teachers from Electrical Engineering Department to CS&IT Department and started maligning the administration. When told that teachers were transferred on orders of the Syndicate, you remarked "I know the dammed Syndicate, it is a hoax. Vice-Chancellor takes decisions and you rubber stamp them. You people are his lackeys and Chamchas. You butter him for selfish motives or words to that effect". These remarks were resented by the members, three of whom stood up in protest admonished you. One of the members recommended that you needed mental check up by a Medical Board. On adjournment of the meeting one member commented, "He (Dr. Rafiq Asim) is a disgrace to teachers community". While another member remarked "he has crossed all limits".
(5) In the meetings of the Syndicate dated 2-12-2002, 11-1-2003 and 31-5-2003 you persistently displayed an irrational mental attitude and erratic behaviour.
(b) Resorting to conduct unbecoming an officer and a gentleman as under:--
(1) On 25-6-2002 you misbehaved, abused, threatened and shouted in filthy slang on the Chairman, CS&IT Department.
(2) On 25th June, 2002, you physically attacked, pushed and assaulted the Chairman CS&IT Department.
(3) Through your letters dated 10-9-2003 addressed to the Resident Officer, Treasurer, Director Research and Chairman of the Committee for the petrol pump, you tried to assume and exercise the authority of the Syndicate without having been assigned such an authority or mandate by the Syndicate.
(c) Persistently resorting to conduct prejudicial to good order and service discipline as under:--
(1) During your tenure of office as Director Software Engineering Centre, you caused disobedience, indiscipline and obstructed the office business of CS&IT Department by using/inciting the staff and the students.
(2) You divulged confidential information pertaining to the business of the meeting of Syndicate dated 31-5-2003 to unauthorized persons.
(3) You tried to incite the University Employees to go on strike during the period June-August, 2003.
(4) You boycotted M.Sc. Classes on 20th August, 2003 and instigated the students to go on strike.
(5) You tried to incite teachers of CS&IT Department to boycott classes and go on strike during the period 20-8-200323-8-2003.
(6) You were asked to explain the reasons for your absence from class on 2-8-2003 and for instigating the teachers of CS&IT Department to boycott the classes, but instead of explaining your position you tried to sidetrack the issue and started leveling baseless allegations against the higher authorities.
(d) Committing corruption, cheating and making unlawful gains by claiming remuneration of Rs,2,41,500 for evening classes during the period July, 2002 to April, 2003.
(e) Displaying inefficiency by failing to take M.Sc. Classes according to the prescribed number of periods and duration as per timetable during the period July, 2002 to August, 2003."
4. According to the report of Inquiry Officer, charges (d) and (e) were proved beyond reasonable doubt and he recommended the petitioners' dismissal from service and also recovery of Rs,1,00,000 unlawfully gained by him. The petitioner was also found guilty of charge of misconduct in respect of charge (a) and he recommended the petitioner's dismissal from service on the basis of the said charge as well. On the basis of his findings relating to charges b(1) and b(2), the Inquiry Officer recommended the petitioner's compulsory retirement from service. On the basis of his findings on charge (c), the Inquiry Officer recommended that the petitioner be censured.
5. The competent authority i,e, Syndicate of the respondent-University vide its order, dated 26-6- 2004 imposed the following penalties on the petitioner:-
(i) Compulsory retirement from University service with immediate effect i,e, 26-6-2004 (AN).
(ii) Recovery of a sum of Rs,1,00,000 as part of the pecuniary loss caused to the University.
(iii) Debarred from rejoining University service in any capacity.
6. The Chancellor of the University vide his order dated 17-9-2004, communicated to the petitioner by respondent No,3 vide his letter, dated 18-9-2004, modified the order of the Authority and set aside the penalty whereby the petitioner was debarred from rejoining the University Service in any capacity. However, the other penalties were maintained. Aggrieved of the aforesaid orders dated 26-6-2004 and 17-9-2004, the petitioner instituted the above said appeal before the Punjab Service Tribunal, Lahore, which was partly allowed and the penalty of recovery of Rs,1,00,000 from the petitioner was set aside. The concluding paragraphs of the impugned judgment read as under:-- "(26) In view of what has been stated above, it is clear that the petitioner in the meetings of the Syndicate held on 2-12-2002, 11-1-2003 and 31-5-2003 had resorted to misconduct and had thereafter instigated the teachers and the students and the employees of the University to go on strike, had created indiscipline in the University of Engineering and Technology and on the basis of the findings regarding charge 'a' the penalty of compulsory retirement from service had been rightly imposed on him. It also stands proved that he himself boycotted the classes on 20-8-2003 and instigated the students as well as the teachers to go on strike during the period from 20-8- 2003 to 30-8-2003. However, so far as penalty of recovery of Rs,1,00,000 as imposed on him is concerned, it may be mentioned here that on the commencement of the arguments on this appeal, the learned counsel for the respondents, at the very outset, offered that in case the petitioner agrees to accept his honourable retirement from the University Service, the University Authorities may agree to write off the amount of Rs,1,00,000 which he had received as illegal gain.
However, the petitioner did not accept the said offer and insisted that the appeal be decided on merits. In any way, in spite of the findings that the appellant had received the said amount and keeping in view the circumstances of the case and the fact that the amount in question had been received by the petitioner after clearance of bills by the University Authorities, the recovery of Rs,1,00,000 from him at this stage would not be appropriate, particularly when it appears to be a past and closed transaction and when University Authorities had offered to write off this amount, in case he accepts his retirement.
(27) In view of what has been stated above, the penalty of recovery of Rs,1,00,000 as imposed on the petitioner by the departmental authorities is set aside. However, the penalty of compulsory retirement from service is upheld.
(28) With the above modification in the impugned order the appeal is dismissed."
7. The learned counsel for the petitioner has argued that in this case the mala fide of law and mala fide of fact was apparent, that under section 5 of the Punjab Removal from Service (Special Powers) Ordinance, 2000, the Inquiry Officer must be a rank higher than the accused officer, the petitioner was in Grade-20, therefore, the Inquiry Officer should have been at least of Grade-21, but in this case the Inquiry Officer was a practising Advocate of High Court and did not fulfil the requirements of law, that a substantial remuneration of Rs,2,00,000 was paid by the University to the Inquiry Officer and for this reason the Inquiry officer could not be treated as an impartial person, he was an arbiter between the paymaster and the employee of his paymaster and a grave injustice has been done in this manner, that the notice of proposed action under section 3(2) of the above said Ordinance, 2000, which is a mandatory provision, has been disregarded, that the record established the personal mala fide of the Vice-Chancellor of the respondent-University because the petitioner used to differ with the Vice-Chancellor in the meetings of the Syndicate of which he remained a member for a long time, petitioner's so-called misconduct or misbehaviour in the meetings of the Syndicate with other members of the Syndicate has not been established from the record, the minutes of the meetings do not reflect the same, Dr. Aftab Ahmad Malik Chairman of the Department of Computer Science and Information Technology had clearly denied the charges (b)1 and 2 before the Inquiry Officer and had stated that the matter had been amicably resolved between them through good offices of the Vice-Chancellor, that most of the allegations against the petitioner were general in nature and no specific incident had been quoted, the petitioner had never instigated the students or teachers to go on strike, nor the petitioner was guilty of corruption, cheating or making unlawful gains by claiming remuneration of Rs,2,41,500 for evening classes during the period from July, 2002 to April, 2003, the petitioner was absolutely innocent, the question of embezzlement did not arise, he had performed his duties diligently and regularly, that the Syndicate of the University was itself delegatee and could not further delegate its powers to the Vice-Chancellor in its meeting held on 1-4-2004, therefore, proceedings initiated by the Vice-Chancellor i,e, preparation of charge-sheet and statement of allegations, appointment of Inquiry Officer, receiving the findings/recommendations recorded by the Inquiry Officer, issuance of show-cause notice and various orders signed by the Vice-Chancellor were clearly illegal, without lawful authority and of no legal effect and that in the impugned judgment the aspect of personal mala fide of the Vice-Chancellor has been ignored totally. The learned counsel for the petitioner has also placed his reliance on Muzaffar Hussain v. The Superintendent of Police District Sialkot, 2002 PLC (CS) 442; Khalid Mahmood Ch. And others v. Government of the Punjab through Secretary 2002 SCMR 805 and Syed Mir Muhammad v. N.-W.F.P. Government through Chief Secretary PLD 1981 SC 176.
8. The learned counsel for the respondent-University which is petitioner in Civil Petition No,910-L of 2006, has opposed the contentions and has further submitted that their was specific finding of the Inquiry Officer of misappropriation of certain amounts by the petitioners, therefore, the Tribunal illegally set aside the order of recovery of Rs,1,00,000.
9. The record shows that initially one Dr. A.Q. Mughal, Member (R&D) Higher Education, Islamabad, an officer in Grade-21 was appointed as Inquiry Officer to proceed against the petitioner but the petitioner objected to his appointment as an Inquiry Officer and had requested that it will be appropriate to appoint a sitting Judge of the High Court for inquiry so that the influence of the Vice-Chancellor in the inquiry proceedings was minimized and in case a sitting Judge was not available then some retired Judge may be requested to conduct the inquiry and it was on the basis of the said request of the petitioner, that Rana Muhammad Sarwar, an ex Judge of the Lahore High Court was appointed as an Inquiry Officer, who had conducted a detailed inquiry in the matter. In this background, the Tribunal correctly observed in the impugned judgment that at this stage the petitioner cannot object that the appointment of an ex-Judge of the Lahore High Court as an Inquiry Officer was not proper or legal as it violated the provision of the Punjab Removal from Service (Special Powers) Ordinance, 2000, because the appointment of ex-Judge of the High Court as an Inquiry Officer was made on the basis of request of the petitioner himself. The inquiry proceedings, in our view, were fair and transparent. They were conducted in accordance with law.
The Inquiry Officer had conducted a detailed inquiry. He recorded the statements of large number of witnesses, the petitioner was allowed not only cross-examination on the said witnesses but also to produce evidence in his defence, therefore, the petitioner is stopped by his own words and conduct from challenging the order of appointment of the above said Inquiry Officer. Even otherwise, no prejudice has been shown to have been caused to the petitioner because of the appointment of the above said Inquiry Officer. Both the parties had fully participated in the inquiry proceedings and had produced evidence in support of their versions. The witnesses were examined in the petitioners' presence. Therefore, at this stage we are not inclined to throw out the inquiry proceedings as a nullity. Keeping in view the facts and circumstances of the present case, especially when serious allegations of personal mala fide were leveled by the, petitioner against the Vice-Chancellor, the appointment of an ex-Judge of the Lahore High Court as an Inquiry Officer, in our opinion, had served the ends of justice.
10. After conclusion of the inquiry proceedings, the Syndicate had given a personal hearing to the petitioner and after completion of all the formalities; it had imposed the above said penalties on the basis of the evidence available on the record. The petitioner's representation was considered by the Chancellor partly favorably to the petitioner and the entire proceedings were conducted in accordance with law and relevant rules. The Punjab Service Tribunal through a detailed judgment which has been impugned before us has dealt with each and every aspect of the matter in depth including the specific charges separately and has agreed with the conclusions drawn by the Inquiry Officer and has set aside the penalty of recovery of Rs,1,00,000 because of the offer made by the respondent's counsel, referred in paragraph 26 of the impugned judgment, reproduced above.
11. In our opinion, the petitioner failed to prove any mala fides, either of law or of fact, the charges against the petitioner stood proved and the Chancellor in partially accepting the petitioner's representation acted in a benign manner The disciplinary proceedings initiated and completed against the petitioner did not suffer from any material irregularity and we are not inclined to set aside the said proceedings merely on the basis of technicalities. Even otherwise no substantial question of law of public importance is involved in this case to attract jurisdiction of this Court under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973. The judgments relied upon by the learned counsel for the petitioners are distinguishable. We, therefore, do not find any merit in C.P. No,375 of 2006.
12. Similarly, we do not find any merit in C.P. No,910-L of 2006 instituted by the University because at the argument stage, before the Punjab Service Tribunal, the University itself had offered to write off the amount of Rs,1,00,000 and in this background and keeping in view the fact that the said amount had been received by the petitioner after clearance of bill by the University authorities, the recovery of Rs,1,00,000 was correctly set aside through the impugned judgment.
' In view of the above mentioned, both these petitions are dismissed. Leave refused.