' ABDUL SATTAR KHAN (CHAIRMAN).---The appellant namely Dr. Ghulam Nabi was posted as Head of ENT Department and Vice-Principal, Ayub Medical College, Abbottabad, during the material time.
The unhappay incident of murder of Dr. Farooq Hilal and attempt at the life of Dr. Farmanullah, both employees of Ayus Medical College, by firing at him effectively on the night between 17 and 18-6- 2003, took place within the criminal jurisdiction of P.S. Mirpur, District Abbottabad. The charge was laid at the door of Sardar Moazzam, Advocate. The occurrence gave rise to severe agitation by the students and staff of the college concerned. The unruly mob also attacked the house of Sardar Moazzam and also blocked Karakram Highway bringing the traffic to complete halt and also practically made it impossible for the new patients to reach the hospital. The situation became so aggravated and inflamed that the law enforcing agencies were attracted to the area, but the excited mob could not be controlled by the Police and District Executives. The Chief Minister was also in the know of the situation, who appointed Rashid Ahmad, as Enquiry Officer to consider the following aspects of the incident:
(i) To review the role of Police Deptt: after the incident.
(ii) To fix responsibility for damages done to the Hospital property inside Hospital and negligence in medical care to the patients.
(iii) To identify the role of Political elements in the crises.
(iv) To identify/indicate the elements responsible for Krakuram Highway blockade which resulted in severe inconvenience to the general public.
' The Enquiry Officer accordingly conducted the enquiry and made the following recommendations:
(i) ATSA may be banned. (ii) All Govt. Servants identified above may be suspended.
(iii) A strict disciplinarian, preferably from KMC may be sent as Principal.
(iv) A strict action of expulsion and rustication against defaulting students be taken through academic council and disciplinary committee of the college.
(v) Enquiry committees, as required under Removal from Service Ordinance may be constituted for quick proceedings against all govt. Servants identified in this report.
(vi) A well coordinated action plan be prepared. The college should be closed at the outset. The defaulting students should receive their expulsion/rustication letter at their residences. FC should move into the campus and remain there for a week or so, after it is reopened. (vii) The house job of the defaulting H.Os. Be terminated/suspended.
(viii)The special quotas be abolished.
' Show-cause notice was served upon the appellant under the N.-W.F.P. Removal from Service (Special Powers) Ordinance, 2000 to the effect that the appellant should file reply within 15 days of said notice, in case of failure it shall be presumed that he has no defence to put in and an exparte action shall be taken against him. The appellant according filed a detailed reply and denied the charges. It was alleged that the appellant has 32 years of service at his credit with clean service record and was also due for promotion to Grade-21 and Principal of Ayub Medical College, the case of which was under consideration of the Government. Thereafter, the impugned order was passed on 7-8-2004 vide which the major penalty of reduction to the lower post as Associate Professor (BS-19), with immediatel effect, was imposed upon him. Feeling aggrieved, the appellant filed his departmental representation before the Governor N.-W.F.P. Which elicited no response, hence this appeal.
2. Notices were sent to the respondents. They turned up and contested the appeal by filing joint written reply. The averments made in the memo. Of appeal were controverted in the written reply. It was also inter D alleged that the situation no doubt became aggravated and inflamed but one of the factors in aggravation of the situation was wrong handling of the situation by the concerned officials and officers of the college including the appellant and others. That the action in-question was initiated on the request of the Institutional Management Committee and the then Chief Executive of the Ayub-Medical College & Hospital Complex. The Management Committee and the then Chief Executive Ayub Medical College and Hospital Complex were consulted at every stage, action taken by the government was in public interest based on impartial inquiry. The Management Committee of Ayub Medical College and Hospital Complex in its 19th session held on 14-7-2003 appreciated the government of N-W.F.P. For appointing an Inquiry Officer to probe into the conduct of employees and students involved in damaging the public and private property, blocking the Karakoram Highway for considerable time, forcing the patients out of the wards and closing the OPD for some days which resulted into the death of many patients. The decision of the Provincial Government regarding transfer of the appellant along with others to the other medical institutions was placed before the Management Committee in its 20th session held on 20-10-2003 and the Management Committee fully endorsed the decision. The Management Committee also recommended that further disciplinary action should be taken against the accused involved in this whole scenario. That thereafter the appellant and others were transferred to other institutions and others disciplinary action was also taken against them which resulted into various punishments including demotions to lower ranks/grades/posts, stoppage of increments etc. Replication, in rebuttal, was also filed by the appellant.
3. Arguments heard and record perused.
4. Learned counsel for the appellant argued that neither charge was framed nor communicated to the appellant with statement of allegations; that framing of charge is not only a formality but a mandatory requirement of law; that the appellant was not associated with the inquiry proceedings; that neither chance of cross-examining the witnesses was provided to the apel1ant, nor an opportunity to lead defence evidence was given to him; that under section 5 of the N.-W.F.P.
Removal from Service (Special Powers) Ordinance, 2000 amended in 2001, the Competent Authority may constitute one or more E.C. (s) to scrutinize the conduct of a person, but no such Enquiry Committee was constituted as required under the law; that when the entire administration failed to control the mob, how the appellant, who was a Professor in ENT Deptt. Could control the same; that the impugned order dated 7-8-2004 is basically void and without jurisdiction; that technicalities should not be allowed to defeat the cases on merits; that the instant appeal is well within time and maintainable and that Chief Minister is not the Competent Authority and only the Governor is the Competent Authority in the case of the appellant. In support of his contentions, learned counsel relied on the following authorities:
(1) PLC 1989 (C.S.) 235(b) & 532, (2) PLD 1971 SC 61, 71 & 124 (b), (3) PLD 1975 LHC 780(c), (4) PLD 1975 SC 678, (5) 1999 SCMR 1311, (6) 2003 SCMR 104(a), (7) 1988 SCMR 1316(b), (8) PLD 1969 SC 65 (a), (9)
' Mr. Waqar Ahmad Seth, Advocate (counsel for appellants in other appeals) contended that Afzal Alamgir, Shaukat-Ali and Ghulam Nabi appellants were Grade-20 officers and how a grade-19 officer could enquire about them; that no reasons, whatsoever, has been given by the authority to dispense with the regular enquiry and that no limitation runs against a void order. Further argued that even facts finding enquiry report was not supplied; that any statement of documents intended to be used against accused, he must be confronted with the same so as to get an answer whether the contents were admitted or denied; that every accused was presumed to be innocent unless proved otherwise and that benefits of doubts always goes to the accused; that freedom of association, freedom of assembly and freedom of speech are fundamental rights which had been granted under the Constitution and such rights had to be liberally construed. Lastly, that the enquiry conducted by Rashid Ahmad, a grade-19 officer, is neither legal nor proper. As such the impugned order (s) being illegal are not sustainable and liable to be set aside. Reliance was placed on the following authorities:--
(1) 2004 PLC (C.S.) 959, (2) 2003 PLC (C.S.) 353, (3) 2004 PLC (C.S.) 1400, (4) 2004 PLC (C.S.) 1293,
(5) 2004 SCMR 1662, (6) 1996 SCMR 802, (7) PLD 1981 SC 176, (8) 1993 SCMR 1440, (9) PLD 1982 Peshawar 165, (10) 1999 PLC (C.S.) 1332, (11) 2004 PLC (C.S.) 1591, (12) 2004 PLC (C.S.) 1583, (13) 2004 PLC (C.S.) 1306, (14) 2004 PLC (C.S.) 688, (15) 2005 SCMR 436, (16) 2002 SCMR 775, (17) 2004 PLC (S.C.) 198, (18)2004 PLC (C.S.) 809, (19) 2004 PLC (C.S.) 1300.
5. In reply the private counsel for Ayub Medical-College and AGP for the respondent department in their written arguments urged that the appellant and co-appellants took advantage from the murder case of Dr. Farooq Hilial, Lecturer Ayub Medical College in order to settle their own scores with the establishment and created law and order situation for the administration; that the property of the hospital was damaged and patients were forcibly thrown out of the wards; that Karakoram Highway was also blocked for 29 hours; that the college administration was, in the circumstances forced to request the Government for conducting an impartial enquiry which was accordingly conducted and found the appellant and co-appellants guilty of the charge; that the present appeal is not maintainable due to non-joinder and mis-joinder of necessary parties; that the appeal is also not maintainable on the ground that appellants are not civil servant within the meaning of Sec.2(b) of the N.-W.F.P. Civil Servants Act, 1973 and that the impugned order has rightly been passed by the competent authority and is not amenable to interference by the Tribunal.
Reliance was placed on the 2001 PLC (C.S.) 623, 2001 PLC (C.S.) 634, 2003 PLC (C.S.) 654, 1994 PLC (C.S) 684, & 2005 PLC (C.S.) 54.
6. To begin with disciplinary proceedings were initiated against the appellant by issuing him a show-cause notice. Neither charge was framed against the appellant nor communicated to him with statement of allegation which is not only a formality but a mandatory requirement of law to be followed in letter and spirit as laid down in 2000 SCMR 1743. No regular enquiry was conducted in this case. Holding of a regular enquiry was essential in this case in view of serious nature of charge against the appellant. The Competent Authority even did not dispense with holding of regular enquiry as envisaged under section 5 (i) of the N.-W.F.P. Removal from Service (Special Powers) Ordinance, 2000 amended upto-date. The appellant was not associated with the enquiry proceedings conducted against him by Rashid Ahmad, Enquiry-Officer. Witnesses were neither examined in his presence nor opportunity of cross-examination was provided to him to rebut the charge or lead evidence in defence. Action was proposed against 14 incumbents, whereas 9 including the present appellant were made scape-goats. Further, the Enquiry Officer has suggested/recommended that disciplinary proceedings be initiated against the appellant and others under the N.-W.F.P. Removal from Service (Special Powers) Ordinance, 2000, but proper steps were not taken and instead show-cause notice was issued to the appellant as mentioned earlier and the impugned order was passed in a slipshod/arbitrary manner. The E.O discussed FATA quota in the enquiry reports which was not a term of reference and thus he deviated from his powers. The enquiry was also conducted by a Grade-19 officer, whereas Dr. Ghulam Nabi, the present appellant and two other co-appellants namely Dr. Shaukat Ali and Dr. Afzal Alamgir are Grade-20 officers and as such the enquiry is defective. Lastly, the mob could not be controlled by District Administration, how could the appellant control the same. In the circumstances, the punishment awarded to the appellant is not warranted by law and amenable to interference by the Tribunal. Accordingly, the instant appeal is accepted as prayed for.
7. This order shall also dispose of 8 other connected appeals bearing No, 937 to 940 of 2004 196, 197, 237 and 238 of 2005 filed by Dr. Afzal Almgir, Dr. Shaukat Ali Orakzai, Dr. Iftikhar Ahmed, Dr. Iftikhar Qayyum, Dr. Nasim Akhtar, Manzoor Qadir, Dr. Mian Mujahid Shah and Dr. Nisar Khan appellants respectively in the same manner involving common questions of law and facts. No order as to costs. File by consigned to the record.