1. ' MUHAMMAD REAZ AKHTAR CHAUDHARY, CJ.---This writ petition is addressed under section 44 of the AJ&K Interim Constitution Act, 1974.
2. ' The succinct facts forming the background of instant writ petition, as stated in it, are that petitioner was inducted into the service of University of AJ&K (hereinafter to be referred as University) on Jan: 25, 1986, as Director Physical Education (DPE) in the pay scale B-14. The post was subsequently upgraded to B-16. The petitioner also obtained the degree of M-A Physical Education during his service.
3. ' On 12-12-2000, through two orders, the petitioner was suspended and non-petitioner No,4 was appointed by non-petitioner No,3 as authorized officer for initiating proceedings against the petitioner under the University of Azad Jammu and Kashmir (Employees Efficiency and Discipline)
4. Statute, 1988, (hereinafter to be referred as Statute 1988). The allegation against the petitioner was that he entered into a scuffle with the Registrar of the University on Dec. 08,2000, abused him and interfered in his official duties. He also threatened him. It was further stated that petitioner has instigated other employees of the University to create law and order problem.
5. ' Non-petitioner No,4 (Authorized Officer) issued show-cause notice to the petitioner on 20-12-2000.
6. The petitioner submitted his reply to the aforesaid show-cause notice on Jan, 13,2000. He denied the allegations contained in the show-cause notice. The petitioner also expressed his no confidence on the authorized officer and requested the Vice-Chancellor for change of the authorized officer, but his request was turned down. The petitioner filed reply of the show-cause notice before non-petitioner No,4 who submitted his recommendations to the Vice Chancellor on Feb. 22,2001. The Vice-Chancellor issued a notice to the petitioner and asked him for reply. The petitioner submitted his reply and also appeared before the Vice Chancellor. The Vice Chancellor awarded the punishment of compulsory retirement to the petitioner vide notification dated June 16,2001. The petitioner filed an appeal against the aforesaid notification before the Syndicate of the University on July 14,2001. The Syndicate made over the said appeal to an appeal committee headed by Syed Nisar Hussain Shah, Judge Ehtesab Court (Chairman of the Committee), Dr. Muhammad Afzal (Advisor University Grants Commission) and Sardar Muhammad Siddique Khan (Secretary Education AJ&K) as members. The Chairman of the committee accepted the appeal and set aside the findings of the vice Chancellor and ordered for reinstatement of the petitioner into the service. This order of the Chairman did not contain the signatures of two other members.
7. The petitioner applied for copy of order of two other members, but the same was not supplied to him. The Syndicate of the University did not agree with the judgment of the appeal committee constituted by the University and without assigning any reason for such non-agreement, maintained the penalty of compulsory retirement, vide Notification dated Feb. 17,2003. The petitioner filed a review petition before the Syndicate on March 17,2003, but the same was rejected and conveyed to the petitioner vide order dated Dec. 4,2003, Now, through this petition, the petitioner has challenged the findings of the Syndicate, the Vice Chancellor and report submitted by the Authorized Officer, This writ petition was admitted for regular hearing. Notices were issued to the non-petitioners who have filed their written statements. Arguments have been heard.
8. ' Mr. Abdur Rashid Abbasi, the learned counsel for the petitioner contended that in the instant case, Authorized Officer was inimical towards the petitioner. He referred rules of the University of AJ&K. He referred section 6(3) of the Statute and submitted that the Authorized Officer has to decide whether in the light of the facts of the case or in the interest of justice, an inquiry is necessary. If he so decides then he has to appoint an inquiry officer. In the instant case, the authorized officer reached on the conclusion that the inquiry is necessary, but he did not appoint any inquiry officer and himself conducted the inquiry. It was next submitted by the learned counsel that during the inquiry, no statement of the registrar was recorded and no chance for cross examination was provided to the petitioner. Even petitioner was not provided a chance to lead the evidence. It was enjoined upon the authorized officer to first appoint an inquiry officer and then to record the statement of the registrar, about whom the allegation was attributed to the petitioner that he entered into his office, abused him and created law and order problem. Neither statement of the registrar nor any other person was recorded. No chance was provided to the petitioner for cross examination or leading evidence in defence, therefore, the findings of the authorized officer are not based on any evidence. It was next submitted by the learned counsel that the chairman appeal committee passed an order in favour of the petitioner while no order was passed by the other two members of the committee. The petitioner applied for copies of their orders, but the same were not provided to him. It was next submitted by the learned counsel that principle of laches did not apply to the present case, as it has been filed immediately after rejection of the review petition. The learned Advocate referred 2002 SCR 259 in support of his contentions.
9. ' While controverting the arguments of the learned Counsel for the petitioner, Mr. Farooq Hussain Kashmiri, the learned counsel for the non-petitioners raised sole point that the writ petition is liable to be dismissed on the basis of doctrine of laches. He submitted that the impugned order was passed by the Syndicate on 17-2-2003, while writ petition was filed on Jan. 20,2004, therefore, it entails dismissal on this ground.
10. ' I have heard the learned counsel for the parties, per.Used the documents appended with the petition and have given my utmost muse to the respective arguments advanced by the learned Advocates.
11. ' The contemplate perusal of the file shows that a show-cause_ notice was given to the petitioner that he entered into the office of the Registrar of the University, abused him, threatened him and created problem of law and order. This allegation was a question of fact. A detailed inquiry was required in this case whether petitioner entered in the office of the Registrar, abused him, threatened him and created problem of law and order. These were questions of facts which could not be resolved without recording evidence and an inquiry was required in this case. Authorized officer has also reached on the conclusion that an inquiry is required in this case. Rule 6(2) clearly contains that in the light of the facts of the case, the Authorized Officer shall decide whether inquiry is necessary or not. If he decides so, then he shall appoint an inquiry officer or inquiry committee consisting of two or more persons, one of whom shall be of a rank senior to the accused or all of the co-accused. In the instant case, as stated above, all questions of facts were involved which require a detailed inquiry, therefore, it was enjoined upon the authorized officer to appoint an inquiry officer or constitute an inquiry committee under rule 6(2) of the Statute 1988. But, violation of Rule 6(2) has been committed by the Authorized Officer.
12. ' It would not be out of place to mention here that the Authorized Officer did not record the statement of Registrar whom petitioner abused. No chance for cross-examination was provided to the petitioner, while it was the basic duty of the authorized officer to record the statement of the registrar and other eye-witnesses and should have also provided a chance for cross-examination to the petitioner, but no such statement was recorded by him or chance for cross-examination was provided to the petitioner, therefore, the inquiry was not conducted by the authorized officer properly. It is the basic right of the accused to cross examine the witnesses. It was duty of the authorized officer to provide him a chance for cross-examination. It was also duty of the authorized officer to provide a chance to the petitioner to produce evidence in support of his version. The proceedings should be conducted like criminal trial. This view finds support from 2002 SCR, 259.
13. ' It is pertinent to note that in the instant case, the petitioner filed an appeal before the Syndicate.
14. The appeal was entrusted to appeal committee. The chairman of the appeal committee made recommendations in favour of the petitioner and passed an order for reinstatement of the petitioner. This order did not contain the signatures of other two members of the appeal committee. The petitioner applied for copy of the order of two other members, but the same was not provided to him, Moreover, no order of other two members was placed on the record by the non-petitioners.
15. ' It is to be noted that the syndicate also did not provide any opportunity of hearing to the petitioner. The order of the Syndicate did not contain that any opportunity of hearing was provided to the petitioner. Neither the Syndicate recorded the statement of the Registrar nor any other witness. No chance for cross-examination was provided to the petitioner. In the instant case, all questions were questions of facts which were to be proved through evidence, but no evidence has been recorded and no chance for producing any sort of proof was provided to the petitioner.
16. ' As the contention of the learned counsel for the non-petitioners is concerned the present writ petition is liable to be dismissed on account of laches. It has no substance for the reason that as principle of laches is concerned, it depends upon the facts of each case. In the instant case, petitioner did not file writ petition after a lengthy time. Moreover, no change has taken place during this period. If some change would have taken place, then of course, it could have been said that due to delay of the petitioner, the situation has been changed. No such delay was caused which may constitute laches in the present case.
17. ' The upshot of the above discussion is that this writ petition is accepted and the findings of the Authorized Officer, Vice Chancellor and the Syndicate are hereby declared to have been passed without lawful authority.