' RASHID ALI MIRZA (MEMBER).---While serving as a regular employee in the service of P.I.A.0 the Appellant was designated as a Project Technician in the Precision Engineering Department of the respondent Corporation. She was given Pay Group-III vide letter of Appointment No,AM/PE/P53877/95 dated 22-11-1995. She was served with a Charge Sheet dated 15-2-2001 purported to be under the signature of Zubair Ahmed Khan, Manager Technical (Optics) PEC Engineering Department together with a statement of allegations that appellant allegedly with the connivance of her brother Tasadduq Hussain (also an A employee of respondents) tampered the Mark Sheet of BA (Pass) Examination and Certificate of Intermediate for obtaining the job for him (her brother) in the PEC Department of respondent in pay Group-III whereas he was simply a Matriculate and was suitable to be appointed in lower Pay Group and that the appellant was further charged to have allegedly provided her wrong date of birth to the respondent.
' The Charge Sheet and the Statement of Allegations are reproduced as under:-- Despatch No,343 Dated: 15-2-2001 Miss Tanveer Kausar, P-53877, Project Tech. Precision Engg.
Charge Sheet
1. You are hereby charged with the allegations contained in the attached statement which prima facie amounts to misconduct within the meaning of Sub-section (b) of section-3 of the Removal from Service (Special Powers) Ordinance-2000.
2. The allegation will be inquired into by the Enquiry Committee consisting of Mr. Zafar Alam, Manager Technical and Mr. Zaigham Hussain, Proj. Dev. Engineer.
3. The Enquiry Committee will inform you about the time, date and place of the enquiry as and when the same is fixed/scheduled.
4. This charge sheet is being served to you with the approval of the competent authority.
(Sd.) (Zubair Ahmed Khan) Manager Technical (Optics) Precision Engineering. Dated: 15-2-2001 Miss. Tanveer Kausar, P-53877. Project Tech., Precision Engg.
STATEMENT OF ALLEGATIONS
1. That you and your brother Mr. Tasaddaq in violation of law and the relevant rules committed gross misconduct by tampering and providing Marks Sheet of B.A. (Pass) Examination and certificate of intermediate for obtaining the job for him in PEC in Pay Group-III, whereas he is simply Matriculate.
2. That you were fully aware of the fact that your brother Mr. Tasaddaq was matriculate and he was suitable for appointment in lower Pay Group, whereas he was awarded Pay Group-III on account of forged Marks Sheet of B.A. (Pass) Examination, but you concealed the facts deliberately.
3.
3. That you have provided false statement regarding your date of birth because gap between your birth date and that of your real brother is only 11 days which is un-natural being children of the same parents.
4. The above act on your part is clearly prejudicial to good order and service discipline and, therefore, amounts to misconduct under section 3(1)(b) of the Removal from Service (Special Powers) Ordinance, 2000".
(Sd.) (Zubair Ahmed Khan) Manager Technical (Optics) Precision Engineering.
' It is the case of the appellant that she was also served with dated 21-2-2001 wherein the appellant was asked to present herself in person along with her brother. Tasadduq Hussain before the Enquiry Committee on 1st March 2001. On 2nd March 2001 the appellant got her statement recorded before the said Enquiry Committee and produced her testimonials, none of which were tampered.
After the appellant's appearance before the Enquiry Committee, the appellant received another letter dated 11-4-2001 which reproduced as under:-- "Enquiry duly completed by the Enquiry Committee was sent to Legal Services Division for vetting.
The legal service has objected on the enquiry proceedings and advised to hold de novo enquiry against you. You are accordingly directed to report to the Enquiry Committee on the date, time and venue to be notified by the Committee."
' The appellant protested on the de novo Enquiry Committee but no heed was paid to it and the former Committee without any intimation to appellant or affording her a chance to defend the allegations, completed it arbitrarily and the appellant was denied her right to defend. As a matter of fact since none of the allegations could be substantiated in the said Inquiry, hence to victimize the appellant de novo inquiry was done. Even the final show-cause notice dated June 12, 2001 was completely silent on the matter of de novo inquiry. It did not furnish the copy of findings of Enquiry Committee to appellant as warranted by rules. The said final show-cause notice did not include the charge directly levelled against the appellant that she had allegedly provided wrong information about her date of birth to the respondent but instead mentioned other two allegations which were neither inquired into nor proved. As a matter of fact the appellant has been victimized by the respondents on the following:--
(i) As allegation No,3 in the statement of allegations Annexure "E-2" had back fired the respondent with mala fide and maliciously attempted to malign the appellant with the charges framed against Tasaduq Hussain;
2. De novo inquiry was the result that none of the allegation could be proved against the appellant in the first enquiry;
3. Nothing is on the record of Inquiry which directly or indirectly establishes the alleged connivance or collusion of appellant with Tassaduq Hussain;
4. The only fault, which has been brought against the appellant, is that she is the real sister of Tassaduq Hussain; 3(sic). The final show-cause notice dated 12-6-2001 was issued after completion of de novo inquiry or the enquiry. It was also silent in minting the fact that charge No,3 as per statement of allegations was not proved against the appellant and the decision was taken without going through the submissions made by the appellant in her reply to the final show-cause notice which was unilateral, arbitrary and bad in law.
5. In the Written Comments the respondents have supported the impugned order and have prayed for dismissal of appeal.
6. We have heard the learned counsel for the parties and have also perused the record.
7. The learned Counsel for the appellant contended that not a single document was attached with the statement of allegations or with the charge sheet by the respondent which was alleged to be tampered by the appellant. Therefore the invalid and frivolous charge sheet was issued to the appellant which has no legal effect for awarding of major penalty to the appellant. He has further contended that as alleged, if there is any tampering, it was done by her brother and not by the appellant, therefore, the charge sheet was issued to the improper person without any fault on her part. It is further contended that during the inquiry proceeding no documentary or oral evidence was produced before the inquiry committee to prove that any tampering in the educational certificate was made by the appellant not there is any evidence which may prove guilt of the appellant. On the contrary during the inquiry proceedings two prosecution witnesses in their statements had confirmed that the documents of appellant were found correct and in order. He contended that para-H of enquiry report and the conclusion wherein the appellant emphasized that she has no idea who has done it. She (the appellant) came to know about the alleged forgery during the inquiry. The Enquiry Committee also showed its uncertainty about it and suspected that the appellant being a sister of the accused might not be knowing every thing about her accused brother. Learned Counsel contended that the appellant was also an active member of the union which might have resorted to this severe disciplinary action against her without any fault on her part. He contended that the appellant recorded her statement before the inquiry officer vide page 50-55 but no cross examination was done by the prosecution during the proceedings. Therefore, the averments made by the appellant in the said statement shall be deemed to be correct in favour of the appellant. Moreover, the appellant submitted detailed reply to show-cause notice vide page 68-72 but the same was not considered by the competent authority nor a personal hearing was given to the appellant, hence, there being no substantial material in the inquiry report, the removal order dated 6-92001 served upon the appellant is arbitrary, without any cogent reason and unlawful and the same is liable to be set aside. He placed reliance on PLD 1981 Supreme Court
176. He contended that the order of removal was issued by an incompetent authority. He contended that the members of Enquiry Committee and the prosecution witnesses being the employees of the same department i,e, Precision Engineering Department, therefore, de novo inquiry conducted through partial persons of the same department is against the principle of natural justice. He cited the following rulings:--
(1) 1982 PLC (C.S.) 249, (2) 1983 PLC (C.S.) 171, (3) 2004 PLC (C.S.) 270, (4) 2004 PLC (C.S.) 294.
' The learned Counsel for the appellant on the role of Inquiry Committee placed reliance on the following:--
(1) 2003 PLC (C.S.) 7, (2) 2003 PLC (C.S.) 113, (3) 2003 PLC (C.S.) 433, (4) 2004 PLC (C.S.) 668, (5)1999 SCMR 818, (6) 2000 PLC (C.S.) 857, (7) 1998 SCMR 2268, (8) 2002 SCMR 57, (9) 1997 SCMR 1552, (10) PLD 2000 (sic) 211, (11) 2001 SCMR 934, (12) 2001 PLC (C.S.) 667.
' For non-supplying the copy of Inquiry Report along with final show-cause notice he cited the following authorities/judgment:
(1) PLD 1979 Karachi 257, (2) 1987 SCMR 1562, (3) 2000 PLC (C.S.) 99, (4) PLD 1981 SC 176, (5) 2003 PLC (C.S.) 378, (6) PLD 1967 Karachi 1138, (7) 1973 SCMR 455, (8) 1983 PLC (C.S.) 473.
' The learned Counsel for the appellant further contended that major punishment cannot be awarded on the basis of short procedure of inquiry. He cited the following authorities;
(1) 2000 PLC (C.S.) 1252, (2) 1997 PLC (C.S.) 873, (3) 1997 PLC (C.S.) 817, (4) 1999 PLC (C.S.) 592, (5)
2001 PLC (C.S.) 291.
' The learned Counsel for the appellant further contended that contact employee is covered under section 2A of Service Tribunals Act, 1973. He cited the following authorities:--
(1) 2001 SCMR 565, (2) 1999 SCMR 197, (3) 2002 PLC (C.S.) 526, (4) 2004 PLC (C.S.) 418, (5) 2001 SCMR 934.
' On the point of tampering he cited the following authorities:
(1) 2004 PLC (C.S.) 732, (2) 1996 PLC (C.S.) 300, (3) 1989 PLC (C.S.) 25, (4) 1996 PLC (C.S.) 79, (5) 1991 PLC (C.S.) 316.
' On the point of limitation the learned Counsel for the appellant contended that there is a delay of only two days for which he has submitted an application under rule 6(2) Service Tribunal (Procedure) Rules, 1974 along with a medical certificate from the registered practitioner for condonation of delay. He contended that the appellant has a good prima facie good case on merits as such no limitation is involved. He contended that the appellant filed her representation on 24-9-2001, hence limitation would he calculated from 25-9-2001 as per the details given below:- - {{TABLE}} Date of Removal 6-9-2001 Date of Representation 24-9-2001 Period of 90 days From 2-9-2001 to 24-12-2001 Appeal filed on 27-12-2001 Period of delay 2 days From 25-12-2001 to 26-12-2001 {{TABLE}] ' The learned Counsel for the appellant contended that the impugned order is void, nullity in the eyes of law, therefore limitation would be run. He cited PLD 1977 Lahore 1377, PLD 1976 Supreme Court 208 and 1987 SCMR 1543. He urged that since the appellant has a good prima facie case in her favour, the delay of 2 days be condoned.
7. The learned Counsel for the respondent contended that the appellant was inducted on daily wage basis as casual worker for 89 days w,e,f, 11-10-1993 to work in Prescision Engineering Department of the Corporation. Subsequently she was appointed on contract basis for a period of 3 years from 22-11-1995. In this respect she executed an Agreement dated 22-11-1995 with the Corporation. Pursuant thereto she was issued an appointment letter dated 22-11-1995. Thus the appellant's appointment was on contract for a period of 3 years commencing from 22-11-1995 subject to the terms and conditions contained in the said Agreement and letter. He denied that the appellant was inducted as a regular employee. He contended that upon expiry of the said period of 3 years the appellant's contract was extended from time to time vide personnel Orders dated 16- 11-1988, 10-11-1999 and 14-11-2000 up to 21-11-2001 till her said removal was employed on Contract.
He further contended that appellant and her brother Mr. Tasaddaq P. No,54650, Project Technician, in violation of the law and the relevant rules committed gross misconduct by tampering and providing Mark Sheet of B.A. (Pass) Examination and Certificate of Intermediate for obtaining a job for him in the Precision Engineering Complex of the Corporation in PG-III whereas he is simply a Matriculate. The appellant being fully aware of the fact that her brother Mr. Tasaddaq was a Matriculate as such was suitable for appointment in lower pay group only. Whereas he was given PG-III on account of a forged Mark Sheet of B.A. (Pass) Examination.
8. On the point of limitation, the learned Counsel for the respondents contended that the appellant was removed from service under Removal from Service (Special Powers) Ordinance, 2000. In accordance with the said Ordinance a person on whom a penalty is imposed has to file a representation against the same within 15 days from the date of communication of the order. The appellant submitted her representation dated 24-9-2001 which being beyond a period of 15 days is time-barred. He cited the ruling 1992 MLD 1280.
9. We have carefully considered the above arguments of the learned Counsel for the appellant and the learned Counsel for the respondents and have gone through the authorities cited at the bar.
10. Apparently the appellant was dismissed from service on the charge of misconduct by the respondents that her brother Tasaddaq had tampered by providing Mark Sheet of B.A. (Pass)
Examination and Certificate of Intermediate for obtaining a job for him in the Precision Engineering Complex of the Corporation in PG-III, whereas he was simply a Matriculate. During, inquiry proceeding no documentary or oral evidence was produced before the inquiry committee to prove that any tampering in the educational certificate was made by the appellant nor there was any evidence which might have proved guilt to the appellant. On the contrary two prosecution witnesses in their statements had confirmed that the documents of appellant were found correct and in order. In Para-H of enquiry report and the appellant emphasized that she has no idea who has done it. The appellant came to know about the alleged forgery during the inquiry. The Committee also showed its uncertainty about it and suspected being a sister of the accused might not be knowing every thing about her accused brother. Therefore, there was no documentary evidence to prove the guilt of the appellant. The brother of the appellant who had done tampering with the testimonials as alleged was already dismissed from service but the dismissal of the appellant was made without any fault on her part. The charge sheet dated 15-2-2001 was wrongly signed/issued under section 3(b) of Removal from Service (Special Powers) Ordinance, 2000 whereas it was required to be signed/issued by the Enqpiry Officer/Inquiry Committee under section 5(1)(a) of the said Ordinance, 2000. Since the said charge sheet was signed/issued by the Manager Technical (Optics), therefore it was unlawful and devoid of any lawful authority. We have come to the conclusion that not a single document was attached with the statement of allegation/charge sheet by the respondent which was alleged to be tampered by the appellant.
Therefore, the same is invalid and frivolous and has no legal effect for awarding major penalty to the appellant. Further the appellant recorded her detailed statement before the inquiry officer but no cross-examination was done by the prosecution during the proceeding, therefore, the statement of the appellant is correct. Moreover, the reply of the appellant to the show-cause notice was not considered by the competent authority nor personal hearing was given to her. Maxim of "audi alteram partem" would also apply in this case. Reliance is placed on 1999 PLC (C.S.) 1539 wherein it was held:--
(d) Master and servant--- ----Maxim "audi alteram partem"---Applicability---Employer, who itself had framed Rules as well as regulations for its domestic purposes, was bound to strictly follow/adhere to the same--- Deviation from such Rules and Regulations is bound to violate principles of natural justice enshrined in the maxim "audi alteram partem" i,e, no one is to be condemned unheard---Where adverse action is being contemplated to be taken against the person/persons, he/they would have at least right to defend such action."
' Reliance can also be placed on PLD 1990 SC 612 (Mrs. M.N. Arshad and others v. Miss Naeema Khan and others), PLD 1959 SC (Pak.) 45 (Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak), PLD 1961 SC 537 (Messrs Faridsons Limited, Karachi and another v. Government of Pakistan and another), PLD 1964 SC 416 (Abdul Rehman v. Collector and Deputy Commissioner, Bahawalnager and others), PLD 1964 SC 673 (Abdul Ala Maudoodi v. Government of West Pakistan), PLD 1965 SC 90 (University of Dacca v. Zakir Ahmed), PLD 1964 SC 321 (Muhammad Hayat v. Province of West Pakistan), PLD 1965 SC 605 (Messrs East-End Exports, Karachi v. The Chief Controller of Imports and Exports, Rawalpindi and another), PLD 1987 SC 304 (Pakistan and others v. Public-at-Large and others), PLD 1994 SC 885 (Khaliluz Zaman v. Supreme Appellate Court, Lahore and 4 others), 1994 SCMR 1299 (Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A.
158, Naushero Feroze and others) and 1999 SCMR 2203 (Faqir Ullah v. Khalil-uz-Zaman and others)
10A. In the case of Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others reported in 2001 SCMR 934 it was held:
11. Master and servant--- ' Natural Justice, principles of---Termination of service---Stand taken by the appellants before Federal Service Tribunal reflected mala fide of the appellants in removing the respondents from their service---Where before termination order no opportunity was given to the employees to defend themselves against unilateral adverse action intended to be taken against them, services of the employees were terminated in violation of principles of natural justices."
' It was further held:--
12. Service Tribunals Act (LXX of 1973)--- ----Ss. 2-A & 4---Termination of service---Locus poenitentiae, principle of---Relation of master and servant---Failure to give show-cause notice---Employees of statutory Corporation were terminated from service without any prior notice---Service Tribunal allowed the appeals and the employees were reinstated in their service-Contention of the employer Authorities was that the relationship between the employer and employees was that of master and servant and services could be terminated without any notice---Validity---Competent Authority, in view of principle of locus poenitentiae was empowered to rescind or cancel earlier order passed by it, if no decisive steps had been taken or if it was shown that the order was illegal, then no perpetuity could be attached to it-Employees had served for a period of more than six months and the Appointing Authority withheld the reasons for terminating their services---Where the appointment letters were issued contrary to the rules, the Authorities could exercise jurisdiction to cancel such appointment letters, but the employees should have been provided opportunity to defend against the action of the authorities---Authorities were directed to reinstate the employees in service---Authorities would, however, be at liberty to initiate fresh action against the employees if so advised in view of observation made by the Court.
' Reliance can be placed on (Mrs. Anisa Rehman v. P .I. A . C . And others 1994 SCMR 2232), (United Bank Limited v. Ahsan Akhtar 1989 SCMR 68 (sic)), 1999 SCMR 894 1999 SCMR 1526; PLD 1999 SC 1106; PLD 1990 SC 666; Muhammad Hussain v. Pakistan International Airlines and others) 1989, PLC (C.S.)
549, The Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi, PLD 1984 SC 170 The Engineerin-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin, PLD 1992 SC 207 and Abdul Haque Indhar and others v. Province of Sindh through Secretary, Forest, Fisheries and Livestock Department Karachi and 3 others 2000 SCMR 907.
11. So far as contract employment of the Appellant is concerned, the Appellant rendered service in the Respondent Corporation much more beyond the contractual period, and her case is not of contract employee, yet it is established principle of law that Section 2A of the Service Tribunals Act, 1973 is also applicable to contract employees. It was held in the case of Ch. Ehsan Sabri v.
Federation of Pakistan through Secretary, Ministry of Law Justice, Human Rights and Parliamentary Affairs, Islamabad reported in 2003 PLC (C.S.) 113: "(a) Anti-Terrorism Act (XXVII of 1997)--- ----S. 14---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Removal from service---Petitioner was holding a statutory office of Judge Anti-Terrorism Court on contract basis for a period of two years under provisions of S.14 of Anti-Terrorism Act, 1997, but during subsistence of contract he was prematurely removed from service on the basis of certain allegations without giving any opportunity to clear his position simply on letter addressed by Governor to the Law Minister---Appointment of petitioner was made after consultation with Chief Justice of Lahore High Court on finding him to be a fit person to hold judicial office and petitioners performed his duties for a period of about one and a half year---Petitioner who was removed on basis of certain allegations without giving him opportunity to clear his position, was within his right to press the Constitution---Petition to remove stigma of removal from service from his name as well as to claim arrears of his salary---Under provision of S.14(4) of Anti-Terrorism Act, 1997 it had been made incumbent upon the Competent Authority to consult Chief Justice at the time of removal of Judge Anti-Terrorism--Chief Justice, in circumstances, must be taken into confidence by Federal or Provincial Government and he should be apprised of reasons justifying removal of Judge, but that had not been done in the case of petitioner---Statute no doubt contained provision for removal of a Judge from service but that was a very serious step and ought not be lightly taken unless it was essential to uphold dignity of Court and secure interests of administration of justiee-Action taken against petitioner, in circumstances, was arbitrary and not justifiable in eye of law=-Order of removal of petitioner from service was declared to be illegal, arbitrary, without lawful authority and of no legal effect by High Court in exercise of its constitutional jurisdiction."
' It was also held in 2001 SCMR 565 that: "(al Newspaper Employees (Conditions of Service) -Act LVII of 1973-- ----S.4---Termination of service---"Temporary workman" and "permanent workman"--- Distinction---Matters of termination of service of newspaper employee are governed by the provisions of S.4, Newspaper Employees (Conditions of Service) Act, 1973, and the same do not make any distinction between "temporary workman" and permanent workman" or "contract employee"--Order of termination of service of employee has to be tested on the touchstone of the provisions of S.4 of the said Act and the same is justifiable if challenged by the employee before a Court of law---Mandatory requirement of the proision in that the decision to terminate the service of newspaper employee must be based on good cause."
' ' It was further held: "(e) Newspaper Employees (Conditions of Service) Act LVII of 1973)--- ----S . 4 --Termination of service---"Good cause"---Termination of service has to be made in good cause---Mere fact that the employee was given service for fixed period under the contract and on expiry of that period service was terminated, was not a "good cause" for termination of service."
' It was also held in 2005 PLC (C.S.) 318 (Muhammad Amjad Malik v. Pakistan State Oil Co. Ltd and others).
"Service Tribunals Act (LXX of 1973)--- -Ss. 2-A & 4---Constitution of Pakistan (1973), Art. 212(3)- Termination of Service---Contract employee---Show-cause notice, non-issuance of---Principle of consistency--- Applic ability--- Employee was working, on contract basis and his services were terminated without issuance of any show-cause notice---Order of termination was maintained by Service Tribunal--Plea raised by the employee was that Supreme Court in its earlier decision had reinstated other employees terminated on similar grounds---Validity---Service of the employee were governed by clause relating to dismissal as mentioned in the contract of employee itself, whereby the right of reply to show-cause notice, was to be provided---Following the dictum laid down in the earlier judgment, Supreme Court converted the petition for leave to appeal into appeal and the judgment passed by Service Tribunal was set aside---Appeal was allowed."
12.In view of above cited authorities relied upon by the learned Counsel for the Appellant, we hold that the action of Respondent violating the principles of natural justice was without lawful authority and of no legal effect. We further hold violation of the maxim could be equated with the violation of the principles of law warranting pressing into service constitutional jurisdiction. Therefore, we hold that the service of the appellant were terminated in violation of the principles of natural justice because before passing impugned order no opportunity was given is the Appellant to defend against a unilateral adverse action intended to be taken against her.
13.We have come to the conclusion that the matter of collusion pertains to the evidence which burden goes to the respondents to prove them. The prosecution's Statement categorically confirmed that the copies of Certificates produced by the appellant were correct which includes the duplicate copy of the Intermediate Certificate. Whereas her brother (Tasaddaq Hussain) filed copy of tampered documents. The Mark-Sheet of B.A. Produced by the brother of appellant is a typed copy when the Marks-Sheet of the appellant is a hand written Marks-sheet. It transpires that the said Certificate and Marks Sheet has already been stolen away from the personal record of the appellant as stated by the appellant. During cross-examination of both the prosecution witnesses it has been confirmed that the Educational Certificates in original were produced at the time of recruitment by both the employees which were checked by the Office and found them correct therefore, the question arises as to why the documents of her brother were accepted by the Office which in the contrary, proved definite collusion between the Office and her brother and not with the appellant. The Enquiry Committee has still suspected that appellant might have provided her own Certificate and Mark Sheet to her brother for tampering and Mr. Tasaddaq Hussain has committed the crime with her consent and help. Furthermore, the Enquiry Committee is also of the opinion that being his sister (Tasaddaq Hussain) she might not be knowing everything about his brother. We have come to the conclusion that no substantial material was produced before the Enquiry Committee to prove any collusion of the appellant with her brother in the instant case, hence the conclusion given by the Enquiry Committee against the appellant is one-sided, arbitrary and partial which is unlawful.
14.As far as limitation is concerned, there is delay of only two days for which the appellant has submitted an application for condonation of delay and we accordingly condone the delay if any in filing the present appeal.
15.For the foregoing reasons appeal is allowed and the impugned order dated 6-9-2001 is set aside. The respondents are directed to reinstate the appellant in service and regularize her service from the date of the impugned order. The appellant shall be entitled to all back-benefits for which she shall submit an affidavit before the competent authority that she was not gainfully employed elsewhere.
16.Copies of the judgment be sent to parties (under registered cover) and to the relevant quarters under 21 of Service Tribunal.