This Constitutional Petition has been preferred by Mr. Majeed Ahmed Memon to impugn the Order No. LUMHS/REG/32540/45, dated 7.11.2007, whereby his services with the Respondent No. 1 were terminated with immediate effect and he was repatriated to his parent Department.
2. The facts stated in the Petition reveal that on 4.8.2006, upon recommendation of Selection Board of Respondent No. 1, which was approved by Respondent No. 2 in its meeting held on lst July, 2006, the Petitioner was appointed on probation as Project Director in BPS-20, against usual allowances as contemplated under the Rules and Regulations of Respondent No. 1, for a period of one year, which was extendable if the performance of the Petitioner was found unsatisfactory. Subsequently such period of probation was extended for another period of one year vide Office Order dated 22.9.2007. According to the further case of the .Petitioner, his appointment was purely on merits and against a clear vacancy, therefore, he could not have been removed from the service and repatriated in such arbitrary manner, It is also the case of the Petitioner that the background of such decision against the petitioner in Resolution No; 13.15 of the Syndicate of Respondent No. 1, which was passed in the 13th meeting of Respondent No. 2. On 20th October, 2007, whereby on the basis of the report of Inquiry Committee constituted by Respondent No. 1 under its letter No. LUMCS/ESTT/17264/69, dated 16.6.2007, he was charged with the allegation that some furniture, equipment and crockery purchased by the Petitioner from M/s. Naqeeba Enterprise were without proper tendering and as a special favour, the rates which were 80% to 100% higher from the market price, and further the quality of such items was also poor and specification of some items did not match to the tender specifications.
3. As regards above allegations, the petitioner has vehemently urged that the whole exercise undertaken by him was strictly in accordance with the relevant Rules and Regulations, while the action taken against the Petitioner under the provisions of Ordinance IX of 2000 is in utter disregard and violation of the mandatory provisions of the Statute, therefore, the petitioner is entitled for the following reliefs:- "(a) declare that the Original Order No. LUMHS/REG/32540/45, dated 7.11.2007 ' (Annexure-A) and Appellate Final Order No. LUMHS/REG/14000, dated 14.5.2008 (Annexure-A) have been issued. By incompetent authorities and . Unauthorized persons is such not sustainable in law.
(b) declare that the Vice Chancellor/Respondent No. 3 so also Registrar/Respondent No. 4 had no powers and jurisdiction vested in both of them under LUMSH Jamshoro Sindh Ordinance No. VII of 2001 and under Removal from Service. (Special Powers) Sindh Ordinance No. IX of 2000 to pass or issue such orders in their personal capacity or under to pass or issue such orders in their personal capacity or under personal designation as such both orders impugned hereinabove are ab initio void having- no statutory support as such both of it are devoid of legal force, redundant as such be quashed.
(c) direct/order reinstatement of petitioner back to his post of Project Director in BPS-20 (Engineering Wing) in LUMHS Jamshoro w.e.f. 7th of November, 2007, by treating/allowing the intervening period as period spent on duty and further allowing the petitioner consequential back benefit for the said intervening period.
(d) direct the Respondent No. 1 to release arrears of Salary/pay and other service benefits to the Petitioner from the date of dismissal till the date of reinstatement.
(e) Declare that the petitioner stands exonerated from the allegations as alleged in the Show- Cause Notice dated 27.8.2007 (Annexure-J).
(f) After hearing the parties, direct Respondent No. 3 to report compliance of Final order of the Hon'ble Court to the Registrar of the Court.
(g) In case of defiance rail attendance of respondent No. 3 in person so as to satisfy the Hon'ble Court for non-compliance.
(h) Issue/pass any other/further orders as the Hon'ble Court may deem fit, proper, appropriate, legal and judicious as the circumstances may warrant, remedying grievance of the petitioner.
(i) Costs of the petition may be saddled upon the Respondents." ,
4. In reply, comments have been submitted on behalf of Respondent No. 4, wherein mainly it has been agitated that the review application filed by the Petitioner before Respondent No. 2 had become time-barred and such intimation was sent by Respondent No. 1 on 4.5.2008. About other allegations, case of the Respondents is that services of the petitioner were not transferred from the Government but he was placed on deputation. The petitioner was appointed purely on probation for a period of one year vide letter dated 4.8.2006, which was further extended for one year vide letter dated 22.9.2007 and, therefore, no regular proceeding of inquiry was required before termination of his service with the Respondent No'.
7. As regards preliminary inquiry, the case of respondents is that the. Vice Chancellor of Respondent No. 1, while exercising his administrative powers could probe into the, allegations of Irregularity, malpractice and misappropriation of University fundis against any person or authority or employee of Respondent No. 1 in his wisdom and by exercising .Such authority the preliminary injury for fact finding purpose was conducted against the Petitioner, -
5. Today before commencement of arguments in this Petition, learned counsel for the respondents has placed on record Extract from the 16th Syndicate. Meeting of Respondent No. 2, dated 24.10.2008 to show that the review application submitted by the petitioner regarding which he was also informed by Respondent No. 4 through its letter No. 14001, dated 14.5.2008, was considered by Respondent No. 2 and disposed of with the observation that the services ' of the petitioner were no more required by Respondent No. T and that he be repatriated to his parent department.
6. Mr. Ansari Abdul Lateef, learned counsel for the petitioner reiterating in detail similar facts as noted above has contended that the action of Respondent No. 2 communicated vide the impugned Office Order dated 4.11.2007, thereby immediately terminating the services of the petitioner with Respondent No. 1 and asking for his repatriation to his parent department is in flagrant violation of his fundamental rights of natural justice and also provisions of Section 3 of the Removal from Service (Special Powers)
Sindh Ordinance, 2O0O, which provides for formation of Inquiry Committee and the procedure 'of inquiry etc. Before such drastic action was taken against any individual, In support of his submission, that no limitation runs against a void order or where the action-taken by the Respondents its without jurisdiction, illegal, ab initio void, lacks transparency and procedural propriety, the learned Counsel has placed reliance on the following cases:-
(1) SBLR 2006 Balochistan 18.
(2) 2003 SCMR 1840.
(3) 2001 SCMR 1822.
(4) 2000 SCMR 1827.
(5) 1999 SCMR 856.
(6) PLD 1992 SC 825.
(7) 1987 SCMR 1119.
(8) 1987 SCMR 1543. '
7. Further to amplify his submissions as to the procedural lapses and its consequences, learned counsel has referred to the following cases:-
(1) 2007 Law Notes 650.-
(2) SBLR 2007 134. -
(3) PLD 2006 SC 175. ..
(4) PLJ 2003 SC 510..
(5) 2001 PSC 166.
(6) 2001 SCMR 269. . - .
(7) NLR 2001 Service 97.
(8) 1998 PLC (CS) 1272.
(9) 1996 SCMR 127.
(10) PLD 1970 Pesh. 176.
(11) PLD 1965 SC 90.
8. In, reply, Mr. Kamaluddin, learned .Counsel for the Respondents has contended that at the time of institution of this Petition it was premature inasmuch as the review application submitted by the petitioner was pending adjudication before Respondent No. -2 and it has been subsequently disposed of in the 16th meeting of Respondent No. 2 held on 24.10.2008, vide Resolution No. 16.6, which reads as under:- "Resolution No. Syn-16.6 "It was unanimously resolved that the appeal made by Eng. Majeed Ahmed Memon, Ex-Project Director, Engineering Wing, LUMHS, Jamshoro vide his application dated 23.4.2008 regarding major penalty' imposed upon him under the University officer order No. LUMHS/REG/32540/45, dated 7.11.2007 be not accepted. He had already not shown his willingness to be heard in person and since before his appointment he was already working as Project Director on deputation and after his appointment in this University he was not yet absorbed in the service of the University being on probationary period, as such he was rightly relieved from this University and was repatriated to his parent department and such intimation may also be given to his parent department."
9. He Urged that since remedy of appeal was. Provided against the decision of Syndicate, which was not availed in time, but after lapse of over six months the Petitioner has lost his right to agitate the same grievance before this Court through this Petition. Next submission of the learned counsel is that vide appointment letter dated 4.8.2006 the Petitioner was appointed .As Project Director in BPS-20 with Respondent No. 1 only for a period of one year on probation which was extendable, if his performance was found unsatisfactory. Subsequently, vide letter dated 22.9.2007 the period of probation was extended for another one year due to unsatisfactory performance and in the .
Meantime the matter was taken up by the Syndicate, where decision was taken for termination of his service with the Respondent No. 1 with immediate effect and repatriation to his parent department, where he is maintaining his lien. Further submission of the learned counsel is that the action taken against the petitioner was not in terms of the Removal from Service (Special Powers)
Sindh Ordinance, 2000, therefore, no , Show-Cause Notice or inquiry, as contemplated therein, was required in the case nor any principles of natural justice were violated as preliminary inquiry held under the direction of the -Vice Chancellor of Respondent No. 1 was an internal arrangement and it is for this reason that the termination of service of the petitioner from the University and his repatriation to his parent department is without attribution of any allegation of misconduct or corruption and even the Syndicate in its Resolution No. 13.15 has simply examined the performance of the petitioner and found it unsatisfactory and, thus, has taken appropriate action for his termination of service with immediate effect.
10. Keeping in view submissions of the learned counsel and undisputed facts in the present petition, the moot point for consideration before us is whether termination of service of the petitioner by respondent No. 1 without assigning any reason was justified in view of the fact that the petitioner was not a permanent employee of Respondent No.1 but was serving on probation, with purported lien in his parent department.
11. Perusal of material placed on record reveals that initially at the behest of the Vice Chancellor of Respondent No. 1 preliminary enquiry was conducted by the committee, which had pointed out some irregularitied committed by the petitioner in his capacity as Project Director of respondent No. 1 during his probationary period. Seemingly, based on such allegations and conduct of the petitioner, the matter was placed in the 13th meeting of Respondent No. 2 held on 20.10.2007, wherein Resolution No. 13.15 was passed, which reads as under:- "Resolution No. Syn-13.15 Revealed that in view of report received from the inquiry Committee constituted by the University under its letter No. LUMHS/ESTT/17264/69, dated 16.6.2007 the reply received from Eng. Majeed A.
Memon Project Director (Engineering Wing) in response to this University Show-Cause Notice dated 27.8.2007 was examined and found unsatisfactory. As a consequent thereto services of Eng. Majeed A. Memon .Are no more required by this University, therefore, his services be terminated from this University with immediate effect and he be repatriated, to his parent department.
12. Based on the above Resolution of the Syndicate, the Respondent No. 4, without charging the petitioner with any allegations communicated to him the following order:- "And now therefore in pursuance of above resolution passed by the Syndicate/Competent Authority the services of Mr. Majeed Memon which are no more required by this University, are hereby terminated from this University with immediate effect and he is I repatriated to his parent department. He is directed to handover the charge ' of the Project Director (Engineering Wing) to Director Planning and Development of this University."
14. In the above background, the argument of Mr. Ansari Abdul Lateef, learned counsel for the petitioner that removal of the petitioner from service of respondent No. 1 has taken place in terms of Removal. From Service (Special. Powers) Sindh Ordinance, 2000, seems to be not supported with any material placed on record, therefore, his argument as non-following of strict procedure laid down therein on violation of principles of natural justice to be ill-founded. Admittedly the service of the petitioner with respondent No. 1 was on probation, therefore, Respondents had the right to terminate his service without assigning any reason for this purpose. The terms of the appointment of the petitioner, contained in the letter of his appointment dated 4.8.2006 are relevant for his purpose, hence reproduced as under:- "OFFICE ORDER On the recommendation of Selection Board of Liaquat University of Medical and Health Sciences, Jamshoro vide Resolution No. Dated 22nd June, 2006 and approved by the Syndicate vide its Resolution No. 3 in its meeting held on 1st July, 2006, Engr. Majeed Ahmed Memon S/o Haji Muhammad Yousuf, is hereby appointed as Project Director in BPS-20 plus usual allowances as admissible under the rules and regulations of L.U.M.H.S., Jamshoro from the date of .Joining on the following Terms and Condition:- He shall be subject to the provisions of the Efficiency and Discipline Rules and regulations of L.U.M.H.S., enforced from time to time.
He shall be on probation for a period of one year, which may be extended if the performance is found un-satisfactory.
He shall be liable to serve any department in the University or. Any other duties whenever such duties are assigned to him by the authorities in the interest of the University.
That a notice of 30 days shall be given by him in case he desires to resign from, his post. Even after such notice he shall not leave charge of the post unless his resignation is formally accepted and' notified. (Behaviour contrary to this instructions shall be considered as misconduct and treated accordingly).
'He is required to join the. University within 15 days from the date of receipt of this order.
No T.A./D.A. Shall be allowed for joining."
14. In our view when the petitioner has accepted his appointment with the respondents in the above terms for termination of his service, he was not required to be proceeded with under the Provisions of Ordinance IX of 2000, during the period of his service with them on probation. Thus all the arguments of Mr. Ansari based on such premises have no relevancy or force.;
15. Another aspect of the case, which disentitles the petitioner from granting any relief in the matter is that the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan is discretionary and equitable in nature, which is to be exercised only to foster the cause of justice and not to provide a shield of technicalities to protect the interest of a litigant (See PLD 1974 S.C. 106). In the present petition, as per report of the Inquiry Committee nominated by respondent No.. 4 the petitioner was found involved in some irregularities for which he could not offer any satisfactory reply, It seems that faced with this situation and to avoid the cumbersome procedure of inquiry the respondents intelligently opted for other course of relieving the petitioner from their institution on the simple ground that his services were no more required by the University. Adoption of such course by the respondents is unexceptionable. This view of the matter is fortified from the case of Board of Intermediate and Secondary Education, Lahore v. Saima Azad (1996 SCMR 676), wherein, in a dispute involving educational institution it was held by the apex Court that "The jurisdiction of High Court under Article 199 of the Constitution is principally meant for correcting the jurisdictional error in the order and proceedings of Tribunals and executive authorities. This jurisdiction cannot be invoked for obtaining decisions -on .Merits which the functionaries alone are entitled to take under the law."
16, The petitioner, therefore, cannot insist for following the procedure of enquiry as envisaged in the Removal for Service (Special Powers) Sindh Ordinance, IX of 2000, under which he might have been entitled for fulfillment of all the procedural formalities required by the Statute. The case of the Petitioner, if. Analyzed on the parameter laid down in the case of Muhammad Siddiq Javed v.
Government of West Pakistan (PLD 1974 SC 393), is clearly distinguishable for the. Reason that in the said case the removal of the. Petitioners from the service, during the period of probation, was with the allegations of corruption, which was considered as a stigma in their career. As against it, in the present case, from the language of Resolution No. SYN-13.5 and the Office Order dated 7.11.2007 it is evident that the Syndicate/Competent Authority has. Decided to.' terminate the services of the petitioner from the University with immediate effect on the plea being "unsatisfactory" and "no more required" by the University.-
17. Looking at this issue fi;om anoth er angle, at best, grievance of the Petitioner could be that preliminary Investigation Committee has conducted inquiry without his participation and formed an opinion prejudicial to his interest which may result in a stigma on his service record in future. To be on the safe side, such grievance of the petitioner can. Be redressed with the observation that termination of service of the petitioner by respondent No. 1 vide Office Order dated 4.11.2007 shall be treated as such without any further allegation of illegalities committed by him as observed by the Inquiry Committee regarding purchase of furniture, office equipment and crockery items by the petitioner from M/s Naqeeba Enterprises. With these observations, we hold that termination of service of the petitioner by the Respondent No. 1 during his probationary period, in the manner fallowed by the respondents is duly warranted by law, therefore, the petitioner is not entitled for any relief in this Petition. The petition is accordingly dismissed in limine.