AJMAL MIAN. J.-This petition is directed inter alia against the suspension order dated 14th July, 1979, the dismissal order dated 26th June, 1980 passed by the respondent No, 3 and the respondent No, 2's resolution dated 16th June, 1980 at Item No, 70.
The short facts leading to the filing of the above petition are that the petitioner was working as an Officer of Gr. 17 with the respondent No, 2 and had put in more than 16 years service. On 31st May, 1979 the petitioner was served with a show-cause notice alleging therein that he was engaged in private employment, while in service of the respondent No, 2 to which the petitioner submitted a reply dated 13th August, 1979/ 22nd September, 1979. It has been averred by the petitioner that no reply to the petitioner's aforesaid reply to the show cause was received by him. However, on 29th September, 1979 the petitioner received a letter from the Inquiry Officer asking him to appear in connection with the charges mentioned in the aforesaid show-cause notice dated 31st May, 1979. It has been further averred that in the meantime the respondent No, 3 was elected to the office of Mayor of the respondent I and for make fide reason, he circulated an agenda for meeting of the respondent No, 2 which was to be held on 15/16th June, 1980, at 3-00 p.m. For seeking the approval of the respondent No, 2 to an alleged belated illegal, retrospective and mak fide continuous suspension of the petitioner and for authorising him to exercise all the powers in connection with the petitioner's service upon completion of the aforesaid inquiry. In pursuance of the above meeting the aforesaid resolution was accordingly passed for the aforesaid purposes. The Inquiry Officer proceeded with the inquiry without the petitioner's participation. On the basis of the findings given by the Inquiry officer the petitioner's services were terminated through respondent No, 3's letter dated 25th June, 1980.
It may be pertinent to mention that the petitioner had filed the above petition on 14th June, 1980 in which he had inter alia challenged the aforesaid inquiry proceedings. However, on his dismissal from the service, he amended the petition with the permission of the Court and sought a declaration against the aforesaid dismissal order as well.
2. (a) In support of the above petition Mr. Abrar Hasan Khan learned counsel for the petitioner has raised the following two contentions :-
(i) That as the respondent No, 2 after the receipt of the petitioner's aforesaid reply dated 19th August 1979/22nd September, 1979 to the aforesaid show-cause notice dated 31st May, 1979 were satisfied with explanation submitted by him, they could not have pressed into service Rule 6 of the Sind People Local Council Service (Efficiency and. Discipline) Rules, 1974 (hereinafter referred to as the Rules),
(ii) That the impugned action is mala fide and was prompted at the behest of the respondent No, 3 who had personal enmity with the petitioner.
(b) Reverting to the first contention that as the respondent No, 2 after the receipt of the petitioner's reply to the aforesaid show-cause notice were satisfied, they could not have pressed into service the aforesaid rule 6, it may be observed that Mr. Abrar Hassan has invited or attention to rules 5 and 6 of the Rules. In order to appreciate the above contention, it will be advantageous to reproduce hereinbelow the aforesaid Rules, which read as follows :- "5. Inquiry procedure.-The following procedure shall be observed when a Council servant is proceeded against under these rules :-
(1) In case where a council servant is accused of subversion, Corruption or misconduct, the authorised officer may require him to proceed on leave or with the approval of the authority suspend him, provided that any continuation of such leave or suspension shall require approval of the authority after every three months.
(2) The authority or the authorised officer shall decide whether in the light of facts of the case or the interests of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee, if he so decides, the procedure indicated in rule 6 shall apply.
(3) If the authority or the authorised officer decides that it . Is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall
(a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action ; and
(b) give him a reasonable opportunity of showing cause against that action : Provided that no such opportunity shall be given where the authority or the authorised officer is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity.
(4) On receipt of the report of the Inquiry Officer or Inquiry Committee or where no such Officer or Committee is appointed on receipt of the explanation of the accused, if any, the authority or the authorised officer shall determine whether the charge has been proved, and-
(a) if it is proposed to impose a minor penalty, he shall pass orders accordingly ;
(6) if it is proposed to impose a major penalty the authority shall pass orders accordingly but the authorised officer shall have to forward the case to the authority along with the charge and statement of allegations served on the accused, the explanation of the accused, the findings of the Inquiry Officer or Inquiry Committee, if appointed, and his own recommendations regarding the penalty to be imposed, and the authority shall pass such orders as it may deem proper.
6. Procedure to be observed by the Inquiry Officer and Inquiry Committee :-
(I) Where an Inquiry Officer or Inquiry Committee is appointed the authority or the authorised officer shall-
(a) frame a charge and communicate it to the accused together with statement of the allegations explaining the charge and of any other relevant circumstances which are proposed to be taken into consideration ;
(b) require the accused within a reasonable time, which shall not be less than seven days or more than fourteen days from the day the charge has been communicated to him to put in a written defence and to state at the same time whether he desires to be heard in person.
(2) The Inquiry officer or the Committee, as the case may be shall enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessary and the accused shall be entitled to cross-examine the witnesses against him.
(3) The Inquiry Officer or the Committee, as the case may be, shall hear the case from day to day and no adjournment shall be given except for reasons to be recorded in writing and where any adjournment is given-
(a) it shall not be for more than a week, and
(b) the reasons therefor shall be reported forthwith to the authorised officer.
(4) Where the Inquiry Officer or the Committee as the case may be, is satisfied that the accused is hampering, or attempting to hamper, the progress of the enquiry he or it shall administer a warning, and if thereafter he or it is satisfied that the accused is acting in disregard of warning, he or it shall record a finding to that effect and proceed to complete the enquiry in such manner as he or it thinks best suited to do substantial justice.
(5) The Inquiry Officer or the Committee, as the case may be shall within ten days of the conclusion of the proceedings or such longer period as may be allowed by the authorised officer, submit his or its finding and the grounds thereof to the authorised officer."
(c) It may be observed that under sub-,clause (2) of rule 5 the authority has the option to dispense with the inquiry and to terminate the services of an employee by giving him a reasonable opportunity to show cause against the action. Furthermore, under sub-clause (3) of the above Rule, the authority is also authorised to dispense with providing of a reasonable opportunity to an employee. Whereas rule 6 provides the procedure, which is to be followed by an inquiry officer while holding an inquiry agates an employee.
In or view the aforesaid first contention of the learned counsel for the petitioner is devoid of any force for the reason that the petitioner has not filed any document to support his contention that the respondent No, 2 after the receipt of his aforesaid reply dated 13th August, 1979/22nd September, 1979 were satisfied with his explanation. As a matter of fact the respondent No, 2 have emphatically denied the petitioner's aforesaid averment in their comments to the above petition.
Furthermore, the Inquiry Officer served a notice on the petitioner on 29th September, 1979, calling upon the petitioner to appear before him in connection with the charges disclosed in the aforesaid show-cause notice dated 31st May, 1979. The fact that the petitioner received a notice for his appearance before the Inquiry Officer within a few weeks from the date of the petitioner's above reply indicates that in fact the respondents No, 2 were not satisfied with the explanation submitted by him. There is also no merit in the contention of the learned counsel for the petitioner that the respondent No, 2 could not have pressed into service the aforesaid rule 6 of the Rules. Upon the receipt of the petitioner's reply to the aforesaid show-cause notice the respondent No, 2 were entitled to decide, whether an inquiry was to be held or not. The very fact that the respondent No, 2 appointed an inquiry officer indicates that they decided to hold an inquiry in preference to terminating the petitioner's services without holding an inquiry. Since under the Rules the inquiry was to be held in terms of rule 6, it cannot be urged that the aforesaid rule could not have been pressed into service. In or view the invoking of the above rule was to the petitioner's advantage and not to his detriment, and, 41 therefore, he cannot have any grievance justiceable.
(d) Reverting to the second contention, that the impugned action was mala fide and was prompted at the behest of the respondent No, 3, it may be observed that the learned counsel for the petitioner has invited or attention to the averments made in the petition in this regard. In the petition it has been averred that the petitioner was working in the capacity of the Development Officer of the respondent No, 2 in the year 1967, when he was deputed to preside a meeting of the Mirpur Union Council No, 30, which was to consider a vote of no-confidence against the chairman of the aforesaid union. It has been further averred that one of the movers of the above motion was the respondent No, 3, who was then a member of the Basic Democracy of said Union Council. It has also been averred that the aforesaid meeting of the said Union Council was held on 28th October, 1967 and a secret ballot was conducted and according to which 11 votes were cast in favour of the motion, out of which the petitioner as the presiding officer declared two votes invalid, and because of that the motion could not be carried for want of 2/3rd majority. It has further been averred that the respondent No, 3 and his colleagues, who wanted the motion to be carried were not satisfied with the decision of the petitioner, and therefore, they resented and resorted to violence which incident was reported by the petitioner to the police and a case under section 353, P. P. C. Was registered. It may be pertinent to observe that the respondent No, 2 in their aforesaid comments dated 2nd August, 1980 submitted in response to the Court order dated 25th June, 1980 have emphatically denied the aforesaid allegation of mala fide. It has been pointed out in the said comments that the respondent No, 3 has no ill-will or grudge against the petitioner and neither he was elected a member of the Corporation nor he was mayor of the respondent No, 3 when the petitioner was served with the aforesaid show-cause notice dated 31st May, 1979. It has been further averred that though petitioner had failed to give a reply to the aforesaid show-cause notice on 3rd June, 1979, it was considered proper to serve him with a charge-sheet and to hold an inquiry. Accordingly a charge-sheet dated 30th August, 1979 was issued and served upon him and an Inquiry officer was appointed to look into the charges levelled against him. The fact that the show-cause notice was issued containing the aforesaid allegation of misconduct on the part of the petitioner, when the respondent No, 3 was not even elected as a member of the respondent No, 2 belies the petitioner's allegation of mala fide. Furthermore, the charge mentioned in the aforesaid show-cause notice as pointed out hereinabove was, that the petitioner was engaged in a private employment while in service of the respondent No,
2. We have perused the inquiry report and the evidence recorded by the inquiry officer. From the report as well as from the evidence it is evident that the above charge has been proved not only by oral testimony but by the documentary evidence. The inquiry officer had examined Mr. Allah Ali Khan Afridi, Industrial Relations Advisor to Pak Arab Refinery Ltd. who had produced the petitioner's application form and other connected documents for service in the above company, during the petitioner's employment with the respondent No, 2, which indicate that in fact the petitioner had taken a job with the aforesaid company and was working as such while in the employment of the respondent No,
2. We have also noticed that in spite of repeated opportunity the petitioner avoided the participation in the inquiry.
In this view of the matter the allegation of mala fides has no substance.
3. It may be pertinent to observe that it has been consistently held 1 by or Supreme Court and also by this court that an employee of , Corporation cannot seek relief of re-instatement as the relationship ' between a Corporation and its employee is that of a master and servant, particularly in the absence of violation of any statutory rules. In this regard we may refer to the case of Malik and Haq v. Shamshul Islam the case of Chairman, East Pakistan Development Corporation and another v. Rustam Ali and another , the case of Zainul Abidin v. Mu/tan Central Co-operative Bank Ltd., Multan , the case of Abdus Salam Mehta v, Chairman, Water and Power Development Authority and another , the case of Shahid Khalik v. P I A , the case of Lt.-Col. Shujauddin v. Oil ana Development Corporation , the case of Muhammad Astern v. NSC and an unreported judgment1 2 3 4 5 6 7 in the case of S. Atlqal Hussain Naqvi and others v. Chief Officer, K. M. C. And another given on 21st November, 1978 In Constitutional Petition No, 1155/78, to which one of us was a party.
Since the petitioner has failed to show that the respondents while passing the suspension order or the dismissal order and the impugned resolution have violated any law or any statutory rule, the impugned orders and resolution cannot be said to have been passed without lawful authority and/or in violation of any law.
In this view of the matter the petition has no merit and therefore, it is dismissed in limine. PLD 1961 SC 531 PLD1966 SC 848 PLD 1966 SC 415 1970 SCM R 40 1971 SC M .-.1 568 1971SCMR 566 PLD 1979 Kar. 246