1. ' MUHAMMAD NAWAZ ABBASI, C.J.--- This petition under Article 28 of Northern Areas Governance Order, 1994 has been directed against the judgment dated 15-9-2009 rendered by the Chief Court in a writ petition filed by the petitioner questioning the validity of the order of his termination from service by the Karakuram International University Gilgit. We have heard the learned counsel for the parties have disposed of this petition through a short order passed on 15-9-2009 as under:--- "The Late Col. (Rtd.) Arshad Mehmood the then Registrar of Karakaram International University Gilgit petitioner herein was terminated from service by the competent authority. Termination order was challenged by the petitioner before the Chief Court on various ground and Chief Court pending disposal of writ petition, directed the University authorities for providing the findings of Syndicate of the University in the matter. The syndicate after hearing the petitioner upheld the termination order with difference of opinion and in consequence thereto Chief Court dismissed the writ petition with the observation that despite the legal defects and lacunas in the order of termination, the interference of the Court in the matter would not be proper but directed to the University to pay Rs,5 lac to the petitioner Lt.-Col. (Rtd.) Arshad Mehmood as compensation vide judgment dated 26-2-2008 impugned in the present petition.Mr. Muhammad Issa, Senior Advocate on our direction has assisted the Court and we after hearing him as well as the learned counsel for the University, have found that this petition due to the death of petitioner during its pendency stood abated to the extent of relief of reinstatement in service and since the widow of petitioner filed an application for impleadment as party therefore for the purpose of claim of late Lt.-Col. (Rtd.)
2. Arshad Mehmood in respect of his dues in lieu of his salaries during the period of his termination we kept this petition alive for decision on merit. The University on the direction of the Court submitted statement of account (Mark "A") and we also got prepared a. Separate statement of account (Mark "B") from the Budget Officer of the Court. However in view of the difference in the two statements we directed Accountant General NA for submission of the statement of account (Mark "C"). This statement was accepted as correct by the representative of the University as well as Mr. Iftikhar Ahmed real brother of petitioner Lt.-Col. (Retd.) Arshad Mehmood and Mr. Muhammad Issa, Senior Advocate.Having gone through the impugned judgment and perused the record with the assistance of the learned counsel we on coming to the conclusion that the judgment of Chief Court is not sustainable in law are inclined to accept this petition and for the reasons to be recorded later, convert the same into an appeal and by setting aside the impugned judgment allow the appeal with direction to the respondent University to make payment of an amount or Rs,22,12,313 (Twenty two lac twelve thousand three hundred and thirteen rupees only) to the legal heirs/widow of Lt.-Col. (Retd.) Arshad Mehmood as his dues in respect of his salary and allowances for the period from 1-1-2005 to 15-6-2009 within a month under intimation to the Registrar of this Court.
3. ' The Director Finance of the KIU at this stage on behalf of the Registrar and Vice-Chancellor of the University under their instructions has submitted that the University has no funds to arrange the payment of the amount in question therefore a direction may be given to the government for arrangement of payment on behalf of the University. The request being genuine and reasonable, we while keeping in view the financial constraint of University direct the Chief Secretary NA to arrange allocation of funds for the payment of the dues of Lt.-Col. (Retd.) Arshad Mehmood, the then Registrar of the University (as per schedule Mark "C") to his widow/legal heir within the above period of one months."
4. ' The brief facts in the background giving rise to this petition are that the service of Lt.-Col. (Retd.)
5. Arshad Mehmood former Registrar of KIU petitioner here-in was terminated by the Acting Vice- Chancellor of Karakuram University vide order dated 27-10-2005. The petitioner challenged the order of his termination in a writ petition before the Chief Court, Gilgit and during pendency of writ petition, the Chief Court directed the University for placing on record, the opinion of Syndicate on the subject. In pursuance thereof the matter was placed before the Syndicate of the University and Syndicate with difference of opinion affirmed the order of removal of petitioner from the office of Registrar in the following manner:--- "The Syndicate Members heard Mr. Arshad Mahmood, Ex-Registrar KIU in its 14th meeting held on 15th November, 2008. In the wake of some post meeting dissent notes received from some members of the Syndicate, KIU staff who were conducting Exam. On 20 December, 2004 were also called to be heard by the Syndicate in its meeting held on 27th February, 2009 for clarification and to reach a final decision in the case of Mr. Arshad Mahmood, Ex-Registrar which could be presented to the Honourable Chief Court, Northern Areas, as per their advice. Having heard Mr. Arshad Mahmood and KIU staff who were on Exam. Duty on 20th December, 2004, the house reached the conclusion that the decision taken by Syndicate in its meeting held on June 23, 2005 on termination of Ex-Registrar be upheld."
6. ' The Chief. Court on the basis of above opinion of the Syndicate dismissed the writ petition vide judgment dated 26the September, 2008 with the observation as under:--- "The judgment dated 26-9-2008 of this Court may be read as part of this order. In the light of the facts and circumstances of the instant case narrated in our judgment dated 26-9-2008 and keeping into consideration the minutes of meeting dated 15-11-2008, we have come to the conclusion that reinstatement of petitioner in service is not possible at this stage. However, the petitioner is entitled to be compensated with some financial benefit, therefore, the University is directed to arrange payment of Rs,5,00,000 (Rupees five lac) to the petitioner then the same may be arranged by the Chief Secretary Northern Areas. Copy of this order may be sent to the Chief Secretary Northern Areas for information.
7. ' With the above observations, the writ petition stands disposed of accordingly."
8. ' The petitioner being aggrieved of the judgment of the Chief Court filed this petition (C.P.L.A. No,9 of 2009) before this Court and pending disposal of the petition, he died. Consequently the following order was passed on 11-8-2009.
9. "It is stated that Lt.-Col. (Rtd.) Arshad Mehmood petitioner herein has since died, consequently this petition to the extend of relief regarding reinstatement in service has abated. However, the claim in respect of salary etc. Is inheritable and widow of deceased petitioner has sent an application to be impleaded her as party, subject to all just exception, this application is allowed.
10. ' The Registrar of KIU shall appear before this, Court on 18-8-2009 with instruction from Vice- Chancellor regarding the payment of salary and other dues of the deceased to his widow/legal heirs. Mr. Muhammad Issa Advocate will assist the Court in the matter on the next date."
11. ' The Registrar of the University while appearing in person on 7-9-2009 produced a statement of account regarding claim of salaries etc. Of petitioner and consequently the Court proceeded to pass the following order:--- "The Registrar KIU University having placed on record the statement of account in respect of salaries of late Lt.-Col. Arshad Mahmood the then Registrar of KIU from the date of his removal from service to the date of his death amounting to Rs,18,65,799 has stated that the University due to financial constrained and shortage of funds is not in a position to make the payment of the above amount and Chief Secretary Northern Areas may be directed to make payment on behalf of the University.
12. ' Mr. Iftikhar Ahmad brother of Late Lt.-Col. Arshad Mahmood present in Court states that as per his calculation, the amount of salaries comes to more then two millions.
13. ' Mr. Muhammad Issa Advocate representing the widow of late Lt.-Col. Arshad Mahmood states that in addition to the salaries, Lt.-Col. Arshad Mahmood who died during the pending of this petition before this Court would also be entitled to the benefits mentioned in the circular of (Cabinet Division) Government of Pakistan No,7/40/2005-E.2 dated 13th June, 2006.
14. ' This petition to the extent of reinstatement of Lt.-Col. Arshad Mahmood in service already stood abated and is only confined to the extent of payment of salaries as compensation. Therefore, we without commenting on the matter relating to the benefits in terms of Notification referred above would consider only the question of payment of salaries. The statement of account duly agreed will be produce in the Court tomorrow. The brother of late Lt.-Col Arshad Mahmood may approach the concerned quarter in the government of Northern Areas or the Federal Government as the case may be directly as through Vice-Chancellor KIU for the additional benefits in terms of Notification referred above.'
15. ' The petitioner was proceeded against on the basis of following allegation contained in the charge sheet which was send at his home address when he was on Ex-Pakistan leave to Saudi Arabia for Umra:---
(1) The Registrar Col. (R.) Arshad Mehmood Choudhary was caught by the University Examination staff while using unfair means in presence of the students of the University causing irreparable damages to the honour of the University. The enquiry committee in this case has recommended debarment of the officer in the same paper with fine of Rs,600 which is sufficient proof of his involvement in undesirable activities likely to cause widespread defamation to the University.
(2) The contract appointment of the officer has been declared as unjustified under rules in the light of eligibility conditions fixed for the applicants in terms of qualification and experience by the Audit Government of Pakistan whereas the same eligibility standards have been adopted in the case of appointment of Deputy Controller, Deputy Treasurer and Deputy Registrar.
(3) Re-employment of retired army officers of the rank of Lt.-Col. And above is allowed to be made on contract, initially for three years and extendable upto five years, under Government Servants Rules vide ESTACODE Chapter X SL. No,33 Clause 1(ii). The rules for re-employment in respect of Col. (R.) Arshad Mehmood Choudhary as Registrar KIU have not been consulted to, by the selection Board/Syndicate before his selection as Registrar.
(4) The Officer was responsible to ensure transparent sortlisting of the candidates both as head of the establishment and Secretary Selection Board before appointments. A candidate Miss Tehseen Khalid who had no requisite qualification for the post of Lecturer in Zoology, was short listed for interview/selection by the Selection Board, despite her own written declaration submitted along her application for non having the Masters Degree. He should have checked her documents, testimonials and Degrees on the very day of interview, but for reasons known to him he did not do so, and consequently the applicant was selected as lecturer. On revelation of the wrong done on the part of Registrar, her appointment was cancelled vide Letter No,KIU-Estt-2(3)/2004/8238-43 dated 26th December, 2004 by the competent authority. The competent authority is confident that the officer knew all about the affairs and he deliberately misguided the selection board, which is a big violation of appointments rules.
(5) Registration documents of the University Vehicle GLTB 70 under use of the Vice-Chancellor are missing from the disposal of the officer. He was responsible for safeguarding the University assets and secret official documents which he failed to do.
(6) Under some personal grudges with the Resident Engineer, appointee of the consultants (Progressive Consultant Private Limited Lahore) the officer unjustifiably called him for an explanation which resulted resignation of the Resident Engineer. On intervention of the undersigned the matter was temporarily settled. But the case aggravated later on. The consultants discontinued their consultancy that caused 6 months unwanted delay in development work and audit paras, resulting in a loss of amount and time to the University.
16. ' All what is mentioned above is enough to reveal the indifference and disregard on the part of the Officer towards his duty as the custodian of the establishment and common seal of the University .
17. "
18. The examination of record would show that the acting Vice-Chancellor after issue of charge-sheet to the petitioner, without waiting for his reply passed the order of his termination from service on 27-1-2005 as under:- "In exercise of the powers vested in him vide section 12 subsections (1) and (2) of KIU Order, 2002 the undersigned terminates the service of Lt.-Col. (R.) Arshad Mehmood Choudhary Registrar KIU with immediate effect on administrative grounds, owing to his activities causing damage to the honour of the University."
19. ' The representation filed by the petitioner seeking review of the above order was rejected by the Acting Vice-Chancellor vide order dated 4-7-2005 as under:-
(1) In line with the directives of the Chief Court of Northern Areas, Gilgit, dated 12-5-2005, the Vice- Chancellor heard you to your satisfaction, on 19-5-2005 and 20-5-2005. Subsequently, you submitted a file containing copies of documents relating to your verbal statements. The Vice- Chancellor reviewed that file as well as the file that was submitted by d to the Chief Court. The Vice-Chancellor subsequently prepared his review report.
(2) The Honourable Syndicate of the KIU is the apex body as well as the hiring and firing authority of the University. Since the Syndicate was also implicated by you in the case, the Vice-Chancellor thought it fit and fair to send the complete case files as well as his review report to the members of the Syndicate for their perusal. Members were asked to inform the KIU officer if they wished to meet with you in the forthcoming meeting. No one desired to do so.
(3) The Syndicate reviewed the case together with the review comments of the Vice-Chancellor and issued the following decision to the communicated to you: ' After a thorough review of the case files submitted by Lt.-Col. (R.) Arshad Mehmood Choudhary, and the KIU office, as well as the review comments of the Vice-Chancellor the Syndicate feels that:- --
(i) In the first instance, Lt.-Col (R.) Arshad Mehmood Choudhary should have lodged an appeal with the syndicate against the termination order dated 27-1-2005, or with the Chancellor. That was not done.
(ii) There is sufficient evidence of misconduct against Lt.-Col. (R.) Arshad Mehmood Choudhary, specially the case of cheating in the examination which received widespread publicity and defamed the University. It was befitting for a responsible officer of the University to have stepped down when the decision of the Committee, appointed to hear that case, was announced. That did not happen. No appeal was lodged against that decision to the Vice-Chancellor or the Syndicate.
20. That decision, therefore, is upheld.
(iii) The Syndicate, however, was apprised of services during difficult initial years which were noted with appreciation.
21. ' The Syndicate approved the following in the end:---
(a) Lt.-Col (R.) Arshad Mehmood Choudhary, may be granted an honourable exit by asking him to step down in writing from the position of Registrar and the services of Karakurum International University w.e.f, the date of his termination.
(b) If this is done, the Syndicate authorized the Vice-Chancellor, to revoke the termination order issued by the then acting Vice-Chancellor, with effect from the same date.
(c) If, however, Lt.-Col. (R.) Arshad Mehmood Choudhary, did not agree to step down as stated above, the termination order would stand valid."
22. Mr. Muhammad Issa learned Sr. Advocate representing the legal heirs of Late Col. Arshad Mehmood has submitted that Chief Court despite having formed the opinion that order of removal challenged in the writ petition was unlawful dismissed the writ petition with the observation that reinstatement of petitioner would not be in the interest of University. The learned counsel added that learned Judges in the Chief Court due to misconception of law instead of determining the crucial question relating to the validity of order impugned in the writ petition were misled to consider the administrative reason for dismissal of writ petition which was in utter disregard of law and illegal exercise of jurisdiction.
23. ' The learned counsel appearing on behalf of the University on the other hand has opposed this petition firstly on the ground that it may not be proper for this Court to interfere in the judgment of Chief Court rendered in discretionary jurisdiction and secondly, the right of service of the petitioner, was a personal right which would also die with his death and consequently the legal heirs of petitioner have no right to claim payment of his salaries for the period in question.
24. ' The careful examination of the record in the light of the arguments of the learned counsel for both sides would evidently show the inherent defect in the order of removal of petitioner from service which would not be ignored by a person of ordinary prudence.
25. ' This petition undoubtedly to the extent of relief of reinstatement in service on the death of petitioner abated but if the removal order is found by the Court to be illegal and without lawful authority, the relief regarding payment of dues of salaries for the period from the date of termination of service till the date of his death, would be admissible under law as inheritable right of his legal heirs. Consequently the objection of the learned counsel for the petitioner being unfounded in law we proceed to decide this petition on merits for the purpose of determination of claim of payment of salaries for the period in question.
26. ' This is not denied that Acting Vice-Chancellor without waiting for the reply of petitioner to the charge sheet or providing him an opportunity of hearing passed the order of his removal from service. The allegations contained in the charge sheet were based on controversial question of fact which could not be proved without a proper inquiry and providing an adequate opportunity of hearing to the petitioner, with the right of rebuttal through oral or documentary evidence. This is settled law that no presumption of truth can-be attached with disputed question of fact merely on the basis of allegations and perusal of record would show that the University without providing a reasonable opportunity of hearing and permitting the petitioner to produce evidence in rebuttal to the allegations raised such presumption for his removal from service. The mere issue of show- cause notice and charge sheet without supply of material in support thereof and providing a fair opportunity of producing evidence in rebuttal thereto in accordance with law would amount to condemn a person unheard in violation of the principle of natural justice which is considered as an essential part of every statute unless its application is expressly excluded.
27. ' It is evident from the order that petitioner was not provided a fair and proper opportunity of making defence and to explain his position, rather he was proceeded against ex parte on the basis of allegations contained in the charge sheet not served on him personally and thereby an adverse order was passed behind his back. The Acting Vice-Chancellor of the University on the basis of general allegations without any proof or evidence in support thereof, raised presumption of guilt against the petitioner for his removal from service and similarly the Syndicate of the University without attending the legal defect in the order of Acting Vice-Chancellor or providing a fair opportunity to the petitioner to explain his position vis-a-vis the allegations contained in charge sheet expressed an adverse opinion in affirmation of the order of his removal. This is a matter of record that the members of the Syndicate almost in equal ratio differed with the order of termination of petitioner from service but the Syndicate maintained the Order of Acting Vice- Chancellor as policy decision.
28. The Chief Court unfortunately without diluting upon the above legal and factual aspects of case in proper manner and without determining the real question involved in the case in accordance with law dismissed the writ petition in perfunctory manner as a result of which a serious prejudice has been caused to the legitimate right of petitioner to remain in service. There is no cavil to the legal proposition that Courts are not supposed to interfere in the internal affairs and administrative matters of educational institutions, or in the Order passed by such institutions in the public interest but if an Order is passed by a public functionary on the basis of consideration other then public interest which cannot be justified in law, the principle of non-interference of Courts in the domestic affairs of an educational institution may not be as such E attracted in such cases rather the same must be applied subject to the law of natural justice. The public functionaries cannot be allowed to take away the legal rights of people for their personal satisfaction and Courts are under legal and moral duty to protect the rights of the people by undoing the wrong done to the individuals. The Courts must not allow the infringement of a legal and constitutional right of a person in an illegal manner and must guard these rights to maintain the rule of law. The Chief Court in the present case despite having formed the opinion that petitioner was not dealt with fairly and the allegations in the charge sheet against him were not proved beyond reasonable doubt dismissed the writ petition on the basis of administrative consideration of University as policy decision. The Chief Court having not undone the injustice done with the petitioner permitted the illegality to perpetuate and failed to exercise the jurisdiction in accordance with law. The legal defect in the order of university and in the exercise of writ jurisdiction by the Chief Court cannot be ignored by this Court on the consideration that discretionary relief can be refused by the Court in writ petition.
29. This is settled principle of law that the discretion must be exercised in accordance with the policy of law and not for mere reason that discretion may or may not be exercised by the Court.
30. ' In consequence to the foregoing discussion, we declare the order of removal of petitioner from service passed by University is illegal and without lawful authority. The judgment of the Chief Court being suffered from material illegality is not sustainable and is accordingly set aside with declaration that petitioner was entitled to the reinstatement in service with all back benefits.
31. Consequently the dues of the petitioner in respect of salaries as per statement of Accountant Mark 'C' for the period from the date of his dismissal/removal/termination from service till the date of his death will be paid to his widow/legal heirs as per direction given in the short order.
32. ' In the light of the foregoing reasons this petition to the extent of the claim of the petitioner in respect of his salaries etc. For the period referred above succeeds which is converted into an appeal and is allowed in terms of the order dated 15-9-2009, reproduced in the opening part of this judgment with no order as to the costs.