' QALANDAR ALI KHAN (CHAIRMAN).--- This single order is also directed to dispose of Appeal No,557 of 2009 by Muhammad Salim, Appeal No, 558 of 2009 by Muhammad Khan and Appeal No,608 of 2009 - by Inam-ur-Rehman, because in all the four appeals common questions of law and facts are involved.
2. The appellant, Gul Shehzad, and the afore-mentioned appellants were Master of Pak.Studies (BPS-17), Master of Urdu (BPS-17), Master of Maths. (BPS-18) and Senior Master of Maths. (BPS-19), respectively. In the Peshawar Public School and College, established by the Provincial Government under the N.-W.F.P. Government Education and Training Institutions Ordinance, 1971 (N.-W.F.P.
Ordinance III of 1971). According to their appeals, the appellants had some reservations regarding management of the affairs of the School by the Principal (respondent No,3), including promotion of the Bursar, namely. Abdul Malik and upgradation of his post to BPS-18, which led to filing of complaint and lodging of Writ Petition, which was still pending in the High Court. Another irritant in the relations between the appellants and respondent No,3 was further extension in service for three years of the latter after his retirement from service, which was also challenged in the High Court, and the Writ Petition, challenging appointment of. The Principal on contract basis, was also still pending in the High Court. The appellants alleged that their concern for the Institution, reflected in their aforesaid steps in accordance with law, infuriated the respondent, who, in sheer desperation, served them with show-cause notice on 13-2-2007, which was duly replied. However, no action was taken on the show-cause notice. Anyhow, in pursuance of decision in the meeting of Board of Governors, the Provincial Inspection Team conducted an inquiry and recommended initiation of departmental proceedings against the appellants. As a result, the appellants were served with charge-sheet and statement of allegations, to which the appellants responded by refuting the allegations. The Authority appointed Mr. Ghulam Jilani, Member, Governor Inspection Team, as Inquiry Officer, who conducted inquiry, as a result of which, the appellants were served with final show-cause notices, to which the appellants also submitted replies: but the Authority, while agreeing with the recommendation of the Inquiry Officer, imposed major penalty of compulsory retirement from service on the appellants vide impugned Notification, dated 31-12-2008. The appellants submitted their departmental appeals, but after getting no response within the statutory period, lodged these appeals, inter alia, on the grounds that the charges against them were false and fabricated and the departmental proceedings were result of personal and mala fide of the respondents; that the inquiry proceedings were conducted in clear violation of the mandatory provisions of the N.-W.F.P. Removal from Service (Special Powers) Ordinance, 2000, as neither statements of the witnesses were recorded in a proper way nor the appellants were allowed to cross-examine the witnesses against them; that nothing was brought on record by the Inquiry Officer against the appellants; that the final show-cause notice contained some more allegations which were not part of the charge-sheet and statement of allegations, which also showed mala fide on the part of the respondents; and that the appellants were never allowed personal hearing nor they were allowed to produce defence in support of their case.
3. The respondents vehemently resisted the appeals, and in their written reply, they questioned the status of the appellants as civil servants, besides defending the inquiry and proceedings against the appellants. The respondents alleged that the inquiry proceedings were conducted in accordance with law/rules and ample opportunity was provided to the appellants for cross- examining the witnesses and also recording their evidence in rebuttal. The respondents further alleged that the appellants were also provided opportunity of personal hearing, whereafter, verdict was given by the Authority. The respondents maintained that the appellants were confronted with the relevant documents, and the penalty was imposed after proper and legal proceedings.
4. The appellants also filed replications/rejoinders to the written reply/comments of the respondents, wherein, they reiterated their case and defended their act of lodging appeals in the Service Tribunal in the light of legal provisions as well as pronouncements of the superior courts.
5. Arguments of the learned counsel for the appellants, learned Additional Advocate-General and counsel for respondents heard and record perused.
6. Before entering into discussion on merits of the appeals, it seems appropriate to deal with the issue pertaining to jurisdiction of the Tribunal, which is, indeed, the preliminary objection raised by the respondents and, probably, the most forceful objection during the course of arguments on behalf of the respondents. In their written reply, the respondents raised the plea that the appellants were not civil servants within the meaning of clause (b) of subsection (1) of section 2 of the N.- W.F.P. Civil Servants Act, 1973, hence they could not file appeals under section 4 of the N.-W.F.P.
Service Tribunals Act, 1974.
7. The Peshawar Public School and College is a Statutory Body, as the same has been established by the Provincial Government under the N.-W.F.P. Government Education and Training Institutions Ordinance, 1971 (N.-W.F.P. Ordinance III of 1971). The application of North-West Frontier Province Removal from Service (Special Powers) Ordinance, 2000 (hereinafter referred as the Ordinance) also extends to a person in Corporation who has been defined in section 2(d) as a person in the employment of a corporation, corporate body authority, statutory body or other organization or institutions set up, established, owned, managed or controlled by Government (Government of North-West Frontier Province) by or under any law for the time being in force, or a body or organization in which Government has a controlling share or interest and includes the Chairman and the Managing Director, and the holder of any other office therein. Section 10 of the Ordinance provides for tiling of appeal by any person aggrieved by any final order under the Ordinance.
Moreover, in section 11 of the Ordinance over-riding effect has been given to the Ordinance. In such a situation, when the appellants were proceeded against under the Ordinance, they had no other choice but to lodge appeals in the Tribunal under section 4 of the N.-W.F.P. Service Tribunals Act, 1974 read with section 10 of the Ordinance, 2000.
8. The respondents, however, questioned the jurisdiction of the Tribunal on the ground that conditions of service of the appellants were not regulated by Statute and were, rather, regulated by internal rules/regulations. Therefore, according to learned counsel for the respondents, the Service Tribunal had no jurisdiction in the light of Muhammad Mubeen-us-Salam and others v. Federation of Pakistan's case reported as PLD 2006 SC 602 and 2007 PLC (C.S.) 1046 (Karachi High Court). It may be observed here that in the cases mentioned above, section 2-A of the Service Tribunals Act, 1973 was involved, which was partially declared invalid; but it is important to note here that even the same High Court in the case of Syed Aijaz Ahmad Shah v. Federation of Pakistan and others, reported as 2009 PLC (C.S.) 817 (Karachi High Court), held the view that remedy of appeal to the Service Tribunal was available to an aggrieved person under section 10 of the Ordinance, 2000. It may also be added here that this judgment of the Karachi High Court is based on the judgment of the august Supreme Court of Pakistan in the case titled 'Anwar Pervez v. Chairman, Board of Intermediate and Secondary Education, Abbottabad and others reported as 2005 SCMR 1603 (Supreme Court of Pakistan), which was, obviously, in the context of N.-W.F.P. Civil Servants Act, 1973 and N.-W.F.P. Removal from Service (Special Powers) Ordinance, 2000. Likewise, in the case of Professor Dr. Nizakat Begum, Ayub Medical College, Abbottabad v. Government of N.-W.F.P. Through Secretary Health and 2 others reported as 2005 PLC (S.C) 1247 (Supreme Court of Pakistan), the august Supreme Court of Pakistan held the same view by declaring employee of Ayub Medical College and Ayub Teaching Hospital, a C Statutory Body, a "person" within the meaning of N.-W.F.P.
Removal from Service (Special Powers) Ordinance, 2000, and, as such, entitled to remedy under section 10 of the Ordinance before the Service Tribunal of the Province. This Tribunal has also held the same view in the appeal of Mst. Gul Rana v. Frontier Education Foundation through its Managing Director etc. (Appeal No,768 of 2008). In any case, after proceeding against the appellants under the Ordinance, the respondents cannot turn around and say that the appellants could not invoke the jurisdiction of Service Tribunal, though provided for in section 10 of the Ordinance.
9. The appellants not only questioned the legality of the departmental proceedings on the basis of mala fide on the part of respondents, particularly, Principal, Peshawar Public School/College, but also assailed the inquiry proceedings for being in contravention of the relevant law /rules.
10. As regards mala fide, the appellants pointed out that almost all the charges against them related to alleged vilification campaign against the Principal, who, according to the appellants, remained instrumental in the departmental proceedings against them. In support of their this contention, the appellants have placed on record the first show-cause notice dated 13-2-2007 on similar charges, issued to them by the Principal of the School/College, who, in fact was a complainant against them, but, according to appellants, issued the show-cause notice in share desperation without realizing, that he could not do so. The appellants have also placed on file their written reply to this letter/show-cause notice, and alleged that after receipt of the reply, no action was taken on the show-cause notice because the Principal, by then, realized his limitation. The appellants further alleged that the Principal was so desperate in his efforts to get them removed from the College and silence the voices being raised against irregularities and mismanagement in the College that he did not stop there, and prevailed on the Board of Governors, the constitution of which was also defective, and managed to get orders of departmental proceedings against them.
The appellants contended that the charge-sheet and statement of allegations also contained exactly the same allegations which were levelled against them by the Principal in his show-cause notice, and clearly reflected the personal and mala fide of the Principal against them. The appellants further referred to the inquiry report, which, according to them, is loaded with praise of the Principal on the one hand, and condemnations of the appellants on the other, without any proof in support of allegations against them. The learned counsel for the appellants also pointed out that though the so-called complaint, which formed basis for departmental proceedings against the appellants, was also jointly moved by several other staff members, but they were spared and the appellants were singled out because they refused to succumb to the pressure tactics of the Principal.
11. Besides poining out the above instances of mala fide, on the part of the respondents, especially the Principal, the appellant also laid stress on the point that the Inquiry Officer also conducted inquiry proceedings in a manner not admissible under the law/rules, as he not only travelled beyond the scope of inquiry, as laid down in the charge-sheet and statement of allegations, but also converted departmental proceedings against the appellants into fact-finding inquiry, and discussed in detail and recorded finding on matters not relevant to the departmental proceedings.
The inquiry report would, inter alia, show non-recording of statements of the witnesses in the presence of the appellants not providing them the opportunity of cross-examination, not, confronting the appellants with documents purportedly either scribed by them or written on their direction, and, last but not the least, not bringing any evidence on record relating to running of private hostel by a couple of appellants or other allegations of holding meetings, indulging in character assassination of the Principal and instigating the students to the detriment of the Institution. It is clearly borne out of the inquiry report that the procedure for inquiry was not adopted, as, instead of recording statements, the Inquiry Officer conducted interviews of the appellants, witnesses against the appellants and Principal, the complainant, in privacy, and also received documents against the appellants, produced. By the Principal, in the absence of the appellants, without providing them the opportunity of rebuttal and defence. To say the least, the inquiry proceedings were not conducted according to requirements of law/rules, and if authorities are needed, one can readily refer to 2000 PLC (C.S.) 857 (Federal Service Tribunal), 1997 PLC (C.S.)
396 (Peshawar High Court) and 1999 PLC (C.S.) 1332 (Federal Service Tribunal). It is also clear from the record that the 'Authority' did not provide the opportunity of personal hearing to the appellants, and a letter for personal hearing was dispatched to the appellants after more than three months of the order with regard to their compulsory retirement from service and that, too, in connection with their departmental appeals. Moreover, the final show-cause notice also contained certain other allegations which were not part of the charge-sheet and statement of allegations. In order to determine the validity of the inquiry report, it would suffice to refer to the recommendations, wherein, besides suggesting imposition of major penalty on the appellants, the Inquiry Officer has vehemently pleaded the case of the Principal for extension in his service upto his attaining the age of 65 years and also the case of Bursar, Mr. Abdul Malik, for the grant of upgradation to him in BPS-
18. All the above facts would go a long way to render the departmental proceedings against the appellants nullity in the eyes of law, and liable to be set aside.
12. While finding it difficult to defend the defective departmental proceedings, the learned counsel for the respondents referred to certain parts of the inquiry report and some documents made part of the inquiry report, and argued that the Tribunal may take notice of the conduct of the appellants, involvement of some of them even in immoral activities, and the letters, which they never disowned, whereby, they tarnished the image of the Principal and the Institution in the eyes of the staff of the School/College, students of the Institution and also the general public by indulging in activities not commensurate with their status, unbecoming on the part of the senior staff members, and clearly detrimental to an educational institution. To meet this contention of the learned counsel for the respondents, the learned counsel for the appellants pointed out that the complaints/applications against the Principal, if any, were not without reason, as irregularities/mismanagement in the College were destroying the educational environment of the Institution, and that moving such complaints/applications to the higher authorities and bringing to their notice problems being faced by the Institution would not amount to misconduct on the part of the appellants in view of 2007 PLC (C.S.) 222. The learned counsel for the appellants maintained that the complaints/applications were found based on facts in the inquiry conducted by the Government; but the Principal was again able to prevail on the authorities who just administered 'warning' to the Principal despite proof of serious irregularities/ illegalities against him. Needless to say that there would possibly be nothing to prevent the department/authorities to proceed against an employee whenever it feels that such an employee has indulged in misconduct and corruption.
However, it may not be out of place to point out here that after leaving of the College by the Principal, most of the charges against the appellants have also become redundant. Nevertheless, the authorities are well within their right to proceed against the appellants or any other employee if there are reasons to believe that his/her conduct is not conducive for educational environment of the School/College, while keeping sanctity of the Institution above all other considerations.
13. With the above observations, the appeals are accepted, and, while, setting aside the impugned orders of their compulsory retirement from service, the appellants are reinstated in service with all consequential benefits. No order as to costs.