' SHAHID ANWAR BAJWA, J.--- Factual context of this petition is that petitioner joined employment of respondent No,2, Pakistan Steel as Manager in 1987. He was issued three Statements of Allegations dated June 7, 2001, June 11; 2001 and another statement dated June 7, 2001. In consequence of first statement the petitioner was dismissed from service vide letter dated -October 19, 2001. However upon his representation, vide letter dated 13-2-2002 he was demoted from the position Manager to Deputy Manager; in respect of second Statement of Allegations he was demoted from the position of Deputy Manager to Assistant Manager vide letter dated 20th August, 2002 and on third Statement of Allegations, he was removed from employment vide letter dated 21st August, 2002.
The petitioner being aggrieved by this letter approached the Federal Service Tribunal with three different appeals. All the three appeals were allowed by the Federal Service Tribunal and it was ordered by the Federal Service Tribunal that the petitioner be reinstated in service as Deputy General Manager with all consequential back benefits. This order of Service Tribunal dated 7-3- 2006 was assailed before the Supreme Court. The petition was still pending before the Supreme Court when judgment Muhammad Mubeen-us-Salam's case was pronounced and vide order dated 11-8-2006 passed by the Supreme Court the petition was held to have abated. In terms of pronouncement by the Supreme Court in Muhammad Mubeen-us-Salam and another v.
Federation of Pakistan and others PLD 2006 SC 602. This Constitutional Petition was filed on 17-4- 2007.
2. Learned counsel for the petitioner made the following submissions:-
(1) Even if factual aspect of all the charges on all the three Statements of Allegations are admitted as true the petitioner cannot be held to be guilty of any misconduct. Therefore all the three impugned orders of punishment are without any authority.
(2) Petitioner has been singled out and no other person allegedly involved in the proceedings has been proceeded against much less punished.
(3) The petitioner joined as Manager therefore in any case he could not be demoted to any position below that of a Manager.
(4) Petitioner was a Deputy General Manager and no order of his demotion from the Deputy General Manager from any other position has been ordered. Status of petitioner as Deputy General Manager has been up-held by the Federal Service Tribunal and judgment of the Federal Service Tribunal has been upheld by the Supreme Court. The petitioner was paid as Deputy General Manager till his first order of dismissal.
(5) The petitioner was Deputy General Manager which is a post equivalent to Grade-19. The competent authority under the Removal from Service (Special Powers) Ordinance, 2002 is the Chairman and therefore action against hum by the General Manager (Administration and Personal) is without lawful authority.
(6) The inquiry against the petitioner is defective; firstly it is not within the mandatory period of 25 days as prescribed in Section 5 of the RSO and secondly no recommendation was made by the Inquiry Officer in respect of any punishment which it was essential for him to do.
3. Learned counsel for the respondent establishment made the following contentions:---
(1) Pakistan Steel does not have any statutory rules and therefore, the petition is not maintainable in view of dicta laid down by the Supreme Court in the case of Pakistan International Airliines Corporation v. Tanweer-ur-Rehman PLD 2010 SC 676. Learned counsel in this regard also relied upon Allama Iqbal Open University v. Dr. Tufail Hashmi 2010 SCMR 1484=2010 PLC (C.S.) 1125.
Learned counsel extensively read from judgment of this Court in Shahid Mehmood Usmani v. HBFC and others (C.P. No,D-2507 of 2009 and 22 others) and contended that the judgment is per incuriam and should not be followed. He relied upon PLD 2009 Kar.
176.
(2) In terms of judgment in the case of Muhammad Mubeen-usSalam's case (supra) period of 90 days for filing this petition was prescribed and this petition having been filed on 17-4-2007 is not maintainable.
(3) High Court could not resolve factual controversies in exercise of Constitutional jurisdiction.
(4) Petitioner has not been able to demonstrate any violation of RSO that has taken place.
(5) On merits learned counsel submitted that petitioner has committed acts of misconduct and has been rightly punished.
4. Both the learned counsel submitted written synopses of arguments. We have considered the submissions made by learned counsel and have also gone through the record as well as synopsis and the case law cited at the bar.
5. We will first take up question/objection regarding maintainability of the petition. Learned counsel for the respondent-Corporation submitted that in Muhammad Mubeen-us-Salam's case a period of three months was allowed for a party to approach such forum as may be available to it under the law. Muhammad Mubeen-us-Salam's judgment was announced on 27-6-2007. It was contended that this petition was filed on 17-4-2007 and was therefore hit by laches. It is true that in Muhammad Mubeen-us-Salam and another v. Federation of Pakistan and others, PLD 2006 SC 602 in Para 109(c) following was laid down by the Supreme Court:--- "109(c) The cases or proceedings which are not protected or covered by this judgment shall be deemed to have abated and the aggrieved person may approach the competent forums for redressal of their grievances within a period of 90 days and the bar of limitation provided by the respective laws, shall not operate against them till the expiry of stipulated period."
6. This Constitutional Petition was filed on 17-4-2007. Therefore it was contended by the learned counsel that it was barred by laches. We think argument of the learned counsel is misconceived.
Facts of the present case are that after judgment was passed by the Federal Service Tribunal petition was filed by the Steel Mill before the Supreme Court. It was petition of the present respondents which stood abated and in terms of judgment in the case Muhammad Idrees v.
Agricultural Development Bank of Pakistan and others PLD 2007 SC 681 not only did the petition in the Supreme Court abate but also judgment of the Federal Service Tribunal stood nullified.
However Para 14(a) of the judgment of the Supreme Court in Muhammad Idrees's case must be noticed:-- "14. This Court accordingly finds and directs as follows:---
(a) The cases noted at Serial Nos.89 to 1914 stand abated with the result that the proceedings and judgments rendered by the learned Federal Service Tribunal also stand nullified. The affected/aggrieved parties are allowed a further period of 90 days to have recourse to the available remedies."
7. Reading of Muhammad Mubeen-us-Salam and Muhammad Idrees cases together indicates the position in respect of time. Frame for approaching this Court is as under:---
(1) Where only appeal was pending before Federal Service Tribunal and it had not been decided by the Federal Service Tribunal period would be 90 days starting from 27-6-2006.
(2) Where after judgment of the Federal Service Tribunal matter was taken to the Supreme Court, the period of limitation would be 90 days from the judgment in Muhammad Idrees's case which judgment came on 26/27-10-2007. Therefore the contention of the learned counsel for the respondent is misconceived.
8. Learned counsel for the respondents referred to Tanweer-ur-Rehman's and Dr. Tufail Hashmi's cases (supra) and submitted that since Pakistan Steel does not have statutory rules the writ petition is not maintainable. Learned counsel referred to a judgment of this Court by a Division Bench of which one of us (Shahid Anwar Bajwa, J) was a member in which it has been held that where action has been taken under RSO, writ petition would be maintainable and stated that this judgment is per incuriam and in this regard learned counsel relied upon Syed Tahir Hussain Mahmoodi and 7 others v. Tayyab and 9 others, PLD 2009 Kar.
176. Learned counsel referred to the following observations:--- "(10) As regards the question of repetition of error is concerned, there is always room for correction.
The law of precedent does not bind a Judge to repeat his mistakes. A Judge, who is supposed to be open to advice, can always be persuaded to reconsider his previous decisions in the light of correct position of law and dictates of justice. Instances are not lacking where the superior courts, including the Supreme Court, have revisited and changed their previous decisions. If his lordship had not considered the law laid down by the Supreme Court at the time of passing the previous order, he can very well be persuaded to consider the same at the time of deciding the application in the present case and his previous decision, if per incurium, will not be binding upon him."
9. There is no cavil with the proposition laid down by the Full Bench of this Court. However, all the points have been considered by this Court in Shahid Mehmood Usmani v. HBFC and others (C.P.
No,D-2507 of 2009 and others) case and a judgment has been recorded by a Division Bench holding that if action is taken against an employee under the Removal from Service (Special Powers) Ordinance, 2000, which is a Federal statute, then such employee would be entitled to maintain Constitutional Petition. Learned counsel has failed to point out any non-reading of any part of Tanweer-ur-Rehman and Dr. Tufail Hashmi's case. The objection of the learned counsel is misconceived on this score also. Even otherwise a Division Bench judgment of this Court in Shahid Mehmood Usmani's case (supra) is binding on this bench, in view of the dicta laid down by the honourable Supreme Court in Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362.
10. Before we take up the contentions advanced by the learned counsel for the petitioner regarding allegations etc. One aspect may be attend to here: whether at the time when first penalty was imposed upon the petitioner he was Deputy General Manager or whether he was a Manager. On 21-7-1992 the petitioner was reverted from the post of Deputy General Manager to the post of Manager. Such order of reversion he challenged before the Federal Service Tribunal in Service Appeal No,45-K of 1999. In the order of the Federal Service Tribunal, the relevant part of the demotion order is produced and it is as under:--- "After a detailed examination in the DPC meeting held on 4th July, 1992, it was found that you were promoted contrary to the provisions of Pakistan Steel Officers Service Rules. Therefore, you have been reverted as Manager as your promotion was irregular."
11. The Federal Service Tribunal vide judgment dated 16-11-2001 accepted appeal of the petitioner.
Operative part of the order or Federal Service Tribunal reads as under:--- "Accordingly we, while allowing the appeals in hand, set aside the impugned orders dated 21-7- 1992 and direct the respondents to restore the appellants to their original positions which they were enjoying at the time of passing of reversion order with all back benefits within three months of the passing of this judgment. The respondents are however, at liberty to proceed with the cases of the appellants, if they are so advised within the canons of natural justice."
12. Being aggrieved by the Order of the Federal Service Tribunal civil petition for leave to appeal was filed by the respondent Steel Mill before the honourable Supreme Court Civil Appeal No,56-K of 2002 was dismissed by the Supreme Court vide judgment dated 26-6-2002 and order of the Service Tribunal was maintained. The respondent Steel Mill did not stop there. They filed a Review Application. Review Application was .Also dismissed vide order dated 2-12-2002. Nothing has been placed on record by the respondent-Corporation to demonstrate that the petitioner was proceeded against in terms of the option given by the Federal Service Tribunal in its order dated 16-11-2001. Therefore it appears to be beyond any shadow of controversy that on the date when the present petitioner was proceeded against with Statement of Allegations and their consequent actions challenged in this petition, he was working as Deputy General Manager.
13. As stated above in connection with the first Statement of Allegations the petitioner was first dismissed from service and thereafter, on his departmental appeal, dismissal was converted into demotion from Manager to Deputy Manager. Such order of demotion cannot be sustained for two reasons: firstly on the day this order was passed the petitioner was not Manager but was Deputy General Manager and secondly petitioner entered the employment of Steel Mill as Manager and therefore it was not available to the respondent-Corporation to demote the petitioner to a position lower than the one on which the petitioner joined employment of the respondent-Corporation.
Same would be the position of reversion order passed in consequence of second Statement of Allegations by which reversion order the petitioner was reverted from Deputy Manager to Assistant Manager. Consequently both the reversion orders cannot be sustained and they are consequently set aside. It would be an exercise in futility to allow fresh opportunity of deciding minor penalty because the petitioner has attained age of superannuation.
14. This leaves us with the third Statement of Allegations. The entire Statement of Allegations with material part is in the following words:--- "That you having not brought to the notice of the Competent Authority about ban on recruitment in Pakistan Steel and non-availability of vacancies failed to safeguard the interest of Pakistan Steel committed breach of trust and blatant irregularities to get Mr. Abdul Shakoor Dahar appointed as Junior Officer on extraneous grounds in violation of rules. That your above act is prejudicial to good service discipline and unbecoming of an officer and gentleman."
15. At page 63 of the inquiry proceedings there is a letter written to the Chairman Pakistan Steel by Private Secretary_to the Senior Minister. Letter is dated 27-11-1989. The entire letter contained the following words:--- "Begum Nusrat Bhutto has received the enclosed application which I have been directed to forward to you for necessary action."
16. On the application which is available at page 65, of the inquiry proceedings the Senior Minister appears to have written in her own handwriting "Chairman Steel Mill: appoint him." The Chairman Steel Mill sent it to the Director (P.S) with the words "please appoint". At page 63 there is nothing of the entire hierarchy ordering quick action. At pages 17 to 21 which is the noting part there is clear direction: Appoint as per order of Chairman and inform MOP. At page 21 there is assessment by department committee. In the above context of such an assessment appears to be one of the worst example of perfunctionary exercise of bureaucratic do nothings.
17. The only ground urged by the learned counsel for the respondent was that it was General Manager (A&P) who was to be member of the Selection Committee and the petitioner sat on the selection committee. Why did two other members not object to it and when such recommendation was put up it went through entire hierarchy. There is even a note on it "seen by the Chairman issue appointment letter as already directed by the Chairman as Senior Minister informed P.S. To Minister". In the presence of all these pieces of evidence can the petitioner be held guilty of any misconduct. And what is the misconduct. It is stated in the Statement of Allegations that there was ban on recruitment during this period. The Minister did not know of the ban; the Chairman did not know of the ban; Director (A&P) did not know of it; Director (P.S.) did not know of it. In the presence of such an ignoramus bunch of seniors, the learned counsel for the respondent-Mill wants us to believe that only a piddly little Manager should have informed every one that there was a ban. Even if there was a ban it was duty of the hierarchy to enforce it. Moreover even if there was a ban it was not a ban imposed by statute it was a ban imposed by the government and it was Minister and the Ministry who caused such appointment.
18. Misconduct has been defined in section 2(b) of the Removal from Service (Special Powers)
Ordinance, 2000. The definition is in the following words:--- "2(b) "misconduct" includes conduct prejudicial to good order or service discipline or conduct unbecoming of an officer and a gentleman or involvement or participation for gain either directly or indirectly in industry, trade or speculative transactions or abuse or misuse of the official position to gain undue advantage or assumption of financial or other obligations to private institutions or persons such as may cause embarrassment in the performance of official duties or functions."
19. A reading of the above definition indicates that misconduct includes:---
(a) acts prejudicial to good order or service discipline
(b) acts unbecoming of an officer and a gentleman
(c) involvement or participation for gain either directly or indirectly in industry
(d) abuse or misuse of the official position to gain undue advantage
(e) assumption of financial or other obligations to private institutions or persons such as may cause embarrassm ent in the performance of official duties or functions.
20. We are unable to see as to under which of the above would non-pointing out of ban fall so as to hold the petitioner condemnable to the equivalent of capital punishment in employment matters.
21. Mr. Khalid Imran vehemently argued by relying upon Abid Hussain v. Chairman, Nescom, Islamabad and another 2009 PLC (C.S.) 7n1, Messrs Hakim and Sons Chemicals v. Registrar of Trade Marks, 1998 PLC 122, General Manager Pearl Continental Hotel, The Mall, Lahore/Rawalpindi v. Farhat Iqbal PLD 2003 SC 952, Karachi Shipyard and Engineering Works Limited v. Abdul Ghaffar and 2 others 1993 SCMR 511 in support of his contention that in Constitutional jurisdiction the Court cannot substitute its findings arrived at by the departmental authorities and it does not sit in appeal or revision or orders of departmental authority.
22. There is no cavil with any of these authorities or any of the propositions. However, if order passed by any of the departmental authorities is patently in violation of the law, this High Court can always step-in to correct such mis-exercise of power. The question in this petition is not a factual question. Facts are not at all in dispute. The petitioner has not challenged any of the factual aspects. What the petitioner has challenged is that even if whatsoever is stated in the third Statement of Allegations is taken as gospel truth it does not constitute misconduct and the petitioner was not responsible for recruitment as the decision was made by the authorities who resided in stratosphere, at least, as far as the petitioner is concerned.
23. The petitioner attained the age of superannuation on 3-12-2005. Therefore, result of the above discussion is that letters of reversion are set aside and the petitioner is declared to have remained as Deputy General Manager all along. As far as letter of removal from service dated 21-8-2002 is concerned, it is set aside and the petitioner is ordered to be reinstated in service as Deputy General Manager with all consequential benefits. However, since the petitioner attained the age of superannuation he shall be deemed to be in service till 3-12-2005 and shall be entitled to back- benefits till 3-12-2005 and thereafter he shall stand retired on that date and shall be entitled to all the retirement benefits in accordance with the rules of the Organization.
24. In view of our above findings we do not think it would be necessary to decide other submissions made by the learned counsel for the petitioner. This Constitutional Petition is disposed of in the above terms.