' ATIR MAHMOOD, J.--- Through this constitutional writ petition, the petitioner has called in question the legality of order dated 10-8-1993 whereby the penalty of removal from service has been imposed upon him. He has also challenged the orders dated 30-10-1993 and 5-12-1998 dismissing his appeal and review petition by Executive Director (Per.) and Chairman ZTBL respectively.
2. The cause of action as given in the instant petition is that the petitioner Abdul Majeed Sheikh was employed in the respondent bank (Zarai Taraqiati Bank Limited) in the year 1969 and is now posted as Mobile Credit Officer/Assistant Director, ADBP, Bahawalnagar. On 15-10-1992, an F.I.R. No,36/92 for the offences under section 161, P.P.C. And section 5(2) PCA 1947 was lodged against the petitioner with the Police Station FIA, Bahawalnagar. A charge sheet dated 26/28-7-1992 was issued to the petitioner containing the allegations mentioned in the F.I.R. That the petitioner got illegal gratification of Rs,1500 while recommending input loan of Rs,18360 to Muhammad Hanif son of Dilawar in the presence of Messrs Muhammad Fazal son of Muhammad Ali and Allah Bakhsh son of Pir Bakhsh. It was also alleged that the petitioner demanded further Rs,1000/- as bribe from said Muhammad Hanif at the time of payment of loan. Muhammad Hanif lodged a complaint/F.I.R.
No,10/92 with Anti-Corruption Department Bahawalnagar and handed over Rs,1000 to the petitioner which were recovered from the petitioner by the raiding party. The petitioner filed reply to the charge sheet denying allegations levelled against him. He took plea that Muhammad Hanif was defaulter of Rs,1004 in loan case No,054981 for the purchase of Spray Machine. The petitioner asked the petitioner to deposit the said amount to which Muhammad Hanif agreed. Accordingly, I.O.
Receipt No,6 was prepared and issued on 13-7-1992 but Muhammad Hanif showed his inability to pay the defaulted amount and requested the petitioner to pay the same on his behalf to be returned to the petitioner shortly. Accordingly, the petitioner deposited the amount of Rs,1004 on the insistence of Muhammad Hanif on his behalf on 13-7-1992, recommended his case for sanction of loan on 14-7-1992 which was sanctioned on 15-7-1992 by Manager ADBP. Bahawalnagar. After completing the codal formalities, the payment was released on 18-7-1992 and credited in the account of Muhammad Hanif. Meanwhile, Muhammad Hanif paid Rs,1004 to the petitioner and also arranged raid upon him. The petitioner also stated' in the reply that one of alleged eyewitnesses namely Muhammad Fazal in his affidavit dated 28-7-1992 has categorically denied the allegations levelled against the petitioner whereas the other witness of F.I.R., i,e, Allah Baldish is closely related to Muhammad Hanif complainant and has personal grudge against the petitioner as the petitioner did not recommend his case for remission of interest amounting to Rs,40,000.
3. The matter was inquired into by Rana Maqsood Khan, Joint Director, ADBP in the capacity of Inquiry Officer who submitted his report on 5-4-1993 concluding that the allegation of illegal gratification of Rs,1500 against the petitioner could not be proved whereas he remained inconclusive regarding allegation of receiving bribe of Rs,1000 by the petitioner and suggested to wait the decision of Special Judge Anti-Corruption. However, respondent No,2 without waiting for decision and fate of the criminal case terminated the petitioner vide order dated 10-8-1993. The petitioner filed departmental appeal which was rejected vide order dated 30-10-1993. Feeling aggrieved, the petitioner filed a Writ Petition No,2615 of 1993. During the pendency of the writ petition, the petitioner was acquitted vide order dated 21-4-1996 passed by learned Special Judge (Central) Multan. Pursuant to order dated 21-4-1996, the petitioner filed a representation dated 22- 5-1996 which was responded to by respondent-bank that since the writ petition is pending before the High Court, the case of the petitioner will be considered after decision of petitioner's Writ Petition No,2615 of 1993. On 18-3-1998, learned counsel for respondent bank made statement before this Court that the case of the petitioner for his re-instatement into service will be considered by the bank. In light of the statement made on behalf of the respondent bank, the writ petition was disposed of. After receiving no response to petitioner's representation dated 30-3-1998, the petitioner filed another Writ Petition No,4895 of 1998 wherein direction was issued to the respondent bank for decision of the representation of the petitioner vide order dated 7-10-1998. Consequently, the representation of the petitioner was rejected vide order dated 5-12-1998. Feeling dissatisfied, the petitioner filed an appeal before the Federal Service Tribunal under section 4 read with section 2-A of Federal Service Tribunal Act, 1973, which was partly accepted and removal order was converted into compulsory retirement vide order dated 20-2-2002. Thereafter, the petitioner filed a petition before the apex court which was decided on 27-6-2002 and section 2-A of Service Tribunal Act, 1973 was declared ultra vires. The petitioner served a grievance notice upon the respondent bank for redress of his grievance which was not responded to. The petitioner filed a grievance petition before the learned Punjab Labour Court No,8, Bahawalpur for redress of his grievance. In the meantime, the respondents vide letter dated 8-9-2006 replied to the grievance notice that the petitioner was not a workman, therefore, the grievance notice has no force. The petitioner withdrew his grievance petition on 20-9-2006 from the Labour Court and filed the instant petition.
4. Learned counsel for the petitioner inter alia contends that the allegations of receiving illegal gratification were proved to be false in the inquiry report as well as in the proceedings conducted by Special Judge Anti-Corruption, therefore, no penalty could be imposed on the petitioner on account of baseless charges; that after acquittal of the petitioner by the Special Judge Anti- Corruption, the petitioner could not be tried again on the same set of charges and was entitled to be reinstated in service with all back-benefits; that in view of the recommendations of the Inquiry Report, the respondents were obliged to serve show cause notice upon the petitioner giving him opportunity to defend himself but they failed to do so and the petitioner was condemned unheard which is against the principles of natural justice; that the charge sheet is badly barred by time.
Learned counsel avers that the order impugned dated 10-8-1993, 30-10-1993 and 5-12-1998 are illegal and cannot sustain in the eye of law, therefore, this writ petition be allowed and the orders impugned be set aside re-instating the petitioner with all back-benefits. In support of his assertions, learned counsel has relied upon the law laid down in cases titled "Dr. Muhammad Islam v. Government of N.-W.F.P. Through Secretary, Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others (1998 SCMR 1993)", "Superintending Engineer GEPCO, Sialkot v.
Muhammad Yousaf (2007 SCMR 537)", "Muhammad Iqbal Zaman, Vernacular Clerk, Marwat Canal Division, Bannu v. Superintending Engineer, Southern Irrigation Circle, Bannu and 4 others (2000 PLC (C.S.) 331)" and "Dr. Muhammad Islam, Instructor, Animal Husbandry In-Service Training Institute, Daudzai, Peshawar District v. Government of N.-W.F.P. Through Secretary Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others (1998 PLC (C.S.) 1430)."
5. On the other hand, learned counsel for the respondents has vehemently opposed this writ petition mainly on the grounds that the petitioner received illegal gratification of Rs,1000 which was recovered from him during a raid conducted by a Magistrate along with Inspector, Anti-Corruption Bahawalpur; that the petitioner managed to win-over the witnesses of the criminal case due to which he was awarded benefit of doubt and thus acquitted; that the petitioner has already attained the age of superannuation, as such, he cannot be re-instated into service; that the orders passed by the competent authority cannot be challenged in writ jurisdiction being question of facts and prayed for dismissal of the petition.
6. Arguments advanced by learned counsel for the parties have been heard and record perused with their able assistance.
7. The moot points in this case are whether any employee can be imposed penalty on a set of charges from which he has been acquitted from a court of law and whether any employee can be awarded penalty without affording him opportunity of hearing.
8. Specific allegations of taking bribe against the petitioner were levelled in an F.I.R. No,36/92, dated 15-10-1992 wherein the criminal proceedings were initiated before the Special Judge Anti- Corruption. Simultaneously, inquiry proceedings were initiated against the petitioner by the department through Inquiry Officer Rana Maqsood Khan, Joint Director, ADBP who submitted in his report dated 5-4-1993 that the allegation of illegal gratification of Rs,1500 could not be proved.
However, with regard to allegation of taking bribe of Rs,1000, he could not reach any decision and asked for waiting decision by the Special Judge Anti-Corruption who ultimately acquitted the petitioner from the charges levelled against him vide order dated 21-4-1996. In the meanwhile, the petitioner was removed from his service vide order dated 10-8-1993 without affording him opportunity of personal hearing depriving him from the right of defence.
9. It is settled law that acquittal of any person by a competent court from the charges levelled against him will be deemed to be an honourable acquittal meaning thereby that such person has committed no offence. There is no denial that the petitioner has been acquitted from the charges levelled against him by the Special Judge Anti-Corruption. When the petitioner was acquitted from the allegations levelled against him, it was the duty of the competent authority to reinstate him in service forthwith and there was no lawful justification for depriving him from his lawful right of having been reinstated into service. In this regard, I am fortified by the dictums laid down by the Hon'ble Supreme Court of Pakistan laid down in case titled "Superintending Engineer GEPCO, Sialkot v. Muhammad Yousaf (2007 SCMR 537)". Relevant portion is reproduced below:-- "In this behalf it may be noted that in the case of Muhammad Iqbal Zaman, Vernacular Clerk, Marwat Canal Division, Bannu v. Superintending Engineer, Southern Irrigation Circle, Bannu and 4 others 1999 SCMR 2870 identical question came for consideration and this Court considered that acquittal of a civil servant, even if based on benefit of doubt was honourable. Applying same principle we are of the opinion that the respondent who statedly was acquitted by extending him benefit of doubt would be deemed to have acquitted honourably. Therefore, under the circumstances we are of the opinion that the Service Tribunal rightly directed the petitioner to treat him on duty and give him all financial benefits during the period of his confinement in custody on account of his involvement in the murder case."
10. According to Departmental Inquiry Report, charges against the petitioner were not proved and also that the Inquiry Officer suggested for final decision by the Special Judge Anti-Corruption to further proceed in the matter but respondent No,2-Director (E&D), ADBP without adhering to the recommendation of the Inquiry Officer and also without giving opportunity of personal hearing to the petitioner removed him from his service vide order dated 10-8-1993 which shows mala fide on his part. There is nothing on the record to infer that the petitioner was served any show cause notice for personal hearing before imposing major penalty of removal from service. Under the principles of natural justice, none can be condemned without giving him proper opportunity of defence which is missing in this case. In my considered view, the competent authority should have waited for the decision by the competent court before which criminal proceedings were pending and should have acted upon the decision of the court accordingly rather than penalizing the petitioner unheard in haste and in an arbitrary manner. This act of the competent authority lacks support from any law in force in the country.
11. Another aspect of the matter is that in a Writ Petition No,2615 of 1993 filed by the petitioner, learned counsel for the respondent-bank made a statement before this Court that the request of the petitioner for reinstatement into service will be considered by the bank in light of the judgment dated 21-4-1996 passed by the learned Special Judge Anti-Corruption if the writ petition is withdrawn. In this view of the matter Writ Petition was withdrawn by the petitioner vide order dated 18-3-1998 but the respondent-bank did not honour to its commitment shown before the Court and did not decide the representation pending before it. The petitioner instituted another Writ Petition No,4895 of 1998 wherein a direction was issued to the respondent bank to decide the representation of the petitioner vide order dated 7-10-1998. Accordingly, the Chairman ADBP dismissed the representation/review appeal of the petitioner vide order dated 5-12-1998 which is reproduced as under:--- "In compliance with the Orders dated 7-10-1998 of the honourable Lahore High Court, Bahawalpur Bench in Writ Petition No,4895 of 1998, the Chairman, Agricultural Development Bank of Pakistan reconsidered the case of Mr. Abdul Majeed Sheikh, Ea-Assistant Director, ADBP, Bahawalnagar Branch. He was caught red handed by a raiding party for taking bribe. In the departmental proceedings, the charge of corruption was proved against him and he was rightly dismissed from service of the Bank by the competent authority under the ADBP Officers Service (E&D) Regulationi, 1975. His formal appeal has been rejected by the Competent Appellant Authority.
2. The honourable Lahore High Court, Bahawalpur Bench desired to reconsider his appeal in light of the Judgment passed, by the Special Judge (Central), Multan who acquitted him by giving him benefit of doubt.
3. The Chairman thoroughly examined the whole case and was of the firm opinion' that an employee who has been caught red handed for taking bribe cannot be retained in the Bank's service. The Chairman, therefore, rejected his review appeal."
' Bare perusal of the above order clearly reveals that the Chairman did not honour to the statement made by learned counsel for the respondent-bank before this Court in Writ Petition No,2615 of 1993 on 18-3-1998 that the case of the petitioner would be decided in light of the judgment dated 21-4- 1996 passed by the Special Judge Anti-Corruption and dismissed the representation/review appeal of the petitioner merely depending upon the allegations leveled against him without assigning any cogent reason. Therefore, this order being not speaking one does not merit to be sustained in the eyes of law.
12. Regarding contention of learned counsel for the respondent-bank that the petitioner having attained the age of superannuation cannot be reinstated in service, I agree to the contention of the learned counsel to the extent of putting him back in service after reaching the age of superannuation but there is no embargo on rectification of wrong done with him to the extent of award of monetary benefits to him which he is entitled to under the law.
13. In light of what has been stated above, this writ petition is allowed, the impugned orders dated 10-8-1993, 30-10-1993 and 5-12-1998 are set aside. Resultantly, the petitioner will be deemed to be in service from the date of removal of his service, i,e, 5-12-1998, to the date of attaining the age of superannuation and entitled to all the benefits accordingly.
Petition accepted.
2013 F L C (C.S.) 1405 [Peshawar High Court] Before Mian Fasih-ul-Mulk and Musarrat Hilali, JJ Engineer SIDDIQ ULLAH versus GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar and 2 others Writ Petition No,228-P of 2012, decided on 4th June, 2013.
Khyber Pakhtunkhwa Establishment of Information Technology Board Act (XI of 2011)--- ----S. 8---Constitution of Pakistan, Art.199---Constitutional petition--Appointment---Selection process---Re-advertisement of post after completion of selection process---Petitioner had applied for the post in question---Petitioner along with otker candidates was shortlisted and called for test/interview/presentation---After completion of entire process of selection, the petitioner had topped the merit list---Department decided to re-advertise the post in question---Contention was that vested right had accrued to the petitioner, therefore, the department could not re-advertises the post in question---Validity---Plea raised by the petitioner that he had topped the merit list was substantiated by the minutes of selection committee---Entire process of selection had been carried out as per terms and conditions prescribed for the post in question---No allegation was on record to the effect that selection of petitioner was not on merits or it was made in violation of any rules/regulations---No plausible reason had been rendered by the department regarding non-appointment of the petitioner as well as re-advertisement of the post in question-Petitioner had been duly selected, a right had accrued to him for the job---Authorities were directed to appoint the petitioner against the post in question---Constitutional petition was allowed. [p. 14071 A Ijaz Anwar for Petitioner.
Obaid Razaq, A.A.-G. For Respondents. Date of hearing: 4th June, 2013.
' MUSARRAT HILALI, J.--- Through this petition, the petitioner seeks issuance of an appropriate writ directing the respondents to appoint him as Managing Director, Information Technology Board, Khyber Pakhtunkhwa and to declare the re-advertisement of the said post as illegal, unlawful, without lawful authority and of no legal effect.
2. Background of the controversy is that the Government of Khyber Pakhtunkhwa in order to provide for the establishment of Khyber Pakhtunkhwa Information Technology Board for promotion of the Information Technology enabled services and Information Technology enabled education for private sector has notified the Khyber Pakhtunkhwa Establishment of Information Technology Board Act, 2011 (Khyber Pakhtunkhwa Act No,XI of 2011). In pursuance of section 4 of the Act ibid, the Provincial Government constituted Khyber Pakhtunkhwa Information Technology Board vide Notification dated 2-7-2011. Section 8 of the Act empowers the Government to appoint Managing Director on prescribed terms and conditions. Accordingly, the said post was advertised with certain qualification and experience. The petitioner having the requisite qualification and experience also applied for the same. In all 64 candidates applied for the post in question, however, after short listing 3 candidates including the petitioner was found eligible and up to the prescribed criteria, hence they were called for interview and presentation, which was conducted. After completion of entire process, unofficially it came to the knowledge of the petitioner that he has topped the merit list however, to the utter dismay, the post in question was ordered to be re-advertised with changed criteria, which necessitating the filing of this petition.
3. Comments were asked for from respondents 2 and 3, which have been furnished, wherein, it is stated that in all 71 candidates applied for the disputed post and out of them 56 candidates did not fulfill the required eligibility criteria, therefore, their applications were rejected. However, out of the remaining 15 candidates, only three candidates including the petitioner were short listed. The plea taken in the comments is that as more capable candidates have not applied for the post of Managing Director, Information Technology Board, Khyber Pakhtunkhwa, therefore, the said post was ordered to be re-advertised and attractive pay package was also offered to attract competent professionals.
4. The plea of the petitioner is that he has topped the merit list after conducting test and interview by the respondents, therefore, the re-advertisement of the post of Managing Director, Information Technology Board, Khyber Pakhtunkhwa is based on mala fide and of no legal effect.
5. On 8-5-2012, the learned D.A.-G. Sought time to produce minutes of the Selection Committee meeting held on 14-11-2011. Copy of the said minutes is available on file, which transpires that after short listing of three candidates including the petitioner, test/interview/ presentation was conducted for the post of Managing Director, Information Technology Board, Khyber Pakhtunkhwwd under the Chairmanship of Additional Chief Secretary, Khyber Pakhtunkhwa. After carrying of the entire process and on the basis of academic record, higher qualification, experience and interview merit list has been compiled, which reads as under:--- {{TABLE}} S.No.Name of candidateMerit position (i)Eng.Siddiqullah1st (ii)Eng.Arif Aslam Kundi2nd (iii)Eng.Shah Jehan Khattak3rd {{TABLE}}
6. Thus, keeping in consideration the above stated position, the plea raised by the petitioner that he has topped the merit list is substantiated by the minutes of the meeting of Selection Committee produced by the respondents and when the entire process has been carried out as per terms and conditions prescribed for the post in question and when there is no allegation against the petitioner that his selection was not on merits or it was made in violation of any rules/regulations.
Further, no reason much less plausible has been rendered by the respondents regarding the non- appointment of the petitioner as well as re-advertisement of the said post with certain attractive package, then we are of the view that after having been duly selected, a right had accrued to him for the job against the vacancy for which he was selected, which will not go un-noticed, moreso, when the petitioner including two others have participated in the test/interview/ presentation on the package announced in the initial advertisement, then depriving the petitioner of his vested right as well as re-advertisement of the post he applied for with attractive package is an act on the part of respondents, which is not sustainable in law, hence case for issuance a writ is made out.
7. The record also transpires that there is a letter dated 4-11-2011 sent by Managing Director, Pakistan Software Export Board, Ministry of Information Technology and Telecom, Government of Pakistan addressed to Section Officer (ESTT), ST and IT Department, Government of Khyber Pakhtunkhwa Peshawar, wherein, it has been mentioned that as more capable candidates have not applied for the post of Managing Director, IT Board, Khyber Pakhtunkhwa, therefore, recommended the appointment of interim Managing Director and re-advertisement of the post. It is worth mentioning that this letter was issued on 4-11-2011 and a recommendation for re- advertisement was not acceded to. The Selection Committee held its- meeting on 14-11-2011. After considering the academic record, higher qualification, experience and interview/ presentation, the merit list was compiled. In the circumstances, it does not lie in the mouth of respondents that they have acted on the recommendations of Managing Director, Pakistan Software Export Board, Ministry of Information Technology and Telecom, Government of Pakistan vide letter dated 4-11- 2011.
8. As a sequel to the above, this petition is allowed and the respondents are directed to appoint the petitioner against the post of Managing Director, Information Technology Board, Khyber Pakhtunkhwa with immediate effect. Similarly, the re-advertisement dated 23-1-2012 floated by the respondents for filling up the said vacancy is declared illegal, unlawful, without lawful authority and of no legal effect.