All the above petitions involve common question of law and facts. Therefore, the same are being decided vide this single order.
2. Following prayers have been sought by the petitioners in their respective petitions, which are common in nature:--
(a) Issuance of show-cause notice by Respondent No, 2 on the directions of Respondent No, 1 may be declared as baseless, illegal, mala fide, arbitrary, unjust, unfair, without lawful authority, of no legal effect, violative of principle of natural justice and procedural impropriety.
(b) Directions be issued to respondents not to oust the petitioners from job as a trained employee from their respective place of posting.
(c) The act of respondent not to pay the salary of the petitioners may kindly be declared as illegal, unlawful, without lawful authority, based upon mala fide and ulterior motive.
By declaring so, the orders for ouster of the petitioners may be annulled, consequently, the petitioners be allowed to continue in service.
3. The petitioners were allegedly appointed in the period mentioned against the name of each petitioner as mentioned in Para-15 below.
4. The services of the petitioners were terminated verbally without any reason or notice thereof. On 14.02.2009, the President of Pakistan promulgated Ordinance (herein referred as Sacked Employees (Re-instatement) Ordinance, 2009 and subsequently, Sacked Employees Re-instatement Act, 2010) thereby granting relief to the aggrieved employees of the Government/Autonomous/Semi- Autonomous Bodies. Despite directions by the President of Pakistan regarding reinstatement of employees covered under the Ordinance or the Act, the petitioners approached respondents/Government for the grant of benefits in view of Ordinance' for re-instatement. In this regard, Office Memorandum was issued by Ministry of Law & Justice on 14.05.2010 for taking necessary action in the matter of sacked employees under the Ordinance, 2009. The petitioners were re-instated in service and were ousted w.e.f by virtue of the Act and were posted in their respective departments as shown in Para-15 below. The names of the petitioners still not included in the list of 470-employees of the Department, which were communicated to AGPR for release of their salaries, therefore, writ petitions have been preferred. Some of the petitioners were though reinstated in service and subsequently on divulgence of the fact that their period of induction in service is not covered by the Sacked. Employees Reinstatement Ordinance or Act, therefore, they were served with the show-cause notice to explain their position. Simultaneously, some of the employees appear to have been re inducted in service by following the provisions of Sacked Employees Reinstatement Ordinance or Act, who on the basis of fake or forged documents, got such favourable order, therefore, same too, were served with the show- cause notices to explain their position. Therefore, in all petitions, the petitioners being aggrieved by such initiative taken by departmental authorities, have preferred the instant petitions.
It is necessary to mention here Section 2 of Sacked Employees Reinstatement Ordinance, 2009: Person in corporation service" means a person, who was appointed in a corporation, organization or autonomous or semiautonomous body, established by or under a federal law or owned or controlled by the Federal Government during the period from the 1st day of November, 1993 to the 30th day of November, 1996 (both days inclusive) and was dismissed, removed or terminated from service or given forced golden shake during the period from the 1st day of November, 1996 to the 31st day of December, 1998 (both days inclusive); Similar is the view introduced in the preamble of Act No, XXII of 2010, which reads as under:-- "WHERE'S it is expedient for the purpose of providing relief to persons who were appointed in a corporation service or autonomous or semi-autonomous bodies or in Government service during the period from the 1st day of November, 1993 to the 30th day of November, 1996 (both days inclusive) and were dismissed, removed or terminated from service during the period from the 1st day. of November, 1996 to the 12th day of October, 1999 (both days inclusive)'.
On issuance of notices to respondents, in some of the petitions, they submitted comments and in same petitions, they merely adopted the same comments, which they submitted in the connected petitions.
5. Precisely, they have taken the stance that the petitioners are not falling under the definition of sacked employees as envisaged in Section 2(b) of the Sacked Employees Reinstatement Ordinance and Section F(ii) of Sacked Employees Reinstatement Act, 20f0. They worked on short term basis from certain period specified against each name mentioned in Para-15 below. They almost completed their short term period on 01.10.1996 therefore not falling within the definition of Sacked Employees Reinstatement Ordinance or Act, hence are not entitled for the relief being ineligible and on this basis of fake documents, they manoeuvred their appointment by getting incorporated their names illegally in the list of employees sent to Respondent No, 3 for the purpose of withdrawal of pay and succeeded therein. Therefore, their names were shown on account of misguidance by them. It is also contended that somewhere, they got the names tampered in the record by erasing the name of original and with such manipulation, they succeeded in achieving the order. On disclosure of such fact, they were served with the show-cause notices. It is also objected preliminary that the fact was elaborately dig out by verifying the record from the concerned schools and departments, on the basis whereof, show-cause notices were issued to the petitioners respectively, who instead of facing departmental proceedings, have preferred the writ petitions? which in view of Article 212 of the Constitution, are not maintainable being incompetent, as the matter relates to the disciplinary affairs of civil servants.
6. During pendency of writ petitions, some of the petitioners submitted applications to summon the record from respective offices and reports on the basis whereof from the concerned Department for the reason that departmental authorities are reluctant to provide them their documents, which they are concealing.
7. During pendency of the petitions, most of the petitioners placed other documents on record through separate C.Ms which were taken on record while allowing their such applications. The concerned officer i,e, Mr. Zeeshan Akbar, Deputy Director (Legal), Federal Directorate of Education regularly appearing in Court, was directed to collect all the copies and furnish elaborate report of each petitioner respecting genuineness of the documents submitted and relevancy to the extent of available record with them.
8. To their satisfaction, in pursuance of the orders separately passed, the Deputy Director (Legal), FDE submitted reports separately on the basis whereof, the cases of each petitioners have been separately categorized, details whereof are given below.
9. It is pertinent to point out here that basically, the claims of the petitioners in their respective petitions are on two grounds. One set of petitioners claim their ouster who have not been served with the show-cause notice. Some of the petitioners, after service of show-cause notice, preferred the petitions challenging the very issuance of show-cause notices,
10. As discussed above, the cases of petitioners are basically falling in two categories, show-cause notices served and some have -not been served with the show-cause notices. Moreover, on the request of petitioners, reports to the extent of availability of record and genuineness of the record produced were also called. Consequently, the Deputy Director (Legal), FDE with the assistance of his other officials, brought the entire record respecting services of the petitioners rendered in the respective schools as well as the record available.
11. Learned counsel for the petitioners argued that from the record produced in support of the claim set forth in the petitions and only the date of ouster is lacking, which the respondents have deliberately concealed, otherwise, they are the employees within the definition of Sacked Employees Reinstatement Ordinance or Act, as such, are entitled for the relief claimed in the petitions.
It is argued by the learned counsel for the .petitioners while referring minutes of the meeting of Sub--Committee of the Cabinet on Re-instatement of Sacked Employee dated 27.01.2011, whereby the decision was initiated respecting sacked employees related to Ministry of Education, consequently, directions were issued by the Committee for those employees, who do not strictly fall under the ambit of Act, they may be given fresh appointment without any back benefits considering their cases according to relevant rules and ascertain their genuineness.
12. In the petitions, in which show-cause notices were issued, learned counsel for the petitioners argued that very procedure initiated against the petitioners is ipso facto illegal and the writ jurisdiction, if requires the act of the public functionary if found illegal, such directions could be issued to legalize the same by declaring the same being illegal void ab-initio as required by Article 199 of the Constitution. Learned counsel for those petitioners argued that while following E&D Rules and the procedure laid down therein, it is incumbent upon the departmental authorities to initiate proceedings in accordance with law and the action of issuance of show-cause notice is totally contrary to the procedure as provided by E&D Rules, as such, some being nullity in the eyes of law, is required to be annulled.
13. Learned counsel for the petitioners appearing in W.P. Nos, 4404/2010 & W.P. 58/2011, has drawn my attention to the procedure laid down under Rule 5 of the Government Servant E&D Rules, 1973, which provides that procedure shall be observed, when a government servant is proceeded under the Rules. While referring Rule 5(ii), learned counsel drew my attention towards servant accused of subversion, corruption or misconduct required to be proceeded by the authorized officer on leave or with the approval of the authority suspend him, which in continuation whereof shall require the approval of authority after every three months. Next, he has submitted that authorized officer shall decide in the light of facts or interest of justice, an inquiry should be conducted through an inquiry officer or committee, if so decides the procedure provided by Rule 6 shall be followed. While referring 5(iii), if authorized officer decided not to have an inquiry conducted through an inquiry officer or committee, he shall inform the officer accused of the action proposed to be taken and the grounds of the action by giving him a reasonable opportunity of showing cause against that action, which will have to be communicated by an order in writing.
He has also drawn my attention towards next step to be initiated by the authorized officer, whereby on receipt of the report of inquiry officer or committee, or when no such committee is constituted on receipt of explanation of the accused, authorized officer shall determine whether charge is proved, proposed to impose a minor penalty, such order shall be passed. If it is proposed to impose a major penalty, he shall forward the case to the authority along with the charge and statement of allegations served on the accused and the findings of inquiry officer or the inquiry committee, when his recommendations regarding the penalty to be imposed, there-after, the authority shall pass such appropriate order. Learned counsel argued that procedure has not been properly followed. Show-cause notices have been issued without any material. How the authorized officer knew about the documents being fake/forged, if any inquiry conducted before issuance of show- cause notice is illegal beyond the procedure prescribed by the rules as such, the illegality is, therefore, challenged in view of mala fide conduct, which they exhibited in the show-cause notice to oust the petitioners from service. In support of his contentions, learned counsel for the' petitioners has submitted, following case law:--
(a) PLD 2010 Supreme Court 857
(b) PLD 1969 Supreme Court 14
(c) 2001 SCMR 1581
(d) PLD 2004 SCMR 271
(e) 2005 SCMR 824 (0 2006 SCMR 104
14. As against the arguments advanced by the learned counsel for the petitioners, Mr. Raja Muhammad Abid, learned DAG argued that issuance of show-cause notice is the continuity of disciplinary proceedings, for which, Article 212 of the Constitution provided a very ...clear guideline. forbids the invoking of constitutional jurisdiction by preferring a writ petition and in such circumstances, writ petitions are totally incompetent, but the petitioners will have to follow the entire circle provided by E&D Rules, either right or wrong, whatever the order passed, then on passing the final order, they have to approach proper forum i,e, learned Federal Service Tribunal and they cannot challenge issuance of show-cause notice at this verge merely, because of the technicalities.. He argued that in fact most of the petitioners either not served during such period as provided by Section 2(a) of the Sacked Employees Reinstatement Ordinance, 2009 and Sacked Employees Reinstatement Act, 2010 in its preamble, therefore, they cannot be termed as eligible under the Sacked Employees Reinstatement Ordinance or Act. Hence their claim is based upon vague assertions as well as fake and forged documents. Therefore, for their ill-gotten, they cannot seek relief by invoking writ jurisdiction of this Court. He also referred a principle that nobody is allowed to take benefit of his own misdeeds and these misdeeds are apparent from the facts and are proven by the documents produced by them, as such, their claim cannot be termed as a legal right. He argued that through betrayal, they by perpetuating fraud, which they based upon the forged documents by misrepresentation of facts, succeeded- in getting employment, showing themselves as sacked employees, does not mean that their right has accrued on the principle of locus poenitentia, which otherwise, a incorrect proposition and such doctrine of locus poenitentia would not be applicable, when the claim of the petitioners is based upon fraud and vitiates most solemn proceedings, which if not proveable by direct evidence, but could be inferred from the surrounding circumstance and conduct of parties. In the instant case, is very much apparent from their own conduct and same is proved. In support of his contentions, he has submitted following case law:--
(a) 2007 SCMR 569
(b) 2005 SCMR 907
(d) PLD 1992 Supreme Court 207
(e) 2010 SCMR 1097
(f) 2006 CLC 40
(g) PLD 1975 Supreme Court 331
(h) 2001 SCMR 1493 CO 2004 CLC 174
(j) 2005 SCMR 445
(k) 2005 CLC 713 (1) 1993 PLC (C.S.) 1364 .(rn) PLJ 2002 Lahore 1479
(o) 2006 PLC (C.S.) 1.79
(p) 2004 PLC (S.C.) 198
(q) 1984 CLC 142
(r) 1969 SCMR 154
(s) 2000 SCMR 1017
(t) 2005 CLC 628
(u) 2007 CLC 462
(v) 2004 CLC 304 (Azad J & K)
(w) Order of this Court dated 13.12.2011 passed in W.P. No, 574/2011.
(x) 2009 SCMR 1472
(y) 2004 SCMR 303
(z) 1993 SCMR 413 (aa) 1999 SCMR 1004
14. For just and convenience, the petitioners are being categorized in different categories through their names, designations, induction in service as shown inducted, leaving the service and remarks of verification to ascertain the reality to the extent of their claim urged in their respective petitions are shown below:-- Sr.W.P.NoName DesignationInduction In serviceLeaving the serviceRemarks 1 575/11Mst.Nagina BibiTUGT 28.2.199607.6.1996Not eligible 2 1027/11 M st .
Noureen AkhtarMTT 26.8.199331.05.1999--do-- 3890/11Pir Bux LashariLDC 31.10.199504.9.1996--do-- 4890/11Allah Ditto KhosoMTT J4.11.19951.2.1996 --do-- 5572/11Muhammad ZemanTUGT 22.6.1995 .07.6.1996--do-- 6573/11Ayaz AhmedMTT 18.10.199431.5.1995--do-- 7992/11Mst.
Naheed IgbalMTT 01.1.199409.3.1996--do-- 8891/11Mst.
Mumtaz BegamMTT 14.3.199621.4.1996--do-- 9891/11Abdul QudoosMTT 26.9.199406.6.1996--do-- 10570/11Abdul GhaniTUGT 23.11.199431.5.1995--do-- 111148/11Qadeer Ahmed KhanMTT 26.10.199423.11.1995--do-- 12931/11Mst. Sakina Khoso 'MTT 24.9.1995;07.6.1996--do-- 131330/11Zaheer AhmedMIT 31.10.199327.10.1998--do-- 142255/11Hag Nawaz HajanoAssistant05.9.199630.9.1996--do-- 154404/10Muhammad ManshaNaib Qasid02.4.199512.7.1995--do-- 164404/10Shamsher KhanNaib Qasid10.8.1998---- --do-- 174404/10WajId BashirUDC 03.10.199403.2.1995--do- 184404/10M.Nawaz UDC 31.10.199403.2.1995--do-- 194404/10Aslam HayatNaib Qasid03.12.199524.10.1996--do-- 204404/10Tahira AmberTUGT 06.10.1996---- --do-- 212633/11Mst. Khalida RasheedMTT 11.11.199731.5.1999--do-- 22748/11Naseer AhmedMUTT 22.1.199831.5.1999--do-- 232625/11Syed Akhtar Ali ShahTUGT14.9.199411.9.1996--do-- 243435/11 M st .
Shahbina BashirMTT 30.3.1995 & 16.1.199717.6.1996 & 31.5.1993--do--- 2558/11 Shakila KousarMTT 11.8.199811.11.1998No record 2658/11 Obald-ur- RehmanTUGTNil Nil --do-- 274404/10Rakhshanda JilalLDC 31.10.199631.5.1999--do-- 284404/10Muhammad RazaNaib Qasid---- ---- --do-- 294404/10Muhammad YasinUDC ---- ---- --do-- 304404/10Saijad HussainHead Clerk---- ---- --do-- 314404/10Waqar HussainLDC 02.4.199527.12.1995--do-- 324404/10 Sajjd HssainNaib Qasid---- ---- --do-- 334404/10Muhammad RiazNaib Qasid---- ---- - --do- 344404/10Oari Habib ur RehmanNaib Qasid---- ---- --do-- 354404/10Munawar MasihLDC 03.11.199420.3.1996--do-- 364404/10M Khalil khanLDG ---- -- --do-- 374404/10Irshad Khurram -- -- --do-- 384404/10Shahid HussainNaib Qasid31.10.199403.8.1995 - - d o - - 394404/10Tariq IqbalLDC 31.10.199431.12.1994-do- 404404/10M.Saeed MTT -- --do-- 414404/10Abid HussainNaib Qasid31 .10.1994 -do- 424404/10Habib ur RehmanNaib Qasid-- -do-
16. On scanning record produced before the Court, which in fact was summoned at the request of petitioners to which, it inferred that most of the record is tampered with by erasing the original names, the name of other persons have been pasted over it which apparently leading towards an aspect that forgery with the assistance of lower staff of the Education Department has been committed.
17.Another very important feature brought to light is that there is -no record available, as certified by the concerned Head of respective Schools or educational institutions referenced as their previous place of posting.
18. Surprisingly, a very important feature came to light that though 'record appended with the petitions shows their place of service by naming some educational institutions, but same is not available at the site, therefore, inference could be drawn that such documents are forged for the purpose to get service in education department by using such documents as genuine to get the benefit of Sacked Employees Re-instatement Ordinance or Act.
19. Somewhere, it is reported that posts have been shown. by the petitioners in respective petitions, which they were allegedly enjoying before their reinstatement in service, do not exist at the relevant time. Therefore, again it leads to an aspect that forged documents were prepared for such ill achievements.
20. It is also pointed out that some of the petitioners though submitted documents with regard to their services for a short period or with some break, but there is no mention of their date of ouster or relieving from service, but from the available record, it appears that their such period of ouster does not come within the period provided under. Sacked Employees Re-instatement Ordinance or Act. As such, they being not eligible were subsequently noticed by the concerned Department, consequently, the petitioners invoked writ jurisdiction.
21. Only two petitioners were proved to be genuinely taken into service under the Sacked Employees Reinstatement Ordinance 2009 and Sacked Employees Reinstatement Act, 2010. Details whereof will be discussed below.
22. So far the concern of legal aspect of this whole case, it is categorized legally in three folds:--
(a) The employees served with show-cause notices have any right to challenge the same by invoking writ jurisdiction;
(b) If the claim is based upon fraudulent documents, the doctrine of locus poenitentia would provide any favour to continue their services;
(c) Their case comes within the parameters of Sacked Employees Reinstatement Ordinance, 2009 and Sacked Employees Reinstatement Act, 2010.
23. While going through all these petitions, I am of the opinion that the petitioners, if aggrieved with the show-cause notices issued to them, even if same appears to be mala" fide or illegal, same being matter pertaining to the disciplinary affairs, is totally barred to seek relief by invoking writ jurisdiction as envisaged by. Article 212-A of the Constitution. For convenience, Article 212-A is submitted herein below: "212. Administrative Courts and Tribunals.--(1) Notwithstanding anything hereinbefore contained, the appropriate Legislative may by Act provide for the establishment of one of more Administrative Courts of Tribunals to exercise exclusive jurisdiction in respect of--
(a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters.
24. It is a paramount principle as discussed by the learned Courts from time to time that issuance of show-cause notices includes into the disciplinary affairs, as such, the civil servants concerned has to follow the procedure laid down in the rules by submitting their reply to participate the entire circle provided by the service rules relating to disciplinary matter i,e, E & D Rules, 1973 and after a final order is passed, the appeal has to be preferred to the concerned forum i,e, Service Tribunal. I am fortified by the following case law:--
(i) PLD 1968 Supreme Court 119
(ii) 1998 SCMR 60
(iii) 1969 SCMR 154
(iv) PLD 1997 Supreme Court 351
(v) 1998 SCMR 2280
(vi) 2004 MLD 460
(vii) 2005 SCMR 1017
(viii) 2001 PLC (C.S.) 93
(ix) 2006 PLC (C.S.) 975
25. It is also a feature discussed that civil servant cannot seek such a relief being premature, as whatever the relief claimed, will be based upon speculations and apprehensions, not to be a firm view, therefore, being scared of such guilty conscious, they used to invoke writ jurisdiction instead of facing departmental proceedings initiated under Civil Servant Efficiency & Disciplinary Rules, 1973.
26. Therefore, in my humble view, the petitions of those petitioners who challenged show-cause notice are not maintainable.
27. So far the concern of petitions referred challenging impugned order of recalling the earlier on the basis of doctrine of locus poenitentia, their cases apparently are 'based upon either forged/fake documents, such posts were not available, educational, institutional is not existing, they too, are not entitled for grant of any relief, therefore, all those petitions are also dismissed.
28. However, some of the petitioners during course of arguments have claimed to be compensated by the subsequent policy introduced by the Government that if their cases do not come within the period of their ouster as defined in Sacked Employees Reinstatement Ordinance, 2009 and Sacked Employees Reinstatement Act, 2010 (1st day of November, 1993 to the 30th day of November, 1996 (both days inclusive) and from the 1st day of November, 1996 to the 31st day of December, 1998 (both days inclusive).
29. In continuation of above para-11, direction of the Committee in this regard are very clear, therefore, same is binding upon the authorities in view of Section (sic) of the Sacked Employees Re-instatement Act, 2010. Therefore, With such expectation, respondents are required to consider the cases of those petitioners feeling them as ineligible on the basis of criteria referred by the Committee, which is reproduced herein below: "The Committee directed that as those employees do not strictly fall under the ambit of the Act, they may be given fresh appointments without any back benefits. Considering their cases according to relevant rules and ascertaining their genuineness."
30.Since they have not proved for so in the petitions, they may move their cases before the authorities concerned to facilitate them under the policy of the Government or they may agitate further their claim before the concerned quarters.
31. So far the concern of writ petition Bearing No, 2328/2011, the case of the petitioner has been admitted to be genuine by the Department, same has been substantiated from the record, therefore, this petition is allowed to that extent.
32. As regards W.P. No, 1027/2011, the Deputy Director (Legal), FDE, on query, has not disputed the documents referred in the case of Mst. Nooreen Akhtar, therefore her case comes within the ambit of Sacked Employees Re-instatement Ordinance, 2009/Act, 2010 being not disputed by the Officer of the controverted the genuineness of documents. Therefore, instant the petition is allowed to that extent.
33. The Department concern is at liberty to initiate according to law, if so advised.
34. As a result of above discussed reasons, W.P. No, 2328/2011 & 1027/2011 are allowed, while rest of the petitions are dismissed.