' MAQBOOL BAQAR, J.--- The petitioner, who was a Group-V employee of Pakistan International Airline Corporation, the respondent No,2, and was serving as a Flight Steward, has through the instant petition challenged the order dated 15-2-2007, whereby the Deputy Managing Director of respondent No,2 Corporation dismissed him from service of the Corporation under Removal from Service (Special Powers) Ordinance, 2000.
2. The brief facts of the case are that on 22-4-2006, the petitioner was placed on duty on flight, PK- 192 from Masqat to Gawadar. While the petitioner, Airhostess, Miss Zakia Zahid were on-board and the passengers were boarding the aircraft at Masqat, the Captain of the flight, Mehmood Zaki came on board and asked the staff to remove seven pieces of baggage from the aircraft and the same were thus offloaded. On 24-4-2006 the Manager Flight Service, (Scheduling) called the petitioner and inquired about the said luggage. The Manager informed the petitioner that the same contained Whisky and Bear cans, the petitioner however expressed his ignorance regarding the contents. On 24-4-2006, the petitioner submitted his written reply to the Manager Flight Service, (Scheduling). The Manger Flight Service, (Scheduling), also asked for a written statement from Airhostess Miss Zakia Zahid who also submitted her reply on 24-4-2006. By order dated 26-4-2006, the General Manager (Flight Services) placed the petitioner and Airhostess Zakia Zahid under suspension. Through letter dated 17-10-2006, the Deputy General Manager, (Ramp Operation) of the respondent Corporation informed the petitioner that Deputy Managing Director of the respondent Corporation has appointed him to hold an inquiry against the petitioner on the following charges:--- "As per D-brief of Captain Zaki who was operating Flight PK-192 of 220406 ex-MCT-GWD, Mr. Arif Raza, P-49707, Flight Steward, brought 7 bags from Muscat Duty Free Shop to the aircraft, the same were offloaded on the Captain's instructions. Mr. Arif Raza, P-49707, Flight Steward, and Ms. Zakia Zahid, Airhostess, were instructed to bring their baggage on the ramp to be checked by the Captain. Seven pieces of Mr. Arif Raza were taken out and opened in which 49 Whisky bottles and 24 cans of Beer were found. Captain made inventory of the same and got it signed from traffic staff/ground engineers. After this Captain, instructed cabin crew to return the same to duty Free Shop at Muscat Airport which were accordingly returned. This incident was witnessed by the First.
Officer Mr. Asim Manzar, A/E Mr. Zafar lqbal, A/E Mr. Umer Rehman, Naeem Tamil and Abdul Rafiq, ground staff of Muscat Airport." and required the petitioner to furnish his reply within seven days of receipt of the above notice, which reply, denying the veracity of allegations, was submitted by the petitioner on 27-10-2006. The Inquiry Officer, however, proceeded to hold inquiry and through his report dated 13-11-2006 gave his finding/ conclusion that the seven bags containing the contrabands belonged to the petitioner. He, however, absolved Airhostess Zakia Zahid of the charge.
3. The learned counsel for the petitioner, at the outset submitted, that disciplinary action against the petitioner purportedly initiated under the Removal from Service (Special Powers) Ordinance, 2000 ("The Ordinance"), from its very inception and throughout was undertaken/ conducted by an incompetent person; he submitted that the initiation of disciplinary action, appointment of an Inquiry Officer, suspension of the petitioner, issuance of show-cause notice and the petitioner's dismissal from service were carried out/conducted by persons, who were not competent in that regard and thus each step taken towards the dismissal of the petitioner was violative of the various provisions, particularly, sections 3, 4, 5 and 8 of the Ordinance, under which law the same were initiated /undertaken, and thus the entire exercise culminating into the petitioner's dismissal is void and of no effect. The learned counsel submitted that section 3 of the Ordinance provides that a person in Government or Corporation service can be dismissed from such service by the competent authority alone, whereas, a person against whom action as envisaged under subsection (1) of section 3, can in terms of section 4, be suspended only by the competent authority and so also an Inquiry Officer can be appointed only by the competent authority. He referred to clause (aa) of the Ordinance and submitted that the "Competent Authority" has been defined therein as an Officer or Authority, not being inferior in rank to the appointing authority prescribed for the post held by the person against whom action is proposed to be taken and submitted that since the petitioner was, at the time of his dismissal, serving the respondent Corporation in the capacity of a Senior Flight Steward, in PG-V, and since as such appointing authority of the petitioner was the Managing Director; it was only the Managing Director, who could have placed the petitioner under suspension and appointed an Inquiry Officer in the case and it was only him, who could have dismissed the petitioner from service, however, the petitioner, as evident from letter dated 26-4-2006, annexure P-3 to the petition, was suspended by the General Manager (Flight Services), whereas, the Inquiry Officer, as evident from letter dated 17-10-2006, annexure P-4 to the petition, was appointed by the Deputy Managing Director of the respondent Corporation and it was the General Manager who through the said letter also communicated the purported charge against the petitioner and it was the said officer who sent to him the notice of inquiry, being annexure P-6 to the petition and even the impugned order of dismissal from service was, as evident from the dismissal order itself, being annexure P to the petition was passed by the Deputy Managing Director and thus the whole exercise was contrary to law and was initiated and undertaken by incompetent persons, unauthorizedly. The learned counsel further submitted that even otherwise the Inquiry Officer failed to act independently, fairly and in accordance to the norms of conducting inquiries laid down by the superior Courts. In support of his allegation that there is/was absolutely no evidence to connect the petitioner with the contraband items allegedly found on board the aircraft, and that the material placed before the purported Inquiry Officer were inherently contradictory and inconsistent to each other and that the statements of the witnesses before the Inquiry Officer not only proved to be contradictory to the allegations against the petitioner but in fact falsified such allegations and further that the Inquiry Officer conducted himself in the matter unfairly and unjustly and under the influence of the management. The learned counsel referred to the inquiry report, to the Captain's D-brief and the correspondence placed on record by/on behalf of the management, he also referred to the statements of the witnesses and that of co-accused Airhostess Zakia Zahid. The learned counsel submitted that the inquiry report is mala fide and perverse and is based on surmises and conjectures and not on the facts of the case as emerged before the Inquiry Officer. The learned counsel further pointed out that the Inquiry Officer also did not examine the Station Manager at Muscat whose report also was made basis for holding the petitioner guilty of the charge framed against him.
4. The learned counsel concluding his arguments submitted that in the facts and circumstances of the case, the impugned dismissal order be set aside and the petitioner may be ordered to be reinstated in service with effect from the date of his dismissal.
5. On the other hand Mr. Khalid Javed, the learned counsel for the respondent Corporation, whilst challenging the maintainability of the petition submitted that there being no statutory service rules governing the relationship of the petitioner with the respondent Corporation and thus the relationship between the petitioner and the respondent Corporation being that of Master and Servant, the relationship is purely contractual, and therefore, the instant petition, in view of the dictum laid down in PIAC v. TANWEER-UR-REHMAN AND OTHERS (PLD 2010 SC 676), is not maintainable and is liable to be dismissed, as such. He further submitted that even otherwise there has been no violation of any law in conducting the proceedings against the petitioner and/or his dismissal from service and that before ordering petitioner's dismissal from service the petitioner was duly communicated the charges framed against him and notice of inquiry also was served upon the petitioner and the petitioner was provided an opportunity to and he did participate in the inquiry proceedings and has been dismissed from service upon ' conclusion drawn by the Inquiry Officer that on the basis of the evidence recorded by him he has been found guilty of the charge.
He submitted that neither the order suffers from any legal lacuna or from any factual infirmity, and prayed for dismissal of the petition.
6. Mr. Khalid Javed further submitted that in the case of HYDERABAD ELECTRIC SUPPLY COMPANY v.
MUSHTAQ ALI BROHI (2010 PSC 1392), where the appellant company proceeded against the respondent under the Ordinance, the Hon'ble Supreme Court, held that the learned High Court had no jurisdiction to set aside the order duly passed in the exercise of powers under the said Ordinance and that the petition was debarred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
7. Indeed it is true that in the case of Tanweer-ur-Rehman (supra) the Hon'ble Supreme Court has held that since the respondent No, 2 Corporation does not have statutory rules of service, the employee of such an Organization, in the absence of statutory service rules cannot approach the High Court in its constitutional jurisdiction and further that if any adverse action has been taken by the employer in violation of the statutory rules, only then such action should be amenable to writ jurisdiction. However, in case such action has no backing of the statutory rules, then the principle of Master and Servant would be applicable and such employees have to seek remedy permissible before the Court of competent jurisdiction. However, the question before us is as to where the action is purportedly taken under the provisions of the Ordinance, the employee of such an Organization which does not have statutory rules can maintain Constitutional Petition under Article 199 of the Constitution. Answer to the above is found in the judgment rendered in the case of CIVIL AVIATION AUTHORITY v. JAVED AHMED (2009 PLC (C.S.) 679), wherein the Hon'ble Supreme Court has held that the High Court is fully empowered to consider whether the action complained of, is in accordance with the Removal from Service (Special Powers) Ordinance, 2000, as the violation of law falls within the parameters of the Constitutional jurisdiction and therefore the petition filed by the employee against his compulsory retirement, was maintainable and that there was no jurisdictional error in the judgment of the High Court impugned before the Supreme Court, and further that the impugned judgment does not suffer from any illegality or call for any interference by the Hon'ble Supreme Court. Similar view has been expressed by a Division Bench of this Court in the case of SHAHID MEHMOOD USMANI v. HOUSE BUILDING FINANCE CORPORATION (2010 PLC (C.S.)
1360) in the following words:--- "Result of the above discussion is that, we hold that if an employee of a State owned/controlled organization is proceed against under the provisions of the Removal from Service (Special Powers)
Ordinance, 2000 and if no other remedy is available to him (for example remedy available to workmen under section 41 of I.R.A.), he shall be entitled to maintain a constitutional petition under Article 199 of the Constitution for the purpose of scrutinizing as to whether the action taken by the departmental authorities is in accordance with the provisions contained in the RSO. Subject to the above, these petitions held to be maintainable. Office is directed to list them according to their turn and roster."
8. As regards the case of Hyderabad Electric Supply Company (supra), relied upon by the learned counsel for the respondent No,2 Corporation, it may be noted that there, in the first place, though the order was passed under the Ordinance, it seems the no violation of any of the provisions of the Ordinance was brought to the notice of the Hon'ble Supreme Court, as at the time of hearing and instead the counsel for the appellant submitted that a well-reasoned, termination order was passed, after serving show-cause notice as was required under section 3(2) of the Ordinance, and taking into consideration the reply submitted by the respondent and after providing due opportunity of hearing and the learned AOR, who only was present on behalf of the respondent, it was conceded to the arguments of the appellant that the petition before the Hon'ble High Court was barred under Article 212 of the Constitution of the Islamic Republic of Pakistan and the judgment in the case of Civil Aviation Authroity v. Javed lqbal (supra) was also not brought to the notice of the Judges of the Hon'ble Supreme Court that the Hon'ble Supreme Court held that the High Court had no jurisdiction to entertain a petition under Article 199 of the Constitution and set aside the impugned order and since as noted above, the above judgment was based on the concession made by the learned AOR representing the respondent and no arguments were advanced regarding the maintainability or non-maintainability of the petition by either side, and as held by the Hon'ble Supreme Court in the case of MASOOD AHMED BHATTI AND OTHERS v.
FEDERATION OF PAKISTAN AND OTHERS (2012 PLC (C.S.) 470), in similar circumstances, that it is well settled that a concession made by a party binds such party alone and that such cannot preclude others, who may argue his case on its merits.
9. As noted earlier, in the present case, there is clear violation of the various provisions of the Ordinance. Amongst the various grounds urged by the petitioner through the memo. Of petition itself are that the disciplinary action has not been initiated by the competent authority as provided in the Ordinance, it is further stated that the dismissal order and so also the appointment of the Inquiry Officer were not made by the competent authority, the inquiry itself was conducted without jurisdiction. However, the allegation that the impugned proceedings were not initiated by the competent authority throughout nor was the order of dismissal passed by the competent authority have neither been specifically denied by the respondent Corporation in their comments nor did their counsel during his arguments denied the same.
10. It was nowhere denied that the Deputy Managing Director who appointed the Inquiry Officer and made the dismissal order was the competent authority within the meaning of the Ordinance or that he was in any manner authorized by the competent authority, in the present the Managing Director to act on his behalf in the present case.
11. In terms of section 3 of the Ordinance, it is only the competent authority who can order dismissal from service and it is the competent authority who alone has to inform the accused of the action proposed to be taken along with the grounds of the action and as envisaged in section 4 of the Ordinance. A person against whom action as above is proposed can be placed under suspension only by the competent authority, whereas, in terms of section 5, the power to appoint an Inquiry Officer also rest with the competent authority alone and finally in terms of section 8 of the Ordinance it is the sole prerogative of the competent authority to pass orders on the inding/recommendation of the inquiry officer, whereas, in terms of clause (aa) of section 2 of the Ordinance, the competent authority has to be of a rank of the appointing authority prescribed for the post held by the person against whom action is proposed to be taken and in the present case, as claimed by the petitioner, which claim has at no point in time been refuted, since the petitioner was serving the respondent Corporation in PG-V of the Officer and it was only the Managing Director of the respondent Corporation who was his appointing authority, therefore the officer authorized to proceed against him under the Ordinance was/is the Managing Director. However, as can be seen from the letter dated 17-10-2006, being annexure P-4 to the petition, whereby the Inquiry Officer informed the petitioner of his appointment as such, and communicated the charges levelled against him, the Inquiry Officer was appointed by the Deputy Managing Director and the order of suspension was made by General Manager, Flight Services, whereas, the order of dismissal also has been passed by the Deputy Managing Director. Neither the aforesaid documents claims any authorization by the Managing Director in this regard, nor has it been pleaded or argued by/on behalf of the respondent Corporation that any such authorization was ever issued by the Managing Director and therefore, we are of the view that the entire exercise was initiated, although even such authorization itself would have been of no worth under the Ordinance and conducted unauthorizedly and the impugned order was passed in violation of the various provisions of the Ordinance and were without jurisdiction and void. The status of the Ordinance and its various provisions being on a higher plain then the statutory rules and since the order has been passed in violation thereof thi's Court is competent to intervene in the matter in its Constitutional jurisdiction.
The petitioner is entitled to maintain the instant petition under Article 199 of the Constitution, for the Court to examine as to whether the action taken by the department/Corporation is in accordance with the provisions of the Ordinance. The petition is, therefore, maintainable.
12. As regards the merits of the case, it may be noted that it was purportedly on the basis of the Captain's D-brief that the charges, as noted earlier, were framed against the petitioner, which charges were denied by the petitioner. However, as can be seen from the Inquiry Report/Appraisal of evidence, submitted by the Inquiry Officer, being annexure P-7 to the petition, there is absolutely no evidence to the effect that either the contraband items were purchased by the petitioner and /or were brought on board or kept in the plane by him, that there is also no iota of evidence that the luggage or the contraband contained therein, belonged to the petitioner. In this regard it is also pertinent to note that in response to a query from the Inquiry Officer the co-accused Airhostess Zakia Zahid replied that she was standing in the aisle near the rear door, welcoming and guiding the passengers, when the luggage in question was allegedly found and that in response to another query as to whether she went to the air terminal building before the petitioner or after he came back, she replied that she visited the terminal building after the petitioner returned. It can therefore be seen that she was standing in the aisle in the rear of the aero-plane wherefrom the luggage in question was admittedly removed. In reply to the query by the Inquiry Officer as to whether she remembers as to which passengers has brought the baggage/luggage in question inside the ramp she said that she did not remember. Even the two aircraft Engineers, namely, Zafar Iqbal and Umairur Rehman, who, amongst other, have allegedly witnessed the incident, in their statements revealed that they were busy in transit check aircondition and refueling the aircraft and were called by Captain Zaki to see the baggage in question and in their cross-examination categorically stated that they did not see the petitioner bringing the luggage in question to the aircraft. In reply to a query regarding their location at the time they were called by the Captain to witness the baggage for which the inventory was being prepared, they replied that they were working around the aircraft. To a further query they replied that the baggage was out of their sight as they were busy in refueling the aircraft on the starboard side and further that they were the last to board, the aircraft after disconnecting the aircondioning van. It is also pertinent to note that although the statement of the two aircraft Engineers as recorded by the Inquiry Officer, far from lending any support to the allegation against the petitioner, in fact contradicted the stance of the Captain in material details, however, the management did not examine any of the other witnesses as cited in the charge-sheet/statement of allegations. Even the Station Manager, Muscat whose purported e- mail message also formed the basis of the allegation and the disciplinary action initiated against, the petitioner, was not examined by the inquiry officer. Furthermore, there is absolutely no evidence that the contraband were returned to the Duty Free Shop as stated in the statement of allegations, on the contrary the two aircraft Engineers in their statements clearly stated that they did not see the contraband being removed from the tarmac or being taken back to the Duty Free Shop. It is also pertinent to note here that co-accused Zakia Zahid in her reply dated 24-4-2006, annexure P to the petition clearly stated that she saw the petitioner instructing the passenger to take the luggage outside the aircraft but the passenger did not comply and that she also noticed to the said passenger threatening the petitioner after disembarking on Gawadar Airport, furthermore, although the Airhostess Zakia Zahid was also accused of the charges as was the petitioner, however, she was exonerated of the charge without there being any distinction in the evidence pertaining to the petitioner and the co-accused. Furthermore, neither does the purported inventory of the contraband bear the petitioner's signature nor was he in fact asked to sign the same. Had the petitioner purchased the contraband from the Duty Free Shop at Muscat Airport it would not have been difficult for the respondent Corporation to obtain some material/ evidence to that effect.
13. In view of the foregoing it can safely be said that the management and/or Captain, Muhammad Zaki at whose stance the petitioner was proceeded against, miserably failed to prove the allegation against the petitioner and the purported conclusion drawn by the Inquiry Officer who, as noted above, was not competent to hold the inquiry, are misconceived, untenable, mala fide and unfounded rather contrary to the facts/evidence on record.
14. It was for the foregoing reasons that the petition was allowed by us through a short order dated 22-5-2012.