' M. SOHAIL IQBAL BHATTI, J.--- Through this constitutional petition, the petitioner has challenged the order of his removal from service dated 16-12-2011 against which an appeal was filed before Director General Strategic Planning Division, which was also dismissed on 8-6-2012.
2. The facts of the case are that the petitioner was inducted in Margalla Electronics (ME) Ministry of Defence on 13-12-1987. The Margalla Electronics, which came under the control of respondent No,3 and resultantly the petitioner, became an employee of respondent No,
1. The petitioner during the service applied for leave without pay for a period of two years to the Director Margalla Electronics, which was allowed w.e.f,, 16-8-2009 to 15-8-2011. During the leave period Margalla Electronics came under the control of Air Weapons Complex and petitioner became an employee of respondent No,
1. Before expiry of the previous leave period petitioner filed another application for extension of leave as the petitioner was under treatment. In response to the application of the petitioner, the petitioner received letter dated 24-8-2011 wherein he was reported absent from duty and he was directed to report for duty failing which the petitioner was informed that disciplinary action would be taken against him according to law. In response to letter dated 24-8-2011 the petitioner again requested the concerned official to extend his leave period for a period of six months as on account of his illness, petitioner was unable to join the department. Instead of responding to the application dated 29-8-2011 respondent No,3 issued a show-cause notice to the petitioner on 22- 9-2011 holding that the petitioner was absent for a period of 37 days without prior approval of leave and was thus guilty under Rule 4(b) and (g) of National Command Authority Employees Efficiency and Discipline Rules, 2010. It was further mentioned in the show-cause notice that in term of Rule 7(e)(3) of the National Command Authority Employees Efficiency and Discipline Rules, 2010, it was not necessary to hold a regular inquiry. However, the petitioner was given an opportunity of personal hearing. Thereafter the petitioner through letter dated 7-10-2011 was given an opportunity to appear before the competent authority for personal hearing on 14-10-2011 at 1000 hours. In response to this letter the father of the petitioner informed respondent No,3 that the petitioner was hospitalized and was unable to travel from Lahore and a request was made for granting another opportunity of personal hearing to the petitioner after recovery of the petitioner. The respondent once again granted an opportunity for personal hearing to the petitioner and the petitioner was directed to appear before respondent No,3 on 2-11-2011. The petitioner appeared before respondent No,3 on 2-11-2011 but he was not properly heard and was removed from service through impugned letter dated 16-12-2011 w.e.f,, 9-12-2011 on the charge of long absence. However, the absence of the petitioner w.e.f, 17-8-2011 to 8-12-2011 was treated as leave without pay and allowances. The petitioner filed departmental appeal against the impugned order, which was also dismissed on 8- 6-2012.
3. The learned counsel for the petitioner submitted that the penalty imposed upon the petitioner was not proportionate to the charge levelled against him. The petitioner was not given any opportunity of hearing either before passing the impugned order dated 16-12-2011 or deciding the appeal of the petitioner.
4. On the other hand, learned counsel for the respondents submitted that the petitioner was given ample opportunities to join his duty but he remained absent without any authorization. It was further contended that since the petitioner was guilty of misconduct of being absent from duty for a period of 37 days without authorization, a penalty of removal from service was imposed which was a lenient view taken by the competent departmental authority, as in case of removal petitioner had not been disqualified from future appointment under the Government, except to serve National Command Authority.
5. I have considered the arguments advanced by the learned counsel for the parties and have also perused the record minutely.
6. I would first discuss question of maintainability of this writ petition and the objection of the respondents; firstly, since the petitioner has not availed the remedy of appeal the petition is not maintainable, and secondly, that under section 22 of National Command Authority Act, 2010 jurisdiction of this Court is ousted.
7. In view of the law laid down by the august Supreme Court of Pakistan in 2013 SCMR 1707 (Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed) the employees of the statutory bodies have the right to invoke the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. As far ouster clause contained in section 22 of National Command Authority Act, 2010 is concerned; this Court in a judgment reported in PLD 1996 Lahore 672 (Messrs Chenab Cement Product (Pvt.) Ltd. And A others v. Banking Tribunal, Lahore and others) has held that the constitutional jurisdiction vesting in this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be taken away, abridged or curtailed by subordinate legislation. Reliance is also placed on PLD 1964 SC 126 PLD 1963 SC 322, PLD 1962 SC 42, PLD 1963 Lah. 109, PLD 1964 Lah. 376 and PLD 1996 SC 362.
8. As far as the contention of the learned counsel for the respondents regarding non-availing the remedy of appeal is concerned. The august Supreme Court of Pakistan in PLD 1972 Supreme Court 279 (The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others) has held that High Court not entertaining writ petition when other appropriate remedy available is not a rule of law barring jurisdiction of the High Court but a rule by which court regulates its jurisdiction; where the order of the statutory body is attacked on ground that it was wholly without authority, partial, unjust and mala fide, High Court in exercise of its writ jurisdiction has the power to grant relief to the aggrieved party. In present case the impugned order is tainted with malice in law as the same cannot be countenanced; after treating the absence of the petitioner as leave without pay and allowances the penalty of removal from service could not have been imposed in view of the law laid down by the august Supreme Court of Pakistan in (2006 SCMR 434). Therefore; I hold that the present writ petition is maintainable.
9. The petitioner was allowed leave without pay for two years i.e, from 16-8-2009 to 15-8-2011.
Before the expiry of his leave period the petitioner applied to the respondents for extension in his leave as the petitioner was bedridden and unable to join his duties but the respondents instead of giving any consideration to the application of the petitioner initially issued a Show-Cause Notice and finally passed the impugned order dated 16-12-2011. Without involving myself into the factual controversy of this case the perusal of the impugned order dated 16-12-2011 shows that the same is in itself contradictory. On one hand a penalty of removal from service has been imposed upon the petitioner for remaining absent from duty but in the same letter the absence of the petitioner w.e.f, 17-8-2011 to 8-12-2011 has been treated as leave without pay and allowances. I am afraid that after the period of absence was condoned/regularized by the competent authority there could not have been a justification to impose a major penalty of removal from service. I am fortified in my view by a judgment of Hon'ble Supreme Court of Pakistan reported in 2006 SCMR 434 (Lahore Development Authority and others v. Muhammad Nadeem Kachloo and another).
10. The facts of the case supra are identical to the case of the petitioner. In the above referred case one Muhammad Nadeem Kachloo was issued a show-cause notice and upon finalization of disciplinary proceedings a major penalty of dismissal from service awarded upon the said official.
However, his absence period from duty was ordered to be treated as leave without pay. The civil servant aggrieved by the order of dismissal preferred an appeal before the Services Tribunal, which was allowed by Punjab Services Tribunal as under:- "I have considered contentions from both sides. Without touching detailed merits of the case, I find that the appellant has already been allowed leave (leave without pay) for the period he remained allegedly absent from duty. The authority while dismissing the appellant, also allowed the appellant extra-ordinary leave without pay for the said period and in this way regidarized his absence. This being so, very ground had vanished on which the appellant had been proceeded against. When the appellant was considered on leave, then he could not have been considered absent. In this view of the matter, appeal is accepted and the impugned orders, presently being assailed by the appellant are set aside. Resultantly, the appellant shall stand reinstated and the period intervening shall be treated as leave of the kind due."
11. A civil petition was filed before the Hon'ble Supreme Court of Pakistan by Lahore Development Authority against the order passed but the Hon'ble Supreme Court of Pakistan upheld the decision made by Punjab Services Tribunal.
12. I cannot hold myself back in observing that he competent authority while awarding the major penalty should always keep in mind the gravity of charge, which in the present case had been condoned by the competent authority. The underlined concept behind imposition of major penalty is that not only the offender is brought to justice but also to make it an example for the others.
Where gravity of charge is of lesser degree and circumstances reflected absence of bad faith and willfulness then minor punishment might be a preferred course. I am fortified in my view by the judgment reported in 2013 SCMR 817 (Secretary, Government of Punjab and others v. Khalid Hussain Hamdani and 2 others) where the august Supreme Court of Pakistan has observed as under:--- "The law provides for more than one kind of punishments keeping in view the object of such penal provisions and the gravity of the charge in a case. Conceptually punishment to a delinquent public servant is premised on the concept of retribution, deterrence or reformation.
In awarding punishments, the Competent Authority has to keep in mind the underlying object of law and the severity of the misconduct."
13. I do not find myself in agreement with the arguments advanced by the learned counsel for the respondents that the competent authority has discretion to impose a punishment of major penalty upon the petitioner.
14. Where ever wide worded powers conferring discretion exists there remains always the need to structure the discretion. The structuring of discretion only means regularizing it, organizing it, producing order in it so that the decision will achieve the high quality of justice. The exercise of discretionary powers without framing rules to regulate its E exercise has always been taken to be enhancement of power and where the authorities fail to rationalize and regulate their discretion by rules or precedents the courts have to intervene where exercise of such discretionary power appears to be arbitrary and capricious. In the present case on one hand the absence of the petitioner has been condoned by treating the same as leave without pay but at the same time the petitioner has been deprived of his livelihood by imposing a major penalty of removal from service, which also result into taking away all the benefits, which have accrued to the petitioner being an employee since 13-12-1987 and the punishment imposed upon the petitioner does not commensurate with the charge especially when his absence has been treated as leave without pay.
15. For what has been discussed above, this writ petition is disposed of with the direction to respondent No,3 to decide the appeal of the petitioner dated January 3, 2012 afresh after giving a fair opportunity of hearing to the petitioner and keeping in view the due process of law clause and right to fair trial as envisaged in Article 10A of the Constitution of Islamic Republic of Pakistan, 1973.
The appellate authority is further directed to pass a speaking order keeping in view the law laid down by the Hon'ble Supreme Court of Pakistan in 2006 SCMR 434.