Through this constitutional petition, the petitioner has invoked the extra ordinary constitutional jurisdiction of this Court while challenging the order dated 30.08.2012 passed by the Respondent No. 3.
2. Brief facts of the case are that the petitioner was appointed as Data Entry Operator on 09.12.2003 for a period of 5 years. A show-cause notice was served Upon the petitioner on 23.6.2009 under Sections 2(b) and 3(1) of the Removal from Services (Special Powers) Ordinance,' 2000 while attributing the following aces of iniseondut.t, inefficiency and corruption to the petitioner: 'You had used the login of Rashid Mehmood, Office Assistant illegally and uploaded un-official documents on FTP for spreading it among the staff to form so called NADRA Union, which is clearly against prevention of Electronic Crime Ordinance, 2007. Thus act displayed by you is highly ,objectionable."
3. The petitioner replied to the said show-cause notice on 25.07.2009 and specifically negated the charge levelled against him and further requested the Respondent No. 3 to probe into the case to arrive at an appropriate conclusion.
4. Instead of giving any opportunity of personal hearing to the petitioner or conducting any regular inquiry, a major penalty of dismissal from service was imposed upon the petitioner vide office order dated 6.8.2009.
5. Aggrieved by the order of dismissal, the petitioner filed Writ Petition No. 7224/2009 which was disposed of by this Court on 11.07.2012 while directing the Chairman, NADRA to treat the writ petition as an appeal filed by the petitioner and decide the same in accordance with law, after affording an opportunity of hearing to the petitioner through a well reasoned and speaking order.
6. In pursuance to the order passed by this Court, a letter wa% communicated to the Deputy Director HR on 30.8.2012 informing that the Chairman/competent authority has rejected the departmental appeal filed by the petitioner, hence this writ petition.
7. The learned counsel for the petitioner while advancing his arguments submitted that the entire proceedings initiated against the petitioner were a result of mala fide; the allegations levelled through the show-cause notice dated 23.06.2009 were specifically denied by the petitioner and thus it was incumbent upon the authorities to hold a regular inquiry as the nature of allegations levelled against the petitioner required thorough probe. It has been further argued that while deciding the appeal, the Respondent No. 2 did not take into account of the fact that since a major penalty of dismissal from service had been imposed upon the petitioner, the same could not have been done without giving an opportunity of fair trial to the petitioner.
8. On the other hand, the legal advisor for the respondents raised a preliminary objection regarding the maintainability of the writ petition. It was argued that NADRA Employees (Service Regulations), 2002 were non-statutory in nature and therefore the petitioner could not invoke the constitutional jurisdiction of this Court.
It has been further argued that the petitioner was given an opportunity for hearing before imposition of major penalty of dismissal from service and there was no justification in holding a regular inquiry. The legal advisor for the respondents has relied upon a judgment reported in 2009 SCMR 444 (Ghulam Shabbir Sheikh versus Chief Executive Officer, Quetta Electric Supply Company (QESCO), Quetta and another) to strengthen his arguments.
9. I have considered the arguments advanced by the learned counsel for the parties and have also perused the record.
10. This Court would first advert to the question of maintainability of this writ petition.
11. The NADRA Employees (Service Regulations), 2002 have been framed in exercise of powers conferred under Section 45 of NADRA Ordinance, 2000.
Section 45 of the NADRA Ordinance, 2000 reads as under:- "Regulations.--(1) The Authority may, by notification in the official Gazette, make regulations, not inconsistent with the provision of this ordinance or the rules, for the carrying out of its functions under this Ordinance and any other matter for which, under this Ordinance provision may be made by regulations.
(2) Without prejudice to the generality of the foregoing powers, such regulations may provide for appointment of Registration Officers, members of its staff, experts, consultants, advisers and other officers and employees and the terms and conditions of their service: Provided that, subject to the provision of Section 40 till the time any amendments are made or any fresh regulations are made in this behalf, any rules or regulations governing the terms and conditions of their service and in force at the time of the establishment of the Authority shall be applied as nearly as practicable in the same manner as before to the extent the same are not inconsistent with the provisions of this Ordinance, with any references to the Directorate General of Registration, or any competent authority by whatever nomenclatures therein to be deemed to be a reference to the Authority."
12. The NADRA Employees (-Service Regulations), 2002 have been published in the Gazette of Pakistan on November, 11th 2002 through a statutory notification. Since, NADRA Employees (Service Regulations), 2002 have been framed by the authority in exercise of powers conferred under Section 45 read with Section 35 and Section 37 of the NADRA Ordinance, 2000. Such powers have been exclusively conferred upon the authority and are not subject to the approval of the Federal Government or any other authority; and are therefore statutory in nature.
13. It is not out of place to mention here that while determining, the maintainability of writ petition, the Courts generally apply the "function test" to consider whether a statutory body was a "person" within the meaning of Article 199(1)(a)(2) read with Article 199(5) of the Constitution of Islamic Republic of Pakistan. A public authority performing public or statutory duty and carrying out its transactions for the benefit of the public and not for private gain of profit. The Honourable Supreme Court of Pakistan in a judgment reported in PLD 1975 Supreme Court 244 (Salahuddin and 2 others versus Frontier Sugar Mills & Distillery Ltd., Tokht Bhai and 10 others) has laid down the functional test to assess whether a body or authority is a person within the meaning of Article 199 of the of the Constitution of Islamic Republic of Pakistan, 1973 and observed as under: "The primary test must always be whether the function entrusteda with the organization or person concerned are indeed functions of the state involving some exercise of sovereign or public power;' whether the control of the organization vests in a substantially manner in the hands of the Government; and whether the bulk of the funds is provided by the state. If these conditions are fulfilled when the person, including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not."
14. The Honourable Supreme Court of Pakistan in a judgment reported in 2013 SCMR 1707 (Pakistan Defenee Officers' Housing Authority v. Jawaid Ahmed) while discussing the effect of imposition of penalty under Removal from Service (Special Powers) Ordinance, 2000 has observed as under: "Although the rules/regulations of statutory organization might have been non statutory but there was a statutory intervention in the shape of Removal from Service (Special Powers) Ordinance, 2000 and the employees 'had to be dealt with under the said law."
15. The Honourable Supreme Court went on to observed in the same judgment that the Legislative intent in promulgation of Removal from Service (Special Powers) Ordinance, 2000 was that the persons incorporation service shall have a right of appeal under Section 10 of the Removal from Service (Special Powers) Ordinance, 2000 but subsequently employees were deprived of their right of appeal as the same was held to be ultra vires of the Constitution by the Hon'ble Supreme Court in the cases of Muhammad Mubeen-ul-Islam and others. Versus Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 Supreme Court 602 (Muhammad Mubeen-us- Salam and others versus Federation of Pakistan through Secretary, Ministry of Defence and others) and Muhammad Idrees .Versus Agricultural Development Bank of Pakistan and others (PLD 2007 Supreme Court 681). Deprivation of such right of appeal would amount to judicial sanctification of all orders passed by the departmental authorities awarding various penalties to the employees and would also be violative of fundamental right to fair trial and due process as ordained in Article 10-A of Constitution of Islamic Republic of Pakistan. Employees in question could invoke Article 199 of the Constitution to seek compliance of Removal from Service (Special .Powers) Ordinance, 2000.
16. In view of above discussion, this Court holds that the writ petition is maintainable.
17. Now, I would discuss the propriety of the impugned orders, dated 06.08.2009 and 30-08-2012. It is established from record that a show-cause notice was issued to the petitioner on 23.06.2009; reply was filed by the petitioner and thereafter major a penalty of dismissal from service was imposed upon the petitioner through order dated 06.08.2009.
18. The intention of the Legislature while promulgating Removal from Service (Special Powers)
Ordinance, 2000 inter alia was that the matters for "person in corporation service" should be dealt with in accordance with provisions of said law and to ensure a fair trial it was inter alia provided in the said Ordinance that unless specifically exempted by a reasoned order, the competent authority shall hold a regular inquiry against an employee accused of misconduct and he shall have a right of appeal.
19. The right of access to justice is a well recognized inviolable right enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan and is equally found in the doctrine of "due process of law". This right includes the right to be treated in accordance with law, the right to have a fair and proper trial and a right to have an impartial Court or Tribunal.
The term "due process of law" is summarized as follows:- A person shall have due notice of proceedings which effect his rights.
The person shall be given reasonable opportunity to defend.
That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of its honesty and impartiality; and That it is a Court of competent jurisdiction.
20. The due process of law clause has now the specifically enshrined in Article 10-A of the Constitution of Islamic Republic of Pakistan which is reproduced below:- "10-A. -- Right to fair trial.--For the determination of a civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process".
21. I must observe that holding of a regular inquiry is a sine qua non when the nature of allegation levelled against the petitioner required recording of evidence. In this regard, I am fortified by a judgment of the Honourable Supreme Court of Pakistan reported as 2011 PLC (C.S.) 1352 (Mst.
Firdous Batool versus Executive District Officer and another).
22. The Honourable Supreme Court of Pakistan in a judgment reported in 2009 SCMR 339 (Muhammad Haleem and another versus General Manager (Operation) Pakistan Railways Headquarter, Lahore and others) has observed that where the charges could only be established by producing evidence, the authority could not dispense with the holding of inquiry and without specifying as to why there was no need for holding a regular inquiry and how the charges /misconduct would be proved without holding an inquiry. Holding of inquiry is essential to prove the charges of fact and the same cannot be dispensed with.
23. The similar view has been taken by the Honourable Supreme Court of Pakistan in a judgment reported in 2012 PLC (C.S.) 728 (Muhammad Afzal versus Regional Police Officer, Bahawalpur and others).
24. The legal adviser for the respondents has relied upon 2009 SCMR 444 but, with due deference it is observed that the judgment relied upon by the legal adviser for the respondents is distinguishable as in that case the civil servant was proceeded departmentally and he was duly informed of charges leveled against him, thereafter a high powered committee was constituted to probe into the matter. Civil Servant was afforded reasonable opportunity of personal hearing before imposition of penalty and the same was considered enough in provide opportunity of defence.
25. In the present case, a show-cause notice was issued of 23.06.2009, a reply to the said show- cause notice was given of 25.07.2009 and without giving any opportunity of personal hearing of holding of regular inquiry which as has been observed above is a sine qua non before imposition of major penalty of dismissal from service the major penalty of dismissal from service was imposed on the petitioner on 6.8.2009. The petitioner has not even been given a right of personal hearing.
The respondents with their parawise comment have attached a show-cause notice issued to one Rashid Mehmood and thereafter right of personal hearing was given to the said official through letter dated 30.09.2009 and on the basis of that personal hearing given to one Rashid Mehmood, the respondents have taken the plea that since Rashid Mehmood was a co-accused therefore it would be presumed that the right of personal hearing has also been given t the petitioner.
26. In my opinion, the stance taken by the respondents is un acceptable. Neither the petitioner has been given a right of personal hearing nor a regular inquiry has been conducted by the competent authority; moreover, no reasons whatsoever have been given as to what the requirement of holding of regular inquiry against the petition has been dispensed with.
27. For what has been discussed above, this writ petition is Accepted. It is declared that the petitioner has been denied fundamental right to have a fair trial as ordained in Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. Resultantly, the order of dismissal from service dated 6.8.2009 and the order dated 30.8.2012 are declared to have been passed without lawful authority. The case is remitted back to the competent authority to pass a free order in pursuance to Show Cause Notice dated 23.6.2009 after holding a regular inquiry. However, the petitioner would not be entitled any back benefits.