RAO ABDUL JABBAR KHAN, MEMBER-01 --- Succinctly stated that the appellant Mohammad Abid Mirza, is serving as a Statistical Officer (BS-11) in Directorate of Agriculture, Crop Reporting Service and being aggrieved of the order dated 12.05.2017 issued by respondent No, 1 vide para No, 4 in which the appellant have been transferred from Headquarter office to the office of Assistant Director (Stat) Crop Reporting Service, Agriculture Department, District Gujrat. The appeal has been filed under Section 4 of the Service Tribunal Act, 1974 accompanied with a C.M. application for the suspension of the above-mentioned order for the time being. The appellant approached this Tribunal without waiting for the expiry of the statutory period.
2. As per contention of the appellant that the impugned order has been passed against the transfer policy which is devoid of any law being illegal and liable to be set aside. That the impugned order was issued against the provisions of the Protection Against Harassment of Women at Workplace Act, 2010 and Notification No, SO(P) WDD: 1-4/2012/1355 without any proper proceedings as provided in the Act: That the appellant has been transferred on the basis of personal dislike, grudge and aversion of the appellant active participation in employees union as General Secretary (upgradation and service rules of Statistical Assistant of the employees in High Court, Lahore against the department. That the appellant cannot be transferred as per rules framed by the department being office bearer. That the respondent No, 2 misused his powers passed the order only on the bias of unjustified harassment which does not fall within the terms and conditions of the services of the appellant.
3. On the other side the learned District Attorney and the departmental representative were of the view that the instant appeal was premature rather not maintainable because, the appellant has not filed any representation before the appellate authority. The learned District Attorney has maintained that the appeal merits dismissal, as every civil servant is bound to serve anywhere within territorial jurisdiction of the competent authority as enshrined in Section 9 of the Punjab Civil Servants Act, 1974. That the appellant was involved in subversive and immoral activities and he has been harassing Miss Faiza Ali, Statistical Officer working at Headquarter and she had filed a complaint in this respect. The impugned order was passed just to keep the atmosphere tranquil in the office. The appellant also challenged a complaint before the learned Women Ombudsperson challenging the complaint filed by Miss Faiza Ali. The learned District Attorney requests for dismissal of the instant appeal.
4. The respondents issued notices on 20.06.2017. They appeared and submitted their report and parawise comments controverting the assertions made by the appellant in this appeal.
5. I have heard the arguments and gone through the record. It reflects that one Miss Faiza. Ali, Statistical Officer working at Headquarter office reported regarding verbal harassment against Mr. Abid Mirza and Mr. Fiaz Ahmed regarding harassment. On receiving the said complaint, respondent No, 2 directed the inquiry committee which had already been constituted to protect the women at work against harassm ent to probe into the matter. The said inquiry committee investigated the matter and recorded the verbal and written statements of complainant Miss Faiza All and both the accused officials Mr. Abid All Mirza and Mr. Fiaz Ahmed. The appellant Abid Ali Mirza and Mr. Fiaz Ahmed were given equal opportunity for personal hearing to appear before the committee and offer statements in their defence. It is pertinent to mention here that four of the witnesses (i,e, Statistical Officers BS-17) of the same section have also submitted their written statements in favour of the complainant Miss Fiaza Ali. Consequently, the committee submitted its report to proceed further in the matter. After probing the matter, the inquiry committee found that Mr. Abid Mirza and Mr. Fiaz Ahmed were found guilty of verbal & psychological harassment to the lady. The committee has also recommended that both the accused may be censured in the light of the "Protection against Harassm ent of Women at Workplace Act, 2010". The committee further suggested that those accused may be transferred from Headquarter to field formations on administrative grounds to avoid problems in the situation further.
6. The complaint lodged by Miss Faiza Ali is available on the record, it would be appropriate to cite the some of the contents of that complaint for ready reference:--- Sir, With due respect it is stated that while working in my cabin/workplace on 28.04.2017, Mr. Fiaz S.A. and Abid Mirza (S.A.) came to me and threaten me with the claim to type some letters about which I have no knowledge to do. It is worth mentioning here that they are deliberately frightening and terrifying me time and again during the last week because, being a women I am vulnerable for male officers/officials. Mr. Abid Mirza has harassed me by pointing that I have been recommended by PPSC, but even did not know how to type a letter. May, I want to know whether any of lower official can harass me in any capacity or circumstances like that? It is therefore requested that I may be protected from mental, psychological and verbal harassment under "Protection against Harassm ent of Women Act, 2010". As this is a primary forum for me to get register the complaint against Mr. Abid Mirza and Mohammad Fiaz, otherwise I have right to approach the office of Women Ombudsperson for adequate remedies".
7. The main objection of the appellant is that respondent No, 2 was not competent to pass the impugned order only on the basis of the alleged ground made by Miss Faiza Ali, regarding the harassm ent, because, it does not fall within the terms and conditions and do not authorize the respondent No, 2 to transfer the appellant against the rules as contained in the Notification No, US.Pll(S&GAD)12(19)/18, dated 10.10.2008 issued by Government of the Punjab on the subject that office bearer of APCA may not be transferred formulated under the chairmanship of Additional Chief Secretary Punjab, vide department circular letter No, US.P-11(S&GAD)12(19)/92.P-III, dated 14.12.1994 that no office bearer of All Pakistan Clerks Association and Punjab Civil Secretariat Employees Association be transferred without his consent. As per respondents the appellant has been ceased to be the General Secretary of the employees union since from 07.05.2017 so, this notification was not applicable in the case of the appellant, have been taken into consideration and on query learned District Attorney stated that this condition imposed in this notification has been abated after the expiry of the tenure of the appellant which was uptill 07.05.2017, carries weight, because, every office of the union have certain prescribed time and it is not provided under the rules that the General Secretary of the employees union selected once, and he is for all times to come. So, in this view of the matter the arguments raised by the learned counsel for the appellant that respondent No, 2 was not competent to transfer the appellant without his consent in the light of that notification are without force. Moreover, the above-mentioned notification reflects that the said notification has not been approved by the. Government and such notification have no legal santity unless approved by the Provincial Government.
Reliance is placed on 2010 PLC (C.S) 924 Muhammad Nadeem Arif and others v. Inspector General of Police, Punjab, Lahore and other. The operative para of judgment is reproduced as under:-- "S. 12--Instructionskuleslpolicy issued by Inspector General of Police without approval of ProvincialGovernment--Validity--Such instructions/rules would not be valid and would have no legal sanctity---Long practice of department to follow such instructions/rules conflicting with parent statute or rules could not remain operative, but must be ignored---No one would be obliged to obey such directions/instructions/departmental practice--Principles."
8. As per appellant that he has also filed a departmental appeal before respondent No, 1 which has not yet been entertained and on electronic conversation via whats app the respondent No, 1 has showed reluctance to entertain the same. The appellant has filed departmental appeal on 16.05.2017 whereas, the instant appeal was filed on 14.06.2017 and the statutory period under the law is ninety days for its disposal. The appellant has approached this Tribunal after about one month of the filing of the departmental representation. In transfer matters, of course the remedy for the aggrieved civil servants lies before the Service Tribunal and prior to this the aggrieved civil servant is bound to first knock the door of Departmental Competent Authority in the shape of Departmental Appeal/Representation within thirty days of the issuance of the Transfer order, then he will have to wait for a period of ninety or till the disposal of the said Departmental Representation before invoking the jurisdiction of the Service Tribunal, meaning thereby the said aggrieved civil servant can only knock the door of the Service Tribunal after the lapse of ninety days and fulfilment of condition of departmental appeal/representation, that for very particular period, the civil servant can be left remediless, provided, he has a genuine claim which could be established through some documentary evidence like:---
(i) Transfer order passed not in the exigency of service but on direction of some MPA/MNA/Minister.
(ii) The civil servant is made a rolling stone by way of frequent transfers within days or weeks.
(iii) If the civil servant is going to be superannuated in a year. But he was dislocated from his place of posting without any cogent reason like complaint etc. and that too without inquiring into the said allegation.
In such-like circumstances, the civil servant (aggrieved) may approach the Service Tribunal for the redress of his grievance and for the purpose of disposing of his Appeal on merits in given criteria ibid.
6. As held by the Honourable apex Court in 2015 SCMR 456, the said condition of ninety days seems to be in contravention to the Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.
7. The moot point in this case is, whether the appellant fulfill the parameters on the basis of which his case could be considered against the policy as given in the notification or impugned order passed against the exigency of service or he was made a rolling stone through frequent transfer orders or he was likely to be superannuated in the year and his representation was not going to be decided within period of ninety days. As per appellant he has filed an appeal against the order of respondent No, 2 before the Women Ombudsperson Punjab and that was in process. After going through the facts, circumstances of the case there is a severe allegation of women harassment against the appellant as complained by Miss Faiza Ali which was duly probed into by the committee on the direction of the respondent No, 2 in which the appellant was provided full opportunity of defence statements of witnesses were recorded and all the codal formalities were fulfilled but he was found guilty. The transfer order of the appellant reflects that the same was passed to keep the atmosphere tranquil in the office. The appellant has already issued a punishment of Censure by the department and he has also challenged the same before the learned Women Ombudsperson, Punjab, Lahore. The ground taken by the appellant that his transfer be cancelled till disposal of that petition is not convincing because it is a settled law that criminal proceedings and civil proceedings as well as departmental and criminal proceedings can go side by side and does not effect the fate of the other proceedings. Reliance is placed on 2011 SCMR 534. The objection of the appellant that respondent No, 2 was not competent to pass the order in the light of the alleged harassment is also not sustainable, because power of transfer fall within the terms and conditions of the service and the said order was passed in the exigency of the service to save the modesty of a. woman against harassment on the part of the appellant and his colleague. Taking guide in from above-mentioned analogy I am persuaded to hold that the pendency of that petition before the learned Ombudsperson, Punjab, the department cannot be restrained to pass an order of transfer of the appellant so the arguments of the appellant on this point is meritless.
8. It is a settled law that each and every case is to be decided on its own peculiar facts and circumstances. Taking the exceptions to the judgment already passed by this Tribunal in which the appellants civil servants transfers orders were suspended till the decision of the departmental appeal, but the case of the appellant is different and distinguished as discussed above in detail. I am persuaded to hold that the instant appeal is without merit, does not fall within the criteria and is dismissed because the element of women harassment is involved in this /is and rather if this appeal is allowed it would be giving a license to the office bearers regarding women harassment.
However, before parting with this judgment, the Departmental Authority is expected to decide the appellant's representation within stipulated period as per law.
8. Appeal is disposed of in the above terms.