SYED ARSHAD ALI, J.---Through this single judgment, this court intends to dispose of, the instant writ petition as well as connected Writ Petitions Nos, 103-A and 119-A of 2018 as the common questions of law and facts are involved therein.
Through W.P. No, 1224-A of?2017, the petitioners have prayed that:- "On acceptance of instant writ petition, the letter bearing No, SOH-1/HD/7-53/2015 dated 30.11.2017 issued by the respondent No,2 at the instance of respondent No,1 be cancelled."
In Writ Petition No, 103-A of 2018, the petitioner, namely Professor' Dr. Aziz-un-Nisa, has prayed that:- "it is, therefore, humbly prayed that on acceptance of this writ petition, the alleged enquiry and bearing No, 42/4/DEV2691 dated 07.11.2017 issued by respondent No, 4 be declared as without> lawful authority, politically motivated, illegal, without jurisdiction, mala fide, without notice to the petitioner and be cancelled."
While in W.P. No, 119-A of 2018, it has been prayed that:- "On acceptance of this writ petition the notification bearing No,BOG/MTI 2018/477 dated 31.01.2018 issued by respondent No, 3 and as its consequent issuance of notification No, BOG/MTI 2018/478 dated 31.01.2018 be also declared as mala fide against law, without jurisdiction and without lawful authority, against the principle of natural justice and both the notifications impugned herein be cancelled/set aside.--
2. Ayub Medical Teaching Institution ("AMTI"), Abbottabad is an autonomous medical institution initially established under the erstwhile The Ayub Medical College Board of Governors Ordinance, 1978 (Khyber Pakhtunkhwa Ordinance No, XIX of 1978), however, upon the promulgation of Khyber Pakhtunkhwa Medical Institutions Reforms Act, 2015 (The Act of 2015), the affairs of AMTI are governed under the Act of 2015.
3. The Provincial Inspection Team of Khyber Pakhtunkhwa, pursuant to the directions of the worthy Chief Minister of Khyber Pakhtunkhwa,communicated through letter No, SO-II/CMS/ KPK/2013/9367 dated 18.12.2013, conducted an inquiry in the procurement made by AMTI. The said inquiry unearthed the mis-procurement of items, supply of sub-standard items to the hospital and also unearthed the venality of the officials involved in the procurement process. On the basis of inquiry of Provincial Inspection Team and the direction of the worthy Chief Minister, the Board of Governors ("BoG") AMTI, the competent authority for initiation of disciplinary, action against the officers and employees of AMTI, initiated disciplinary action against the petitioners of W.P No, 1224- A of 2017. Through letter dated 21.09.2015, the inquiry officers (Committee) were appointed and show-cause, notices along with the statement of allegations were issued to the petitioners in W.P.
No, 1224-A of 2017. According to the statements of allegations, following accusations were levelled against the petitioners: i. That he was found inefficient as member of the purchase committee to procure equipment for the OB/Gyne and Pediatrics block. ii. That he/she showed lack of interest and inefficiency in the project of OB/Gynae and Paeds Block.
4. The petitioners filed their separate replies and on the basis of said replies and statements of allegations, the inquiry committee found and confirmed that there was no loss to the exchequer, however, the inquiry committee noted that some procedural anomalies were made during the process of procurement which can be taken care of by the usual process of accountability i,e, regular audit by the concerned quarters. The said inquiry report was placed before the BoG of AMTI.
The BoG in its meeting held on 05.03.2016, met and deliberated with the inquiry committee and upon such deliberation decided to endorse the findings of the inquiry report. Accordingly, the Hospital Director, AMTI, was directed to communicate the decision of the BoG to the Health Department of Provincial Government. The petitioners were exonerated of the charges through order dated 27.06.2016.
5. Through letter dated 30th November, 2017, the Deputy Secretary (Administration), Health Department of Government of Khyber Pakhtunkhwa, conveyed the displeasure of the Provincial Government to the Chairman, BoG AMTI, regarding the inquiry/disciplinary proceedings conducted against the petitioners and stressed that strict action be taken against the petitioners by considering the inquiry report of Provincial Inquiry Team.
6. All the petitioners are aggrieved of this letter, hence, have filed present Writ Petition No, 1224-A of 2017 to which respondent No, 3 has filed its para-wise comments. However, after arguing the case at some length, learned counsel Sardar Nasir Aslam Khan, representing respondent No, 3, has stated that they will place the aforesaid letter before the BoG, AMTI and it is for the BoG to decide the fate of the said letter. The learned counsel Messrs Tahir Hussain Lughmani and Sajjad Ahmed Abbasi advocates, after consulting the clients have agreed .that they will not press the petition if the said letter is placed before the BoG, AMTI and, before initiating any action by BoG, an opportunity of hearing is provided to the petitioners. Learned counsel appearing on behalf of the respondents have agreed with the same and hence, petition stands disposed of in the aforesaid terms.
7. Now moving to W.P. No, 103-A of 2018. In the said writ petition, the petitioner Dr. Aziz-un-Nisa has challenged show-cause notice dated 24.01.2018, issued to her under Rule-5 of the Khyber Pakhtunkhwa Government Servants (Efficiency and Disciplinary) Rules, 2011, (Rules of 2011), which were adopted by the BoG, AMTI. The respondents have filed their comments wherein they have placed on file a notification dated 31.01.2018 whereby the petitioner has been dismissed from service. Since the petitioner has challenged the entire process of her dismissal through Writ Petition No, 119-A of 2018, therefore, this petition has become infructuous and is thus, accordingly dismissed.
8. Adverting to Writ Petition No, 119-A of 2018, wherein, according to the averments made in the petition, the petitioner namely Dr. Aziz-un-Nisa was appointed as Dean of Ayub Medical College, ("AMC") on 07.05.2016. The petitioner was issued show-cause notice dated 24.01.2018 by respondent No, 4, Chairman, BoG, AMTI along with statement of allegations, however, according to her petition, she received both the documents on 25.01.2018. The said show-cause notice contains the following allegations:-
1. That, divisional Monitoring and Evaluation (P&D) Department, Government of KPK has recommended your "Termination from Service" AT THE EARLIEST VIDE COMMISSIONER Hazara Division letter No, 42/4/Dev2691 dated 07.11.2017 addressed to the Honourable Chief Secretary Government of Khyber Pakhtunkhwa, Peshawar.
2. That, you Prof Dr. Aziz-un-Nisa, Dean AMC are drawing MTI special allowance in addition to your salary without observing institutional based practice (IBP) since 7th May, 2016, which is clear violation of MTI reform amended act Section 17(3). Hence, you have illegally received extra allowances which are liable to be recovered as has also been "recommended" by the Divisional Monitoring and Evaluation (P&D) Department.
3. That you Prof Aziz-un-Nisa applied and got selected as Dean while corruption and inefficiency cases were yet not quashed.
4. That, you being the chairperson of Gynaecology Department were supposed to provide up-to- date standard medical facilities to the proof and needy patients in GYNAE/OBS Department but you have deliberately not utilized the newly provided "THERAPEUTICS SURGICAL LAPAROSCOPE" machine for providing treatment as you kept the said machine in your lock up for about four and a half years and used only the old Diagnostic Laparoscope committing criminal negligence. The.
Hospital Director MTI ATH has also fixed the responsibility upon you being Head of Gynae/OBS Deptt in formal inquiry for non utilization of the said machine through letter No,PS.HD/ATH18969 addressed to the undersigned, dated 12.12.2017. Moreover, the Divisional Monitoring and Evaluation'
(P&D) Department has also recommended action against your said negligence.
5. That you have been found resorting to Nepotism and favoritism. In this regard, you issued notification of "Adjustment" of your husband namely, Dr. Saleem Wazir as Professor against regular sanctioned post of BPS-20 without following the prescribed procedure laid down in the MTI Act 2015 and other service operational procedures. Your husband was not fulfilling the criteria to be regularized in BPS-20 as per rules of PMDC and was not eligible for the said benefit. It was also pointed out in the fact finding inquiry . marked by chief secretary to chairman BOG. Further Dr. Salim Wazir is also under investigation in NAB and Ehtisab Commission.
6. That, you with mala fide intentions and ulterior motives transferred Dr. Zainab Naznin FCPS Community Medicine from her specialty of Community Medicine Department to unrelated Forensic Department. Hence, you have failed to utilize the services of right persons on right places and caused educational loses to the undergraduate students of AMC as well. You misguided the competent authority by telling lie that you have heard the aforesaid officer in grievance committee which is actually not constituted to date. Hence, you showed insubordination to the competent authority.
7. That, it was unanimously decided in BOG meeting Agenda Item No, 1 dated 01/12/2017 that the salary emoluments of two professors Dr. Aftab Rabbani and Dr. Imran Ullah be released. But you willfully and deliberately did not implement the decision of the Board of Governors. Hence, you have transgressed from your powers and showed insubordination to the competent authority.
8. That, you during the Board meeting dated 20.01.2018 literally misbehaved with the members of Board of Governors. Your misbehavior is against the principles of subordination and code of ethics. Your act alone renders you liable to be proceeded under the Disciplinary Rules.
9. That, as per law you being Dean AMC, cannot remain as chairperson of Gynaecology Department, therefore, as decided by the BoG you were directed twice by official e-mails to step down from the position of chairperson of Gynae/Obs Department and appoint the next senior most Professor as chairperson of the Department as practice in vogue but you intentionally turned deaf ear to the orders of BoG and to e-mails which amounts to constant insubordination.
10. That, you did not comply the decision of due promotions of eligible and merited faculty members settled by the board of governors.
11. That, you didn't comply the decision of BOG to notify orders of Prof. Dr. Noreen Sultan as Chairperson Biochemistry Department and showed insubordination to the competent authority."
9. In the said show-cause notice, the petitioner was asked to submit her reply within seven (7) days from the dateof receipt of the show-cause notice, failing which she will be proceeded ex-parte.
The respondents have placed on file, in their comments (filed in Writ Petition No, 103-A of 2018), a letter of the present petitioner whereby she had stated that she received the show-cause notice without any annexures on 29.01.2018 and requested respondent No, 4 to provide her with the annexures. However, the requested documents were never provided and accordingly through letter/notification dated 31.01.2018, respondent No,4, Chairman, BoG AMTI, while exercising his powers under Rule 4(1)(d) of the Act of 2015, read with Rules of 2011, imposed punishment of major penalty upon the petitioner of dismissal from service. The petitioner has questioned the initiation of show-cause notice as well as notification of her dismissal from service through present petition.
10. Learned counsel Messrs Sardar Nasir Aslam Khan, Nasrullah Khan Jadoon and Muhammad Arshad Tanoli, Advocates, representing the respondents, have stated that they do not need to file any separate comments in the instant writ petition and the comments filed by them in Writ Petition No, 103-A of 2018 may be considered also for this petition.
11. The learned 'counsel, appearing on behalf of the petitioner has argued that the entire process of initiating inquiry against the petitioner is based on mala fide and she alone has been singled out while other officials have not been proceeded against so far. He has further argued that respondent No, 4 has no authority to initiate disciplinary action against the petitioner and it is only the BoG which is competent to initiate any action against the petitioner. He has further attacked the slipshod and hasty disciplinary proceedings and argued that in the show-cause notice, a seven (7) days period has been provided for submission of reply and since show-cause notice was not accompanied with the documents upon which show-cause notice was based, hence, on 29.01.2018, the petitioner requested for providing her all the relevant documents. He argues that despite her request, neither was she provided the required documents nor an opportunity of hearing, thus, in a very hasty manner, she was dismissed from services.
12. On the other hand, learned counsel appearing on behalf of the respondents have argued that respondent No, 4 is the competent authority for initiating disciplinary action against the petitioner under Rules of 2011 as the Rules have been adopted by the BoG, AMTI, vide minutes of the meeting dated 20.06.2015 and the BoG has delegated the power of the BoG for initiating disciplinary actiori against employees in BPS-18 and above vide meeting dated 07.05.2016 to the Chairman, BoG. The learned counsel have further argued that petition is not maintainable as an appeal against the decision of the Chairman lies, under Rule 17 of the Rules of 2011, to the worthy Chief Minister, therefore, this petition, without first resorting to the appellate authority, is not maintainable.
13. Arguments heard and record perused.
14. The first and foremost issue for consideration before this Court is whether the Chairman, BoG, respondent No, 4, has any authority to initiate disciplinary action against the petitioner who is Dean of the Medical Teaching Institution. As stated earlier, AMTI is a medical teaching institution in terms of Section 3 of the Act of 2015 and as such, the affairs of appointments in the AMTI are governed under the Act of 2015 and the Regulations made thereunder. The management of the AMTI vests in the BoG formed and constituted under Section 5 of the Act of 2015. The BoG comprised of members appointed by the Government of Khyber Pakhtunkhwa from private sector. Indeed, as evident from the preamble of the Act of 2015, AMTI enjoins autonomy and the BoG is the governing body. The functions and powers of the Board are provided under Section 7 of the Act of 2015 which is reproduced as under:- "7. Functions and powers of the Board.---(1) The Board shall be responsible for-
(a) ensuring that the objectives of the Medical Teaching Institution within the overall ambit of Government policy are achieved, overseeing the effective management, and providing strategic direction to the Medical Teaching Institution;
(b) policy making of a Medical Teaching Institution and ensuring that the performance of a Medical Teaching Institution and its programmes are efficient and effective;
(c) prescribe procedure for appointment, terms and conditions of service, disciplinary matters and other service matters for the employees of a Medical Teaching Institution;
(d) approval of vision and mission statement of a Medical Teaching Institution;
(e) approval of annual business plan; (f) review and approval of major transactions;
(g) approval of new programs, and services and monitor organizational performance;
(h) approval of financial plans and annual budget;
(i) approval of bye-laws for medical staff and oversee the for appointment of members of the medical staff, approval of programs and services to ensure that a Medical Teaching Institution fulfills legal, regulatory and accreditation requirements; and
(k) constitution of Finance Committee, Recruitment Committee and such other Committees or Sub-Committees, as it may deem appropriate.
(1) compliance to Government policies and standards and in case of any deviation from agreed standards or procedures shall obtain prior approval from Government.
(2) Each medical Teaching Institution shall be accountable to Government for its performance and shall regularly provide performance based data at set intervals based on Government's set performance monitoring format for the Medical Teaching Institutions with attendant reward and discipline measures and the Government shall also periodically evaluate the performance of the Medical Teaching Institutions against the set targets particularly related to efficiency, effectiveness and equity with attendant reward and discipline measures.
(3) The Board may delegate its powers for recruitment to various management levels within the Medical Teaching Institution."
15. For smooth and efficient administration of the institutions, the BoG is assisted by officials other than the employees of the AMTI (for the purpose of brevity, hereinafter referred to as managerial officers). They are, Hospital Director, appointed under section 10 of the Act of 2015 who is responsible to the BoG for affairs relating to the non-clinical functions of the hospital. Similarly, for ensuring clinical excellence and patient care, Medical Director is appointed under Section 12 of the Act of 2015 whereas for matters relating to the nursing functions a Nursing Director is appointed and for the matters relating to finance, a Finance Director is appointed. The medical college and the academic council is headed by the Dean who is appointed under section 9(4) of the Act of 2015 by the BoG. All the aforesaid appointments are tenure tracked and appointed for the period of three years. They are not necessarily to be employee of hospital before their appointment against the managerial posts stated above. According to section 9 (4) of the Act of 2015, the Dean is appointed by the BoG for a period of three (3) years and accordingly, Section 9(6) of the Act of 2015 provides that the Dean may be removed from office by the BoG on such grounds as may be prescribed. Hence, the appointing and removing authority of the Dean is the BoG of the institution.
Section 9 of the Act of 2015 is reproduced below in order to better understand the scheme of his appointment:- "9. Teaching Institutions.---(1) All colleges in the Province of the Khyber Pakhtunkhwa shall affiliate with the Khyber Pakhtunkhwa Medical University for the purpose of their examinations.
(2) The college shall be headed by a Deuty and shall consist of Chairpersons and medical faculties of various departments of the college.
(3) In each college there shall be an Academic Council headed by the Dean to prescribe and set principles and standards for teaching, research, training, student admissions, curriculum development, scholarly activity, to ensure and inculcate the highest ethical standards.
(4) The Dean shall be appointed by the Board for a period of three years.-through merit-based process on such terms and conditions and having such qualifications and experience as the Board may prescribe;
(5) The Chairpersons and medical faculties of the college shall be appointed by the Dean for a period of three years through a merit based process on such terms and conditions and in such manner as may be prescribed.
(6) The Dean may be removed from office by the Board at any time on such grounds as may be prescribed.
(7) In the performance of functions, the Dean shall be responsible to the Board while the Vice- Dean and Chairpersons of the department shall be responsible to the Dean and Academic Council."
16. The AMTI under section 24 of the Act of 2015 had also framed regulations which inter-alia provides for the working of the BoG, qualification for appointment against various positions and employees of the institution. From the perusal of the Act of 2015 and the Regulations it appears that the management of the institution vests in the BoG which is headed by the Chairman and for various disciplines, the Act of 2015 itself provides various managerial positions i,e, Hospital Director, Medical Director, Nursing Director, Finance Director and the Dean, whereas the employees constitute a different category which is separately dealt by section 16 of the Act of 2015 which reads as under:-
16. Service of the Medical Teaching Institution.---(1) The Board may appoint such persons, experts or consultants in the service of a Medical Teaching Institution, as deemed necessary and on such terms and conditions as may be prescribed.
(2) Before the commencement of this Act, all administrative and teaching staff recruited by the Management Council in the prescribed manner under the Khyber Pakhtunkhwa Medical and Health Institution and Regulations of Heal Care Services Ordinance, 2002, shall be considered as employees of the concerned Medical Teaching Institution and shall continue to serve the Medical Teaching Institution on the same terms and conditions as applicable to them immediately before the issuance of the notification under subsection (3) of Section 1, till further orders.
(3)On commencement of this Act, all the civil servants, serving in an existing Medical Teaching Institution may, within a period to be notified by the Government, opt for the employment of the Medical Teaching Institution. The civil servants who opt for the employment of the Medical Teaching Institution. The civil servants who opt for employment of the Medical Teaching Institution, their service structure, promotion and disciplinary matters shall be determined by the Medical Teaching Institution. Such employees shall be entitled to post-retirement benefits and emoluments as per existing government laws and rules. Medical Teaching Institution shall deposit pension contribution on their behalf. For the civil servants on deputation to the Medical Teaching Institution, pension contribution shall be made by the Medical Teaching Institution. Civil servants who do not opt for their absorption in the Medical Teaching Institution, so notified, shall be dealt in such a manner as provided in section 11A of the Khyber Pakhtunkhwa Civil Servants Act, 1973, for their future posting which includes secondment to the Medical Teaching Institution on need basis.
All deductions made from pay of such civil servants shall be deposited by the borrowing authority.
(4) After the commencement of this Act, if the provisions of this Act are applied to any newly established Medical Teaching Institution within the meaning of section 3 of this Act, all civil servants serving in the Medical Teaching Institution, shall be dealt in a manner as provided in subsection (3);
(5) The options under subsection (3) once exercised shall be final. A civil servant, who opt to serve the Medical Teaching Institution, shall cease to be civil servant from the date of his absorption in the service of the Medical Teaching Institution concerned and their seniority, pension and other matters vis-a-vis with the employees of the Medical Teaching Institution, shall be determined in the manner, as may be prescribed by rules.
(6) If at any time, a Medical Teaching Institution reverts to Government for running under its own administration and management for any reason, the employees appointed under subsection (1) shall continue to serve the Medical Teaching Institution, on the same terms and conditions as applicable to them immediately before such reversion."
17.According to section 9 of the Act of 2015, it is only the BoG which can appoint and remove the Directors. Although the Act of 2015 and the Regulations provide a procedure for appointment and functions of the Dean and the term of his appointment (three years), however, the same is completely silent about the procedure for removing the Dean. Section 9(6) of the Act of 2015 only envisages that the Dean can be appointed for three (3) years and he/she may be removed by the BoG on such grounds as may be prescribed. The Act does not empower the BoG to delegate its powers to any other authority for appointment or removal of the Dean. Therefore, the respondent No, 4 who is Chairman of the BoG, alone has no authority to initiate any action against the Dean. It is settled law that in order to enable a person to delegate the powers or functions, there must be an authority, expressed or implied, to delegate. A When power is conferred on a particular person, then that person alone has to exercise the powers and cannot transfer its exercise to another person. Reliance in this regard is placed on Muhammad Ashraf Tiwana and others v. Pakistan and others (2013 SCMR 1159), Ch. Allah Ditta v. Muhammad Azeem Bhatti and 15 others (2017 CLC 776), Meraj Din Bhatti v. Chairman, Pun/ab Board of Technical Education, Lahore and 4 others (2005 PLC (C.S.) 551) and Oil and Gas Development Company Ltd. through Manager (Pricing) v. Federal Board of Revenue through Chairman and 2 others (2016 PTD 1675).
18. The impugned order dated 31.01.2018 shows that respondent No, 4 has dismissed the petitioner from the post of Dean, whereas section 9(6) of the Act of 2015 does not envisage for dismissal of Dean, but only envisages for removal of Dean that too by the BoG. Hence, we hold that respondent No, 4 has no authority either to remove or dismiss the Dean.
19. Now adverting to the arguments of learned counsel for the respondents that since the Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules 2011, have been adopted by the BoG, therefore, disciplinary proceedings against the Dean can be initiated under the Rules and since the BoG has delegated the power for initiation of disciplinary action against the employees of the AMTI on the Chairman of the Board, therefore, the Chairman has the authority to initiate the disciplinary action against the Dean. This argument of the learned counsel is not tenable because, as stated above, the Dean holds a managerial post whereas the employees are appointed under section 16 of the Act of 2105 which is altogether a different cadre. Therefore, the Rules are not applicable in the case for removal of the Dean.
20. The grounds for removal of Dean is to be prescribed as envisaged under section 9(6) of the Act of 2015. 'Prescribed' as per section 2(m) of the Act of 2015, means prescribed by Rules or Regulations. The Rules are framed under section 23 of the Act of 2015 by the Government, whereas the Regulations are framed by the BoG under section 24 of the Act of 2015. We have before us both, the Act of 2015 as well as Regulations of the respondent-institution dated 19.01.2016. Both are silent about the grounds on which the Dean can be removed. Even otherwise, the manner through which the disciplinary action against the petitioner was initiated and she was dismissed from service cannot be upheld in any manner as evident from the statement of allegations, the said allegations cannot be established without regular inquiry. Indeed, it is a settled principle of law that any disciplinary proceedings relating to the misconduct of an employee/officer of any department, which entails major ,penalty of removal/dismissal from B service, must be inquired through regular inquiry, which cannot be dispensed with, in matter where controversial facts and ticklish questions are involved. Guidance can be sought from Muhammad Naeem Akhtar v. Managing Director Water and Sanitation Agency LDA, Lahore (2017 SCMR 356), Muhammad Abdul Moied v.
Government of Pakistan (2010 SCMR 1546), Government of Punjab v. Tauqeer Mazhar Bukhari (2008 SCMR 1362), Zulfiqar Ali v. District Health Officer, Okara (2014 PLC (C.S.) 856), Syed Sajjad Haider Kazmi v. Director-General (S&GAD) WAPDA (2007 SCMR 1643) and Engineer Majeed Ahmed Memon v. Liaquat University of Medical and Health Sciences Jamshoro (2014 SCMR 1263). In the present case the petitioner has been issued show-cause notice containing serious allegations and without waiting for a detailed reply from her, respondent No, 4 has imposed major penalty of dismissal on the petitioner. This slipshod and hasty decision, not only lacks reasons but is contrary to the established principle of natural justice.
21. Accordingly, for the reasons stated herein above, Writ Petition No,119-A of 2018 is allowed. The impugned show cause notice dated 24.01.2018 as well as termination letter dated 31.01.2018 is held as illegal and without lawful authority, hence, set-aside. However, the BoG, AMTI, may initiate any action for removal of the petitioner in accordance with law.