1. AZHAR SALEEM BABAR, J. The above titled writ petitions have been filed to set aside the orders of termination of petitioners' service with AJKRSP . The parties have filed written arguments in support of their rival versions. Saqib Saleem, the petitioner , in Writ Petition No.1968/2016 was appointed as Programme Manager Admin and HR in Azad Jammu and Kashmir Rural Sports Programme (AJKRSP) on 12.03.2013. After successful completion of his prohibition period he was regularized as Project Manager Admin and HR vide order dated 03.09.2013. He was awarded 4 months allowance @ Rs. 20,000/-per month in view of his achievement of targets. The petitioner has attached some evaluation documents which show his excellent performance in the organization.
2. The petitioner has been terminated by Azad Jammu and Kashmir Rural Sports Programme on 26.05.2016. Order of termination has been issued under clause 8.06, Chapter 8 of Azad Jammu and Kashmir Rural Sports Programme Employee Service Rules, 2009.
3. On the other hand the petitioners in Writ Petition No. 2440/2016 have been terminated from their service vide order 08.08.2016 however service of these petitioners has been terminated under clause 8.08 of the Azad Jammu and Kashmir Rural Sports Programme Employees Service Rules, 2009. Difference between two clauses shall be discussed later on. It may be stated here that Umar Nazir and Nofal Mushtaq Prog ramme Officers have withdrawn their case and they no more litigating as per interim order dated 06.10.2016.
4. It has been argued on behalf of Saqib Saleem, the petitioner , that the petitioner is a regular employee of Azad Jammu and Kashmir Rural Sports Programme and his service is governed by Azad Jammu and Kashmir Rural Sports Programme Employee Rules, 2009. The petitioner has contended that he has been removed from service under clause 8.06 of Azad Jammu and Kashmir Rural Sports Programme Employee Service Rules, 2009 (herein after may be called Service Rules, 2009) and a specific procedure has been provided by the rules for such termination. The petitioner has argued that procedure of resignation and termination has been provided in Rule 15.02 and the respondents have failed to adopt the procedure prescribed by rules. For ready reference relevant clause 15.02 is reproduced as under: 15.2 A termination notice from (PA116) will be prepared by the immediate supervisor of the employee to be terminated. The form will be forwarded to appropriate authority in accordance with the Delegation of Authority/Employee Service Rules. However , an employee cannot be terminated unless all provisions specified in the current law have been fulfilled. In order to justify a termination following must be present: *A complete personal file of the employee to be terminated containing at least three warning. *Complete documentation of the reasons for proposed termination; * Board Resolution for termination due to budget constraints, change in policies, Government decision etc. * A provision in the service contract.
5. It has been claimed that an inquiry committee was constituted for probing into allegations against Saqib Saleem, the petitioner , but one of the Senior Mem ber Mr. Lashker Hussain Programmer Manager apologized to participate in the proceedings for the reason that he remained under subordination of petitioner , so the committee could not conclude its findings. In such a situation, allegations of indiscipline, misconduct and misuse of powers have not been proved against the petitioner . The petitioner has submitted that removal of petitioner from service under clause 8.06 is therefore unlawful and is liable to be set aside.
6. Haroon Rasheed, the petitioner , in other writ petition has also filed the same reasons against his termination order .
7. Azad Jammu and Kashmir Rural Sports Programme has filed written arguments however para-wise comments/written statement on behalf of organization are more comprehensive. It would be appropriate to reproduce the relevant paragraphs of written statement for convenience:
3. Nature of Financial Crisis and downsizing : Background of downsizing of AJKRSP that resulted in litigations against the organ ization by some terminated staff members is elaborated as under: i. The previous management that assumed the office on March 2013 inherited an amount of PKR.220 million in shape of endowment fund. This amount was a restricted grant and the management was liable to utilize only profit on Rs.220 millions, however , the (previous) management availed running finance of Rs.13 million and fully consumed it to bear the operational expenses of the organization and unnecessa rily created extra staff positions without due approval from BOD of Azad Jammu and Kashmir Rural Sports Programme and without considering the income of the organization. ii. The previous management was suppos ed to curtail operational and salary expenses of core program according to earnings of endowment fund (profit against investment of endowment) which was around 2.1 million per month at that time (as of March 2013) but expenses substantially exceeded from this amount that resulted in depletion of endowment fund. During this tenure a loan of Rs.95 million and Rs.38 million was used by previous management.
8. When the current management assumed Office on March 16, 2016, the earning on endowment fund (profit against the investment of endowment fund) and the project had decreased around 2.1 million per month (in March 2013) to around 0.51 million per month approxima tely (as on March 16, 2016) while the operational expenses of the core program was around 05 million per month. iii. In the background of above situation, the current management has no choice other than to take swift actions to avoid further depletion of the financial resources of the organization. The management introduced a strict financial control and decided to downsize/right-size the organization and to revise the existing salary structure of remaining staff to bring its financial expenses within the earning of endowment fund and the project which was around Rs.1.2 million (on march 2016). For this purpose, a thorough consultation was made and the most senior staff member of Azad Jammu and Kashmir Rural Sports Programme were including in this process. While retaining and terminating any particular staff member , the length of his services in organization, current needs of the organization and productivity for the organization of that particular staff member were set as key criteria. The salary structure of retaining staff was also revised. It is impo rtant to mention here that previous CEO was receiving salary package of an amount of PKR.350,000 per month while the salary of current CEO has reduced by 40% (PKR 140,000 per month. iv. The process of downsizing was carried out while considering following key points: It is the legal obligation of the current management to keep intact available financial assets particularly endowment fund of the organization and no extra spending should he carried out without due approval from BOD of Azad Jammu and Kashmir Rural Sports Programme. Azad Jammu and Kashmir Rural Sports Programme is neither a government department nor receiving any kind of annual budget from government to run its operation as such the core program of the organization can be operated with its self-generating financial resources i.e. through saving of project management fee along with generous earning form investment of endowment funds. It is also need to highlight here that both profit from investment of Endowment fund and saving from project restrict current management to keep its expense around 1.2 million per month. The Staf f members those who terminated management was surplus to the needs of the organization. Some members of previous management (top four official including CEO Azad Jammu and Kashmir Rural Sports Programme) are under investigation in Azad Jammu and Kashmir Ehtesab Bureau on the charges of misusing authority , illegal and excess hiring of staff and using Endowment fund for operational expenses without due approval form BOD of Directors of Azad Jammu and Kashmir Rural Support Programme. v. During the process of downsizing, the current management has terminated services of 140 staff members including 27 members (list enclosed as annexure II) those were terminated on August 8, 2016. Out of these 27 staff members 8 were went for litigation against Azad Jammu and Kashmir Rural Sports Programme. Later on three staff members (Umar Nazir , Nofal Awan and Raja Pervaiz) have withdrawn their case.
4. Dismissal of Program Manager Admin HR/Project Manager Community Nutrition Program.
9. I. As a part of its effort to end corrupt practices in Azad Jammu and Kashmir Rural Sports Programme, the current management took action against Program Manager Admin HR/PM Community Nutrition Program/ Joint signatory of the accounts of the Azad Jammu and Kashmir Rural Sports Programme. The management found that Saqib Saleem was involved in fake hiring of 2 security guards in the project "Community Nutrition Program" and illegal transferring of staff fund of an amount of Rs.235,000 in his personal bank account. The fund was contributed by project's staff for farewell retreat. It is also pertinent to mention here that Mr. Saqib Saleem is also under investigation in Ehtesab Bureau for variou s other wrongdoings including illegal purchasing and misuse of authority along with Mian Akhlaq Rasool (Exh. CEO) and Raja Shazad (Ex. DPM Finance). Being second joint signatory of Azad Jammu and Kashmir Rural Sports Programme bank accounts, Mr. Saqib Saleem allegedly misused his powers to transfer huge amount of rupees in ex. CEOs personal bank account from Azad Jammu and Kashmir Rural Sports Programme bank accounts which are recoverable and also being investigated by Ehtesab Bureau.
10. II. Mr. Saqib Saleem was dismissed under clause 8.06 of chapter 8 of Azad Jammu and Kashmir Rural Sports Programme Service Rule, 2009. The clause read; "Services of an employee may be terminated on grounds of indiscipline, theft, fraud, misconduct, misappropriation or dishonesty . Staff terminated on the above ground shall not be entitled to severance pay or other benefits normally admissible to staff leaving the service of Azad Jammu and Kashmir Rural Sports Programme (Copy of this particular section of Azad Jammu and Kashmir Rural Sports Programme's Service Rules, 2009 and a copy of termination letter is attached as Annexure III).
11. Before proceedings further , it looks appro priate to differentiate between clauses 8.06 and 8.08 of Service Rules, 2009. For proper appreciation both the clauses are reproduced herein under: 8.06 Service of an employee may be terminated on grounds of indiscipline theft, fraud, misconduct, misappropriation or dishonesty . Staff terminated on the above grounds shall not be entitled to severance pay or other benefits normally admissible to staff leaving the service of Azad Jammu and Kashmir Rural Sports Programme.
12. 8.08 The service of a regular employee may be terminated by giving three months' notice in case of management staff and one month's notice in case of other staff or salaries paid in lieu of the notice. An employee who has completed two years of regular service will be entitled to severance pay .
13. A perusal of both the afore reproduced clauses leads to the conclusion that former clause has been enacted to proceed against employee's on the grounds of indiscipline, theft, fraud, misconduct, misappropriation or dishonesty whereas the later clause reveals that a regular employee may be terminated by giving 3 months notice in case of management staff and one month notice in case of other staff. Difference between 2 clauses is that under clause 8.06 the employee to be terminated is not entitled to severance pay whereas under clause 8.08 such employee has been held entitled to severance pay. Yasir Rafique, the petitioner has been terminated from service under clause 8.06 so it was necessary for the respondents to establish the allegations of misconduct, misuse of powers or financial misappropriation. A copy of constitution of committee by CEO of the time has been attached with the writ petition as annexure "PE" which shows that a committee was constituted consisting of Mr. Lashkar Hussain Azad PRM North Region, Mr. Farhan Ahmed Khawja PM Liaison and Mr. Babar Kabir PM Finance. It has already been mentioned that Mr. Lashkar Hussain Azad apologized from conducting inquiry against the petitioner , so the committee could not perhaps resume its functioning since its birth. There is no record available to substantiate that an inquiry committee was subsequently constituted and that any such committ ee investigated into allegations against Saqib Saleem, the petitioner . So, there is no finding of any Inquiry Committee available on record against the petitioner .
14. Parawise comments/written statement filed by the organization depicts a financial crunch of Azad Jammu and Kashmir Rural Sports Programme and the organization was amply empowered by rules to terminate the service of petitioner Saqib Saleem in view of such financial constrains. However , when an allegation of misconduct and dishonesty was levelled against the petitioner , it was the responsibility of respondents to probe such allegation before passing an order of termination. It has already been discussed that under Rule 8.06 of Service Rules, 2009 an employee can be probed for different allegations and in such eventuality an order of termination can be passed if allegations against the employee stand proved from findings of Inquiry Committe e. The respondent organization has not undergone the prescribed rules, so order of termination of petitioner from service is not maintainable.
15. The petitioners Yasir Rafique and others have been terminated under rules 8.08 of Services Rules, 2009 which empower the respondent organization to terminate the service of a regular employee by giving 3 months notice.
16. Argument of financial crunch of Azad Jammu and Kashmir Rural Sports Programme is relevant to the case of these petitioners. It may be added here that argument of financial crunch is not a mere excuse, rather bona fide of respondent organization in relation to financial constrains is evident from the para-wise comments, wherein it has been mentioned that salary package of CEO has been reduced by 40% from Rs. 3,50,000/- to 1,40,000/- per month. It may further be added here that Azad Jammu and Kashmir Rural Sports Programme is a (NONE GOVERNMENT AL ORGANIZA TION) NGO who is supposed to generate funds for its sustainability . According to rules, NGO is not entitled to disburse the endowment fund and has to meet its running expenditure from the interest of endowment fund. Para wise comments reveal that previous management of the organization reduced the endowment fund to considerable percentage and thus misappropriated the endowment fund for non-productive needs. Azad Jammu and Kashmir Rural Sports Programme in its written statement has explained the conduct of Yasir Rafique, the petitioner , by explainin g that the petitioner not only misused his position but obtained loan from the Organization as well it has further been stated that the petitioner obtained loan against his salary from HBL so an amount of more than 3 million is outstanding against him. Obviously , the petitioner is responsible to refund the loan in accordance with law. Azad Jammu and Kashmir Rural Sports Programme is at liberty to adjust the sum borrowed by Yasir Rafique, the petitioner , against his salary .
17. It may be added here that the responden ts are amply empowered to terminate the service of a regular employees under Rule 8.08 of Civil Service Rules, 2009 by giving 3 months notice or payment of salary in lieu of such notice. It has already been concluded that Azad Jammu and Kashmir Rural Sports Prog ramme is not barred by law to constitute an inquiry committee for probing into the allegations against Saqib Saleem, the petitioner .
18. The nutshell of the above discussion is that Writ Petition No.1968 of 2016 titled Saqib Saleem v. Chairman Azad Jammu and Kashmir Rural Sports Programme and others is accepted in the terms indicated above and order of termination of his service is set aside whereas Writ Petition No.2440 of 2016 titled Yasir Rafique and others v.
19. Chairman Azad Jammu and Kashmir Rural Sports Programme is dismissed with no order as to the costs.