TARIQ MEHMOOD JAHANGIRI, J. Instant writ petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer:- "In view of the above-mentioned facts and circumstances it is respectfully prayed that by accepting instant petition the impugned orders dated 20.05.2022, 31.03.2022 and 17.12.2021 may kindly be set aside being illegal, violative to above mentioned law and judgments of Hon'able Superior Courts, coram non-judice, void ab-intio, discriminatory and outcome of victimization/harassment and in consequence thereof, the petitioner may kindly be re-instated with all back benefits to meet the ends of justice.
Any other relief which this Hon'able Court deem fit and appropriate may also be awarded in the best interest of justice."
2. Succinctly stated facts of the case are that the petitioner was appointed as Data Entry Operator in National Database and Registration Authority, Islamabad (hereinafter called as "NADRA") vide letter dated 21.05.2007. During performing his duties, the vigilance team of NADRA taken him into custody and detained for two days continuously. During custody, the petitioner was threatened to write down the statement as per their directions, consequently the petitioner wrote the statement as per their directions and signed the same, thereafter the vigilance team released the petitioner and threatened him to not approach police station otherwise the petitioner will again be taken into custody. Thereafter, the petitioner approached the vigilance head office for filing complaint but all in vain. On 17.06.2021, the petitioner was handed over relieving order accompanied with suspension order dated 09.06.2021, with the direction to report HR Pool RHO, Islamabad, thereupon, the petitioner, on same day submitted joining report at HR Pool RHO, Islamabad. On 03.08.2021, the petitioner was handed over termination of suspension order dated 03.08.2021, and was directed to report at Mega Center Blue Area (Night Shift). On 01.09.2021, the petitioner was handed over Charge Sheet and Statement of Allegations dated 01.09.2021, whereby the petitioner was levelled charge of misconduct under Rule 2(k) of Civil Servants (Efficiency and Discipline) Rules, 2020. In response thereto; petitioner has requested the respondents to provide relevant documents/record on basis of which the inquiry is to be initiated/conducted, but they did not supply the copies of relevant record/documents. After conducting an inquiry against the petitioner. Director General Administration, issued final show-cause notice vide letter dated 23.11.2021. The petitioner submitted reply to said notice, whereupon he was called for personal hearing on 08.03.2022. Thereafter, vide letter dated 17.12.2021, competent authority imposed major penalty of "Dismissal from Service", upon the petitioner, whereas, the inquiry committee has recommended the imposition of major penalty of "Reduction to a lower post for a period 2 years".
3. Being aggrieved, the petitioner filed departmental Appeal on 5-1-2022, to respondent No.1, though the. same was rejected. Thereafter, the petitioner filed review application before respondent No. 1 on 10.04.2022, which was again rejected vide letter dated 20.05.2022, hence the instant petition.
4. Learned Counsel for the petitioner, inter alia, contends that the impugned orders have not been passed in accordance with Civil Servants (Efficiency and Discipline) Rules, 2020 and the recommendations of inquiry Committee were ignored while passing the impugned appellate order as well as review order; appellate authority has ignored the fact that mandatory requirements were not fulfilled by the Competent Authority as contained in Rule 16 of Civil Servants (Efficiency and Discipline) Rules, 2020, as no power has been provided to Competent Authority to enhance the quantum of punishment which the inquiry committee has proposed; the impugned orders are not sustainable in the eyes of law; the competent authority has also ignored that the incriminating statement of co-accused is not admissible piece of evidence; the authority has also ignored law point that inquiry conducted in shape/form of 'Questions and Answers' is not valid/lawful inquiry, therefore, requirement of Rule 16(1) of Civil Servants (Efficiency and Discipline) Rules, 2020 has not been fulfilled, hence the impugned orders are liable to be set-aside.
5. Conversely, learned counsel for the respondents has controverted the arguments made by learned counsel for the petitioner and has stated that the petitioner has not come to the Court with clean hands; instant petition is not maintainable, as Service Regulations of the respondents department are non-statutory; petitioner was provided ample opportunity to contest the case in his defense but he failed to justify his position; all the postings and transfers were made as per administrative and operational requirement of department; there is no provision of review in the law after rejection of departmental appeal and has prayed that instant petition be dismissed being not maintainable and proceedable.
6. Arguments advanced by learned counsel for the parties have been heard and record has been perused with their able assistance.
7. The inquiry proceedings against the petitioner including other co-accused employees were conducted on the allegations of their involvement in illegal processing of non-nationals/nationals citizens. After completion of inquiry proceedings, the inquiry committee established the charges levelled against the petitioner. Findings of the inquiry committee are as under: "The background of' the inquiry is that Intelligence Section conducted a sting operation on the night of 24/25 April at Mega Center Murree Road Rawalpindi and apprehended 2x non-nationals (Tajik) red handed at the time of processing. They were being processed by NADRA employees with the connivance of agents in lieu of bribe. Probing the matter led to various employees confessing to facilitate and processing of non-nationals in lieu of bribe ranging from Rs.
20,000/- to Rs.25,000. Your confessional statement obtained consequent to the sting operation and in the said statement, you confessed the involvement in illegal processing in lieu of bribe of Rs. 15,000 against each processing."
8. The inquiry committee has recommended major penalty of reduction to a lower post for. a. period of 2 years, as. per Rule.4(3)(b) of the Civil Servants (Efficiency and Discipline) Rules.
9. Show-Cause Notice was issued on 23.11.2021, the petitioner submitted its reply and the competent authority vide. impugned order dated 17.12.2021, imposed major penalty i.e. "Dismissal from Service" upon the petitioner.
10. The petitioner filed departmental appeal and the opportunity of personnel hearing was provided by Chairman, NADRA, Islamabad. Thereafter, the appellate authority dismissed the appeal of the petitioner vide impugned order dated 31.03.2022, on the grounds that inquiry was ordered to be conducted under Government Servants (Efficiency and Discipline) Rules, 2020.
Whereupon, charge sheet was issued, inquiry was conducted, show-cause notice was served and all the allegations were established, hence the departmental appeal was dismissed. Being aggrieved, the petitioner filed review petition which was also dismissed vide impugned order dated 20.05.2022.
11. The important factor in this case is the confessional statement of the petitioner in his own hand writing. He affixed his thumb impressions and signatures on it, which is reproduced as under for ready reference;
12. The petitioner has admitted qua receiving of bribe amounting to Rs.15,000/- for the illegal processing and stated that he has processed about 40 forms meaning thereby that as per his own confession he has taken bribe amounting to Rs.6,00,000/- for processing the illegal CNIC forms.
13. All the legal and codal formalities have been completed by the respondent's department before the issuance of the impugned notices.
14. It is well established law that employees of NADRA who have proceeded against under the Government Servants (Efficiency and Discipline) Rules, 1973 which were adopted by NADRA under its Regulation 23 of the 2002 Regulations are non-statutory. The writ petition filed against the NADRA is not maintainable, the terms and conditions of the services of employees of NADRA are governed under master and servant rules, as NADRA Employees Service Regulations, 2002 are non- statutory. In this regard the apex court in a case titled as Major (Retd.) Syed Muhammad Tanveer Abbas v. Federation of Pakistan (2019 SCMR 984) held that: "10.... Apart from that, in our view, as held by this Court in relation to DHA, there can hardly be any doubt that NADRA is also a "person" within the meaning of Article 199(1)(a)(ii) read with clause
(5) thereof. Equally, it is also clear that the 2002 Regulations, like the DHA Service Rules of 2008, were non-statutory in nature."
Moreover, this Court in a similar case titled as Fateh Muhammad v. Federation of Pakistan and others (W.P.No.2483 of 2020) held that: "13. The Question whether NADRA Employees (Service) Regulations, 2002 ("the 2002 Regulations") are statutory and whether a petition under Article 199 of the Constitution can be filed by an employee on whom a penalty has been imposed under the Government Servants (Efficiency and Discipline) Rules, 1973 which were adopted through Regulation 23 of the 2002 Regulations is not res Integra and has been eloquently and authoritatively answered by the Division Bench of the Hon'ble High Court of Sindh in the case of Muhammad Mateen Khan v.
Federation of Pakistan (2020 PLC (C.S.) 1)....
"14. In paragraph 10 of the judgment reported as Major (Retd.) Syed Muhammad Tanveer Abbas v.
Federation of Pakistan (2019 SCMR 984), the Hon'ble Supreme Court held inter alia that the 2002 Regulations were non-statutory in nature."
"15. Since in the cases at hand, the petitioners were proceeded against under the Government Servants (Efficiency and Discipline) Rules, 1973 which were adopted by NADRA by virtue of Regulation 23 of the 2002 Regulations, which in turn have been held to be non-statutory, therefore, the objection raised by the learned counsel for NADRA to the maintainability of the writ petitions succeeds."
This Court in another case titled as Syed Muntazim Rizvi v. Federation of Pakistan and others (lntra Court Appeal No. 66/2020) also observed that: "10. We have also considered another important aspect of this case that the terms and conditions of service of appellant is governed under master and servant rules as NADRA Employees Service Regulations, 2002 are non-statutory...."
The Sindh High Court in a case titled as Muhammad Mateen Khan v. Federation of Pakistan (2020 PLC (C.S.) 1), categorically stated the above position of law and the relevant passages are reproduced herein below: "11.... i) Whether NADRA Employees (Service) Regulations, 2002 are Statutory and Writ Petition is maintainable under Article 199 of the Constitution of the Islamic Republic of Pakistan, 19 /3?..."
"12. To proceed with the question of maintainability of the Petition, we have noticed that the National Database and Registration Authority is the creation of a Statute established under Section 3 of the NADRA Ordinance, 2000. Section 35 of the Ordinance empowers the Authority and its officers and employees on such terms and conditions as it may deem fit in order to carry out the purpose of this Ordinance: While Section 44 empowers the Federal Government to make Rules for carrying out the purpose of Ordinance and Section 45 empowers Authority to make Regulations by Notification for carrying out its functions under the Ordinance and any other matter. Sub-Clause (2) of sections 37 and 45 clarifies that such regulations may provide jar appointment of the officers mentioned in Section 35. The Authority pursuant to sections 35, 37 and 45 notified its Regulations on 1.11.2002 vide S.R.O. 118 (KE)/2002. According to Regulation No.3 of the Regulations, employees of the Authority are to be governed by these regulations with regard to their terms and conditions of service. Regulation No.4 of the Regulations empowers the Authority to sanction, create, re-designate or abolish any post, discipline or cadre with the Authority as it may deem fit. Regulations 23 of the NADRA Employees (Service) Regulation, of 2002 stipulates that the Government Servants (Efficiency and Discipline Rules 1973 are made applicable to NADRA employees. The service rules of the Respondent-Authority lay down the terms and conditions of service of their employees. We may observe here that mere adoption of statutory rules of the Government or their application b reference will not automatically lend a statutory cover or content to those rules. In this context, the Honorable Supreme Court of Pakistan has already settled this principle in M.H. Mirza v. Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 2 others (1994 SCMR 1024).
The aforesaid service rules are basically instructions for the internal control or Management of Respondent-Authority and are therefore non-statutory."
"13. We are of the considered view that where conditions of service of employees of a statutory body are not regulated by Rules/Regulations framed under the Statute, any violation thereof cannot be enforced through writ jurisdiction of this Court."
15. The next important objection raised by learned counsel for the petitioner is that the competent authority cannot enhance the quantum of punishment, as recommended by the inquiry committee. In this regard, law has been laid down by Supreme Court of Pakistan in a case titled as Government of Khyber Pakhtunkhwa through Chief Secretary Khyber Pakhtunkhwa Peshawar and others v. Nargis Jamal, Ex-DEO (Female) Karak (2020 SCMR 2114), that: "There is no hard and fast rule that the competent authority in all circumstances is bound to adhere to the recommendations of the inquiry committee or inquiry officer but what carries great weight is the assiduousness and onerous duty of the competent authority to scrutinize and gauge the inquiry proceedings and inquiry report with proper application of mind for a fine sense of judgment and if charges of misconduct are proved and ample opportunity of defence was afforded to the accused during the inquiry, then obviously, keeping in mind all attending circumstances including the gravity or severity of the proven charges, the competent authority may impose the punishment in accordance with law."
Reliance is also placed on the cases titled as Tasawar Hussain v. Deputy Commissioner District Jhelum and others (2021 SCMR 1367), Mehmood Ahmed v. District Police Officer, Bahawalpur and others (2020 SCMR 653) and Abid Hussain v. Chairman, Nescom, Islamabad and another (2009 SCMR 1025).
16. It has been held by the Supreme Court of Pakistan in. a case titled as Owais Shams Durrani and others v. Vice-Chancellor, Bacha Khan University, Charsadda and another (2020 SCMR 1041) that: "It is trite that where a citizen seeks relief in constitutional jurisdiction he must point to a right statutory or constitutional which vest in him and has been denied in violation of the law."
17. It has also been held by the Supreme Court of Pakistan in a case titled as N.W.F.P Public Service Commission and others v. Muhammad Arif and others (2011 SCMR 848), that: "The right which is the foundation of an application under Article 199 of the Constitution is a personal and individual right. The legal right may be a statutory right or a right recognized by the law. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to perform relating to the right. There must not only be a right but a justiciable right in existence, to give jurisdiction to the High Court in the matter. Unless whatever right personal or otherwise, on which the application is based is established, no order can be issued under Art.199. "
18. Learned counsel for the petitioner has failed to point out any violation of law, rule and regulation available to the petitioner.
19. For what has been discussed above, instant writ petition is dismissed being not maintainable.