1. HAIDER ALI PIRZADA, J.--This petition of Ahmad Farooqui under Article 9 of the Provisional Constitution Order, 1981 seeks to question the inquiry held against him is void and unlawful and further seeks a declaration that punishment of compulsory retirement imposed on him by the respondent No. 2 is male fide vindictive and unlawful and having no legal effect.
2. The facts leading to the filing of the petition are that the petitioner was a permanent workman and was in employment of the respondent No.2 since 1951 and his late father had also served this organisation until he retired in due course in 1947. His age was 52 years till the filing of the petition.
3. He had put in 28 years of service with the respondent No.2 without a single spot on his career until he was unduly compulsorily retired, as a punishment, in 1980, on the basis of frivolous and.
4. Malicious allegations. According to the petitioner, on 8-10-1976 the petitioner had sent an application to the Chairman of the K.P.T. The respondent No.2 through proper channel, in which he had requested for the consideration of his promotion from an assistant to Superintendent's job. As he did not get any reply, he wrote another application on 18-7-1977. On 29-1-1978 he got a reply of application, dated 8-10-1976 and 18-7-1977 stating therein that the Chairman ordered for some action.
5. It has been averred in the petition that instead of taking any proper action on the illegal and malicious acts of certain superiors, he was subjected to an unjust treatment. A charge sheet alongwith statement of allegation was served on 25-7-1978. On 2-8-1978, the petitioner had submitted his explanation to the Chairman K.P.T. And had maintained that "the charges are not proper, specific, are vague and baseless and are totally denied, as it does not disclose, the specific time and date and the name of the officer to whom I have annoyed or denied the work at any time or -I have left the office on my own accord. The charge-sheet itself speaks well of its own truth and does not carry any value or weight and merits to be vacated in the interest of justice and equity. "A departmental enquiry was conducted against the petitioner by Muhammad Saleem Malik, Manager (O&M), who found that the charge had been proved against him. Thereafter, the petitioner was served with a notice, dated I1-12-1979 by the Chief Accounts Officer of respondent No.2, calling upon him to show cause why he should not be compulsorily retired from service. In reply to this notices, the petitioner challenged the findings of the Enquiry Officer and had submitted that the said officer had erred in relying upon the witnesses who had been examined before him. It was also pointed out that the allegations levelled against him are false, baseless and self created.
6. A prayer was made that he might be exonerated from the charge and he allowed to continue him in service in the interest of justice and equity. The petitioner had received a reply, dated 13-7-1980, compulsorily retired from service with immediate effect. The petitioner filed appeal before the respondent No.1 which was also rejected by order, dated 11-10-1983. This led to the filing of the present petition on 24-12-1983.
7. The learned counsel for the petitioner has raised the following contentions before us:
(1) The charges were not proper specific, vague and baseless and the petitioner had no real opportunity to defend himself.
(2) The Chairman, by basing the compulsorily retirement on the new charges was clearly guilty of violating the K.P.T. Officers and Servants (Efficiency and Discipline) Rules.
(3) The appellate authority (respondent No.1) rejected the appeal without affording him personal hearing.
8. On the other hand Mr. Syed Hamid Hussain, the learned counsel for the respondent No.2 has submitted that the petition is incompetent and the petitioner was retired compulsorily in accordance with the Rules.
9. Let us first of all deal with the arguments raised at the bar that as the remedy by way of appeal was available to the petitioner under the provision of section 5 of the Corporation Employees (Special Powers) Ordinance No. XIII of 1978 and as he did not avail of it, therefore, the petition should be thrown out on that ground. It is for the sake of argument that the petitioner could prefer an appeal under the Ordinance against the order of compulsorily retired but in this connection important facts have to be taken into consideration. It is an admitted fact that in this case the charge-sheet and the statement of allegations as required by sub-Rule 2 of Rule 6-A were vague.
10. According to the petitioner he sent a reply and stated therein that the statement of allegations were vague. To this averment, made in the reply to the charge-sheet and in the petition, there is no counter-affidavit and written-statement from the respondents side. There are decisions to the effect that, where the inferior Tribunal has acted without jurisdiction or the order has been made in violation of the principles of natural justice an aggrieved party can approach the High Court for issuance of an corporate writ although a concurrent remedy is also available to him under the law.
11. In view of the catena of authorities on this proposition, we think, that the objection raised by the respondent is not tenable. In the Instant case, Constitutional petition was filed on 24-12-1983 and admitted on 29-2-1984 and, thereafter, by consent of the parties main petition was to be decided.
12. The case has since proceeded in Court. Final arguments of the learned counsel for the petitioner have also been addressed. It is now too late in the day to ask the petitioner to pursue the remedy by way of appeal when it is not legally possible for him to do so at this late stage, more so, when final arguments in the case have also been concluded. Moreover, as already observed, the charges were vague.
13. As regards to the first and second contentions of the learned counsel for the petitioner, there is force in the same. A charge-sheet was issued under sub-rule (1) of Rule 6-A of the K.P.T. Officers and Servants (Efficiency and Discipline) Rules. This sub-rule runs there: "(i) The authority shall frame a charge and communicate it to the officer or servant (hereinafter called the accused) together with a statement of the allegations on which is based and of any other circumstances which the authority proposes to take into consideration when passing orders on the case."
14. A bare reading of this sub-Rule would show that the charge-sheet should be accompanied by a statement of allegations. It is advantageous to reproduce the extract from the charge-sheet and the statement of allegations which are reproduced hereinbelow: "Neglect of duty, wilful in-subordination and persistent disregard to carry out lawful orders of your superiors, which constitute misconduct."
15. "It has been reported that Mr. Ahmad A. Farooqui Assistant, Chief Accounts Officer's Department does not take interest in the work and is in the habit of refusing to perform his normal duties. He is also in the habit of leaving his seat without the permission of his superiors, wasting his time either out of office or in office by gossiping and disturbing office staff. Having been repeatedly told to mind himself he did not pay any heed to the orders and directives of his immediate officer, Assistant Accounts Officer (A) and persists in his behaviour. His wilful in-subordination, persistant disregards and refusal to carry out lawful orders of his superiors, neglect of work and contravention of normal rules of discipline, constitute misconduct and he is charged for the same."
16. In the case in hand each charge was so bare that it was not) capable of being intelligently understand and was not sufficiently definite to furnish material to the petitioner or to defend himself. It is precisely for this reason that sub-Rule 6-A provides that the charge-sheet should be accompanied by a statement of allegations. The whole object of furnishing the statement of allegations is to give all the necessary particulars and details which would satisfy the requirement of giving a reasonable opportunity to put up defence. The petitioner sent a reply and brought to the notice of the Chairman that the charges were not proper, specific, vague and baseless. In spite of all this, no one cared to inform him of the facts, circumstances and particulars relevant to the charges. The entire proceedings show a complete disregard of sub-Rule 1 of Rule 6-A in so far as it lays down in almost mandatory terms that the charges must be accompanied by a statement of allegations. There is no manner of doubt that the petitioner was denied a proper and reasonable opportunity of defending himself by reason of these charges being altogether vague and indefinite and the statement of allegations containing the material facts and particulars not having been supplied to him.
17. In view of the above, it is not necessary to deal with the last contention of the learned counsel for the petitioner.
18. Taking all the circumstances of the case into consideration, we are of the view that the petitioner has not been afforded a fair opportunity of defending himself, as the charges were not specific and F were vague. We would accordingly set aside the order of compulsorily retirement of the petitioner and would order his re-instatement in service. However, since the order is being set aside on a purely technical ground, it would be open to the respondents to hold a fresh enquiry against the petitioner in accordance with law.
19. In view of the above discussion, the petition is allowed accordingly with no order as to costs.