The petitioner, who is serving as Chairman, Board of Intermediate and Secondary Education, Faisalabad through this Constitutional petition has sought declaration to the effect that show cause notice dated 31-3-1990 is mala fide, arbitrary, illegal and void.
2. The relevant facts are that the petitioner in the end of December, 1989 proceeded to Saudi Arabia to perform Umra. He authorised Secretary of the Board to officiate in his absence. The respondent No.1 when came to know of his going abroad proceeded to serve him with the show-cause notice under section 14 (2) of the Boards of Secondary Education Act, 1976. The petitioner has challenged the show-cause notice through this Constitutional petition which came up for preliminary hearing on 11-4-1990 and the respondents No.1 and 2 were directed to submit report and parawise comments. The order has been complied with.
3. The learned counsel for the petitioner in support of this petition has argued that his casual leave was always sanctioned by himself. In order to establish this practice the learned counsel has referred to Annexure `B' which is a circular dated 28th January, 1990. The other submission was that proviso to section 14 gives an exhaustive of list of charges, when an action can be taken and the present action is not covered by the same therefore, the action is ultra vires. The third submission was that the petitioner himself being the Principal executive was to exercise control over the office.
In this behalf the learned counsel for the petitioner has referred to para 1 of First Schedule.
4. On the other hand, Ch. Ijaz Ahmad, Advocate, appearing on behalf of respondents No.1 and 2 submitted that the Board is a corporate body as is clear from section 3 (2) of the Boards of Secondary Education Act, 1976 (hereinafter referred as Act of .1976) while the constitution of the Board is given in section 5 of the said Act. It is submitted that the Chairman is only a member of Board and not the board itself. It is added that although the petitioner was on deputation but he remained a civil servant. In this behalf reliance is placed on the case reported as 1982 PLC (CS)
514, therefore, according to Rule 35 he was required to get the leave sanctioned from the Board. In this behalf it is added that Faisalabad Board of Secondary Education had adopted the Leave Regulations of Sargodha Board. The learned counsel submitted that para 3 of the Terms and Conditions of Service of the petitioner does not by any stretch of imagination grant him right to sanction his own- leave and it is Regulation No.35 of the Leave Regulations which will hold field. The learned counsel for the respondents further submitted that the petitioner concealed the true facts while applying for `No Objection' to leave of Saudi Arabia. It is maintained that in any case the facts were not correctly am truthfully submitted by him. In this behalf he has referred to Annexure `B' and particularly the second sentence that he has got casual leave sanctioned Therefore, the petitioner is not entitled to any discretionary relief. In this behalf he has referred to PLD 1974 SC 106,1973 SCM R 127 and 1909 SCMR 141 The other, submission was that the petitioner has no jurisdiction or authority to appoint Secretary as Chairman or at least authorise him to officiate as Chairman It is exclusively the function of the Controlling authority. In this behalf learned counsel has referred to section 15 (3) of Act, 1976. The arguments are concluded with the submission that the petitioner cannot be given exemption from being dealt with in accordance with law. In this behalf the learned counsel has referred to Article 4 of the Constitution. It is submitted that in any case the petition is premature and not competent as the petitioner can raise all these legal and factual controversies before the competent authority. The allegations levelled in the writ are mala fide and without any substance.
It is submitted that on the other hand action taken in accordance with the Statute book cannot be termed as mala fide, In this behalf learned counsel has referred to PLD 1964 SC 438.
5. The learned Advocate-General also appeared on behalf of respondent No.2. He has placed on record copy of memo dated 30-4-1990 requesting him to arrange for the defence of the writ petition. The learned Advocate-General argued that the proceedings are coram non judice, therefore, liable to be set aside. It is submitted that disciplinary proceedings cannot be initiated under section 14. It has been enacted with a different object while the disciplinary proceedings are to be initiated under proviso to be section 12 (iv). It is further submitted that Rule 10 of Punjab Civil Servants (E&D) Rules prescribe the procedure for initiating action against civil servants on deputation. The arguments are concluded with the 'submission that the action is not maintainable in law.
6. The learned counsel for the petitioner while replying to the arguments of the learned counsel for respondents No.1 and 2 submitted that the provisions of section 14 being penal in nature, therefore should be interpreted in favour of the subject. In this behalf he has referred to 1989 SCMR 392 and PLD 1989 Karachi 513. It was further submitted that para 3 of the Terms and Conditions of Service of the petitioner as notified by respondent No.1 deal with the sanction of earned leave etc. And not casual leave. It is added that Schedule is not subordinate legislation, therefore, to be read in harmony with the other provisions of Act, 1976. In this behalf reliance was placed on the judgments reported as 1989 SCMR 345 and 1986 SCMR 1003. The learned counsel for the petitioner relied on para 2 (9) of the Schedule to justify that the petitioner was well within his authority to authorise Secretary of the Board to exercise the powers of Chairman in his absence.
7. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record as well as precedent cases. The admitted position is that the petitioner sanctioned his own casual leave for 10 days and proceeded to Saudi Arabia and in his absence bestowed his powers and entrusted his duties to the Secretary of the Board. The respondents Nos.1 and 2 had taken exception to it and served him with the impugned show-cause notice. Before proceeding any further it is relevant to refer to the show-cause notice. Para 1 of the same reads as under: "SUBJACT:- SHOW-CAUSE NOTICE UNDER SECTION 14 (2) OF THE B.I.S.E. Act, 1976 (AS AMENDED IN 1985.
From the Officer Note No. S.S. 1113/89 Ch, dated 20-12-1989, recorded by you, it is evident that:-- (1)You sanctioned casual leave in your own favour for 10 days w.e.f. 23-12- 1989 in order to proceed abroad for performance of Umrah.
(2)You did not obtain sanction from the competent authority.
(3)You were not eligible to leave country on the strength of casual (cave. For proceeding abroad leave Ex-Pakistan due/according to title had to be obtained from the competent authority.
(4)You authorised Ch. Muhammad Iqbal, Secretary of the Board to look after the affairs of the Board during the period of your absence from the country. You were not competent to pass such an order.
(5)you were not competent to leave headquarter without the permission of the competent authority."
8. The first point for determination is whether the show-cause notice was to be issued under section 12 (8) clause (iv) as argued by the learned counsel for the petitioner and learned Advocate-General or it has been rightly issued under section 14 (2) of the Act, 1970 as maintained by Ch. Ijaz Ahmad, learned Advocate appearing for the respondents? Therefore, before proceeding further it is worthwhile to refer to the two provisions of law. The same read as under:- Section 12 (8). Clause (iv): "The Controlling Authority may remove from service any employee of a Board: Provided that no such employee shall be removed, from service without being given an opportunity of being heard: .
Provided further that where the Controlling Authority has initiated any such proceedings against any such employee, no other person including the Board shall have power to initiate any proceedings or take any steps in the matter:"
Section 1.4 (21 "The officers of the Board shall hold office for a term of three years from the date of notification of their appointments and shall be eligible for re--appointment for such further period, not exceeding three years, as may be specified in the order of re-appointment: Provided that the Controlling Authority may, at any time review the work of the officers of the Board and if on such review it is satisfied that in the interest of the Board, or for any other sufficient cause, it is necessary to do so, it may, after giving an officer, an opportunity of showing cause against the proposed action, dismiss or remove him from service or reduce the term of office of any such officer by such period as it may determine:"
8-A. Section 12 deals with the powers of the Controlling Authority which amongst others include disciplinary action against the `employees' as is clear from proviso to subsection (8) (iv). The same has been referred to and relied by the learned Advocate-General as well as counsel for the petitioner. While section 14 deals with the `officers' of the Board and their tenure etc. It is clear from proviso to subsection (2) that Controlling Authority is vested with the powers to initiate s disciplinary proceedings against the Officers of the Board; The scope of sections 1A 12 and 14 is quite distinct. There is no overlapping between the two provisions. It is clear from the Scheme of the Act that the legislature has used two different terms for members of staff of a Board, namely, `officers' and `employees'. This matter becomes crystal clear if reference is made to clause (i) of subsection (8) of section 12 which reads as under; "(1)place the services of any of the officers or other employees of any Board at the disposal of the Government or any other Board or institution for such period and on such terms and conditions as may be determined by him provided that such terms and conditions shall not be less favourable than those admissible to him immediately before his transfer:"
The legislature has used the term `officers' and `other employees' in this clause whereas in proviso to clause (iv) the word `employee' has been incorporated and in contradistinction to this the legislature in proviso to subsection 14 (2) of Act, 1976 has used the term `officer'. This provision has already been reproduced. The officers of the Board have been specified in section 13. It is therefore, clear that disciplinary proceedings against the officers have to be initiated under section 14. 1 am fortified in my view by the judgment of this' H Court in the case of Ch. Muhammad Bakhsh v.
Government of Punjab through Secretary, Education, Government of Punjab and 2 others (PLD 1989 Lahore 175). In this case the petitioner, who belonged to the Education Department was on deputation with Sargodha Board of Secondary Education as Controller of Examinations. There were certain allegations against him as a result, thereof, notification curtailing 3 year's; tenure and ordering his repatriation was issued.
The notification was struck down because it was issued without complying with the mandatory requirement as to showing cause. The Board otherwise was held competent to take action under section 14 (2) ibid. Therefore, there is no merit in the argument of the learned counsel for the petitioner as well as of the learned' Advocate-General that no action can be taken against the petitioner under section 14 (2) of Act, 1976 and proceedings are coram non judice.
9.The next submission on behalf of the petitioner was that the whole proceedings are mala fide and even earlier he was retired on the pretext that he has attained the age of superannuation. The petitioner successfully challenged this order through Constitutional petition. The respondents Nos.1 and 2 have now started disciplinary proceedings. On the other hand learned counsel for respondents No.1 and 2 submitted that the respondents are simply discharging their official duty strictly in accordance with law and there is no malice or mala fides. In this behalf he has referred to the case of East Pakistan v. AI-Haaj Maulvi Muhammad. Yasin Qureshi and another PLD 1964 SC
438. The action against the petitioner prima facie appears to be taken in good faith and in exercise of', powers lawfully vested in the respondents. Even the question of mala fides can be raised by the petitioner before the Deptt. Authorities and ultimately in the appeal before Punjab Service Tribunal.
10. Now coming to the merits of the charges forming part of show cause, it is clear from the arguments of both sides and reference to provisions of law and regulation that at least some of the charges subject-matter of show-cause notice are prima facie actionable but any deliberation by this Court at this juncture is neither desirable nor legal because on the one hand it will prejudice the case of the either party and on the other hand it will amount to pre-empting the jurisdiction of the departmental authorities. It is for this reason that 1 have avoided to record any findings as to the merits of the charges forming part of the show-cause notice. It is made clear as abundant caution that any observation as to the merits of the charges shall not be binding on the departmental authorities. I again may refer in this behalf to the judgment of this Court in the case of Ch. Muhammad Bakhsh. The relevant portion reads as under: "13 I have purposefully desisted from commenting upon the merits of the allegations levelled against the petitioners, to avoid any observation which may prejudice the case of either side. It is for the Inquiry Officer or the Authorities, which are dealing with the disciplinary action, to decide the question of truth or falsehood of the allegations on the basis of material before them."
11. This is not all. The petitioner is admittedly an officer of the Board and the matter pertains to Terms and Conditions of his service, therefore if any adverse order is ultimately made against him then he can assail such adverse order in a departmental appeal etc. The learned counsel for the petitioner tried to justify the resort to present Constitutional petition with the submission that the petitoiner cannot maintain an appeal against the impugned show-cause notice.
This will not change the legal position. I 'am fortified in my-view by the judgment of Supreme Court of Pakistan in. The case of Abdul Wahab Khan v. Government of Punjab and 3 others (PLD 1989 SC 508). In this case, civil servant was facing departmental enquiry under Punjab Civil Servants (E&D)
Rules, 1975. The then Additional Chief Secretary, Government of Punjab was appointed as authorised officer in relation to the enquiry but he did not want to act as such, therefore, reported the matter to the authority for appointment of another authorised officer. Thereafter Secretary, Services was appointed as an authorised officer. The civil servant objected to this appointment but without success. He thereafter challenged this order in the Constitutional jurisdiction of this Court but the same was dismissed. Thereafter he filed I.C.A. No.1/88. The same was also dismissed. He being still not satisfied took up the matter to the Honourable Supreme Court. His petition was dismissed and relevant portion of the judgment reads as under:-- "Even without such observation, the petitioner is entitled to seek remedy in regard to the filing of appeals. The petitioner would have to satisfy all the conditions for filing such an appeal. One of the conditions being that the order impugned before the Tribunal should be such which is appealable in accordance with relevant Service Tribunals Act. But the order impugned before the High Court vis-a-vis the stage at which it has been passed, is not appealable, the petitioner would have to wait till such an order is passed against him which is appealable before the Tribunal.
With these observations, this petition is liable to be dismissed. Before closing, it needs to be observed that the bar of jurisdiction of the High Court in service matters, contained in Article 212 of the Constitution, has also been spelled out by this Court in a recent decision in the case of S.P.
Lahore v. Muhammad Latif A S I (Civil Appeal No. 677 of 1984, decided on 19-4-1988) PLD 1988 SC 387."
The learned counsel for the petitioner was the author Judge of the judgment passed in I.C.A. No. 1/88 filed by Abdul Wahah Khan. The relevant portion of the same reads as under: "He, therefore, contends that the Secretary (Services) could not be appointed as an Authorised officer and cannot act as such. The petitioner is yet to face the inquiry and if he is penalised he has a statutory right of appeal before the Punjab Services Tribunal. Therefore, if the authorised officer or the authority does not act in accordance with law the petitioner can challenge the penalty, if imposed, before the appellate authority not only on merits but also on this legal objection and similar right and opportunity will be available to him if he has to go to the Services Tribunal. As the petitioner will have the said remedies available to him the writ petition is not maintainable and has rightly been dismissed. The I.C.A. Is, therefore, dismissd in liming."
I therefore, hold that this petition is legally not competent.
12. The learned, counsel further submitted that conduct of the petitioner is not fair firstly because he himself represented to the Controlling Authority that he has got the casual leave sanctioned and secondly his only effort is to avoid the consequences of his illegal action. It is, therefore, submitted by him that this petition should be dimissed. In this behalf he has referred to Chief Settlement Commissioner v. Raja Mohammad Fazil Khan and others (PLD 1975 SC 331), Wali Muhammad and others v. Sakhi Muhammad and others (PLD 1974 SC 106), Tufail Muhammad and others v.
Muhammad Zia Ullah Khan and others (PLD 1965 SC 269) and Abdur Rashid v. Pakistan and others (1969 SCMR 141).
13. Suffice it to observe that the petitioner is being dealt with in accordance with law. Therefore, question of mala rides does not arise and in any case if he suffers any illegality at the hands of the departmental authorities, then he can E --make grievance of the same before the authorities specified under the law. The respondents cannot be restrained from discharging their legal functions under the law.
14. Before parting with the judgment it is worthwhile to mention here that respondents Nos.1 and 2 in obedience to the orders of this Court submitted reports wherein they clearly contested the petition.
This is not all. They engaged Ch. Ijaz Ahmad, Advocate, to defend their action but the learned Advocate- General while appearing on behalf of the respondent No.2 argued that the action is illegal. It is for the Government to take measures that in future such situation does not recur. The issues have been decided on their merits, firstly, because there is no estoppel,' against law, secondly it is the duty of the Court to decide the causes in accordance with law and conicessional statements cannot furnish valid basis.
14. The other matter which also requires attention is that the petitioner requested for issuance of `No Objection Certificate' to proceed for Umra. While Mr. Muhammad Rafiq Bajwa, Section Officer (Board) issued the memo dated 20-12-1989 for grant of International Passport. The concerned official is clearly guilty of inefficiency and gross negligence. The request of the petitioner was only spread over five lines, therefore, there was no question of any misgivings as to the request of the petitioner. It clearly shows the inefficiency and lack of interest in the discharge of the duties by the concerned official. This is not all. The petitioner did proceed and perform Umra but Immigration.
Authorities failed to check whether the petitioner has been granted `No-Objection Certificate' to leave Pakistan or not. This way they also failed to discharge their duty. If the grant of `No-Objection Certificate' is to be given this importance by the concerned officials, then it is better to do away with this formality. Let copy of this judgment be sent to the Chief Secretary, Govt. Of Punjab, as well as Secretary, Interior, Government of Pakistan.
15. The upshot of the above discussion is that prima facie there is nothing wrong with the show- cause notice. The petitioner can raise all sorts of pleas in defence-before the concerned authorities and in case of any adverse Finding being made against him he will have other adequate remedy by way, of departmental appeal etc. Where he can agitate all these points. The result is that this petition is misconceived and incompetent, therefore, dismissed in limine.