AMIRU-UL-MULK MENGAL, J.--By this common judgment we intend to dispose of C.P. No.188 of 1988, C.P. No. 189 of 1988, C.P. No. 190 of 1988 and C.P. No.191 of 1988 filed by Naseem Ahmed C.P.
No.192 of 1988 and C.P. No.193 of 1988 filed by Waqar Alam and C.P. No.194 of 1988 filed by Nishat Nabi Qureshi, since the facts involved and the legal points raised in all these petitions are identical.
There were allegations of misconduct and misappropriation of huge quantity of material and money to the tune of several lacs of rupees against the three petitioners who were all employees of B.DA. Facts if succinctly stated reveal as under:--
2. Petitioner Naseem Ahmed was appointed on 3-3-1976 in NPS-19 as General Manager (Operations) Balochistan Development Authority (hereinafter referred to as the "BDA") under the provisions of the Balochistan Development Authority Act (Act X of 1974) (hereinafter referred to as the "Act of 1974") and as General Manager (Operations) the petitioner was Incharge of the affairs of the following projects namely:-- INDUSTRIES SECTOR: (a)Brick Plant Quetta.
(b)Tiles Factory Quetta.
(c)Marble Processing Plant, Quetta.
(d)Khuda-i-Dad Glass Factory, Quetta.
MINING SECTOR (a)Flourite Mining Industries Kalat.
(b)Quartzite Mining in Lasbella district.
(c)Building Stone Project in Lasbella District.
Besides as General Manager Operations, the petitioner also held extra charge of Managing Director of Pakistan Chrome Mines Limited for years 1980 to 1984. In addition to the aforesaid, the petitioner was also assigned the Secretaryship of Board of Directors for Balochistan Sulphere (Private) Limited (a joint venture of BDA with private sector).
3. Petitioner Waqar Alam was appointed as Deputy Manager (Research) BDA on 16-10-1975 in BPS- -16. He was promoted in B.P.S.-17 in June, 1976 and later to B.P.S.-18 in February, 1985. During the aforesaid period the petitioner worked as Deputy Manager, Manager (I&M) Plant Manager and Additional General Manager. While posted as Manager Bricks Plant, the petitioner was also directed to hold additional charge of Tiles Factory Quetta until further orders vide order of General Manager (Industries), dated 8-1-1978 and the said charge was held by him from 9-1-1978 to 25-1-1978.
4. Petitioner Nishat Nabi Qureshi was offered the post of Exploration Geologist, on 18-4-1982 in Grade-17. He was appointed as Manager Flourite Project in 1983 where he remained uptil 1985.
Thereafter he was appointed and posted as Manager (in office) BDA.
5. On 2-6-1985 a report was lodged by one Mr. Irfan Mehmood Durrani of BDA with anti-Corruption Establishment Quetta wherein allegations of shortage of Tiles in Tiles Factory and other acts of omissions and commissions against certain officers of BDA were levelled. Thereupon F.I.R. No,10-Q of 1985 was registered under section 409/467/471, P.P.C. Read with section 5(2) of Act II of 1947.
6. Agha Aman Shah, the present Chairman of the BDA took over the charge of BDA in January, 1987 and noted certain misconduct and misappropriation on the part of officials of BDA. He informed the Board of Directors that some enquiries are pending against the said officials to which the Board decided as under:-- "the above enquiry should be conducted by a neutral body, such as Chief Minister's Inspection Team, co-opting such members who are technically qualified to find negligence, alleged misappropriation and mismanagement on the part of the officers of BDA." The Chairman further requested the Secretary Finance who is also the Chairman Governor's Inspection Team to help BDA for nominating neutral enquiry officer for pending enquiries of BDA."
Seven officers including the present petitioners were placed under suspension. In subsequent meeting held on 31-3-1987 four more officers were suspended. On 1-10-1987 petitioner Naseem Ahmed was served with an explanation order in respect of the allegations detailed therein (ANNEXURE 'E.). Subsequent thereto a show-cause notice, dated 26-11-1987 was issued (ANNEXURE T). The same was replied on 20-12-1987 (ANNEXURE `M'). It was mentioned in reply that the petitioner had been handicapped in his defence because despite applications, he was not supplied with copies of certain documents.
7. Regarding supply of copies it may be pointed out that a Record Committee was constituted for taking over and showing relevant record of the documents which would be required by the petitioners, under the Rules so as to enable them to submit their replies in the stipulated period of 14 days.
8. All the three petitioners were placed under suspension. They made representations to the Board of Directors for recalling orders of suspension. This was followed by appeals submitted to Chief Secretary of Balochistan for similar action. Thereafter the Chairman on 1-7-1987 constituted a Fact Finding Enquiry Committee and one Major (Retd) Muhammad, General Manager (Ship Breaking) was appointed as Enquiry Officer. He submitted his inquiry report on 10-10-1987. Ultimately petitioner Naseem Ahmad was found guilty and punished as under:-- C.P. No,188 of 1988.
"CHARGE PUNISHMENT No,1 Demotion to next lower rank and recovery of Rs,6,49,137/- No,2 Demotion to next lower rank.
No,3 Stoppage of one increment.
No,5 and 6 Removal from service and recovery of Rs,35,000.
No,10 Demotion to next lower rank.
Nos.15 and 16 Severe reprimand.
C.P. No,189 of 1988.
(i) "Both the accused officials namely (Naseem Ahmad) petitioner and Waqar Alam are dismissed from BDA Service with immediate effect.
(ii) The cost of loss due to shown as excessive consumption of coal amounting to Rs,508832/-89 is apportioned equally between the two officials and shall be recovered from their P-Fund and gratuity:
(iii) The cost of recycling and over burning amounting to Rs,70,000 is apportioned equally amongst the two accused officers and shall be recovered from their pay, P-Fund and gratuity:
(iv) The cost of shortage of 1451530 bricks amounting to Rs,5,73,545 is apportioned equally amongst the two accused officers and shall be recovered from their pay, provident fund and gratuity.
(v) Cost of over payment of workers amounting to Rs,20,300/- is apportioned equally amongst the two accused officers and shall be recovered from their pay, provident fund and gratuity.
(vi) Cost of donation of 30000 bricks (unauthorisedly donation) amounting to Rs,15,000 shall be recovered from the Provident Fund and gratuity of the accused Naseem Ahmad."
C.P. No, 190 of 1988
1. CHARGE PUNISHMENT
1. Purchase of Imported/ Dismissal from Service.
Local Machinery.
2. Shortage of Flourite Dismissal from Service and ore at Site.
Recovery of Rs,30,14,853 as 50% cost of 5207 tons of flourite from his salary P-Fund and Gratuity.
3. Irregularities/Misapp ropriation in the sale of Flourite to private parties.Demotion to next lower rank.
Severe reprimand.
4. Mis-Management of the account of Flourite Project.Demotion to next lower rank Demotion to next lower rank with recovery of Rs,25,000 stoppage of one increment.
C.P. No,191/1988.
(a) stoppage of three increments:
(b) Cost of 7652 tiles amounting to Rs,20,405 may be recovered from the pay, P.Fund and Gratuity of the Officer.
Allegations made regarding petitioner Waqar Alam were in respect of shortage of tiles in Tiles Factory and other acts of omissions and commissions. It is further evident from the record that case was initially processed by Martial Law Authorities and then by anti-Corruption Establishment.
In its report the anti-Corruption Establishment concluded as under:-- "In view of the above it is very difficult to fix responsibility of shortage of tiles on any one or some of the officers as no proper record has been maintained in the Tiles Factory or BDA Office. This Establishment is therefore left with no alternative but to state:- "That all those who remained Incharge of the Factory from June, 1975 to October 1978 and the Supervisory Officers of the Factory may be held responsible for the loss as well as negligence of duty."
However the Fact finding Enquiry submitted the report and the said petitioner vide office order, dated 4-2-1988 was found guilty and punished as under:-- C.P. No, 192 of 1988
(i) Both the accused officials namely Mr. Naseem Ahmad and Mr. Waqar Alam are dismissed from BDA service with immediate effect;
(ii) The cost of loss due to shown as excessive consumption of coal amounting to Rs,508832.89 is apportioned equally between the two officials and shall be recovered from their pay, provident fund and gratuity;
(iii) The cost of recycling and over burning amounting to Rs,70,000 is apportioned equally amongst the two accused officers and shall be recovered from their pay, provident fund and graduity.
(iv) The cost of shortage of 1451530 bricks amounting to Rs,5,73,545 is apportioned between the two accused officers and shall be recoverd from their pay, provident fund and gratuity.
(v) Cost of over payment of workers amounting to Rs,20,300 is apportioned equally amongst the two accused officers and shall be recovered from their pay, provident fund and gratuity.
(vi) Cost of donation of 30,000 bricks (unauthorised donation) amounting to Rs,1500 shall be recovered from pay, provident fund and gratuity of the accused officer Mr. Waqar Alam."
C.P. No, 193 of 1988
1. CHARGE PUNISHMENT Mr. Waqar Alam Malik and Mr. Mir Ahmad Khajjak are two Officers mainly responsible for tampering with the record and making second register in order to over their misdeeds.The petitioner was demoted to next lower rank; whereas Mr. Mir Ahmed Khajjak was ordered to be reinstated with immediate effect.
It may be submitted that this was not the allegation either in the Explanation letter or the show- cause notice.
2ND CHARGE Loss of 53737 tiles relatable to period 20-3-1977 to June, 1978.
The petitioner and two other officers were declared responsible for the loss of tiles and penalty to the extent of total cost of tiles was imposed on all the three officers amounting to Rs,1,07,474 to be borne in equal share.
The other two officers were M/s Mir Ahmad Khajjak and Musa Khan Khaijak. The share of each of three officers came to Rs,35,834/67 "to be recovered from pay P.Fund and gratuity.'"
Petitioner Nishat Nabi in C.P. No, 194 of 1988 was found guilty and punished as under:-- CHARGE PUNISHMENT CHARGE PUNISHMENT
(1) Purchase of imported Local Machinery. Severe reprimand.
(2) Shortage of Flourite one at site. Dismissal from Service and recovery of Rs, 30,14583 as 50% cost of 5,207 tons of flourites from his salary, P-Fund and Gratuity.
(3) Irregularities/Misappropriation in the sale of fluorite to private parties.Demotion to next lower rank No recovery to be effected since it already included in the recovery made in case of total shortages of flourites.
(4) Mismanagement in the account of Flourite Project.Severe reprimand. Demotion to lower rank. In view of the fact that the accused officer has fraudulently made payment to a company/Firm jointly owned by him this case may be referred for criminal proceedings.
Stoppage of three increments.
9. Being aggrieved of the order of the Chairman, the petitioners filed separate appeals to the Board of Directors of BDA. The Board of Directors was presided over by the Chairman BDA. With certain modifications in punishments substantially the appeals were dismissed by the Board on 12-6-1988.
10. Representations were made by the petitioners to the Additional Chief Secretary (Dev.) Planning and Development Department, Government of Balochistan, but no decision thereon had been made or communicated to the petitioners. In such circumstances the petitioners have moved this Court by filing these Constitutional petitions.
11. Heard Mr. Muhammad Aslam Chishti, for petitioners Naseem Ahmed (in four petitions) Waqar Alam in (two petitions) and Nishat Nabi Qureshi and Mr. Basharatullah for respondents Nos.1 and 2 and learned Advocate General Balochistan for respondent No,3.
12. Mr. Muhammad Aslam Chishti, learned counsel for the petitioners urged the following points in support of these petitions:--
(a) That Board of Directors was alone competent authority to have initiated proceedings against the petitioners and action initiated by Chairman was in fact without lawful authority. In this respect the learned counsel contended that hearing of appeal by Board of Directors could not cure this illegality.
(b) That while passing the impugned order, dated 21--2-1988, Chairman BDA acted solely on the report of Fact Finding Inquiry and no reasonable opportunity was afforded to the petitioners by the said Fact Finding Inquiry therefore, the petitioners have been condemned unheard.
(c) The Chairman BDA right from the initiation of action against the petitioners till the passing of final order acted in an arbitrary and mala fide manner, in that he tried his utmost to change the Rules of 1974 and to bring fresh Rules by introducing the Balochistan Development Authority (Efficiency and Discipline) Rules, 1987.
(d) That even under the aforesaid Rules, the petitioners had a right of reasonable opportunity which was denied to them.
(e) That being punishing authority, the Chairman could not preside over the meeting of Board of Directors while sitting in appeal against his own order.
(f) That the Balochistan Development Authority (E&D) rules of 1987 are ultra vires and are in contravention of the BDA Act of 1974 and of Rules of Business.
It was alternately submitted that even if these rules be held as intra-vires, the discretion exercised by the Chairman was arbitrary, being against the direction of Board of Directors regarding initiation of independent inquiry and no just decisions could be arrived at except by an unbiased official.
(g) That appellate order passed by the Board of Directors is not a speaking order.
(h) That no hearing was afforded to the petitioners while deciding appeals.
(i) That the petitioners have a good case on merits as no reasonable' man could come to the same conclusion on the basis of material as was inferred by the Chairman.
13. While controverting the aforesaid pleas Mr. Basharatullah, learned counsel for the BDA submitted:-
(a) That the Chairman is the competent authority under the Rules as such he was competent to initiate action against the BDA employees.
(b) That in the show-cause notice the petitioners have failed to challenge the appointment of competent authority being in violation of sections 2(a) and 3 of the Act of 1974. In the appeal also the petitioners did not raise the plea that the competent authority was Board of Directors but according to their plea it was the Government which was competent Authority. In this respect another objection raised by Mr. Basharatullah was that in these petitions filed on 31-8-1988 question regarding Chairman as authority has not been raised although the same was raised by a separate application dated 19-6-1989. So much so that even in appeal before the Board of Directors this plea was not taken.
(c) That Chairman neither acted mala fide nor was biased since a bar is created only when there is pecuniary interest or proprietary interest and both of these are missing in the present case.
(d) That as far as hearing of appeal by the Board of Directors including the Chairman, is concerned according to the counsel there is positive intention of legislature that the Chairman shall preside over every meeting. As no contravention of legislative intent has been made, therefore no injustice has been done. It was additionally submitted that section 13 of Act of 1974 has been complied with which provides that services of an employee may be terminated by giving one month's notice from either side etc. Without assigning any reason.
That Rules of 1987 are intra-vires and that the Government retained the powers under section 30(1) of Act of 1974 to make Rules.
That as per Rule 11 all the pending cases have to be dealt with according to Rules of 1987.
Adoption of summary Procedure was not mandatory but was discretionary. The authority was competent to forego to adopt the other course.
14. The learned Advocate-General Balochistan while supporting the respondents urged as under:-- -
(a) That it is authority of BDA which is competent to appoint or remove the officials of BDA and not Government. In this respect the learned A.G. Submitted that there are two categories of employees of BDA:--
(i) employees appointed by the Government i.e, The Chairman and the Board of Directors;
(ii) employees appointed by the Chairman. The first category consists of public servants who can be transferred to any other Department and vice versa, but Government is not appointing authority regarding the second category. The second category is of Employees of BDA, appointed by Chairman.
(b) The BDA Rules of 1974 were not notified and therefore were nonexistent until the BDA Rules of 1987 were framed. Mention of said Rules in section 11 was in order to remove the doubts.
(c) That Chairman was delegated powers as competent authority and since this point was not raised at preliminary stage, therefore documents with that effect could not be produced.
(d) That the petitioners committed misconduct and were involved in misappropriation of huge BDA funds and furthermore question of terms and conditions of their service is involved therefore, writ may not be issued in their favour.
15. Before dilating upon the points so raised we would like to refer to the laws applicable in determining the points which are:--
(1) Balochistan Development Authority Act of 1974.
(2) Balochistan Development Authority Employees Service Rules, 1974.
(3) Balochistan Development Authority Employees (Efficiency and Discipline) Rules, 1974.
(4) Balochisan Development Authority (Efficiency and Discipline) Rules, 1984.
(5) Balochistan Development Authority (Efficiency and Discipline) Rules, 1987.
(6) Rules of Business of 1976.
16. It would be expedient to firstly determine question about the rules which are applicable to the employees of BDA. The learned counsel for the petitioners strenuously urged that BDA Employees (E&D) Rules, 1974 are applicable on all fours and BDA (E&D) Rules 1987 were introduced by the efforts of the new Chairman Mr. Aman Shah in order to victimise the present petitioners. It was further averred that these Rules in fact are ultravires of BDA Act of 1974.
17. In order to resolve the issue we have to divert to the Act of 1974. Section 30 of the Act of 1974 is relevant for the purpose which reads as under:--- 30(1) The Government may by notification in the Official Gazette make Rules for carrying out the purposes of this Act."
18. From the plain reading of Section 30(1) of the Act, it becomes crystal clear that there are two legal requirements which give sanctity to Rules, viz; firstly that it is the Government who is the competent Authority to frame Rules and secondly that such Rules are to be notified in the Official Gazette. There is no dispute that E&D Rules of 1987 were framed by the Government of Balochistan and were notified in the Official Gazette of November, 4, 1987 whereas E & D Rules of 1974 though framed by the Government but were never notified in the Official Gazette. Similarly E & D Rules of 1984 were never notified in the official Gazette, thus when Rules of 1987 were framed and notified in the official Gazette there existed E & D Rules of 1974 and E & D Rules of 1984 in the field although the same were not notified.
19. Rules which require notification in the official Gazette under a relevant Act but which are not so notified generally carry no proper legal sanction and are not binding on the principle that if law requires something to be done in a particular manner then the thing must be done in the said manner and in no other manner. There is no cavil with the proposition that E & D Rules of 1974 as well as E & D rules of 1984 were not notified as required by section 30(1) of Act of 1974. Same therefore may be held as mere instructions giving guidelines but cannot be treated as rules having a binding force. We therefore find substantial force in the contention of learned Advocate General Balochistan that E & D Rules of 1974 had no statutory sanction because these were not notified in the official Gazette and were in violation of section 30(1) of Act of 1974. This perhaps was the reason why the Chairman felt it necessary to bring to the notice of the Government to frame Rules. The Government therefore, framed rules of 1987 and got the same notified in the official Gazette on November, 4, 1987.
20. Mr. M. Aslam Chishti, in support of his contention relied on Rule II of Rules of 1987 and submitted that in this said Rule it was clearly mentioned that E & D Rules of 1974 are hearby repealed, meaning thereby that these rules were applicable prior to the framing of Rules of 1987. Rule II of Rules 1987 is hereby reproduced:-- "11. Repeal.--The Balochistan Development Authority (Efficiency and Discipline) Rules 1974 are hereby repealed. Pending cases if any shall be deemed to be pending under these Rules."
The counsel for the respondents attempted to rebut this argument in two ways. Mr. Basharatullah the learned counsel for BDA urged that Rule II must be read as it is, which clearly shows that pending cases if any shall be deemed to be pending under these Rules which clearly means that even if Rules 1974 were enforced prior to the promulgation of Rules of 1987, the same cannot be made applicable in pending cases as Rule 11 lays down that all pending cases shall be deemed pending under these Rules (Rules of 1987) and the cases of present petitioners were pending.
21. Pending cases means cases which are undecided or which are awaiting decision or settlement.
Reliance was placed on Fajar Ali and others v. Mst. Jamila and others as reported in PLD 1969 Lah.
Page 545. Mr. Aslam Chishti argued that the affect of repeal would be that previous operation of any enactment so repealed shall not be disturbed and the repeal would not affect in any manner the operation of law/rules which were repealed. But the said argument is devoid of any force because in section 6 of the General Clauses Act it is clearly mentioned that "unless a different intention appears", the repeal shall not affect the operation of previous enactments. Here in the cases in hand, it is clearly mentioned in rule 11 that pending cases shall be deemed to be pending under these Rules, thus the Government made its intention quite clear that pending the issue differently that the words "that rules of 1974 are hereby repealed" were used in order to remove the doubts because those Rules were framed by the Government but were never notified in the official Gazette as provided under the Act of 1974. These therefore were mere instructions. Reliance was placed on the cases of Muhammad Osman Ghani v. M. Ahmed, C.S.P. Election Tribunal and others (PLD 1967 Dacca 786). A George v. Pakistan International Airlines Corporation (PLD 1971 Lah. 748) and the Principal Cadet College Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170).
23. As we have already observed in the preceding paras that Rules of 1974 were not notified in the official Gazette, therefore, the same were mere instructions having no statutory sanction as such the Rules of 1974 or Rules of 1984 are not applicable in the cases of petitioners.
24. From the above discussion we are inclined to conclude that the cases of present petitioners are governed under the Rules of 1987.
25. This would bring us to the second limb of the argument advanced by the learned counsel for the petitioners that E&D Rules of 1987 are ultravires to the BDA Act and Business Rules. It was argued that E&D Rules of 1987 are ultravires of the Act of 1974 because BDA is controlled by the Government of Balochistan through its Planning and Development Department which is headed by Additional Chief Secretary (Dev.) But no powers under the rules have been reserved for the Government either as competent authority or as appellate or even revisional authority, thereby all powers have been concentrated in the Chairman and as no powers have been left under these Rules with the Government therefore, these rules are ultravires to the BDA Act.
26. This argument is devoid of any force as it has got intrinsic contradictions because it is the Government itself which has framed these Rules. BDA Act of 1974 was passed by the Provincial Assembly Balochistan on 4th of June, 1974 and assented to by the Governor to provide for the establishment of a Development Authority for the promotion of economic and industrial development of the province. It was felt by the Government that such authority shall be a body corporate having perpetuate and common seal with powers subject to the provisions of the Act to acquire and hold property both movable and immovable and shall by the said name be sued or sue. Thus as a corporate body BDA was allowed to act freely in order to achieve that goal subject to the provisions of the Act of 1974 and Rules framed in a manner to oust the control of the Government would be a misnomer because the Government retains its overall control through the Act over BDA. As for instance the Authority shall establish regional offices at such places as Government may direct (section 3(4) of the Act). Under section 4(2) of the Act the Board in discharging its functions shall act on sound principles of development and economic plannings and shall be guided on the following and other matters of policy by such directions as the Government may from time to time give...."Subsection (3) of section 4 provides that if any question arises as to whether any matter is a matter of policy or not the decision of the Government thereon shall be final. Likewise section 4(4) lays down that if the Board fails to comply with any direction given to it under subsection (2) the Government may remove the Directors including the Chairman from office and appoint a person or body of persons to perform functions of the Board until a new Board is constituted under section 5. The constitution of Board of Directors and appointment of the chairman is also retained by the government. Thus it is clear that there are provisions in the Act which empower the Government to control the working of BDA and therefore to say that the Government has lost control over BDA merely because under the rules of 1987 certain powers have been given to the Chairman or Board is fallacious and untenable. Undisputedly the Government competent authority to frame Rules under the Act and such Rules have been framed by the Government with a view to provide sufficient powers to BDA a corporate body to function smoothly and freely, to achieve its object. This in our opinion would not be sufficient to declare the Rules as ultra-vires of the BDA Act.
27. The next contention that the Rules of 1987 are ultra vires of the Business Rules of 1976 also carries hardly any legal weight for the reason that though the Business rules are framed by the Governor under Article 139(3) of the Constitution of Islamic Republic of Pakistan, 1973 for the allocation and transaction of the business of the Provincial Government, but such rules are primarily intended to regulate the transaction of the Business of the Government. Virtually Rules of Business were framed in this Province in the year 1976 and as per rule 21(1) of Rules of Business (as amended) cases of disciplinary action pertaining to the officers holding posts in Grade-17 and above and officers of equivalent status including Chairman and Members of statutory Corporation under the control of the government shall be submitted by the concerned Department to the S&GAD except where exemptions are allowed by the Government in this behalf. It was contended that petitioners being officials of the aforesaid category, their cases should have been channelised through S&GAD. The only question therefore in this regard would be whether Rules of 1987 on this score would be ultravires. We cannot subscribe to such a view firstly because Rules of 1987 were framed for a particular set of officials i.e, BDA employees and while these Rules were framed the Government had in mind the Business Rules. Business Rules were framed in 1976 and Rules of 1987 are subsequent thereto. Another factor is that from the materials on record it transpired that the cases of the petitioners and question of misappropriation was also taken in the Provincial Assembly of Balochistan where it was declared by then Chief Minister that persons responsible shall be dealt with severely. Thus the cases of the petitioners were already in the notice of the Government and it hardly matters whether the same were channelised through S&GAD or otherwise.
28. It would not be sufficient to render Rules as ultra-vires merely because the same Rule-making Body had prescribed a different procedure not akin to similar rules as framed in a different context.
29. We now proceed to dispose of the first objection raised in respect of the competency of the Chairman for initiating action against the petitioners. According to section 9(1) of BDA Act of 1974 the Authority may subject to such general or special orders as Government may from time to time give, appoint such officers, experts, advisers, consultants and employees as it considers necessary for the efficient performance of its functions on such terms and conditions as it may determine.
30. In the definition of Rules of 1987 clause d(iii) is relevant which after defining the competent authority lays down as under:- "In respect of employees in time scale corresponding to BPS 16 to 20 the Chairman".
As stated in the paras hereinabove the Advocate-General Balochistan urged that there are two categories of employees in BDA i.e, officials appointed by the Government but whose services are transferred to BDA e.g. Chairman and Board of Directors. The second category consists of those employees who are appointed by the authority or the Chairman. In respect of the first category it is the Government which can take action but in respect of the second category the Board of Directors or the Chairman, as the case may be, would be competent authority to initiate proceedings.
31. As we have already held that Rules of 1987 are applicable, therefore, there remains no doubt in view of clause d(iii) that the Chairman is the competent authority in respect of employees corresponding to BPS 16 to 20. The proceedings initiated against the petitioners were, therefore, taken by the competent authority under the Rules.
32. Learned counsel for the petitioners then urged that the action of the Chairman was mala fide and arbitrary. It was averred that the Chairman misreported the matter to the Board of Directors by contending that enquiries were pending against the petitioners although in fact such inquiries were completed. Thus on this misrepresentation, the Board of Directors decided to constitute an independent fact finding inquiry to probe into the cases of misconduct/misappropriation of the petitioners but despite that an official of the BDA (one major (Retd) Ali Muhammad) was appointed as Enquiry Officer. Furthermore the Chairman attempted to change the rules and to bring fresh rules so that the petitioners are punished according to the whims of the Chairman. The Chairman after passing orders of suspension and dismissal etc. Heard the appeal against his own order although according to the provisions of Act of 1974 he could easily have abstained to hear appeal against his own orders. This all, according to the counsel would go to show that action taken by the Chairman was mala fide.
33. It was admitted in the counter-affidavit that inquiries in respect of the four projects were completed prior to the taking over of the Chairman. However, it was stated that these facts were concealed by the petitioners and Chairman was not informed as he had recently taken charge. It was also replied that Board of Directors allowed suspension of the petitioners for a due cause as they were involved in cases of misconduct and misappropriation of huge amount/material. As far as the constitution of fact finding inquiry is concerned one Major (Retd) Ali Muhammad was appointed against whom no partiality has been alleged.
34. It may be pointed out that when the Chairman noticed that huge misappropriation has been committed by the employees of BDA he informed the Board of Directors. The fact that enquiries were completed or were yet pending was immaterial. Chairman being competent authority under Rules of 1987 could initiate proceedings as per rule 5(1) on the basis of his own knowledge or information placed before it provided sufficient grounds for proceeding against an employee existed. Therefore the plea that had the Chairman not misreported that enquiries were pending, Board would not have recommended for suspension of the petitioners, is totally irrelevant and unsustainable. Although the Board in the instant matters also decided to direct for conducting of enquiries against the officials who were responsible for misappropriation of huge quantity of material and money belonging to BDA. The main attack that the Chairman acted mala fide was that he got new Rules approved by the Government. We have already observed that under section 30(1) of the Act the Government is competent to frame rules and if at all Rules were framed on the pointation of the Chairman then it cannot be safely concluded that this action was mala fide, because anything done in accordance with the provisions of any statute or law validly enacted cannot be held as mala fide. To prove mala fides onus is always on the party alleging mala fides. It is now well settled that a presumption of regularity with regard to official acts is always- attached unless the same is rebutted clearly and conclusively but of course not with vague allegations. The question of had faith is always a question of fact and there appears no reason why Chairman acted in bad faith against the present petitioners against whom he had no grudge prior to taking of charge as Chairman except that he noticed misappropriation and misconduct.
35. It is not for the Courts sitting in Constitutional jurisdiction to dig out facts from different files to prove mala fides. Mala fides should be apparent from the record as also from the conduct of the officials against whom the same is alleged. In the instant case admittedly the Chairman started inquiries soon after taking of his charge. The officials had never been under his control and there was no question of personal grudge against them. Asking the Government to frame Rules by itself does not constitute any act to be termed as mala fide. The Chairman has apparently not violated any mandatory provisions of the Act of 1974 or the Rules made thereunder. Mr.Chishti, vehemently urged that the petitioners were not supplied with the copies they required for replying the show cause notice but it is clear from the record that a record committee was constituted by the Chairman and petitioners were accordingly informed that they have access to any document they required in order to submit their replies. Petitioners have not alleged that they were not shown any record by the said Board. Mere contention that since copies of numerous official documents were not supplied hence the same may be termed as mala fide act on the part of Chairman is devoid of any force.
36. The second limb of the argument was that the Chairman was biased against the petitioners. He presided over the meeting of the Board while hearing the appeals against his own orders. It was submitted that section 13(4) of the Act of 1974 contains a provision where in absence of the Chairman the meeting of the Board shall be presided over by a Director authorised by the Chairman and where no such authorisation has been made by the Chairman a Director among the Board of Directors be elected to preside over such meetings. Under Rule 10 (iii) of the Rules of 1987 the order passed by Chairman punishing any official is appealable to the Board of the Authority and Director means according to section 2(d) of Act of 1974, a Director of the authority including the Chairman. Thus the Board consists of the Directors presided over by the Chairman.
Mr. Aslam Chishti in view of the aforesaid provision submitted that as per section 13(4) the meeting of the Board could be presided over in absence of the Chairman, by a Director authorised by him or by a Director elected for the purpose by other directors, therefore, it would have been expedient and proper in the circumstances if the Chairman would have chosen not to preside over meeting of the Board while hearing the appeal against his own orders. By not adopting this option, according to the learned counsel the Chairman wanted to influence the Directors at the time of hearing of the appeal. This according to the counsel violated the principles of natural justice and this fact constitutes bias and mala fides. Mr. Basharatullah on the other hand challenged this plea on the ground that there is a mandatory provision of law requiring that the meeting of the Board of directors shall be presided over by the Chairman. The word 'shall' has been intentionally used by the legislature and therefore by presiding over the meeting of the Board while. Hearing appeal the Chairman has acted in compliance of the provisions of the Act of 1974.
37. Mr. Basharatullah canvassed that under section 13(4) of the Act of 1974 any Director may preside over such meetings only when the Chairman is absent. Since during the hearing of the appeals the Chairman was not absent, therefore, he was under legal obligation to preside over the meeting. Thus the Chairman acted according to law and there arises no occasion to say that by doing so he showed his bias or was acting mala fide or that principles of natural justice were violated. In support of his contention he relied on the cases of Mukhtar Hussain v, District Manager.
Road Transport Authority as reported in PLD 1966 (W.P.) Lahore 258. Asim Iqbal v. President Summary Military Court No,1 Quetta and 3 others (PLD 1978 Quetta 97), and the President of Pakistan v. Mr. Justice Shaukat All (PLD 1971 SC 585).
38. Dictionary meaning of bias is when a person is influenced unfairly or is inspired with prejudice.
In judicial parlance bias in a Judge may mean when he acts without having regard to sound judicial principles or when he is paralysed of his judicial faculties. It in fact means a disqualification for a judge to proceed or try a person. Applying these principles to the present cases we are unable to find J that the Chairman has acted in bias because he after noticing certain misconducts and misappropriations brought these facts to the notice of the Board and thereafter proceeded under the Rules of 1987. Imputing a judge with bias is most unreasonable unless it is proved that he acted one sidedly or in a manner which cannot be termed as judicial.
39. Under the Act of 1974 it was incumbent upon the Chairman to preside over the meeting of the Board. The alternate arrangements as envisaged under section 13(4) come into play only in absence of the Chairman but the Chairman admittedly was present and he presided over the meeting of the Board hearing the appeal. Besides the Board there was no other alternate forum therefore, the Chairman had to preside it Since the Chairman acted in accordance with the provisions of the Rules of 1987 hence it cannot be held that he was biased.
40. This takes us to the plea raised by the counsel for the petitioners that the petitioners have not been given proper opportunity of being heard. It is revealed from the record that explanation notice was given to the petitioners on Ist of October, 1987 wherein the action proposed to be taken was intimated and charges in detail were given to the petitioners. In replies thereto, petitioner Nasim as well as other petitioners submitted a very long list of documents which they required for submitting their replies. As stated earlier a Record Committee was constituted for the purpose. The Chairman then issued a show-cause notice while proceeding under Rule 5 of the BDA (E&D) Rules of 1987. Once again the allegations of misconduct and misappropriation were given in detail and 14 days time was allowed to the petitioners to submit their replies. The action proposed was also mentioned as dismissal and recovery of mis-appropriated amount. It was also intimated that the petitioners may see relevant documents in working hours from 10 a.m. To 3-00 p.m. After this the Chairman proceeded under Rule 5 and found the petitioners guilty and awarded punishments as stated in the facts. This means that the Chairman acted in compliance with the Rules and petitioners were given 14 days' time to explain their position and were also allowed to have access to the record to find out the documents on which they wanted to rely. This in our view was sufficient opportunity.
41. It was next contended by Mr. Chishti that the Chairman intentionally did not proceed under Rule 6 which provided a thorough inquiry and a procedure whereupon the petitioners would have earned sufficient time to effectively submit their replies. But it may be pointed out that under Rules the discretion is always with the Chairman either to adopt summary procedure under Rule 5 or to have resort to Rule 6. We find no reason to interfere in the discretion so exercised by the Chairman for disposal of cases pertaining to misconduct and misappropriated amount to the tune of lacs of rupees.
42. Even otherwise the petitioners were heard in person as is evident from the impugned order passed by the Chairman, therefore, contention that the petitioners were not properly heard has no force.
43. The next contention that the order of the appellate forum was not a speaking order is also of no consequence. Firstly because the Board has not differed with the original impugned order passed by the Chairman which in fact was a detailed and lengthy order and secondly because the Board was a quasi judicial forum and it cannot be expected of it to write a detailed and argumentative judicial order, particularly so when they agreed with the finding of the Chairman.
44. It may further be observed that while sitting in Constitutional jurisdiction we are not supposed to appreciate the evidence and to draw conclusions as to whether the petitioners have factually been involved or not in misappropriation and misconduct, moreso when the two forums below have drawn such conclusions.
45. Lastly while exercising constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, we have to see whether issuing of a writ will foster the ends of justice or it would perpetuate wrongs. Even if there are certain procedural or technical defects in the conduct of proceedings, but substantial justice has been done, the discretion under Article 199 of the Constitution is not generally exercised. For the above stated facts and reasons we find no force in these petitions which are hereby dismissed. However, we leave the parties to bear their own costs.