NASIR AS LAM ZAHID, J.- Petitioner Ajmain Khan son of Anwar Khan had filed this petition in 1984 against the Board of Intermediate Education, Karachi, and others challenging his compulsory retirement from service by the Board and seeking re-instatement with back-benefits. During the pendency of the petition, the petitioner died and his legal heirs comprising his widow, one son and five daughters (three of whom are minors) were impleaded as petitioners in place of the deceased petitioner, subject to the cause of action surviving.
2. Reinstatement cannot be ordered as the petitioner has died. In' any case, Mr. Usman Ghani Rashid, learned counsel for the petitioners, informs that during the pendency of the petition, the deceased petitioner had already attained the age- of superannuation and as such the relief of re- instatement had become infructuous. However, according to the learned counsel for the petitioners, the other causes of action have survived as in case the compulsory retirement.,of the petitioner's service by the Board is held to be illegal, he would be deemed to have been in service and would then be entitled to back benefits which now can be claimed by his legal heirs, who me now the petitioners. This submission of the learned counsel is not controverted by Mr. Shabhir Ahmed Shaikh, learned counsel for the Board, and also by Mr. AA. Mohmcdally Addl. Advocate General, who appears on behalf of Controlling Authority i.e. Education Department. The submission of the learned counsel is correct about the cause of action surviving as aforesaid.
3. Petitioner had joined service of the Board of Intermediate Education, Karachi, in 1963 as an Upper Division Clerk and during the course of his service he passed his BA. Examination in 1974. In 1976, he was promoted to grade 17 and posted as Assistant Controller of Examination and then transferred to the Academic Department and posted as Assistant Secretary, which charge he continued to hold till his services were dispensed with by the order dated 22.10.1983. The petitioner was compulsorily retired by the Board's Resolution dated 22.10.1983 w.e.f, the same date on which the Resolution was passed. He. Filed an appeal before the competent authority i.e. The Minister of Education but the same was dismissed. In the circumstances, the present constitutional petition has been filed. We have heard Mr. Usman Ghani Rashid and Mr. Shabhir Ahmad Shaikh learned counsel for the Board. Mr. A A. Mohmedally Add: A.G. Submitted that the petition be decided on the basis of submissions made by other counsel.
4. During his service with the Board, the petitioner had appeared in MA. Examination of Karachi University but his result was cancelled on account of some mis-conduct alleged against his and, according to the petitioner, he had made a representation against the cancellation of his result to the University which representation had not been decided. On the basis of the cancellation of the aforesaid result by the University, disciplinary action was initiated by the Board against the petitioner. An inquiry Committee was initially appointed but it did not give its report and, after about two years, another Enquiry Committee was appointed and on the basis of the report of the second Enquiry Committee, the impugned order was passed compulsorily retiring the petitioner from service.
5. The relevant rules are the Board of Intermediate Education Karachi Employees (Efficiency & Discipline) Regulations, 1976, made by the Board in exercise of the power conferred by section 17 of the Sindh Boards of Intermediate & Secondary Educatin Ordinance VI of 1972, after having received the approval of the Government. The relevant Regulations are Regulation Nos. 5, 6 & 7 which are reproduced hereinbelow: - "Inquiry Precedure:- The following procedure shall be observed when an employee is proceeded against under these regulations:-
(1) In case where an employee is accused of subversion, corruption or misconduct, the authorised officer may require him to proceed on leave or, with the approval .Of the authority, suspend him, provided that any continuation of such leave or suspension shall require approval of the authority after every three months.
(2) The authorised officer shall decide whether in the light of facts of the case or the interests of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee.
If he so decides, the precedure indicated in regulation 7 shall apply.
(3) If the authorised officer decides that it is no necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall.
(a) by order in writing inform the accused of the action proposed to be taken in regard to him and the grounds of the action, and
(b) give him a reasonable opportunity of showing cause against that action: Provided that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity.
(4) On receipt of the report of the Inquiry Officer or Inquiry Committee or, where no such Officer or Committee is appointed, on receipt of the explanation of the accused, if any, the authorised officer shall determine whether the charge has been proved and-
(a) if it is proposed to impose a minor penalty, he shall pass ; and
(b) if it is proposed to impose a major penalty, he shall forward the case to the Authority alongwith the charge and statement of allegations served on the accused the explanation, the finding of the Inquiry Officer or Inquiry Committee, if appointed, and his own recommendations regarding the penalty to be imposed, and the Authority shall pass such orders as it may deem proper and convey the same to the accused.
7. Procedure*to be observed by the Inquiry Officer and Inquiry Committee.-
(1) where it is decided that inquiry should be conducted through an Inquiry Officer or Inquiry Committee the Authorised Officer shall appoint an Inquiry Officer or constitute an Inquiry Committee.
ExplanationIt is not necessary that the Inquiry Officer or Members of the Inquiry Committee must being to the Board. But such officer or members must be senior in rank to the accused or should have place in warrant of precedence earlier than the accused.
(2) Where an Inquiry Officer or Inquiry Committee is appointed, the Authorised Officer shall(a) frame a charge and communicate it together with a statement of allegations on which it is based and of any other circumstances proposed to be taken into consideration while passing orders on thecase;
(b) require the accused, within a reasonable time, which shall not be less than seven days, nor more than fourteen days from the day the charge has been communicated to him to put in a written defence stating at the same time whether he desires to be heard in person.
(3) The Inquiry Officer or the Conjmittee, as the case may be, shall inquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused and the accused shall be entitled to cross-examine the witness against him.
(4) The Inquiry Officer or the Committee, as the case may be, shall hear the case from day to day and no adjournment shall be given except for reasons to be recorded in writing, and such adjournment shall not be for more than one week.
(5) Every adjournment with reasons therefor shall be reported forthwith to the authority.
(6) If the Inquiry Officer or the Committee, as the case may be, is satisfied that the employee, proceeded against, is hampering or attempting to hamper the progress of the inquiry, he or it shall administer warning to him and if, he or it is satisfied that the accused Is acting in disregard of the warning he or it shall record a finding to that effect, and proceed to complete the Inquiry in such manner as he or it things best suited to do substantial justice.
(7) The Inquiry Officer or the Committee, as the case may be, shall within ten days of the conclusion of the proceedings, or such longer period as may be allowed by the authorised officer submit his or its findings and the grounds thereof to the authorised officer.
(8) Where it is proposed to proceed against an employee on the ground of inefficiency by reason of infirmity of mind or boby, the authority may, at any stage, whether or not an Inquiry Officer or Inquiry Committee has been appointed or constituted under clause (1), require the employee to undergo a medical examination by a Medical Board or a Civil Surgeon, as the authority mfay direct, and the report of the Medical Board or the Civil Surgeon shall form part of the proceedings.
(9) If an employee refuse to undergo medical examination under clause (8), his refusal may, subject to the consideration of any grounds as he may give in support of it, be considered that he has reason to believe that the result of the medical examination would be against him."
6. As would be observed from the aforesaid Regulations, where an Inquiry Committee is appointed, the Authorised Officer is required to frame a charge and communicate it together with the statement of allegations to the employee accused requiring the employee to put a written defence. The Inquiry Officer or Committee is then required to examine such oral or documentary evidence in support of the charge or in defence of the employee and the employee is entitled to cross-examine the witness against him.
Regulation No.7 makes it clear that the inquiry is to be conducted in the presence of the employee/accused so that he may cross examine any witnesses produced in the inquiry against the employee and to lead evidence in his defence. Admittedly, the second Inquiry Committee did not give any notice to the petitioner to appear before it. It also is an admitted position that the petitioner was not associated with the inquiry. In the counter affidavit filed on behalf of the Board, there is no denial of the averments made by the petitioner that he had not been given any notice and was not associated with the inquiry. Copy of the inquiry report, if any, has not been placed on record. Nor any reference has been made to such inquiry report. There is a clear violation of Regulation No.7. The impugned order is based on the report of the Inquiry Committee. It was mandatory on the part of the Inquiry Committee to associate the petitioner in the proceedings of the Inquiry Committee and to afford him an opportunity to cross-examine any witnesses produced against him and to allow him to lead evidence and to make a statement on his behalf. As copy of the Inquiry report has not been placed on record and also not available with the learned counsel for the Borad, it is doubtful whether any inquiry at all was held or, if any inquiry was held, whether any statements were recorded. In view of the clear violation of Regulation 7 of the aforesaid Regulation of 1976, the impugned order could not be passed compulsorily retiring the petitioner.
7. As a result, this petition is allowed to the extent that the impugned order compulsorily retiring the petitioner is held to have been passed without lawful authority and of no legal effect. As a necessary consequence, the petitioner would be deemed to have been in service till he reached the date of superannuation and he was entitled to back benefits for the period till the date of his superannuation.
The respondent Board will calculate the amount due to the deceased petitioner on the basis that he remained in service till the age of superannuation and thereafter deposit the said amount with the Nazir of this Court alongwith the statement of calculation signed by the authorised Officer of the Board and learned cousnel for the Board. This will be done within two months from today. The amount can then be with drawn on the basis of succession certificate by any of the petitioners.
There will be no order as to costs.