This judgment will decide Civil Revision No,1393 of 1998 which calls in question judgment, dated 14- 7-1998 passed in appeal by the learned Additional District Judge, Faisalabad whereby the suit of respondent was decreed on reversal of judgment, dated 11-4-1994.
2. Respondent filed a suit for seeking declaration to the effect that order No,2060/70/SE/Estt. dated 14-10-1990 and appellate Order No,860- SE/Estt. dated 2-3-1992, were illegal, mala fide and inoperative against his rights and that he contained to be in employment since the date of removal and was entitled to the salary and other benefits throughout. It was claimed in the plaint that the respondent joined as Junior Clerk in Sargodha Board of Intermediate from where he was transferred to Board of Secondary Education Faisalabad and was promoted as Senior Clerk on 31- 12-1989 as per order, No,1644-1644. The respondent was suspended from service vide office Order, No,8386, dated 24-9-1989, charge sheet was served upon him vide Office Order, No,8800/SB/BST, dated 4-10-1989 on the allegations that he had made alterations in the sheets of results etc. Respondent denied the charges upon which Inquiry Officer was appointed. A show-cause notice was issued on 15-1-1990 which was replied by the respondent. After inquiry, respondent No,2 was held guilty and was removed from service vide Office Order No,2060-70/SE/Estt., dated 14-10-1990.
An appeal was filed against Order, dated 14-10-1990 which was dismissed on 2-3-1992. In this backdrop, respondent challenged order of his dismissal from service and also the order passed in appeal on the grounds that he was not properly heard, the charges were factually incorrect, proper inquiry was not held and that the inquiry report and order were based on surmises and conjunctures.
3. The suit was resisted by petitioners, who maintained that the Civil Court had no jurisdiction, the requirement of natural justice was fulfilled before dismissing the respondent, the respondent had pleaded guilty and was estopped to file suit, he had no cause of action to question the vires of the order against him and that the suit was not maintainable. On factual plane allegations were denied and it was pleaded that fult opportunity of hearing was given to the respondent and that the charges against him were proved where after final order was passed.
4. After issues and evidence, the learned Civil Judge dismissed the suit vide judgment, dated 11-4- 1994. In appeal the judgment was reversed and suit decreed which led to the filing of present revision petition.
5. Learned counsel for the petitioners argued that there were no statutory rules regulating terms and conditions of service of employees of Board, the relationship of the Board and its employees was that of master and servant and, therefore, the suit for declaration was not maintainable and the remedy was in the form of damages. It was added that the regulations could not be assumed to be statutory rules and that the plea of alleged adoption of Efficiency and Discipline Rules was self-assumptive and otherwise untenable. Learned counsel submitted that the learned Additional District Judge took too much technical view of the matter and illegality assumed that the inquiry was not properly conducted It was added that the criteria for determining the validity of inquiry is to ascertain as to whether the rules and requirements of natural justice were fulfilled and if fair opportunity of defence has been allowed to the employee, the inquiry report or the order of dismissal cannot be set aside by the Civil Court as a Court of appeal. Elaborating his submissions learned counsel submitted that the respondent was given fair opportunity of hearing which was evident from the proceedings, and therefore, no ground existed for interference, particularly when neither mala fide was alleged nor any evidence led to prove mala fide.
6. In reply, learned counsel for the respondent submitted that the inquiry was defective, the statement was recorded in question-answer form, the employees of Board to be governed by the Efficiency and Discipline Rules applicable to the Civil Servants, the suit was maintainable and That the judgment and appeal does not suffer from any error of law.
7. I have given my anxious consideration to the submissions made and have been taken through material available on record. The respondent was charge sheeted on the allegations that he had made unauthorized alterations in the result sheets of certain candidates of Intermediate (Spring)
Examination 1989 and was thus guilty of misconduct. It was alleged that during preparation of results sheet No,23 pertaining to Intermediate (Spring) 1989 Examination, the respondent entered 47 marks for English paper against Roll No,23242 though the candidate, as per attendance sheet was absent in paper 'A' and in this way, the authority was illegally exercised for altering the record to pass the candidate. Similarly, in result sheet No,23 against other Roll Numbers, marks were changed unauthorizedly. Respondent was served with show-cause notice, his reply was found to be unsatisfactory, an Inquiry Officer was appointed. Respondent examined the record for filing reply by making a written request. The Inquiry Officer, recorded his statement in question-answer form who after considering the relevant material, charges against the respondent, defence taken by him and other circumstances, found him guilty and this resulted in imposition of major penalty of removal from service vide officer order, dated 14-10-1990. Respondent's appeal was also rejected by the competent Authority. Respondent appeared in defence and recorded his statement when certain documents were tendered. No other evidence was produced to challenge the validity of proceedings against him. Likewise, Muhammad Ibrahim, Assistant Secretary, Board of Intermediate, Faisalabad appeared as D. W.1 to defend the order and recorded his detailed statement. The learned Civil Judge, after considering the oral as well as documentary evidence on record observed that the respondent could not prove that the action taken against him was illegal or mala fide. In reaching this conclusion, the learned trial Court took into consideration the fact that the respondent did not summon external tabulator teacher to prove his version as according to him, the alteration was made by the external tabulator teacher. It was also observed that the respondent did not produce any expert for comparison of the writing on the result sheets though an opportunity was allowed during inquiry. It was observed that the respondent admitted that the Inquiry Officer was appointed to conduct inquiry, charge sheet was issued, he made his statement and therefore, it could not be said that the requirements were not fulfilled by the Inquiry Officer. The learned Civil Judge further took note of the fact that the respondent moved an application (Exh.P.3) for inspection of record which was allowed and an opportunity was provided and this fact was also not disputed in evidnece. It was further observed that the respondent had admitted in his testimony that the record of external tabulator teacher remained in his custody for few days, and though he was duty bound to report the custody of record of external tabulator teacher to the concerned authority but he failed to do so. Considering cumulative effect of the proceedings, it was concluded that the rule of natural justice was duly fulfilled. In appeal, the learned Additional District Judge took the view that the statement was recorded in terms of section 342, of Cr.P.C., no certificate was given under the statement, the statement of respondent was recorded first without asking the department to prove its case and in this view of the matter, it was assumed that the inquiry was not fair or reasonable.
8. Two questions required consideration for the decision of this revision petition viz, whether there existed any statutory rules regulating terms and conditions of the employees of the Faisalabad Board and if not, can the regulations be treated to be statutory rules. In case the answer is in negative, the question for consideration would be if the suit for declaration would lie. The next question would be as to whether in the inquiry proceedings, the requirement is to satisfy that the rules of natural justice were duly complied with and the employee was given fair opportunity of hearing and defence or the inquiry report can be quashed by adherence to technicalities and stringent rules applicable to the proceedings in suit and judicial proceedings.
9. From the judgments of the Courts below and also the material available on record, it appears that neither the parties made serious efforts to bring on record relevant material to assist the Court in determining the first mentioned question and to find out if the employees were governed by the Efficiency and Discipline Rules or were governed by the principle of Master and Servant nor the Courts below seriously attended to this question, though it related to the very exercise of jurisdiction. The respondent had claimed that the Board had adopted Efficiency and Discipline Rules in the matter of conducting inquiry and imposing punishment while the petitioners maintained that the respondent did not enjoy the status of a Civil Servant. The learned Appellate Court, made a casual discussion of the question and assumed that the Efficiency and Discipline Rules had been adopted. It was not given any serious consideration to determine, as to how the employees of -a statutory body could be regulated by the Efficiency and Discipline Rules which are applicable to the Government employees or Civil Servants and what was the mode of adoption. It was also not considered if the regulation framed by the Board had any statutory force or were mere intra Department instructions without any approval from the Provincial Government. In the course of hearing of this petition a reference was made to the Service Regulations framed by the Board which provide for conditions of service, seniority, leave, discharge, retirement, provident fund, gratuity etc. There does not exist any sufficient material on record to conclude, if any regulation was made with the approval of the Provincial Government or had statutory recognition. In Anwar Hussain v. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194) it was ruled that employees of statutory corporation where the relationship of employment was regulated by a contract freely entered by the parties, the principle of master and servant would be applicable. In the Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170) it was observed that the rules framed by Board of Governors for governing the appointment, promotion, retirement, termination or dismissal of employees by the Board of Governors of the College would neither be rules approved by the Government nor could be regarded as rules and the same could be only regarded to be in nature of mere instructions issued for guidance of Board of Governors and Principal of College. In Wazir Ali Khoja v. Muslim Commercial Bank Ltd. and others (1998 SCM R 1452) it was ruled that employees of privatised/de-nationalised institutions, could not challenge their termination of service through constitutional petitions.
10.In the present case, the two Courts below while deciding the suit and also, the appeal were oblivious of the distinction between the statutory rules and the regulations which are purely intra Departmental instructions A framed without the sanction of Provincial or Central Government. The maintainability of the suit was determined in affirmative on assumption that the Efficiency and Discipline Rules were adopted, without making any effort to dig out, the basis on which the plea of adoption has been raised. A Obviously there are certain settled modes by which the rules can be made applicable and therefore, mere assertion without supporting material, cannot be made basis for assuming a particular state of affairs. Since the question pertaining to the maintainability of the suit has been decided being oblivious of the relevant provisions of law and the rule laid down by the superior Courts and also in the absence of any evidence, therefore, the finding cannot sustain.
11. The second question requiring determination would be, as to whether in the inquiries against the employees in disciplinary matters adherence of rule of natural justice would not be sufficient. It appears that the learned Additional District Judge took much technical view of the matter and attempted to criticise the proceedings on too much technical objections. If the charges against the employee are served upon him he was given reasonable opportunity of filing reply, he was allowed to produce documents, given an opportunity to defend himself and explain his position with an opportunity to produce evidence then the proceedings cannot' be quashed on adherence to the technical provisions as the manner in which the proceedings are to be recorded. In this case, record indicates that the respondent was served with show-cause notice explaining the charges against him, he requested for inspection of record which was allowed. After inspection he filed reply explaining his position, his statement was recorded, may be in question-answer form, where he was put the charges and asked to explain his position, he had the opportunity to summon witnesses whichever he wanted, there is no allegation that he was not allowed to summon any evidence or to produce any document, the Inquiry Officer took into consideration his defence/explanation and the material on record and thereafter, concluded that the respondent was guilty and that the charges were proved against him. The learned Additional District Judge, instead of examining the material against the respondent and the circumstances taken note of by the learned trial Court, proceeded to comment on the manner of recording statement and in this way, the appeal was not decided, on merits in accordance with law. Till such time, the Court finds that the rules of natural justice were not adhered to in the course of inquiry and fair or reasonable opportunity of defence was not given to the employee, it will not be necessary to strike down the proceedings by adhering to the technical rules of recording evidence. It may be observed that the learned Civil Judge took note of the fact that the respondent had taken a definite stand in his defence whereby he raised allegations against the external tabulator teacher for making illegal entries, but he did not either summon them nor asked for comparison of the writing by the expert.
He also took note of the fact that the respondent did not deny to have taken the record in his custody and retained it though he was not supposed to do the same and, therefore, the onus was upon him to satisfy that he had not entered the inflated numbers. In view of the averments made in the plaint and the evidence led, the question for consideration for the appellate Court was to satisfy if the inquiry was held in fair manner, there was sufficient material with the Inquiry Officer 'to uphold that punishment and as to whether the punishment imposed against the respondent was justified in the circumstances of the case. This aspect of the case was attended to by the learned trial Court but the learned Additional District Judge did not examine the case in proper perspective and was pursuaded by extraneous considerations. The findings recorded in appeal by the learned Additional District Judge, therefore, suffer from material illegality and non-consideration of the material available on record and are accordingly set aside. Since the appeal has not been decided by attending the questions raised hereinabove and also considering the points (supra), therefore, the case will have to be remanded to the learned Additional District Judge for fresh decision of the appeal in accordance with lam and on its own merits.
12. For the reasons above this revision is allowed and the impugned judgment of the learned Additional District Judge is set aside with the result that the appeal of the respondent shall be deemed to be pending which shall be decided afresh by the learned appellate Court in the light of the observations made hereinabove.