' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, has been directed against the judgment of the High Court passed on 14-11-2000, whereby the writ petition filed by Abdul Hameed Siddiqui, respondent No,1, was accepted and the impugned order of his dismissal from service and recovery of certain amount was declared as unlawful and of no legal effect. The respondent was reinstated with all service benefits.
2. The necessary facts, giving rise to the present appeal, are that the Chairman, AKLASC reported that _during the period from 18-4-1990 to 1-10-1990 an amount of Rs,10,74,295 was misappropriated from the account of the Corporation and he recommended to the Government that in order to probe into the matter a fact-finding Inquiry Commission may be constituted from amongst the officers of the Government, whereupon vide Notification dated 4-12-1991 an Inquiry Commission consisting of Muhammad Yunus Awan, Additional Commissioner Dev. Department and Abdul Qayyum Mughal, Budget Officer of Finance Department, was constituted. The Inquiry Commission reported the matter to the Board of Directors, whereupon the Board of Directors approved that .Proceedings under the Efficiency and Discipline Rules (hereinafter to be referred as the E&D Rules) may be initiated and for the said purpose the Government was requested to provide the services of Muhammad Yunus Awan so as to act as an authorised officer. Alongwith the respondent, Abdul Hameed Siddiqui, eight other officers were proceeded under the E&D Rules.
The authorised officer vide his order, dated 4-2-1992 appointed Rasheed Ahmed Katel, General Manager, AKLASC, as Chairman and Abdul Qayyum Mughal, Budget Officer of the Finance Department, as member of the Inquiry Committee. The respondent alongwith other accused officers was given a show-cause notice by the authorised officer. The Inquiry Committee conducted the inquiry and submitted a report on 29-4-1992. The Inquiry Committee found the respondent, Abdul Hameed Siddiqui, guilty of misappropriation of Rs,10,74,295 out of which he deposited an amount of Rs,2,77,119 in the account of the Corporation and the remaining amount of Rs,7,97,176 was liable to be recovered. The authorised officer after taking necessary measures submitted a report to the Board of Directors recommending therein that respondent No,1, Abdul Hameed Siddiqui, may be punished in accordance with the E&D Rules. The report of Inquiry Committee was placed before the Board of Directors and the Board of Directors vide its resolution dated 7-2-1992 authorised the Chairman, AKLASC to award punishment to respondent No,l. The Chairman, the then Minister for Forests, imposed the punishment of removal from service to respondent No,1 and recovery of an amount of Rs,7,97,176 as arrears of land revenue which was allegedly misappropriated by him.
3. This order was assailed by respondent through a Constitutional petition before the High Court on 11-2-1993. The learned Judge who was seized with the petition felt it advised to invite comments from the department before passing any order on the petition. In the comments filed by the respondents therein, the maintainability of writ petition was challenged on the ground that the petitioner therein had got a right of appeal before the Board of Directors of AKLASC and without availing the remedy provided by the relevant statute the writ petition was not maintainable. The learned Judge agreed with the suggestion of the learned counsel for respondents therein and consigned the writ petition to record room and directed the respondent to seek the redressal of his grievance through departmental remedy before approaching the High Court. The respondent herein thereafter filed an appeal before the Board of Directors, AKLASC on 18-3-1993. He also made a request in it that the operation of the impugned order, 'dated 28-12-1992 be suspended to the extent of recovery of the amount till the disposal of his appeal. However, on 25-7-1993 the Collector District Muzaffarbad was moved by the AKLASC Authorities seeking recovery of amount from the respondent as arrears of land revenue. The Collector, District Muzaffarbad on their application directed the Tehsildar/Assistant Collector Grade-1, Muzaffarabad for recovery of the amount as arrears of land revenue from the respondent. The respondent was thus constrained to seek the redressal of his grievance through the writ petition which was filed on 13-10-1993.
4. During the pendency of his writ petition before the High Court the Appeal Committee constituted by the Board of Directors, AKLASC served a notice upon the respondent on 14-11-1993 for hearing of departmental appeal. The respondent submitted his reply before the Committee that under the compelling circumstances he has invoked the writ jurisdiction of the High Court and has also secured a stay order. He also submitted that the Appeal Committee constituted for hearing of his appeal was headed by Mr. Rashid Ahmed Katel who, by that time, had been elevated as Managing Director, AKLASC, was not acceptable to him as he had acted as Head of the Inquiry Committee against him. The appeal of respondent was ultimately dismissed by the Board of Directors, AKLASC on 12-5-1994. The respondent thereafter amended his writ petition and challenged this order with the permission of the Court through the amended writ petition.
5. The respondents controverting the allegations made in the writ petition denied any bias of members of Inquiry Committee about the petitioner therein. They also denied that the inquiry was not conducted in accordance with law. According to the respondents the impugned order was passed in accordance with law and rules in force and the objection about the conduct of Inquiry Committee and authorised officer was unfounded and without any lawful justification.
6. In support of appeal it was vehemently contended by Raja Muhammad Hanif Khan, the learned counsel for the appellants, that respondent No,1 had got alternate remedy before the Labour Court under the AJ&K Industrial Relations Ordinance, 1974. He contended that the writ petition filed by the respondent was liable to be dismissed. According to him the respondent was an employee of Grade B-11 in the service of AKLASC and irrespective of the fact that what amount he was drawing as pay, he was not holding an administrative post in the Corporation, therefore was covered by the definition of workman. He in support of his contention referred to various authorities. The learned counsel also contended that the mere fact that the son of Muhammad Yunus Awan was also accused and even the authorised officer, Rasheed Ahmed Katel, was also debarred from acting as authorised officer merits no consideration for the simple reason that no objection to the above point was raised before the authority concerned, as such the respondent was precluded from taking such an objection at a later stage. He in support of his contentions relied on Ghulam Mohi- ud-Din v. Chief Settlement Commissioner and others [PLD 1964 SC 829] and Abdul Qadir v. Abdul Karim and others [1999 PLC (C.S.) 947]. The learned counsel also contended that it was wrong to suggest that the respondent was not afforded with the opportunity of hearing. The Chairman, AKLASC duly heard the respondent and this fact finds mention in the report which is available at page 132 of the paper book. The Board of Directors duly authorised the Chairman to pass an order against the respondent. The learned counsel also contended that the evidence against the accused-respondent was duly recorded which fully established the involvement of respondent in embezzling the alleged amount of Rs,7,97,176. The learned counsel vehemently urged that the accused-respondent out of the embezzled amount deposited an amount of Rs,2,77,119 in the account of the Corporation and thus impliedly admitted the offence of embezzlement and misappropriation of the amount.
7. Controverting the arguments raised by the learned counsel for the appellants, Mr. Abdul Rashid Abbasi, the learned counsel for respondent No,1 submitted that the Inquiry Committee was not properly constituted and it was not competent to inquire into the alleged allegations against the respondent. Thus the impugned order based on the report of illegally constituted Inquiry Committee is unsustainable. According to the learned counsel this Inquiry Committee was appointed by Mr. Muhammad Yunus Awan in his capacity as authorised officer. The very appointment of Muhammad Yunus Awan is bad in law because prior to his appointment as authorised officer he had conducted the inquiry in the matter and his inquiry report was relied upon by the Inquiry Committee as is apparent from the Inquiry Committee's report para. No,4 sub- para. 2 dated 29-4-1992. Moreover, his son was involved in the case and he was also included in the list of accused employees of AKLASC. He was therefore not independent and impartial person to assume and play the role of a judge in his capacity as an authorised officer. According to the learned counsel, he being personally interested in the result of proceedings on account of involvement of his son, Masood Iqbal, Junior Clerk, was debarred under the rules to act in the case as an authorised officer. It is pertinent to note here that the aforesaid ground is specifically raised in the writ petition which is supported by an affidavit. The appellants have denied this ground in the written statement but no counter-affidavit has been filed by them. In absence of counter-affidavit, we have no option but to accept the fact that Masood Iqbal, who was also facing charges alongwith the respondent and others, is real son of Muhammad Yunus Awan, the authorised officer.
The appellants therefore, in our opinion, impliedly admitted Masood Iqbal, as son of Muhammad Yunus Awan, however, Masood Iqbal was acquitted by the Inquiry Committee as such his guilt was not under consideration before the authbrised officer. The learned counsel in support of his contentions apart from relying on the E&D Rules, 1977 relied on Altaf Ahmed Khan and others v.
Member, Board of Revenue, Punjab, Lahore and others [1986 PLC (C.S.) 974]. In this case the seniority of Naib Tehsildars, determined by the competent authority, was set aside by the Service Tribunal simply on the ground that the officer who determined the seniority, his son was amongst the Naib Tehsildars, whose seniority was under discussion. It was held as follows:-- "Howsoever a person be honest and independent, it is always against the rule of propriety to associate himself when his personal interests are involved in a particular case."
' The second objection of the learned counsel for the respondent is that the inquiry was conducted in violation of relevant law and well-settled principles of natural justice as the same was conducted at the back of respondent who was not afforded a reasonable opportunity of hearing and was riot provided an opportunity to cross-examine witnesses who appeared and deposed against him nor he was provided with the opportunity to explain about his position with regard to incriminating material or evidence against him. The learned counsel in support of his arguments referred before us three applications which were received through post, According to the learned counsel these applications, prima facie have been written by the same person and contained almost the same signatures. The alleged authors of these applications never appeared before the Inquiry Committee but the Committee relied upon their applications as is apparent from paras.
Nos.4 and 11-2 of Inquiry Report. The learned counsel contended that if these three applications are left out of consideration then no other evidence is available against the respondent. The learned counsel further contended that the respondent had no business or concern to receive the alleged misappropriated amount from the customers and later its deposit in the Bank. It was in fact the duty of some other persons but the respondent is wrongly attributed embezzlement of said amount. The learned counsel further contended that in fact Inquiry Committee was under the influence of the fact finding report which was earlier prepared by Muhammad Yunus Awan, Chairman, and Abdul Qayyum Mughal, Member of the Inquiry Committee. Under the influence of these reports, the Inquiry Committee submitted fresh report before the authorised officer who illegally by assuming the role of judge made recommendations against the respondent. In this regard the learned counsel referred to paras. Nos. 4-2 and 4-7 of the Inquiry Report. The learned counsel seriously challenged the constitution of the Inquiry Committee under the provisions of the E&D Rules. According to him the inquiry was conducted against nine accused persons. Two out of nine employees were General Managers Finance and Accounts. The Head of the Inquiry Committee was Mr. Rashid Ahmed Katel who himself was the General Manager, AKLASC. The other member was Abdul qayyum Mughal, a Senior Budget Officer of the Finance Department. The memebers of the Inquiry Committee, according to the learned counsel, were not senior in rank to the abovereferred two accused employees of AKLASC who were General Managers of Finance and Accounts. Therefore the very constitution of Inquiry Committee was against the spirit of rules.
8. After hearing the respective contentions of the learned counsel for the parties, it may be stated that the objection raised by the learned counsel A for the appellant needs consideration as to whether the respondent had got an alternate remedy available before the Labour Court under section 30 of the Azad Jammu and Kashmir Industrial Relations Ordinance, 1974. The workman has been defined in section 2(28) which is to the following effect:-- "'Workman and workmen' means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be expressed or implied and for the purpose of any proceedings under this Ordinance in relation to an industrial dispute include a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off, or removal has led to that dispute but does not include any person--
(a) who is employed mainly in a managerial or administrative capacity; or
(b) who, being employed in a supervisory capacity, draws wages exceeding rupees six hundred per mensum or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature,"
When the present proceedings were initiated against the respondent he was an employee of AKLASC as Supervisor in Grade A in BPS-13, therefore he was not entitled to avail the remedy under the AJ&K Industrial Relations Ordinance, 1934 before the Labour Court. This view even finds support by the authorities referred to by the learned counsel for the respondent. In a case reported as Personnel Manager, Bata (Pakistan) Ltd., Lahore v. Muzaffar Ali (1985 PLC 786) it was laid down that a foreman of Bata Shoe Company was not workman as he was drawing his pay as Rs,1,142 per month. In Bahawalnagar Sugar Mills Ltd. v. Nasrullah Khan (1984 PLC 1105) a supervisor of Bahawalnagar Sugar Mills was not treated as a worker or workman as he was drawing pay above Rs,800.
9. In the light of above reasons, the respondent was not entitled to seek remedy before the Labour Court under the provisions of the AJ&K Industrial Relations Ordinance, 1974. Similarly in our view all the proceedings right from the appointment of authorised officer up to passing of the impugned order by the authority had been taken in total disregard of provisions contained in the E&D Rules.
The writ petition, therefore, even otherwise was maintainable before the High Court on the ground that the impugned order was the result of proceedings conducted in total disregard of the E&D Rules. The extraordinary writ jurisdiction made available to the High Court under section 44 of the AJ&K Interim Constitution Act, 1974 could not be treated as substitute for an appeal or revision. This jurisdiction can be availed favorably in extraordinary circumstances by showing that the impugned order under challenge is wholly without jurisdiction.
' In a case reported as Income Tax Officer, Central Circle-III, Karachi 'v. Eruck Maneckji and others (1991 SCMR 1447) it was held that as the Income Tax Officer had acted in arbitrary or oppressive manner against the respondent therein, his writ petition was maintainable despite the fact that the revision petition was competent under the provisions of the Income Tax Act (XI of 1922).
' In a case reported as Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and others (PLD 1975 SC 450) a guiding principle has been laid down that where defects of jurisdiction are apparent on the face of the record, certiorari jurisdiction of the High Court would at once be attracted.
10. In the instant case the appointment of authorised officer and Inquiry Committee, as held by the High Court, were directly in conflict with the provisions of the E&D Rules, therefore, all the proceedings conducted against the respondent were coram non judice. In a case titled Messrs S.S. Salar & Company v. Ch. Muhammad Sarfaraz and 2 others (PLD 1984 SC. (AJ&K) 77) it has been held by this Court that the High Court will not entertain the writ petition when any other appropriate remedy is yet available, is not a rule of law barring the jurisdiction of the High Court but a rule by which the Court regulates its own jurisdiction. The objection in respect of alternate remedy was rejected and the following principle was laid down in para. No,14:-- "Next is the point with regard to the availability of an alternate remedy. The adequacy of this remedy ought to be viewed or judged in the terms of comparative speed, expenses, convenience and effectiveness involved in case relief is allowed by the High Court in exercise of its Constitutional jurisdiction. The High Court would generally decline to issue the high prerogative writs in cases where alternate and equally efficacious remedies are available. But then it does not mean that there is any Constitutional bar to the High Court in exercising such a jurisdiction or authority. Nor is the rule of alternate remedy inflexible. The fact that High Court will ordinarily decline to stept in where the alternate remedy is available is not due to their want of jurisdiction but for the reasons of expediency. Each case is to be decided in light of its accompanying facts and circumstances. The High Court will not hesitate to exercise its extraordinary Constitutional jurisdiction where refusal to do so, in its estimation, would prolong the agony. In view of the peculiar circumstances of this case and considering the nature of the relief claimed therein rejection of the appellant's' writ petitions by the learned High Court was a wrongful exercise of the jurisdiction vested in it under law."
11. Under the provisions of the E&D Rules before awarding major penalty of removal from service and passing an order for recovery of amount of alleged loss to the department, the authority was bound to provide hearing to respondent. Although there is presumption of regularity attached to all the official acts unless the presumption is rebutted but in the instant case there is nothing brought on record showing that the respondent was given hearing before passing the impugned order against him. The mere observation that the respondent was heard, without any further detail of such hearing or plea taken by him does not satisfy our conscience that in fact he was heard within the spirit of the relevant provisions.
12. The learned counsel for the appellants contended that the objection with regard to the appointment of Rashid Ahmed Kate! And Abdul Qayyum Mughal as Inquiry Committee was never raised before the Inquiry Committee. His further contention is that the respondent had not raised this objection in the memorandum of appeal before the Board of Directors AKLASC; therefore by his conduct he is estopped to raise this objection in writ petition before the High Court. In our considered view the proceedings against the respondent have been conducted under the E&D Rules in flagrant disregard of mandatory procedure prescribed in the relevant rules which illegality has vitiated the whole proceedings rendering the impugned order passed in consequence thereof as null and void.
13. From the scheme of the E&D Rules it is clear that the authority and the authorised officer have to exercise their powers in respect of disciplinary action against the accused, civil servant. Initially it is for the authority to decide as to whether any disciplinary action against a civil servant is to be taken under the provisions of these rules or not. If in the opinion of the authority the proceedings in respect of any complaint are necessary against any civil servant, it shall appoint an authorised officer and direct him to proceed against such civil servant under the provisions of these Rules. The authorised officer has to decide as to whether an inquiry against the civil servant should be conducted or not. He thereafter on the basis of inquiry report shall be legally competent to determine as to whether the charge against the civil servant has been established or not. He shall also be competent to decide the nature of penalty to be imposed to such civil servant. However, if in his wisdom the accused civil servant deserves major penalty in that case under these Rules he is required to send the whole record of proceedings alongwith the recommendations to the Authority.
After the recommendations are made to the Authority, if the major penalty is deemed appropriate punishment, as in the instant case, the matter is to be submitted to the Authority for appropriate action. On receiving the recommendations, the authority shall again afford an opportunity to the accused person, as already stated, and thereafter taking into consideration the defence, if any taken by the accused, shall pass appropriate order. In the instant case it is on the record that Masood Iqbal, son of Muhammad Yunus Awan, was involved in misappropriation and thus it was not appropriate for Muhammad Yunus Awan to act as an authorised officer. It is on the record that an allegation of misappropriation had been levelled against Muhammad Yunus Awan's son.
Muhammad Yunus Awan has also appointed Inquiry Committee consisting of Abdul Rashid Katel and Abdul Qayyum Mughal; out of the aforesaid members Abdul Rashid Katel cannot be regarded to act as member of the Inquiry Committee as opined by the High Court. Under these circumstances we see no fault with the findings of the High Court that the proceedings taken by the authorised officer and Inquiry Committee appointed by him are tainted with bias and cannot be relied upon; besides the accused civil servant having not been heard by the Authority has vitiated the proceedings.
15. For the aforestated reasons, we find no fault with the judgment recorded by the High Court. The appeal therefore having no merits in it, stands dismissed with no order as to costs.