' QAZI EHSANULLAH QURESHI, J.---The instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 had been instituted by the petitioner against respondents Nos.1 to 4 regarding his dismissal from service as Director-General, Peshawar Development Authority while posted as an O.S.D. In the Provincial Urban Development Board being held responsible as guilty on the charges of misconduct by respondent No,4 as Secretary, Physical Planning and Housing Department of N.-W.F.P. Government and Managing Director, P.U.D.B. Under his No,1.3.28/42/47 dated 2-3-1998 and has been punished for the same charge-sheet by the said respondents vide his Office Order Nos.1.7.15/292-98, dated 6-6-1998, hence this petition.
2. The brief facts of the case are that P.U.D.B. Acquired certain lands for "Regi Lama Housing Scheme" under the provisions of the N.-W.F.P. Urban Planning Ordinance, 1978 in village Sufaid Sang, Shahi Bala and Regi Lalma. The Land Acquisition Collector declared several awardes in the cases of different landowners and fixed separate prices in each award. The orders in this respect went in appeals to the Additional Commissioner and then assailed in writ jurisdiction of this Honourable Court. In the case of Tila Gul and others the Additional Commissioner enhanced the market value of the land to Rs,18,000 per Kanal. The payment of enhancement amount/compensation was made to them before filing a writ petition against the orders of the Additional Commissioner under the directions of the Additional Secretary, Physical Planning and Housing Department of the Government of N.-W.F.P. The P.U.D.B. Was directed by the Physical Planning and Housing Department to place the amount of enhanced compensation at the disposal of the Collector for imbursement to the owners before filing the writ petition in the High Court. This payment was neither resisted nor it was ever been questioned by any of the respondents. It is pertinent to mention at this junction that Tila Gul and others are the brothers and family members of Ex- Senator Haji Gul Sher Khan (who himself was one of the petitioners). In the meanwhile through another letter by the Director (Legal), P.U.D.B: dated 6-10-1994 wherein it was stated that the Managing Director., P.U.D.B. Had ordered release of the enhanced amount of compensation to M/s. Madat Khan and others subject to execution of bond as desired. In Madat Khan case, the market value of the acquired land was fixed by Land Acquisition Collector @ Rs,7,800 per Kanal which was enhanced to Rs,11,000 per Kanal by the Additional Commissioner and ultimately to Rs,18,000 per Kanal by this Honourable Court vide order, dated 1-12-1996 passed in Writ Petition No,814 of 1994.
The directions contained in P.U.D.B.'s. Letter, dated 6-10-1994 were, however, kept in abeyance while Writ Petition No,814 of 1994 was sub judice before this Court. After the judgment and order of this Court in the above writ petition, Madat Khan moved an application on 25-1-1997 for payment of compensation amount which was duly processed in the office of Land Acquisition Collector and ultimately it was marked to Director Finance by the petitioner on 29-1-1997 for providing funds to the Land Acquisition Collector for payment. In compliance of such directions the Director Finance pointed out that the amount has already been placed at the disposal of the Land Acquisition Collector so in discharge of the obligations imposed on him under section 63 of the Urban Planning Ordinance, 1978, which provides that the payment shall be made within 90 days by the Land Acquisition Collector after announcement of the Award, above all in presence of the orders of this Court passed in Writ Petition No,814 of 1994 the petitioner has no option but to issue payment orders specially after the expiry of the period for filing of the petition for leave to appeal before august Supreme Court of Pakistan. Besides above some of the petitioners in Writ Petition No,814 of 1994 namely, Muhammad Yousaf Khan and othus also filed Writ Petition No,1574 of 1997 which C.M.
No,1930 of 1997 requesting this Court for implementation of the order of this Court dated 1-12-1996.
This writ petition was also allowed on 13-12-1997 with the directions that the enhanced amount of compensation be paid to petitioners within three weeks against security bond and also that there was no stay order in the field by that time by the apex Court. A contempt application was also moved against the present petitioner by Muhammad Yousaf Khan and others for the non- compliance of the orders of this Court in which the petitioner was served with a notice in the contempt application (Criminal Miscellaneous No,45 of 1998). Paras. 6 to 10 relate to the service career of the petitioners. The petitioner filed Writ Petition. No,1574 of 1997 in this Court apprehending his termination from the service after the expiry of contract period. After the process of the writ petition, respondent No,4 conceiving its result served the petitioner with a charge-sheet on 2-3- 1998 and the Secretary Forest was appointed an Enquiry Officer. The respondent No,4 on receipt of the inquiry report, without giving second show-cause notice and supplying the copy of inquiry report, straightaway dismissed the petitioner from service vide Office Order No,1.7.15/292-98 dated 6-6-1998 and confirmed the findings in the case of Nasrullah Khan directing him to report to the Chief Secretary for proceeding against him in accordance with the recommendation of the Enquiry Officer. The petitioner submitted an appeal, dated 16-6-1998 to the Chairman, P.U.D.B. But the same was also dismissed on 1-7-1998. Having no other adequate remedy available to the petitioner, he constrained to move this petition before this Court.
3. Learned counsel for the petitioner argued that the charge-sheet shows that respondent No,4 did not like the petitioner and the other co-accused for having honoured the orders of this Court passed in Writ Petition No,814 of 1994. That for unknown reasons the Enquiry Officer later on replaced by Muhammad Saleem Khan. That the petitioner made victim of racial languistic and regional jealousness. The safeguard/Constitutional guarantee under Article 18 of the Constitution has been violated. The petitioner obeyed the order of this Court and thus such act does not come within the purview of misconduct. There is no allegation of dishonesty that respondent No,4 was not competent under the Urban Planning Ordinance, 1978 and rules framed thereunder to initiate the action and to pass the impugned orders. He further submitted that during the period of above process there was no Minister to exercise the powers of Chairman, even otherwise it is a Board and not the Managing Director or the Chairman who can make appointment and terminate the services of his employee in BPS-17 and above. That the petitioner and respondent No,4 being equal in Grades could not initiate departmental action against the petitioner. That the dismissal of the appeal by respondent No,1 in a meeting in which respondent No,4 also participated, amounts to transgression of powers as it is done without assigning any reasons and without affording a chance of hearing to the petitioner. Further stated that after inquiry second show-cause notice as to propose major penalty was also required under the law but without second show-cause notice the petitioner's services were terminated which whole exercise against the petitioner was illegal, without lawful authority and thus void.
4. Learned counsel for the respondents opposing the contentions of the learned counsel for the petitioner, contended that the petitioner served as Director-General, P.D.A, was directed by the Head Office not to release payment as the Department intended to prefer an appeal before the Supreme Court of Pakistan against the judgment and order of this Court. Hence the stance of the petitioner that he was dismissed from service just because he complied with the orders of this Court is misleading and against fact. The contention of petitioner that the respondents were pre- determined to take disciplinary action against him as he had filed Writ Petition No,1574 of 1997 in this Court is also misconceived. The case filed in this Court by the petitioner was relating to termination of service of the petitioner where the case in hand relates to the misconduct which the petitioner committed by violating the clear cut orders of the Head Office whereby he was directed not to release the payment as the Department was intended to file an appeal against the judgment of this Court before the Supreme Court of Pakistan A proper inquiry was conducted against the petitioner, required procedure was followed and the petitioner was given full opportunity to defend his case, therefore, no irregularity or any illegality has been committed by the respondents and no Constitutional rights of the petitioner have been infringed. That with regard to the submission by the learned counsel for the petitioner in respect of Tila Gul and others cannot be made a precedent matter because Tila Gul and others had sufficient amount against the Department even today which has been decreed in their favour by the Civil Judge against the Department, in case appeal before apex Supreme Court succeed Department would have no problem to recover and withhold the excess amount received by Tila Gul and others, that once the appeals 'of the respondent-Department were admitted by the Supreme Court of Pakistan meaning thereby that there was substance in the case so any otherwise action was against the interest of the Department, therefore, the writ petition in hand is incompetent and untenable which requires dismissal in the light of the above submissions.
5. We have considered the submissions of the learned counsel for the parties and have gone through the record. The netshell of the case in short as envisaged from the charge-sheet on the basis of which the petitioner was dismissed from service that the petitioner had ordered to release the enhanced compensation of Rs,2,85,43,000 against the specific direction of the Head Office; that being the Incharge drawing and disbursing Officer it was his responsibility to safeguard the interest of the Department but the petitioner ordered the release of the payment to the particular landowners complying the decision of the High Court fully knowing that the decision of the High Court was not acceptable to the Department and the Department was going to file appeal in the Supreme Court of Pakistan; that due to this enhanced payment the High Court decided certain appeals in favour of other certain landowners which were subsequently suspended by the Supreme Court, that the Supreme Court would also take payment as acceptance by the Department of the enhanced compensation and may give the verdict against the Department due to which P.D.A. Suffered financial loss; that the enhanced amount/compensation if retained and kept in the saving account till the disposal of the case the Department could have earned a handsome amount of interest.
6. The theme of the above charges disclosed that why the payment of the enhanced compensation was released by the petitioner. Record reveals that the payment in question was released after the judgment passed by this Court in Writ Petition No,814 of 1994 and Writ Petition No,1574 of 1997 and after notice in contempt application Criminal Miscellaneous No,45 of 1998 moved against the petitioner by the aggrieved party for speedy payment in compliance to this Court order during which period no stay order against such payment by any Court was in the field.
In our opinion the petitioner honoured the orders of this Court and if there was any specific direction by the Head Office with regard to the withholding of the payment, it has no legal sanctity and the orders of the Head Office are not taken to be legal orders after the judgment and order by this Court to release the payment. The petitioner was bound to oblige the judgment and order passed by this Court. The respondent No,3 was otherwise bound to issue second show-cause notice to the petitioner proposing major penalty and to provide him opportunity of his defence which in the case in hand is lacking. So, action to release the enhanced payment in compliance to this Court judgment and order does not come within the purview of misconduct and call for so drastic action to impose major penalty i,e, dismissal of the petitioner from service. Therefore, the action so impugned declared to be illegal, unwarranted and based on mala fide.
' Resultantly the writ petition in hand is accepted and the dismissal order of the petitioner from service vide Office Order Nos.1.7.15/292-98, dated 6-6-1998 is declared as without lawful authority and of no legal effect. The respondents are directed to reinstate the petitioner in his own pay and scale as regular Officer with all back benefits including pay, allowances and seniority.