' IJAZ-UL-HASSAN KHAN, J.---In pursuance of the decision of the Syndicate taken in its meeting held on 30-5-2002 Mian Asghar Shah, petitioner, Senior Master, University Public School, Peshawar was sent on compulsory retirement from University Service with effect from 30-5-2002 vide office order, dated 2-7-2002 of Deputy Registrar, University of Peshawar.
2. The petitioner has challenged the action of the University Authorities by filing instant writ petition with the prayer that impugned order dated 2-7-2002 be declared as without lawful authority and of no legal effect dated and be struck down with order of reinstatement of the petitioner in service with all back-benefits.
3. The petitioner initially appointed as teacher in the year 1972, was served with a charge-sheet, dated 22-5-1997, wherein it was alleged that the petitioner was unnecessarily involved in correspondence with University, with further allegation of publishing an article in the Press about the School Affairs vide charge-sheet, dated 6-5-1997. The petitioner submitted reply to the charge- sheet denying all the charges levelled against him. The respondents found the reply to the charge- sheet, unsatisfactory; therefore, enquiry was ordered against him. Dr. Muhammad Iqbal, Department of Statistics was appointed Enquiry Officer to conduct enquiry against the petitioner.
On his refusal, Professor Muhammad Javed was appointed as Enquiry Officer. He also regretted and expressed his inability to held enquiry against the petitioner. Subsequently Dr. Hidayatullah and later Professor Abdul Kabir were appointed as Enquiry Officers but they recorded their refusal to be an Enquiry. Officer. In the meanwhile the petitioner was made OSD and posted in main library University of Peshawar vide office order, dated 4-9-1998. This order was challenged by the petitioner through Civil Suit which was dismissed on 25-7-2002.
4. Mr. Muhammad Jamil Khan, Advocate, learned counsel for the petitioner contended, inter alia, that the Enquiry Committee constituted by the respondents lacked jurisdiction, authority or power to conduct enquiry against the petitioner: that enquiry conducted is in utter violation of Efficiency and Discipline Statutes, 1997 and that no opportunity was afforded to the petitioner to appear and defend his case or produce his evidence in defence or even to cross-examine the prosecution witnesses. The learned counsel added that no witness was examined by the Committee in his presence or he was confronted with the documents. So much so, the news item of 30-5-1998 attributed to the petitioner and published in daily 'The News' was never produced before tile Committee or placed on record or exhibited or confronted.
5. Mr. Aziz Akhtar Chughtai, Advocate appearing on behalf of the respondents, on the other hand, defended the impugned order, supported ' the constitution of the Enquiry Committee and submitted that whatever the circumstances may be, petitioner had no right to go to the Press and malign the image of the institution. In order to maintain the good order of service, he was required to obey the orders of the Principal, with regard to the teaching assignment. The learned counsel reiterated that the Committee conducted a detailed enquiry into charges levelled against the petitioner and found him guilty of the same. The petitioner has committed 'misconduct'. The enquiry has been conducted in a lawful manner and no prejudice seems to have been caused to the petitioner. In the last limb of arguments the learned counsel submitted that alternative remedy was available to the petitioner but he has not availed the same and that the petitioner has not been able to demonstrate the existence of circumstances justifying interference of this Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
6. Having heard the arguments and submissions of learned counsel for the parties in the light of the material available on the record, we find ourselves in, agreement with learned counsel for the petitioner that impugned office order, dated 2-7-2002 is 'the outcome of the finding of unauthorized constituted Enquiry Committee, which was formed/ A constituted by Registrar, University of Peshawar, who was not comnetent to do so. It is not denied that the Syndicate is the only authority to deal with the cases of the employees of BPS-16 or above. It may be pertinently mentioned here that the authorization under reference is, dated 12-9-1998 whereby the Vice- Chancellor was nominated as Authorized Officer who in turn was to appoint Inquiry Officer/ Committee but in the case in hand the proceedings had been conducted against the petitioner much prior to issuance of authorization, thus rendering the entire proceedings illegal and avoid.
The respondents have taken adverse action against the petitioner besides incompetency of the Enquiry Committee and its findings based on unfounded allegations and charges. There could be no superstructure on such a shaky foundation. The hammer appears to have fallen on the head of the petitioner mainly for the reason that the petitioner remained vocal about the affairs of University Public School and its management and he approached the Press in order to malign the image and reputation of the Institution. There is nothing in evidence to substantiate the charge. It is not denied that a direct nexus between the author and its publication had to be established by the prosecution by independent evidence in order to succeed in a case of this nature. There must be evidence to show that the publication was made by the accused. The prosecution must affirmatively prove that the accused with mala fide intention published the article/new complained of. In this case no legal evidence of publication of the article/new s by the petitioner it forthcoming. It may be noticed that no action can be initiated against an employee of University on the basis of Press reports. The Press reports without formal proof are not admissible in evidence and as such no reliance can he placed on the same. The Press reports are treated as hearsay evidence without formal proof. The University employees against whom the allegations are alleged are entitled to controvert the truth of the news item by filing an affidavit when called upon to explain. The 'presumption of genuineness attached under section 81 of the Evidence Act to a newspaper cannot be treated as proof of the fact reported therein, as a statement of a fact, contained in newspaper is merely hearsay and therefore, inadmissible in evidence in the absence of the maker of the statement appearing in the Court and deposing to have perceived the fact reported as held in Alimuddin v. The State (PLD 1982 Lahore 141).
7. It has been contended with justification by learned counsel for the petitioner that the case in hand is lingering on since 1997 without any substantial progress and the petitioner has been made to suffer without any fault on his part. This delay speaks of mala fide and inimical attitude towards the petitioner. Such a conduct/proceeding cannot be approved by law and rules on the subject.
The law on the subject embodied in University of Peshawar Employees Efficiency and Discipline Statutes, 1977 is reproduced below for facility sake:-- "Procedure to be observed by the Inquiry Committee.
(15) Where an Inquiry Officer or Inquiry Committee is appointed, the authorized officer shall:--
(a) Frame a charge and communicate it to the accused together with statement of the allegations explaining the charge and any other relevant circumstances which are proposed to be taken into consideration;
(b) require the accused within a reasonable time, which shall not be less than seven days or more than fourteen from the day the charge has been communicated to him, to put in 'a written defence, and to state at the same time whether he desires to be heard in person.
(16) The Inquiry Officer or the Committee, as the case may be, shall enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessary and the accused shall be entitled to cross-examine witnesses against him.
(17) 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. However, every adjournment, with reasons therefore, shall be reported forthwith to the authorized officer. Ordinarily no adjournment shall be for more than a week.
(18) Where the Inquiry Officer or the Committee, as the case may be, is satisfied that the accused is hampering, or attempting to hamper, the progress of the inquiry, he or it shall administer a warning, and if thereafter he 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 enquiry in such manner as he or it thinks best situated to do substantial justice.
(19) 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 authorized officer, submit his or its finding and the ground thereof to the authorized officer."
8. It may be observed here that matter was once settled down, when the petitioner was afforded personal hearing and he tendered regrets upon the deliberation of Ex-Vice Chancellor Dr. Qasim Jan, in order to settle the issue amicably and finally putting an end to it. It was on 14-10-1999 when the petitioner put his written regrets in pursuance to the personal hearing with Ex-Vice-Chancellor and then Vice-Chancellor was pleased to drop proceedings against him. Strangely enough the case was again placed before Syndicate in October, 2001 for reasons not far to seek. It was dormant and dropped case and should have been burried once for all. It is not denied that besides being a Court of law, the High Court is a Court of equity also and where it sees the excess being committed by the authority, it must rescue the victim from it. There is no doubt that the excess of authority cannot go unnoticed without a proper relief to a victim of it.
9. In view of what has gone above, it follows that the Enquiry Committee constituted by the respondents to probe into the allegations leveled against the petitioner, lacked jurisdiction, authority or power and enquiry was conducted in utter disregard of the relevant provisions of University of Peshawar Employees Efficiency and Discipline Statutes, 1977. The petitioner was not fully associated with the enquiry proceedings and he was condemned unheard. There was no material available on the record to prove complicity of the petitioner in the guilt.
10. Consequently, we accept the writ petition, declare the impugned order, dated 2-7-2002 as without lawful authority and of no legal effect and strike down the same with order of reinstatement of the petitioner in service with all back-benefits. We make no order as to costs.