' The charge-sheet along with the statement of allegations was issued to the petitioners on 25-9- 2002. The .Petitioner submitted his reply and controverted the allegations contained in the charge- sheet on legal and factual grounds on 2-10-2002. A further clarification in respect of the charge- sheet and statement of allegations in response to reply of the petitioner was communicated by the respondents to the petitioner vide Memo. No,D/CAD ENQ/IK/2002/1486 dated 4-10 2002. Therefore, a detailed reply to the charge-sheet and statement of 311egations was .Submitted by the petitioner on 7-10-2002. It transpires from the record that the respondents commenced the inquiry proceeding against the petitioner which is presently continuing.
2. Mr. Muhammad Saeed Bhatti, Advocate appeared on behalf of the respondents at the lit nine stage. In pursuance of a direction in this behalf the respondents have submitted their report and parawise comments which have been made part of the record.
3. Chaudhary Mushtaq Ahmed Khan, Advocate for the petitioner has challenged the issuance of the charge-sheet/statement of allegations and ensuing inquiry proceedings to be in the absence of lawful authority and null and void on the following grounds:--
(i) that the charge-sheet has not been issued by the Competent Authority.
(ii) that the Inquiry Committee constituted by respondents is not a legally constituted committee as it consists of Members having pay scale and rank equal to that of the petitioner. It is also contended that at least two members of the Inquiry Committee are specifically inimical to the petitioner as the petitioner has filed writ petition against them as respondents. He referred to Writ Petition No,2417 of 1999 and Writ Petition No,1738 of 1998 in this behalf.
(iii) that the entire proceedings have been instituted with animosity and mala fide intent and is thus a nullity in the eye of law. Reference was made to the voluminous litigation, wherein, the petitioner and the respondents were engaged and which culminated in an order dated 7-3-2002 which is reproduced as under:-- "After the arguments were addressed, it was proposed on behalf of the ADBP that its Chairman shall meet the respondent Muhammad Islam Khan and shall hear his grievance and while doing so new shall not be prejudiced by the litigation which is pending in the Court.
' Muhammad Islam Khan respondent accepts this proposal and as a step forward has stated that he is going to withdraw Cr.0.63-W of 2002, Writ Petition Nos.603, 503 of 2002 and Writ Petition No,2598 of 2001 which have been filed by him.
' In reciprocation the ADBP has stated that it withdraws the contempt application against the respondent Muhammad Islam Khan viz Or.O.No,52-W of 2002 in W.P.603 of 2002 as well as this ICA.
' It is pertinent to mention here that Writ Petition Nos.603, 502 of 2002 and 2598 of 2001 and Cr1.0.
No,52 of 2002 are not fixed today. At the request of the learned counsel for the parties, these cases have been summoned from the office and are being disposed of. Opportunity of hearing which is to be afforded to the respondent Muhammad Islam Khan, it is hoped will be full of compassion and will end in a good relationship inter se the Bank and one of its employee.
' The aforementioned writ petitions, criminal originals and I.C.A. Having been withdrawan and these now stand dismissed."
4. It is contended that instead of redressing the grievance of the petitioner he has been victimized through the issuance of impugned charge-sheet.
5. While elaborating the first ground the learned counsel for the petitioner made reference to section 2(a) and section 2(a.a.) of Removal From Service (Special Powers) Ordinance, 2000 and contended that the Competent Authority means the Chief Executive of the Islamic Republic of Pakistan and where in relation to any person or class of persons the Chief Executive authorizes any Officer or authority to be the Competent Authority, such authorized Competent Authority shall not be inferior in rank to the Appointing Authority prescribed for the post held by the person against whom action is proposed to be taken. According to the learned counsel, the petitioner is employed at least in Grade 19 or its equivalent and that in this context he is covered under O.M. Dated 26-5- 2000 according to which his appointing authority is the Secretary of the concerned Ministry/Division. It is submitted that in this view of the matter the Competent Authority to initiate the disciplinary action under Removal From Service (Special Powers) Ordinance, 2000 could not be an authority inferior to the said appointing authority. In other words, according to the petitioner, the Chairman of the respondent/Bank was not competent to issue the charge- sheet/statement of allegations which is thus rendered as without lawful authority.
6. In support of second contention regarding the constitution of the Inquiry Committee it is stated that the Inquiry Committee consists of M. Latif Shad, Director, CAD, R.A. Mazhar, Director, S.A.M.D. And Rasheed Shafqat Director ADMN and that all the members of the Inquiry Committee are enjoying equal pay scale and are equal in rank with the petitioner and therefore, they are not competent to be Members of the Inquiry Committee in respect of the petitioner. The learned counsel also referred to two Writ Petitions bearing Nos.1736 of 1998 and 2417 of 1999 to show at least two Members of the Inquiry Committee were inimical to the petitioner and that such an Inquiry Committee was bound to be biased against the petitioner. On the effect of bias, the learned counsel made reference to Haji Muhammad Saif Ullah. v. Federation of Pakistan PLD 1989 SC 690, to support his contention.
7. The learned counsel for the petitioner dilated at length upon the nature and volume of litigation that preceded the order dated 7-3-2002. He made reference to Writ Petition No,502 of 2002 which was filed by the ADBP Officers Ass-oxidation through the petitioner as its Chairman to challenge the reinstatement of Executive Director Sahib, Nawaz and Muhammad lqbal, Director Head 'Office, Islamabad. Another Writ Petition No,2598 of 2001 regarding seniority had been earlier filed by the petitioner, Several other writ petitions were also filed by the petitioner in respect of his transfer/transfers that were ordered from time to time. All these matters were, however, settled vide order dated 7-3-2002 as the parties entered into an amicable settlement:
8. The learned counsel, however, contends that despite the said settlement, the petitioner has now been victimized through the issuance of the above-noted charge-sheet and statement of allegation.
9. Conversely, Dr. G.S. Khan, Advocate has appeared on behalf of the respondents at the liming stage. Detailed report and parawise comments along with Annexures have also been placed on the record. The learned counsel appearing for the respondent contended that the petitioner is holding the substantive post of a Joint Director and is placed in Grade-19. He referred to Notification No,S.R.O.28/(I)/2000 dated 27-5-2000 and contended that in respect of persons in Corporation service, holders of Posts in B. S.16 to B.S.19 and equivalent, the Officer Authorized to exercise the powers of Competent Authority is the Managing Director/Chief Executive Officer of the Organization by whatever name called. According to him as the petitioner is a holder of post of Joint Director it is the Chief Executive Officer of the Organization i,e, the Chairman ADBP who is the Competent Authority to issue the charge-sheet and the statement of allegations. In this view of the matter, the charge-sheet was issued by the Competent Authority and there is no violation of any provisions of Ordinance XVII of 2000.
10. Coming to the question of the constitution of the Inquiry Committee, it was submitted that all the three Members of the Committee are posted as Directors while the petitioner who is holding the substantive post of a Joint Director is presently holding acting charge of the R.M.E. ADBP.
Substantive post of Joint Director is taken into consideration for all practical purposes.
11. Dr. G.S. Khan, Advocate referred to section 14-A and section 14-B which have been inserted through the Removal From Service (Special Powers) (Amendment) Ordinance, 2001 which read as under:-- 14-A. Indeminity.---No suit prosecution or other legal proceedings shall lie against the Competent Authority or an officer of authority authorised by it for anything which is in good faith done or intended to be done under this Ordinance or the rules instructions or directions made or issued thereunder.
14.3 Jurisdiction barred.---Save as provided under this Ordinance, no order made or proceedings taken under this Ordinance, or the rules made thereunder by the Competent Authority or any officer or authority authorized by it shall be granted by any Court in respect of any decision made or proceedings taken in pursuance of any power conferred by or under this Ordinance, or the rules made thereunder.
12. According to him under the said provisions of law there is a specific ouster of jurisdiction which is in keeping with the main object of the Ordinance XVII of 2000.
13. The learned counsel further submitted that if the petitioner was agitating the question of equivalence of his substantive post with any higher post, unless this question of equivalence is not decided by a competent Court it would be pre-mature to challenge the charge-sheet or the statement of the allegations on any supposed ground of incompetency of the isssuing authority.
14. After hearing the parties, albeit at liming stage and perusing the record it is manifest that the petitioner is holding the substantive post of a Joint Director. Admittedly, he is holding the acting charge of Director R.N. & E, Department and cannot be said to be holding the substantive post of a Director. The notification of 27-5-2000 has been perused. According to this notification Table III relates to employees in Corpo7don Service such as the petitioner. At serial No,2 thereof, for class of persons who are holders of post in B.S.16 to B.S.19, it is the Managing Director, Chief Executive Officer of the Organization (Chairman ADBP in the instant case) who is authorized to exercise the powers of Competent Authority. This notification A bearing S.R.O 2841)2000 has been issued under section 2(a) of the Removal From, Service (Special Powers) Ordinance, 2000. It is thus clear that there is no infirmity in the competency of the authority who has issued the charge sheet/statement of allegations and no challenge can be made to the charge-sheet on this ground.
15. The constitution of the Inquiry Committee is as under:--
1. M. Latif Silah, Director, Q.A.D.
2. R.A. Mazhar, Director, S.A.M.D.
3. Rasheed Shafqat Director ADMN.
' All the three Members of the Inquiry Committee are holding the substantive post of Director while the petitioner is holding the substantive post of Joint Dirctor/Acting Director R.M&E Department. The contention that the petitioner is holding an equal rank with the Members of the Inquiry Committee is devoid of force.
16. The contention of bias or animosity of the Members of the Inquiry Committee on the ground that the petitioner had earlier filed writ petitions against two of them also -has no substance in viev.; of the assertion of the petitioner himself when he asserts that all the litigation had been settled vide order dated 7-3-2002. In any event question of mala fide is a question of fact C which has to be proved through substantial material on the record which exercise cannot be undertaken in writ jurisdiction.
17. The question raised regarding the equivalence of the post is again a question of fact and unless and until such equivalence is determined by a competent forum, it cannot be assumed that the petitioner is holding a post equivalent to any higher post than his actual substantive post. Even otherwise exercise of writ jurisdiction at the stage when only a charge-sheet or a show- cause notice is issued shall amount to a pre-mature stifling of disciplinary proceedings which is against the spirit of law.
18. For all the above reasons, there is no force in this writ petition which is dismissed in limited.