Engineer MAJEED AHMED MEMON vs LIAQUAT UNIVERSITY OF MEDICAL AND HEALTH SCIENCES JAMSHORO and others

ORDER

' GULZAR AHMED, J.---The appellant was employed by respondent No. 1 on probation on 1-7-2006 as Project Director BPS-20. The probation period was extended for further one year vide office order dated 22-9-2007. A complaint was received by respondent No. 1 against the appellant in respect of purchase of furniture, office, equipments and crockery items from Messrs Naqibia Enterprises in the sum of Rs. 40 million. The Vice-Chancellor of respondent No. 1 constituted a Committee to make a preliminary investigation. The Committee after deliberation submitted its report dated 20-8-2007 with conclusion that the said purchases were made by the appellant without proper tendering and Messrs Naqibia Enterprises was given special favour. A show cause notice dated 27-8-2007 was issued to appellant which was replied by him denying the allegations. The reply of the appellant was put up to the Syndicate of respondent No. 1 in its 13th meeting held on 20-10-2007 wherein the Resolution No. Syn-13.15 was passed in the following terms:-- "Resolution No. Syn-13.15 ' Resolved that in view of report received from the Inquiry Committee constituted by the University under its letter No.LUMHS/ESTT/7264/69, dated 16-6-2007 the reply received from Eng. Majeed A.

Memon Project Director (Engineering Wing) in response to this University Show Cause Notice 27-8- 2007 was examined and found unsatisfactory. As a consequent thereto the services of Eng.

Majeed A. Memon are no more required by this University, therefore, his services be terminated from this University with immediate effect and he be repatriated to his parent department."

' Accordingly, through office order dated 7-11-2007 the service of the appellant was terminated with immediate effect and he was repatriated to his parent department. Against this office order, the appellant filed Constitution Petition No. D-1202 of 2008 in the High Court of Sindh at Karachi.

Through impugned order dated 13-11-2008 the petition was dismissed with the observation that the termination of the services of the appellant by respondent No. 1 vide office order dated 7-11-2007 shall be treated as such without any further allegation of illegalities committed by him as observed by the Enquiry Committee regarding purchase of furniture, office equipments and crockery items from Messrs Naqibia Enterprises and it was held that termination of service of the appellant by respondent No. 1 during his probationary period which in terms of observation of the court was in accordance with law. Aggrieved by the impugned order, the appellant had filed this appeal.

2. Vide order dated 17-2-2009 leave to appeal was granted which order is reproduced as follows:-- "This petition is directed against the order ddted 13-11-2008 passed by honourable High Court of Sindh in C.P.No. D-1202 of 2008.

(2) The petitioner though working as a probationer in the respondents' university was served with a show cause notice containing allegations of misconduct under the Removal From Service (Special Powers) Ordinance, 2000. He submitted a reply to the notice but admittedly neither an inquiry was held nor was a personal hearing accorded to him. On 7-11-2007 an order terminating the petitioner's services on the basis of charges levelled was passed.

(3) Mr. Ansari Abdul Latif, learned counsel for the petitioner has contended that even while being a probationer since there were definite allegations of corruption or irregularity he could not be removed without a proper inquiry. Reliance is placed on the pronouncement of this Court in the case of Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan reported in (PLD 1974 SC 393) which prima facie supports his point of view. Leave to appeal is, therefore, granted.

Appeal may be ready within three weeks and be listed for hearing whenever a Bench of three honourable Judges is available thereafter."

3. Mr. Ansari Abdul Latif, learned Advocate Supreme Court for appellant has contended that though the appellant was on probation but once show cause notice issued to him containing allegations of corruption and malpractice which was denied by the appellant in his reply, the respondent No. l's Syndicate could not have terminated the service of the appellant without holding a full-fledged enquiry and that the observation made by High Court in the impugned order itself will not remove the stigma which has been attached to his service record. In support of his submissions learned counsel has relied upon the cases of MUHAMMAD AMJAD v. THE CHIEF ENGINEER, WAPDA AND ANOTHER (1998 PSC 337), MRS. ABIDA PARVEEN CHANNA R v. HIGH COURT OF SINDH AT KARACHI (2009 SCMR 605) and Dr. M. SOHAIL KARIM HASHMI v. FEDERATION OF PAKISTAN THROUGH SECRETARY, MINISTRY OF HEALTH, GOVERNMENT OF PAKISTAN, ISLAMABAD (2009 SCMR 1472).

4. On the other hand, Mr. Kamaluddin, learned Advocate Supreme Court for respondent has empathetically argued that service of probationer could be dispensed with during the probationary period and that no cause of grievance has arisen to the appellant either by not holding of enquiry nor by terminating his service. In support of his submission learned counsel has relied upon the cases of MUHAMMAD IQBAL KHAN NIAZI v. LAHORE HIGH CQURT, LAHORE (2003 PLC (C.S.) 285), REHAN SAEED KHAN v. FEDERATION OF PAKISTAN (2001 PLC (C.S.) 1275), REHAN SAEED KHAN v. FEDERATION OF PAKISTAN (1990 SCMR 1510), MUHAMMAD SIDDIQUE JAVAID CHAUDHRY v. THE GOVERNMENT OF WEST PAKISTAN (PLD 1974 SC 393), CHAIRMAN, SYNDICATE UNIVERSITY OF PESHAWAR AND ANOTHER v. DIL NAWAZ KHAN (2007 SCMR 703), ZAHOOR AHMED v. WAPDA (2001 SCMR 1566) and MESSRS PAKISTAN STATE OIL CO. LTD. v. MUHAMMAD TAHIR KHAN AND. OTHERS (PLD 2001 SC 980).

5. We have considered the submissions of learned counsel for the parties and have gone through the record.

6. There is no denial that the Enquiry Committee was constituted on the basis of a complaint received by the respondent No. 1 regarding corruption and malpractice by the appellant in making purchases for respondent No. 1 from Messrs Naqibia Enterprises. On the basis of preliminary enquiry in which admittedly the appellant was not associated nor heard, the allegations against the appellant were prima facie found to be correct pursuant to which the appellant was issued show cause notice dated 27-8-2007 in which his explanation was sought with regard to the said purchases made for the respondent No.

1. The appellant submitted his reply dated 8-9-2007, in which he has denied the allegations made in the show cause notice. In the office order dated 7-11-2007 the University Syndicate has proceeded to pass the Resolution No. Syn-13.15 which has already been reproduced above, which clearly shows that the service of the appellant has been terminated as sequel to the show cause notice and its reply being found unsatisfactory. There being a definite allegation of corruption and malpractice against the appellant in the show cause notice and his services being terminated on that account, in our view even though the petitioner .Being a probationer, his service could not have been terminated without holding a full fledged enquiry in which the appellant would have opportunity to defend himself on the allegations made against him in the show-cause notice. Such is the state of law and reference in this regard is made to the cases of Muhammad Amjad (supra), Zahoor Ahmed (supra) and Muhammad Siddiq Javaid Chaudhry (supra).

7. After hearing the learned counsel for the parties, following short order was passed today:-- "For the reasons to be recorded later, this' appeal is allowed. The appellant shall be reinstated in the service of respondent University immediately. A regular fact finding enquiry shall be conducted by the respondent within thirty days against the appellant on the basis of show cause notice etc earlier issued to him. If in such enquiry the appellant is exonerated then he shall be given back benefits etc. Subject to adjustment from pay and salary which he has withdrawn elsewhere from the date of dismissal till the date of reinstatement."

8. Above are the reasons for the short order.