NASIRA NAHEED Versus SHEIKHPURA SHUJ ARA DISTRICT COUNCIL

JUDGMENT ,

This be considered as admitted case.

2. Brief facts of this case are that a letter was received through post. The proper memo. of writ petition was filed. Parawise comments were submitted and the brief facts narrated in the letter as well as memo. of writ petition are that the petitioner was appointed as Lady Health Visitor on 22-12-1992 at Sheikhpur Shujara District Council, Multan and remained as ad hoc appointee till 22-12-1993. Later on her appointment was extended. She appeared in interview on 4-10-1993 and through Selection Committee her appointment was regularised. According to her she performed her duty with great labour and pain. During the summer she went for installation of one water pump and boundary wall to Z.H.O. and then was taken to the office of Feroze Ahmad, Chief Officer who promised her for installation of water pump and boundary wall. After that both the Officers visited the centre of the writ petitioner and the Chief Officer tried to tease her which she felt and then she was told by other employee that she had annoyed the Chief Officer and there will be no installation of water pump and boundary wall and inquiry proceedings were initiated against her. She was told by the Inquiry Officer time and again that if she pleases the Chief Officer who is in love with her then everything will be all right but on her refusal, when next month, she went to take her pay she came to know that she was dismissed from service.

3. Learned counsel for the petitioner filed a proper memo. of writ petition to challenge the termination order dated 30-1-1996 being void and passed without lawful authority. From the perusal of the documents placed with the writ petition it was found by the Court that lady was still working although from the papers she appeared as dismissed from service. She was never suspended or was allowed to associate with the proceedings calling for major penalty.

4. Interim order was passed by this Court on 24-10-1997 in favour of the petitioner which was assailed in Intra-Court Appeal and was suspended for the time being. Later on Intra-Court Appeal No. 205 of 1997 stood disposed of in view of the statement of the learned counsel that if a direction is given for the disposal of the main petition within a month and during the interregnum period the writ petitioner gives a surety bond to the satisfaction of Administrator, Zila Council, that the respondent will comply with the order passed by this Court. It was observed by the Division Bench that the learned Single Judge seized of the main petition shall decide the main petition within two months. In view of the order of the Hon'ble Division Bench the matter is placed before this Court although no direction can be given to a Single Judge in Chamber to decide the case within certain period but in the interest of justice this case is heard and decided today.

5. Parawise comments were submitted by respondents Nos. 2, 3, 4 and 5 wherein the respondents have objected to the maintainability of writ petition since the same involves question of fact and evidence and that after the amendment in section 2-A Service Tribunal Act, employees of the Zila Council have become civil servants and all matters relating to the terms and conditions of employees of Zila Council lies with the Service Tribunal. Proceedings initiated against the writ petitioner were in accordance with law under the Punjab Government Servants Rules, 1981 and the writ petitioner has remedy or appeal before the Director, Local Government and Rural Development for redressal of her grievance within the period of 30 days of the communication of order. The writ petitioner did not avail of the said remedy and she cannot now challenge the same in writ jurisdiction.

6. I have heard the learned counsel for the parties in detail and have carefully perused the record. So far as the question of jurisdiction of this Court is concerned the amendment in section 2-A (supra) does not apply to the petitioner's case because the amendment is dated 10-6-1997 and the petitioner was dismissed vide order dated 30-1-1996, therefore, writ jurisdiction is available to the petitioner. According to the record she was allegedly dismissed on 30-1-1996. She was found working in her office even at the time of filing of writ petition which supports her allegation that either she was blackmailed under the garb of dismissal or the dismissal order was never communicated to her properly. A careful perusal of the record would show that in a tour note dated 28-9-1994 the centre of the petitioner was found locked. No person was present and condition of dispensary disclosed as it was not opened for a long time and it gave a look of public latrine. The explanation of Nasira Naheed, L.H.V. was requested to be called for on account of her absence from duty under Efficiency and Discipline Rules by the Chief Officer, Zila Council, Multan. A show-cause notice was given on F 11-1994. The reply was filed on 13-11-1994. The writ petitioner explained that she went to District Council on 28-9-1994 to get the salary and she has not committed any negligence from her duty. She was not suspended but on 12-2-1994, the Chief Officer recommended that as he is the reportee of the absence of the writ petitioner, therefore, Senior Accounts Officer be appointed as Authorised Officer. On 16-3-1995 the petitioner was charge sheeted by Ch. Muhammad Sadiq, Senior Accounts Officer, Zila Council, Multan and she was asked to submit her reply within ten days and in case of non-reply she was threatened for imposition of major penalty. The reply was filed on 11-4-1994 with the following words:

On page 15 of the record statement of Nasira Naheed, L.H.V., dated 6-6-1995 is present and she has stated on oath that on a question that at the time of inspection she had come to Sadar Office, Zila Council for her pay. Whether she went direct to the centre or to Zila Council she said that she came direct to Zila Council and she retrained there till 1 p.m. but she could not get the pay on 28-9-1994 because the concerned clerk was not present. On an other question that centre shows to be a latrine she replied that centre had no boundary wall and there is one school of children and there is also a passage for carts and tongas and, therefore, it remained dusty all the times and she had only one Dai who was accompanying her for getting the salary. She had come to Sadar Office District Council directly and remained there till 1 p.m. and could not get the pay because the concerned clerk was not present. On 28-9-1994 he had expressed that it is very difficult for him to decide the inquiry unless he is allowed to get information from the people of Shaikhpur Shajra Centre. He signed the same in blue ink and in black ink it is written T.P.O. Thereafter, the writ petitioner applied for transfer of inquiry from the Inquiry Officer which according to her was a prejudiced one, and she was informed through printed Letter No.270, dated 21-11-1995 that without proof it is impossible to change the inquiry and the stance taken by the writ petitioner is that she was afterwards dismissed through fake inquiry. She was not allowed to associate with the proceedings according to the rules and regulations and these documents were prepared afterwards to enable the department to show that they have dismissed the petitioner although the dismissal is take.

7. According to the Local Councils Servant (Efficiency and Discipline) Rules, 1981 Chapter III.

(9)(1) Initiation of Proceedings--If, in the opinion of the authority there are sufficient grounds for proceedings against a servant of the local council, it shall direct the Authorised Officer to proceed against the said servant.

(10) Inquiry Procedure to be observed by the Authorised Officer .---The following procedure shall be observed by the authorised officer when a servant of local council is proceeded against under these rules:

(11) In case where a servant of a local council is accused of subversion corruption or misconduct, the authorised officer may, require him to proceed on leave, if due or, suspend him with the approval of the authority, provided that any continuation of such leave or suspension shall require approval of the authority after every three months.

(2) ........................................................................

(3) On receipt of the written defence, it any and after hearing the accused in person, if he so requests, the authorised officer shall decide whether in the light of the facts of the case and in the interest of justice:

(a) Proceedings should be dropped and if he so decides he may drop the proceedings with the approval of the authority; or

(b) an inquiry is necessary and if he so decides he shall appoint an Inquiry Officer or an Inquiry Committee consisting of two or more persons who or one of whom shall be an officer of the rank senior to the accused or all of the co-accused.

(4) If the authorised officer on consideration of the written defence, if any, and after hearing the accused in person, if he so requests, decides that it is not necessary to have an inquiry conducted against the accused, he shall:

(i) by order in writing inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and

(ii) give him a reasonable opportunity of showing cause against that action.

Provided

(5) On receipt of the explanation, if any, to the show-cause notice issued under sub-rule (4) the authorised officer shall determine whether the charge has been proved. If it is proposed to impose a major penalty he shall pass order accordingly. If it is proposed to impose major penalty, he shall forward the case to the authority alongwith the explanation of the accused and his own recommendations regarding the penalty to be imposed.

(11) ...................................................................................

(2) The Inquiry Officer or the Committee, as the case may be, shall require into the charge and may examine such oral or documentary evidence in support of the charge in defence of the accused, as may be considered necessary and the accused shall be entitled to cross -examine the witnesses against him.

(3) .........................................................

(4) ..........................................................

(4A) .........................

(5) ........................................................

(6) ..........................................................

(7) On receipt of the report of Inquiry Officer or Inquiry Committee, the authorised officer shall determine whether or not the charge has been proved. In case the authorised officer is of the opinion that the charge has been proved.

(a) he may impose a major penalty, if he proposes to do so; or

(b) he shall forward the case to the authority alongwith the charge-sheet statement of allegations, explanation of the accused, the findings of the Inquiry Officer or the Inquiry Committee and his own recommendations in case he proposes imposition of a major penalty.

8. Keeping in view the rules and regulations regarding the imposition of major penalty I have carefully perused all the documents and have found out that the documents are prepared in a haphazard manner. When the petitioner was dissatisfied with the inquiry and had requested for change of inquiry there is nothing on the file to show that she was communicated the appointment of other Inquiry Officer. There is no order on the file to show that the petitioner was directed to proceed on leave or she was suspended. According to the petitioner she had been working till she filed the instant writ petition. The only order at Serial Nos. 21 to 30 show that the petitioner is deliberately avoiding the inquiry. If she was deliberately avoiding the inquiry there was no need to inform the petitioner that the change of inquiry was impossible. Every employee in an organisation is governed by rules and regulations and especially when employee of local council is found to have committed the gross-misconduct then the procedure for imposition of major penalty is given in the aforesaid rules which prescribe a strict mode of show cause, forwarding charge-sheet of allegations, the written defence of an accused of such allegation, oral or documentary evidence in support of charge, or in defence of an accused, a right of cross-examination of the witnesses. Any omission of such rules or regulations or its non-observance will vitiate the total inquiry proceeding against an accused. Imposition of major penalty will amount to certification of the employee economically, mentally, socially and morally. No such order is sustainable in law. Besides it in the instant case non-communication of dismissal order to the employee shows the mala fide and ulterior designs of the person conducting inquiry

10. While keeping in view the whole record I have not found any material available on the file that the petitioner has committed gross misconduct as there is nothing to disbelieve the petitioner that she had gone to cash her salary from the office of District Council in presence of cash book Annexure 'Y' showing the attendance of petitioner in the said office and her initials on the cheque and salary of Rs.3,645 about Centre Sheikhpur Shajra on 28-9-1994. The salary was prepared on 25-9-1994, therefore, I accept the writ petition, set aside the impugned order of termination passed in clear violation of Efficiency and Discipline Rules, 1981 and for this reason burden the department with cost of Rs.10,000. Original file of the department be returned by the office after getting the receipt for the same.

H.B.T./N-99/L Petition accepted.