FARIDUDDIN AHMAD Versus KARACHI DEVELOPMENT AUTHORITY
HAIDER ALI PIRZADA, J.‑ The petitioner applies under Article 199 of the Constitution of the Islamic Republic of Pakistan for the following reliefs :‑
"(a) That the institution of enquiries one after the other on the same facts and grounds is illegal, without jurisdiction and ultra vires of the provisions of law.
(b) That the charge‑sheet and statement of allegations prepared and issued by Mr. A. A. Jafri, the then Joint Secretary of the K. D. A. is illegal, without jurisdiction and against law.
(c) That the enquiry conducted by the respondent No. 4 was illegal, ab initio and not binding on the petitioner.
(d) That the findings of the respondent No. 4 (Annexure "I") are illegal nullity in the eyes of law.
(e) That the Governing Body was riot competent to impose any penalty on the petitioner being the appellate authority vide their resolution (Annexure "H") and as such the resolution passed by the Governing Body resolving the compulsory retirement of the petitioner, is entirely without jurisdiction and of no con sequences.
(f) That to restrain the respondents and their subordinates from implementing their decision for compulsory retirement of the petitioner and further restrain. them from interfering with the peaceful discharge of his duties by the petitioner as an officer of K.D.A.
2. The facts which give rise to this petition are these. The petitioner joined K. D. A. on 2nd February, 1962 as an Assistant Engineer (Civil). The petitioner was confirmed in 1968 on the basis of his satisfactory record.
3. It has been averred in the petition that in 1964, the petitioner was posted as Assistant Engineer in Scheme No. K.D.A. (North Nazim abad). During this posting he recorded the measurement of work of 150 wide road adjacent to Blocks C. D., H & F during 1966‑67. The work was completed in 1967 and he was then transferred to Karachi Division (Civil). The petitioner was working under the supervision of the E. E. (Civil) of the Division, Superintending Engineer (Civil), Superintending Engineer and the Chief Engineer (D), K. D. A. in 1966‑67. All the afore said functionaries were frequently inspecting, visiting and checking the site of work which was same, was in progress. In doing so, they also used to check the thickness of the solling and carpet laid from time to time. The work was being carried out according to the specification of the tender/agreement and the petitioner used to record the same properly to the satisfaction of his superiors and during the execution and com pletion of the entire work the superiors of the petitioner never pointed out any defect either in the work or recording of the measurement by the petitioner.
It has been averred that on or about 7th October, 1967, the petitioner was called upon to submit his explanation in respect of the execution of the said work under the signature of Mr. A. I. Mevawalla, Superintend ing Engineer (Senior) K. D. A. on the basis of observations made by the Governor's Inspecting Team. The notice is reproduced here under :‑
"No. CEOM/ET/302/67/2794 Dated the 7‑10‑1967
To,
Mr. Fariduddin,
Assistant Engineer,
Subject :‑Inquiry into the Damage to Roads at Karachi.
Name of Road :‑Carpeting of ISO wide road adjacent to Block
A. C. D. H. and F. Sch. 2.
With reference to the above subject I am directed to convey the observations of the Inspection Team for the above‑stated Toad as per enclosed sheet. You are required to submit your explanation giving reasons for the departure from the specifications. Explanation should be forwarded in quadruplicate so as to reach this office within 3 days of the date of this letter.
This should be treated as MOST IMMEDIATE.
Superintend-ending Engineer (Senior)."
5. The petitioner submitted his explanation on 13th October, 1967 and denied the allegations. Thereafter, a preliminary enquiry was insti tuted under rule 6(1) of the West Pakistan Government Servants (E & D) Rules, 1960 which was carried out by Mr. Ali Ahmad Jalaluddin, Chief Engineer, Highways, Quetta. He submitted his findings to the respondent.
6. On 22nd November, 1969 the petitioner was charge‑sheeted alongwith the statement of allegations under rules 3 and 4 of the West Pakistan Government Servants (E & D) Rules, 1960. Finally, the respon dent No. 4 was appointed as enquiry officer before whom the petitioner submitted his reply on 9th February, 1970.
7. The enquiry officer examined the following witnesses.
(1) Akhlaq Ahmed.
(2) Muhammad Shafiq.
(3) Zahir Ahmad.
(4) Mirza Maqsood Ali Baig, and
(5) M. A. Rahim.
8. The enquiry officer placed reliance upon reports of Mr. Jalalud din, Chief Engineer, Highways, Quetta, and also on inspection note of Mr. K. H. Rizvi, Chief Engineer (W), K: D. A.
9. The enquiry officer submitted his report. The enquiry officer in his report found the petitioner guilty of the charges of misconduct. The report was considered by Governing Body. He was served with a show‑cause notice on 9th October, 1971 the copy of enquiry report. The petitioner submitted his reply on 27th November, 1971.
10. The petitioner in his reply took the objections that the enquiry officer took into consideration reports made by Mr. K. H. Rizvi and Mr. Jalaluddin without examining these two officers as witnesses in the enquiry and no opportunity afforded him to cross‑examination. The petitioner also pleaded that the thickness of the solling carpet was laid according to the specifications under the contract agreement which had been reduced due to subsequent wear and tear.
11. Mr. Qazalbash has placed the relevant file on Court record, from which it appears that the K. D. A. submitted the case to the Law Officer as the petitioner raised points involving legal issues. The autho rities sent the papers to the enquiry officer, who intimated that both the witnesses have left the respective departments and such it is not possible to him to call them as witnesses for further inquiry.
12. The Law Officer by his note, dated 21st November, 1974 opined as follows :‑
That it may be examined whether, after omitting from consideration the previous reports of these two witnesses the charges can still be held to have been established. This aspect has now to be consider ed by the enquiry officer and Member (T)."
The case file was sent to respondent No. 4, who by his note wrote as follows :‑
"I have already given my findings with the enquiry report and I still hold the same views. I have nothing further to add."
Finally. the authorities sent the file to the enquiry officer for the following query :‑‑
"The specific query to be answered is whether the charges can be established without relying on the reports of Messrs Jalaluddin and Rizvi."
The enquiry officer vide his note, dated 29th November, 1974 returned the file with the following remarks :‑
"The function of the enquiry officer was to go into the case and submit his recommendations. This has been done by the under signed and in concluding paragraph, `flag `K'. I have given my findings. According to the undersigned the charges have been established, which is clear from the report of the undersigned at flag `K'."
13. The report was considered by the Governing Body of the K.D.A. and the petitioner was compulsorily retired from the service. Aggrieved by this order the petitioner filed this petition.
14. Mr. Khalid Ishaque, the learned counsel for the petitioner urged that after the back reference was made to the enquiry officer, the officer should have afforded opportunity to the petitioner.
15. Mr. Sabir Hussain Kazilbash, urged that the enquiry officer did not add anything to his earlier report and he expressed his complete satisfaction with his earlier report. The order does not suffer from any illegality and there has been no violation of the principles of natural justice. He further urged that the enquiry officer only affirmed his findings and came to the conclusions that the findings can be maintained without any reliance on the report of those two witnesses.
16. Reverting to the contention of Mr. Khalid Ishaque that the case when it was referred back to the enquiry officer, he ought to have afforded him opportunity before answering the query. We are inclined to hold that after the back reference was made to the enquiry officer, for con sidering the matter after excluding the above reports of Messrs Jalalud din and Rizvi, the enquiry officer could not have answered the above reference without notice to the petitioner and without hearing him as to the effect of omission of the above two reports. The above omission on the part of the enquiry officer vitiated his findings.
17. It is submitted by Mr. Sabir Hussain Kazilbash, the learned counsel for the respondents, that in the present case the enquiry officer had said all that the enquiry officer bad to say and it could have been a mere formality for the enquiry officer to have given another opportunity to the petitioner. In rejecting this argument we cannot do better than to quote a paragraph from the judgment of Megarry, J., in .the case of John v. Rees and others ((1969) 2 A E R 274) at p. 309
"It may be that there are some who would decry the importance which the Courts attach to the observance of the rules of natural justice. "When something is obvious," they may say, "why force everybody to go through tiresome waste of tine involved in framing charges and giving an opportunity to be heard 7 The result is obvious from the start." Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well‑known, the path of the law is strewn with examples of open and shut cases, which, somehow, were not, of unanswerable charges which in the event, were completely answered of inexplic able conduct which was fully explained of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events."
18. In our view, it will be just and proper to declare the impugned order as being without lawful authority but at the same time, we reserve the right of the respondents to refer back the matter to the above enquiry officer, if possible or as to initiate a fresh inquiry. We accord ingly declare that the finding of the enquiry officer was vitiated for the foregoing reasons and, therefore, the order of the, petitioner's retirement in consequence of the above finding, is without lawful authority and of no legal effect. The petition stands allowed to the above extent in the above terms with no order as to costs.
The above judgment stands suspended for a period of two months is order to enable the respondents to prefer a Petition for leave to the Supreme Court.
M. A. K. Petition accepted.