SOHAIL MIRZA Versus GOVERNMENT OF BALOCHISTAN through Chief Secretary
MUHAMMAD AAMIR NAWAZ RANA, J.--- Through this common judgment we intend disposing of above captioned petitions as identical questions of facts and law are involved.
2. Tersely the relevant facts are; the petitioner Sohail Mirza and Salah-ud-Din were terminated vide orders even dated 17.03.2015 whereas petitioner Muhammad Ismail was terminated vide order dated 27.02.2015 on the charge of gross negligence, non-compliance of directive, involvement in embezzlement/corruption in Examination forms/Bank fee challan of BA/BSc (Annual) Examination 2014 of University of Balochistan (UoB). An inquiry committee was formed, which found their defence unsatisfactory and recommended their termination from service; the UoB Syndicate upheld these recommendations, however the Senate decided to convert the termination into compulsory retirement.
2(sic) Learned counsel for the petitioners submitted that the impugned termination orders are unlawful, procedurally flawed, and violative of the principles of natural justice. The orders have been passed without lawful justification and in a manner that is arbitrary, discriminatory, and disproportionate; the petitioners were denied their fundamental rights to a fair hearing and due process. In particular, no statement of allegations nor final show-cause notice was ever served upon the petitioners while awarding major penalty, depriving them of a meaningful opportunity to defend themselves against the charges. The right to access evidence and the right to cross-examine witnesses were also denied, which further undermines the fairness of the proceedings. Learned counsel emphasized that no inquiry officer was formally appointed to conduct a proper and impartial inquiry. The proceedings were carried out in a slipshod and perfunctory manner, in clear violation of the University s Efficiency and Disciplinary Rules. It was further pointed out that most of the students, who have been projected as victims in the matter, have already passed their examinations and obtained result cards, indicating that they have no grievance either against the petitioners or the respondents. Despite this, the petitioners were subjected to harsh and punitive action, which is neither justified nor proportionate to the alleged misconduct. Lastly, it was submitted that the impugned termination orders infringe upon the petitioners' rights under Article 9 of the Constitution, which guarantees the right to life and dignity. The arbitrary denial of procedural safeguards and the resultant damage to the petitioners career and reputation amounts to a violation of their constitutional rights.
3. Learned counsel representing the University, while supporting the impugned termination orders, argued that the petitioners were removed from service due to proven misconduct involving gross negligence, willful non-compliance with official directives, and their alleged involvement in embezzlement and corruption related to Examination Forms and Bank Fee Challans for the BA/BSc (Annual) Examination 2014 of the University of Balochistan (UoB). It was contended that a fact-finding inquiry committee was duly constituted, and upon examining the record and the petitioners explanations, it found their defense unsatisfactory and unconvincing. Based on the committee s findings and recommendations, the competent authority imposed the penalty of compulsory retirement from service in accordance with the applicable rules of the University.
Arguments heard and the relevant record perused.
4. The pivotal issue in this case is whether the termination / compulsory retirement of the petitioners was in accordance with law, particularly the Efficiency and Disciplinary Rules, and whether the principles of natural justice were adhered to. Rules 8 and 9 of the University of Balochistan Employees (Efficiency and Discipline) Rules, 1978 being relevant are reproduced as under:
8. Appointment and procedure of Inquiry Officer:-
1. Where a University employee is proceeded against under clause (a), (b), (c), (d), (f), (g), (h), (j), or (k) of Rule 3, and the authority has decided that the case calls for a major penalty, the authority shall appoint an Inquiry Officer to conduct the proceedings.
2. The Inquiry Officer shall hear the case from day to day and no adjournment shall be given except for reasons to be recorded in writing. Every adjournment, with reasons therefore, shall be reported forthwith to the authority. No adjournment shall be given for more than a week.
3. If the Inquiry Officer is satisfied that the University employee proceeded against is hampering or attempting to hamper the progress of the Inquiry he shall administer a warning, and if thereafter he is satisfied that the accused is acting in disregard of the warning, he shall record a finding to that effect and proceed to complete the Inquiry in such manner as he thinks best fitted to do substantial Justice.
4. The Inquiry Officer shall within ten days of conclusion of the proceedings, or such longer period as may be allowed by the authority, submit his findings and the grounds thereof to the authority.
9. Notice of proposed penalty to be given to the accused.
1. The authority shall consider the report of the Inquiry Officer and if upon such consideration it is of the opinion that a penalty should be imposed upon the accused it shall provisionally determine the penalty to be imposed and shall so inform the accused and supply him with a copy of the report and call upon him to show cause within a reasonable time, which shall not be less than seven days nor more than fourteen days, why the penalty should not be imposed.
2. The authority shall take into consideration any cause shown by the accused before passing final orders.
5. The record reveals that no statement of allegations was served upon the petitioners, nor were they provided any final show-cause notice prior to the issuance of the impugned orders. Moreover, there is nothing on record to show that a duly appointed inquiry officer conducted the proceedings in accordance with the mandatory procedural safeguards. The inquiry, as it appears, lacked transparency, impartiality, and procedural propriety. The right to a fair hearing, which includes notice of allegations, access to evidence, and the right to cross-examine witnesses, is a fundamental component of due process. Its denial renders any action taken as void and without lawful authority. It is by now well settled that when the civil/public servant in response to the Show-cause notice, has specifically denied the charges against his/her and considering the nature of the charges, all those allegations require evidence, then it become incumbent upon the authority to have ordered a regular inquiry and in the above given situation departure from a normal course does not reflect bona fide on the part of the authority. In this regard reliance is placed on the case of Basharat Ali v. Director, Excise and Taxation, Lahore and another. 1
6. Furthermore, the alleged misconduct, even if assumed to be under investigation, could not have justified such a harsh penalty without first affording the petitioners an opportunity to rebut the allegations in a properly conducted inquiry. The University's failure to follow its own rules vitiates the entire disciplinary proceedings.
In view of the above, the impugned orders are held to be without lawful authority, having been passed in violation of the petitioners constitutional and statutory rights, particularly under Article 9 and 10A of the Constitution. Consequently, both the petitions are allowed. The petitioners are directed to be reinstated in service. As far as the salary and wages/benefits for the interregnum are concerned same depend upon the outcome of fresh regular inquiry to be conducted by the respondent university, within ninety days positively. The petitioners shall remain suspended till finalization of fresh inquiry proceedings.
Petitions are partly allowed in the above terms.
UN/145/Bal. Order accordingly.