W.P.No.15277/2012.
Stereo. H C J A D A 38.
JUDGMENT SHEET
IN THE LAHORE HIGH COURT
MULTAN BENCH MULTAN
JUDICIAL DEPARTMENT
W.P.No.15277/2012
Muhammad Tahir Iqbal. Versus National Database and
Registration Authority
etc.
JUDGMENT
Date of hearing: 7.7.2014
Petitioner by: Mr. Qamar-uz-Zaman Butt, Advocate.
Respondents by: Mr. Faraz Samad, Legal Advisor.
M. Sohail Iqbal Bhatti, J.- Through this
constitutional petition, the petitioner has invoked the extra
ordinary constitutional jurisdiction of this Court while
challenging the order dated 30.08.2012 passed by the
respondent No.3.
2. Brief facts of the case are that the petitioner was
appointed as Data Entry Operator on 09.12.2003 for a period
of 5 years. A show cause notice was served upon the
petitioner on 23.6.2009 under Section 2(b) and 3 (1) of the
Removal from Services (Special Powers) Ordinance, 2000
while attributing the following acts of misconduct,
inefficiency and corruption to the petitioner:-
“You had used the login of Rashid Mehmood, Office
Assistant illegally and uploaded un-official
W.P.No.15277/2012. 2
documents on FTP for spreading it among the staff
to form so called NADRA Union, which is clearly
against prevention of Electronic Crime Ordinance,
2007. Thus act displayed by you is highly
objectionable.”
3. The petitioner replied to the said show cause notice on
25.07.2009 and specifically negated the charge leveled against him
and further requested the respondent No.3 to probe into the case to
arrive at an appropriate conclusion.
4. Instead of giving any opportunity of personal hearing to the
petitioner or conducting any regular inquiry, a major penalty of
dismissal from service was imposed upon the petitioner vide office
order dated 6.8.2009
5. Aggrieved by the order of dismissal, the petitioner filed writ
petition No.7224/2009 which was disposed of by this Court on
11.07.2012 while directing the Chairman, NADRA to treat the writ
petition as an appeal filed by the petitioner and decide the same in
accordance with law, after affording an opportunity of hearing to the
petitioner through a well reasoned and speaking order.
6. In pursuance to the order passed by this Court, a letter was
communicated to the Deputy Director HR on 30.8.2012 informing
that the Chairman /competent authority has rejected the
departmental appeal filed by the petitioner, hence this writ petition.
7. The learned counsel for the petitioner while advancing his
arguments submitted that the entire proceedings initiated against the
petitioner were a result of malafide; the allegations leveled through
the show cause notice dated 23.06.2009 were specifically denied by
the petitioner and thus it was incumbent upon the authorities to hold
a regular inquiry as the nature of allegations leveled against the
petitioner required thorough probe. It has been further argued that
while deciding the appeal, the respondent No.2 did not take into
W.P.No.15277/2012. 3
account of the fact that since a major penalty of dismissal from
service had been imposed upon the petitioner, the same could not
have been done without giving an opportunity of fair trial to the
petitioner.
8. On the other hand, the legal advisor for the respondents raised
a preliminary objection regarding the maintainability of the writ
petition. It was argued that NADRA Employees (Service
Regulations), 2002 were non-statutory in nature and therefore the
petitioner could not invoke the constitutional jurisdiction of this
Court.
It has been further argued that the petitioner was given an
opportunity for hearing before imposition of major penalty of
dismissal from service and there was no justification in holding a
regular inquiry. The legal advisor for the respondents has relied
upon a judgment reported in 2009 SCMR 444 (Ghulam Shabbir
Sheikh versus Chief Executive Officer, Quetta Electric Supply
Company (QESCO), Quetta and another) to strengthen his
arguments.
9. I have considered the arguments advanced by the learned
counsel for the parties and have also perused the record.
10. This Court would first advert to the question of
maintainability of this writ petition.
11. The NADRA Employees (Service Regulations), 2002 have
been framed in exercise of powers conferred under Section 45 of
NADRA Ordinance, 2000.
Section 45 of the NADRA Ordinance, 2000 reads as under: -
“Regulations.--- (1) The Authority may, by
notification in the official Gazette, make regulations,
not inconsistent with the provision of this ordinance
or the rules, for the carrying out of its functions
under this Ordinance and nay other matter for
W.P.No.15277/2012. 4
which, under this Ordinance provision may be made
by regulations.
(2) Without prejudice to the generality of the
foregoing powers, such regulations may provide for
appointment of Registration Officers, members of its
staff, experts, consultants, advisers and other officers
and employees and the terms and conditions of their
service.
Provided that, subject to the provision of section 40
till the time any amendments are made or any fresh
regulations are made in this behalf, any rules or
regulations governing the terms and conditions of
their service and in force at the time of the
establishment of the Authority shall be applied as
nearly as practicable in the same manner as before to
the extent the same are not inconsistent with the
provisions of this Ordinance, with any references to
the Directorate General of Registration, or any
competent authority by whatever nomenclatures
therein to be deemed to be a reference to the
Authority.”
12. The NADRA Employees (Service Regulations), 2002 have
been published in the Gazette of Pakistan on November, 11 th 2002
through a statutory notification. Since, NADRA Employees (Service
Regulations), 2002 have been framed by the authority in exercise of
powers conferred under Section 45 read with Section 35 and Section
37 of the NADRA Ordinance, 2000. Such powers have been
exclusively conferred upon the authority and are not subject to the
approval of the Federal Government or any other authority; and are
therefore statutory in nature.
13. It is not out of place to mention here that while determining,
the maintainability of writ petition, the Courts generally apply the
“function test” to consider whether a statutory body was a “person”
within the meaning of Article 199(1)(a)(2) read with Article 199(5)
of the Constitution of Islamic Republic of Pakistan. A public
authority performing public or statutory duty and carrying out its
transactions for the benefit of the public and not for private gain of
profit. The Honourable Supreme Court of Pakistan in a judgment
W.P.No.15277/2012. 5
reported in PLD 1975 Supreme Court 244 (Salahuddin and 2
others versus Frontier Sugar Mills & Distillery Ltd., Tokht Bhai
and 10 others) has laid down the functional test to assess whether a
body or authority is a person within the meaning of Article 199 of
the of the Constitution of Islamic Republic of Pakistan, 1973 and
observed as under: -
“The primary test must always be whether the
function entrusted with the organization or person
concerned are indeed functions of the state
involving some exercise of sovereign or public
power; whether the control of the organization
vests in a substantially manner in the hands of the
Government; and whether the bulk of the funds is
provided by the state. If these conditions are
fulfilled when the person, including a body politic
or body corporate, may indeed be regarded as a
person performing functions in connection with the
affairs of the Federation or a Province; otherwise
not.”
14. The Honourable Supreme Court of Pakistan in a judgment
reported in 2013 SCMR 1707 (Pakistan Defence Officers’
Housing Authority v. Jawaid Ahmed) while discussing the effect
of imposition of penalty under Removal from Service (Special
Powers) Ordinance, 2000 has observed as under: -
“Although the rules/regulations of statutory
organization might have been non statutory but there
was a statutory intervention in the shape of Removal
from Service (Special Powers) Ordinance, 2000 and
the employees had to be dealt with under the said
law.”
15. The Honourable Supreme Court went on to observed in the
same judgment that the Legislative intent in promulgation of
Removal from Service (Special Powers) Ordinance, 2000 was that
the persons incorporation service shall have a right of appeal under
section 10 of the Removal from Service (Special Powers)
Ordinance, 2000 but subsequently employees were deprived of their
W.P.No.15277/2012. 6
right of appeal as the same was held to be ultra vires of the
Constitution by the Hon’ble Supreme Court in the cases of
Muhammad Mubeen-ul-Islam and others. Versus Federation of
Pakistan through Secretary, Ministry of Defence and others PLD
2006 Supreme Court 602 (Muhammad Mubeen-us-Salam and
others versus Federation of Pakistan through Secretary,
Ministry of Defence and others) and Muhammad Idrees versus
Agricultural Development Bank of Pakistan and others (PLD
2007 Supreme Court 681). Deprivation of such right of appeal
would amount to judicial sanctification of all orders passed by the
departmental authorities awarding various penalties to the
employees and would also be violative of fundamental right to fair
trial and due process as ordained in Article 10-A of Constitution of
Islamic Republic of Pakistan. Employees in question could invoke
Article 199 of the Constitution to seek compliance of Removal from
Service (Special Powers) Ordinance, 2000.
16. In view of above discussion, this Court holds that the writ
petition is maintainable.
17. Now, I would discuss the propriety of the impugned orders,
dated 06.08.2009 and 30-08-2012. It is established from record that
a show cause notice was issued to the petitioner on 23.06.2009;
reply was filed by the petitioner and thereafter a major penalty of
dismissal from service was imposed upon the petitioner through
order dated 06.08.2009.
18. The intention of the Legislature while promulgating Removal
from Service (Special Powers) Ordinance, 2000 inter alia was that
the matters for “person in corporation service” should be dealt with
in accordance with provisions of said law and to ensure a fair trial it
was inter alia provided in the said Ordinance that unless specifically
exempted by a reasoned order, the competent authority shall hold a
W.P.No.15277/2012. 7
regular inquiry against an employee accused of misconduct and he
shall have a right of appeal.
19. The right of access to justice is a well recognized inviolable
right enshrined in Article 9 of the Constitution of Islamic Republic
of Pakistan and is equally found in the doctrine of “due process of
law”. This right includes the right to be treated in accordance with
law, the right to have a fair and proper trial and a right to have an
impartial Court or Tribunal.
The term “due process of law” is summarized as follows: -
A person shall have due notice of proceedings which
effect his rights.
The person shall be given reasonable opportunity to
defend.
That the Tribunal or Court before which his rights
are adjudicated is so constituted as to give reasonable
assurance of its honesty and impartiality; and
That it is a Court of competent jurisdiction.
20. The due process of law clause has now the specifically
enshrined in Article 10-A of the Constitution of Islamic Republic of
Pakistan which is reproduced below: -
“10-A. -- Right to fair trial. For the determination
of a civil rights and obligations or in any criminal
charge against him, a person shall be entitled to a
fair trial and due process”.
21. I must observe that holding of a regular inquiry is a sine qua
non when the nature of allegation leveled against the petitioner
required recording of evidence. In this regard, I am fortified by a
judgment of the Honourable Supreme Court of Pakistan reported as
2011 PLC (C.S.) 1352 (Mst. Firdous Batool versus Executive
District Officer and another).
22. The Honourable Supreme Court of Pakistan in a judgment
reported in 2009 SCMR 339 (Muhammad Haleem and another
W.P.No.15277/2012. 8
versus General Manager (Operation) Pakistan Railways
Headquarter, Lahore and others) has observed that where the
charges could only be established by producing evidence, the
authority could not dispense with the holding of inquiry and without
specifying as to why there was no need for holding a regular inquiry
and how the charges /misconduct would be proved without holding
an inquiry. Holding of inquiry is essential to prove the charges of
fact and the same cannot be dispensed with.
23. The similar view has been taken by the Honourable Supreme
Court of Pakistan in a judgment reported in 2012 PLC (C.S.) 728
(Muhammad Afzal versus Regional Police Officer, Bahawalpur
and others).
24. The legal advisor for the respondents has relied upon 2009
SCMR 444 but, with due deference it is observed that the judgment
relied upon by the legal advisor for the respondents is
distinguishable as in that case the civil servant was proceeded
departmentally and he was duly informed of charges leveled against
him, thereafter a high powered committee was constituted to probe
into the matter. Civil Servant was afforded reasonable opportunity
of personal hearing before imposition of penalty and the same was
considered enough to provide opportunity of defence.
25. In the present case, a show cause notice was issued on
23.06.2009, a reply to the said show cause notice was given on
25.07.2009 and without giving any opportunity of personal hearing
or holding of regular inquiry which as has been observed above is a
sine qua non before imposition of major penalty of dismissal from
service, the major penalty of dismissal from service was imposed on
the petitioner on 6.8.2009. The petitioner has not even been given a
right of personal hearing. The respondents with their parawise
comments have attached a show cause notice issued to one Rashid
Mehmood and thereafter a right of personal hearing was given to the
W.P.No.15277/2012. 9
said official through letter dated 30.09.2009 and on the basis of that
personal hearing given to one Rashid Mehmood, the respondents
have taken the plea that since Rashid Mehmood was a co-accused,
therefore it would be presumed that the right of personal hearing has
also been given to the petitioner.
26. In my opinion, the stance taken by the respondents is un-
acceptable. Neither the petitioner has been given a right of personal
hearing nor a regular inquiry has been conducted by the competent
authority; moreover, no reasons whatsoever have been given as to
why the requirement of holding of regular inquiry against the
petitioner has been dispensed with.
27. For what has been discussed above, this writ petition is
Accepted. It is declared that the petitioner has been denied a
fundamental right to have a fair trial as ordained in Article 10-A of
the Constitution of Islamic Republic of Pakistan, 1973. Resultantly,
the order of dismissal from service dated 6.8.2009 and the order
dated 30.8.2012 are declared to have been passed without lawful
authority. The case is remitted back to the competent authority to
pass a fresh order in pursuance to Show Cause Notice dated
23.6.2009 after holding a regular inquiry. However, the petitioner
would not be entitled for any back benefits.
(M. Sohail Iqbal Bhatti)
Judge.
Approved for reporting:
Ansar*
