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Constitutional Petition No. D‑449 of 1977, decided on 15th Decem ber, 1983.

‑‑Art. 9‑West Pakistan Auqaf Service Rules, 1962, r. 14‑Removal from service‑Petitioner's services not terminated in terms of letter of appointment or rule 14‑Removal from service on charges levelled against him from which he was exonerated by Enquiry officer‑Order against petitioner passed behind his back without notice and against principles of natural justice‑Order of removal from service declared without lawful authority and of no legal effect‑Petitioner, held, entitled to reinstatement with full back benefits.‑[Natural justice, principles of].

Muhammad Ziauddin Qureshi for Petitioner.

Gulab M. Rang for Respondent.

Date of hearing : 15th December, 1983.

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By this constitution petition under Article 1,99 of the Constitution the petitioner seeks declaration that the removal of the petitioner from service by letter, dated 5th March, 1977 is without lawful authority, and therefore, of no legal effect and further declaration that the petitioner is entitled to reinstatement in service with full back bene fits and privileges, in the following circumstances.

The petitioner was holding the post and working as Manager Auqaf, Karachi, when by the Order No. S.O.G. (A) 11(14)/68(G‑1)‑2330, dated 5th September, 1974 the respondent transferred him to Sukkur in the same capacity and by the subsequent Order No. B.O.R. (Auqaf) F: U.P./102, dated 14th January, 1975 transferred to and relieved him from Sukkur and directed to report to Hyderabad for posting. However, on 4th February, 1975 petitioner was served with an order of even date issued by the respondent whereby he was placed under suspension with immediate effect.

3. On 21st February, 1975 the petitioner was issued a charge‑sheet bearing No. 596 cont4ining various allegations against him and requiring him to explain the same within 14 days from the date of receipt of the charge‑sheet. Simultaneously the respondent appointed Mr. Ghulam Mustafa Kalhoro, City Magistrate, Sukkur, as Inquiry Officer to enquire into the allegations levelled against the petitioner. However, the said Enquiry Officer namely, Mr. Abdul Waheed Pirzada, City Magistrate, before whom the petitioner submitted his reply to the charge‑sheet on 11^th April, 1975. Controverting the allegations and charges levelled against him.

4. The Enquiry Officer proceeded with the enquiry and after com pleting the same submitted his report on 5th November, 1975. It may be convenient if we here quote the concluding paragraph of the enquiry re port, which reads as follows

"For the reasons and the findings hereon given by me in aforesaid pages, the Manager Mr. Zisuddin Khawaja is fully exonerated of all the charges levelled against him and thus he is completely abroad of all the charges and liabilities mentioned in the charge‑ sheet."'

5. The matter rested there for a long time and ultimately on 13th April, 1977 the petitioner received the Order No. Auq (C.A.A.) Estt. /76, dated 5th March, 1977 issued by the respondent alongwith the enquiry report submitted by the Enquiry Officer whereby be found the petitioner unfit to be retained in Auqaf service and removed him from service with immediate effect. Paragraphs 2 and 3 of the order may be quoted here for ready reference

"(2) That the Enquiry Officer has opined and held the charges as not proved while considering the charges sympathetically rather than judicially. The accused Manager is, therefore, found guilty of the charges.

(3) The service record of the accused Manager, as briefly shown in the extract, holds his performance of duties as wilfully neglected in the past at Mirpurkhas in 1961, at Snkkur in 1962 and 1963, and at Karachi during 1963 to 1969."

6. This order, therefore, led the petitioner to file the present petition.

7. We have heard Mr. Muhammad Ziauddin Qureshi learned counsel for the petitioner and Mr. Gulab M. Rang, learned counsel for the respondent.

8. The learned counsel for the petitioner has submitted that the order passed by the respondent is without lawful authority inasmuch as the petitioner was fully exonerated of all the charges levelled against him, by the Enquiry Officer and therefore, there was no reason for removing him on the basis of the charges levelled against him.

9. On the other hand, Mr. Gulab M. Rang learned counsel for the respondent has submitted that the petitioner's services have been terminat ed in accordance with the terms and conditions of the letter of appoint ment and pursuant to rule 14 of the West Pakistan Auqaf Service Rule, 1962, and not in consequence of the enquiry held pursuant to the charge- sheet, dated 21st February, 1975. The learned counsel for the respon dent relied on clause 2 of the letter of appointment which inter alia provided that the petitioner's employment was purely temporary and his services might be terminated at one month's notice without assigning any reason at any time irrespective of the fact that he was holding the post other than the one to which he was originally recruited, or on payment of one month's salary in lieu of notice.

The rule 14 on which the learned counsel has relied may also be quoted here for convenience sake.

"14.‑Termination of service without notice.‑The authority com petent to terminate the service of a member of the service may, notwithstanding any provision in the agreement entered with the member under rule 12 providing for the giving of a notice, termi nate the services of the member at any time without giving notice or on a shorter notice, without assigning any reason, provided that pay for the period by which the notice falls short of the required period, or where no notice is given, pay for the full required period, is granted."

10. It will be seen from the concluding paragraph of the impugned order quoted above that the petitioner's services have not been terminated in terms of letter of appointment or rule 14 (ibid) but tie was removed from service on the charges levelled against him from which he was 4 exonerated by the Enquiry Officer. If the respondent was not satisfied with the enquiry report and wanted to take any action against the petitioner on the basis of charge‑sheet he should have given notice I accordance with law and in compliance of the principles of natural justice. But he recorded his adverse findings on filth November, 1976, behind the back of the petitioner and almost after about one year, as would appear from Annexure "J" on our records.

11. We are, therefore, of the view that the petitioner is entitled to the reliefs claimed in the petition. We accordingly declare that the order, dated 5th March, 1977 is without lawful authority and is therefore, of n legal effect and further declare that the petitioner is, entitled to reinstate ment with full back benefits. We would have also saddled the respondent ‑with the costs of the petition but we are informed that the Officer who had passed the order has been succeeded by another officer, we, therefore, leave the parties to bear their own costs.

M. Y. H.

Petition accepted.

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