W.P.No.2205/2012.

Stereo HCJAD 38
Judgment Sheet
IN THE LAHORE HIGH COURT
RAWALPINDI BENCH RAWALPINDI
JUDICIAL DEPARTMENT

W.P.No.2205/2012

Ghaffar-ul-Hassan. Versus National Command

Authority etc.

JUDGMENT

Date of hearing: 17.2.2014

Petitioner by: Mr. Muhammad Arif Baloch,

Advocate.

Respondents by: Barrister Waqas Aziz Qureshi,

Advocate and Mr. Faisal
Mahmood Raja, Standing
Counsel.
_________________

M. Sohail Iqbal Bhatti, J.- Through this

constitutional petition, the petitioner has challenged the order of
his removal from service dated 16.12.2011 against which an
appeal was filed before Director General Strategic Planning
Division, which was also dismissed on 8.6.2012.
2. The facts of the case are that the petitioner was
inducted in Margalla Electronics (ME) Ministry of Defence on
13.12.1987. The Margalla Electronics, which came under the
control of respondent No.3 and resultantly the petitioner, became
an employee of respondent No.1. The petitioner during the service
applied for leave without pay for a period of two years to the
Director Margalla Electronics, which was allowed w.e.f.,
16.8.2009 to 15.8.2011. During the leave period Margalla
Electronics came under the control of Air Weapons Complex and
W.P.No.2205/2012. 2

petitioner became an employee of respondent No.1. Before expiry

of the previous leave period petitioner filed another application
for extension of leave as the petitioner was under treatment. In
response to the application of the petitioner, the petitioner
received letter dated 24.8.2011 wherein he was reported absent
from duty and he was directed to report for duty failing which the
petitioner was informed that disciplinary action would be taken
against him according to law. In response to letter dated 24.8.2011
the petitioner again requested the concerned official to extend his
leave period for a period of six months as on account of his
illness, petitioner was unable to join the department. Instead of
responding to the application dated 29.8.2011 respondent No.3
issued a Show Cause Notice to the petitioner on 22.9.2011
holding that the petitioner was absent for a period of 37 days
without prior approval of leave and was thus guilty under Rule 4
(b) and (g) of National Command Authority Employees
Efficiency and Discipline Rules, 2010. It was further mentioned in
the Show Cause Notice that in term of Rule 7 (e) (3) of the
National Command Authority Employees Efficiency and
Discipline Rules, 2010, it was not necessary to hold a regular
inquiry. However, the petitioner was given an opportunity of
personal hearing. Thereafter the petitioner through letter dated
7.10.2011 was given an opportunity to appear before the
competent authority for personal hearing on 14.10.2011 at 1000
hours. In response to this letter the father of the petitioner
informed respondent No.3 that the petitioner was hospitalized and
was unable to travel from Lahore and a request was made for
granting another opportunity of personal hearing to the petitioner
after recovery of the petitioner. The respondent once again
granted an opportunity for personal hearing to the petitioner and
the petitioner was directed to appear before respondent No.3 on
2.11.2011. The petitioner appeared before respondent No.3 on
2.11.2011 but he was not properly heard and was removed from
W.P.No.2205/2012. 3

service through impugned letter dated 16.12.2011 w.e.f.,

9.12.2011 on the charge of long absence. However, the absence of
the petitioner w.e.f. 17.8.2011 to 8.12.2011 was treated as leave
without pay and allowances. The petitioner filed departmental
appeal against the impugned order, which was also dismissed on
8.6.2012.
3. The learned counsel for the petitioner submitted that
the penalty imposed upon the petitioner was not proportionate to
the charge levelled against him. The petitioner was not given any
opportunity of hearing either before passing the impugned order
dated 16.12.2011 or deciding the appeal of the petitioner.
4. On the other hand, learned counsel for the
respondents submitted that the petitioner was given ample
opportunities to join his duty but he remained absent without any
authorization. It was further contended that since the petitioner
was guilty of misconduct of being absent from duty for a period of
37 days without authorization, a penalty of removal from service
was imposed which was a lenient view taken by the competent
departmental authority, as in case of removal petitioner had not
been disqualified from future appointment under the Government,
except to serve National Command Authority.
5. I have considered the arguments advanced by the
learned counsel for the parties and have also perused the record
minutely.
6. I would first discuss question of maintainability of
this writ petition and the objection of the respondents; firstly,
since the petitioner has not availed the remedy of appeal the
petition is not maintainable, and secondly, that under Section 22
of National Command Authority Act, 2010 jurisdiction of this
Court is ousted.
7. In view of the law laid down by the august Supreme
Court of Pakistan in 2013 SCMR 1707 (Pakistan Defence
Officers’ Housing Authority and others versus Lt. Col. Syed
W.P.No.2205/2012. 4

Jawaid Ahmed) the employees of the statutory bodies have the

right to invoke the jurisdiction of this Court under Article 199 of
the Constitution of Islamic Republic of Pakistan, 1973. As far
ouster clause contained in Section 22 of National Command
Authority Act, 2010 is concerned; this Court in a judgment
reported in PLD 1996 Lahore 672 (Messrs Chenab Cement
Product (Pvt.) Ltd. and others versus Banking Tribunal,
Lahore and others) has held that the constitutional jurisdiction
vesting in this Court under Article 199 of the Constitution of
Islamic Republic of Pakistan, 1973 cannot be taken away,
abridged or curtailed by subordinate legislation. Reliance is also
placed on PLD 1964 SC 126, PLD 1963 SC 322, PLD 1962 SC
42, PLD 1963 Lah. 109, PLD 1964. Lah. 376 and PLD 1996 SC
362.
8. As far as the contention of the learned counsel for the
respondents regarding non-availing the remedy of appeal is
concerned. The august Supreme Court of Pakistan in PLD 1972
Supreme Court 279 (The Murree Brewery Co. Ltd. versus
Pakistan through the Secretary to Government of Pakistan,
Works Division and 2 others) has held that High Court not
entertaining writ petition when other appropriate remedy available
is not a rule of law barring jurisdiction of the High Court but a
rule by which court regulates its jurisdiction; where the order of
the statutory body is attacked on ground that it was wholly
without authority, partial, unjust and mala fide, High Court in
exercise of its writ jurisdiction has the power to grant relief to the
aggrieved party. In present case the impugned order is tainted
with malice in law as the same cannot be countenanced; after
treating the absence of the petitioner as leave without pay and
allowances the penalty of removal from service could not have
been imposed in view of the law laid down by the august Supreme
Court of Pakistan in 2006 SCMR 434). Therefore, I hold that the
present writ petition is maintainable.
W.P.No.2205/2012. 5

9. The petitioner was allowed leave without pay for two

years i.e. from 16.8.2009 to 15.8.2011. Before the expiry of his
leave period the petitioner applied to the respondents for
extension in his leave as the petitioner was bedridden and unable
to join his duties but the respondents instead of giving any
consideration to the application of the petitioner initially issued a
Show Cause Notice and finally passed the impugned order dated
16.12.2011. Without involving myself into the factual controversy
of this case the perusal of the impugned order dated 16.12.2011
shows that the same is in itself contradictory. On one hand a
penalty of removal from service has been imposed upon the
petitioner for remaining absent from duty but in the same letter
the absence of the petitioner w.e.f. 17.8.2011 to 8.12.2011 has
been treated as leave without pay and allowances. I am afraid that
after the period of absence was condoned/regularized by the
competent authority there could not have been a justification to
impose a major penalty of removal from service. I am fortified in
my view by a judgment of Hon’ble Supreme Court of Pakistan
reported in 2006 SCMR 434 (Lahore Development Authority
and others versus Muhammad Nadeem Kachloo and another).
10. The facts of the case supra are identical to the case of
the petitioner. In the above referred case one Muhammad Nadeem
Kachloo was issued a Show Cause Notice and upon finalization of
disciplinary proceedings a major penalty of dismissal from service
awarded upon the said official. However, his absence period from
duty was ordered to be treated as leave without pay. The civil
servant aggrieved by the order of dismissal preferred an appeal
before the Services Tribunal, which was allowed by Punjab
Services Tribunal as under:-

“I have considered contentions from both sides.

Without touching detailed merits of the case, I
find that the appellant has already been allowed
W.P.No.2205/2012. 6

leave (leave without pay) for the period he

remained allegedly absent from duty. The
authority while dismissing the appellant, also
allowed the appellant extra-ordinary leave without
pay for the said period and in this way regularized
his absence. This being so, very ground had
vanished on which the appellant had been
proceeded against. When the appellant was
considered on leave, then he could not have been
considered absent. In this view of the matter,
appeal is accepted and the impugned orders,
presently being assailed by the appellant are set
aside. Resultantly, the appellant shall stand
reinstated and the period intervening shall be
treated as leave of the kind due.”

11. A civil petition was filed before the Hon’ble Supreme

Court of Pakistan by Lahore Development Authority against the
order passed but the Hon’ble Supreme Court of Pakistan upheld
the decision made by Punjab Services Tribunal.
12. I cannot hold myself back in observing that he
competent authority while awarding the major penalty should
always keep in mind the gravity of charge, which in the present
case had been condoned by the competent authority. The
underlined concept behind imposition of major penalty is that not
only the offender is brought to justice but also to make it an
example for the others. Where gravity of charge is of lesser degree
and circumstances reflected absence of bad faith and willfulness
then minor punishment might be a preferred course. I am fortified
in my view by the judgment reported in 2013 SCMR 817
(Secretary, Government of Punjab and others versus Khalid
Hussain Hamdani and 2 others) where the august Supreme
Court of Pakistan has observed as under:-
W.P.No.2205/2012. 7

“The law provides for more than one kind of

punishments keeping in view the object of such
penal provisions and the gravity of the charge in a
case. Conceptually punishment to a delinquent
public servant is premised on the concept of
retribution, deterrence or reformation. In
awarding punishments, the Competent Authority
has to keep in mind the underlying object of law
and the severity of the misconduct.”

13. I do not find myself in agreement with the arguments

advanced by the learned counsel for the respondents that the
competent authority has discretion to impose a punishment of
major penalty upon the petitioner.
14. Where ever wide worded powers conferring
discretion exists there remains always the need to structure the
discretion. The structuring of discretion only means regularizing
it, organizing it, producing order in it so that the decision will
achieve the high quality of justice. The exercise of discretionary
powers without framing rules to regulate its exercise has always
been taken to be enhancement of power and where the authorities
fail to rationalize and regulate their discretion by rules or
precedents the courts have to intervene where exercise of such
discretionary power appears to be arbitrary and capricious. In the
present case on one hand the absence of the petitioner has been
condoned by treating the same as leave without pay but at the
same time the petitioner has been deprived of his livelihood by
imposing a major penalty of removal from service, which also
result into taking away all the benefits, which have accrued to the
petitioner being an employee since 13.12.1987 and the
punishment imposed upon the petitioner does not commensurate
 W.P.No.2205/2012. 8

with the charge especially when his absence has been treated as
leave without pay.
15. For what has been discussed above, this writ petition
is disposed of with the direction to respondent No.3 to decide the
appeal of the petitioner dated January 3, 2012 afresh after giving a
fair opportunity of hearing to the petitioner and keeping in view
the due process of law clause and right to fair trial as envisaged in
Article 10A of the Constitution of Islamic Republic of Pakistan,
1973. The appellate authority is further directed to pass a speaking
order keeping in view the law laid down by the Hon’ble Supreme
Court of Pakistan in 2006 SCMR 434.

(M. Sohail Iqbal Bhatti)

Judge.

APPROVED FOR REPORTING:

Ansar*