Mehboob Alam V. National Radio and Telecom Corporation

PLJ 2011 Peshawar 68 [ Abbottabad Bench Abbottabad ] Present: Mian Fasih-ul-Mulk , J. MEHBOOB ALAM--Petitioner versus NATIONAL RADIO AND TELECOMMUNICATION CORPORATION (PVT.) LTD., HARIPUR through its Chairman and 4 others--Respondents W.P. No. 230 of 2008, decided on 18.5.2010. Constitution of Pakistan , 1973-- ----Art. 199--Constitutional petition-- Malafide act--Removal from service--Right of hearing--Audi alteram partem --Maintainability--Held: Malafide act can be challenged in writ jurisdiction and that where a removal order of such an employee of corporation, even in the absence of statutory rules, is made on particular grounds which are in the nature of charges, the employee had a vested right of hearing before any order adverse to his interest was passed by virtue of principle of audi alteram partem , which was the least requirement. [P. 71] A 2005 PLC (CS) 1300, 2000 PLC (CS) 796 & PLJ 2008 Lah . 723, rel . National Radio and Telecommunciation Corporation Employees Service Rules, 2005-- ----R. 74(c)--Petitioner at the time of application for resignation was in Scale BPS-3 and, therefore, managing director was not authorized under the rules to accept the conditional resignation of petitioner but it was required to be placed for appropriate orders before Board of Directors as provided in Rule 74 (c) of N.R.T.C. Employees Service Rules, 2005 r/w Clause 91 of the Articles of Association of N.R.T.C.--Petition was allowed. [P. 72] B Mr. Muhammad Younis Khan Tanoli , Advocate for Petitioner. Mr. Khurshid Khan, Advocate for Respondents. Date of hearing: 18.5.2010. Judgment We propose to dispose of W.P. No. 230/2008 and W.P. No. 186/2009 by this single judgment as common questions of law and facts are involved therein.

2. Brief facts in W.P. No. 230/08 are that petitioner, who was serving as Senior Manager Finance from 2001, later on appointed as Company Secretary in April, 2003 which post was re-designated as Senior Manager Finance and Company Secretary. In December, 2006 new Managing Director took over the charge. Policies were changed and deviations from the laid down procedure started in deciding administrative and high level financial matters. Petitioner felt it difficult to continue with his service and due to changed circumstances, the petitioner initiated negotiations with the Managing Director for retirement against grant of financial package equal to permissible amount of retirement benefit after completion of superannuation age. In view of agreed commitment of Managing Director, petitioner submitted conditional resignation to the competent authority on 09.07.2007. Instead of forwarding the resignation to the competent authority, the resignation was accepted by the Managing Director on the same day.

3. On 12.07.2007, the petitioner feeling some foul play withdrew his resignation before its submission to the competent authority. The Managing Director rejected application for withdrawal of resignation through an illegal order dated 14.07.2007. Petitioner made representation to Board of Directors. The order of acceptance of resignation made by Managing Director was set-aside by the Board of Directors in its 67th meeting held on 01.09.2007.

4. As desired by the Board of Directors, the Respondents No. 1 to 3 did not implement the decision and ignored the lawful orders of Board. A Court of inquiry of hand picked junior employees was constituted after delay of about nine months on 02.06.2008. Petitioner conveyed his reservations to the Chairman against the so called Inquiry Committee. The said Inquiry Committee asked the petitioner to submit written statement, which was accordingly filed but thereafter the petitioner was neither associated with the inquiry nor he was aware of its proceedings.

5. The Managing Administration vide letter dated 15.08.2008 informed the petitioner that action taken on his application dated 09.07.2008 has been decided and that the case stands settled and closed. Petitioner submitted representation/appeal praying for setting aside letter/order dated 15.08.2008 and for restoration with financial benefits but neither any action has been taken on representation/appeal nor the petitioner was paid the pay, allowances or other benefits for the period, he remained under suspension. Hence, the instant writ petition.

6. In W.P.No . 186/2009 petitioner was performing his duties as Chief Engineer in NRTC and applied for earning leave on 23.12.2008 which was granted for the period w.e.f . 01.01.2009 to 30.01.2009 and in the meantime vide letter dated 23.01.2009 the petitioner stood released/retired from NRTC service w.e.f 31.01.2009 by Respondent No. 4. The petitioner filed representation/appeal which was turned down vide letter dated 04.02.2009. Hence, the subject writ petition.

7. Learned counsel for the petitioners contended that the impugned orders whereby petitioners were released/retired from service are against the rules and policy decision governing the issue on the subject. He further argued that impugned orders are illegal, without lawful authority and were passed in contravention of principle of natural justice, therefore, liable to be set-aside and petitioners are entitled to all back benefits and service till attaining age of superannuation. Reliance was placed on PLJ 2008 Lahore 723, 2001 SCMR 934, PLJ 2005 SC 925, 2004 SCMR 1874, PLJ 2006 SC 921 & 2004 SCMR 468.

8. On the other hand, the learned counsel for the respondents raised objection with regard to maintainability of petitions on the grounds that NRTC is a self Financing Private Limited Company, governed by Board of Directors and its employees cannot invoke the Constitutional jurisdiction of this Court. On merits, the learned counsel supported the impugned orders and contended that all possible emoluments have been paid to the petitioners and nothing is left outstanding against the respondents.

9. We have heard learned counsel for the parties at great length and gone through the record with their able assistance.

10. Taking the question of maintainability first, it would be appropriate to highlight the status of National Radio and Telecommunication Corporation (Pvt.) Limited which was established on 16.02.1966. It is a Government owned Organization and is registered as a Private Company under the Companies Act, 1913. This Company is managed by the Board of Directors, whose members are appointed by the Federal Government. At present it is under the administrative control of Ministry of Defence Production. The Secretary Ministry of Defence Production is the Chairman of the Board of Directors. Petitioners' services are regulated by NRTC Employees Service Rules, 2005.

11. Learned counsel for the petitioner, while referring to the case of Muhammad Ikram vs. BISE etc. (PLJ 2008 Lahore 723) submitted that malafide act can be challenged in writ jurisdiction and that where a removal order of such an employee of Corporation, even in the absence of statutory rules, is made on particular grounds which are in the nature of charges, the employee had a vested right of hearing before any order adverse to his interest was passed by virtue of principle of audi alteram partem , which was the least requirement.

12. Referring to another case reported in 2005 PLC (CS) 1300, the Honourable Court held in the following words: "Absolute power and authority cannot be arrogated to or exercised by any State functionary. Concept of Master and Servant relationship has undergone a change and the relationship of Master and Servant does not confer unbridled or unfettered powers to act whimsically or capriciously in violation of principle of natural justice, and settled norms of justice."

13. In another case reported as 2000 PLC (CS) 796, it was held:-- "Rule of Master and Servant. Where jurisdictional Bars have been enacted against superior judiciary, in legislative measures, such bars and fetters, if within the legislative and Constitutional bonds, may take effect with exception of an action which was mala fide, an action which was without jurisdiction and an action which was coram non judice , where relationship between the parties was governed by the rule of Master and Servant, action adverse to the servant falling with such three exceptions would not be exempted from scrutiny of High Court."

14. We are in agreement with the views and observations made by their Lordships in the cited judgments and, therefore, hold that the instant writ petitions are maintainable.

15. On merits, a perusal of record would show that the petitioner at the time of application for resignation was in Scale EPS-3 and, therefore, Managing Director was not authorized under the rules to accept the conditional resignation of petitioner Mahboob Alam himself but it was required to be placed for appropriate orders before Board of Directors as provided in Rule 74(C) of the N.R.T.C. Employees Service Rules, 2005 r/w clause 91 of the Articles of Association of N.R.T.C. Petitioner had withdrawn his resignation on 12.07.2007, which was illegally rejected by the Managing Director himself on 14.07.2007. On petitioner's representation made to Board of Directors, the order of acceptance made by Managing Director was set-aside by the Board of Directors, in its 67th Meeting held on 01.09.2007 and the Board gave its decision in the following words :-- "The matter regarding resignation and his appeal for withdrawal of resignation was discussed in the Board with information, knowledge and rules could be made available at the spot. Mr. Mehboob Alam in his appeal had volunteered for an impartial inquiry into the circumstances leading to his resignation. The Board did not approve premature retirement benefits and decided that a Court of inquiry into case be held and the resignation was set aside. Status of the employee was converted to " suspended " until the result/recommendation of the Court of inquiry is furnished to the Board for consideration."

16. Respondents No. 1, 2 and 5 submitted their comments to the writ petition. In para 6(a )( b) certain allegations and charges were levelled against the petitioner which according to the respondents were the circumstances leading to the resignation of petitioner. Though an Inquiry Committee was constituted after considerable delay of nine months but strange enough that neither the so called allegations/ charges were levelled against petitioner in the inquiry nor the petitioner was associated with the so called inquiry proceedings, if any. No charge was framed or statement of allegations supplied to the petitioner. Neither the petitioner was afforded an opportunity of hearing nor any show cause notice was ever served on him. Yet, surprisingly, the petitioner was informed that action taken on 09.07.2007 has been decided and that the case stand settled and closed.

17. We have been informed that even the order of Board of Directors held in 67th meeting in terms of setting aside the resignation and converting the status of petitioner to that of suspended employee was not honoured in letter and spirit and the petitioner has not been paid his salary till date which speak volume of malafide on the part of respondents. Viewing the case from any angle, the impugned orders dated 09.07.2007, 14.07.2007 and 15.8.2008 cannot be termed as legal orders.

18. So far as case of petitioner Sheikh Nasrullah in W.P. No. 186/2009 is concerned, petitioner was to retire on 03.04.2010 after attaining the age of superannuation. He did not opt for pre-mature retirement. There was apparently nothing available against him on record. He has an unblemished record of service. Neither any disciplinary action was ever initiated nor any show cause notice was served upon him apart from he being condemned unheard. The impugned orders dated 23.01.2009 and 04.02.2009 have been passed in utter violation of law and rules, therefore, cannot be justified on any ground.

19. Consequently, we allow both these writ petitions and set-aside the impugned notifications/orders of the respondents and restore the petitioners to their respective posts with full back benefits. (R.A.) Petitions allowed.