Domestic Inquiries and Employees’ Right of Representation through Counsel

Domestic Inquiries and Employees' Right of Representation through Counsel Case Laws Constitutional Law Employment & Incentives Knowledge - Constitutional Law Litigation & Arbitration Public & Admin Law Solutions - Constitutional Law Supreme Court Mr. Justice Khilji Arif Hussain in his judgment has decided the issue of domestic inquiries and employees’ right of representation through counsel in Constitutional Petition No. 97 of 2014.

1. The petitioner served as Private Secretary in the Supreme Court of Pakistan. Through this Petition under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 he prayed that Rule 13 of the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules 1982 (hereinafter referred to as the Rules, 1982) and Rule 17 of the Supreme Court Establishment Service Rules, 2015 (hereinafter referred to as the Rules, 2015) be declared ultra vires and the appeal of the petitioner (DSA No. 1 of 2011) may kindly be allowed to engage a counsel of his own choice.

2. Brief facts to decide this petition are that the petitioner while serving as Private Secretary of this Court at his own request was sent on deputation to the Office of the Federal Tax Ombudsman on 10.6.2005. His deputation period was extended from time to time and was eventually expired on 9.6.2010. While he was posted in the Regional Office of Federal Tax Ombudsman at Lahore, he was temporarily attached with the Regional Office at Quetta vide order dated 13th January, 2010 and was relieved from Lahore on 16.1.2010 to join his new place of posting at Quetta. However, he did not report for duty rather submitted application for leave on the ground of his illness. On 10.6.2010 he submitted joining report to this Court but he was not allowed to join this Court and was directed by Memorandum dated 26.6.2010 to obtain relieving order from borrowing department (FTO). The Federal Tax Ombudsman by his report dated 13.7.2010 stated that the petitioner had remained absent from duty since 16.1.2010 and the medical certificates submitted by him for grant of leave were not valid and were not accepted by the Office necessitating disciplinary action against him by the parent department for misconduct, insubordination and obstruction of public work. It appears from the record that Hon’ble Chief Justice of Pakistan directed that as the alleged misconduct had been committed during the deputation period, therefore, the borrowing department shall initiate disciplinary action and shall report its findings to this Court. Accordingly the Inquiry was conducted against the petitioner by the borrowing authorities. He was found guilty of misconduct on the basis of said report, therefore, Show Cause Notice was issued and eventually the petitioner was dismissed from service with effect from 7.3.2011 vide order dated 8.3.2011. The petitioner filed departmental appeal which was heard and dismissed on 19.2.2014 by three senior most Judges of this Court.

3. Through this petition the petitioner questioned Rule 13 of the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules 1982 and Rule 17 of the Supreme Court Establishment Service Rules, 2015 being violative of fair trial.

4. Mr. Hamid Khan, learned ASC for the petitioner contended that Rule 13 of the Rules, 1982 and Rule 17 of the Rules, 2015 are ultra vires to principle of fair trial and violative of Article 10-A of the Constitution of Islamic Republic of Pakistan and as such liable to be declared ultra vires and order passed by the Appellate Forum constituted under Rule 17 of the Rules, 2015 may be set-aside and petitioner may be allowed to appear before the said forum through his counsel. In support of his contention, the learned counsel for the petitioner relied upon Aslam Ali Shah vs. Collector of Central Excise and Land Customs (1983 PLC [CS] 498), Collector Excise and Land Customs vs. Aslam Ali Shah (PLD 1985 SC 82), Muhammad Saeed Ahmed Khan vs. Secy. to Govt. of Pb., Housing & Planning Deptt. (PLD 1983 Lahore 206), Faisal vs. State (PLD 2007 Karachi 544), Baz Muhammad Kakar vs. Federation of Pakistan (PLD 2012 SC 923), Pett vs. Greyhound Racing Assocn., Ltd. (1968 [2] AER 545) and Board of Trustees, Port of Bombay vs. Dilipkumar (AIR 1983 SC 109).

Further information regarding domestic inquiries and employees’ right of representation through counsel can be solicited from AUJ LAWYERS. Feel free to contact us in case you need any clarification and/or require legal assistance regarding domestic inquiries and employees’ right of representation through counsel.