ISLAMABAD: The Islamabad High Court (IHC) ruled on Monday that it was still the competent forum to deal with filing of appeals, claims, complaints etc against decisions of bodies formed under the new Pakistan Medical Commission Act, until the federal government specifically stated that such matters had to be referred to the medical tribunals formed under the PMC Act 2020.
The order was passed as the court allowed Dr Qazi Tahiruddin – a former member of the National Medical Authority (NMA) who was sacked by the PMC secretary in Sept 2021 – to resume his duties.
Deciding the petition, Justice Miangul Hassan Aurganzeb stated that since the petitioner was inducted to the NMA through a competitive process for a fixed term of four years, his services could not be terminated without following the prescribed process for his removal.
Dr Tahiruddin was removed from his position for opposing the Medical and Dental Colleges Admission Test (MDCAT) examination and asking medical colleges to reduce tuition fee. He had also highlighted anomalies in awarding of contract for MDCAT.
Court restores ex-National Medical Authority member whose services were ‘wrongfully’ terminated in Sept 2021
However, on Monday, his counsel told the court the petitioner did not wish to press for an inquiry on whether provisions of the PMC Act and the Public Procurement Rules, 2004 had been violated in the awarding of contract to a private company.
The counsel said that under Section 15(7) of the PMC Act, a member of the NMA can only be removed if, on an inquiry by the council, he is found unable to perform the functions of his office because of mental or physical disability or on account of misconduct, including corruption and dishonesty, or having been convicted of a criminal offence.
On the other hand, PMC counsel Sardar Taimoor Aslam argued that being a contractual employee, Dr Qazi could not invoke the IHC’s jurisdiction for his reinstatement.
In his view, he could have filed an appeal under Section 37(1) of the PMC Act against the termination of his appointment before the medical tribunal constituted under the act.
However, Justice Aurangzeb observed that the PMC Act had not been notified by the federal government to provide for filing appeals, claims, complaints etc against decisions and orders of the PMC before the medical tribunal. The order stated that the government had only authorised the tribunals to deal with offences prescribed under the PMC Act, therefore it cannot be held that the tribunal has exclusive jurisdiction to decide such cases.
Regarding contractual employment, the court noted: “Indeed, it is a master’s prerogative to terminate a servant’s contractual appointment if the former does not find the latter’s performance to be satisfactory. Such termination can take place in accordance with the terms and conditions of the employment contract.”
“These principles, however, will not apply where a statute, in explicit terms, requires an appointment to be made for a fixed tenure and also prescribes a process and grounds for the removal of the appointee,” the court order said, adding that, “Member of the NMA cannot be left at the mercy of the council by permitting it to get rid of him prematurely or without adopting the procedure prescribed in the statute for his removal.”
The decision pointed out that “the legislative intent behind the requirement of the appointment of a member of the NMA to be made for a fixed tenure is to enable him to discharge his duties and make decisions independently even though such decisions may not find favour with the members of the council.”
The PMC counsel claimed that an inquiry on allegations of misconduct in terms of Section 15(7) of the PMC Act was not conducted against the petitioner to allow him to save face, adding that a performance assessment of the petitioner had been carried out, which led the council to terminate his employment contract.
Although he claimed the performance assessment was confidential, the judge after reading the report said the petitioner faced complaints of being absent from office for seven weeks because his father had contracted Covid-19, after which Dr Tahiruddin himself had also fallen sick with the virus.
He is also alleged to have written a letter to the Khyber Medical University registrar to secure the admission of two students against quota seats in a “dubious manner”.
Other allegations against him included unilaterally writing a letter to 28 medical colleges, asking them to reduce fees by 10 per cent, and a failure to initiate the exercise of verification and clearance of all students admitted to medical and dental colleges in 2021, causing PMC a loss of around Rs65 million.
However, the court observed that allegations mentioned in the performance assessment “could not be treated as substantiated and could not form the basis for a decision to terminate his appointment” without giving him an opportunity to rebut the allegations against him.
Published in Dawn, January 18th, 2022