Muhammad Saleem vs Dco Lahore etc.

Muhammad Saleem The District Co-ordination officer etc

18.6.2014 Mr. Muhammad Ilyas Bhatti, Advocate for petitioner. Ms. Asma Hamid, Assistant Advocate General.

Facts giving rise to the present petition are that petitioner was serving as Secretary, Union Council No.138 Keer Kalan, Green Town, Lahore when he was served with a show cause notice dated 26.09.2013 issued by the respondent No.1 under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (“hereinafter called as PEEDA Act”) on the following charges:

i. A complaint lodged by Mr. Shahid Khalil Noor s/o Abdul Ghafoor, r/o Chak No.400/GB, Tehsil Tandlianwala, District Faisalabad, to the DO (CO), CDG, Lahore on 10.09.2013, over telephone No.042-99238385, printed on the flex showing the fee of birth, death, divorce and marriage of computerized certificate, whereas you are demanding of Rs.3,000/- for the issuance of Computerized Marriage Certificate.

ii. On the approach of another Secretary namely Syed Qasim Ali Shah, who was also present at that time in the office, you reduced the demand from Rs.3000/- to Rs.1,500/-. You had

received Rs.1,000/- for issuance of marriage certificate, but you did not provide marriage certificate to the complainant and asked him to come tomorrow with Rs.500/- more and then certificate will be given.

iii. On very next date, the applicant visited the office of UC for the purpose and after receiving Rs.500/- more, you issued the Marriage Certificate. On telephonic complaint you misbehaved with the complainant, which was sinful act on your part. The said complaint came at the office of DO(CO), and submitted a written complaint against you, hence this show cause cum personal hearing notice.

2.The competent authority decided to dispense with from holding a regular inquiry and asked the petitioner to submit his reply, which was filed, wherein he denied all the allegations.

3.Vide order dated 19.10.2013, respondent No.1 held the petitioner guilty as charged and awarded him major penalty of “dismissal from service”.

4.Feeling aggrieved, petitioner filed an appeal under section 16 of the PEEDA Act before respondent No.2 which also met the same fate and was dismissed on 31.12.2013, hence this petition.

5.At the outset learned Law Officer raised a preliminary objection that under section 19 of the Act ibid, petitioner has a remedy available to him under the law to approach the Punjab Service Tribunal (“PST”). Learned

counsel for the petitioner in this regard maintains that petitioner is neither a civil servant nor his services are governed by any statutory rules and while placing reliance on Pakistan Defence Officers’ Housing Authority and others Vs Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707), he submits that writ petition is the only remedy available to him under the law.

6.On merits, learned counsel for the petitioner submits that major penalty has been awarded to the petitioner without holding a regular inquiry which is not the mandate of law and in a slipshod manner, respondents No.1 & 2 passed the orders dated 12.10.2013 and 31.12.2013 respectively (impugned orders) which are not sustainable in law.

7.Learned Law Officer vehemently opposed the pleas of the petitioner and submitted that the competent authority has rightly dispensed with from conducting a regular inquiry as departmental inquiry had already been conducted against the petitioner in which he was held guilty as charged. She further submits that both the departmental authorities scrutinized the case of the petitioner and as there is a serious charge of accepting illegal gratification, therefore, regular inquiry was rightly dispensed with and thus the impugned orders are in

accordance with law. She relies on S.M. Nawaz Vs Federation of Pakistan Ministry of Defence through Secretary and another (2010 PLC (CS) 501), Executive Engineer and others Vs Zahid Sharif (2005 SCMR 824), Sikandar Ali Vs Managing Director, Sindh Agricultural Supply Organization and others (2005 PLC(CS) 533), Javed Iqbal Qamar Vs Pakistan Telecommunication Co.Ltd through its Chairman, Islamabad and another (2004 PLC(C.S.) 435) and Abdul Hameed Vs Deputy Commissioner, Vehari and others (1990 SCMR 1435) to fortify her argument.

8.I have heard the counsels for the parties and have gone through the record.

9.While addressing the preliminary objection raised by the learned Law Officer as to the maintainability of the present petition, I am guided by the judgment of the Hon’ble Supreme Court of Pakistan reported as Pakistan Defence Officers’ Housing Authority and others Vs Lt.

Col. Syed Jawaid Ahmed (2013 SCMR 1707) in which it has been held that an employee who is neither a civil servant nor governed by statutory rules cannot be left remediless and while creating an exception to the general rule that a person not governed by statutory rules cannot approach this Court through constitutional jurisdiction,

have opened a window for those employees who have been proceeded against under a statute, like the PEEDA Act in which, although under section 19 a remedy is provided to an employee who is proceeded against under the PEEDA Act to approach the Punjab Service Tribunal.

10.This has to be kept in view that employee as defined in the PEEDA Act is different from a Civil Servant who is defined in The Punjab Service Tribunals Act, 1974 (“hereinafter called as PST Act”). For convenience both definitions are reproduced below:

PUNJAB SERVICE TRIBUNALS ACT, 1974

“2. Definition: In this Act, unless there is anything repugnant in the subject or context:

(a)

(b)“Civil Servant” means a person who is or who has been member of a civil service of the Province or who holds or has held a civil post in connection with the affairs of the Province but does not include:-

(i)a person who is or who has been on deputation to the Province from the Federation or any other Province or authority;

(ii)a person who is or who has been employed on contact, or on work-charged basis, of who is or has been paid from contingencies;

(iii)a person who is or has been a ‘worker’ or ‘workman’ as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen’s Compensation Act, 1923(VIII of

PUNJAB EMPLOYEES EFFICIENCY, DISCIPLINE

AND ACCOUNTABILITY ACT, 2006

2(h) “employee” means a person-

(i)In the employment of a corporation, corporate body, autonomous body, authority, statutory body or any other organization or

institution set up, established, owned managed or controlled by the Government, by or under any law for the time being in force or a body or organization in which the Government has a controlling share or interest and includes the Chairman and the chief executive and the holder of any other officer therein; and

(ii)in Government service or who is a member of a civil service of the province or employee serving in any court or tribunal set up or established by the Government but does not include-

(aa)a Judge of the Lahore High Court or any court subordinate to that Court or (bb) an employee of Police.”

While examining these definitions it is clear that an employee can be a civil servant within the mischief of PEEDA Act but an employee who is not a civil servant can be proceeded against under the PEEDA Act but cannot be treated to be a Civil Servant within the contemplation of the PST Act. This Court is of the view that by virtue of Section 4 of the Act ibid, which postulates that only a civil servant can approach the Punjab Service Tribunal, employees like the petitioner who are neither civil servants nor are governed by statutory rules are debarred from approaching the Tribunal because of a rider placed in Section 4 of the Act ibid. Section 19 of the PEEDA Act has virtually become redundant and the remedy provided under that become illusionary for such employees who although are proceeded under the PEEDA Act yet do not

fall within the mischief of definition of a civil servant as contemplated in Section 2 of the PST Act. They were left remediless and on the mercy of the Departmental Authorities had the Honourable Supreme Court of Pakistan not come to their rescue through the judgment of Pakistan Defence Officers’ Housing Authority supra that has provided a sigh of relief for them by way of providing a remedy before this Court under the constitutional jurisdiction.

11.This Court has also examined the allegations levelled against the petitioner. He has been ascribed with a role of demanding and receiving illegal gratification in presence of other colleagues and that too on different occasions. What possible documentary evidence could have been before the competent authority to pass an order of dispensing with the inquiry. In the case in hand, a regular inquiry was required and an opportunity had to be provided to an employee to defend such allegations. As regards the contention that a departmental inquiry was conducted, needless to say that it at best can be termed to be an adverse circumstance against the petitioner but it cannot be equated with a regular inquiry under the PEEDA Act.

12.This Court tends to agree with the argument of the learned law officer that a regular inquiry can be dispensed with by the competent authority as it is his sole prerogative and decision. The parameters for dispensing with a regular inquiry have been provided in Section 5 of the PEEDA Act which is reproduced:

5.Initiation of proceedings--- (1) If on the basis of its own knowledge or information placed before it, the competent authority is of the opinion that there are sufficient grounds for initiating proceedings against an employee under this Act, it shall either--- (a) (i) (ii) (iii) (iv)

(b)get an inquiry conducted into the charge or charges against the accused, by appointing an inquiry officer or an inquiry committee, as the case may be, under section 10:

Provided that the competent authority shall dispense with the inquiry where---

(i)an employee has been convicted of any offence other than corruption by a Court of law under any law for the time being in force; or

(ii)an employee is or has been absent from duty without prior approval of leave:

Provided further that the competent authority may dispense with the inquiry where it is in possession of sufficient documentary evidence against the accused or, for reasons to be recorded in writing, he is satisfied that there is no need to hold an inquiry.

(Underlining is mine)

Apart from the above provision, and the case law cited by the learned law officer, I have also gone through the latest judgments rendered by the Hon’ble Supreme Court of

Pakistan reported as Deputy Inspector-General Investigation, Lahore Vs Asghar Ali (2012 PLC (C.S.)

787)and Deputy Inspector-General Investigation, Lahore Vs Asghar Ali (2011 SCMR 1389) wherein, while examining the question of dispensing with the inquiry, the Honourable Apex Court has held that in each and every case regular inquiry is not a sine qua non yet the competent authority has to be in possession of over whelming and irrefutable documentary evidence or else has strong and cogent reasons, which are to be recorded in writing showing its satisfaction that there is no need to hold a regular inquiry.

13.This Court is of the view that in the case in hand there is no such stipulation in the show cause notice and both the orders that there was overwhelming evidence available with the competent authority or the appellate authority which ipso facto could hold the petitioner guilty as charged and because of which regular inquiry could be dispensed with. The competent authority while initiating disciplinary proceedings has also not given reasons for dispensing with a regular inquiry but for a simple sentence that “the undersigned is of the opinion that it is not necessary to hold an inquiry into the matter......” This opinion of the competent authority by any stretch of

imagination could be treated to be sufficient reason for dispensing with an inquiry.

14.The Hon’ble Supreme Court of Pakistan in judgments reported as Deputy Inspector-General Investigation, Lahore Vs Asghar Ali (2012 PLC (C.S.)

787), Muhammad Haleem and another Vs General Manager (Operation) Pakistan Railways Headquarter, Lahore and others (2009 SCMR 339), M/s Best Buy Computers, Lahore and another Vs Director, Intelligence & Investigation(Customs & Excise), Lahore and others (PLJ 2009 SC 216) and Tariq Mehmood Vs District Police Officer, Toba Tek Singh and another (PLD 2008 SC 451) while examining the question of holding or dispensing with the inquiry has held that in cases where major penalty is to be awarded to an employee, it is mandatory that a regular inquiry should be conducted and the employee should be provided sufficient opportunity to defend himself, which even otherwise is inconsonance with the principals of natural justice and good governance .

15.For what has been discussed above, this Court is of the view that the impugned orders dated 19.10.2013 and 31.12.2013 are not sustainable in law and are therefore set-aside. Accordingly, petitioner is reinstated in service

and the intervening period shall be treated as leave of its kind due.

16.This is however clarified that the above finding will not preclude or restrain the respondent department from initiating fresh disciplinary proceedings against the petitioner after issuing a show cause notice and conducting a regular inquiry.

17.Petition is allowed in the above terms.

(FAISAL ZAMAN KHAN)

Rouf* JUDGE

Approved for Reporting