Raja Muhammad Hafeez vs Govt. Of Punjab

W.P. No.12091-2010

Muhammad Hafeez Raja GOP etc

19.09.2014 Mr Rai Bashir Ahmad, Advocate for petitioner. Syed Mubassher Hussain, Advocate for respondent.

Ms Samia Khalid Assistant Advocate General with Ahmed Hassan SO (Legal).

Through this petition, show cause cum personal hearing notice under Section 13(4) of the Punjab Employees Efficiency, Discipline & Accountability Act 2006 (PEEDA Act) has been assailed.

2.The backdrop of the present litigation is that through an order dated 16.12.2009, inquiry under PEEDA Act was initiated against the petitioner on the following charges:- i. That an FIR No.96-2009 was lodged in the Anti-corruption Establishment, Lahore by M/s Kashif Aslam, Rana Zohaib Arsal and Muhammad Aqeel Rana against him.

ii. That he allegedly received an amount of Rs.1,00,000/- each from Kashif Aslam, Rana Zuhaib and an amount of Rs.85,000/- from Mr. Muhammad Aqeel Rana as illegal gratification for their appointment as E&T Constable in the Excise & Taxation Department in the presence of Rana

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Muhamamd Ahsan,former Clerk of E&T Department and Mr. Tahir Aslam.

iii. That the complainants alleged that when the persons were not appointed and demand was raised by the complainants regarding return of money, he threatened them of dire consequences.

iv. That he allegedly misused his official position /authority which fall under the ambit of “misconduct”.

3.This order was subsequently substituted with the order dated 12.12.2009 due to transfer of the inquiry officer.

4.It is the case of the petitioner that no notice was ever sent to him in order to allow him to put forth his defense before the Inquiry Officer.

It only came to surface when he received impugned notice. Instead of filing a reply to show cause or to appear for personal hearing, petitioner approached this court through the present petition in which, on 08.06.2010, an interim order was passed that the inquiry proceedings may continue but no final order shall be passed.

5.Report & para-wise comments were submitted by the respondents in which, their stance was that upon issuance of order of inquiry, a war of letters started between the parties, which have

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been appended along with the comments. The resume of the letters sent by the petitioner was that he should be supplied the complete record for preparation of reply. The comments reveal that inspite of provision of documents, petitioner neither filed a reply nor appeared either before the inquiry officer or the competent authority. In this back drop, inquiry proceedings were completed and recommendations were made upon which impugned show cause notice was issued.

6.During the course of the proceedings before this court, on 20.10.2011, present petition was dismissed for non-prosecution. Thereafter, a fresh final show cause notice was issued to the petitioner on 05.11.2011 upon which, petitioner filed C.M.4179-2011 for the suspension of the same, however, the operation of the same was not suspended. Thereafter, a final order was passed against the petitioner on 01.12.2011, through which, major penalty of dismissal from service with immediate effect and a recovery of Rs.285,000/- was imposed upon the petitioner. A direction was also issued to service wing of S&GAD to request the Director General Anti- Corruption Establishment to finalize the case

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registered against the accused within the shortest possible time. In furtherance of this, C.M.No.4653-2011 was filed by the petitioner for suspension of the final order; however, the same was not suspended.

7.Thereafter, this Court vide order dated 02.02.2012 while allowing the application (C.M.No.4178-2011) restored the writ petition to its original number.

8.At the very outset, learned Law Officer has drawn the attention of this court towards order dated 07.07.2014 passed by this Court, through which, parties were directed to assist this Court on the question of maintainability of this petition.

9.Learned law officer has raised an objection to the effect that petitioner being a civil servant could not have approached this court in view of bar created under Article 212 of the Constitution of the Islamic Republic of Pakistan (Constitution). She further submits that even otherwise, a writ petition against a show cause notice is also not maintainable. She has placed reliance on 2002 SCMR 805 [Khalid Mahmood Ch and others vs Government of the Punjab through Secretary, Livestock and Dairy

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Development], 2008 PLC (CS) 129 [Muhammad Boota Sarwar vs Secretary and others] & 2009 PLC (CS) 139 [General Manager (H.R.), Southern Telecommunication vs Secretary Labour, Transport, Industries and Commerce Department, Government of Sindh and 2 others].

She has also canvassed that in view of the fact that a final order has been passed against the petitioner, he has a remedy under the law to avail, therefore, the present petition is not maintainable.

She has also emphasized that proper procedure was followed and petitioner was duly intimated about the inquiry against him, however, he desisted from filing reply to the show cause notices as well as appearing before the Inquiry Officer to participating in the inquiry proceedings inspite of the fact that he was well aware of the same.

10.Replying to the objections, learned counsel for the petitioner submits that previously on the same allegations, inquiries were initiated against the petitioner which were filed, therefore, the impugned show cause notice is hit by Article 13 of the Constitution. He further submits that the show cause notice is based on case FIR No.96 of

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2009 which was subsequently quashed, therefore, the departmental proceedings could not go on. He adds that petitioner was never intimated about the inquiry and he only came to know when the impugned show cause notice was issued to him. In the above perspective, he submits he has been condemned unheard, therefore, a writ petition is maintainable. To support his argument, he has placed reliance on PLD 2013 SC 195 [Syed Mahmood Akhtar Naqvi and others vs Federation of Pakistan and others],2012 SCMR 455 [Dr Akhtar Hassan Khan and others vs Federation of Pakistan and others],PLD 2002 SC 452 [Town Committee, Gakhar Mandi vs Authority under the Payment of Wages Act, Gujranwala and 57 others], 2007 SCMR 1357 [Collector of Customs (Valuation) and another vs Karachi Bulk Storage and Terminal Ltd], 2010 SCMR 1301 [Mir Ghias Khan and another vs Chief Executive/Minister Kashmir Affairs/Northern Areas Division, Islamabad and others], & PLD 1990 SC 1092 [Amin Ullah Khan & others vs The Federal Government of Pakistan through Secretary Ministry of Finance Islamabad & others ].

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11.Learned counsel has also addressed this court on the question that the final order passed against the petitioner on 01.12.2011 is not sustainable in the eye of law as an interim order was passed by this Court on 08.06.2010 which specifically prohibited the competent authority to pass a final order. Although the main writ petition was dismissed for non-prosecution yet upon its restoration on 02.02.2012, parties are relegated to the same position, upon which they were in when the writ petition was alive / pending, therefore, he shall be deemed to be in service as he was on the date when the interim order was passed. In order to explain the effect of restoration, learned counsel has placed reliance on 2012 YLR 2058 [M.A.

Shami vs Additional District Judge, Lahore and 3 others], 2010 YLR 2096 [Abdul Saboor and 2 others vs The State and 2 others], 1982 SCMR 33 [Muhammad Saleh vs Muhammad Shafi],PLD 1978 Lah 791 [Sher Muhammad vs The State and another],PLD 1978 Lah 790 [Muhammad Usman Khan and another vs Miraj Din and another] & AIR 1981 PATNA 103 [Mst Champa Devi and others vs Madho Sharan Singh and others]

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12.I have heard the learned counsel for the parties and have gone through the record.

13.For enforcement of terms & conditions of service of a civil servant, Constitution has provided a complete mechanism under Article 212 of the Constitution which is reproduced below:-

212.Administrative Courts and Tribunals. (1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may be Act [provide for the establishment of] one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of-

(a)matters relating to the terms and conditions of persons [who are or have been] in the service of Pakistan, including disciplinary matters;

(b)matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or

(c)matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.

(2)Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established

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under clause (1), no other Court shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends [and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal [other than an appeal pending before the Supreme Court] shall abate on such establishment]:

Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, [Majlis-e-Shoora (Parliament)] by law extends the provisions to such a Court or Tribunal.

(3)An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal.

This Article start with the words

“notwithstanding here in before contained” which makes it a NON OBSTATE Article and gives an over-riding effect to it over other provisions of the Constitution in so far as terms & conditions of service of a Civil Servant are concerned. Under this Article, different Tribunals are set up / constituted which cater for and adjudicate upon the disputes / questions regarding

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terms and conditions of service of a civil servant and by giving them EXCLUSIVE

JURISDICTION in such matters. This Article further elaborates that where Tribunals are set up under this provision, no other Court shall grant an injunction or make an order or entertain any proceedings regarding matters which are within the exclusive jurisdiction of these Tribunals.

14.On the contrary, this Court exercises jurisdiction under Article 199 of the Constitution.

The said Article, open with the words “subject to the Constitution”, therefore, by way of over- riding effect of Article 212 of the Constitution, this Court is restricted in exercise of jurisdiction in cases of terms & conditions of service of a civil servant with an exception, which has been created by virtue of Section 4(1)(b) of the Punjab Service Tribunals Act 1974 by virtue of which question of fitness of a civil servant to be promoted has been taken out of ambit of respective Tribunal therefore only in case of determination of FITNESS by the department regarding promotion, this Court can exercise jurisdiction.

15.It shall not be out of place to mention here that jurisdiction and judicial review are co-related.

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A court can only exercise the jurisdiction which it is invested with by virtue of which it exercises its power of judicial review. Where a court is not conferred with the jurisdiction and it exercises the same, it shall amount to militating the mandate of Constitution and the law. Reliance in this regard can be placed on PLD 1973 SC 49 [The State vs Zia ur Rehman and others], PLD 1973 SC 49 [The State vs Zia ur Rahman and others]& PLD 1983 SC 457 [Fauji Foundation and another vs Shamimur Rehman].

16.This concept has very aptly been described in a statement by Chief Justice Joha Marshall in Cohen vs Virginia [19 US (16 Wheat) 264] in the following words:-

“We have no more right to decline the exercise of jurisdiction which is given, then to usurp that which is not given. The one or the other would be treason to the

Constitution”.

(Borrowed from the judgment rendered by my Lord Syed Mansoor Ali Shah reported as 2010

PLC(CS) 51).

17.Under the PEEDA Act, a complete mechanism has been provided for initiation of

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disciplinary proceeding against an employee. Upon order of initiation of proceedings, a show cause notice is issued to an accused employee under Section 5 of the Act to defend himself and file a reply whereafter, when the inquiry proceedings culminate and recommendations are made under Section 13 of the Act, yet another show cause notice is issued to him to vindicate his position.

Thereafter, when the competent authority is satisfied that an employee has not been able to defend his case, a final order is passed. In case of an adverse order, the employee if he is aggrieved of the same, can challenge the same under Section 16 of the Act before the Departmental Authorities as the case may be and in case within 60 days, his appeal is not decided, he can approach the Punjab Service Tribunal under Section 19 of the Act within the next 30 days or else he can wait for the final order and within 30 days of the communication of the final order, he can approach the Tribunal. This shall not be out of place to mention here that the legislature in its wisdom did not provide for a remedy against the interregnum proceedings/interim orders initiated / passed under the Act and only a final order is made

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challengeable. This court does not figure out anywhere in the hierarchy to look into such orders.

Had this court been invested with the jurisdiction, either by the Constitution or in the frame work of service laws, the same could have been categorically mentioned. This question has been sufficiently deliberated upon by a Full Bench of this Court in judgment reported as 2002 PLC (CS) 442 [Muzaffar Hussain vs The Superintendent of Police, District Sialkot], operative part of which is reproduced for convenience:-

According to section 15 of the Punjab Civil Servants Act, 1974 and section 16 of the Civil Servants Act, 1973 a civil servant shall be liable to disciplinary action and penalties in accordance with the prescribed procedure. Thus, disciplinary action and penalties in accordance with the prescribed procedure. Thus, disciplinary action against a civil servant is part of his terms and conditions of service as envisaged in Article 212 (1)(a) of the Constitution. The issue raised in all these petitions is germane to the terms and conditions of the service of the petitioners and any grievance with regard thereto will attract the ouster clause of Article 212 of the Constitution. The contention that in the absence of a final order the respective Service Tribunals will not have any jurisdiction in the matter has not impressed us. Initiation of disciplinary proceedings is a preliminary steps towards passing of a final order.

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In accordance with the provisions of Ordinance No.IV of 2000 and Ordinance No.XVII of 2000 it is only a final order which is appealable. The Legislature, in its wisdom, clearly excluded challenge to an interim order before the Punjab Service Tribunal. We are of the view that if a final order cannot be interfered by this Court, interference in an interim order will manifestly frustrate the object of law. We may reiterate that while interpreting the provisions of a statute no such construction should be placed which might run counter to the object of the law or to render a provision of a statute redundant.

It is further held that:-

The question then came up for consideration before the Honourable Supreme Court in the case of Abdul Wahab (supra). The writ petition of a civil servant was directed against an interim order which was dismissed and that the matter was taken to the Supreme Court. The petition was dismissed with the following observations:- “But the order impugned the High Court vis-à-vis the stage which it has been passed is not appealable. The petitioner would have to wait till such an order is passed against him which is appealable before the Tribunal.”

18.In view of the above, this by no stretch of imagination can give way to the argument that a civil servant is left remediless therefore he can

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approach this court in constitutional jurisdiction against an interim order. In case of such exercise of jurisdiction by this court, it will manifestly frustrate the intention of law and retard the total process provided under the law.

19.Be that as it may, it has been held by the Honourable Apex Court as well as this Court that disciplinary proceedings are part of terms & conditions of service of a civil servant and for adjudication upon them, respective Service Tribunal is the forum to be approached. The ouster of jurisdiction under Article 212 of the Constitution has also been discussed in various pronouncements of the superior court; reference can be made to 2007 SCMR 54 [Peer Muhammad vs Government of Balochistan through Chief Secretary an others],1998 SCMR 2129 [Asadullah Rashid vs Haji Muhammad Muneer and others],1998 SCMR 2280 [Khalid Mahmood Wattoo vs Government of Punjab and others],PLD 1981 Karachi 750 [Khalil ur Rehman and others vs Government of Pakistan and others] & 2010 PLC (CS) 51 [Dr. Ghazanffarullah and 2 others vs Secretary Health, Government of the Punjab, Lahore and 6 others]

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20.It is also settled proposition of law that against a show cause notice, a writ petition is not maintainable. The Hon’ble Supreme Court of Pakistan as well as this Court in judgment reported as 2002 PLC CS 442 [Muzaffar Hussain vs The Superintendent of Police, District Sialkot], 2011 PLC (C.S.) 803 [Naweed Akhtar Cheema vs Chairman, TEVETA and others],2002 SCMR 805 [Khalid Mahmood Ch and others vs Government of the Punjab through Secretary, Livestock and Dairy Development, 2002 SCMR 1017

[Muhammad Amin vs The State]and 1998 PLC

(CS)607 [Nazir Ahmad Shaikh vs Government of Sindh through Secretary, Services and General Administration Department (S&GAD) Sindh, Karachi and another] have held that a show notice is by no means could be said to be final adjudication. While a show cause notice is issued, one gets sufficient opportunity to defend himself by filing a reply thereto and in case, an inquiry is initiated, he can participate and defend himself. As mentioned above under the PEEDA Act, (2) opportunities to show cause have been provided therefore challenging a show cause at its inception will amount to stifling with the inquiry

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proceedings and any interference by this court will destroy the complete process.

21.In the case in hand, petitioner has categorically alleged that he was not aware of the inquiry proceedings initiated against him and therefore he could not participate in the same whereas the letters appended along with the report and parawise comments would signify that petitioner was always aware of the proceedings but tried to delay the same by writing letter for record.

This is a clear index to the fact that petitioner in order to procure a favorable order from this Court deliberately concealed this fact and managed to get a prohibitory order, in a petition, which was not maintainable and upon which he is trying to thrive upon.

22.As regards the question of restoration of status quo ante, it is indeed the mandate of law that if a prohibitory order has been passed by a Court and the main petition is dismissed for non- prosecution and is subsequently restored, the parties shall be relegated to the same position which they were at when the petition was dismissed. The case in hand has peculiar circumstances; after the dismissal of the writ

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petition when final show cause notice was issued to the petitioner on 05.11.2011 he filed C.M.4179- 2011 for the suspension of the same, however, the operation of the notice was not suspended.

Thereafter when the final order was passed by the Departmental Authorities on 01.12.2011, an attempt was made by the petitioner through C.M.

4653-2011 for suspension of the said order but the same was also not suspended. It shall not be out of place to mention here that inspite of the fact that final show cause notice was in knowledge of the petitioner, he instead of appearing before the competent authority and putting forth his case, preferred to approach this court for challenging the same. As discussed in the previous paragraph, as the petition in hand was incompetent and this Court was approached for exercise of jurisdiction not vested in it, petitioner managed to get a prohibitory order. In view of the fact that the prohibitory order was procured in an incompetent petition, petitioner cannot be relegated to the previous position. The judgments cited by him are distinguishable and will not come to his rescue in the attending circumstances.

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23.In view of the fact that when the final order under the PEEDA Act was passed against him and the same was not suspended by this Court, the litigation before this court became insignificant. The only remedy available to him was to invoke section 16 of the PEEDA Act for redress of his grievance. When this court declined to suspend the departmental order on the applications of the petitioners, how would restoration relegate the parties to the previous position. Petitioner for a considerable period of time reaped the benefit of prohibitory order, effect of which came to an end with the dismissal of the main petition. As the subsequent orders were not suspended by the Court, the previous order in the changed circumstances lost its efficacy. In case, interpretation given by the learned counsel for the petitioner is accepted, it will bring us to an anomalous situation. The Departmental Authorities were well within their rights to proceed against the petitioner after the dismissal of the writ petition as no prohibitory order. In case, interpretation given by the learned counsel for the petitioner is accepted, it will bring us to an anomalous situation. The Departmental Authorities were well

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within their rights to proceed against the petitioner after the dismissal of the writ petition as no prohibitory order was holding the field. They proceeded under the law and passed an order. For the above reasons, parties cannot be relegated to their previous position.

24.The argument that FIR upon which departmental proceedings were initiated has been quashed, therefore, the disciplinary proceedings cannot sustain is mis-conceived. The Hon’ble Supreme Court of Pakistan in judgments reported as 2011 SCMR 484 [Nazir Ahmed vs Capital City Police Officer, Lahore and another] & 2011 SCMR 534 [Muhammad Iqbal vs District Police Officer, Sahiwal and another] has held that departmental proceedings and criminal proceedings are independent of each other and will not have any over-riding effect, therefore, even if the FIR was quashed, departmental proceedings were rightly initiated and culminated. It shall not be out of place to mention here that FIR was quashed in 2014 whereas the final order in departmental proceedings was passed in 2011.

25.As discussed above, writ petition was not maintainable before this Court, therefore, any

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order passed therein, will also be of no effect. In order to avoid such situations, the Honorable Supreme Court of Pakistan in judgment reported as 2011 SCMR 592 [Government of Sindh through Secretary Education and Literacy Department and others vs Nizakat Ali and others] has emphasized that the High Court while entertaining petitions should first determine the question of jurisdiction and then pass an order.

26.Even otherwise, reading Article 212 of the Constitution with section 23 of the PEEDA Act, no prohibitory order could have been passed by this court of which petitioner can get benefit of, because of restoration.

27.The judgments cited by the learned counsel for the petitioner are of no avail as the one regarding maintainability of writ petition are general in nature and do not look into the effect of ouster of jurisdiction under Article 212 qua terms and conditions of a civil servant. Similarly the judgments taking note of restoration of a petition and the effects of previous orders are distinguishable and do not examine the effect of a prohibitory order which was passed in incompetent proceedings or without jurisdiction.

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28.In view of what has been discussed above, this writ petition is not maintainable and the same is, therefore, dismissed.

(FAISAL ZAMAN KHAN)

JUDGE

APPROVED FOR REPORTING

Irfan*

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