Abdul Razzaq vs Secretary Agriculture etc.

Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT

Multan Bench, Multan Judicial Department WP No. 6849 of 2017

Abdul Razzaq versus Secretary Agriculture etc

JUDGMENT

Date of 09.06.2017 hearing:

Petitioner by: Mr. Muhammad Ashraf Sindhu, Advocate. Respondents by Mr. Muhammad Javaid Saeed Pirzada, AAG.

MUZAMIL AKHTAR SHABBIR, J:Through this

constitutional petition, the petitioner has called in question orders dated 09.03.2017 and 30.12.2016 passed by respondent Nos. 1 and 2 whereby the petitioner was compulsory retired from service.

2.The brief facts of the case are that the petitioner joined Agriculture Department as a Sub-Inspector Market Committee in BS-7 on 13.05.1989 and performed his duties in Market Committee, Vehari, Mailsi, Muzaffagarh and Dunyapur for last 25 years. The petitioner was promoted in BS-11 as Inspector, Market Committee, Dunyapur and additional charge of Secretary Market Committee, Dunyapur

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was also handed over to him. On 14.03.2016 an inquiry was initiated against the petitioner and one Muhammad Nawaz SI Market Committee, Dunyapur by respondent No.2, Director Agriculture (Economics and Marketing), Punjab, Lahore on the charge of misconduct, inefficiency, negligence and corruption. The respondent No.2 ordered initiating of disciplinary proceedings against the petitioner and afore referred Muhammad Nawaz under Section 3 of the Punjab Employees Efficiency Discipline and Accountability Act, 2006 (“PEEDA Act”) wherein Khalid Mehmood Bhatti, EADA, Sahiwal was appointed as inquiry officer. On application of Muhammad Nawaz, the inquiry was changed and entrusted to Asif Raza, respondent No.3. The petitioner and Muhammad Nawaz SI again requested for change of inquiry officer but the request was declined vide order dated 05.05.2016 passed by respondent No.2. The respondent No.3 submitted his inquiry report on 17.08.2016 and recommended to impose major penalty of compulsory retirement as prescribed under Section 4(b)(iv) of PEEDA Act alongwith recovery of Rs.350,117/- of Ramadan Package and also recommended to impose minor penalty of withholding of one increment for a period of two years as prescribed under Section 4(a)(ii) of PEEDA Act against Muhammad Nawaz.

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On 30.08.2016, a show cause notice was issued to the petitioner under Section 13(4) of the PEEDA Act. On the above said recommendations of respondent No.3, respondent No.2, competent authority imposed the recommended penalty.

Being aggrieved of the impugned order dated 30.12.2016, the petitioner preferred an appeal before respondent No.1 which was dismissed on 09.03.2017. Both the orders dated 09.03.2017 and 30.12.2016 are under challenge in this constitutional petition.

3.The learned counsel for the petitioner has argued that the inquiry conducted by respondent No.3 was not a proper inquiry. The petitioner had objected to the respondent No.3 being inquiry officer and requested the respondent No.2 to change the said inquiry officer as the said officer was prejudiced against the petitioner and further the major penalty of compulsory retirement from service was a harsh one. He further submits that throughout his career, the petitioner had been performing duty efficiently, diligently and had unblemished more than 25 years of service record.

4.Conversely, the learned AAG on behalf of the respondents has argued that charges were proved against the petitioner and major penalty for compulsory retirement alongwith recovery of Rs.3,50,117/- had rightly been ordered

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against the petitioner and the petitioner failed to defend the charges on merit and in view of gravity of charges levelled against him, the competent authority was justified in imposing major penalty against him. The learned AAG has also challenged the maintainability of the Constitutional petition.

5.The question of maintainability of constitutional petition by an employee of Market Committee came up for hearing in the case of Muhammad Amin and another versus Government of Punjab and others (2015 SCMR 706) wherein the Court held that constitutional petition by an employee of market committee was maintainable. The relevant portion is reproduced below:

“6. Section 2(h)(i) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, provides that “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 Chief Executive and the holder of any other office therein”. This definition covers the petitioners who are employees, of Market Committee, which does not have independent statutory service Rules.

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7.Section 19 of the Act of 2006 which has been made applicable by virtue of section 2(h)(i) of the Act of 2006 read with section 35 of the Ordinance, regulates the services of the petitioners. Section 19 of the Act of 2006 which appears to have been amended subsequently clearly draws a line between the Civil Servants and the employees defined under section 2(h)(i) of the Act of 2006. The Civil Servants who are proceeded against under the provision of the Act of 2006 have to approach the Punjab Services Tribunal against a final order passed by the Departmental Authorities. The other employees who are covered under section 2(h)(i) of the Act of 2006, if aggrieved by a final order passed by the Departmental Authorities under section 16 or 17 of the Act of 2006, can seek redressal of their grievances before the High Court.”

Relying upon the principles laid down in the Judgment of the Supreme Court in Muhammad Amin case (supra), the objection by the learned AAG regarding the maintainability of the Constitutional Petition is overruled and it is held that this Constitutional petition is maintainable.

6.The charges against the petitioner are that he failed to perform his duties under Rule 69 of Punjab Agricultural Produce Markets (General) Rules, 1979 (“Rules”), which are that he did not advice the Chairman Market Committee legally to not encash the TDRs rather he acted as rubber stamp of Chairman and encashed TDRs’ amounting to

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Rs.10,00,000/- causing a loss of Rs. 6699/- as profit of Market Committee per month. Secondly, he transferred pension amount of Rs.10,00,000/- in general fund in violation of the Director Agriculture (E&M) Punjab Instruction vide No.28004/E&M/14 dated 30.04.2015 and acted as rubber stamp of Chairman Market Committee and failed to perform his duties. Thirdly, he embezzled Rs.3,50,117/- of Ramadan Package for the year 2015-2016 and failed to return the same to the District Administration. He got passed the establishment bills from Chairman Market Committee without deducting 40% contribution towards pension fund w.e.f. April 2015 to December 2015 in violation of Rules. He failed to complete the record of Market Committee, Dunyapur w.e.f.

July 2015 to December 2015. He failed to recover rental amount from rentees of property of Market Committee w.e.f.

April-2015 to June-2015 and made Market Committee Dunyapur finance wise weaker as previously a huge amount was available in general fund account of Market Committee which has since been exhausted and had failed to perform his duties as provided under Rule 69 of the Rules and committed negligence, inefficiency, corruption and misconduct.

7.The learned counsel for the petitioner has argued that the petitioner did not join the inquiry proceedings as the

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inquiry officer was prejudiced against him and he has been condemned unheard. An application was moved by the petitioner for change of inquiry before respondent No.2 on 27.04.2016 which request was declined by the said respondent on 05.05.2016. The petitioner did not further challenge the said order wherein he was directed to defend himself in his own interest before inquiry officer. The petitioner should have joined inquiry proceedings but he has neither challenged the said order nor joined the inquiry proceedings, thereby acquiesced into the proceedings and at this stage, the petitioner cannot be allowed to state that he was condemned unheard. Reliance in this behalf is placed on the case of Gen.

(R.) Parvez Musharraf versus Nadeem Ahmed (Advocate) and another (PLD 2014 SC 585), wherein the Supreme Court of Pakistan has held as under:

“24. The principle of audi alteram partem or that nobody should be condemned unheard is a time honoured principle of natural justice. However, facts of each case have to be considered before delay can be condoned and this principle cannot be made an inflexible rule to give license to someone who knowingly fully well that a lis is pending against him or that a judgment has been passed against him refuses to appear and when the judgment is passed fails to challenge it in time....

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25.Even otherwise, it has never been the case of the petitioner, not even in the body of the petition that he was not aware of the pendency of proceedings which culminated in the judgment of this Court in Sindh High Court Bar (Supra) review of which is sought.”

8.As per Rule 14, the Chairman is the Chief Executive Officer of the Market Committee. The Chairman, Market Committee had been managing the affairs of the committee and the petitioner having additional charge of the Secretary was working with him. As per the allegation No.1, the Chairman got encashed Rs.10,00,000/- causing a loss of Rs.6699/- as profit of Market Committee per month. The second allegation relates to transferring of pension amount of Rs.10,00,000/- by the Chairman. The allegation against the petitioner was that he did not properly advise the Chairman in the afore-referred transactions. The role of the petitioner was only advisory in nature in the afore-referred transaction.

Although the rule 69(1) of the Rules provides that Secretary shall be the executive officer of the committee, the rule 69(2) provides that the secretary shall work under the control of the Chairman market committee. There is nothing on the record to show what advice was rendered by the petitioner and the same was accepted or not. The ultimate decision was to be taken by the committee and the Chairman as the Chief Executive

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Officer. Most of the afore-referred allegations relate to the conduct of Chairman of the Market Committee. Even otherwise, the advice of the petitioner was not binding upon the Chairman. Besides it was well within the knowledge of the Chairman and the Market Committee that the petitioner was only holding the acting charge. It has not been mentioned anywhere that what action was taken against the Chairman for the afore-referred acts who was senior officer to the petitioner.

9.Some other charges include getting passed of bills from Chairman Market Committee without deducting 40% contribution towards pension fund and failure to supervise recovery by Market Committee Staff of an amount of Rs.

84,000/- from parking stand, failure to recover rent for three months and making the position of the Market Committee as financially weaker. In the afore-referred charges, it is not the case of the respondents that the petitioner has pocked the afore-referred amounts or embezzled the same. As the petitioner was holding the additional charge and was not regularly working as a secretary, it is a possibility that the petitioner overlooked the afore-mentioned duties due to not being aware of such responsibilities. The said allegations may amount to negligence on the part of the petitioner in

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performance of duties but do not amount to corruption or misconduct making the petitioner liable to major penalty.

10.It is in the inquiry report that an amount of Rs.

3,50,117/- remained un-utilized during the end of holy month of Ramadan out of the provided amount of Rs.6,00,000/-.

The unspent amount was required to be returned to District Coordination Officer, Lodhran alongwith vouched account of utilized funds amounting to Rs.2,49,883/- The official / petitioner neither submitted the vouched account of actual expenditure nor refunded the unspent amount and embezzled the same fraudulently. The allegation against the petitioner is that an amount of Rs.3,50,117/- was not refunded by him to the Market Committee and the said amount is still recoverable from the petitioner. The concerned authorities have already passed an order for recovery of the said amount from the petitioner. Nothing is on the record to prove that the amount was embezzled by the petitioner for his own benefit. Besides, there is no allegation that any other amount was personally utilized by the petitioner, therefore, the penalty of compulsory retirement from service does not appear to be commensurate with the allegations against the petitioner. Reliance in this regard is placed on Saif Ullah vs. Divisional Superintendent, Postal Services, Faisalabad and another (2016 SCMR 1430)

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and Commissioner, Punjab Employees’ Social Security Institution vs. Jamal Butt and 3 others (2004 SCMR 186).

11.Even if the petitioner had not joined the inquiry proceedings, the authority concerned should have kept in mind the actual loss or damage caused by the petitioner to the department. Moreover, the petitioner has more than 25 years of service to his credit and no other allegation has been raised or proved against him. It has been, in the circumstances, observed that case of the appellant cannot be considered under fraud, forgery or embezzlement rather at the most it could be said that he has not accounted for the remaining amount of Rs.3,50,117/- and was inefficient while performing his duties.

Therefore, keeping in view that the penalty is not commensurate with the actual charge proved against the petitioner and benefit received by him, and the lapse on the part of the petitioner does not entail major penalty of compulsory retirement, the orders passed by both the respondent Nos. 1 and 2 to the extent of compulsorily retirement of the petitioner are set-aside and penalty of compulsory retirement of the appellant is converted into minor penalty of withdrawing of one increment for a period of three years as prescribed under Section 4(a)(ii) of PEEDA Act from the date when he was compulsory retired. The

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department may however recover the amount of Rs. 350,117/- from the petitioner by providing him an opportunity to account from the same if the said amount is claimed by the petitioner not to be due and outstanding against him. The respondent department is directed to reinstate the appellant into service immediately with back benefits.

12.With these observations, this petition is allowed.

(Muzamil Akhtar Shabir) Naveed* Judge