Abu Zar Ghaffary . Vs Province of the Punjab etc.

Stereo. HCJDA.38.

Judgment Sheet.

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT.

Case No. W.P.No.27688/2023

Abuzar Ghaffary Versus

Province of the Punjab etc

JUDGMENT

Date of hearing 17.6.2025

Petitioner by M/S Aurangzeb Tarar and Ch. Muhammad Asif Shahzad, Advocates.

Respondents by Ms. Shehzeen Abdullah, Additional Advocate General, Punjab alongwith Syed Mohsin Hassan Raza, Law Officer, Rescue Abid Aziz Sheikh, J.-. This Constitutional Petition is directed against the orders dated 05.3.2022 and 15.3.2023 (impugned orders), whereby petitioner was removed from service on account of willful absence from duty and his representation was also declined.

2.Relevant facts are that petitioner was working as Computer Operator with the Punjab Emergency Services Department (Department). However, on account of absence from duty since 01.1.2022, petitioner was removed

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from service under section 4(1)(b)(v) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (PEEDA) after dispensing with the regular inquiry.

The departmental appeal of the petitioner was also declined, hence this Constitutional Petition.

3.Learned counsel for the petitioner submits that under section 7(f)(ii) of PEEDA, where charge of absence of duty is less than one year, major penalty including removal or dismissal from service cannot be imposed. He placed reliance on Muhammad Nasir Ismail vs. Govt. of Punjab etc (2025 SCMR 708). Further submits that the petitioner was condemned unheard as no show cause notice was issued or received by the petitioner. Adds that due to some family dispute, the petitioner filed written application for grant of 90 days leave on 30.12.2021 with respondent No.3, who granted him leave which is evident from the fact that in the duty roster of January, 2022, the petitioner name was not included/indicated.

4.Learned Law Officer on the other hand submits that petitioner was lawfully removed from service due to absence from duty as well as on account of his previous conduct. She placed reliance on Fayyaz Hussain vs.

Executive District Officer etc (2021 SCMR 1358) and

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National Bank of Pakistan etc vs. Zahoor Ahmed Mangal

(2021 SCMR 144).

5.Arguments heard. Admittedly, the regular inquiry against the petitioner was dispensed with under section 5(1) of the PEEDA and petitioner was removed from service under section 4(1)(b)(v) of PEEDA for being absent from duty from 01.1.2022 till 05.3.2022 (63 days). Where the regular inquiry is dispensed with, the procedure prescribed under section 7 of PEEDA is to be followed. The said provision of section 7(f)(ii) of PEEDA is relevant to the controversy in hand, which is reproduced hereunder:-

7.Procedure where inquiry is dispensed with.- If the competent authority decides that it is not necessary to hold an inquiry against the accused under section 5, it shall-....................

(f)impose any one or more penalties mentioned in section 4, by an order in writing, if the charge or charges are proved against the accused:- Provided that_

(ii)where charge of absence from duty for a period of more than one year is proved against the accused, the penalty of compulsory retirement or removal or dismissal from service shall be imposed upon the accused.

The above provision is self explanatory i.e. where a regular inquiry is dispensed with and the charge/charges are proved against the accused, any one or more of the penalties

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mentioned in section 4 of PEEDA can be imposed.

However, where charge of absence from duty for a period of more than one year is proved, the penalty of compulsory retirement or removal or dismissal from service shall be imposed upon the accused. This provision manifest that where absence from duty is more than one year and same is proved, the Authority has no option but to impose penalty of compulsory retirement or removal or dismissal from service but when the absence from duty is less than one year, the Authority has “discretion” to impose any one or more penalties prescribed under section 4 of the PEEDA.

Nonetheless the exercise of such discretion must be reasoned, supported by cogent justification and same should be in accordance with principles of proportionality and administrative fairness.

6.Perusal of impugned order dated 05.3.2022 shows that after dispensed with regular inquiry, the petitioner has been imposed major penalty of removal from service notwithstanding the fact that his absence from duty is only 63 days. No reasons or justification are recorded to impose extreme and the maximum penalty of removal from service when the Authority could also impose any one or more of the penalties under Section 4 of the PEEDA, considering

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the principles of proportionality. No doubt, in the impugned order dated 05.3.2022, the petitioner’s previous service record and penalties have been referred to, however, the said record was neither confronted to the petitioner (against whom, regular inquiry was already dispensed with due to allegation of mere absence from duty) nor petitioner was charge sheeted in show cause notice on account of poor previous service record. Further when petitioner was already penalized previously, his current removal from service order on the basis of said previous penalties will amount to double jeopardy.

7.It is relevant to note that the provision of section 13(5)(ii) of the PEEDA is pari materia of section 7(f)(ii) of PEEDA except the former pertain to regular inquiry and later deals with procedure when inquiry is dispended with.

The Hon’ble Supreme Court in case of Muhammad Nasir Ismail supra interpreted the said provision of section 13(5)(ii) of PEEDA in the following terms:- “9. What is therefore the effect of the "proviso" on the general discretion of the competent authority to impose any one or more of penalties under Section 4, including in cases of absence from duty for less than a year? A "proviso" serves to qualify, restrict, or except a particular case from the generality of the main provision.3 Ordinarily, a proviso limits the scope of the principal provision.4 The second proviso to Section 13(5)(ii) restricts discretion of the competent authority when imposing a penalty in

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cases of prolonged absence (exceeding one year). In such cases, the competent authority must impose one of the three major penalties i.e., compulsory retirement or removal or dismal from service-- whichever it deems fit--if the charge stands proved against the officer. The proviso restricts and limits the general discretion of the competent authority under Section 13(5)(ii) only in case where there is a charge of absence from duty for a period of more than one year. The proviso has no application in other cases including cases of absence from duty for a period of less than one year, where the competent authority continues to enjoy its general discretion under Section 13(5)(ii) to impose any one or more of the penalties under Section 4 of PEEDA Act. Nonetheless, the exercise of such discretion must be structured, reasoned, and supported by cogent justification in accordance with the principles of proportionality and administrative fairness.

10.We, therefore, concur with the interpretation rendered by the High Court that the second proviso to Section 13(5)(ii) does not restrict the authority of the competent authority in imposing any of the three major penalties, even where the period of absence from duty is less than one year. However, where the competent authority elects to impose a major penalty in cases of absence from duty for less than a year, it must do so in accordance with the principle of proportionality”.

In the aforesaid judgment, the Supreme Court held that major penalty can be imposed where absence of duty is less than one year, however, Competent Authority must do so in accordance with the principles of proportionality and structured discretion. As already discussed above, no reasons are recorded to impose major penalty of removal from service against the petitioner when admittedly absence from duty is less than one year, hence discretion has not been exercised by respondents in structured manner

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keeping in view the principles of proportionality. The case law relied upon by respondent’s side is on different facts and does not address the legal proposition raised in this petition.

8.For what has been discussed above, this petition is allowed and impugned orders are set aside. Consequently, the petitioner is reinstated into service against the post of Computer Operator. However, the petitioner’s reinstatement shall be subject to a fresh determination by the competent Authority regarding the imposing of penalty against the petitioner under section 4 of PEEDA, which must commensurate with the gravity of misconduct and after giving cogent reasons. Regarding back benefits, as services of petitioner has been reinstated due to defects in the proceedings and not on merits, therefore, petitioner will not be entitled for back benefits as per law settled by Supreme Court in Muhammad Sharif and others vs.

Inspector General of Police, Punjab, Lahore and others

(2021 SCMR 962).

(ABID AZIZ SHEIKH)

JUDGE.

Approved for Reporting.

JUDGE.

Rizwan