Mohammad Shafique vs Chief Secretary, Govt. Of Punjab etc.

Stereo. H C J D A 38 Judgment Sheet

LAHORE HIGH COURT,

BAHAWALPUR BENCH BAHAWALPUR

JUDICIAL DEPARTMENT

Writ Petition No.7108 of 2022

Muhammad Shafique Vs. Chief Secretary, Government of the Punjab, Lahore and 4 others etc.

JUDGMENT

Date of Hearing 29.05.2025 Petitioner by M/s Muhammad Yaseen Ataal, Muhammad Abdul Saboor, Khaled Hazeez and Shoaib Iqbal Advocates.

Respondents Mr. Anwaar Hussain, and Rai Mazhar No.1 to 3 by Hussain Kharal, Assistant Advocates General.

Respondents Mr. Aamir Farooq Yazdani, Advocate. No. 4 & 5.

MALIK MUHAMMAD AWAIS KHALID, J. Through

instant Constitutional petition filed under Article 199 of the Islamic Republic of Pakistan, 1973, (‘the Constitution’) the petitioner has called-in-question the vires of orders dated 19.03.2020 and 17.05.2022.

2.Succinctly, the facts of the case are that the petitioner joined the service as Taxation Officer/ Chief Officer BPS-11 in 1990 and thereafter was promoted as Tehsil Municipal Officer TMA Liaqatpur District Rahim Yar Khan. The petitioner was served a show cause notice under the Punjab Employees (Efficiency, Discipline & Accountability) Act, 2006 (‘the Act’) and thereafter was penalized with major penalty of ‘Removal from Service’ on 05.12.2014 without holding regular inquiry. Appeal filed by the petitioner against

the aforesaid order was also dismissed. The petitioner filed Writ Petition No.34237 of 2015 before this Court which was accepted vide judgment dated 20.4.2017 and case was remanded to the authority to proceed against the petitioner after holding regular inquiry strictly in accordance with law and show cause notice under Section 13(4) of the Act was issued to the petitioner and after conducting regular inquiry, the Inquiry Committee recommended major penalty of forfeiture of past service of five years and minor penalty of withholding of increment for two years on 16.4.2018.

Thereafter a show-cause notice under section 13(4) of the Act was served on 17.4.2019 for enhancement of penalty and was penalized with major penalty of ‘dismissal from service’ vide order dated 19.3.2020 (‘impugned order’) passed by respondent No.3. Feeling aggrieved, petitioner preferred departmental appeal before respondent No.1 which was rejected vide order dated 17.5.2022/impugned appellate order. Validity and authenticity of the above-mentioned impugned orders have been called-in-question through an instant Constitutional petition.

3.Learned counsel for the petitioner submits that the petitioner is innocent as per petition that during whole inquiry proceedings, the inquiry committee failed to find the involvement of the petitioner in any serious kind of offence such as corruption, embezzlement etc., but the respondents penalized the petitioner with major penalty of dismissal from service even beyond the recommendations of the inquiry

committee. Submits that impugned order passed by the competent authority whereby the petitioner was dismissed from service while relying on the show-cause notice dated 17.04.2019 has been passed without any lawful justification without adopting due process; that under section 13(4) of the Act, no power has been given to the competent authority to issue show-cause notice for enhancement of penalty. Relies on the judgment titled Ghulam Mustafa Vs. Secretary LG& CD, etc.(W.P. No.9603 of 2015). Further submits that joint inquiry against five accused with the same allegations has been conducted; that there is discrimination that out of the five accused persons, two have been reinstated in service and appellate order dated 17.5.2022 is against the law.

4.Learned Assistant Advocate General and learned counsel for respondent-department submits that the impugned orders have been passed quite in accordance with law.

5.Arguments heard. Record perused.

6.Perusal of the record reveals that the earlier major penalty of ‘Removal from Service’ was imposed on the petitioner in terms of section 4(1)(b)(vi) of the Act vide order dated 05.12.2014. Appeal filed by the petitioner against the said order was also dismissed vide order dated 14.10.2015 then he filed Writ Petition No.34237/2015 against these orders before this Court and vide order dated 20.4.2017 the case was remanded to Authority with the direction to proceed against the petitioner after holding regular inquiry. In compliance of

order of this Court dated 20.4.2017, regular inquiry was conducted and Inquiry Committee after conducting inquiry submitted report dated 16.04.2018 and recommended to impose a major penalty and minor penalty simultaneously which is reproduced as under:-

“Forfeiture of past service of five years under Section 4(1)(b)(iii) and a major penalty of withholding of increment for two years under section 4(1)(a)(ii) of PEEDA Act, 2006.”

Afterwards a show cause notice dated 12.11.2018 under Section 13(4) of the Act was served upon the petitioner with above penalty recommended by Inquiry Committee later another show cause notice dated 17.4.2019 was served upon the petitioner for enhancement of penalty recommended by the Inquiry Committee being not in accordance with gravity of the guilt proved against the petitioner and the case was placed before competent authority/respondent No.3 in its meeting 31.01.2020 and respondent No.3 being competent authority decided to impose major penalty of “Dismissal from Service” vide impugned order dated 19.3.2020. The petitioner preferred departmental appeal against the impugned order which was dismissed vide impugned appellate order dated 17.5.2022 by respondent No.1.

7.The procedure to be followed by the inquiry officer or inquiry committee has been provided under Section 10 of the Act which is reproduced as under:

10.Procedure to be followed by inquiry officer or inquiry committee.–

(1)On receipt of reply of the accused or on expiry of the stipulated period if no reply is received from

the accused, the inquiry officer or the inquiry committee, as the case may be, shall inquire into the charges and may examine such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessary and where any witness is produced by one party, the other party shall be entitled to cross examine such witness.

(2)If the accused fails to furnish his reply within the stipulated period, or extended period, if any, the inquiry officer or the inquiry committee, as the case may be, shall proceed with the inquiry ex parte.

(3)The inquiry officer or the inquiry committee, as the case may be, shall hear the case from day to day and no adjournment shall be given except for reasons to be recorded in writing, in which case it shall not be of more than seven days.

(4)Where the inquiry officer or the inquiry committee, as the case may be, is satisfied that the accused is hampering or attempting to hamper the progress of the inquiry, he or it shall administer a warning and if, thereafter, he or it is satisfied that the accused is acting in disregard to the warning, he or it shall record a finding to that effect and proceed to complete the inquiry in such manner as may be deemed expedient in the interest of justice.

(5)If the accused absents himself from the inquiry on medical grounds, he shall be deemed to have hampered or attempted to hamper the progress of the inquiry, unless medical leave, applied for by him, is sanctioned on the recommendation of a Medical Board; provided that the competent authority may, in its discretion, sanction medical leave up to seven days without recommendation of the Medical Board.

(6)The inquiry officer or the inquiry committee, as the case may be, shall submit his or its report, containing clear findings as to whether the charge or charges have been proved or not and specific recommendations regarding exoneration or, imposition of penalty or penalties, to the competent authority within sixty days of the initiation of inquiry:

After following the above proceedings inquiry, report containing recommendations from the Inquiry Committee referred to the competent authority/ respondent No.3 who has the power to pass final order by observing Section 13 of the Act which has mandatory steps reproduced as under:-

13.Order to be passed by the competent authority on receipt of report from the inquiry officer or inquiry committee.–

(1)On receipt of the report from the inquiry officer or inquiry committee, as the case may be,

the competent authority shall examine the report and the relevant case material and determine whether the inquiry has been conducted in accordance with the provisions of this Act.

(2)If the competent authority is satisfied that the inquiry has been conducted in accordance with the provisions of this Act, it shall further determine whether the charge or charges have been proved against the accused or not.

(3)Where the charge or charges have not been proved, the competent authority shall exonerate the accused by an order in writing.

(4)Where the charge or charges have been proved against the accused, the competent authority shall issue a show cause The Punjab Employees Efficiency, Discipline and Accountability Act 2006 notice to the accused by which it shall:

(a)inform him of the charges proved against him and the penalty or penalties proposed to be imposed upon him by the inquiry officer or inquiry committee;

(b)give him reasonable opportunity of showing cause against the penalty or penalties proposed to be imposed upon him and to submit as to why one or more of the penalties as provided in section 4 may not be imposed upon him and to submit additional defence in writing, if any, within seven days of the receipt of the notice, before itself or the hearing officer, as the case may be;

(c)indicate the date of personal hearing or appoint a hearing officer to afford an opportunity of personal hearing on his behalf; provided that the hearing officer shall only be appointed where the competent authority is of the rank of Secretary to the Government of the Punjab or above.

(d)provide a copy of the inquiry report to the accused; and

(e)direct the departmental representative to appear, with all the relevant record, on the date of hearing before himself or the hearing officer, as the case may be.

(5)After affording personal hearing to the accused or on receipt of the report of the hearing officer, the competent authority shall, keeping in view the findings and recommendations of the inquiry officer or inquiry committee, as the case may be, facts of the case and defence offered by the accused during personal hearing, by an order in writing–

(i)exonerate the accused; or

(ii)impose any one or more of the penalties specified in section 4:

Provided that–

(i)where charge or charges of grave corruption are proved against an accused, the penalty of dismissal from

service shall be imposed, in addition to the penalty of recovery, if any; and (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.

(6)Where the competent authority is satisfied that the inquiry proceedings have not been conducted in accordance with the provisions of this Act or the facts and merits of the case have been ignored or there are other sufficient grounds, it may, after recording reasons in writing, either remand the inquiry to the inquiry officer or the inquiry committee, as the case may be, with such directions as the competent authority may like to give, or may order a de novo inquiry.

The competent authority/respondent No.3 by not agreeing with recommendations made in the inquiry report issued show cause notice for the enhancement of penalty based on its opinion without containing the material or evidence showing the reasons to formulate such opinion and imposed major penalty of dismissal from service. The concluding paragraph No.8 of the impugned order is reproduced as under:- “NOW THEREFORE, all member of Punjab Local Government Board unanimously arrived at a firm conclusion that the allegations have been fully proved against the accused as evident from the report of Inquiry Committee. However, it is was observed that the penalties recommended by the Inquiry Committee were not commensurate with the gravity of guilty. Consequently, after hearing the accused, perusal of inquiry report, examination of the record, facts of the case and the arguments of Departmental Representative, the Board unanimously decided to impose major penalty of ‘dismissal from service upon the accused i.e. Muhammad Shafique ex-TMO defunct TMA, Liaqatpur in view of the gravity of charges under section 4(1)(b)(vi) read with section 10(6) of the Act ibid.”

A bare perusal of Section 13, reveals that if the Competent Authority disagrees with the quantum of punishment then

reasons must be given while containing material evidence which urged the competent authority for imposition of enhancement of the penalty. In the case of the petitioner, impugned orders and notice for increase of penalty do not fulfill the standards of due process and transparency as enshrined under Article 4 & 10-A of the Constitution. It has taken away the fair chance of the petitioner to submit defence.

The impugned orders have not been passed in line with Section 13 of the Act as reproduced supra which has expounded the mandatory stages. The Hon’ble Supreme Court of Pakistan vide order dated 16.5.2025 C.P.L.A. No.1919- L/2016 while dissecting Section 13 of the Act observed that upon receiving the inquiry report, the Competent Authority must ascertain whether the inquiry has been conducted in accordance with the prescribed provisions of the PEEDA. If it determines that the inquiry has been conducted properly, the next step is to evaluate whether the charges have been proved.

If the charges are found not to be proved, the Competent Authority is required to exonerate the accused as per section 13(3) of the PEEDA. Quite the opposite, if the Competent Authority believes that the charges against an accused have been proved, it is obliged to issue a show-cause notice under section 13(4) of the PEEDA. This notice must include a copy of the inquiry report, and should contain: (a) the Competent Authority's statement that it has found no reason to differ or it has reason to differ with the recommendations of the Inquiry

Officer; in case of dissent, the reasons thereof, alongwith the specifics of the charges that have been proved against the accused; (b) the details of the proposed penalties; and (c) the recommendations made by the Inquiry Officer regarding the penalties, and allowing the accused to respond or file additional defence in writing. After providing the opportunity for a personal hearing, the Competent Authority is to pass final orders under sub-section (5) of section 13 of the PEEDA. As regards the scenarios where the inquiry is deemed not to have been conducted per the legal framework, the Competent Authority, under section 13(6), has the responsibility to remand the inquiry back to the Inquiry Officer or Inquiry Committee. This may involve rectifying identified lapses or procedural formalities, or it may necessitate ordering a de novo inquiry to ensure compliance with legal standards. This structured and detailed approach is vital in safeguarding the rights of the accused and ensuring that disciplinary proceedings are conducted with fairness and in adherence to the law. Precisely, in this case the Competent Authority/respondent No.3 failed to mention justifiable and valid reasons for disagreeing with the recommendations of the Inquiry Committee. The Competent Authority/respondent No.3 had to record specific findings of his disbelieving the recommendations of the Inquiry report. The respondent No.3/competent authority has just mentioned the contention of the petitioner in paragraph No.6 of impugned order but has not

repelled the same under the law. The Honourable Supreme Court of Pakistan elaborated the role of the Competent Authority and the procedure which had to follow under the law in the case of Secretary Government v. Khalid Hamdani (2013 SCMR 817) as under:-

"the Competent Authority, it appears, neither examined the evidence recorded during inquiry nor appreciated the findings given by the Inquiry Officer and proceeded to enhance the penalty by converting the same into major penalty of dismissal from service and the recovery from Rs.2.76 million as determined by the Inquiry Officer to Rest.6.518 million merely on the basis of a report submitted by the Chief Engineer after the submission of inquiry report and issuance of show cause notices to the respondent officers. If he was of the view that the finding of the Inquiry Officer qua the quantum of excess payment was factually incorrect, he could have directed de novo inquiry or could have confronted the respondent officers with the report of the Chief Engineer. He even did not specifically disagree with the findings of the Inquiry Officer with regard to the nature of the misconduct committed by the Respondent Officers which persuaded the latter to recommend minor penalties. The authority enhanced the penalty merely on the basis of Chief Engineer's report that the excess payment made was more than what was calculated by the Inquiry Officer. There is no cavil to the proposition that the act of carelessness on the part of a civil servant could be a valid ground to award penalty. Elements of bad faith and willfulness may bring the act of negligence within the mischief of 'misconduct' but a conduct demonstrating lack of proper care and the requisite vigilance may not always be willful amounting to grave negligence to warrant harsh punishment."

8.It is the duty of every public functionary to act within the four corners of the mandate of the Constitution and the Act. From the language used in the Section 13(1) of the Act, it is necessary that once the Competent Authority receives a report from the Inquiry Officer, it shall examine the (i) report and (ii) relevant case material. The word 'shall' has been used

in this Section, which mandates the Authority to examine carefully the report and all the material. The Competent Authority/respondent No.3 and Appellate Authority/ respondent No.1 were duty bound to deal with the matter after application of mind with reasons through a speaking order by elaborating all the contentions, evidence and conclusion while disagreeing with the recommendations of the Inquiry Committee.

9.The reasons have been explained in ‘Foulkes Introduction to Administrative Law 4th Edition, in Re Poyser and Mill’s Arbitration [1963] 1 All E.R. 612; [1964] 2 Q.B.

467., Megaw, J. said as under:-

"Parliament having provided that reasons shall be given, in my view that must clearly be read as meaning that proper, adequate, reasons must be given; the reasons that are set out, whether they are right or wrong, must be reasons which not only will be intelligible, but can also reasonably be said to deal with the substantial points that have been raised... I am [not] saying that any minor or trivial error, or failure to give reasons in relation to every particular point that has been raised at the hearing would be sufficient to invoke the jurisdiction of the court. There must be something wrong and inadequate in the reasons that are given in order to enable the jurisdiction of this court to be invoked."

In Black’s Law Dictionary 11th Edition ‘reasons’ have been defined as under:-

“An expression or statement given by way of explanation or justification; whatever is supposed or affirmed to support a conclusion, inference, or plan of action.”

In Advanced Law Lexicon 4th Edition ‘reason’ refers as:- “A statement of some fact (real or alleged) employed as an argument to justify or condemn some act, prove or disprove some assertion, idea or belief; a ground or cause of or for something.”

In the famous case of Breen v. Amalgamated Engineering Union Limited (1971) 2 QB 175, it has been held that ‘the provision of reasons in a decision is one of the fundamental principles of good administration. In AIR 1976 SC 1785 it has categorically been ruled out that the rule requiring reasons to be given in support of an order is a basic principle of natural justice (like principle of audi alteram partem) which must inform every judicial or quasi-judicial process and this rule must be observed in its proper spirit and mere pretense of compliance with it would not satisfy the requirement of law.

10.The Honourable Supreme Court on the issue of exercising the discretion by the Competent Authority, while exercising power is vested with a certain amount of discretion and the said discretion has to be exercised by applying independent mind uninfluenced by irrelevant or extraneous considerations. In the case of Messrs Gadoon Textil Mills v.

WAPDA (1997 SCMR 641), Hon’ble Supreme Court to make exercise of discretionary power valid, observed as follows:- "Apart from being legal it is also reasonable. While conferring discretion on an authority the statute does not intend to arm such Authority with unfettered discretion which may be beyond the limits of reason, and comprehension of a man of ordinary intelligence. Wade in Administrative Law has traced the principles of reasonableness which according to him is firmly established at least from 16th century and has quoted Rooke's case (1598)

5 Co. Rep. 99b where the Commissioner of Sewers had levied charges for repairing a river bank on one adjacent owner instead of apportioning it among all the owners, who had benefited."

11.Learned counsel for the petitioner submits that the petitioner has been discriminated as the equally placed person was reinstated and penalty was not proportionate with the charges. Proportionality requires the Court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decision-maker and whether the decision- maker has achieved more or less the correct balance or equilibrium. The Court entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate, i.e. well balanced and harmonious, if it finds that the decision is disproportionate i.e. if the court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere. The departmental inquiry and award of punishment by the competent authority must be in accordance with the mandatory provisions of the Act and Articles 4 & 10-A of the Constitution with proper application of mind. Likewise, the Appellate Authority has to apply independent mind while passing the impugned appellate order.

Reliance is placed on the case of Abdul Rehman Khan Kanju and others Vs. Election Commission of Pakistan through Secretary, Islamabad and others (2024 SCMR 1902) and order dated 16.05.2025 passed by the august Supreme Court

of Pakistan in C.P.L.A. No.1919-L/2016. Muhammad Zahid Atta Vs. Lahore Development Authority (“LDA”) through Director General and others (2025 PLC (C.S.) 314). The Hon’ble Supreme Court of Pakistan in case of Muhammad Nasir Ismail Vs. Government of Punjab through Secretary Law and Parliamentary Affairs Division, Lahore and others (2025 PLC (C.S.) 723) while discussing the important aspect of judicial review on the administrative orders for imposing the punishment under the Act held as under:- “Courts play a critical role in ensuring that penalties imposed on civil servants are just, proportionate, and lawful. Judicial review of disciplinary actions is essential in preventing arbitrary or excessive punishments while maintaining the integrity of the civil service. A key principle in judicial review is proportionality. The penalty must not be excessively harsh in relation to the offense. Courts frequently set aside penalties that are disproportionately severe, ensuring fairness in disciplinary actions. Similarly, courts apply the principle of rationality and reasonableness, which requires that disciplinary decisions be based on objective evidence and not be arbitrary or politically motivated. Another essential principle is procedural fairness (due process). Affected civil servants must be granted a fair hearing, and disciplinary proceedings must adhere to legal requirements. Due process ensures that no officer is unjustly penalized without being given an opportunity to present their defense. At the same time, courts must exercise judicial restraint and avoid undue interference with executive discretion. While judicial review is necessary to prevent abuse of power, courts must respect the autonomy of the executive branch in managing its employees. Judicial intervention should be limited to cases involving clear illegality, arbitrariness, or mala fide intent. Finally, courts must balance individual rights with the larger public interest. While it is imperative to protect employees from unfair treatment, judicial decisions should not undermine the broader

objectives of maintaining an efficient and disciplined civil service. A well-functioning disciplinary system is essential for governance, and courts must ensure that their rulings do not compromise the effectiveness of administrative oversight. With this background we approach the present case.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”.

12.There is no specific reference to the evidence or material, which compel the competent authority to award major penalty of “dismissal from service”. Thus, the said major penalty does not appear to be in conformity with law.

While relying on the case law reported as Shibli Farooqi v.

Federation of Pakistan (2009 SCMR 281), Secretary, Government of Punjab and others v. Khalid Hussain Hamdani and 2 others (2013 SCMR 187), Asif Yousaf v. Secretary Revenue Division, CBR Islamabad and another (2014 SCMR

147)and Director Postal Life Insurance, Lahore v. Shakeel Ahmad (2021 SCMR 1162), Sabir Iqbal v. Cantonment Board, Peshawar through Executive Officer and others (PLD 2019 Supreme Court 189). The proportionality has not properly been assessed and no "rational connection" has been made the basis of the impugned orders. Further reliance is placed upon Divisional Superintendent, Postal Services, D.G.

Khan v. Nadeem Raza and another (2023 SCMR 803), Pervaiz Hussain Shah and others v. Secretary to Government

of Punjab Food Department Lahore and another (2024 SCMR 309) and Postmaster General Balochistan v. Amanat Ali and others (2024 SCMR 1484). The Act has multiple aims to ensure good governance and measures for the improvement of efficiency, discipline and accountability of the employees where the procedural fairness, due process and transparency are the basic requirements. The reasons in the impugned orders are inadequate and non-justifiable, therefore, the petitioner cannot be left at the whims of the respondents otherwise it will encourage the arbitrary decision making during such proceedings against government employees.

As a sequel of above discussions, the impugned orders are declared illegal and set aside. The matter deem to be pending before the competent authority/respondent No.3 who shall revisit the same and pass an order afresh strictly in accordance with law while keeping in view the observations supra.

The instant writ petition is allowed in above terms.

(Malik Muhammad Awais Khalid)

JUDGE

Approved for Reporting.

JUDGE

Naeem*