Muhamamd Shahzad Siddique vs Province Of Punjab etc.

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Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

W.P.No.8859 of 2024/BWP

Muhammad Shahzad Siddique Vs.

Province of Punjab, etc.

JUDGMENT

Date of hearing 02.06.2026

Petitioner By: Mr. Muhammad Yaseen Ataal, Advocate Respondents By: Mr. Abdul Khaliq Khan Sadozai, Legal Advisor of Cholistan Development Authority, Bahawalpur.

Mr. Jamshaid Iqbal Khakwani, A.A.G.

Faisal Zaman Khan, J:- Through this petition orders dated 11.09.2012, 06.06.2013 and 10.10.2024 passed by respondents have been assailed. By virtue of the first order major penalty of dismissal from service has been foisted upon the petitioner by respondent No.2 under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (ACT), through the second order petitioner’s appeal has been dismissed by respondent No.1 and through the last order the major penalty has been upheld by respondent No.1.

2.Succinctly, the facts of the case are that the petitioner while working as Chowkidar with the respondent-Authority was proceeded against under the Act and while dispensing with the regular inquiry he was issued a show cause notice for personal hearing and thereupon vide order dated 11.09.2012 major penalty of dismissal from service was imposed by respondent No.2 upon the petitioner. Feeling aggrieved, petitioner preferred an appeal before respondent No.1, which was dismissed through order dated 06.06.2013, whereupon a service appeal was filed before the Punjab Service Tribunal, which

was dismissed on 13.05.2014 due to lack of jurisdiction, whereafter, petitioner approached this Court through W.P.No.1697/2015, which was disposed of vide order dated 19.09.2019 and the case of the petitioner was referred to the Punjab Labour Court, Bahawalpur to treat it as a grievance petition, however the said court while disposing of the grievance petition referred the matter to respondent No.1 for reconsideration, whereupon, respondent No.1 vide order dated 10.10.2024 upheld the major penalty of dismissal from service, hence, this petition.

3.Learned counsel for the petitioner submits that without any cogent reasons regular inquiry was dispensed with irrespective of the fact that the allegations against the petitioner were of such nature which involve disputed facts and controversies, which require resolution through a regular inquiry. Furthers adds that only minor penalties were proposed in the final show cause notice dated 06.09.2012, therefore, without confronting the petitioner with the proposed major penalty of dismissal from service, no major penalty could be foisted upon the petitioner, therefore, the impugned orders being laconic are liable to be set aside.

4.Replying to the above, learned counsel appearing on behalf of the respondent-Authority and the learned Law Officer support the impugned orders.

5.Arguments heard. Record perused.

6.The available record would show that the petitioner was proceeded against under the Act on the following charges:- “1) An unknown person reported to Colonization Officer-I Cholistan Development Authority, Bahawalpur on telephone that an irrelative boy and girl were busy in some indecent activities at your quarter at CDA Colony (Airport Road), Bahawalpur on 11.08.2012. The same was brought into the knowledge of Director (Rev. & Col.), CDA, Bahawalpur who along with Colonization Officer-I and Assistant Director (A&A) reached at the spot and found the afore-said boy and girl in semi-naked condition in the room. On inquiry, they stated that Shehzad Siddique, Chowkidar, CDA, Bahawalpur

is my closed friend and he is residing in this quarter with his family, but his family is mostly away from the quarter. Therefore, he allowed us to use his quarter at any time without any hesitation for this purpose.

2)As such the complaint has come to the notice that some culprits (men & women) are visiting your quarter for immoral activities and reportedly you were found drunk. As on 11.08.2012, an incident was occurred wherein a boy and girl found involved in indecent activities which is absolutely true that you are habitually indulged in immoral activities and to use such tacts. Therefore, your activities on this part, even immoral but being a government servant, it is liable to be punished as per rules under PEEDA Act, 2006.”

7.A bare perusal of the above allegations would show that the same were bald and general in nature as neither the name of complainant nor the phone number from which he called was disclosed, no names of the persons who were involved in indecent activities were mentioned in the show cause notice, it has not been mentioned therein that when and who found the petitioner drunk and how it was assessed without any medical intervention that he was drunk/intoxicated, thus in these circumstances it was imperative for respondent No.2 being the competent authority to have ordered a regular inquiry and thereupon to have proceeded against, however, he while dispensing with the regular inquiry that too without disclosing any tangible, lawful or convincing reason in writing for dispensing with the regular inquiry issued a show cause notice and thereafter imposed major penalty of dismissal from service vide order dated

8.There is no cavil to the proposition that under the proviso to Sections 5(b)(ii) and Section 7(a) of the Act the competent authority has power to dispense with the regular inquiry, however, the same is subject to fulfillment of certain statutory restrictions/exceptions. For ease of reference above provisions are reproduced as under:- “5(b)(ii). 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.”

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

(a)inform the accused by an order in writing, of the grounds for proceeding against him, clearly specifying the charges therein, alongwith apportionment of responsibility and the penalty or penalties proposed to be imposed upon him;”

(Emphasis supplied)

9.Previously it was held in judgments reported as Deputy Inspector-General Investigation, Lahore v. Asghar Ali {2012 PLC (CS) 787}, Muhammad Haleem and another v. General Manager (Operation), Pakistan Railways Headquarter, Lahore and others (2009 SCMR 339), Saad Salam Ansari v. Chief Justice of Sindh High Court, Karachi through its Registrar (PLJ 2009 SC 127) and Tariq Mahmood v. District Police Officer, Toba Tek Sindh and another (PLD 2008 SC 451 that while imposing major penalty a regular inquiry is a sine qua non, however, the latest trend of judgments reported as Senior Superintendent of Police (Operations) and others v. Shahid Nazir (2022 SCMR 327), Secretary Elementary and Secondary Education Department, Government of Khyber Pakhtunkhwa, Peshawar and others v. Noor ul Amin (2021 SCMR 959), National Bank of Pakistan and another v. Zahoor Ahmad Mengal (2021 SCMR 144), Rizwana Altaf v. Chief Justice, High Court of Sindh through Registrar (2020 SCMR 1401), Federation of Pakistan through Secretary, Ministry of Law and Justice Division, Islamabad v. Mamoon Ahmad Malik (2020 SCMR 1154), Chief Post Master Faisalabad, GPO and another v. Muhammad Afzal (2020 SCMR 1029), Hassan Raza v. Federal Board of Revenue through Chairman and others (2020 SCMR 994), Deputy Inspector-General Investigation, Lahore v. Asghar Ali (2011 SCMR 1309) and Muhammad Iqbal v. District Police Officer, Sahiwal and another (2011 SCMR 534) would show that in each and every case a regular inquiry is not imperative or necessary.

10.Placing the aforenoted in juxtaposition with the facts of the present case it is clear and obvious that in the present case, the

allegations levelled against the petitioner involve disputed and controversial questions of facts requiring recording of evidence and affording an opportunity of cross-examination and defence. Resolution of such factual controversies necessarily required the holding of a regular inquiry and in the absence of any recorded reasons justifying departure from the normal procedure, the action of respondent No.2 in dispensing with the inquiry suffers from patent illegality and is violative of the principles of due process and fair trial envisaged by law. The power to dispense with a regular inquiry is an exception to the general rule and can only be exercised where the competent authority records valid and cogent reasons in writing demonstrating that holding of such inquiry is either impracticable or otherwise not feasible under the circumstances of the case, however, such power cannot be exercised arbitrarily or as a matter of routine.

11.At this juncture learned counsel appearing on behalf of the respondent-Authority was asked as to why a regular inquiry was dispensed with, upon which he submits that before initiating disciplinary proceedings an internal/fact-finding inquiry had been conducted (report of which is available at page 52 of the case file) therefore, there was no necessity of holding a regular inquiry. Such contention is misconceived and cannot be accepted for the reason that it has been held in judgment reported as Usman Ghani v. The Chief Post Master, GPO Karachi and others (2022 SCMR 745) that an internal or preliminary inquiry is merely a fact-finding exercise undertaken for the satisfaction of the employer to ascertain whether there exists sufficient material warranting initiation of disciplinary proceedings against an employee. Conversely, a regular inquiry is a statutory requirement intended to ensure observance of the principles of natural justice and fair trial before the imposition of penalty. The two operate in distinct fields and serve different purposes, therefore, an internal inquiry can neither be equated with nor treated as a substitute for a regular inquiry as contemplated by law. Acceptance of the such contention of the learned counsel for the respondent- authority would render the statutory safeguards available to an

employee against major punishment wholly redundant, consequently, the fact that an internal inquiry was conducted did not absolve the respondents from their obligation to hold a regular inquiry, particularly when disputed questions of fact were involved and no lawful written grounds existed for dispensing with the same.

12.Another aspect which further makes the order of imposition of major penalty doubtful and illegal is that in the final show cause notice/personal hearing while confronting the petitioner with the allegations following minor penalties were proposed:- “Minor Penalties

i. Censure.

ii. Withholding of increment of increments, for a specific period subject to a maximum five years.

iii. Fine not exceeding basic pay of one month.

iv. Reduction to a lower stage or stages in pay scale, subject to a maximum or five stages and .

v. Withholding of promotion for a specific period, subject to a maximum of five years; provided that this period shall be counted from the date when a person junior to the accused is considered for promotion and is promoted on regular basis for the first time.”

The above clearly demonstrates that the petitioner was confronted only with the proposed minor penalties giving an impression that out of these minor penalties any one can be imposed, however, respondent No.2, while passing the final order dated 11.09.2012, imposed the major penalty of dismissal from service that too without assigning any reason for deviating with the contents of the show cause notice. While discussing the importance and the contents of the show cause notice the Supreme Court of Pakistan in judgments reported as Fazal Hussain v. Commissioner Dera Ghazi Khan Division Dera Ghazi Khan and others (2026 SCMR 723) and Sanaullah Sani v. Secretary Education Schools and others (2024 SCMR 80) has held that an employee must be specifically confronted with the proposed punishment so as to enable him to furnish an effective reply thereto.

Where only a minor penalty is proposed, the competent authority, without putting the employee on notice if he decides to impose major penalty deviating from the penalties proposed in the show cause notice, such action offends the principles of natural justice and renders the resultant order unsustainable in the eyes of law.

13 Similarly the orders dated 06.06.2013 and 10.10.2024 passed by respondent No.1 also do not cure the aforementioned jurisdictional and procedural defects. The appellate authority/respondent No.1 failed to address the fundamental questions regarding the legality of dispensing with the regular inquiry and the competence of the order of imposition of major penalty when the show cause notice contemplated only minor penalties, therefore, these orders are equally unsustainable.

14.Be that as it may, as the impugned orders have been passed in oblivion of the proviso to Sections 5(b)(ii) and Section 7(a) that too without fulfilling the requirement thereof, hence, the same are not sustainable on the touchstone of celebrated principle/maxim of law A communi observatia non est recedendum (Where a thing was provided to be done in a particular manner it had to be done in that manner and if not so done, same would not be lawful.), which has been sufficiently dilated upon and interpreted by the Supreme Court of Pakistan in judgments reported as Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 SC 255), Muhammad Akram v. Mst. Zainab Bibi (2007 SCMR 1086), Shabbir Ahmad v. Mst. Kabir-un-Nisa and others (PLD 1975 S.C. 58), Rashid Ahmad v. The State (PLD 1972 S.C. 271) and Mansab Ali v. Amir and 3 others (PLD 1971 S.C. 124).

15.For what has been discussed above, this petition is allowed, as a sequel to which the impugned orders are set aside, resultantly, the petitioner is reinstated into service with the caveat that for grant of back benefits, he may if so advised apply to the respondent-Authority through an application which shall be considered and decided in accordance with law while determining the question as to whether or

not the petitioner remained gainfully employed during the interregnum period. It is further clarified that the respondent- Authority, if so requires, may also initiate de novo proceedings against the petitioner keeping in view the observations made in this judgment.

(FAISAL ZAMAN KHAN)

JUDGE

APPROVED FOR REPORTING

JUDGE

Shafaqat Ali*