Tahir Mahmood VS Mr. Qasim M. Niaz & others

W.P. No.1296-2OL4

FORM NO.HCID'G

IUDGT ETT

Iil THE I'IATABAD 'HEET

HIG H COURT,

t,LAMABAD

CAIE NO. t WoP. NO.l296 OF 2Ol4

fchfu llchrnud Ut.

Qoflm ll. J{lnzlr lecreto;y, Ccmlnclcc Dluitlcn, hlrrmcbcd eJt.

Pell3loner by t ln pcrlcn.

Rerpcndenh by t Hcflz t.A. Rehmonl lilr. Anwcr }lughcl, Aduccatet ift. tang Ullah Zchld, DAG wilh Unrer tnleem Ehotti, tO (Littgation), }llnlrtry cl GcmmGrGGr Dote cl hecrlng I C4.O4.2o,14

NOOf-UL-llAQ il. ounEtHI, ln 71,1 1[q lzEr.yr outset, it is pertinent to mention here that todal', r:'rly CM No.l75O-2A14 was fixed, but learned counse! tor respcrldent Nos.2, 3 & 5 & as well as learned DAC in view of urgernry wanted to argue the main case, hence main writ Petition was also heard.

2.1'he petitioner has invoked the constitrrtional junsdiction of this Court with the following prayer:-

"ln view of the foregoing facts and grounds of the petition, it is humbly prayed that the operation of this impugned Show Cause Notice N.F.No.PS.Secy/2014, lslamabad, dated lfih March, 2Ol4 be stayed/stopped and the respondents may kindly be directed to make available the list ,ef documenb/record reguested for by the petitioner fcr preparing his defense rePly and the lnquiry Officer ffiayl alt{t be directed to record the statement of defense witnesses to ensure the inquiry proceedings to be conducted in an impaftial, fair and transparent manner di assureC bir* th*

W.P. No.1296'20'14

retpondents to this Honourable Court in Writ Petition No.l4O/2014".

3.Facts emerging from the instant writ petition are that tt-re petitioner was serving as Accountant General Pakistan Revenues in 85-21. The Hon'ble Supreme Court of Pakistan took notice of release of PUUP-Il Funds. Subsequently, the release and diversion of these funds were declared unconstitutional and illegal by the Apex Court in C.P. No.20 of 2013. While implementing the judgment of Apex Court dated 05.12.2A13, fhree corrttption references were sent to NAB, one of whiclr was against Secretary Finance. The petitioner had apprised the Hon'ble Apex Court' with true facts in above case, therefore, few days after. a summary for initiation of disciplinary proceedings wils nrovecJ against the petitioner on the instigation ,f,f above Offir-i:r agatnst whom, a NAB reference was filed. First Charge Slieet dateci 31.12.2A13 was issued by appointing Mr. Shahid Ullah Baig, Secretary, Kashmir Affairs & Gilgit Baltistan Division, lslarnabad as lnquiry Officer. ln a short span of time. three lnquiry Officers were changed. On receipt of Charge Sheet, the petitioner appeared before the lnquiry Officer Raja Hassan Abbas. Secretary.

Climate Change Division, lslamabad and requested that thc. record available tn the Office of AGPR be made availab'le tr": the petitioner enabling him to prepare his reply. The petitioner tinre and again had been requesting the respondent in this regarC, i-rut eedful was not done" Even the Authorized Officer I'eerteiteci

W.P. No.1296-2014

Auditor General of Pakistan to nominate a Departrnenial Representative from the Office of AGPR for provision of record.

The DR contacted the petitioner for the record required by him in response, the petitioner provided list of 3?-documents to the DR.

During appearance before the lnquiry Officer on different occasions, the petitioner requested to call the requisite record, bi-tt unfortunately, the lnquiry Officer did not wait for the availability of record and continued to proceed. Moreover, list of witnesses was also submitted to the lnquiry Officer witlr a request [o cail ali those in the hierarchy who possessed the financial as well accounting procedural cases, but of no avail. The petitioner exhibited distrust on the lnquiry Officer and requested the Prime Minister of Pakistan to change the lnquiry Officer and appcirrt some impartial officer, but no action was taken in this regarC" C)rr the contrary, a show cause notice was issued to the petitioner without attaching inquiry report along witl'r corroborating evidence therewith, hence this writ petition

4.lt has been contended by the petitioner appearing in person that he never objected to the initiation of inquiry as per law thal';

why he had been requesting the respondents to make availablc:

the requisite record and to record statements of defenre witnesses, but same was not done despite his repeated requesls" The show cause notice issued on 18.03.2014 candidly depicts malafides of the res pondents to proceed with ex-parte v;ithout ording statenrents o f defence witnesses to punisl'r ancl vic.lin-rize:

W.P. No.129 6-2O'J.4

the petitioner. The act of Authorized officer not waiting for the record required by the petitioner and record statements of defence witnesses, tantamount to his bianess, unfairness artd unjustness which is prejudicial to a fair and impartial inquiry proceedings, which was guaranteed by the respondents during hearing of w.P. No.l4O/2O14 before this court" lt was against the clear assurance rendered by the respondents with regard to fair -l-he and impartial proceedings, which manifests their malafide.

issuance of show cause notice further reveals haste to conclude the proceedings with regard to inquiry against the petitioner without following the laid down procedure and other applicable laws. ln the end, he has requested for acceptance of this virit petition as prayed above-

5.On the other hand, learned counsel for the respotrcients iras raised preliminary objections with regard to maintiiinabilit'; of instant writ petition. He has argued that no writ lies against disciplinary proceedings and against issuance of show cause nctice in view of judgments of Hon'ble Apex Court like 1999 PI-C (C5;

4Og.2OO3 UC 60, l99l SCMR l04l & 2012 PLC (CS) 1366 etc. It has been further argued that interim order passed on 2l "ffi"2A14 is violative of law laid down in reported cases 1997 SCMR 1508 & PLD2014 SC l, as main case has been decided- The petitioner ha:'

filed this petition just to prolong the departmental proceeciilgs.

Earlier, the petitioner had filed VU.P. No.4627 /2013 & 14A/2A14' .n were disnrissecl. He has furrther conterrdecJ that tl-re

W.P. No.1296'201'4

petitioner deliberately avoided to appear before the lnquiry Officer and avoided to receive the record, notices and documents either at his residence or otherwise. l--le appeared before the tnquiry Officer for one time only, there-after he deliberately did not submit his written defence. He has contended that charge sheet/statement of allegations was framed in the Iight of documentary evidence as well as in accordance with covernment Servants (E&D) Rules, 1973 and was sent tc him. As non- submission of written statement to the charge sheet sufficiently proves that he had no ProPer defence. therefore, the Authorized Officer was constrained to issue impugned show caLlse notice.

Moreover, factual controversies cannot be adjudicated upol"t in writ jurisdiction. The story narrated by the petitioner throrrgh tlre:

instant writ petition has already been turned down by fhi; Cr:rurt while deciding writ petitions earlier filed by hirn. The Iea;'neri counsel has contended that inspite of filing this writ petition the petitioner should have filed reply to the irrrpugned show cause notice. ln view of his arguments, learned counsel has requested for dismissal of instant writ petition.

6.I have heard the arguments, perused the recorC as well as relevant provisions of law and the authorities referrecj.

7.From the controversies raised by the parties throurgh ii'rr-l instant writ petition. following legal and factual issues arise: - a) Whether proper oPPoftunity of hearing as provided by law has been given to the petitioner?

W.P. No.1296-201.4

b) Vl/hether the record reguired by the petitioner was provided to him?

c) Whether the Authorized Officer or the lnquiry Officer acted in accordance with the procedure prescribed under E&D Rules?

d) Whether the writ filed impugning show cause notice is maintainable?

e) Whether the matter involves preferring of appeal before the learned Federal Seruice Tribunal and in case of non-functioning of learned Federal Seruice Tribunal, this Court has the iurisdiction to entertain the same or not?

0 Whether factual controversies are involved in thit matten which cannot be resolved through writ jurisdiction under Article 199 of the Constitution of lslamic Republic of Pakistan?

g) Whether the assurance rendered by the respondents at the time of disposal of W.P. No.l4O/2014 war honoured by them or not?

8.From the record, it appears that petitioner approached the respondents through an application dated 14.02.2014 requirirrg the Secretary, Climate Change Division (lnquiry Officer) for providing him the record before submission of reply to the impugned show cause notice. He coupled with that requesl also required to expedite the process in this regard by nonrinating a Departmental Representative (DR) from the Office of Auditor General to provide the requisite record to the petitioner. Agaiii.

through another application dated 20.02.2A14, he approaci-red the Auditor Ceneral of Pakistan requesting to provide the record to the lnquiry Officer enabling the petitioner to consult the same for preparation of defense reply with regard to inqiiiry proceedings. Simultaneously, he also submitted an aprplicatiorr dated 20.02.2014 re quiring the lnquiry Officer for calling tl"re witnesses ln the said application. narTtes cf D\X/s \\,ere ."nse

W.P. No.1296-201"4

also mentioned. Again, vide application dated 26.O2"2A14 moved to the lnquiry Officer requiring him to arrange certain documents with the opinion of Auditor General of Pakistan with regard to applying pre-audit checks applied by the Officers/Officials of ACPR and opportunity for defence witnesses may also be afforded. ln this way, the petitioner moved nurnerous applications dated 03.03.2014, 07.03.2014, 10.03 .2014, 11.03.2014 & 11.03.2014 to the lnquiry Officer as r,vell as Authorized Officer. The Authorized Officer vide Diary No.256 dated 19.02.2O14 responded through letter dated 18.O2"2O14 with its No.F.No.PS/Secy/2014 communicated to the Auditor Ceneral of Pakistan requesting him to nominate any officer of ACPR for providing the necessary record to the petitioner under intimation However, it contained the directions for nominated persor, tr.:

contact the lnquiry Officer and the Authorized Officer

9.The petitioner vide letter dated 06.03.2014 agairr approached the Auditor Ceneral of Pakistan appended thereto list of those essential documents which were 32 in number. but nr:

response was grven.

10.Since the assurance was rendered by the respondents cluring hearing of W.P. No.l4O/2O14 for an impartial inquiry by adopting the legal procedure, therefore, this Court observed that the petitioner can approach this Court when steps provided hy law are not followed by the competent authority or by Autl-ror"ized icer or if any malafide intention comes to light. Since it was

W.P. No.1296-2014

not the case at the relevant time therefore. with such observations taking into consideration the assurance rendered by the respondents for fair and impartial proceedinSs, the matter was disposed of.

11.Unfortunately, the respondents by submitting their comments have stated that they have followed the procedure with regard to inquiry proceedings, but no where, the stance taken by them has been substantiated by any documentary evidence

12.The procedure prescribed under Rules 5 to 7 of E & D Rules manifest some rights accrued in favour of the petitioner" which have also been Suaranteed by law itself and are mandatory in nature. including provision of record' cross examination of witnesses and production of defence witnesses, but unfortuii-ta1ely, such rights/opportunity have not beerr provided to the petitioner' by the respondents, despite hue and cry rrrade on behalf of petitioner in shape of submitting many applications refered to above thereby, he was thrown from pillar to post.

13.When specific queries were raised with regard to documentary evidence, both learned counsel for the resportdents as well as learned DAC even the representative of lvlinistry of Commerce exhibited their ignorance about availability of record.

14.5o far the stance taken by the respondents regardirrg hampering of inquiry proceedings on behalf of petitioner, again a y was put to them that no observation has been made hy the

W.P. No.1296-201'4

lnquiry Officer in this regard nor any warning has been issrred to the petitioner, no satisfactory reply was given. lrl this regarcl. Rule 6(5) of E&D Rules depicts administration of warning disregard thereto that the finding shall be recorded to that effect and shall proceed to complete the inquiry in such manner to substantiate justice.

15.Again, it is very astonishing to note that except oral version for availability of record, neither such warning seems to have been communicated to the petitioner nor the respondents are able to show any material with regard to such allegation

16.With regard to allegation levelled against the petitioner that he avoided to appear before the lnquiry Off icer and eve!'r avoided service of notice, the petitioner submittecl before tiie Court envelopes containing notices received by hirrr throuql:

special messenger were duly replied through T.C"S.. the si:me have also been examined carefully by this Court. When learned counsel for respondents as well as learned DAC \^/ere confronted ruith such record, no rebuttal was extended on their behalf. Hence, in my view, this allegation seems to be merely an allegation to create a substance against the petitioner

17.5o far the question raised with regard to maintainability cf this writ petition in view of jurisdiction vested to a High Courl is concerned, I am fortified with a recent judgmen[ commurricated to his Court while deciding CP No"2052 of 2013 tiiled Sai'lraz rn Vr. Federation of Pakistan etc & CP. No.208 1 ai 2il13

W.P. No.1296-201'4

titled Zaf ar Abbas Vs. Federation of Pakistan etc' dated 16.01 .2014. the Hon'ble Supreme court of Pakistan has observed that until the establishment and functioning of the FST. the bar of Article 212(2) of the Constitution will not be applicable' However, the Federal Covernment was directed to erxpedite appointment of the Chairman, FST in terms of Section 3 of the Act of 1973.

lB. ln this regard, it is further alleged that whether this rnatter pertains to the jurisdiction of learned Federal Service Tribunal. in this respect, it is observed that when relief claimed does not come within Section 4 of the Tribunal Act, 1973. it is not hit by Article 212 of the Constitution of the lslamic Republic of Pakistan.

Admittedly, issuance of impugned show cause notice has not been challenged through the instant writ petition, rather the proceedings initiated by the lnquiry Officer being cotttrary to law (E&D Rules) have been challenged. ln my hurnble view. w'hL'n such is the matter before the High Court. jurisdiction lic> vuith ttie High Court. when other remedial ways are seized for lhe petitioner, despite the guidelines provided in a repr;rted case 2OO2 PLC (C.5.) 442 titled Muzaffar Hussain Vs. The Superintendent of Police, District Sialkot referred by the learned counsel for the respondent Mr. Hafiz S.A. Rehman, Advocate. T'he High Courts have issued directions to the concerned functionaries to act in accordance with iaw and not contrary to lar,rr regarCing inquiry proceedings.

W.P. No.1-296-201.4

19.ln the instant case, when the lnquiry Officer has tcltally acted contrary to law as apparent from record therefore neither it is a case involving factual controversies nor it is matter pertaining to the jurisdiction of learned Federal Service Tribunal as such, it is not hit by Article 212 of the Constitution

20.lt is observed that in case of violation of statutes or rules' the only way remains with an aggrieved person to resort to the Constitutional Jurisdiction of a High Court. This view is supported by PLD 1976 Lah. 530. ln furtherance whereof. if any functioriary transgresses the limit of law while exercising the powers not vested in him/it, he/it can be restrained by issuing a writ exerc!sing constitutional jurisdiction to protect the rights of any individual regarding fair tria! guaranteed under Articles 4, 10-A. I1 of the Constitution of lslamic Republic of Pakistan as well as Sec.tion 24- A of Ceneral Clauses Act. Therefore. while' obset''Yir:g sitctt material illegality on the surface of record which was not rebutted by the respondents through documentary evidence in support whereof, the only way remains with the petitioner is to seek constitutional jurisdiction. Hence, in my humble view. tl're present writ petition is maintainable to the extent of relief claimed by the petitioner.

21.With regard to the allegation reflecting IN para-Z oi gned show cause notice, it is made clear that merely because

W.P. No.1296'201'4

of retirement of a delinquent officer under the charge, cannot be made basis for depriving such officer from his rights otherwise guaranteed by law, rules and the Constitution

22 As regards the authorities referred by the learned counsel for the respondents Mr. Hafiz 5.A. Rehman, Advocate, in rny view, same are irrelevant and do not apply in the facts and circumstances of this case.

23.Under the circumstances narrated above. instant writ petition is allowed. Consequently, all the inquiry proceedings initiated by the lnquiry Officer before issuance of impugned show cause notice are declared to be illegal, ultra vires. without lawful authority, hence the same are set aside. The authorities ccnct)rned may proceed from the stage where such proceedings were pending before the lnquiry Officer, if law permits them.

24.Likewise, it is further observed in view of assurance rendered by the respondents at the time of disposa! of earlier W.P. No.140l2014 filed by the present petitioner, I arrr rif the view that same has not been regarded by the lnquiry Officer, therefore inquiry proceedings seems to have been tainted with malafides. Therefore, it is further directed that if the iirquiry p;oceedings are initiated afresh, the lnquiry Officer who earlier nducted inquiry proceedings, shall not continue, ratfrer inquiry

-.H

W.P. No.1296 2OL4

proceedings would be conducted by appointing a nev/ lnquiry Officer.

(N ooR- QURESHI)

JUDGE

Aooroved for Reporting

Zawar

6 b st,P J/"-) u:d

Uploaded By : Engr. Umer Rasheed Dar