2007 PLP (C (PLC(CS))

IFTIKHAR MUHAMMAD CHAUDHRY, J.

This petition for leave to appeal has 'been filed against the judgment, dated 15th August, 2003 passed by Punjab Service Tribunal, Lahore whereby, appeal filed by petitioner has been dismissed.

2. Precisely stating the facts of the case are that petitioner, while working as Lady Naib Qasid in Education Department, Rahim Yar. Khan was proceeded against departmentally, on the allegation that she had committed a fraud through impersonating since her appointment in the year, 1985. She was served with a show-cause notice, dated 24th December, 2002 under Punjab Removal from Service (Special Powers) Ordinance, 2000 (hereinafter referred to as the Ordinance) which was duly replied by her. In reply to show-cause notice she repudiated the allegation on the averment that she is actually Fatima Bibi daughter of Walt Muhammad and her recruitment was genuine. Accordingly a detailed inquiry was conducted and ultimately she was removed from service through order, dated 20th January, 2003. After availing departmental remedies without any success, petitioner preferred appeal before Service Tribunal, which has been dismissed by means of impugned judgment. As such instant petition for leave to appeal has been filed.

3. Learned counsel appearing for petitioner contended that department could have not imposed penalty of removal from service upon the petitioner without conducting regular inquiry to ascertain the charge. He relied upon the judgments reported as Abdul Qayyum v. D.G. Project Management Organization, .JS Headquarters, Rawalpindi and others 2003 PLC (C.S.) 353, Government of N.W.F.P. through Chief Secretary and another v. Dr. Hussain Ahmed Haroon and others 2003 SCMR

104. He further contended that petitioner has been removed from service in view of the fact-finding inquiry report which was complied without associating her in violation of law laid down by this Court in the case of Chief Secretary Government of Sindh and others v. Siraj Ahmed Bablani and another 1986 SCMR 1336, Khalid Naveed v. Member Administration and the Chairman PAEC 2000 PLC (CS) 857, Administrator District Council Larkana and another v. Ghulab Khan and 5 others 2001 SCMR 1320 and Abdul Qayyum v. D.G. Project' Management Organization, JS Headquarters, Rawalpindi and 2 others 2003 PLC (CS) 353.

4. On the other hand learned Assistant Advocate-General contended that overwhelming material has been brought on record by the Department to establish that petitioner had been performing her duties while impersonating another lady namely Fatima Bibi whereas petitioner's actual name is Bilqees Akhtar and as she committed fraud, therefore, it was not considered essential for conducting regular inquiry. However, the fact finding inquiry was conducted wherein sufficient material was collected against the petitioner to substantiate charge of impersonation against her.

5. We have heard both the sides and have also gone through the material available so placed on record. A careful perusal of show-cause notice, dated 24th December, 2002 reveals that petitioner was proceeded against for the charge of impersonation under the provision of the Ordinance, in response thereto a detailed reply was submitted by the petitioner, wherein she repudiated the allegation of impersonation. A perusal whereof indicates that initially a fact-finding inquiry was conducted by one Mr. Muhammad Anwar Saeed, Headmaster of Government Secondary School Kot Sabzal, Rahim Yar Khan, who on February, 2000, submitted a report whereby she was exonerated from the charge. This document further reveals that, subsequent thereto another fact-findings inquiry was arranged through Naseem Akhtar Jatoi. Copy of the report, submitted by this committee has been placed on record by the learned Assistant Advocate General. A perusal whereof le indicates that the findings were compiled by the said inquiry officer without joining the petitioner, therefore, such report hardly cannot be made basis for removal of petitioner from service as such proceedings are contrary to principles of natural justice enshrined in maxim audi alteram partem, as it has been held in the case of Abdul Qayyum (ibid).

6. It is also important to note that under section 5(1) of the Ordinance, the competent authority is required to appoint an inquiry officer or inquiry committee to probe into the charge. Simultaneously, it also retains authority under section 5(5) of the Ordinance to dispense with the inquiry under subsection (1) of the Ordinance, if it is in possession of sufficient documentary evidence against the accused or for the reasons to be recorded in writing, it is satisfied that there is no need of holding an inquiry. Although in instant case, stand of the department is that it is in possession of documentary evidence to establish that petitioner is guilty of impersonation but at the same time the petitioner is also in possession of the document to negate the allegation as it is evident from the reply of show-cause notice. Therefore, on having gone through such material the competent authority may have not dispensed with the inquiry which was necessary to probe into charge, particularly, in view of the fact that there was likelihood of imposing major penalty of removal from service upon her if allegation of impersonation is proved on record. It is well settled by the time that in such like cases, instead of condemning the Government official unheard, the department is required to conduct a regular inquiry instead of removing Government official from service on the basis of fact-finding inquiry report, as it has been held in the case of Zahoor Ahmed and others v. WAPDA and others 2001 SCMR 1566. Relevant para therefrom is reproduced hereinbelow : -- "In view of the law laid down by this Court in the above judgment we are not inclined to comment on the merits of the case as we are of the opinion that in terms of allegations pertaining to misconduct' of appellants it was, incumbent upon the WAPDA to have conducted regular enquiry against appellants after adopting procedure laid down in Rule 5 of Pakistan WAPDA Employees Efficiency and Disciplinary Rules, 1978 because we have already held in the judgment cited hereinabove that when an employee has to be removed on basis of the misconduct allegedly committed by him he deserves fair opportunity to defend himself because if for such reasons he is dismissed from service then for all the time to come he carries a stigma of misconduct with him. However, the department is always at liberty to initiate fresh disciplinary action against appellants to establish as to whether they are guilty for misconduct. Thus for the foregoing reasons appeals are allowed and impugned orders are set aside. The cases are remanded to WAPDA respondent for proceeding afresh against them keeping in view the observations made hereinabove. It is hoped that the departmental proceedings, if 'initiated, shall be disposed of against them expeditiously instead of keeping them pending unnecessarily for a long period." As we are not satisfied from the shorter procedure adopted by the respondent-department while removing the petitioner from service, therefore, we propose to remand this case to the departmental authority to probe into the matter by conducting a regular inquiry in terms of section 5(1) of the Ordinance and there is no need to dilate upon the other arguments put forward by the learned counsel of petitioner. Thus for the foregoing reasons, petition is converted into appeal and allowed, as a result whereof impugned judgment, dated 15th August, 2003 passed by Punjab Service Tribunal, Lahore as well as departmental order, dated 20th January, 2003 are set aside and case is remanded to the respondent-department for conducting regular inquiry in view of the observation made hereinabove. The question of service benefits of the petitioner shall be subject to decision of respondent-department, after finalization of inquiry proceedings. M.H./F-35/SC Case remanded.