2010 PLP (C (PLC(CS))

SHAHID ANWAR BAJWA, J

Petitioner was, at the relevant time i.e. in 2001, working as Manager Accounts in the respondent No.2 Corporation and was posted at Bahahwalpur. On 12-7-2001 petitioner was issued a Statement of Allegations in which various fraudulent acts were alleged against the petitioner. Petitioner submitted his reply to the Statement of Allegations. Thereafter Inquiry Committee conducted an inquiry. After conducing inquiry, Inquiry Committee rendered the following verdict:

"In view of evidence and facts presented, the enquiry committee recommended followings. AA Immediate recovery/deposit in PIA account a balance amount of PKR 312,012.33 or an other amounts which may be outstanding against Mr. S.M. Nawaz P-30754 to cover all financial losses to PIA. BB Mr. S.M. Nawaz P-30754 should clear any loan/amount if outstanding against Messrs Public Travel and certificate from party to this effect be provided to PIA. CC As Mr. S.M. Nawaz is found guilty of misconduct, following penalties may be imposed on him. (a) Censure (b) Withholding increments for next three years. DD After above is complied and suspension is withdrawn Mr. S.M. Nawaz P-30754 should be immediately transferred from Bahawalpur and posted in a section where no cash dealing is involved. He should also not be given any assignment at independent position in future. EE Manager PAX Revenue should evolve/recommend a system for APW billing and agents short collection accounting so that such incidents can be avoided in future."

2. Consequently show-cause-notice dated 14-11-2001 was issued to the petitioner. Show-cause-notice after narrating the background, in the operative part stated as under:

"In view of the findings and recommendations of the Enquiry Committee, you are hereby required to show cause within seven days of the receipt hereof, as to why the above said punishments as recommended by the Enquiry Committee and approved by the Competent Authority should not be imposed upon you."

3. The petitioner submitted a reply to the show-cause-notice. After reply had been submitted by the petitioner the matter was put up for final decision before the Competent Authority and on 7-1-2002 Competent Authority recorded the following:

"

4. As result of careful consideration of the case and perusal of the findings/recommendations of the Enquiry Committee, I am of the view that Mr. S.M. Nawaz is involved in lapses/financial irregularities during his posting at Bahawalpur. I am not convinced with the proposed punishment of censure and withholding of increments for next three years, recommended by the Enquiry Committee as the punishment recommended is not commensurate with the gravity of misconduct. I, therefore, order for his compulsory retirement from the Service of the Corporation with immediate effect after recovery of balance amount of PKR 312,012.33 from his final settlement account to cover all financial losses." Consequently vide letter, dated 21-1-2002 the petitioner was compulsorily retired from service. Being aggrieved by his compulsory retirement, the petitioner approached the Federal Service Tribunal with an appeal under section 2-A of the Service Tribunals Act and the Federal Service Tribunal vide judgment dated 9-1-2006 accepted the appeal of the petitioner. Operative part of the judgment reads as under:- "

25. In view of the foregoing, the appeal is partly accepted and orders dated 21-1-2002 and 2-4-2002 are modified to the extent that the penalty of withholding of increment for 3 years without cumulative effect is imposed on him with the result that he would be deemed to have been reinstated from the date of compulsory retirement. He would be entitled to consequential benefits under the rules. The recommendations of the inquiry Committee as indicated at. "AA" and "BB" of para 8 (supra) would also be applied on the appellant."

5. Respondent's Corporation approached the honourable Supreme Court and after passing of the judgment by the honourable Supreme Court in the case of Muhammad Mubeen-us-Salam and another v. Federation of Pakistan and others PLD 2006 SC 602 the petition before the Supreme Court as well as the judgment of the Federal Service Tribunal abated and order of abatement was passed by the honourable Supreme Court on 18-8-2006. This Constitution petition was filed on 16-9-2006. On 30-5-2008 this Constitution petition was disposed of and Respondent's Corporation was directed to comply with the order of the Federal Service Tribunal. The Respondent Corporation again approached the Hon'ble Supreme. Court and the honourable Supreme Court vide judgment dated 23.10.2009 remanded the matter to this Court for re-hearing and decision afresh after affording proper opportunity of hearing to all concerned.

6. Learned counsel for the petitioner made the following submissions:

(1) That the order of retirement has been passed by a person not competent to impose punishment of retirement on the petitioner. (2) That the punishment inflicted upon the petitioner has not been stated in the show-cause notice and therefore the petitioner has been condemned unheard. Learned counsel relied upon Mukhtar Ahmed v. Secretary Government of Punjab, Communication and Works Department, 1986 PLC (C.S.) 870. (3) The Inquiry Committee recommended certain punishments and the Competent Authority has disagreed with it without recording any reason. Learned counsel relied upon Khalid Mansoor v. Director F.I.A., Rawalpindi and another, 2008 SCMR 1174, Shibli Farooqui v. Federation of Pakistan and others 2009 SCMR 281. (4) The second show-cause-notice shows biased mind of the Competent Authority because it indicates that the 'Competent Authority had already "approved" imposition of penalty on, the petitioner. Learned counsel relied upon Government of Punjab through Secretary, Livestock and Dairy Development Department and another v. Abdul Sattar 1990 SCMR 995. (5) On the question of maintainability of the petition learned counsel relied upon a judgment by a Division Bench of this Court in Muhammad Sadiq v. Federation of Pakistan & others (C.P. No.D-871 of 2007) announced on 08-10-2010 and Shahid Mehmood Usmani v. HBFC and others (C.P. No. D-2507 of 2009 and 22 others).

7. Mr. Khalid Jawaid learned counsel for the respondent-Corporation made the following submissions: (1) Pakistan International Airlines Corporation has no statutory rules and therefore Constitution petition is not maintainable. He relied upon case of Pakistan International Airlines Corporation v. Tanweer-ur-Refiman, PLD 2010 SC 676 and Allama Iqbal Open University v. Dr. Tufail Hashmi, 2010 SCMR 1484= 2010 PLC (C.S.) 1125. (2) The departmental authorities have completely followed the procedure under the Removal from Service (Special Powers) Ordinance, 2000 and therefore writ in any case should not be issued. (3) The petitioner has been proved guilty in the departmental inquiry and he has even deposited part of the amount defrauded by him. (4) Competent Authority is not bound by the recommendations made by an Inquiry Committee. Learned counsel made extensive submissions regarding merits of the allegations against the petitioner also. Learned counsel relied upon the following:

(1) Ghulam Qasim Khan v. Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan and another, 2005 PLC (C.S.) 1475. (2) Mehboob Ahmad Soomro v. Federation of Pakistan through' Secretary, Ministry of Finance, Islamabad and 2 others, 2010 PLC (C.S.) 911. (3) Khiali Khan v. Haji Nazir and 4 others, PLD 1997 SC 304. (4) Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim and 27 others, 2001 SCMR 1493, (5) Prof. Mumtaz Ahmed Khan v. Institute of Business Administration (I.B.A) through Director, Karachi University and 2 others, 2010 PLC (C.S.) 184.

8. We have considered the submissions made by the learned counsel and have also gone through the record as well as the case-law cited at the bar.

9. First contention of the learned counsel for the petitioner was that letter imposing penalty, has been issued by a person who was not competent to impose the penalty. The letter imposing penalty was issued under the signatures of Administrative Manager Finance. It is nobody's case that Administrative Manager Finance was competent to impose penalty. However in the letter itself it is clearly stated that the competent authority after careful consideration of the case had decided to impose the penalty. In the comments filed by the department there is available note dated January 7, 2007 which is signed by the Managing Director of the organization. Therefore contention of the learned counsel for the petitioner is without any substance. Such aspect has been considered by this Court in Syed Kashif Raza v. PIA Corporation and others, 2008 PLC (C.S.)

589. Therefore, this contention by the learned counsel for the petitioner is repelled.

10. Second contention of the learned counsel for the petitioner was that Inquiry Committee had recommended certain punishments and a competent authority imposed a more severe punishment than the punishment recommended by the Inquiry Committee. He further submitted that the competent authority did not record any reason for such a conclusion that it arrived at. Conversely Mr. Khalid Jawaid, learned counsel for the respondent submitted that the competent authority is not bound by the recommendations made by the Inquiry Committee. On principle contentions of both the learned counsel are correct. Mr. Khalid Jawaid is correct in arguing that the competent authority is not bound by the recommendations made by the Inquiry Committee and Mr. Latif Saghar, appears to be correct when he argued that if the competent authority disagrees with recommendations of the Inquiry Committee it must do so only for reasons and not without reasons.

11. In Shibli Farooqui's case (supra), Supreme Court held as under: "(12) Nevertheless, the "authority" without taking into consideration the recommendations of the Authorized Officer of the status of the Auditor-general of Pakistan completely overlooked his recommendations and went on to impose an extremely harsh penalty of removal from service. Mr. M.M. Aqil Awan, learned counsel for the appellant relied upon the judgment of this Court in the case of Chief Director Central Directorate of National Savings v. Rahat Ali reported in 1996 SCMR 248 wherein it was held that if the authority was not inclined to agree with the findings of the Authorized Officer it was required to record proper reason for doing so after notice to the affected civil servant. It was further observed that public power could not be exercised arbitrarily or capriciously. No reasons have been recorded by the "authority".

12. In Khalid Mansoor's case (supra), it was observed asunder:

"(6) A perusal of the record would reveal that a detailed inquiry was conducted to probe into the matter and appellant was provided full opportunity of cross-examination of the witnesses but he failed to vindicate his position. The appellant also failed to prove that the two passengers boarded on the plane not by using some unauthorized passage thereby avoiding the immigration clearance. It stands established from the material on record that both the passengers succeeded to proceed abroad on fake traveling documents during appellant's duty at General Checking Counter and it was not possible for the said passengers to go abroad without the blessing of the appellant or at least because of his inefficiency. However, we find force in the contention of learned counsel for the appellant that the competent authority imposed major penalty upon the appellant without recording specific reasons of disagreement with the recommendations made by the Inquiry Officer and instead of adjudicating upon the question involved, added the additional charges which were neither contained in the order of inquiry nor in the statement of allegations or even in the final show-cause notice. The responsibility, in our considered view, could not have been solely placed on the appellant's shoulders. The recommendations of the Inquiry Officer should have been given respect."

13. On the other hand, it was held in Ghulam Qasim Khan's case (Supra) as under:

"(6) the argument is misconceived at the face of it because section 3 of Ordinance, 2000 in general and 3(i)(e) in particular authorizes the competent Authority to impose any of the punishments given in sub-clause (e) as well as in Government Servants (Efficiency and Discipline) Rules, 1973. Section 5 read with section 8 authorizes the competent Authority to pass such order on the report and recommendation of the Inquiry Committee or Inquiry Officer, as it may deem proper in accordance with the provisions of the Ordinance. How such punishments are to be in accord with the provisions of the Ordinance, is fully described in section 3 thereof. It is, therefore, held that the competent Authority is not bound to follow the report of the Inquiry Officer which in the very term of the section is of recommendatory nature. Recommendations, in view of sections 3, 5 and 8 of the Ordinance, cannot be construed to be binding upon the competent Authority."

14. In Mehboob Ahmad Soomro's case (supra), it was held as under: -- "The respondents are not under obligation to follow the recommendation of enquiry officer and the maximum punishment provided under the law could be inflicted by the authority which has been done in the case in hand, which could not be said to be illegal."

15. A combined reading of the above case law indicates that position is now well-crystallized that; firstly recommendations of the Inquiry Committee must be given due weight, secondly recommendations of the Inquiry Committee are not binding on the competent Authority and thirdly where the competent Authority decides to disagree with the recommendations of the Inquiry Committee it must do so for valid, recorded reasons and cannot act arbitrarily and capriciously. Therefore second contention of the learned counsel for the petitioner that competent Authority ignored recommendations of the Inquiry Committee and was bound to follow the does not appear to be correct. As far as question whether the competent Authority recorded its reasons or not is concerned, we shall return to that question later.

16. The third contention of the learned counsel for the petitioner and in fact the crux contention was that in the show-cause notice the proposed punishment was "as recommended by the Inquiry Committee" and Inquiry Committee had recommended censure and withholding of increments for three years. After reply was submitted to the show-cause notice when the matter came up before the competent Authority, competent Authority recorded the reasons as quoted in Para 3 above and ordered imposition of penalty of compulsory retirement. This penalty of compulsory retirement was not proposed in the show-cause notice. Learned counsel for the petitioner relied upon Mukhtar Ahmed's case (supra). This case was decided by Punjab Service Tribunal. The facts were that after a show-cause notice penalty of compulsory retirement as well as recovery of proportionate amount of loss was imposed on a civil servant. In the show-cause notice no precise punishment was stated and it was held by the Tribunal that if no punishment is stated or quantity of punishment is not intimated the case of the civil servant would suffer from material prejudice in his defence.

17. What is the purpose behind serving a show-cause notice. By the stage of show-cause notice, inquiry has been held (or dispensed with) and conclusion as to guilt or innocence has been arrived at. To us it appears that it has only one purpose after informing the employee that he has been found guilty in domestic proceedings, it conveys to the employee mind of the competent Authority that his conduct deserved a particular punishment. When a particular punishment is stated it is naturally indicative to the employee of mental conclusion of the employer as to seriousness of the offence and the stakes stacked against him, and since punishment must be proportionate to gravity of the offence, the punishment proposed indicates to the employee that it is this which the employee deserves to get as a consequence of his delinquency. It also shows or indicates to the employee that if he neglects or refuses to submit any reply the show-cause notice the maximum that competent Authority would do is it would come to the conclusion that the employee has no defence as far as the punishment proposed is concerned. If the employee submits a defence the competent Authority can either accept the defence completely and exonerate him or completely reject the defence of the employee and impose the punishment proposed in the show-cause notice. The third possibility is that the competent Authority is somewhere between complete acceptance and complete rejection. In that eventuality the competent Authority would be justified in imposing a punishment less severe than one proposed or at the most, the one proposed and if the competent Authority proposes one punishment in the show-cause notice (and we must not lose sight of the fact that show- cause-notice is issued after approval of the competent Authority and is therefore, signal indicator of degree of satisfaction and the tentative conclusion arrived at by the competent Authority after considering the proceedings of inquiry and report of the Inquiry Committee) and imposes a more severe one, it indicates that competent Authority has changed its mind after show-cause-notice was issued. Was the employee put at notice regarding this modified conclusion by the competent Authority to his detriment? Obviously not. Would the employee have preferred a different defence or would he have preferred or attempted a better defence had he known as to what is going to stare him in face. The possibility cannot be ruled out. Therefore it after issuing a show-cause notice the competent Authority imposes a punishment more severe than the one proposed in the show-cause notice the only conclusion that is obvious is that case of the employee has been prejudiced and employee has gone condemned unheard qua the impugned punishment.

18. Reference may also be made to section 3(1) of the Removal from Service (Special Powers) Ordinance, 2000. The said sub-section is in the following words: "3(1) The competent authority shall: (a) by order in writing, inform the accused of the action proposed to be taken with regards to him and the grounds of the action; and (b) give him a reasonable opportunity of showing cause against that action within seven days or within such extended period as the competent authority may determine."

19. A reading of the above also indicates that it is right of the employee to be informed of the action "proposed to be taken with regard to him". When the action proposed is censure it cannot be said that the employee was informed of the action of compulsory retirement, proposed to be taken against him. On this count the order of compulsory retirement cannot be sustained.

20. Once the competent Authority has issued a show-cause-notice it is not precluded from adopting a different view and going for more severe action but then it must do three things; firstly record its reasons for change of its own mind compared to what its mind was when first show-cause-notice was issued. Secondly inform the employee of such change and reasons for such change and call upon show-cause notice against the proposed (i.e. enhanced proposed) punishment. After opportunity is given to the employee to explain or to show cause then it can impose the penalty proposed in the step two above.

21. Mr. Khalid Jawaid strenuously argued by relying upon Tanweer -ur-Rehman's case PLD 2010 SC 676 and Allama Iqbal Open University v. Dr. Tufail Hashmi 2010 SCMR 1484=2010 PLC (C.S.) 1125 that this petition is not maintainable. Such aspects have already been considered by this court in the case of Shahid Mehmood Usmani v. HBFC and others (C.P. No. D-2507 of 2009) where a Division Bench of this Court of which one of us (Shahid Anwar Bajwa, J) was a member came to the conclusion that where the action had been taken under the provisions of the Removal from Service (Special Powers) Ordinance 2000, it being an action taken under the provisions of a statute, writ petition would be maintainable. This has been followed in the case of Muhammad Sadiq v. Federation of Pakistan and others (C.P. No.D-871 of 2007) announced on 8-10-2010. Therefore contention of the learned counsel for the Respondent Corporation that this Constitution petition is not maintainable is not tenable.

22. The case-law relied upon by the learned counsel for the Respondent primarily states that the competent authority is not bound by the opinion of the Inquiry Committee. We have no cavil with this proposition but having once issued a show-cause-notice comprising a particular punishment it is not available to the competent authority to impose a punishment more severe than the one proposed imposed without calling upon the employee to show-cause against such more severe punishment.

23. Khaiali Khan's cease (supra) was relied upon by the learned counsel for the Respondent for the proposition that void order should not always be struck down regardless of consequences flowing therefrom. There is no cavil with this proposition but if the law has provided particular provisions in section 3 of the Removal from Service (Special Powers) Ordinance specifically providing that employee be called to show-cause against action proposes to be taken against him. Such law must be complied with. In the present case the petitioner was punished with a punishment which he was never called upon to show-cause against. Mst. Kaniz Fatima's case (Supra) was relied upon where it was held that illegal gains should not be allowed to be retained and disputed facts are not to adjudicated in Constitutional jurisdiction. Again there is no cavil with these propositions but reference does not appear to relevant in this case.

14. Result of the above discussion is that order of compulsory retirement dated 21-1-2002 is set aside and the petitioner is ordered to be reinstated in service. It shall however, be available to the competent Authority to reconsider the matter on the basis of report of the Inquiry Committee and proceedings of inquiry and after tentatively deciding as to what punishment is called for in the circumstances, issue show-cause notice against the proposed punishment and thereafter decide the case of the petitioner. Such an exercise if initiated must be completed within a period of three months of the date of this judgment. Back-benefits would depend upon the final decision of the competent Authority. This Constitution petition is disposed of in the above terms. M.H./S-110/K Case remanded.