2017 PLP (C (PLC(CS)N)

MUHAMMAD YOUNIS THAHEEM, J.-- Through this single judgment we intend to dispose of the instant writ petition and the connected W.P. No.2292-P/2014 titled Waqar ul Mulk v. Chairman PTB etc. arising out of the same facts and law.

2. Azam Khan, petitioner, seeks constitutional jurisdiction of this Court praying that; "that on acceptance of this writ petition an appropriate writ may please be issued declaring the office order dated 05.05.2014, whereby the petitioner is discharged from service, illegal, unlawful without lawful authority and of no legal effect, the petitioner may please be allowed reinstatement in service with all back wages and benefits of service or any other remedy deemed proper may also be allowed." and same kind of relief by the petitioner Waqar ul Mulk in the clubbed writ petition."

3. Brief facts of the instant petition are that the petitioners were serving as Assistant in the Pakistan Tobacco Board and during service the petitioner was terminated. Feeling aggrieved from the said order petitioner approached to the Labour Court, whereby his petition was accepted vide order dated 17.12.2009 and against the said judgment/order, the PTB preferred an appeal before the Labour Appellate Tribunal which was also dismissed on 16.09.2011 and to this effect a writ petition was filed before this Court which was also turned down vide order dated 05.09.2012 and PTB/respondents has also filed CPLA in the august Supreme Court, which is still pending. However in light of the judgment of Labour Court dated 17.12.2009 petitioner Azam Khan was reinstated in compliance of Labour Court judgment vide order dated 19.02.2013. However, petitioner moved an application for leave without pay which was allowed and before the expiry of that leave petitioner due to his domestic problems, submitted another application for further extension of his leave on the aforesaid reasons. The petitioner time and again visited the PTB office at Peshawar about the sanctioning of his leave application, however he was told that his application is under process.

4. The petitioner was served with a show-cause notice dated 19.03.2014, containing certain baseless and unfounded allegations. The petitioner duly replied the show-cause notice and refuted the charges levelled against him. The respondents without considering his reply was discharged from service vide impugned order dated 05.05.2014. To this effect petitioner filed departmental appeal but up till now has not been summoned by respondent No.1 and is waiting for favourable order therefore, has left with no other adequate remedy but to invoke the constitutional jurisdiction of this Court by filing the instant writ petition.

5. Vide order sheet dated 12.11.2014 of the instant petition another writ petition of identical nature bearing W.P. No.2292-P/2014 filed by Waqar ul Mulk was clubbed and in W.P. No.2292-P/2014 the respondents Nos.1 and 2 submitted their comments. The relevant Para No.5 of comments is reproduced as under; "

5. That the service of petitioner was lastly extended w.e.f. 01.10.2013 to 31.12.2013 vide office order No.Admn:/Estb:/17/581/PTB dated 21.10.2013 on compassionate grounds with clear direction to settle all domestic problems and report for duty on 01.1.2014, failing which appropriate departmental action would be initiated. Despite of which, petitioner again submitted application on 3rd of January, 2014 received in office on 9th of January, 2014, knowing that his request for transfer and leave without pay had already been regretted by the competent authority vide office letter No.Admn:P.file/X/249/PTB dated 02.01.2014. While afterward show-cause notice containing all details leading towards final regret of leave without pay which was responded by the petitioner the competent authority after examining reply of petitioner qua show-cause notice and personal hearing discharged the services of petitioner vide impugned order dated 05.05.2014".

6. Arguments heard and record perused.

7. The show-cause notice dated 19.03.2014 issued by Deputy Secretary Admn: was not issued by competent authority in case of petitioner and other petitioners of the connected petition.

8. Even otherwise impugned order of discharge from service dated 05.05.2014, on account of breach of discipline, misconduct etc. reflects factual controversy for which regular inquiry was mandatory under section 34(c) of PTB Service Rules, 1985 which had not been complied with. It is pertinent to mention that according to section 34(1)(c)(II) of PTB Service Rules, 1985 in case of charge of misconduct etc against any employee, only authorized officer shall conduct inquiry as inquiry officer or by inquiry committee constituted under section 35 of ibid rules 1985 about issuance of show-cause notice. In the instant case neither provisions of section 34 nor 35 were complied with nor had any authorized inquiry officer conducted inquiry. The above said show-cause notice was issued by an unauthorized person without any prior lawful inquiry under the ibid law. So the show notice and the impugned order of discharge from service is ab initio, void, without lawful authority. In this respect wisdom is derived from the judgment of Supreme Court in a case titled "The Secretary Government of Punjab and others v. Riaz-ul-Haq" cited as 1997 SCMR 1552 relevant principle laid down is reproduced as below: "the question as to whether the charge of a particular misconduct needs holding of a regular inquiry or not, will depend on the nature of the alleged misconduct. If the nature of the alleged misconduct is such on which a finding of fact cannot be recorded without examining the witnesses in support of the charge or charges, the regular inquiry could not be dispensed with. Reference may be made in this behalf to the case of Nawab Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others (PLD 1994 SC 222)."

9. In view of above discussion, we allow the instant petition and the clubbed W.P. No.2292-P/2014 and impugned order of discharge from service dated 05.05.2014 is set aside. Petitioners are deemed to be in service from the date of impugned order, however respondents are at liberty to adopt proper procedure as envisaged under sections 34 and 35 of the ibid Rules, 1985 as required under the relevant law by the competent authority and by an authorized officer but not later than two months. ZC/11/P Petition allowed.