2016 PLP (C (PLC(CS))

MUHAMMAD QASIM KHAN, J.

Briefly the facts of the case are that petitioner was appointed as Driver (BS-4) on contract basis for a period of one year, which could be extended subject to performance and conduct to be evaluated by the competent authority. Subsequently a Silk Cause Notice under the charge of inefficiency as well as misconduct was issued and by dispensing with regular inquiry or affording him opportunity of hearing to him, the order dated 03.02.2008 was passed whereby his services were terminated.

2. Since the petitioner was admittedly a contract employee and furthermore the order terminating his service on the face of it contains stigmatic allegations, therefore, the instant writ petition is held to be entertain-able by this Court. Reliance in this respect is placed on the case "Rana Asif Nadeem versus Executive District Officer, Education, District Nankana and 2 others" (208 PLC (CS) 715) and "Rai Zaid Ahmad Kharal versus Water and Power Development Authority, through Chairman WAPDA and another" (2008 PLC (CS) 1005). In the later judgment, this Court while assuming jurisdiction in clear terms held that "If the termination order would convey a message of any stigma, the employee could not be ousted from service without resorting to the procedure of Efficiency and Disciplinary Rules."

3. The learned counsel for the petitioner has argued that when the petitioner had specifically denied the allegations levelled against him in the Show. Cause Notice, a regular inquiry into the matter was essential, wherein, the petitioner had to be supplied copies of evidence against him, he should have right to produce his defence and during inquiry if any witness appear against him, he had a right to cross-examine such witness. Reliance has been placed on the case reported in 1997 SCMR 1543. Adds that fair trial under Article 10(a) of the Constitution of Islamic Republic of Pakistan, 1973 is inalienable right of the person against whom any allegation is levelled, but in this case neither transparent procedure nor fair trial has been provided to the petitioner, therefore, impugned removal from service order is to be struck down.

4. On the other hand, learned Additional Advocate General opposed this petition on all corners by contending that charges were proved against the petitioner, therefore, the order removing him from service is fully justified.

5. I have heard the arguments of learned counsel for the parties and perused the entire available record with the assistance.

6. Without going through the factual aspect or controversy, the fact of the matter is that specific allegations of inefficiency and misconduct had been levelled against the petitioner. It is admitted position that on same charges a Show Cause Notice was issued to the petitioner, he submitted reply thereof but the authority without having recourse to regular inquiry, dispensed with inquiry and proceeded to pass the impugned order of removal from service.

7. To be precise enough, this slipshod act of the respondent/authority dispensing with regular inquiry is the pivotal point in this case. For facility of reference, Section 7 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (hereinafter to be called as PEEDA ACT), are attached with judgment at "FLAG-A".

8. By bare perusal of Section 7 of PEEDA Act, it is apparent that authority has been vested with a right to dispense with regular inquiry against an employee, but one must not lose sight of the fact that whenever any discretion is given to an authority, it has to be exercised not arbitrarily but honestly, justly, and fairly right in consonance with the spirit of law, after application of judicious mind and for substantial reasons. For this purpose, the nature of allegations against the accused has to be considered. In a case when it is clear to the authority that the allegations could be decided with reference to admitted record or he forms an opinion that un-rebuttable evidence on the touchstone of QANUN-E-SHAHADAT, to prove the charge against the accused/employee is available on the record, the procedure for regular inquiry (Section 5 of the PEEDA Act), may be dispensed with, otherwise, the ends justice demand an inquiry through an Inquiry Officer or Inquiry Committee. Although, to dispense with reg1ar inquiry is discretion left for the authority to be gauged, yet, the word "decision" has been used in the said section, and the definition of word "decision" has been given in BLACK's Law Dictionary Eighth Edition (Bryan A. Garnder), as under:- "A judicial or agency determination after consideration of the facts and the law; esp., a ruling, order, or judgment pronounced by a court when considering or disposing of a case. " Thus, as a matter of fact this discretion has been made in the nature of judicial decision, which has to be exercised with due care and caution keeping in mind the principles of natural justice, fair trial and transparency, so that no prejudice should be caused to the accused/employee. There can be a situation where real fate 9f allegations can only be adjudged by a regular inquiry and not by mere textual proof. The legislatures further emphasized that if the authority after considering the nature of charge or charges and the material before him, concludes that regular inquiry is to be dispensed with, then the authority shall record reasons in that respect. The sole object behind careful drafting of said provision is indicative of the fact that legislature intended that the discretion which was being left up to the authority, must be exercised judiciously and not arbitrarily. It is for the above reasons that the Hon'ble Supreme Court of Pakistan in the case reported in 2003 SCMR 1110 held that requirement of regular inquiry could be dispensed with in exceptional circumstances. Where recording of evidence was necessary to establish the charges, then departure from requirement of regular inquiry under the Rules would amount to condemn a person unheard.

9. In this case the defence put by the respondent authorities is that proper and lawful procedure was adopted by dispensing with regular inquiry, a Show Cause Notice was issued to the petitioner, he submitted reply to the same and thereafter, the authority being convinced that charges had worth, the removal from service order was passed, but I am afraid, serving of Show Cause Notice and reply thereto in denial of allegations on mere questions and answers do not amount to affording the accused reasonable opportunity of showing cause as required under PEEDA Act. The requirement of reasonable opportunity of showing cause against proposed action can only be satisfied if particulars of charges or charges, substance of evidence in support of the charges and specific punishment which would be called for after the charge or charges are established are communicated to the civil servant who is given reasonable time and opportunity to show cause. As detailed above, in this case specific allegations had been levelled against the petitioner which included inefficiency and misconduct. When the petitioner in response to Show Cause Notice, had specifically denied both the charges against him and furthermore, considering the nature of charges, all those allegations required evidence under each head, then it had become incumbent upon the authority to have ordered for a regular inquiry and in the above given situation departure from normal course does not reflect bonafides on the part of the authority, rather shows mechanical application of mind on his part, consequently the petitioner appears to be justified in pleading that the authority was in fact biased towards him.

10. It is by now well settled that right to a fair trial means right to a proper hearing by an unbiased competent forum. Right to a fair trial has been associated with the fundamental right of access to justice, which should be read in every statute even if not expressly provided for unless specifically excluded. While incorporating Article 10A in the Constitution and making the right, to a fair trial a fundamental right, the legislature did not define or describe the requisites of a fair trial, which showed that perhaps the intention was to give it the same meaning as is broadly universally recognized and embedded in jurisprudence in Pakistan. While holding so, guideline has been derived from the case reported in PLD 2012 SC 553.

11. For what has been discussed above, the impugned removal from service order passed against the petitioner does not stand the test of judicial scrutiny, as it runs against the spirit of law. Consequently, this petition is allowed, the impugned order dated 03.02.2008 is set-aside and petitioner is reinstated in service. The period between his removal till reinstatement shall be considered as leave without pay. ZC/M-113/L Petition allowed.