2016 PLP (C (PLC(CS))

ZAHEER-UD-DIN KAKAR, CHAIRMAN.

Since in the above titled appeals common point of law and facts, are involved, therefore, I inclined to dispose of them through this single judgment.

2. The appellant being of aggrieved of impugned Order Nos.SO (Prs)1-17/ASJ/2014/695-96, No.SO(Prs)1-17/ASJ/2014/1701-02, No.SO(Prs)1-17/ASJ/2014/1697-98, No.SO(Prs)1-17/ASJ/2014/1699-1708, No.SO(Prs)1-17/ASJ/2014/ 1693-95, dated 15-09-2015, whereby major penalty of "Removal from Service" has been imposed upon them as per section 4(b)(vii) of the Balochistan Employees' Efficiency and Discipline Act, 2011 (the BEEDA, 2011) preferred titled appeals with contention, that the impugned orders have been made in violation of Rules and Regulations, as well as the same have been passed in quite mechanical and fanciful manner without affording them reasonable opportunity of hearing in derogation of cardinal principle of natural justice. Furthermore, the impugned orders are violative of substantive provisions of the BEEDA, 2011 and the disciplinary proceedings were initiated against them by the respondent No.2, who was not the competent authority as per notification dated 15-05-2013, because through said notification, the Chief Minister had re-delegated the powers of Competent Authority to Chief Secretary for class of employees in BPS-16 to BPS-19. Finally, the appellants have prayed for their reinstatement in service by setting aside the impugned orders dated 15-09-2014.

3. Feeling aggrieved from the impugned orders dated 15-09-2014, the appellants namely Muhammad Anwar, (S.A. No.23/2015), Asad Amir, (S.A. No.24/2015), Taimoor Shah (S.A. No.25/2015) and Abdul Waheed (S.A. No.26/2015), have preferred separate departmental appeals on 20-10-2014, to the respondent No.1, but the same remained un-responded. Whereas, the appellant namely Sadam Hussain, (S.A. No.161/2015), preferred departmental appeal on 23-09-2014, to the respondent No.2, which was not entertained vide letter dated 18-05-2015, hence the instant appeal.

4. The respondent contested the appeal on legal and factual grounds by filing their para-wise comments.

5. I have heard the learned counsel for the parties and have gone through the record of the case. 6. [The record reveals that the Government of Balochistan Home and Tribal Affairs Department, through an advertisement published in daily "Jang" Quetta dated 19-09-2009, invited applications for appointment against the vacant posts of Assistant Superintendent Jail (BPS-14), ("the said posts") (BPS-14) by the method of initial recruitment and the requisite academic qualification for the advertised posts was B.A. second division. The appellants had applied for appointment against the said posts and their applications for appointment against the said posts were entertained and after scrutiny of their testimonials they were called for interview by the Departmental Selection Committee and after codal formalities they were recommended for appointment against the said posts and thereafter, the Competent Authority had accepted/approved the recommendations of the Departmental Selection Committee. Consequently, the appointment order Nos.SO(Prs)1-17(ASJ)/2010/3359-65 (Muhammad Anwar Tareen), No.SO(Prs)1-17/(ASJ)/2010/3192-98]A (Asad Amir), No.SO(Prs)1-17/ASJ)2010/3302-07 (Taimoor Shah), No.SO(Prs)1-17/(ASJ)2010/3290-95 (Abdul Waheed) and No.SO(Prs)1-17/(ASJ)2010/3209-14 (Sadam Hussain), dated 24-06-2010 were issued by the Home and Tribal Affairs Department (Prison Section).

7. On 29-08-2014, separate show-cause notices were issued by the respondent No.2 and served upon the appellants and they were called upon to submit their defence within fifteen days. The charge framed against the appellants (Muhammad Anwar Tareen, Asad Amir, Taimoor Shah and Abdul Waheed), in the show-cause notices was the same, whereas, the charge against the appellant Saddam Hussain was different. For convenience one of the show-cause notice dated 29-08-2014, served upon the appellants namely Muhammad Anwar Tareen, Asad Amir, Taimoor Shah, Abdul Waheed and show-cause notice served upon the appellant Sadam Hussain, are reproduced hereinbelow:-- "WHEREAS, it has been brought into the notice of the competent authority that you, . produced a graduation certificate having second division before the Department Selection Committee at the time of your interview for appointment in the Prisons Department against the post of Assistant Superintendent Jail (B-14). Upon verification, the University of Balochistan has verified that you graduated in third division which is not in accordance with the Prisons Department (Grade 1 to 15) Service Rules dated 20th August, 2001, and advertisement published vide PRQ-1449, dated 19th September, 2009 in the Daily Jang, Quetta wherein it was clearly mentioned that the graduation in second division is required.

2. WHEREAS, by reasons of the above, you appear to be guilty of gross misconduct and are liable to disciplinary action which may involve imposition of one or more of the penalties including Removal from Service as there is no need to hold an inquiry against you under Section 7 of the Balochistan Employees' Efficiency and Discipline Act, 2011.

3. NOW THEREFORE, you are hereby called upon to submit written defence of Show Cause Notice within fifteen (15) days of the receipt of this notice as to why the major penalty of "Removal from Service" may not be imposed upon you under ibid Act.

4. PLEASE TAKE NOTICE, that in case of your failure to submit a reply within the prescribed period, it would be presumed that you have no defence to offer or have declined to offer the same and accepted the charge (s) and in that case, ex parte order will be passed against you. Sd/- (AKBAR HUSSAIN DURRANI) Home Secretary" The Show Cause Notice dated 29.08.2014, which was served upon the appellant Sadam Hussain, is reproduced hereinbelow:-- "WHEREAS, it has been brought into the notice of the competent authority that you, Sadam Hussain s/o Muhammad Bakhsh, produce a graduation certificate before the Departmental Selection Committee at the time of your interview for appointment in the Prisons Department against the post of Assistant Superintendent Jail (B-14) on the basis you have bean appointed on dated 26th June, 2010 but upon verification, the University of Balochistan has verified that your graduation result announced on 20th July, 2010 which shows that you produced a fake graduation certificate at the time of your interview.

2. WHEREAS, by reasons of the above, you appear to be guilty of gross misconduct and is liable to disciplinary action which may involve imposition of one or more of the penalties including Removal from Service as there is no need to hold an inquiry against you under Section-7 of the Balochistan Employees' Efficiency and Discipline Act, 2011.

3. NOW, THEREFORE, you are hereby called upon to submit written defence of Show Cause Notice within fifteen (15) days of the receipt of this notice as to why the major penalty of "Removal from Service" may not be imposed upon you under ibid Act.

4. PLEASE TAKE NOTICE that in case of your failure to submit a reply within the prescribed period, it would be presumed that you have no defence to offer or have declined to offer the same and accepted the charge(s) and in that case, ex parte order will be passed against you. Sd/- (AKBAR HUSSAIN DURRANI) Home Secretary" 8. [Thereafter, the respondent No.2 imposed major penalty of "Removal from Service" upon the appellants vide orders dated 15-09 2014.

9. Admittedly, in the case in hand without holding a full-fledged inquiry against the appellants, the competent authority opted to take disciplinary action through "summary trial" by issuing only Show Cause Notices. It is true that the competent authority has vested discretionary power to hold or discard regular inquiry, but it is equally true that such discretion is not given to the authority to be exercised arbitrarily but honestly, justly and fairly in the spirit of Rules. In the instant case, the ends of justice would have been served by ordering an inquiry through an inquiry Officer or inquiry Committee to weigh a evidence in support of allegations as well as adduced by appellants in rebuttal of allegations. The Competent Authority should have exercised such discretion with extra care in judicious manner so that no prejudice was caused to appellants facing departmental proceedings on the charges of misconduct. Furthermore, statements of the Chairman as well as Members of the Departmental Selection Committee should have been recorded by holding an inquiry to resolve the controversy as to whether appellants Muhammad Anwar Tareen, Asad Amir, Taimoor Shah and Abdul Waheed, in fact had produced B.A. Degree in 2nd Division, and the appellant Sadam Hnssain had produced fake degree before the Committee. The proviso appended with Section 5(1) (b) of the BEEDA, 2011 empowers the Competent Authority to dispense with inquiry where "where there is sufficient documentary evidence against the accused or for reasons to be recorded in writing, the Competent Authority is satisfied that there is no need to hold an inquiry." In contravention of the said provision of law, neither any documentary evidence likely to be used against the appellants in taking disciplinary action was disclosed in show cause notice nor any reasons were recorded therein which persuaded the Competent Authority to dispense with inquiry. To resolve such controversy a regular full fledged inquiry should have been held as required under BEEDA, 2011 instead of adopting shorter procedure of summary trial by issuing direct Show Cause Notices.]B 10. [From the above it is crystal clear that the impugned orders of "Removal from Service" dated 15-09-2014, have been passed in quite mechanical and fanciful manner and the said orders, have been passed by the Competent Authority without affording the appellants within opportunity of personal hearing and this act of the Competent Authority is in violation of Sections 13(5) and 14 of the BEEDA, 2011. It is necessary to mention here that the personal hearing can only be denied to an accused civil servant in the circumstances explained in Section 5(1)(a) (i) to (iv) of BEEDA, 2011 which provisions of law speak for itself that case of appellant does not falls within any category of cases enumerated therein. For convenience the said clauses are reproduced herein-below:-- Provide that the opportunity of showing cause or personal hearing shall be given where:- (i) The competent authority is satisfied that in the interest of security of Pakistan or any part thereof it is not expedient to give such opportunity; or (ii) An employee has entered into plea bargaining or has voluntarily returned all or part of the assets gained or acquired through corruption or corrupt practices under any law for the time being in force or has been convicted of the charges of corruption which have led to a sentence of fine or imprisonment or both; or (iii) An employee is involved in subversive activities; or (iv) It is not reasonably practicable to give such an opportunity to the accused;]C 11. [It is well settled principle of law that in case of awarding major penalty, a proper inquiry is required to be conducted in accordance with the law, where full opportunity of defence is to be provided to the delinquent officer. The BEEDA, 2011 clearly stipulate that in case of charge of misconduct, a full-fledged inquiry is required to be conducted. In this regard reliance is place on 2004 SCMR 316, PLD 2008 SC 392 and 2008 SCMR 114.]D 12. [It is imperative to mention here that disciplinary proceedings were initiated against the appellants by the respondent No.2, who is not the Competent Authority, under the BEEDA, 2011. It is pertinent to mention here that the Chief Minister, Balochistan has re-delegated the powers of the Competent Authority to the Chief Secretary for class of employees in BPS-16 to BPS-19 vide Notification No.SO(R-1)3)(7)/2013-S&GAD/1382-1511 dated 15-05-2013. Thus, I am of the considered view that whole proceedings conducted by the respondent No.2 against the appellants as well as the action taken by passing impugned orders, being without jurisdiction and coram non judice.]E

13. At this juncture it is relevant to mention here that the post of Assistant Superintendent Jail (BPS-14), was upgraded to (BPS-16), vide order No.SO(B&A)1-45/2010/2459-92 dated 01-06-2010, and the pay slips issued by the Accountant General, Balochistan shows that the appellants were drawing the monthly salaries in BPS-16, at the time of disciplinary proceedings. 14. [Furthermore, the impugned orders are also violative of Article 10(A) of the Constitution of the Islamic Republic of Pakistan because as mentioned in paragraph supra, the appellants were removed from service without holding any proper inquiry and recording evidence in support of allegations or in rebuttal thereof and then their statutory departmental appeals were not regularly heard. Such course is manifestly denial of right of fair trial to the appellants in complete negation of aforesaid Fundamental Right guaranteed by the constitution.]F

15. It is necessary to mention here that as per show-cause notice the appellants namely Muhammad Anwar, Asad Amir, Taimoor Shah and Abdul Waheed, had produced graduation certificates having 2nd division before the Departmental Selection Committee at the time of interview and upon verification, the University of Balochistan has verified that they graudated in 3rd division which is not in accordance with the Prisons Department (Grade 1 to 15) Service Rules, 2001. Whereas, the charge against the appellant (Sadam Hussain) as per show-cause notice is that at the time of interview he had produced graduation certificate and upon verification, the University of Balochistan has verified that his graduation result announced on 20-07-2010, and he produced a fake graduation certificate at the time of interview, but the respondents have failed to place on record report of the University of Balochistan, which shows that the appellant Saddam Hussain, has produced fake graduation certificate at the time of interview. 16. [The upshot of the above discussion is that the appellants were removed from service vide impugned orders dated 15-09-2014, without adhering the provisions of the BEEDA, 2011. Thus, I am fully convinced that the appellants were totally condemned unheard and were made to suffer for illegality committed by the Department Selection Committee itself.]G 17. [In view of the above discussion the appeals are partly accepted and the matter is remanded to the respondents for holding de novo inquiry against the appellants strictly in accordance with the provisions of BEEDA, 2011 and to decide the matter preferably within a period of four months from the date of receipt of copy of this judgment. Thus, the impugned orders dated 15-09-2014, mentioned in para.2 supra are set aside and the appellants are hereby reinstated in service from the date of their removal from service i.e. 15-09-2014, without back benefits to face the de novo inquiry.]H Parties are informed accordingly. HBT/13/BST Appeal partly accepted.