2018 PLP (C (PLC(CS)N)

NISAR HUSSAIN KHAN, J.

Petitioners, by way of instant petition, seek issuance of a writ to declare the order of fresh enquiry, followed by Notification dated 9.4.2014 with charge-sheet and statement of allegations, as illegal, unlawful and without lawful authority, being in violation of Rule 14(3) and (6) of the Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011 read with Section 24-A of the General Clauses Acts, 1897, with further direction to the respondents to act in accordance with law and rules on the subject and to withdraw the impugned Notification.

2. Resume of facts leading to the filing of instant petition is that petitioners are employees of Elementary and Secondary Education Department KPK working against different posts as reflected in the memo. of petition. While petitioner No.1 was holding the post of District Education Officer (BPS-19) Nowshera. They were proceeded against for misconduct of committing irregularities by making irregular appointments of PST (Male/Female), Arabic Teachers, Theology Teachers, Class-IV, irregular promotions of Class-IV to the post of PST, irregular promotion of Naib Qasids to Junior Clerks, releasing pay of provisionally appointed CT/PET/DM/AT/TT (Male/Female) without verification of their documents whose record was not available in the office nor implemented recommendations of departmental enquiry against Mst. Rena AT, Mst. Laila Gul TT and Noor Badshah Sweeper and avoided to provide record of irregular appointed PETs. This was the charge against petitioner No.1 while rest of the petitioners were also charged for similar irregularities in the matter of appointment and release of salaries/arrears and their inter se abetments. Muhammad Younas Javed was appointed as Enquiry Officer who after thorough probe submitted his report, according to which some of the charges stood prove some of the accused officers. He recommended major penalty ,demotion of petitioner No.1 Hasanaat Gul to lower post/grade with immediate effect and recommended Censure for Nasim Matter petitioners Nos.2 and

4. He recommended withholding of one increment for one year to the extent of petitioners Nos.6 and 8 Fazal Wahid and Lal Badshah, whereas petitioners Nos.3, 7 and 9 were exonerated. While Anwar Zeb and Ahmed Gul, who are not before us, were recommended to be reverted to their original posts of Chowkidar. On receipt of the said enquiry report and recommendations, a letter No. SO(E-1)/E&AD/5-94/2014, dated 25th February, 2014 , was addressed to Muhammad Younas Javed (PCS SG BS-20) Secretary, Auqaf, Hajj, Religious and Minority Affairs Department, relating to the same enquiry report, whereby explanation was called from him for proposing minor penalties, not commensurate to the charges and alleged corruption and for non-appreciation of the case in totality. It was followed by Notification dated 9.4.2014 vide which the enquiry committee comprising two Officers was constituted for de novo enquiry relating to the same charges against petitioners which is subject matter of instant petition.

3. Learned counsel for petitioners argued with vehemence that de-novo enquiry could only be initiated when charge would not have been proved in terms of Rule 14(3) of the Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011 which is not the case herein because charges were proved and penalties were also recommended by the Inquiry Officer, so order of de novo inquiry is malice in law as well as facts. Beside that, no reasons have been provided for de novo inquiry on account of which impugned action of the competent authority is bad in law and is liable to be struck down.

4. Learned AAG, while controverting the arguments of petitioners' counsel contended that the competent authority in terms of Rule 14(6) of the Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011, have rightly initiated de novo inquiry because it was not satisfied with the inquiry report. He maintained that even writ petition against the said order is not maintainable. While responding to the arguments of the mala fide, he argued that competent authority could award any other harsh punishment, had there been any malice in its mind.

5. We have heard learned counsel for the petitioners and learned AAG and have also gone through the record with their valuable assistance.

6. In view of the facts recapitulated in the preceding part of the judgment and in the light of arguments of both sides, boils down to the points; as to whether instant petition against order of de novo inquiry is maintainable and whether order of do novo inquiry is justified in view of peculiar facts of the case?

7. Since fate of the first question is dependent upon the answer of the second one, so it would be appropriate to address the latter first and then proceed to determine former question.

8. It is undisputed that first inquiry was initiated on the direction of the competent authority and the inquiry Officer submitted his report with recommendation of penalties against petitioners. The penalties were recommended because charge against them stood proved, though partially, which did not satisfy the competent authority and de novo inquiry has been ordered followed by constitution of inquiry committee. Rule 14 of the Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011 deals with such situation, which, to better appreciate the legal import and encompass actual aspects of the case, is reproduced as follows :- "

14. Order to be assed on receipt of report from the inquiry officer or inquiry committee.-- (1) On receipt of report from the inquiry officer or inquiry committee, as the case may be, the competent authority, shall examine the report and the relevant case material and determine whether the inquiry has been conducted in accordance with the provisions of these rules. (2) If the competent authority is satisfied that the inquiry has been conducted in accordance with the provisions of these rules, it shall further determine whether the charge or charges have been proved against the accused or not. (3) Where the charge or charges have not been proved, the competent authority shall exonerate the accused by an order in writing, or it shall follow the procedure as given in sub-rule (6) of this rule. (4) Where the charge or charges have been proved against the accused, the competent authority shall issue a show-cause notice to the accused by which it shall- (a) inform him of the charges proved against him and the penalty or penalties proposed to be imposed upon him; (b) give him reasonable opportunity of showing cause against the penalty or penalties proposed to be imposed upon him and to submit as to why one or more of the penalties as provided in rule 4 may not be imposed upon him and to submit additional defense in writing, if any, within a period which shall not be less than seven days and more than fifteen days from the day the charge or charges have been communicated to him: provided that the accused shall, in his reply to show-cause notice, indicate as to whether he wants to be heard in person or not; (c) provide a copy of the inquiry report to the accused; and (d) direct the departmental representative to appear, with all the relevant record, on the date of hearing. (5) After affording personal hearing to the accused the competent authority shall, keeping in view the findings and recommendations of the inquiry officer or inquiry committee, as the case may be, facts of the case and defense offered by the accused during personal hearing, by an order in writing-- (i) exonerate the accused if charges had not been proved; or (ii) impose any one or more of the penalties specified in rule 4 if charges have been proved. (6) Where the competent authority is satisfied that the inquiry proceedings have not been conducted in accordance with the provisions of these rules or the facts and merits of the case have been ignored or there are other sufficient grounds, it may, after recording reasons in writing, either remand the inquiry to the inquiry officer or the inquiry committee, as the case may be, with such directions as the competent authority may like to give, or may order a de novo inquiry through different inquiry officer or inquiry committee 3 [subject of sub-rule (7) of rule 11] (7) After receipt of reply to the show-cause notice and affording opportunity of personal hearing, the competent authority shall decide the case within a period of fifteen days, excluding the time during which the post held by the competent authority remained vacant due to certain reasons. (8) If the case is not decided by the competent authority within the prescribed period of fifteen days, the accused may submit an application before the appellate authority for early decision of his case, which may direct the competent authority to decide the case within a specified period.

9. Bare reading of Sub-Rules (1), (2) and (3) transpires that the competent authority is to examine the report of Inquiry Officer and to determine as to whether inquiry has been conducted in accordance with the provisions of this Rule or otherwise and if satisfied that the inquiry has been conducted in accordance with the prescribed rules, it shall further determine that whether charge or charges have been proved against accused. By virtue of Sub-Rule (3) if the charge or charges have not been proved, competent authority is entitled to either exonerate the accused by order in writing or it may follow the procedure provided in Sub-Rule (6). Sub-Rule (6) stipulates that when the competent authority is satisfied that the inquiry proceedings have not been conducted in accordance with the provisions of these rules or merits of the case have been ignored, it can, after recording reasons in writing, either remand the case to the same inquiry officer/inquiry committee or may order de novo inquiry through different inquiry officer or inquiry committee. First deficiency found in the instant case is that competent authority has resorted to sub-rule (6), without realizing the requirement of sub-rule (3), which only empowers it to have recourse to sub-Rule (6), when charge or charges against accused officer have not been proved. In the instant case, first inquiry officer has found the petitioners guilty of charges and recommended penalties therefor, Particularly, major penalty has been recommended for petitioner No.1. In the given circumstances, Competent Authority could have followed the procedure provided in sub-Rule (4) of Rule-14 of ibid Rules. Secondly, competent authority was required to record reasons in writing, if it was not satisfied with the procedure of inquiry or facts and merits of the case, before passing an order for de novo inquiry. Recording "reasons in writing" is an inbuilt requirement of sub-rule-(6) of Rule 14 of the E & D Rules, 2011, which cannot be simply dispensed with. Had there been no such statutory requirement, yet, in terms of Section 24-A(ii) of the General Clauses Acts, 1897, the competent authority was required to record reasons in support of his order, adversely affecting petitioners. It is another illegality vividly palpable from the record. Learned AAG to meet the objection has referred to letter No.SO(E-1)/E&AD/5-94/2014, dated 25th February, 2014, addressed to previous inquiry Officer Muhammad Younus Javed. We are not convinced to subscribe to this argument because it was a letter to the former Inquiry Officer, vide which explanation has been called, from him. It cannot be, legally considered as required reasons in support of an order of de novo inquiry, to meet the statutory requirement. Learned AAG could not lay hand on any such order of the competent authority with reasons, vide which de novo inquiry has been ordered, by disagreeing with the findings of the former report and on what account. In absence of any such express order backed by reasons, order of de novo inquiry and that too in the form of letter addressed to the previous Inquiry Officer, is bad in law which cannot be countenanced when placed before the court for judicial review.

10. In view of the report and recommendation of the first Inquiry Officer, wherein he has recommended penalties against accused officers, competent authority could only proceed under sub-Rule-(4), which copes with such situation when charges are proved against accused officer. Learned AAG contended that had there been any malice on the part of competent authority, for imposing a harsh penalty, it could have done so, because law so permits. If competent authority is not bound by the recommendations of the Inquiry Officer in matter of quantum of punishment, it is illogical to order de novo inquiry. It is embodied in the Rules, that de novo inquiry can only be ordered when charge is not proved and not otherwise. We are not supposed to clairvoyant or gaze into the crystal balls by guesswork that what could have been done by the competent authority and what could not. Rather we are concerned what is before us in black and white, in the form of record. It is basic principle of law that act must be done in the manner provided under the law or not at all. Competent authority was required to follow the rules and proceed in accordance with law and not to depart therefrom. It is well established principle of law that the authority or Tribunal are vested with power/jurisdiction to decide the matter rightly and not wrongly and they are not supposed to transgress the legal provision. Whenever an order or action is taken in violation of law, it is without jurisdiction rendering it amenable to the judicial review in writ jurisdiction.

11. We, in view of aforesaid discussion, are of the considered view that neither formal order of de novo inquiry, in accordance with law has been passed nor letter addressed to previous inquiry Officer can be termed as order of de novo inquiry, hence the edifice built on such illegal foundation shall crumble to the ground.

12. Since we have held that the whole proceedings of de novo inquiry are illegal and coram non-judice, so it can surely be questioned in writ jurisdiction. However, objection of jurisdiction was raised in view of section 4 of the Service tribunal Act which stipulates that any civil servant aggrieved by any final order, whether original or appellate, may question it before the Service Tribunal. It is the stance of petitioners that it is not a final order, so it is not appealable. There is no cavil with the factual aspects of the impugned proceedings, based on letter addressed to the previous Inquiry Officer that it was not a final order which could be challenged before the Service Tribunal in appeal under Section 4 of the ibid Act. Rather the competent authority has ordered a fresh inquiry, constituted inquiry committee, and that too without passing any formal order, sans of any reasons. It was offending the petitioners, since they have already undergone the process of earlier enquiry, in which they have been found guilty, though of some charges and penalties have been recommended against them. By de novo inquiry, they were put in cumbersome process of second inquiry, which, they have questioned in the instant writ petition. Even Rule 19 of Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules 2011 provides right of appeal to the government servant but against final order. No interlocutory order can be questioned in appeal before the Service Tribunal, hence appeal before the Service Tribunal was not maintainable. On the other hand, we have already found that impugned action/order was in violation of Rule 14(3) of the E & D Rules, 2011. An action taken or order passed in transgression and violation of statutory provision is open to judicial review and an aggrieved party can maintain the writ petition against such illegal and coram non judice order. Thus instant petition has competently been filed and is maintainable.

13. We have been informed that during the pendency of instant petition, de novo inquiry has been concluded and some more accused/officers have been exonerated from the charges except petitioner No.1, against whom penalty of compulsory retirement from service has been recommended, followed by show cause notice, for his removal from service on 21.9.2016. Since we have already declared the de novo inquiry as illegal, without lawful authority and corm non-judice, hence any de novo inquiry followed by any order or show cause notice are illegal, unlawful, coram non judice , having been passed without lawful authority hence are liable to be struck down.

14. For what has been discussed above, we admit and allow this petition by declaring the de novo inquiry as illegal, unlawful, without lawful authority and of no legal effect. However, competent authority may proceed on the basis of first inquiry, which is not subject matter of instant petition. ZC/376/P Petition allowed.