2011 PLP (C (PLC(CS))

MUHAMMAD HASHIM KHAN KAKAR, (CHAIRMAN).

This appeal under section 4 of the Balochistan Service Tribunals Act 1974 has been preferred by the appellant against the order dated 3-12-2009 whereby the major penalty of reduction to lower post for five years was imposed upon him.

2. The relevant facts in small compass are that the appellant was directly appointed as Naib-Tehsildar in the year 1990 on regular basis by the method of initial recruitment. He was served with a show-cause notice dated 6-11-2009 containing the charge of preparation of wrong Mutation entry No.516 Mouza Kot Palyani Tehsil Baba Kot District Naseerabad. He replied to the show-cause notice but the same not being found satisfactory, the major penalty of reduction to lower post for 5 years was imposed upon him.

3. The appellant being aggrieved of the impugned order made departmental representation, which remained unturned, lastly while finding no other way out, he approached this Tribunal by filing the instant appeal. The respondents contested the appeal on legal and factual aspect by filing their written reply.

4. We have examined the matter anxiously in the light of submissions made by both learned counsel, material on the file and relevant provisions of law.

5. At the very outset we have inquired from Mr. Naseer Bangulzai learned Additional Advocate-General as to whether any regular inquiry was conducted in the matter since a major penalty was imposed upon the appellant. The learned A.A.-G. has frankly conceded that no such inquiry has been carried out in the appellant's case.

6. It is now settled principle of law that when a major penalty is to be imposed on a civil servant a regular inquiry is to be held to determine the factual basis of the allegations which are required to be proved in accordance with law. It is true that the authority has the discretion to hold or dispense with regular inquiry but it is also equally true that such discretion is to be exercised in fair and judicial manner. Admittedly "Reduction to lower post for five years" constituted major penalty and could not be inflicted without holding full fledged inquiry which could not be dispensed with in terms of section 5(4) of the Ordinance 2000. Although initial inquiry without associating the appellant was carried out in the instant case being a summary procedure as provided under the Ordinance 2000, but dictates of justice requires that the mode providing better opportunity of defence to the civil servant should be applied specially in cases involving factual controversy.

7. The impugned order also suffers from another material legal infirmity going to the root of the case and resulting in vitiation of the entire disciplinary proceedings as well as impugned order. Admittedly the appellant was directly appointed as Naib-Tehsildar and never held any substantive post in lower rank, therefore, appellant could not be reduced in rank to a post which appellant never held. The question of reversion can only arise when a valid and proper promotion has been made. Direct recruit to a post cannot be reverted to a lower post; it is only a promotee who can be reverted from promotion post to lower post from which he was promoted. It is an inalienable right of every citizen under Article 4 of the Constitution of Islamic Republic of Pakistan 1973 to be dealt in accordance with law. When law requires an act to be done in a particular manner that must be done in that manner and doing of it in any manner contrary to prescribed manner would be illegal. As such, the impugned order being passed in sheer violation of law is not sustainable.

8. There is an other important aspect of the case that the show-cause notice as well as impugned order have been passed and issued by the then Commissioner Naseerabad Division who was not authorized to do so. It would be advantageous to reproduce here in below section 2(a) of the Ordinance 2000, which defines "competent authority" in the following words:-- "Competent Authority" means the [Chief Minister] and where, in relation to any person or class of persons, the [Chief Minister] authorizes any officer or authority, not being inferior in rank to the appointing authority prescribed for the post held by the persons against whom action is proposed to be taken, to exercise the powers of competent authority under this Ordinance, that officer or authority, and, in relation to an employee of a Court or Tribunal functioning under the Government, the appointing authority or the Chairman or Presiding Officer of the Court or the Tribunal."

9. Admittedly the Commissioner was not authorized either to issue the show cause or passed the impugned order because he was not authorized to do so under the provisions of Ordinance 2000. There is also nothing on record to show that he was authorized by the Chief Minister to exercise the powers of competent authority. It may also be pertinent to mention here that the respondent No.2 i.e. Commissioner was also asked by the Senior Member Board of Revenue to withdraw all the proceedings against the appellant.

10. We are of considered view that the impugned order has been passed against the appellant in derogation of Judicially propounded dicta "Justice is not only to be done but should undoubtedly and manifestly appear to have been done" as such, the impugned order is hereby set aside and the appellant is restored to his original substantive' post of Naib-Tehsildar. However, the competent authority is at liberty to initiate departmental proceedings against appellant in accordance with law if so desire. There shall be no order as to costs. H.B.T./11/BST Appeal allowed.