2003 PLP (C (PLC(CS))

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, R.6(3)-- Constitution of Pakistan (1973), Art.199

Constitutional- petition-- Condemning a person unheard

Failure to conduct inquiry

Imposing of major penalties

Petitioner was employee of Murree-Kahuta Development Authority

Charge of misconduct was made against the petitioner, show -cause notice was issued to him and without holding any inquiry, a major penalty for recovery of a sum of Rs.500,000 was imposed on him-- Validity

Appellate Authority ought to have considered the appeal of the petitioner 'Keeping in view the fact that no inquiry was held in the case-- Before imposing the major penalty, the assertion of the petitioner contained in his representation was to be considered in proper perspective to fix the liability and to trace the actual or the other culprits involved in the case-- Proper hearing having not been afforded to the petitioner at the appellate stage, order passed byte Appellate Authority did not decide the contention raised by the petitioner

Order passed by the Authorities was without lawful authority and the same was set aside

Case was remanded to Appellate Authority for decision afresh. Hafiz S.A. Rehman for Petitioner. Raja Saeed Akram, A.A.-G. with M.D. Abbasi, DFO for Respondent. Date of hearing: 3rd October, 2002. This judgment shall dispose of Writ Petitions Nos.2798 of 2000 and 771 of 2000 as common questions are involved.

2. The petitioner was serving as an Assistant Engineer in Murree -Kahuta Development Authority (MKDA) since 2-10-1989. Estimates for the construction of a Road from Chaka-Kas to Biaga received the administrative approval vide letter dated 22-11-1995 in the sum of Rs.31.49 lac. The tenders filed by Messrs H.R. Builders were accepted on 14-1-1996. The estimate was technically sanctioned in the sum of Rs.29.80 lac. The contractor was paid for work done by him after due verification and endorsement of the then Superintendent Engineer approved by the Director General MKDA. He was transferred to the Head Office at Rawalpindi in September, 1997. Meanwhile, the site was handed over and taken over by Kahuta Directorate under orders of the Director General, vide meeting held on 2-10-1997. While the petitioner was so appointed in the Headquarters further payments were made to the said contractor after verifying the work done by Acting SDO Mr. Ahmad Khan. 3.On 27-8-1998 a show-cause notice was served upon the petitioner by respondent No.5 (authorised officer) to the effect that it has been reported by Mr. Kamran Jehangir, Director, MKDA, Kahuta that the contractor has been paid for the work which has not been done at site. A reply was filed by the petitioner and he stated that the spot inspection be made and the work be verified. The petitioner was also intimated that since the said Director has personally verified the facts on site, the inquiry will not he conducted and the petitioner was to be proceeded against under Rule 6(3) of the Punjab Civil Servants (E&D) Rules, 1975. The authorized officer vide letter dated 23--10-1998 proposed imposition of major penalty on the petitioner. The Director-General of MKDA vide order dated 18-11-1998 held the petitioner guilty of misconduct and imposed penalty of recovery of Rs. 5,00,000 from the petitioner with the direction to deposit the amount within 50 days failing which he shall stand removed from service. He tiled a departmental appeal which was not attended to and writ Petition No.2689 of 1999 was filed and this Court directed the Appellate Authority to decide the appeal. The appeal was dismissed vide order dated 30-9-2000. Writ Petition No.2798 of '2000 has been filed to challenge the said orders. The writ petition was admitted to regular hearing vide order dated 27-2-2000.

4. Meanwhile the said MKDA was dissolved and the petitioner amongst others was called upon to report to the S&GAD Department. His services where then transferred to the office of Chief Administrative. Auqaf, Punjab, Lahore. With reference to the said orders passed by the respondents, he was ordered to be relieved from duties as SDO. Pakpattan Zone, Pakpattan. Writ Petition No.771 of 2000 has been filed to question the said order with reference to the said first mentioned writ petition. This latter Writ Petition No. 771 of 2000 was admitted to hearing on 23-5-2002 and the said order was suspended.

5. Learned counsel for the petitioner contends that in view of the charges made against the petitioner, an inquiry could not have been dispensed with and as such his client has been condemned without any hearing. Learned A.A.-G., on the other hand contends that the petitioner is a civil servant. In the alternate, it is stated that the Service Rules are not statutory and as such cannot be enforced. In either eventuality, the writ petition is not competent. Further argues that in the circumstances of the case an inquiry was not necessary.

6. I have gone through the files of these writ petitions in the light of the respective submissions made by the learned counsel and the learned Law Officer. I would like to deal with the said contentions of the learned Law Officer first. Admittedly, the petitioner was an employee of MKDA which is a Corporation established under the MKDA Act, 1986. He is not a civil servant within the meaning of the Punjab Civil Servants Act, 1973 or the Punjab Services Tribunals Act, 1974. So far as the second contention is concerned, I find upon an examination of the said Act that the Rules making power has not been left to the Corporation, rather the Government has retained the said power and the MKDA Service Rules, 1994 have been promulgated by the Governor of the Punjab in exercise of powers under section 32 of the said Act of 1986. Thus the said objections of the learned A.A.-G. are overruled.

7. While examining the several documents appended with these writ petitions, I find that vide shove-cause notice dated 27-8-1998 (Annexure-F) the S.E. MKDA, the authorised officer mentioned the details of the work which was paid for but was not found on the spot. He then conveyed his decision to the petitioner that it is not necessary to conduct an inquiry and he is to be proceeded against under Rule 6(3) of the Punjab Civil Servants (E&D) Rules, 1971. The petitioner, submitted his reply (Annexure H) denying the said allegation. Vide order dated 18-11-1998 with reference to an "inquiry report" dated 4-8-1998 of Director, MKDA, the petitioner was found guilty and the said penalty was imposed. Now in his presentation/appeal, the petitioner complained that no inquiry has been held. I find that it was stated in the said appeal (P.44 of the paper book.) that the Director, MKDA (Enquiry Officer) has found that a stun of Rs.10,053 lac was paid to the contractor in excess. It was further stated that some amounts due to the said contractor against another contract were being withheld and the said Director has rated the remarks on the measurement book that the note recorded by the SDO is irrelevant and is over-ruled and payment is recommended. According to the petitioner, the said act and conduct of the said Inquiry Officer goes to show that the entire case against the petitioner is bogus. Now it was the said appeal that was to be decided by the Appellate Authority which proceeded to decide the same after the said directions of this Court. Now, I do not find a single word in order dated 30-9-2000 (pages 51 to 53) about the categorical assertions of the petitioner. To my mind, it appears that the learned Appellate Authority has proceeded to pass the order and to dismiss the appeal without even reading the said memo of appeal. No doubt a Committee was constituted which carried out the inspection at the spot and as a result of the said inspection the amount was reduced to Rs.4,87,89 yet the said contention of the petitioner has not been considered at all.

8. The learned Appellate Authority ought to have considered the appeal keeping in view the fact that no inquiry was held in this case before imposing the major penalty and the said assertion of the petitioner contained in his representative was to be considered it proper perspective to fix the liability and to trace the actual of outer culprits involved in the case. I, therefore, find that a proper hearing has not been afforded to the petitioner at the appellate stage and further that the said order dated 30-9-2000 does not decide the contentions raised by the petitioner before the learned Appellate Authority. The order is found to be without lawful authority and is accordingly declared as such. Writ petition No.2798 of 2000 is accordingly allowed inasmuch as the appellate order of the Secretary, Government is Punjab. Forestry, Wild Life, Fisheries and Tourism Department is set aside. The result would be that the appeal filed by the petitioner shall be deemed to be pending before the said Authority. 'The appeal will be heard and all the points raised in the appeal shall be decided after examining the record and if need be after notice to the said Director. Learned A.A.-G. to convey this order to the said learned Appellate Authority to whom a copy of this order shall also be remitted by the office immediately. The appeal shall be decided within six weeks of the receipt of the order after heating the petitioner as well as all other concerned. So far as Writ Petition No.771 of 2000 is concerned, the sane is disposed of with the observations that the order of the Chief Administrator, Auqaf, Punjab, Lahore dated 19-2-2000 impugned therein shall be subject to the result of the appeal now to be heard by the said learned Appellate Authority. No orders as to costs. Q.M.H./S-539/L Petition allowed.