2006 PLP (C (PLC(CS))

NASIM SIKANDAR, J.

In this constitutional petition following prayer has been made:-- "In view of the above' circumstances, it is very humbly prayed that the orders of respondent No.1 dated 23-10-2005 and 21-2-2005 refusing to change of inquiry officer, and notice of the Inquiry Officer dated 4-7-2006 may kindly be set aside; and respondent No.1 may kindly be directed to appoint an impartial and unbiased inquiry officer to conduct the inquiry in just, fair and reasonable manner."

2. The petitioner while serving as Deputy Director PHATA, Sub Region D.G. 'Khan was proceeded against and after completion of departmental proceedings the respondent No.3, Safdar Ali Cheema, Chief Engineer/Project Director New Murree Water Supply Project Murree was appointed to afford personal hearing to him. It is alleged that while travelling beyond the scope of his duty as hearing officer the respondent No.3 visited the site of, the plot which was alleged to have been transferred on the recommendation of the petitioner. Further that on hearing the petitioner he recommended imposition of major penalty which was neither competent nor based upon the facts emerging from the inquiry report. Accordingly on his recommendation the authority imposed major penalty of reduction in rank of the petitioner on 30-11-2005. The appeal against that order is stated to be still pending.

3. In the meanwhile respondent No.1 Secretary Housing Urban Development and Public Health Engineering Department, Lahore initiated another inquiry against the petitioner and appointed respondent No.3 as Inquiry Officer. It is ,stated that the petitioner objected to his appointment on the ground that having already expressed his mind in the earlier departmental proceedings he did not expect a free and fair trial at his hands. That application is stated to have been rejected by the competent authority.

4. The respondent No.1 in his reply to the contents of the petition has admitted the factum of earlier departmental proceedings as well as the fact that on the recommendation of respondent No.3 made as hearing officer major, penalty of reduction in rank was imposed upon the petitioner. It is also admitted that the request of the petitioner for change of respondent No.3 as Inquiry Officer was not accepted by the concerned authority.

5. After hearing the learned counsel for the petitioner, learned Addl. Advocate-General and on going through the reply submitted by respondent No.1. I will readily agree that in absence of any legal compulsion the respondent No.3 should not have been appointed as Inquiry Officer. The expression of no confidence of the petitioner as an accused officer may not by very well-founded, yet the appointment of respondent No.3 as Inquiry Officer is against the established principle that justice could not only be done, it should manifestly be seen to have been done.

6. The confidence of a party to the proceedings on the person of the Judge or the Arbiter is the first step toward a free and fair trial. An apprehensive party having lack of confidence will never be in a position to put across the table its real case with required certainty and vehemence. The respondent No.3, Inquiry Officer in this case having already been familiar with a number of facts on the basis of which he found the present petitioner to have been guilty of misconduct is likely to remain under influence of his earlier findings.

7. As stated above, there is admittedly no legal compulsion that except for respondent No.3 no other officer available in the Department can possibly be appointed as an Inquiry Officer. Therefore, in order to answer the basic and elementary requirement of justice, equity and fair play I will direct the respondent No.1 to appoint some other person/officer in place of respondent No.3 to proceed against the petitioner as an Inquiry Officer.

8. Disposed of. H.B.T./M-481/L Order accordingly.