2023 PLP (C (PLC(CS))

ABID AZIZ SHEIKH, J.

This Constitutional petition is directed against the orders dated 31.08.2018 and 25.06.2019, passed by respondents Nos.1 and 2, respectively, whereby the petitioner was removed from service and his appeal was also declined.

2. Relevant facts are that the petitioner was appointed as Medical Technician in BPS-11 on contract basis in year 2009 with Punjab Emergency Service, Lahore (PESL) established under the Punjab Emergency Service Act, 2006 (Act). The petitioner services were regularized on 14.10.2009, however, on 04.08.2018, the petitioner was served with show-cause notice and he was removed from service on 31.08.2018 under Rule 4(5) of the Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007 (Rules). The petitioner being aggrieved filed appeal, which was also dismissed by Appellate Authority on 25.06.2019, hence this Constitution petition.

3. Learned counsel for the petitioner submits that there were serious allegations of misconduct against the petitioner but without holding any regular inquiry, the petitioner was removed from service through impugned orders.

4. Learned Law Officer, on the other hand, submits that under Rule 4(5) of the Rules, the petitioner was issued show-cause notice and also given personal hearing before he was removed from service, for earning three unsatisfactory performance evaluation reports in two consecutive years. He further submits that the regular inquiry can be dispensed with under Section 5(1)(a) of the Punjab Employees, Efficiency, Discipline and Accountability Act, 2006 (PEEDA Act), which was to be applied in these proceedings under Rule 7 of the Rules.

5. Arguments heard. There is no cavil that by plain reading of Rule 4(5) of the Rules, it appears that the Competent Authority may after serving show-cause notice and affording an opportunity of hearing can remove an official from service, who earns three unsatisfactory performance evaluation Reports in two consecutive years. However under Rule 7 of the Rules, in case of other serious charges including "misconduct", the official shall be liable to be proceeded under PEEDA Act. There is also no dispute that under Section 5 (1) (a) of the PEEDA Act, the regular inquiry as required under sections 5 and 9 of PEEDA Act, could be dispensed with.

6. However the perusal of the show-cause notice dated 04.08.2018 shows that same was not merely confined to unsatisfactory three PERs in two consecutive years i.e. 2017 and 2018, rather there were serious allegations of misconduct including irresponsible, non-serious, uninterested and negligent attitude towards job from years 2013 to 2018 against the petitioner, which as per show-cause notice amounts to misconduct and inefficiency. Even in the impugned removal from service order dated 31.08.2018, the Authorized Officer has not confined himself to three unsatisfactory PERs for two consecutive years, rather removed the petitioner from service on the basis of his poor performance from year 2013 to year 2018 and found it to tantamount to grave misconduct.

7. In the light of serious allegations in show-cause notice and removal from service order, it cannot be said that the impugned order was a simple order for removal from service on the basis of three unsatisfactory PERs for two consecutive years for the purpose of Rule 4(5) of the Rules. The show-cause notice dated 04.08.2018 and impugned order dated 31.08.2018 manifests that it was a case of misconduct on the basis of unsatisfactory performance since 2013 till 2018 and therefore, the petitioner could only be proceeded for misconduct under Rule 7 of the Rules read with relevant provision of the PEEDA Act, which contemplated regular inquiry in case of major penalty of removal from service under Section 4(b) (v) of the PEEDA Act.

8. It is not disputed that neither any regular inquiry was conducted nor the petitioner was proceeded under PEEDA Act as required under Rule 7 of the Rules. The learned Law Officer however attempted to argue that the regular inquiry under section 9 of PEEDA Act was specifically dispensed with under Section 5(1)(a) of the PEEDA Act, as recorded in the Appellate Authority order dated 25.06.2019. However, there is nothing available on record to show that the regular inquiry against the petitioner was specifically dispensed with under Section 5(1)(a) of the PEEDA Act by the competent authority after recording cogent reasons.

9. Even otherwise it is settled law that the major penalty like removal from service on the basis of serious allegation of misconduct can only be imposed after regular inquiry. Only in exceptional circumstances, the regular inquiry can be dispensed with and summary procedure may be followed when there was no factual controversy or the allegations are admitted. However, in present case neither allegations were admitted nor the facts were undisputed, therefore, even otherwise regular inquiry could not be dispensed with, notwithstanding the fact that no such inquiry was ever dispensed with specifically by the Competent Authority under Section 5(1)(a) of the PEEDA Act. In this regard, reliance is placed on Abdul Qayyum v. D.G. Project Management Organization, JS HQ, Rawalpindi and 2 others (2003 SCMR 1110), Salman Faruqui v. Javed Burki, Authorized Officer, Secretary, Ministry of Water and Power, Government of Pakistan, Islamabad and another (2007 SCMR 693), Saad Salam Ansari vs. Chief Justice of Sindh High Court Karachi through Registrar (2007 SCMR 1726) and Muhammad Sadiq v. Inspector-General of Police Punjab Lahore and others (2017 SCMR 1880).

10. The similar removal from service order under rule 4(5) of the Rules was challenged before this Court in W.P. No. 255589/2018 and this Court vide judgment dated 16.09.2019 set-aside the said order mainly on the ground that no regular inquiry took place. The relevant part of the judgment is reproduced:- "Admittedly, the petitioner has been fired on the basis of the adverse remarks given in his PERs of two consecutive years levelling allegations of poor discipline and lack of sense of responsibility which were never conveyed to the petitioner. Meaning thereby, the petitioner has been stigmatized before removing him from the service. It has been held by the superior courts in a number of cases that if an employee, even if he is an ad hoc or contract employee, is stigmatized; he will not be removed from service until a regular inquiry is held and fair opportunity of defence is provided to such employee. In this case, no regular inquiry was conducted against the petitioner and the petitioner was removed from service just after giving him a show-cause notice which cannot be equated with a regular inquiry".

11. The aforesaid judgement was upheld by the learned Division Bench of this Court in I.C.A. No. 71261/2019 vide judgment dated 02.03.2020 and it was held that neither any proceedings under Section 5 of the PEEDA Act were initiated nor regular inquiry under Section 5(1)(a) of the PEEDA Act was dispensed with, therefore, the removal from service order is not sustainable. The learned Division Bench also held that the department was required to adopt the procedure of PEEDA Act in the context of the allegations/charges of misconduct. The relevant observation of the learned Division Bench is reproduced here:- "We did not come across any clause or rule, whereby non-obstante effect was extended to the Rules, 2007. There is no ambiguity that the provisions of Act, 2006 would come into play in cases where any officer is proceeded against on the allegations under clauses (a) and (c) of Rule

7. It is an admitted fact that proceedings under Section 5 of the Act, 2006 were not initiated nor any order passed to dispense with regular enquiry, upon due application of mind. Rule 7 of Rules, 2007 has to be read with Section 3 of Act, 2006". "When confronted, learned counsel for the appellant department failed to satisfy that provisions of Act, 2006 would stand excluded in the wake of Rules, 2007. The appellant has not adopted the procedure provided under the Act, 2006, in the context of the allegations/charges levelled. We do not find any reason to upset the judgment impugned and we agree to the findings therein."

12. There is another important aspect of the matter relating to the interpretation of rule 4(5) of the Rules. Under Section 11 of the Act, though terms and conditions of service of employees of PESL can be prescribed by Council, however, there is no specific provision for disciplinary proceedings against them under the Act. On the other hand, the PESL being a statutory body admittedly owned and controlled by Provincial Government, it employees covered under the definition of "employee" under Section 2(h) of PEEDA Act for purpose of its applicability. Further as per rule 3 of the Rules, the provisions of the Rules are in addition to the PEEDA Act. Similarly under rule 7 of the Rules, the official shall be liable to be proceeded under PEEDA Act if he is inter alia guilty of misconduct. From above, there is no doubt that for disciplinary proceedings against employees of PESL, the PEEDA Act will apply and Rules are merely in addition to PEEDA Act.

13. To understand scheme of PEEDA Act in context of this matter, it is pertinent to note that under section 2(n) of PEEDA Act, the word "misconduct" has been defined and under section 2(k), the word "inefficiency" has been defined. Under section 3 of PEEDA Act, an employee shall be liable to be proceeded under PEEDA Act, if he is inefficient, guilty of misconduct or guilty of corruption and in such eventuality, the minor and major penalties prescribed under section 4 of the PEEDA Act can be imposed, which include removal from service. Sections 5 and 9 of the PEEDA Act provide regular inquiry unless the same is dispensed with under section 5(1) (a) of PEEDA Act.

14. Mere allegation of three unsatisfactory "PERs" in two consecutive years as provided in rule 4(5) of the Rules does not appear in the specific definition of misconduct provided under section 2(n) of PEEDA Act. No doubt the definition of "misconduct" in section 2(n) in PEEDA Act is not exhaustive, however, by applying the rule of ejusdem generis, the allegations of three unsatisfactory PERs for two consecutive years fall in the definition of "inefficiency" under section 2(k) of PEEDA Act and not under "misconduct" under section 2(n) of PEEDA Act. However, rule 4(5) of the Rules has introduced this ground as a new ground with major penalty of removal from service. Indeed under Rule 3 of the Rules, the Rules are in addition to PEEDA Act, therefore, this new ground could be introduced in the Rules considering sensitive nature of the job, however, other provisions of PEEDA Act including regular inquiry under sections 5 and 9 of PEEDA Act cannot be dispensed with.

15. By not giving any overriding effect to Rules but saying in rule 3 that Rules are in addition to PEEDA Act, the rule making Authority applied all provisions of PEEDA Act including section 20 thereof to these Rules. Section 20 of PEEDA Act gives overriding effect to PEEDA Act on any other law, hence Rules by mere implication cannot dispense with the provision of regular inquiry under Sections 5 and 9 of PEEDA Act unless same was dispensed with by recording reasons under Section 5(1)(a) of PEEDA Act. Similarly just because Competent Authority may impose major penalty of removal from service under Rule 4(5) of the Rules, the other proportionate lessor penalties including minor penalties for inefficiency under PEEDA Act cannot be excluded.

16. One can argue that such interpretation of Rule 5(4) of the Rules may render the requirement of show-cause notice, hearing and major penalty therein being meaningless. However, if this interpretation is not applied, then the Rule 5(4) will have to be struck down not only being violative of PEEDA Act, which has an overriding effect but also being violative of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution). Therefore, to save the rule and bring it in consonance with law, this interpretation is imperative.

17. I have also noted that previously Rule 4(5) of the Rules had different language, however, this rule was amended through notification dated 18.05.2011. For convenience, the previous rule and current amended Rule 4(5) of the Rules is reproduced hereunder for comparison:- Rule Previous Provision Rule Current Provision 4(5) In case of three unsatisfactory per-formance evaluation reports in two years, the contract of the official may be terminated without an enquiry subject to one month's pay, in lieu thereof and without assigning any reason. 4(5) The competent authority may, after serving a show-cause notice and affording an opportunity of personal hearing, remove from service an official who earns three unsatisfactory performance evaluation reports in two consecutive years. The plain reading of previous rule 4(5) shows that in case of unsatisfactory PERs for two years, the contract of the contract employee could be terminated without any inquiry subject to one month's notice or one month pay in lieu thereof without assigning any reason. However, in the amended rule 4(5) of the Rules, any official including regular employee can be removed from service, if his three PERs are unsatisfactory for two consecutive years, after show-cause notice and affording opportunity of hearing. However interestingly in the amended rule, the inquiry proceedings are not specifically dispensed with as it was done in the previous rule.

18. It is settled principle of interpretation that when phraseology of the Law/Rule is changed by an amendment, the presumption will be that some change in law is intended by the legislation or Rule making Authority. In the previous rule, inquiry was dispensed with as it was merely for termination of a contract employee, however in the amended rule, the matter is for major penalty of removal from service of a regular employee, who is otherwise entitled for regular inquiry under PEEDA Act. Therefore, the amended Rule 4(5) of the Rules, intentionally did not dispense with the regular inquiry. The above discussion leaves no manner of doubt that Rule 4(5) does not dispense with the regular inquiry under sections 5 and 9 of the PEEDA Act unless the said inquiry is specifically dispensed with by the competent authority under section 5(1)(a) of the PEEDA Act.

19. In view of above discussion, the impugned orders dated 31.08.2018 and 26.06.2019 are set-aside. Consequently, the petitioner is reinstated into service, however, it will not preclude the respondents to initiate de-novo disciplinary proceedings against the petitioner strictly in accordance with the Rules and PEEDA Act. It is further observed that as petitioner has been reinstated in service due to procedural defects in the disciplinary proceedings and not on merits of the allegations, therefore, petitioner shall not be entitled for back benefits of the intervening period in view of law settled by the Hon'ble Supreme Court in Muhammad Sharif and others v. Inspector General of Police Punjab Lahore and others (2021 SCMR 962).

20. This petition is allowed in the above terms. SA/M-229/L Petition allowed.