2020 PLP (C (PLC(CS))

AHMAD ALI, J.

Through the instant constitutional petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner has prayed for the following relief: "It is, therefore, respectfully prayed that on acceptance of this Writ Petition, an appropriate writ may please be issued declaring the initiation of departmental proceedings vide letter No.(L-G)3-7 / court/2019 dated 15.01.2019 of respondents as illegal, unlawful, without jurisdiction and violation of judgment and order dated 24.04.2018 of Khyber Pakhtunkhwa Service Tribunal. Therefore, is of no legal affect and liable to be struck down. Any other remedy deemed appropriate in the circumstances of the instant writ petition may also be granted."

2. The long and short of the present constitutional petition is that the petitioner was serving in the Local Govt. and Rural Development Department, Mardan, and he owing to some departmental proceedings was awarded major penalty of compulsory retirement. However, in the Service Appeal No.805/2014 filed by petitioner against the penalty of compulsory retirement, the petitioner was reinstated into service vide Judgment dated 24.04.2018 and thereby respondents were directed to conduct a de-novo inquiry within a period of 90 days after the receipt of judgment. It was, however, observed that the issue of back benefits will be subject to outcome of the de-novo proceedings. Resultantly, respondents reinstated the petitioner vide Letter No.634/AD LG&RDD Mardan dated 01.08.2018. The petitioner then filed application for implementation of the decision dated 24.04.2018 of the K.P. Service Tribunal to the extent of award of back benefits. Upon this, respondents flexed their muscles against petitioner and the Assistant Director (Litigation) of the Directorate General of Local Government and Rural Development Department vide letter dated 15.01.2019 directed the Deputy Director, Local Govt. Commission, Peshawar to complete de-novo inquiry. Hence, petitioner aggrieved of the conduct of de-novo inquiry has filed present constitutional petition.

3. This court directed respondents to file para-wise comments to the writ petition which have been furnished, wherein, issuance of the desired writ is opposed.

4. We have heard arguments advanced by Mr. Babar Khan Yousufzai, Advocate, for petitioner and Mr. Wilayat Khan. A.A.G. for respondents at length and gone through the record.

5. A threadbare perusal of the record reveals that the petitioner was previously serving as Moharrir in the General Record room of Deputy Commissioner Office Mardan. He was taken to task on the allegation that he along with Moharrir Tameel namely Mushtaq Ali, tempered the entry at Serial No.675 dated 10.08.1974 the register of Karim Khan Stamp Vendor and thereby the rights of one Mst. Faiza were affected adversely. Moreover, a complaint was also filed against the petitioner by Mr. Sher Bahadur Khattak Advocate, Tehsil Court Takht Bhai. Three different inquiries were conducted and inquiry officers recommended major penalty of compulsory retirement for the petitioner and finally, he was awarded a major penalty of compulsory retirement. The petitioner called in question the vires of major penalty through a Service Appeal before Khyber Pakhtunkhwa Service Tribunal. His appeal was succeeded and he was reinstated into service vide judgment dated 24.04.2018 with the direction to respondents to conduct a de-novo inquiry into the matter within a period of 90 days after the receipt of judgment. The issue of back benefits was attached to the fate of de-novo inquiry. Thereafter, the petitioner was reinstated into service vide letter dated 01.08.2018.

6. It is evident from Para No.4 (Page 2) of comments that the judgment of Service Tribunal was received to respondents on 14.05.2018, and as such 90 days after receiving the judgment, were completed on 12.08.2018. The petitioner was reinstated into service on 01.08.2018 and thereafter vide letter No. Director (LG)3-1/ Establishment/2013/12721 dated 03.10.2018, Mr. Jahangir Khan Assistant Director LG&RDD Swabi was nominated as Inquiry Officer, however, record manifests that no inquiry was conducted by him. After that, another Letter No. Director (LG) 3-7/Court Cases/2019 dated 15.01.2019 was issued whereby the Deputy Director, Local Govt. Commission, Khyber Pakhtunkhwa was asked to complete the inquiry before 28.02.2019.

7. There was no denial of the fact that the letter for the conduct of de-novo inquiry was for the first time issued on 03.10.2018 following by another letter dated 15.01.2019; whereas, 90 days after receiving the Judgment of Service Tribunal were already expired on 12.08.2018. Compliance of the Court orders in the letter and spirit is not only the responsibility of general public but the government departments too are required to honour the verdict of the Courts and Tribunals. Sufficient time was given to respondents to conduct de-novo inquiry but, as is evident from the Para No.4 of comments, they have adopted various dilatory tactics to delay the implementation of the Judgment of Service Tribunal and failed to comply the same in the letter and spirit.

8. Non-compliance with the orders of the Courts or Tribunals shakes the very foundation of our judicial system and undermines the rule of law, which we are bound to honour and protect. It is indispensable to maintain the faith and confidence of the people of this Country in the judiciary. Whenever an act adversely affects the administration of justice or which tends to impede its course or tends to shake public confidence in the judicial institutions, the Courts are not supposed to bear such an act. The jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is a supervisory and extraordinary original jurisdiction. The High Court under its constitutional jurisdiction can discourage an act which adversely effects the majesty of law or dignity of the courts; and this Court can take every measure to protect the administration of justice from being maligned. In the general interest of the community, it is imperative that the authority of Courts should not be imperilled and there should be no unjustifiable interference in the administration of justice. No such act can be permitted which may have the tendency to shake the public confidence in the fairness and impartiality of the administration of justice. The government departments are not aloof from the law rather they are comparatively more responsible to follow the dictum of Courts or Tribunals.

9. As mentioned above, 90 days after receiving the judgment were admittedly completed on 12.08.2018 while letter for the nomination of inquiry office was issued much after that, on 03.10.2018 and then letter dated 15.01.2019 was issued to another officer for the completion of inquiry; thus, both the ibid letters were stale demand. The inquiry being not done within the period given by the K.P. Service Tribunal, both the ibid latter including the inquiry proceedings have become void and being violative of the judgment of service tribunal the same cannot provide any legal backing to respondents.

10. In the case of "Zahoor-ud-Din Sheikh v. Pakistan Atomic Energy Commission through Chairman, Islamabad" 2007 PLC (C.S.) 959 the employee was removed from service and the Federal Service Tribunal vide Judgment dated 16.07.2002 directed respondent-department to reinstate the said employee into service and to hold a fresh inquiry within a period of six months of the judgment. The appeal of the Department before august Supreme Court of Pakistan was dismissed. The department then, after the lapse of six months provided period, proceeded against the said employee and again removed him from service. Failure of department to complete inquiry within six months per judgment dated 16.07.2002 rendered all the proceedings conducted beyond stipulated period six months as null and void; and thereby the Federal Service Tribunal reinstated the employee into service with all back benefits.

11. Besides, the august Supreme Court of Pakistan in the case titled National Bank of Pakistan and others v. Shamoon Khan and others 2010 PLC (C.S.) 608 (Supreme Court) was pleased to hold that the Service Tribunal had given a fair opportunity to bank to initiate inquiry proceedings de novo within a period of three months but nothing could be done for the reasons best known to it. Thereby the Judgment passed by Service Tribunal, as to reinstatement of the employee owing to failure of department to conduct inquiry within stipulated period, was upheld.

12. Although taking a departmental action against a civil servant by authority is an executive discretion of the authority and touches the terms and conditions of service but where, as mentioned in the preceding paras of this judgment, the High Court under its constitutional jurisdiction in order to protect the administration of justice from being maligned and to maintain faith and confidence of the people in the judicial institutions, can examine and judicially review the executive discretion exercised by the authorized officer. Here we deem it necessary to mention that the acts done by the authority in violation of the Judgment of K.P. Service Tribunal cannot be given cover under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. The act of non-compliance with the orders of the court or tribunal by itself is an illegal act and this Court in its constitutional jurisdiction can perform the judicial review of such an act of the executive branch. Guidance derived from the verdict of august Supreme Court of Pakistan in the case of Sabir Iqbal v. Cantonment Board, Peshawar through Executive Officer and others (PLD 2019 Supreme Court 189) (b) Constitution of Pakistan

Arts.184(3) & 199

Civil Service

Disciplinary proceedings

Executive discretion of authority

Judicial review

Proportionality, suitability and necessity, tests of

Scope

Court could examine and judicially review the executive discretion exercised by the authorized officer on the ground of proportionality

Alongside reasonableness, proportionality was a central standard directing the action of the executive branch

Disproportionate act that infringed upon a human right was an illegal act

Court, which guarded the legality of the acts of the executive branch, performed judicial review over these acts and examined whether they fulfilled the tests of proportionality

Proportionality was a standard that examined the relationship between the objective the executive branch wished to achieve, which had the potential of infringing upon a human right, and the means it had chosen in order to achieve that infringing objective

Fiduciary duty, from which the administrative duty of fairness and administrative reasonableness were derived, demanded administrative proportionality as well

Courts would quash exercises of discretionary powers in which there was not a reasonable relationship between the objective which was sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior courts were wholly out of proportion to the relevant misconduct

Administrative measure must not be more drastic than necessary

Standards of proportionality and unreasonableness were inextricably intertwined

Unreasonableness contained two elements of proportionality when it required the weight of relevant considerations to be fairly balanced and when it forbade unduly oppressive decisions

Under the first element, proportionality was a test requiring the decision maker to maintain a fair balance, and under this category the courts evaluated whether manifestly disproportionate weight had been attached to one or other considerations relevant to the decision

Second element was that the courts considered whether there had been a disproportionate interference with the claimants rights or interests

More sophisticated version of proportionality provided for a structured test, where under the courts asked first whether the measure, which was being challenged, was suitable to attaining the identified ends (the test of suitability)

Suitability here included the notion of "rational connection" between the means and ends

Next step asked whether the measure was necessary and whether a less restrictive or onerous method could have been adopted (the test of necessity - requiring minimum impairment of the rights or interest in question).

13. Thus, we hold that the inquiry conducted by the respondents/department beyond the scope of 90 days as provided by the K.P. Service Tribunal, is squarely illegal, contumacious and against the rule of law. The writ petition is allowed as prayed for and accordingly, departmental proceedings initiated against petitioner being violative of the Judgment of Service Tribunal are declared null and void. No order as to cost. ZC/44/P Petition allowed.