2015 PLP (C (PLC(CS))

SHAH KHAWAR, J.

The petitioner has challenged the vires of office order No.12/2013 dated 7-2-2013, passed by respondent No.3 whereby major penalty of dismissal from service with effect from 7-12-2013 has been imposed upon the petitioner.

2. Brief facts of the case are that petitioner was appointed as Data Entry Operator on 1-4-2009 in BS-7 and has been performing his duties. He was served with a show-cause notice dated 1-1-2013 and following allegations were levelled:

"(a) Applicant Muhammad Altaf had applied for CNIC in modification category vide Tracking ID No.104461045118 dated 14th March, 2012, while sitting at Print Station. You had briefed applicant that due to fake documents CNIC cannot be processed. Later on, you had sought mobile number of applicant for settlement at your own level in order to achieve ulterior motives. However, CNIC was missing when matter was not settled by you with applicant. (b) When applicant came in office to receive his CNIC but same was not at location. Later on, CNIC was sent to Muhammad Altaf through postal address. Prior to this incident, you had tried to contact applicant through middle man on 24th March, 2012 to settle this issue for gaining some illegal motives, which is clearly violation of SOP. (c) Previously CNICF No.ML 00635374 was processed as afresh without any documents at the time of Data Entry Station by Abdul Rauf, DEO and you had written fake MNIC No.246-50-142975 by hand. Accordingly you were issued warning but you did not give up such practice and again found involved in subversive activities. Thus act displayed by you is highly objectionable and tantamounts to misconduct."

3. The petitioner filed an application dated 1-1-2013 requesting for the supply of certain documents which was not responded to. The petitioner received an office memorandum dated 6-6-2013 for personal hearing requiring him to appear before Director-General on 6-2-2013. The petitioner appeared in the same but with the reservations, that he was not provided documents as requested for.

4. The case of the petitioner is that major penalty of dismissal from service was imposed upon by the respondents which was passed without holding a regular inquiry and recording of evidence which is in gross violation of Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973.

5. Report and para-wise comments were filed by the respondents in which it was mentioned that under Rule 5(iii)(a)(b) of E&D Rules, 1973, if the authorized officer decides that it is not necessary to be an inquiry conducted, then the authority shall inform in writing the accused for the proposed action, to be taken against him after issuing show-cause notice.

6. Heard. Record perused.

7. The case of the petitioner squarely revolve around the principle of "due process of law" which has been enshrined in Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973. In support of his version, the petitioner has relied upon judgments of the Hon'ble Supreme Court of Pakistan in the cases of "Muhammad Haleem etc. v. Director General Pakistan Railways etc." (2009 SCMR 339), "Tariq Mehmood v. DPO Toba Tek Singh etc." (PLD 2008 SC 451) and "Saad Alam Ansari v. Chief Justice, Sindh High Court Karachi through its Registrar"(2007 SCMR 1726) wherein it is held that the competent authority without holding regular inquiry and affording opportunity of hearing, cannot impose major penalty of removal from service merely on the basis that show-cause notice was issued and opportunity of personal hearing was afforded to the petitioner. 8. "Due process of law" has been recognized as a constitutional guarantee by most of the countries in their constitutions. In the Constitution of the Islamic Republic of Pakistan, 1973, through Eighteenth Amendment Act X of 2010, Article 10-A was added as a fundamental right. The concept of "due process of law" is already covered in Articles 4,9,10 and 25 of the Constitution of Pakistan, 1973 but Article 10-A has been specifically added as a fundamental law in the Constitution.

9. In the constitutional history of United Kingdom, Magna Certa was introduced in year 1215. In clause 39 of the Magna Carta, it was provided that:

"No free man shall be seized or imprisoned, or stripped of his rights or possession, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."

10. Later the phrase "due process of law" first appeared in a statutory form in 1354 during the reign of Edward III of England as follows:

"No man of what state or condition he be, shall be put of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law." 11. "Due process of law" has been defined by Encyclopedia Britannica in the following term:

"Due process. A course of legal proceedings according to the rules and principles that have been established in a system of jurisprudence for the enforcement and protection of private rights. In each case, due process contemplates an exercise of power of government as the law permits and sanctions under recognized safeguards for the protection of individual rights."

12. Perusal of the record indicates that in present case, fundamental right of the petitioner as guaranteed by Article 10-A of the Constitution has been violated and he has been dismissed from service without resorting to the principle of due process of law. There is no substance in the arguments of the respondents that the regular inquiry under Rule (iii) of the Efficiency and Disciplinary Rules, 1973 was dispensed with as allegations against the petitioner were proved and established. The contention that opportunity of defence was provided to the petitioner in shape of personal hearing, is also not tenable in law. The record reveals that despite written request made by the petitioner, he was not provided with the requisite documents enabling him to offer any explanation or defence against proposed major penalty of removal from service.

13. Having fortified with the judgments passed by the Hon'ble Supreme Court of Pakistan and internationally recognized doctrine of "due process of law" as referred above, mere issuance of show-cause notice and affording an opportunity of personal hearing was not suffice and the impugned order of dismissal from service passed by respondent No.3 is without lawful authority and same is set aside. The respondents are directed to re-instate the petitioner in service with all back benefits. If the respondents deem it proper to further proceed against the petitioner, same can be done by way of initiating de novo inquiry and that too after holding a regular inquiry and providing an opportunity of fair trial as ordained in Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973. With these observations, instant writ petition stands allowed. SA/A-167/L Petition allowed.