2017 PLP (C (PLC(CS))

JAWAD HASSAN, J.

Through the instant petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has called in question the legality of order dated 23.11.2016 passed by the Respondent No.2 whereby the Petitioner has been imposed major penalty of dismissal from service by the Respondent No.2.

2. Brief facts of the case are that the Petitioner, being the member of the Committee was assigned duties vide order dated 10.10.2016 during the holy month of Muharram-u1-Haraam. The Petitioner was placed under suspension on 13.10.2016 due to allegation of inefficiency, negligence, corruption, misconduct and misuse of powers/officials position under Section 6 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (the "PEEDA Act"), show-cause notice was issued to the Petitioner to which he filed reply and thereafter opportunity of personal hearing was afforded to the Petitioner and ultimately he was dismissed from service vide the impugned order. Hence, the instant petition.

3. Report and parawise comments were called for from the Respondents who duly submitted the same on 26.01.2017.

4. Learned counsel for the Petitioner mainly laid much stress on the point that the impugned order has been passed by the Respondent No.2 under the capacity of his original designation i.e. District Co-ordination Officer whereas the competent authority to pass such order was District Nazim, as such the order is liable to be set aside; that two other persons were also member of the Committee but they have not been subjected to any proceedings rather only the Petitioner has been penalized with major penalty. Reliance has been placed by the learned counsel for the Petitioner in the case titled Federation of Pakistan through Secretary Defence and others v. Abdul Basit (2012 SCMR 1229) and Khalid Zahir Akhtar v. Federation of Pakistan through Secretary Ministry of Defence (PLD 2016 Lahore 545).

5. On the contrary, learned Law Officer submitted that the instant petition is not maintainable being pre-mature as prior to approaching this Court the Petitioner has not filed any departmental appeal, therefore, he should better adopt the remedy available to him at the first instance i.e. Departmental Appeal. Learned Law Officer relied on the case titled Safdar Ali Nasir v. Chairman TEVTA (2016 PLC (C.S.) 497) and submitted that under the PEEDA Act a complete mechanism has been provided and the employees who have been awarded any penalty under the said Act, may file an appeal before the appellate authority under Section 16 of the PEEDA Act but if the order is passed by the Chief Minister, he may file review. Under this Act, remedy of departmental appeal was available to the Petitioner but he skipped the same. No litigant can be allowed to avoid statutory remedies available to him and to adopt a forum of his own choice. He also placed reliance on the case titled "Punjab Small Industries Corporation v. Ahmad Akhtar Cheema" (2002 SCMR 549), "Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others" (PLD 1996 Supreme Court 246) and "Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim and 27 others" (2001 SCMR 1493).

6. Arguments heard and record perused.

7. Without touching the merits of the case I would like to rely upon the recent judgment of the Hon'ble Supreme Court of Pakistan in the case Muhammad Akram v. DCO Rahim Yar Khan, (2017 SCMR 56) in which the Hon'ble Court held as follows: "The Departmental Appeal against the dismissal from service order is provided under section 16 of the PEEDA, 2006 before the designated Appellate Authority, which in instant case admittedly is the DCO. Rahim Yar Khan. We have examined the impugned Order dated 5.9.2014, passed by the Appellate Authority on merits with an observation that no Appeal was filed under the PEEDA Act, 2006, as already noted in the narrative above. Learned PST without adverting to merits of the case, dismissed the Appeal before it on the ground of limitation only.

7. The Courts are sanctuaries of justice, and in exercise of authority to do ex debito justitiae, that is to say remedy a wrong and to suppress a mischief to which a litigant is entitled. No fetters or bar could be placed on the High Court and or this court to convert and treat one type of proceeding into another type into another and proceed to decide the matter either itself provided it has jurisdiction over the lis before it in exercise of another jurisdiction vested in the very court or may remit the lis to the competent authority/forum or court for decision on merits. Courts have been treating and or converting appeal into revisions and vice versa and Constitution Petitions into appeal or revision and vice versa. Even time consumed pursuing remedy before a wrong in appropriate cases could always be condoned (see Shamsul Haq and others v. Mst. Ghoti and 8 others (1991 SCMR 1135).

8. The Hon'ble Supreme Court of Pakistan, in the case supra has held that the observations given by the High Court in view of the fact that no departmental appeal under section 16 of PEEDA Act, 2006 was ever filed by the Petitioner, were uncalled for. It was further held that Once the Writ Petition, which was filed within the period of limitation as provided for the departmental appeal, was treated and remitted by the High Court as Departmental Appeal, that too when the limitation by than had not ran out as noted above. Therefore, the date of filing of the writ petition within time should have been reckoned as date of Departmental Appeal and ought to have been treated as Departmental Appeal for all practical purposes.

9. The Hon'ble Supreme Court of Pakistan in the case of Muhammad Akram supra has further held as under: "The DCO Rahim Yar Khan/Appellate Authority, as noted above decided the Departmental Appeal on merits, as regard observation made in the order dated 5.9.2014 by him "that no departmental appeal under section 16 of PEEDA Act, 2006 has ever been filed by the Petitioner" in view of above discussion, is not in accordance with law to such an extent it cannot be approved. We refrain from commenting on merits of the case, which was not adverted to by the PST, through impugned Decision dated 28.10.2014, which is set aside, Service Appeal No.3093 of 2014, shall be deemed to be pending and be decided on merits after hearing all the parties concerned as expeditiously as possible. This writ be converted into an appeal and transmitted as an appeal before the Appellant Authority." 8(sic). Admittedly, against the impugned order the Petitioner has not preferred any appeal before the competent Authority/Appellate Authority prior to invoking the constitutional jurisdiction of this Court. The right of appeal has been provided to the Petitioner under Section 16 of the PEEDA Act. The said Section is reproduced below for the purpose of brevity and is as follows: "

16. Departmental appeal and review.-- (1) An accused who has been awarded any penalty under this Act may, except where the penalty has been imposed by the Chief Minister, within thirty days from the date of communication of the order, prefer departmental appeal directly to the appellate authority." 9.(sic) The bare perusal of record reveals that the impugned order was passed on 23.11.2016 and the Petitioner has filed the instant petition on 19.12.2016, meaning thereby that the same has been filed within the period (30 days) as provided under Section 16 of the PEEDA Act to file a Departmental Appeal before the Appellate Authority. Therefore, the date of filing of the writ petition within time is reckoned as date of Departmental Appeal of the Petitioner and is treated as Departmental Appeal for all practical purposes. 9.(sic) In view of the above referred judgments, let a certified copy of this petition along with all the Annexures be sent to the Respondent No.1, who shall treat the same as Departmental Appeal of the Petitioner and decide the same strictly in accordance with law, relevant Rules, Regulations and Policies applicable thereto as well as the pronouncements of the apex Court relied upon by the Petitioner and pass a speaking and reasoned order after providing proper hearing to all the concerned including the Petitioner and any other person, who would be aggrieved by his order, preferably within one months after receiving, the certified copy of order of this Court. Needless to say that the Respondent No.1 shall decide the Departmental Appeal of the Petitioner on its own merits.

10. Disposed of accordingly, ZC/N-8/L Petition disposed of.