2025 PLP (C (PLC(CS))

MUHAMMAD KARIM KHAN AGHA, J.

Through this petition, the petitioner has prayed as under: "i. Declare that the impugned order dated 17.02.2022 is illegal, mala fide, arbitrary, unconstitutional, issued in apparent violation of rule 11 of the Rules, 2020 and in excess of jurisdiction and to set aside the same; ii. Suspend the operation of impugned order dated 17.02.2022 till final adjudication of the captioned petition."

2. The facts as narrated in the memo. of petition are that currently, the petitioner is posted as Commissioner IR (Appeals), Hyderabad (BS-20) and on 25.02.2015, the petitioner was served with a charge sheet dated 29.05.2014, on the charges of inefficiency, misconduct and corruption for issuing allegedly illegal refund in respect of M/S Digicom Trading (Pvt.) Ltd. for which the petitioner duly submitted his response to charge sheet denying all charges being false and baseless. It is stated that the petitioner was proceeded against and was awarded a minor penalty vide notification dated 20.05.2015, whereby annual increments of Two years were withheld. The petitioner filed a departmental appeal against said minor penalty notification along with all the relevant documents, however, said appeal was not decided and he then filed Appeal No.400(K)CS/15 before the learned Federal Service Tribunal and vide order dated 01.02.2018, the learned Tribunal was pleased to set aside the order impugned therein with the observation that the findings and conclusion of said order were inconsistent with each other. Resultantly, it was also ordered that the department look into the matter again and to pass an appropriate speaking order, within two (02) months, however, the department took no action for years and the matter attained finality; the petitioner's increment had recommenced after two years and he had also been promoted. However, vide letter dated 17.02.2021, after about six years from the date of imposing minor penalty, the petitioner was notified that the respondents had looked into the matter and they had considered that a minor penalty was inadequate, as such, it was being considered that the petitioner should be awarded the major penalty of dismissal from service. At this juncture, it should be stated that as the refund in question had been held to be legal, there was no question of alleged wrongdoing/offence on the part of the petitioner, however, the respondents, without any lawful authority, are trying to take adverse action against the petitioner. Per counsel, the petitioner received impugned order and has been proceeded against de-novo on the orders of the Prime Minister and this exercise, conducted by the respondents, is absolutely illegal and in grave contravention of Civil Servants (E&D) Rules, 1973 and the Civil Servants (Efficiency and Discipline) Rules, 2020 ("the Rules, 2020").

3. Learned counsel for the petitioner argued that since the impugned order is mala fide and has been issued in apparent violation of law as such in view of the principle of law enunciated by this Court in the case reported at 2011 PLC (C.S.) 562, the petition to challenge de-novo inquiry order is maintainable and in absence of final order, the bar contained under article 212 of the Constitutions is not applicable; that the impugned order offends Article 13(a) of the Constitution of the Islamic Republic of Pakistan, 1973 as the petitioner has already undergone and served the punishment imposed upon him (minor penalty viz, withholding of two (02 annual increments), where after, his increments had been duly recommenced; that the impugned order is issued in absolute contravention of section 11 of the rules, 2020, wherein it is unequivocally legislated that where the authority decides to call for a case which is disposed of, it cannot do so, after a period of one year has passed i.e. 2016; that as the refund in question has been held to be lawful, the offence has disappeared, as such, there can be no question of punishment, in the case of the petitioner; that this Court has passed appropriate orders in identical petitions, as such, similar treatment is solicited pursuant to the rule of consistency. In support of his contentions, he relied upon the case of Riffat Hassan and 9 others v. Federation of Pakistan through Chairman, Federal Board of Revenue/Secretary, Revenue Division and another (2011 PLC (C.S.) 562) and unreported judgment dated 13.10.2022 passed by the Federal Service Tribunal Islamabad (Karachi Bench) in the case of Rajabuddin v. Federation of Pakistan (Appeal No.171(K)/CS/2021). He lastly prayed for allowing the instant petition.

4. Learned Assistant Attorney General vehemently denied the allegations put forward by the petitioner and argued that in fact, de-novo disciplinary proceedings were initiated by Revenue Division, with approval of the Prime Minister as Authority, vide Charge Sheet and Statement of Allegations dated 17.02.2022 on the charges of "Inefficiency". Misconduct, and "Corruption", keeping in view the fact of the case of Mr. Rajabuddin, and the fact that omissions/commissions committed by the petitioner conveyed vide Charge Sheet and Statement of Allegation dated 29.05.2014 were of grave nature, the minor penalty earlier imposed upon him was inadequate and inconsistent vis-a-vis the observations/decision of the Prime Minister of Pakistan in case of Mr. Rajabuddin, co-accused in the case. The de-novo inquiry is not a ease of Revision under Rule 11 of the Rules ibid, as agitated by the petitioner.

5. We have heard learned counsel for the parties and perused the record with their able assistance.

6. The first issue is whether this petition is maintainable under the Constitutional jurisdiction of this court. Based on the particular facts and circumstances of the case we find this petition maintainable in terms of the ratio of the Supreme Court in the case of Riffat Hussain and 9 others v. Federation of Pakistan through Chairman, Federal Board of Revenue / Secretary, Revenue Division and another (supra) Turning to the merits of the case.

7. Disciplinary proceedings were initiated against the petitioner by Federal Government (Revenue) Division Federal Board of Revenue (FBR) under Government Servants (Efficiency and Disciplinary) Rules, 1973 on the allegations of inefficiency, misconduct and corruption. After fulfillment of the required procedure vide Notification dated 20.05.2015 the minor penalty of with holding one annual increment for a period of two years was imposed on the petitioner (the Notification).

8. The petitioner appealed against the Notification to the Federal Service Tribunal (FST) which vide order dated 01.02.2018 (the Order) set aside the Notification and remanded back the matter to the department to look into the matter under the observations of the Order and to pass an appropriate speaking order according to law.

9. At this stage the following points need to be noted; (a) the department failed to act upon the Order and did not lodge any appeal against the same which has now reached finality (b) that the Order was passed 3 years after the Notification awarding the minor penalty on the petitioner which punishment had already been served/carried out on the petitioner and (c) the petitioner was promoted by the department vide notification dated 22.02.2018 from BS 19 to BS 20 to the next grade. 10, Even, otherwise it appears that the Company M/S Digicom Trading (Pvt.) Limited who allegedly the petitioner had illegally benefited through inefficiency, misconduct and corruption by allegedly giving them an illegal massive tax refund which lead to the disciplinary action against him was penalized by the FBR on account of the benefits it received through the inefficiency, misconduct and corruption of the petitioner which the company appealed against and vide order dated 12.01.15 passed by the Office of the Commissioner of Inland Revenue (Appeals I) Karachi its appeal was upheld. When the FBR appealed this order to the Appellate Tribunal Inland Revenue Karachi its appeal was dismissed which tends to indicate that their might not have been any inefficiency, misconduct and corruption on the part of the petitioner in the first case in respect of the Tax payable by Digicom which case the petitioner dealt with.

11. Surprisingly after awakening from a deep slumber after 7 years of the minor penalty being imposed on the petitioner a de novo inquiry was ordered to be conducted against the petitioner for the same offence which he had already been found guilty of 7 years ago and served out his punishment on the basis that the punishment was too light on the orders of the Prime Minister of Pakistan vide order dated 17.02.2022 by virtue of Section 6(A) of the Government Servants (Efficiency and Disciplinary) Rules, 1973 (the impugned Order in this petition) which section for ease of reference is set out below; Section 6-A of the Civil Servants Act, 1973 Revision.-(1) Subject to sub-rule (2), the authority may call for the record of any case pending before, or disposed of by, the authorized officer and pass such order in relation thereto as it may deem fit; (2) No order under sub-rule(1) shall be passed in respect of an accused unless the authorized officer to be designated by the authority has informed him in writing of the grounds on which it is proposed to make the order and has been given an opportunity of showing cause against it, including an opportunity of personal hearing if requested by the accused or is otherwise necessary in the interest of justice, in particular, when the authority contemplates to pass an order to the interest of the accused: Provided that no such opportunity shall be given where the authority, for reasons to be recorded in writing, is satisfied that, in the interest of security of Pakistan or any part thereof, it is not expedient to give such an opportunity.

12. It appears that Rule 6A of the Civil Servants Act, 1973 concerning Revision was replaced through amendment in the Civil Servants Act, 2090 by Rule 11(3) which is reproduced for ease of reference below: Rule 11 of the Civil Servants (Efficiency and Discipline) Rules, 2020 Revision.

(1) Subject to sub-rule (2), the authority may call for the record of any case pending before the inquiry officer or inquiry committee, as the case may be, and pass such order in relation therein as it may deem fit. (2) ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... (3) In case, the authority decides to call for a case pending before an inquiry officer or inquiry committee or pending before or disposed of by the authorized officer in terms of the Government Servants (Efficiency and Discipline) Rules, 1973, the authority may do so in exercise of powers conferred under Rule 6A of the said rules: Provided that this power shall in no case be exercised after one year of disposal of such a case by the Authorized Officer." (bold added)

13. As such it appears that the Prime Ministers reference to Rule 6A in the impugned order was misconceived as his power only flowed to the extent of revision under Rule 11(3) which specifically barred the Prime Minister to call for a disposed of case if that case had been disposed of for more that one year. In this case the delay is 7 years and as such the Prime Minister's order to reopen the case against the petitioner on a de novo basis was misconceived based on the particular facts and circumstances of this case and in particular in the face of the proviso to Rule 11(3) reproduced above.

14. Even otherwise we find that this power might be contrary to Article 13 (a) of the Constitution as it would lead to a person who had served out his punishment again being subject to a further and potentially greater punishment based on the same allegations/offences which he had already been exonerated which might prima facie amount to a case of double jeopardy. Article 13(a) of the Constitution is reproduced for ease of reference below. "Article of (if the Constitution of the Islamic Republic of Pakistan, 1973, Protection against double punishment and self incrimination. No person- (a) shall be prosecuted or punished for the same offence more than once; or (b) shall, when accused of an offence, be compelled to be a witness against himself."

15. Even otherwise the Prime Minister should have been more cautious in exercising his power of review under Rule 11 (3) even if he was acting within the stipulated time limit of one year by seeking proper assistance from the concerned department keeping in view the particular facts and circumstances of each case. For instance in this case as discussed above; namely, (a) the department failed to act upon the Order and did not lodge any appeal against the same which has now reached finality (b) that the Order was passed 3 years after the Notification awarding the minor penalty on the petitioner which punishment had already been served/carried out on/by the petitioner albeit he was later exonerated (c) the petitioner was promoted by the department vide notification dated 22.02.2018 from BS-19 to BS-20 to the next grade after serving out his punishment from which he was later exonerated and (d) the Company which allegedly had illegally benefited by the petitioner's alleged inefficiency, misconduct and corruption had been exonerated of any wrong doing. In order to exercise his power of review under Rule 11(3) he must consider each case on its own particular facts and circumstances and ensure that he is properly assisted by the department in respect of each case before exercising his power of review under Rule 11(3).

16. Thus, for the reasons mentioned above the impugned order is set aside and the petition is allowed as prayed and any pending applications are dispose of. SA/H-6/Sindh Petition allowed.