2026 PLP (C (PLC(CS))

MALIK MUHAMMAD AWAIS KHALID, J.

The petitioner has filed instant constitutional petition with the following prayer:- In view of above discussion, it is most humbly prayed that the instant writ petition may kindly be accepted and the impugned order/judgment dated 26.7.2016 and removal from service passed by the respondents may kindly be set aside and to reinstate the petitioner in his post with all back benefits.

2. Brief facts of the case are that petitioner joined the service as driver in respondents-department in 1997. On 23.12.2015 petitioner was served with show cause with the allegation of absence from duty. The petitioner replied to the said show cause notice. Thereafter, respondents Nos.1 to 3 provided him an opportunity of personal hearing and imposed major penalty of removal from service vide order dated 15.3.2016 and appeal was dismissed on 26.7.2016. (hereinafter called impugned order). Feeling aggrieved, petitioner preferred an appeal before Punjab Service Tribunal on 15.6.2016 which was withdrawn by him on 20.7.2016. Later, the petitioner filed representation before respondents Nos.1 to 3 which was rejected vide order dated 26.7.2016; feeling aggrieved petitioner challenged the said order dated 26.7.2016 before Punjab Labour Court, Rawalpindi. Notice was issued to the other side and after recording of evidence and hearing both the parties, the grievance petition filed by the petitioner was rejected vide order dated 14.1.2020. The petitioner preferred appeal before Punjab Labour Appellate Tribunal, Lahore, and said court while setting aside the impugned order dated 14.1.2020 dismissed the appeal due to lack of jurisdiction in the light of order dated 20.01.2020 passed by august Supreme Court of Pakistan, in Civil Petitions Nos.2800-2801 of 2019, 2926-2927, 1830-L, 2067-L, 2253-2255-L and 288-L of 2019 titled Bashir Ahmed and others v. The Director General, Lahore Development Authority, Lahore and others and Muhammad Sohail v. Chairman NTS and others (2017 PLC (C.S.) 220). Hence, this writ petition against the impugned removal order as there is no remedy available against the said order passed by respondents. PETITIONER S ARGUMENTS.

3. Learned counsel for the petitioner submits that impugned order has been passed by the competent authority while ignoring the relevant law and facts of the case, therefore, same is unsustainable in the eyes of law; no regular inquiry was conducted against the petitioner which is in violation of sections 7 and 10 of the Punjab Employees Efficiency, Discipline and Accountability of Act, 2006, (the Act); after providing an opportunity of personal hearing, harsh punishment of removal from service has been imposed against the petitioner; impugned order has been passed in hasty and stereotype manner which is against the principle of natural justice and fair trial; petitioner was not provided an opportunity to produce oral as well as documentary evidence to cater the allegations levelled against him. RESPONDENT S ARGUMENTS.

4. In response, learned counsel for the respondents while relying on his parawise reply, submits that the petitioner is habitual one and has already been imposed minor penalty of withholding of two increments for a period of five years; further submits that there is no specific order for dispensation of inquiry against the petitioner and he has no objection if instant matter is remitted to respondent-department.

5. Arguments heard. Record perused.

6. The Court while tracing out the allegation against the petitioner noticed that he remained absent from service from 17.6.2015 to 21.7.2015 without any intimation to his Supervisory Officer and reported back in the school on 22.7.2015 which is about 33 days and submitted no reason for said absence and thereafter forwarded medical leave from 08.9.2015 to 19.9.2015 and three weeks rest from 20.9.2015 to 11.10.2015 and reported back to school on 11.10.2015. Show-cause notice was issued to the petitioner under section 7(b) read with Section 5(1)(a) of the Act vide order 23.12.2015 with the direction to submit reply. The petitioner rebutted show cause in compliance of order dated 23.12.2015 with the contention that the absence of 33 days was not mentioned. He has to visit Karachi on 19.6.2015 for renewal of driving license which was going to be expired on 15.7.2015 and came back from Karachi on 30.6.2015; moved an application for one month leave but there were summer vacation and said application was not accepted; thereafter he undergone Hernia operation, remained admitted in hospital from 08.9.2015 to 12.9.2015 and was advised bed rest by the doctor for more than three weeks. DISPENSATION OF REGULAR INQUIRY.

7. There is no regular inquiry on the record whereas perusal of show cause notice dated 23rd December 2015 issued by the Secretary Board reveals that while dispensation of the regular inquiry no reason has been mentioned therein. Relevant portion is reproduced as under:- AND WHEREAS, the undersigned is of the opinion that it is not necessary to hold an inquiry into the matter in view of the provisions contained in section 5(1) of the Act ibid. It is, therefore, proposed to proceed against you under Section 7(b) read with section 5(1)(a) of Punjab Efficient, Discipline and Accountability Act, 2006. The disputed facts are involved in the matter in hand as the petitioner in his reply taken ground of medical treatment and for issuance of license from Karachi and authenticity or otherwise of these facts cannot be considered without conducting a regular inquiry. If the allegations have been levelled on the basis of complaint of principal, then there is a requirement that right of cross-examination be given to the petitioner. No reason has been mentioned by the competent authority to dispense with the inquiry and has proceeded against the petitioner only on the basis of opinion which is not in accordance with the relevant rules. The stance of the petitioner that he was advised bed rest by the doctor and he submitted medical leave for the said period is concerned, the case of the petitioner could have been referred back to the medical officer to give his clear findings with regard to the medical conditions of the petitioner for the period he remained under the treatment and this fact could not have been thrashed out without conducting a regular inquiry. In such scenarios, imposing major penalty to the petitioner considering the period of leave kind due is not permissible under any rule or law. It is held by the Hon ble Supreme Court of Pakistan in case of The Vice-President (Admin.), National Bank of Pakistan and others v. Basharat Ali and others (1996 SCMR 201) that paramount object of framing of the rules and enactment to provide a fair and reasonable opportunity to an employee to defend himself against the charges brought against him by his employer in order to ensure adherence of the principles of natural justice. The allegation of mis-conduct levelled against the delinquent could not be proved without conducting regular inquiry especially when major penalty is going to be imposed. The purpose for initiation of disciplinary proceeding by the employer is to find out whether charges of misconduct are proved or not and in case his guilt is established, what action should be taken against him under the applicable rules which may include the imposition of penalties minor or major. Reliance is placed on the case of Chief Engineer, Gujranwala Electric Power Company (GEPCO) Gujranwala v. Khalid Mehmood and others (2023 SCMR 291) wherein it has been held as under:- The allegations of dishonesty, corruption and negligence levelled against the respondent No.1 could not be proved without regular inquiry. The astuteness of triggering of disciplinary proceedings by the employer is to find out whether the charges of misconduct levelled against the delinquent are proved or not and, in case his guilt is established, what action should be taken against him under the applicable Service laws which may include the imposition of minor or major penalties. There is no rigid or definitive rule that in each and every case after issuing show-cause notice a regular inquiry should be conducted, but if the department aspires to dispense with the regular inquiry due to some compelling circumstances or exigency, then justifiable reasons should be assigned in writing before dispensing with the regular inquiry. No doubt if a charge is set up or stems from admitted documents, no full-fledged regular inquiry is obligatory, but if the allegations are based on disputed questions of facts, then obviously the employee cannot be denied a right of regular inquiry, specifically where the allegations cannot be resolved without leading evidence and providing a fair opportunity to the parties to cross-examine the witnesses. Further reliance can safely be placed on the case of Naseeb Khan v. Divisional Superintendent, Pakistan Railways, Lahore and another (2008 SCMR 1369) whereby it has been observed as follows:- In case of imposing a major penalty, the principle of natural justice requires that a regular enquiry is to be conducted in the matter and opportunity of defence and personal hearing is to be provided to the civil servant proceeded against as held by this Court in the case of Pakistan International Airlines Corporation v. Ms. Shaista Naheed 2004 SCMR 316 and Inspector-General of Police, Karachi and 2 others v. Shafqat Mehmood 2003 SCMR 2007.

6. Keeping in view the facts and circumstances of the case, we find that petitioner has been condemned unheard and major penalty of dismissal from service has been imposed upon him without adopting the required and mandatory procedure, resulting in manifest injustice. The Hon ble Supreme Court of Pakistan in the case of Saad Salam Ansari v. Chief Justice of Sindh High Court, Karachi through Registrar (2007 SCMR 1726) where it has been held as under:- The appellant has been subjected to a major penalty terminating his service prematurely. The spirit of the law namely PEEDA Act, 2006 is that such terminal punitive action against a civil servant should be taken after an inquiry has been conducted. In the present case, whether the appellant had a satisfactory explanation for his absence for the period mentioned in the show-cause-notice has not been attended by the respondents. It is a matter upon which an opportunity to record evidence ought to have been granted. Likewise, the availability of documentary evidence, if any, with the respondents that justified dispensation of an inquiry ought to have been disclosed/confronted to the appellant. In the absence thereof, we find that the impugned punishment has been imposed upon the appellant without complying with the provisions of the law. CONSIDERING THE PREVIOUS PUNISHMENT.

8. The allegation levelled in the show-cause notice issued against the petitioner on the face of it could not be proved against the petitioner without proper inquiry and without providing an opportunity to adduce evidence not only to the complainant but also to the delinquent employee enabling him to defend against the charges, produce witness in order to prove his innocence as well as to avail the right to cross-examine the witnesses produced against him. But in this case, the competent authority imposed major penalty of removal from service against the petitioner on the basis of show-cause notice only without following the principles of natural justice and adopting process enunciated under the law. Show-cause notice shows that while passing impugned order respondents relied on the previous punishment. When the punishment has already been awarded on the allegation while considering removal, on the basis of past and closed transaction, it amounts violation of Article 13 of the Constitution and considered double punishment. Reliance is placed on the case of Government of Khyber Pakhtunkhwa through Elementary and Secondary, Education Department, Peshawar and others v. Aurangzeb (Ex-Primary School Head Teacher) GPS Wanna Khel Tehsil Takhtbhai District Mardan (deceased) through L.Rs. (2025 SCMR 40) wherein it has been held as under:- In our considered view, the allegations jotted down in the show-cause notice, on the face of it, could not be proved without proper inquiry and without providing an opportunity to adduce evidence not only to the complainants but also to the delinquent employee for him to be able to defend himself against the charges, produce witnesses, if any, to prove his innocence, as well as avail the right to cross-examine the witnesses adducing against him. On the contrary, the competent authority imposed the major penalty of compulsory retirement from service upon the delinquent employee on the basis of a show-cause notice alone, without following the principle of natural justice and due process enunciated under the law. Above said principle that previous punishment cannot be considered while passing the penalty order is fortified by the cases of (2007 PLC (C.S) 1318) and (2005 PLC (C.S.) 1195). THE ALLEGATION ALREADY CONDONED

9. The stance of learned counsel for the petitioner carries weight that allegation against the petitioner is no more in the filed as the absence period has been converted into leave kind due. In one hand the absence period of the petitioner from 19.12.2015 to 29.12.2015 has been converted as extraordinary leave without pay and on the other hand punishment of removal from service has been imposed to the petitioner. The absence period for which the petitioner has already been granted extra ordinary leave without pay cannot be considered/mentioned again while imposing him major penalty of removal from service rather it would be considered that absence period has been regularized by the authority. Granting leave to employee envisaged continuity of his service and if he was seemingly continuing in service such period cannot be considered absence from duty . Reliance is placed on the case of Lahore Development Authority and others v. Muhammad Nadeem Kachloo and another (2006 SCMR 434).

10. The principles of natural justice demonstrated in Articles 4 and 10-A of the Constitution of the Islamic Republic of Pakistan, 1973, require that delinquent should be given fair opportunity to contest charges levelled against him before he is found guilty. The imposition of major penalty of removal from service without conducting a regular inquiry cannot be sustainable in the absence of principle of due process and transparency. No person is unjustly penalized without being given opportunity to present his complete defence. Reliance is placed on the case of The Government of Balochistan, through Secretary Energy Department, Quetta and another v. Muhammad Yasir (2025 SCMR 367) wherein it has been observed as follows: This action was in sheer contravention of Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"), and lacked due process of law. To enjoy the protection of law and to be treated in accordance with the law is a basic fundamental right of every citizen within the precincts ad confines of Article 4 of the Constitution which, in fact, assimilates the doctrine of equal protection of law and accentuates that no action detrimental to life and liberty can be taken without due process. Reliance is placed on the case of Muhammad Saeed v. Pakistan Telecommunication Company Limited through President PTCL and another (2023 PLC (C.S.) 517), where it has been held as under:- The treatment afforded to the petitioner for throwing him out of service after rendering 20 years' service as being regular employee, in no way can be termed justified and in accordance with the cannons of law. The treatment under due process is right of every employee while principle of fair trial is also a fundamental right in terms of Article 10-A of the Constitution

11. The underlying principle of conducting departmental inquiry is to determine whether a case of misconduct is made out and the employee is found guilty. It is mandatory for the Inquiry Officer/ Committee to ascertain whether due process of law or the right to a fair trial, as envisaged under Articles 4 and 10-A of the Constitution was followed. The previous punishment awarded to the petitioner withholding of two increments for five years is not in consonance of Article 13 of the Constitution . The previous punishment could not be made ground for further punishment and this Court is persuaded to agree with the contention of learned counsel for the petitioner that any new punishment on the ground of past punishment would amount to a person being vexed twice and double jeopardy. The respondents in a stereotype and mechanical manner proceeded against the petitioner and imposed him major penalty of removal from service which is not warranted under law. Even otherwise while dispensing with the regular inquiry, cogent and justifiable reasons must be recorded by the competent authority but in this case inquiry has been dispensed with in an arbitrary manner, therefore, the impugned orders are in violation of Articles 4, 10-A and 13 of the Constitution and Sections 7, 9 and 10 of the Act .

12. The upshot of above discussion, instant writ petition is allowed, impugned orders are hereby set aside. The competent authority may conduct regular inquiry under the law. UN/K-22/L Petition allowed.