P L D 1984 Karachi 183 (PLP)

NASIR ASLAM ZAHID, J.-In this Constitutional Petition filed by the petitioner, an employee of the respondent Corporation, has challenged the decision of the respondent to hold a fresh enquiry against the petitioner in respect of a charge of misconduct, which decision was communicated to the petitioner through a letter, dated 18-R-1982 of the respondent addressed to the petitioner. The petitioner is a Meter Inspector in the respondent Corpora­tion. A charge-sheet dated 25-9-1980 was served upon the petitioner in respect of certain misconduct on the part of the petitioner. Pursuant to the charge-sheet, dated 25-9-1980, a domestic enquiry was conducted against the petitioner in accordance with the provisions of the Standing Orders Ordinance, 1968. After the completion of. the enquiry the petitioner was exonerated of the charge contained in the charge-sheet, dated 25-9-1980 and this order was intimated to him by the letter dated 10-6-1982 of the manage­ment of respondent Corporation. The letter dated 10-6-1982 of the respondent reads as follows "Subject : Exoneration of the charge. This has the reference of charge-sheet No. CCB/5472-0/365, dated 25-9-1980. An enquiry was held into the charge levelled against you and the Enquiry Officer has reported that the same could not be proved against you, as such you are exonerated of the charge. By the order of the management the Karachi Electric Supply Corporation Limited. (Sd.) Dy. Chief Admn. Officer (Services)." It is apparent from the letter dated 10-6-1982 of the management of the corporation that the charge against the petitioner could not be proved in the domestic enquiry held against the petitioner and the management exonerated the petitioner of the charge levelled against him through charge­sheet dated 25-9-1980. It is also an admitted position that in respect of the very same charge, a criminal case was registered under section 39 of the Electricity Act, 1930 against the petitioner but by order, dated 27-6-1982, S. D. M. Harbour, Karachi acquitted the petitioner under section 249-A, Cr. P. C. The order dated 27-6-1982 has not been further challenged. By the impugned letter dated 18-8-1982, however, as observed earlier, the petitioner has been informed by the management of the respondent that a decision has been taken by the managment to hold a fresh enquiry into the charge of same misconduct as contained in the original charge-sheet dated 25-9-1980. The letter dated 18-8-1982 is reproduced here :- "You have been intimated through the letter referred to above that you have been exonerated from the charge of misconduct as contained in the charge-sheet No. CCB/5472-0/365, dated 25-9-1980. The said matter was again examined by the Management and it has been found that certain facts have escaped the attention of the Enquiry Committee. It bas, therefore, been decided by the Management to hold a fresh enquiry into the charge of misconduct as contained in the said charge­sheet No. CCB/54 2-0/375 dated 25-9-1980. Mr. Shafiq Ahmad Khan, Director-General, Recovery and Enforcement Cell is appointed as Enquiry Officer to hold the enquiry in the said charge of misconduct as contained therein and you will be afforded full opportunity to produce such an evidence as you deem proper in your defence. You will be intimated of the time, date and place of enquiry in due course of time by the Enquiry Officer. In view of the above the order of exoneration issued vide our No. PSD­5472-0/ENQ/82/1768 dated 10 June, 1982 are hereby withdrawn." In this petition a declaration is sought that the decision of the respondent Corporation to hold a fresh enquiry into charge of misconduct against the petitioner is without lawful authority. We have heard Mr. Sabihuddin Ahmed, learned counsel for the petitioner, and Mr. S. M. Noorul Hasan, learned counsel for the respondent.

2. It has been contended by the learned counsel for the petitioner that two enquiries in respect of the same charge are not contemplated by law and that in any case after applying its mind and exonerating the petitioner, the respondent Corpora,ion has no right under the law to re-open the matter and hold a fresh enquiry against the petitioner. The petition is opposed by Mr. S. M. Noorul Hasan, learned counsel for the respondent, who has raised the following contentions :- (a) This is a premature petition as only a notice has been and final decision has not yet been taken and it is possible, according to the learned counsel for the respondent, that the petitioner may be cleared of the charge in the second enquiry. (b) No legal right of the petitioner has been violated by the decision to hold a second enquiry. (c) There is no violation or principles of natural justice as the petitioner has not been condemned unheard, a final decision has yet to be taken and the petitioner will be given a full opportunity in the second enquiry to raise such defences as he may desire to raise. (d) Under the law there is no bar to the holding of a second enquiry. (e) No mala fide has been alleged."

3. It is an admitted position that the second enquiry proposed to be held against the petitioner is in respect of the same charge. In fact the charge­sheet is the same and by the impugned letter dated 18-8-1982, order of exoneration dated 10-6-1982 has been withdrawn. The letter dated 1 g-8-1982 does not say that any illegality has been committed in the first enquiry or that the Enquiry Offcer at the first enquiry was prejudiced in favour of the petitioner or that he had been influenced by the petitioner. The only reason mentioned in the letter dated 18-8-1982 for withdrawing the order of exoneration dated 10-6-1982 and for taking a decision to bold a fresh enquiry on the same charge is that the said case was again examined by the manage­ment and it was found that certain facts had escaped the attention of the Enquiry Committee. It has not been stated that the reason for holding a fresh enquiry was that any additional evidence has come in possession of the respondent's management which was either not available at the time the previous enquiry was conducted or had been unlawfully suppressed by or at the instance of the petitioner. In these facts and circumstances, after having accepted the report of the Enquiry Officer and having communicated the decision to exonerate the petitioner of the charge contained in the charge sheet dated 25-9-19$0, the management of the respondent cannot re-open the matter and conduct a second enquiry for the reasons mentioned in the letter dated i 8-8-1982. In our view on being communicated the decision of the respondent Corporation that he had been exonerated of the charge, in question the petitioner had acquired a legal right that the matter cannot b re-opened and a fresh enquiry ordered against the petitioner for the same charge except where it can be shown that the first enquiry was an illegal enquiry or that the management had been mislead into issuing an order o exoneration or that there was additional evidence which was not available with the management at the time the first enquiry was held or that evidence had been unlawfully suppressed by the petitioner or that the Enquiry Officer had been influenced by the petitioner whereby a correct conclusion could not be reached by the Enquiry Officer. However, the mere statement that certain facts had escaped the attention of the Enquiry Committee is not sufficient reason which entitled the respondent Corporation to re-open the matter and held a fresh enquiry into the same charge. It is obvious that the report of the Enquiry Officer must have been examined by the management who must have applied their mind in the matter before taking the decision to exonerat the petitioner of the charge in respect whereof the enquiry was held. In these circumstances we find that the respondent had no power or authority to withdraw the order of exoneration and re-open the matter for the reason mentioned in the letter dated 18-8-1982.

4. We find no merit in the preliminary objections raised on behalf of the respondent. No doubt the second enquiry has not been held and the petitioner has approached this Court immediately after the issuance of the letter dated 18.8-1982 of the respondent intimation that a fresh enquiry has been ordered, but as we have already observed that, in the facts and circumstance of this case, for the reasons mentioned in the letter dated 18-8-1982, the matter could not be re-opened and second enquiry conducted, this petition i competent and cannot be dismissed on the ground that it is premature. The decision as taken by the respondent to re-open the matter being itself incompetent, this constitutional petition is maintainable at this stage. For the view that has been taken by us that in the facts of this case a second enquiry could not be ordered on the basis of the reasons mentioned in the letter dated 18-8-1982, there is no substance in the other objections raised on behalf of the respondent.

5. Another argument has been raised by Mr. Noorul Hasan, learned counsel for the respondent based on the decision of the Supreme Court reported in P L D 1982 S C 113 and decision of a Division Bench of this Court reported in 1983 P L C

16. Admittedly the provisions of Pakistan Essential Services (Maintenance) Act, 1952 are applicable to all kinds of employment in the respondent corporation and it has been held in the aforesaid Supreme Court judgment that an employee in such employment can only resort to the remedies contained in the Act 1952. Accordingly to the learned counsel for the respondent at present the petitioner has no right to approach any authority or Court and it is only if any action is taken against the petitioner in violation of any provision of the 1952 Act of the rules made thereunder that the petitioner will then be in a position to take proceedings and that also under the provisions of the 1952 Act. We fail to see how the decision in P L D 1982 S C 1 3 helps the respondent in this case. If the petitioner has no remedy available at this stage and if his legal right has been violated, a constitutional petition is the appropriate remedy for redress of his grievance.

6. As a result we allow Constitutional Petition No. D-717/82 by declaring that the letter dated 18-8-1982 of the respondent Corporation has been issued without lawful authority and the same is of no legal effect and we also issue a direction restraining the respondent Corporation from taking any proceeding against the petitioner pursuant to the letter dated 18-8-1982. The petitioner, will also be entitled to the costs. M, Y. H, Petition accepted.