1988 PLP (C (PLC(CS))

The petitioner Muhammad Yousaf has moved this Constitutional petition praying therein that the respondents may be directed to immediately re‑instate him in his service with all back benefits and to drop all the illegal proceedings against him.

2. In brief, the case is that the petitioner was serving as Urdu Stenographer in the Urdu Department of the Oriental College, University of the Punjab. Respondent No.3, Dr. Khawaja Muhammad Zakriya, was appointed as Chairman of Urdu Department in the above Institution in the year 1984. The ,petitioner was deputed to work as Urdu Stenographer with the said respondent. The petitioner and one Aneesur Rahman were involved in a case of misappropriation of funds and misplacement of certain official record. The precise allegation against the petitioner was that some discrepancies were found by respondent No.3 in the accounts of scholarship as well as society fees. In order to cover the discrepancies, the petitioner is alleged to have misplaced all the relevant documents. Consequently, the petitioner was suspended by Mr. Muhammad Afzal Dhuddi Authorized Officer on 6‑5‑1985 vide Annexure 'A'. The petitioner was served with a charge‑sheet on 6‑5‑1985. He submitted the written reply refuting all the allegations levelled against him. The Authorized Officer conducted intensive investigation in the case and vide his report dated 28‑9‑1986 (Annexure 'G') came to the conclusion that the charges against the petitioner are not proved and consequently he was absolved of all the allegations. The petitioner armed with the favourable inquiry report of the Authorized Officer referred to above, approached the respondent No.2 for his re‑instatement in service but despite the expiry of more than 14 months, the respondent did not take any action in the matter of his re‑instatement in service. The petitioner then sent a legal notice to the respondent on 15‑11‑1987 (Annexure 'H') requesting the authorities that he has been found innocent by the Authorized Officer and that he is entitled to be re‑instated in service with back benefits. Respondent No.2 on 29‑11‑1987 (Annexure 'I') sent a notice to the petitioner directing him to appear before him on 12‑12‑1987 at 11‑00 a.m. in his office at the Old Campus. It was disclosed in the notice that the competent Authority is not satisfied with the finding of the Authorized Officer, as the punishment proposed to be awarded does not commensurate to the charges levelled against the petitioner which were too serious to take a lenient action. It was further stated therein that the matter pertains to a misconduct, indiscipline and as such, the petitioner was called upon to show‑cause as to why he should not be removed /dismissed from University service. The petitioner aggrieved of this notice dated 29‑11‑1987, has moved the writ in hand challenging the proposed action of the respondent.

3. The principal argument of the learned counsel is that Mr. Muhammad Afzal Dhuddi, Authorized Officer, conducted an intensive investigation in the case and considered each and every aspect of the matter and thereafter submitted a detailed report consisting of as many as 13 pages wherein it was vividly found out by him that no charges against the petitioner have been proved and as such, he should be re‑instated in the University service and should be posted in some other Department of the Institution. It was further reported that all the dues etc. may be paid to him vide the inquiry report (Annexure 'G'). Learned counsel maintained that after this report by the Authorized Officer, under law there was no alternative left with the respondent but to take the petitioner back in service with all back benefits. Learned counsel forcefully submitted that the respondent No.2 was not at all competent to take any action whatsoever under Statute 8 of the Punjab University Employees (Efficiency and Discipline) Statutes, 1975. It is urged by learned counsel that the mere fact that the respondent did not take any action whatsoever for more than 14 months in proceedings against the petitioner, will show that he was wholly satisfied with the result of the inquiry report by the Authorized Officer. The contention of learned counsel is that the issuance of show‑cause notice to the petitioner by the competent Authority vide Annexure 'I' dated 29‑11‑1987, is wholly without lawful authority. Learned counsel for the respondent contended that the petitioner is not an aggrieved person within the meaning of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1 973, inasmuch as yet no final order has been passed by the respondent against the petitioner. It is submitted that the remedies of appeal and revision are available to the petitioner against the final order of the respondent in the case. He stated that in these circumstances the writ petition of the petitioner appears to be pre‑mature. However, the learned counsel stated that the petitioner was absolved of all the charges levelled against him by the Authorized Officer under Statute 6 of the Punjab University Employees (Efficiency and Discipline) Statutes, 1975.

4. I have heard learned counsel for the parties and have perused the record very carefully. Learned counsel for the respondent has conceded that the Authorized Officer vide his report dated 28‑9‑1986 (Annexure 'G') came to the conclusion that the charges against the petitioner have not been proved and that he should be re‑instated in his service. However, he submitted that despite that, there is no bar for the competent Authority to take action against the petitioner under Statute

8. Therefore, the moot point for consideration is whether under the given facts and circumstances, the provisions contained in Statute 8 are at all attracted to the instant case or not. The precise charge against the petitioner was that he is guilty of misappropriation of University funds and theft of official documents. 'Misconduct' has been defined in Statute 2(e) of the Punjab University Employees (Efficiency and Discipline) Statutes, 1975, as follows:‑ 'Misconduct' means conduct prejudicial to good order of service, discipline or conduct unbecoming of an officer and a gentleman and includes any act on the part of a University employee to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Chancellor, the Pro -Chancellor, or any officer/ Authority of the University in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of his service." The grounds for "penalty" have been given in Statute

3. It included inefficiency, misconduct, corruption etc. In Statute 4, Penalties have been provided which are bifurcated into two; minor penalties including censure etc. whereas the major penalties are reduction in rank, compulsory retirement, removal from service and dismissal from service. Complete procedure has been laid down which procedure is to be observed by the Authorized Officer for the purposes of holding an inquiry against a delinquent official of the University. The provisions contained in Statutes 6, 7 and 8 are reproduced below for ready) reference: ‑ "

6. Inquiry procedure to be observed by the Authorized Officer. The following procedure shall be observed by the Authorized Officer when a University employee is proceeded against under these statutes:‑ (1) In case where a University employee is accused of subversion, corruption or misconduct, the authorized Officer may require him to proceed on leave, if due, or, with the approval of the competent authority, suspend him provided that any continuation of such leave or suspension shall require approval of the competent authority after every three months; (2) The authorized Officer shall decide whether in the light of facts of the case or the interests of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. If he so decides, he shall appoint an Inquiry Officer or Inquiry Committee consisting of two or more persons who or one of whom shall be of the rank senior to the accused or all of the co‑accused and the procedure indicated in Statutes 7 and 8 shall apply. (3) If the authorized Officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall‑‑ (a) by order, in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of action; and (b) give him a reasonable opportunity of showing cause against that action; Provided that no such opportunity shall be given where the competent authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity. (4) On receipt of the explanation of the accused, if any, the authorized officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty, he shall pass orders accordingly. If it is proposed to impose a major penalty, he shall forward the case to the competent Authority alongwith the explanation of the accused, and his own recommendations regarding the penalty to be imposed. "7 Procedure to be observed by the Inquiry Officer and Inquiry Committee: ‑ Where an Inquiry Officer or Inquiry Committee is appointed, the authorized Officer shall‑‑ (1) Frame a charge and communicate it to the accused together with statement of allegations explaining the charge and of any other relevant circumstances which are proposed to be taken into consideration. (2) Require the accused, within a reasonable time, which shall not be less than seven days or more than fourteen days from the day the charge has been communicated to him, to put in a written defence and to state, at the same time, whether he desires to be heard in person. (3) The Inquiry Officer or the Committee, as the case may be, shall enquire into the charge and examine such oral or documentary evidence in support of the charge or in defence of the accused, as may be considered necessary, and the accused shall be entitled to cross‑examine the witness against him. (4) The Inquiry Officer or the Committee, as the case may be, shall hear the case from day to day and no adjournment shall be given except for reasons to be recorded in writing. However, every adjournment, with reasons, therefor, shall be reported forthwith to the authorized Officer. Normally no adjournment shall be for more than a week. (5) Where the Inquiry Officer or the Committee, as the case may be, is satisfied that the accused is hampering or attempting to hamper the progress of the inquiry, he or it shall administer a warning and if, thereafter, he or it is satisfied that the accused is acting in disregard of the warning, he or it shall record a finding to that effect and proceed to complete the inquiry in such manner as he or it thinks best suited to do substantial justice. (6) If the accused absents himself from the inquiry on medical grounds, he shall be deemed to have hampered or attempted to hamper the progress of the inquiry unless medical leave, applied for by him is sanctioned on the recommendation of a Medical Board. Where, in view of the serious condition of the accused, it may not be possible for him to appear before the Medical Board, the Board shall examine him at his residence of which complete address must always be given in the leave application and at which he must be available: Provided that the authorized officer may in his discretion, sanction medical leave upto seven days without the recommendation of the Medical Board. (7) The Inquiry Officer or the Committee, as the case may be, shall, within ten days of the conclusion of the proceedings or such longer period as may be allowed by the authorized officer, submit his or its findings, and the grounds thereof to the authorized officer. (8) On the receipt of the report of Inquiry Officer or inquiry Committee, the authorized Officer shall determine whether tie charge has been proved. If it is proposed to impose a minor penalty, he shall pass orders accordingly. If it is proposed to impose a major penalty, he shall forward the case to the competent authority alongwith the charge‑sheet, a statement of allegations served on the accused, explanation of the accused, the findings of the Inquiry Officer or inquiry Committee and his own recommendations regarding penalty to be imposed. Action by the competent authority. In case of any proceedings the record of which has been reported for under clause (4) of Statute 6 or clause (8) of Statute 7 the competent Authority shall, after affording the accused an opportunity of being heard in person, pass such order as it may deem fit." Under clause (4) of Statute 6, the Authorized Officer shall consider the explanation of the accused, if any, and thereafter he shall determine whether the charge against the accused has been proved. If the proposal is to impose a minor penalty, the Authorized Officer shall pass orders accordingly and if the proposal is otherwise for the purposes of imposing a major penalty, then the Authorized Officer shall forward the case to the competent Authority alongwith the explanation of the accused and his recommendations also regarding the penalty to be imposed by him. Statute 8 shows that the competent Authority shall take action against the accused after giving him an opportunity of hearing and may pass such orders as he might think fit. The short question to be answered here is whether the competent authority is justified in law to take action under Statute 8 or not in the circumstances of this case. I am of the view that respondent No.2 is not competent at all to take the proposed action of dismissal or removal of service against the petitioner. As has already been observed earlier, the Authorized Officer has found the petitioner innocent on the basis of his intensive investigation under clause (4) of Statute

6. The mandate of clause (4) of Statute 6 is crystal clear, It is the duty of the Authorised Officer to determine the nature of charges against the accused. If the case is of such a nature, which requires the imposition of minor penalty, then the Authorized Officer can pass order against the accused person under clause (4) there and then. However, if the proposal is to impose major penalty, then the case has to be forwarded to the competent Authority alongwith the explanation of the accused and his own recommendations regarding the penalty to be imposed. In this case, the Authorized Officer came to the conclusion that the charge has not been proved against the petitioner. Therefore, the case against the petitioner was dropped for all practical purposes. The competent Authority under Statute 8 can impose major penalty upon the accused only when a case has been forwarded to him under clause (4) of Statute 6 or clause (8) of Statute

7. In this case, the Authorized Officer did not recommend that the petitioner may be given major penalty. Therefore, from the plain reading of Statute 8, it becomes clear that the provisions contained therein are not at all attracted to the facts and circumstances: of the instant case. No lis was pending before the competent Authority on the recommendation of the Authorized Officer. Statute 8 has to be read alongwith Statutes 6 and

7. The case of the petitioner was never sent by the Authorized Officer to the competent Authority for taking action against him under Statute

8. It appears that the respondent No.2 did not move any further for full 14 months after the submission of inquiry report by the Authorized Officer dated 28‑9‑1986. By implication, it appears that the respondent accepted the result of the report of the Authorized Officer in the case. Under the circumstances, respondent No.2 is not, therefore, competent at all to take action against the petitioner independent of the recommendation of the Authorized Officer under clause (4) of Statute

6. The contention of learned counsel for` the respondent that the writ petition is pre‑mature inasmuch as the petitioner had adequate and speedy remedies by way of appeal and revision under the Punjab University Act, 1973, I am afraid, I do not agree with learned counsel. After the expiry of such' a long period, the petitioner's case cannot be sent back to the Departmental authorities who have not enough care to dispose of the case of the petitioner expeditiously and speedily. The inquiry report was submitted as back as 28‑9 and despite the repeated efforts of the petitioner, the respondent did not move an inch from his stand and failed to take appropriate action in accordance with law. Thus, in my view, this is a fit in which issuance of writ is warranted in law. The Department remedies, in my view, shall not prove beneficial to the petitioner this belated stage of the litigation.

5. The upshot of the above discussion is that respondent No.2 not competent under law to initiate proceedings against the petition, for the purposes of imposing a major penalty upon him. Thus 11, notice dated 29‑11‑1987 (Annexure 'I') is patently without lawful authority and is of no consequence. Accordingly, direction is issued, to the respondent to immediately re‑instate the petitioner in his service. It shall be deemed in law that the petitioner has been in service throughout. The petition succeeds and is allowed leaving the parties to bear their own costs. A.A. / M‑583/ L Petition accepted