2011 PLP (C (PLC(CS))

ABDUS SATTAR ASGHAR, J.

Muhammad Bashir Abbasi, petitioner being aggrieved of show-cause notice dated 8-4-2011 issued by the respondent against him has impugned it by invoking the constitutional jurisdiction of this Court on the grounds that since he had been exonerated by the inquiry officer, therefore, respondent i.e. Authority has travelled beyond his jurisdiction while issuing show-cause notice, which is illegal and liable to set aside. He has further alleged that in absence of final order, petitioner cannot avail remedy before the Punjab Service Tribunal, hence, this petition.

2. Respondent was directed to submit parawise comments, which have been lodged on 21-5-2011 containing preliminary objections that the petition is premature and not maintainable in the eyes of law as the competent authority .on receipt of inquiry report issued show-cause notice dated 8-4-2011 and the officer was bound,-to submit his reply to the competent authority but he did not submit his reply to the concerned quarter. While replying on facts it is contended that show cause-cum- personal hearing notice was served to the petitioner in terms of section 13(4) of the PEEDA Act, 2006.

3. Arguments heard. Record perused.

4. Perusal of text of impugned show-cause-cum-personal hearing notice reveals that the respondent, as competent authority after perusal of the inquiry report and other record, for reasons differed with the findings and recommendations of the inquiry officer and thus in exercise of the powers under section 13(4) of the PEEDA Act, 2006 issued the impugned notice to show cause within seven days of the receipt of this notice as to why the penalties provided under section 4 of the Act (ibid) may not be imposed against him. He was further allowed to submit additional defence if any in writing.

5. Bare reading of section 13(1) of the Act (ibid) makes it crystal clear that on receipt of record from the inquiry officer or inquiry committee as the case may be the competent authority shall examine the record and the relevant case material and determine whether the inquiry was conducted in accordance with the provisions of this Act, therefore, in the light of the above referred provision arguments of learned counsel for the petitioner that since he has been exonerated by the inquiry officer as charges were not proved against him, therefore, his case falls under subsection (3) of Section 13 of the Act (ibid) is devoid of any force. The word "shall" used in subsection (1) makes this provision mandatory for the authority. It empowers the authority to examine and decide whether the inquiry has been conducted in accordance with the provisions of this Act. Subsection (3) of section 13 of the Act (ibid) provides that where charges have not been proved the competent authority shall exonerate the accused by passing an order in writing. The provision under subsection (3) of section 13 of the Act (ibid) is not disjunctive of the provision of subsection (1) of section 13 of the Act (ibid). Therefore, I am of the considered view that petitioner's case do not fall in the ambit of subsection (3) or (4) of section 13 of the Act (ibid) rather it attracts provisions of subsection (6) of section 13 of the Act (ibid), which is reproduced hereunder for ready reference.

"--(6) Where the competent authority is satisfied that the inquiry proceedings have not been conducted in accordance with the provisions of this Act or the facts and merits of the case have been ignored or there are other sufficient grounds, it may, after recording reasons in writing, either remand the inquiry to the Inquiry Officer or the Inquiry Committee, as the case may be, with such directions as the competent authority may like to give, or may order a de novo inquiry."

6. Accumulative reading of subsection (1) and subsection (6) of section 13 of the Act (ibid) makes it crystal clear that in the circumstances of instant case respondent being Authority should have proceeded in terms of subsection (6) of section 13 of the Act (ibid) instead of issuing impugned show-cause notice in terms of section 13(4) of the Act (ibid).

7. Nutshell of the above discussion is that the issuance of the impugned show-cause notice under section 13(4) of the Act (ibid) is an excessive exercise of jurisdiction vested in the Authority/respondent. In the circumstances of this case impugned show-cause notice under section 13(4) of the Act (ibid) is illegal and without lawful authority resultantly, this writ petition is accepted and the impugned show-cause notice dated 8-4-2011 is set aside. However, this order will not be a hindrance in exercise of powers vested in the Authority under section 13(1) and (6) of the PEEDA Act, 2006. M.H./M-890/L Petition allowed.