Due process

Petitioners were employees of a university who were proceeded against in relation to alleged irregularities concerning examination forms and bank fee challans and were terminated from service

The Senate subsequently decided to convert the penalty of termination into compulsory retirement

Pivotal question before the High Court under its constitutional jurisdiction was as to "whether the termination/compulsory retirement of the petitioners was in accordance with law; and whether the principles of natural justice were adhered to?"

Held: No statement of allegations was served upon the petitioners, nor were they provided any final show cause notice prior to the issuance of the impugned termination orders

Right to a fair hearing, which included notice of allegations, access to evidence and the right to cross-examine witnesses was a fundamental component of due process which lacked in the present case

The alleged misconduct even if assumed to be under investigation, could not have justified such a hard penalty without first affording the petitioners an opportunity to rebut the allegations in a properly conducted inquiry

University's failure to follow its own rules vitiated the entire disciplinary proceedings

Petitioners were reinstated into service, however, were to remain suspended till finalization of fresh inquiry proceedings

Constitutional petitions were partly allowed, in circumstances.

Briefly, the petitioner was appointed as a driver in the Punjab Workers Welfare Board in 1997 and was served with a show-cause notice on 23.12.2015 for alleged absence from duty, after which the competent authority, following a personal hearing but without conducting a regular inquiry, imposed the major penalty of removal from service

Departmental appeal was dismissed

Thereafter petitioner filed are presentation which was rejected, followed by proceedings before the Labour Court and Labour Appellate Tribunal, both of which ultimately declined relief on jurisdictional grounds, leaving the petitioner to invoke the constitutional jurisdiction of the High Court

The issue requiring determination before the High Court was "whether the penalty of removal from service imposed without holding a regular inquiry under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 was lawful and sustainable?"

Held: Disputed facts were involved in the matter as the petitioner in his reply had taken ground of medical treatment and for issuance of license from another city and authenticity or otherwise of such facts could not be considered without conducting a regular inquiry

If the allegations had been levelled on the basis of complaint of principal, then there was a requirement that right of cross-examination had to be given to the petitioner

No reason had been mentioned by the competent authority to dispense with the inquiry and had proceeded against the petitioner only on the basis of opinion which was not in accordance with the relevant rules

Imposing major penalty to the petitioner in such circumstances was not permissible under any rule or law

Nevertheless, allegation against the petitioner was no more in the filed as his absence period had been converted into leave kind due

The absence period for which the petitioner had already been granted extra ordinary leave without pay could not be considered/mentioned again while imposing on him major penalty of removal from service rather it could be considered that absence period had been regularized by the authority

The respondent department in a stereotype and mechanical manner proceeded against the petitioner and imposed him major penalty of removal from service which was not warranted under law

Even otherwise while dispensing with the regular inquiry, cogent and justifiable reasons should have been recorded by the competent authority but in the present case inquiry had been dispensed with in an arbitrary manner, therefore, the impugned orders were in violation of Arts. 4, 10-A and 13 of the Constitution and Ss. 7, 9 and 10 of the Act

Impugned orders were set aside

The competent authority was at liberty to conduct regular inquiry under the law

Constitutional petition was allowed, in circumstances.

Courts must balance individual rights with the larger public interest.

Courts must balance individual rights with the larger public interest.

Allegation against the petitioner (an employee of respondent-LDA) was that he was involved in preparation of bogus documents/ receipts showing someone as transferee of a plot

Contention of petitioner is that he was not given opportunity to cross-examine the witnesses

Validity

Record reflects that the Inquiry Officer submitted his inquiry report, recommending imposition of minor penalty upon petitioner, however, the Competent Authority disagreed with the said recommendations and ordered for initiation of de novo inquiry

During de novo inquiry proceedings, procedural requirements of a fair trial were not followed, rather straightaway major penalty of "dismissal from service" was proposed against the petitioner

Foremost aspiration of conducting departmental inquiry is to find out whether a prima facie case of misconduct has been made out against the delinquent officer

Guilt or innocence can only be thrashed out from the outcome of inquiry and at the same time, it is also required to be seen as to whether due process of law or right to fair trial was followed or ignored while conducting inquiry

It is against the principle of natural justice to draw a conclusion adverse to the interest of a person on the basis of disputed facts either without recording evidence or providing him proper opportunity of cross-examining the witnesses and lead evidence in his defence

In a regular inquiry, it is a precondition that an evenhanded and fair opportunity should be provided to the accused and if any witness is examined against him, then a fair opportunity should also be afforded to cross-examine the witnesses

In a departmental inquiry on the charges of misconduct, the standard of proof is that of compliance of the principles of natural justice

Even there is no specific reference to the evidence or material, which urged Competent Authority (respondent)to award major penalty of "dismissal from service"

Thus, the said major penalty does not appear to be in conformity with law

High Court set-aside the impugned orders declaring the same to be illegal and without lawful authority and remitted the matter to Competent Authority (respondent) with the direction to first hold regular inquiry by providing opportunity of cross-examining the witnesses

Constitutional petition was allowed accordingly.

Petitioner assailed order passed by Judicial Magistrate whereby he had cancelled the FIR on the recommendation of the police

Validity

In the present case, the alleged occurrence took place on 27.01.2025 and FIR was registered on 29.01.2025

Cancellation report was prepared on 04.02.2025 and forwarded by the prosecution branch on 06.02.2025 to the Trial Court

Said case was fixed before the Judicial Magistrate for hearing on 08.02.2025 and on the same date on the basis of non-appearance of the complainant the Trial Court agreed with the cancellation report and passed the impugned order

Furthermore, the summons issued to the complainant was not duly served, resulting in the complainant's absence before the Court, however, instead of affording the complainant an opportunity to appear, the Court proceeded to pass the impugned order

Said aspect of the matter raised the question as to what urgency existed in the matter that prompted the concerned SHO to file the cancellation report and led the Court to pass the impugned order in such a hasty manners

Story indicated that the due process was not adopted by the Investigating Agency as well as by the Trial Court

Constitutional petition was allowed accordingly and impugned order passed by Judicial Magistrate was set-aside and matter was remanded to investigating agency of submission of fresh report under S.173, Cr.P.C.

Petitioner who was appointed in BPS-21 in Shaheed Zulfiqar Ali Bhutto Medical University (SZBMU/University) was aggrieved of his termination by the University

Contention of the counsel for the petitioner was that the impugned notification was issued contrary to law and by an incompetent authority

Validity

SZBMU/University, is a statutory entity established under the Shaheed Zulfiqar Ali Bhutto Medical University Act, 2013, ('the Act 2013')

The Vice-Chancellor is authorized to appoint, on the recommendation of the selection board, employees up to the pay scale equivalent to BPS-18 as enunciated under S. 13(6)(i) of the Act 2013

Furthermore, under S. 25 of the Act 2013, the Syndicate of the University is vested with, inter alia, the authority to appoint, on the recommendations of the Selection Board, officers to pay scale equivalent to BPS-19 and above

The Syndicate is also empowered to determine the terms and conditions of such appointments, including the pay fixation and other related matters

Thus, under provisions of the Act 2013 all appointments at BPS-19 and above, as well as the determination of terms and conditions of service, fall exclusively within the domain of the Syndicate of the University

In the present case, the petitioner was employed in BPS-21; consequently, his appointment, termination and the terms of service unequivocally fall within the purview of the Syndicate of the University, as delineated under the statutory framework of the Act 2013

Thus, it is vividly evident from the record that the said Notification was issued with the prior approval of the Syndicate, which is the competent authority to pass such orders

The impugned notification has been duly issued and the contents thereof demonstrate that the competent authority, the Syndicate, had exercised its authority and determined the employment of the petitioner in the manner permissible under the terms and conditions governing the employment of the petitioner

Petitioner failed to pinpoint any illegality in the impugned notification

Constitutional petition, being merit-less, was dismissed, in circumstances.

Appellant invoked constitutional jurisdiction of the High Court as the Presiding Officer of the Appellate Board, while relying upon S. 23C (4) of the Foreign Exchange Regulation Act, 1947 ("the Act, 1947"), had required the petitioner/ appellant to deposit before the Appellate Board a surety equivalent to the amount of penalty imposed upon him holding the same as a sine qua non for the appeal to be entertained and decided

Petitioner prayed for holding the provisions of S. 23C(4) to be unconstitutional on the ground that the same offended the rights of the petitioner/accused to be treated in accordance with law fairly and justly and his right to access of justice was also infringed

Validity

Provisions set out in S.23C(4) of the Act, 1947 provides that no appeal shall be admitted for hearing unless the appellant before the Appellate Board deposits in cash amount of penalty or at the discretion of the Appellate Board furnishes security equal in value to such amount of penalty, therefore, there is a complete prohibition enacted by subsection (4) of S. 23C of the Act 1947 to the hearing of the appeal unless the pre-condition is satisfied by an appellant, which is an infringement of the right which inheres in the petitioner to access to justice

One of the most important planks of the right of access to justice is the right to file at least one appeal against the order which affects the rights of a person

Right to file an appeal must be unimpeded and should not be circumscribed by a condition which surely takes away that right

Subsection (4) of S. 23C of the Act 1947 is one such provision which in fact is tantamount to taking away the right of the petitioner in not only filing of the appeal but also the hearing to be granted on that appeal irrespective of whether it fulfills the condition or not

It is one thing to say that petitioner may be burdened with a condition in case he seeks the suspension of the determination of a liability against him pending the appeal but another aspect entirely to provide in the law that the hearing of the appeal will be contingent upon the fulfillment of a condition precedent which if unfulfilled takes away the right of appeal

Distinction will have to be drawn between the two circumstances

Surely, under civil law a money decree can only be suspended if adequate security is provided by the judgment debtor and as determined by Appellate Court, but that mere fact does not mean that in case of failure to do so the appeal shall not be heard on its merits and that the appellant will be deprived of grant of hearing in the appeal itself unless he deposits the security equivalent to the amount of penalty

Subsection (4) of S. 23C of the Act 1947is a clog on the right of the petitioner to be dealt with in accordance with law

Petitioner has the right of filing at least one appeal and for that appeal to be heard without any pre-conditions attached to it, which is a fundamental right under the Constitution and springs from Art. 10A of the Constitution which provides, inter alia, that for the determination of civil rights and obligations, a person shall be entitled to due process, which also emanates from Art. 4 of the Constitution

Said right is absolute and cannot be taken away by laying down a condition which undermines that right

Rule 8 of the Adjudication Proceedings and Appeal Rules, 1998, makes the receipt of an appeal by the Appellate Board subject to compliance with subsection (4) of S. 23C of the Act, 1947, thus, said Rule too prohibits the Appellate Board from hearing the appeal unless the condition is satisfied

High Court set-aside the impugned orders, and struck down subsection (4) of S. 23C of the Foreign Exchange Regulation Act, 1947, as well as R. 8 of the Rules 1998 (to the extent said Rule makes the receipt of an appeal subject to the compliance with subsection (4) of S. 23C of the Act 1947) holding the same as unconstitutional and violative of the fundamental rights of the petitioner/appellant

Constitutional petition was allowed, in circumstances.

When the appellant (Ex-Civil Judge) had refuted the allegations, in such eventuality the matters involved controversial questions of facts which could not have been decided without detailed scrutiny and holding a regular inquiry

Termination of services with stigmatic charges, without holding a regular inquiry, degenerated a host of adverse assumptions against one's character, which had bearing on one's reputation and goodwill for his future career

Thus, it offended right to life and dignity as enshrined under Arts. 9 & 14(1) of the Constitution

Competent Authority must not dispense with the regular inquiry that could be necessary to probe into charge, particularly when there was likelihood of imposition of major penalty of termination of service if the allegation was proven because it would result into grave miscarriage of justice and prejudice to the aggrieved civil servant

Plausible reasons were to be provided, if at all, the regular inquiry was to be dispensed with

Record revealed that the Hearing Officer duly appointed by the Administrative Committee , after affording personal hearing to the appellant, recommended him either to be re-instated or to hold regular inquiry in order to establish allegation leveled against him

However, the Competent Authority did not consider the said recommendation and proceeded to pass termination order after simply providing personal hearing to the appellant

Although the Competent Authority was not bound by the recommendation of the Hearing Officer/Inquiry Officer and had powers to differ with it, however, such power had to be exercised on the basis of duly recorded cogent and valid reasons

No cogent reasons had been assigned, in the present case, by the Competent Authority to disagree with the findings and recommendations of the Hearing Officer

Appellant, as a citizen, was entitled to due process, right to be treated fairly at all times, right to procedural fairness and right to procedural propriety

Record also revealed that, in an identical matter, a regular inquiry had been held, thus, the appellant could not be subjected to the discrimination as enshrined under Art. 25 of the Constitution

Subordinate Judiciary Service Tribunal set aside impugned orders/notifications issued by the Registrar High Court and directed him to hold regular inquiry before deciding the matter as per law

Constitutional petition was allowed, in circumstances.

Petitioners were aggrieved of issuance of notices by Sub-Registrar for payment of CVT which could not be collected in full at the time of registration of documents

Validity

Impugned notice(s) seeking payment of deficiency of the CVT were not sustainable in the eyes of law for the reason that the same had been issued without providing a right of personal hearing to the petitioner(s), without determination of the amount due mentioned therein as stipulated under the law and without considering the exemptions contained in the applicable law

Impugned notice(s) were illegal and of no legal effect as the same had been issued without lawful authority and in violation of due process of law

Fresh proceedings could be initiated against the petitioner(s) for the recovery of deficient amount of the CVT in accordance with law provided there was a valid assessment order

Constitutional petitions were allowed.

Public functionaries while exercising their discretionary power, had to act justly and fairly especially where fundamental rights of the citizen were involved

After introduction of Art.10A in the Constitution, fair trial and due process was a fundamental right of every citizen of Pakistan.

Petitioners were aggrieved of issuance of notices by Sub-Registrar for payment of CVT which could not be collected in full at the time of registration of documents

Validity

Impugned notice(s) seeking payment of deficiency of the CVT were not sustainable in the eyes of law for the reason that the same had been issued without providing a right of personal hearing to the petitioner(s), without determination of the amount due mentioned therein as stipulated under the law and without considering the exemptions contained in the applicable law

Impugned notice(s) were illegal and of no legal effect as the same had been issued without lawful authority and in violation of due process of law

Fresh proceedings could be initiated against the petitioner(s) for the recovery of deficient amount of the CVT in accordance with law provided there was a valid assessment order

Constitutional petitions were allowed.

Such order is void ab initio.

Accused was certainly entitled to "due process of law" and a meaningful opportunity to contest the indictment with a view to vindicate his position; the prosecution and its witnesses also deserved protection of law so as to prosecute the case with least inconvenience and without unnecessary hardship.

Appointment of a person on the recommendation of selection authority during the tenure of ad hoc appointment was sine qua non

Respondent had been appointed prior to the appointment of petitioner and not during the tenure of one year

Authority even on appointment of regular incumbent was bound to serve a thirty days notice or pay in lieu thereof

Such notice was to contain the information of appointment of regular incumbent against the vacancy and an intimation of termination within thirty days from the date of notice

Termination in alternative with immediate effect was to be communicated with pay in lieu thereof

Due process and disclosure of necessary information in a notice or show-cause notice was Fundamental Right of the recipient of the notice

Any action taken on a notice or a show cause notice lacking due process or necessary information would be susceptible to judicial review in constitutional jurisdiction and liable to be set aside

Impugned action of reliving the petitioner verbally on simple transfer of a regular employee being not an incumbent appointed against the vacant post was declared in violation of express provisions of law

Statutory rights even temporary could not be taken away in violation of Fundamental Rights guaranteed under Arts. 4, 10A & 19A of the Constitution

Petitioner had statutory right though temporary to serve for one year unless a regular incumbent was appointed on recommendation of selection authority and that too on service of a written notice for thirty days or pay in lieu thereof

Impugned order passed by the authority was set aside

Petitioner would continue to serve unless her service was terminated in accordance with law

Constitutional petition was allowed, in circumstances.

Assessment order was not required under S. 3B of the Punjab Agricultural Income Tax Act, 1997 and recovery could be initiated on basis of declaration made in an income tax return

Such process did not however curtail right of appeal under S.7 of the Punjab Agricultural Income Tax Act, 1997 nor did it allow Department to ignore procedure prescribed under the Punjab Agricultural Income Tax Act, 1997 and Rules framed thereunder, especially with reference to computation of tax

Assessment order was not mandatory under S.3B of the Punjab Agricultural Income Tax Act, 1997 however any assessment order could be challenged under S.7 of the Punjab Agricultural Income Tax Act, 1997

Calculations must be provided of tax levied and Department was required to disclose information taken from Federal Board of Revenue, rate applied and tax sought to be recovered in recovery notices under Punjab Agricultural Income Tax Act, 1997 so that taxpayer was clear on what amount was due against agricultural income tax

Objections with regard to limitation; jurisdiction, amount sought to be recovered, ownership and exemptions offered by Government itself required due deliberation and entitled the taxpayer due process under the Punjab Agricultural Income Tax Act, 1997.

No action detrimental to the life, liberty, body, reputation or property of any person should be taken except in accordance with law.

'Fair opportunity of hearing' and 'due process' was fundamental right of all the citizens and litigants.

Suit for declaration before Banking Court was filed by the customer/plaintiff seeking declaration to the effect that the plaintiff had nothing outstanding against the defendant bank

Banking Court, after framing of issues, dismissed the suit on basis of statement by defendant/Bank that the Bank would not adopt coercive measures against plaintiff for recovery of loan without determination from competent court

Contention of the plaintiff was that said order of the Banking Court was untenable in law

Validity

Under provisions of S.9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, if the financial institution committed a default in the fulfilment of any obligation with regard to any finance, the customer was also competent to institute a suit in the Banking Court by presenting a plaint

Since the Financial Institutions (Recovery of Finances) Ordinance, 2001 did not provide procedure with regard to scrutiny of plaint, therefore, procedure laid down under Order VII, Rule 11, C.P.C. was applicable to plaints before Banking Court

Only relevant material to determine whether the plaintiff had a cause of action or not for the purpose of Order VII, Rule 11, C.P.C. were only the facts stated in the plaint

Plaintiff could not be non-suited in the circumstances of the case merely on the basis of statement of the defendant-Bank and in the present case Banking Court did not take into consideration the facts given in the plaint

Suit for recovery filed by the defendant bank with respect to finance availed by the plaintiff was pending and if plaintiff's application for leave to defend in the said suit was dismissed, the plaintiff would be left remediless, and such state of affairs would violate Art.10-A of the Constitution; consolidation of the present suit with the defendant-Bank's suit would, therefore, be in the interest of justice

High Court set aside order of Banking Court and remanded the case to the Banking Court with the direction to consolidate the suit with the suit filed by the Bank

Appeal was allowed, in circumstances.

Petitioners impugned cancellation of their admissions at the University, after they had started attending classes and had paid the fee

University had cancelled admissions of petitioners on the ground that same had been made in violation of merit

Validity

Committee formed to review admissions process did not call the petitioners to inquire as to whether they had been involved in any wrongful act to procure admission

Case against the petitioners was based on a presumption that since the Chairman of the Admissions Committee had acted contrary to the rules, hence petitioners must have been involved in gaining admission unlawfully

Once a student was granted admission, a vested right was created in his favour, which could only be cancelled by following the due process of law

Cancellation of admission is tantamount to penalty and in order to impose a penalty, the University officials had to follow due process, which included an inquiry, show-cause notice, hearing and a decision by a competent authority

Admission of petitioners could only be cancelled if they were found guilty of suppression of facts or if it was proved they had obtained admission unlawfully, however, in the present case, the Chairman of the Admissions Committee acted negligently and against policy, but the petitioners could not be held responsible for his actions

Students could not be made liable for mistake or negligence on part of the University

Nothing on record could show that petitioners knowingly got admission to the University contrary to the admissions policy and without such proof, their admissions could not be cancelled

High Court set aside impugned order and directed that the petitioners be allowed to continue their education at the University

Constitutional petition was allowed, in circumstances.

Question of fact or liability conclusively presumed without having recourse to the procedural due process could not be said to have been determined under the "due process of law".