Initiation of proceedings

Section 263 is engaged on the happening of an event either on an application by members (holding certain threshold voting power) or on a report compiled under subsection (5) of S. 231 or by the registrar under subsection (6) of S. 261

If at all the SECP seeks to investigate into the affairs of a company on the basis of a shareholder's application, it must have initiated proceedings under S. 263.

Inquiry is not a necessary prerequisite to issuance of show cause notice and initiation of proceedings under S. 30 of Competition Act, 2010

Provision of S. 37 of Competition Act, 2010 cannot be construed in any way to restrict scope and very purpose of Competition Act, 2010 or to pose constraints on the powers of the Commission by creating procedural hurdles.

In R.4(5) of the Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, prior to amendment, inquiry was dispensed with as it was merely for termination of a contract employee, however in the amended Rule, the matter is for major penalty of removal from service of a regular employee, who is otherwise entitled for regular inquiry under Punjab Employees Efficiency, Discipline and Accountability Act, 2006

Therefore, the amended R.4(5) of the Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, intentionally did not dispense with the regular inquiry

Rule 4(5) does not dispense with the regular inquiry under Ss. 5 & 9 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, unless said inquiry is specifically dispensed with by the competent authority under Ss.5(1)(a) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006.

In a case where an employee was accused of three unsatisfactory PERs for two consecutive years, along with allegations of misconduct such as irresponsibility, non-seriousness, lack of interest, and negligence towards the job, the High Court observed that it was not a simple order for removal from service under R.4(5) of the Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007

Instead, the court ruled that a regular inquiry needed to be conducted.

Under S.11 of the Punjab Emergency Service Act, 2006, though terms and conditions of service of employees can be prescribed by Council, however, there is no specific provision for disciplinary proceedings against them under the Act

On the other hand, the Punjab Emergency Service, Lahore being a statutory body admittedly owned and controlled by Provincial Government, its employees are covered under the definition of "employee" under S.2(h) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 for the purpose of its applicability

As per R.3 of the Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, the provisions of the Rules are in addition to the Punjab Employees Efficiency, Discipline and Accountability Act, 2006

Similarly under Rule 7 of the Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, the official shall be liable to be proceeded under Punjab Employees Efficiency, Discipline and Accountability Act, 2006, if he is inter alia guilty of misconduct

For disciplinary proceedings against employees of Punjab Emergency Service, Lahore, the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, will apply and Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, are merely in addition to Punjab Employees Efficiency, Discipline and Accountability Act, 2006.

Major penalty like removal from service on the basis of serious allegation of misconduct can only be imposed after regular inquiry

Only in exceptional circumstances, the regular inquiry can be dispensed with and summary procedure may be followed when there was no factual controversy or the allegations are admitted.

Definition of "misconduct" in S.2(n) in Punjab Employees Efficiency, Discipline and Accountability Act, 2006 is not exhaustive, however, by applying the rule of ejusdem generis, the allegations of three unsatisfactory PERs for two consecutive years fall in the definition of "inefficiency" under S.2(k) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 and not under "misconduct" as defined in S.2(n) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006

However, R.4(5) of the Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, has introduced this ground as a new ground with major penalty of removal from service

Indeed under R. 3 of the Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, the Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007 are in addition to Punjab Employees Efficiency, Discipline and Accountability Act, 2006, therefore, this new ground could be introduced in the Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, considering sensitive nature of the job, however, other provisions of Punjab Employees Efficiency, Discipline and Accountability Act, 2006, including regular inquiry under Ss.5 & 9 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, cannot be dispensed with.

Under S.2(n) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006, the word "misconduct" has been defined and under S. 2(k), the word "inefficiency" has been defined

Under S.3 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006, an employee shall be liable to be proceeded under Punjab Employees Efficiency, Discipline and Accountability Act, 2006, if he is inefficient, guilty of misconduct or guilty of corruption and in such eventuality, the minor and major penalties prescribed under S.4 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, can be imposed, which include removal from service

Sections 5 and 9 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, provide regular inquiry unless he same is dispensed with under S. 5(1)(a) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006.

Section 20 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 gives overriding effect to Punjab Employees Efficiency, Discipline and Accountability Act, 2006, on any other law, hence Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, by mere implication cannot dispense with the provision of regular inquiry under Ss. 5 & 9 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006, unless same was dispensed with by recording reasons under S.5(1)(a) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006

Similarly just because Competent Authority may impose major penalty of removal from service under R.4(5) of the Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, the other proportionate lesser penalties including minor penalties for inefficiency under Punjab Employees Efficiency, Discipline and Accountability Act, 2006, cannot be excluded.

Show-cause notice revealed that it was not merely confined to unsatisfactory three PERs (Performance Evaluation Reports) in two consecutive years, rather there were serious allegations of misconduct including irresponsible, non-serious, uninterested and negligent attitude towards job, which amounted to misconduct and inefficiency

Petitioner could only be proceeded for misconduct under R.7 of the Punjab Emergency Leave Efficiency and Disciplinary Rules, 2007, read with relevant provisions of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, which contemplated regular inquiry in case of major penalty of removal from service under Section 4(b)(v) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006

Impugned orders were set aside and the petitioner was reinstated into service

Writ petition was allowed accordingly.

It was the third time when authorities proposed to initiate civil / criminal proceedings against petitioner, which twice had culminated/dropped and finalized in favour of petitioner

Proceedings initiated by authorities were not in accordance with law

Proceedings of FIR were lodged after 11 years of tax fraud, if any, and authorities required the petitioner to submit accounts details, documents etc., pertaining to that period which was beyond the mandatory period as provided under S. 24 of Sales Tax Act, 1990

Criminal proceedings against petitioner fell within exceptional circumstances and he was entitled that FIR lodged against him be quashed

High Court quashed FIR lodged against petitioner and all criminal aspects emanating from that FIR were declared null and void and of no legal effect

Constitutional petition was allowed accordingly.

Petitioners/taxpayers were aggrieved of show cause notices issued to them on the plea that proceedings under S.11(2) of Sales Tax Act, 1990

Validity

Allegations contained in show cause notices were based on information gathered from audited accounts and sales tax returns filed by petitioners

Allegations related to disposal of fixed assets by petitioners without payment of sales tax and claiming of inadmissible input tax against purchase made from inactive / de-registered suppliers, details whereof were mentioned in show-cause notice

Excess input tax claimed on insurance, failure to deposit sales tax on advances from customs, suppression of sales tax by way of export declaration, suppression of sales and violation of S.73(3) of Sales Tax Act, 1990, were also alleged in show-cause notice

Allegations contained in show-cause notice fell within the parameters of S.11(2) of Sales Tax Act, 1990

High Court declined to interfere in the matter as there was no jurisdictional error in show cause notices issued to petitioners and factual allegations contained therein required to be responded to by petitioners

Any adjudication by Officer of Inland Revenue, if adversely affecting rights of petitioners, could be challenged in the manner before forums provided under Sales Tax Act, 1990

Constitutional petition was dismissed in circumstances.

Petitioner challenged order passed by department whereby his services were terminated on account of professional misconduct, negligence and inefficiency

Held, that impugned order carried a stigma with it, which had admittedly been passed without a regular inquiry

Impugned order was set aside for being void and having been passed without lawful authority

Competent authority could proceed against the petitioner on the basis of allegations in question after holding a regular inquiry

Constitutional petition was allowed.

For initiation of the enquiry, any complaint filed with the Commission must satisfy the criteria laid down in the express provision of law, i.e. it must be filed by an 'undertaking' or 'a registered association of consumers' and must be substantiated with prima facie evidence, failing which no enquiry thereon can be conducted.

Administrator Auqaf had power to defend any suit, appeal or application filed against him and had power to initiate proceedings including suit, application and appeal in his name.

Contemptuous language was used in the affidavit by using words like 'you' 'you' and 'you' while addressing Judge of the High Court

Effect

High Court observed that incidents of intimidating the court for petty issue and/or to avoid decision on merits in weak cases were increasing day by day

Trial Courts and even the High Court and the Supreme Court had also been experiencing the same

Allegations contained in the affidavit of advocate were false and frivolous

Adjournment had been sought in contemptuous way and counsel of the party had also hand in such design

High Court refrained to take action itself and referred the case to the Bar Council for initiation of proceedings against the advocate and his counsel

Copy of application and affidavit were sent to the Bar Council for initiation of proceedings against both the advocates within specified period

Disciplinary Committee of Bar Council was informed that in case of non-compliance of order the Court would be constrained to initiate the proceedings itself

Application for adjournment was disposed of in circumstances.

Constitution in no way prevented the legislature from proceeding against its own members for the breach of privilege or any rule, hence, jurisdiction over members exclusively belonged to the House.

Even though there is no period of limitation, a point in time must eventually be reached so that if action is to be taken thereafter, the same must be properly justified by Commissioner

Beyond stipulated point in time, onus lies on Commissioner to show as to why action is being taken belatedly and if he fails to discharge this onus, then proceedings would be liable to be set aside.