Departmental appeal

2024 SCMR 181 SUPREME-COURT Judicial Precedent

S. 21Punjab Service Tribunals Act (IX of 1974), S. 4Police Rules, 1934, R. 12.21Police officialOrder of discharge from service under Rule 12.21 of Police Rules, 1934Departmental appeal

Whether a departmental appeal could be filed against the order of discharge from service under Rule 12.21 of Police Rules, 1934

After the petitioner was discharged from service under the Rule 12.21, he filed a departmental appeal, which was rejected being not maintainable under said Rule

Petitioner filed an appeal before the Service Tribunal, which was dismissed on the point of limitation

Entire emphasis of the Tribunal was on the fact that, instead of filing a service appeal before the Tribunal, the petitioner filed a departmental appeal before the DIG of Police, which was not appealable before the department in terms of Rule 12.21

Validity

Although no right of appeal against the ,discharge from service is provided under Rule 12.21 of the Police Rules, 1934 but at the same time, one cannot ignore the niceties of section 21 of the Punjab Civil Servants Act, 1974 wherein it is clearly spelled out that if no provision for appeal or review exists, a civil servant aggrieved by any such order may make a representation to the authority next above the authority which made the order

Likewise, the nitty-gritties of Section 4 of the Punjab Service Tribunals Act, 1974 explicate that where an appeal, review or representation to a departmental authority is provided under the Punjab Civil Servants Act, 1974, or any rules, against any such order no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal of application for review or representation to such departmental authority

In the present case the petitioner filed the departmental appeal and was only non-suited on the ground that no appeal lies against the discharge, but the departmental authority failed to consider that against the order of discharge, representation was maintainable

Departmental Authority should have seen the pith and substance of the grievance lodged by the petitioner rather than focusing solely on the nomenclature of the representation

Both the departmental authority and the Tribunal failed to take into account that if a right of appeal or review was not provided in Rule 12.21 then, in unison, it does not debar or prohibit the civil servant from electing the remedy of filing a representation as of right, which could not be turned down on hyper-technical grounds but should have been decided on merits, rather than rejecting it being non-maintainable as an appeal instead of representation

Petition for leave to appeal was converted into appeal and allowed; the impugned judgment was set aside and the matter was remanded to the appellate authority (department) where petitioner's appeal shall be deemed to be pending, which shall be treated as a representation under section 21(2) of the Punjab Civil Servants Act, 1974, and the same shall be decided strictly in accordance with law after due notice to the parties.

2023 PLC(CS) 214 SUPREME-COURT Judicial Precedent

S. 4(1)Appeal before the Service Tribunal, filing ofPrerequisiteDepartmental appeal

To avail any remedy before the Service Tribunal, it is necessary that a departmental appeal is filed before the competent forum

If no such departmental appeal is filed, a subsequent service appeal filed would not be maintainable.

2022 SCMR 2096 SUPREME-COURT Judicial Precedent

S. 4(1)Appeal before the Service Tribunal, filing ofPrerequisiteDepartmental appeal

To avail any remedy before the Service Tribunal, it is necessary that a departmental appeal is filed before the competent forum

If no such departmental appeal is filed, a subsequent service appeal filed would not be maintainable.

2019 PLC(CS)N 51 KARACHI-HIGH-COURT-SINDH Judicial Precedent

R.3Contract employeeAbsence from dutyTermination from serviceDepartmental appealScope

Contention of petitioner was that he had been condemned unheard while passing the impugned order and his departmental appeal had not been decided

Validity

Employee was appointed on contract basis

Contractual appointment could be terminated on expiry of contract period or any extended period on the choice of employer or appointing authority

Principle of master and servant was applicable in the present case

Petitioner had no vested right to seek reinstatement in the service

Contract employee could not claim any vested right even for regularization of his service

Employee had been provided an opportunity of personal hearing by the department

Only permanent employees of Government could prefer departmental appeal with regard to terms and conditions of their service before competent authority

Contractual employees could not prefer departmental appeal

Opportunity to show cause could be provided to the employees who were holding a permanent post

Petitioner was not a permanent employee and could not claim a vested right to be reinstated into the service

Service of a temporary employee could be terminated on 14 days' notice or pay in lieu thereof

Constitutional petition was dismissed being not maintainable, in circumstances.

2017 PLC(CS)N 98 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 10 & 13(4)Employees of Market CommitteeAllegation of selling plots illegallyDismissal from serviceDepartmental appealScope

Inquiry was conducted whereby major penalty of dismissal from service along with recovery of Rs.13,43,727/- was imposed on the employees

Validity

No concrete evidence with regard to involvement of employees was present before the inquiry committee

Inquiry committee did not record the statements of any witness and no record procured by them was mentioned in the inquiry report

Employees were not provided with the record that was obtained by the inquiry committee

Proceedings with regard to interview conducted by the inquiry committee of illegal allottees were also carried out at the back of employees in violation of S.10 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006

Inquiry report was not provided to the employees

Inquiry report was silent with regard to the names of allottees to whom plots were allegedly sold/allotted by the employees and location, area and amount received by them in lieu of said plots

Show-cause notice did not allege sale/allotment of plots of grain market by the employees rather the allegation was with regard to inefficiency and negligence of employees to check illegal sale/allotment of said plots

Mandatory procedure provided in Punjab Employees Efficiency, Discipline and Accountability Act, 2006 had not been followed by the inquiry committee

Employees were not provided with an adequate opportunity to show cause as no inquiry report and statements recorded by the inquiry committee were provided to them

Charges against the employees were also vague

Nothing was on record with regard to loss to the public exchequer by the employees

Inquiry committee did not examine the persons who were interviewed and employees were not allowed to cross-examine them

Interviewers could not form basis for holding the employees guilty of the charges leveled against them

Employees were not aware with regard to exact nature of accusation and incriminating material relied upon in the inquiry report

Employees had been deprived of the opportunity to defend themselves or clear their position on the findings of inquiry committee

Case of misconduct and corruption, in circumstances, could not be proved against the employees

Imposition of major penalties against the employees was contrary to the mandatory provisions of Punjab Employees Efficiency, Discipline and Accountability Act, 2006

High Court observed that Appellate authority was bound to take into account the facts of the case as set forth in the record presented on appeal, assessed the grounds urged in support of appeal and to review and correct errors of law and fact in the order passed by the authority

Appellate authority should independently render his findings after appraisal of the record

Order passed by the appellate authority should reflect its conscious application of mind by recording findings supported by reason on all the issues arising along with contention put forth by the parties

Appellate authority, in the present case had not fulfilled the requisite criteria

Impugned order passed by the employers were not sustainable which were declared to be without lawful authority having no legal effect

Employees were reinstated in service from the date of their dismissal and intervening period should be considered as leave of kind due

Constitutional petition were allowed in circumstances.

2015 SCMR 1040 SUPREME-COURT Judicial Precedent

R. 18Dismissal of employeeDepartmental appealProcedure, failure to followEffectHigh Court set aside dismissal order passed by authorities and reinstated the employee in serviceValidity

High Court had observed in its judgment that de novo inquiries were conducted by authorities without following the procedure provided in R.18 of Khyber Pakhtunkhawa Constabulary Rules, 1958

Once High Court held that the procedure prescribed in R.18 of Khyber Pakhtunkhawa Constabulary Rules, 1958, was not followed while dismissing the employee from service, it should have remanded the matter to department after reinstating the employee in service for de novo inquiry

Supreme Court remanded the matter to authorities and directed them to strictly follow the procedure provided in R.18 of Khyber Pakhtunkhawa Constabulary Rules, 1958

Appeal was allowed accordingly.

2015 PLC(CS) 1320 SUPREME-COURT Judicial Precedent

R. 18Dismissal of employeeDepartmental appealProcedure, failure to followEffectHigh Court set aside dismissal order passed by authorities and reinstated the employee in serviceValidity

High Court had observed in its judgment that de novo inquiries were conducted by authorities without following the procedure provided in R.18 of Khyber Pakhtunkhawa Constabulary Rules, 1958

Once High Court held that the procedure prescribed in R.18 of Khyber Pakhtunkhawa Constabulary Rules, 1958, was not followed while dismissing the employee from service, it should have remanded the matter to department after reinstating the employee in service for de novo inquiry

Supreme Court remanded the matter to authorities and directed them to strictly follow the procedure provided in R.18 of Khyber Pakhtunkhawa Constabulary Rules, 1958

Appeal was allowed accordingly.

2015 PLC(CS) 1125 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Art. 199General Clauses Act (X of 1897), S.24-AConstitutional petitionCivil serviceDepartmental appealObjectMandate of appellate authorityScopeAppellate order passed without giving independent findings/reasons

Impugned order revealed that no independent finding was given by the appellate authority which would show that it applied its independent mind and had passed the order without being impressed by the findings of the competent authority

Appellate authority did not discuss in its order that thirteen different allegations were raised against the petitioner through the show-cause notice and which ones were proved

Appellate authority decided the appeal in a slipshod manner and without adverting to the case set up by the petitioner

Order passed by the appellate authority had not qualified to be a reasoned order as contemplated under S.24-A of the General Clauses Act, 1897

No independent reasons/findings had been given by the appellate authority, which was mandatory

Appellate authority by merely upholding the order of the subordinate functionary had frustrated the mandate of providing an appeal

Order was set aside

Constitutional petition was accepted.

2015 PTD 1805 INLAND REVENUE APPELLATE TRIBUNAL OF PAKISTAN Judicial Precedent

Ss. 7(1), 8(1)(b), 11, 33, 34, 46 & 73S.R.O. No.490(I)/2004 dated 12-6-2004Inadmissible transactionInput tax adjustment, denial ofDepartmental appeal

Assessing authority in the impugned order had held that respondent/registered person (company) had claimed inadmissible input tax and had violated the provisions of S.8(1) of the Sales Tax Act, 1990

Tax charged against the said allegation, was directed to be dropped by Appellate Authority in the light of provisions of S.7(1) of Sales Tax Act, 1990

Validity

Input tax adjustment on furnace oil and cement etc., being not disallowable under S.R.O. No.490(I)/2004, dated 12-6-2004 no justification existed for denial of input tax, which was allowable in terms of S.8(1)(b) of the Sales Tax Act, 1990

No reason being to disturb the order of Appellate Authority, same was maintained, in circumstances.

2013 PLC(CS) 1365 SERVICE-TRIBUNAL-SINDH Judicial Precedent

S. 4(a)Appeal to Service TribunalDepartmental appealScopeAppellant filed appeal before Tribunal without filing departmental representation on the issue

Appellant contended that his representation on the same matter filed before issuance of impugned order may be deemed to be an appeal

Validity

Representation made before issuance of impugned order could not be treated as departmental appeal, however, courts should try to provide remedy to the litigants, as far as possible without violating the law

Service Tribunal taking lenient view directed the departmental authority to treat the representation as departmental appeal.

2013 PLC(CS) 1365 SERVICE-TRIBUNAL-SINDH Judicial Precedent

S. 4(a)Appeal to Service TribunalDepartmental appealMandatory requirement of lawNon-filing of departmental appealEffectAppellant filed appeal before Tribunal without availing departmental remedy

Contention was that valuable right of the appellant was involved and departmental appeal being a procedural technicality, appellant could not be knocked out for non-filing of departmental appeal

Validity

Provision of law which was particularly in negative terms was mandatory

Departmental appeal was not a procedural technicality-Departmental appeal was a mandatory requirement of law.

2013 PLC(CS) 1365 SERVICE-TRIBUNAL-SINDH Judicial Precedent

S. 4(a)AppealMaintainabilityDepartmental appealAppeal filed before Tribunal without filing representation or departmental appealEffect

Appeal preferred before Service Tribunal without recourse to the departmental appeal was not maintainable.