Appeal before Service Tribunal

2018 PLC(CS)N 48 PESHAWAR-HIGH-COURT Judicial Precedent

Rr. 14 & 19General Clauses Act (X of 1897), S.24-AKhyber Pakhtunkhwa Service Tribunals Act (I of 1974), S.4De novo inquiry, institution ofRequirementsExpression "reasons in writing"ScopeInterlocutory orderAppeal before Service TribunalMaintainability

Inquiry officer had found the petitioners-employees guilty of charges and proposed different penalties but department ordered for de novo inquiry

Validity

If competent authority was satisfied that inquiry had been conducted in accordance with Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011 then it should determine whether charge or charges had been proved

If charge or charges had not been proved then authority was entitled to either exonerate the accused by order in writing or it might follow the procedure provided in R.14(6) of Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011

When authority was satisfied that inquiry proceedings had not been conducted in accordance with the provisions of Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011 or merits of the case had been ignored then it could after recording the reasons in writing either remand the case or order for de novo inquiry

Authority had resorted to R.14(6) of Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011 without realizing the requirement of 14(3) of said Rules, 2011 which only empowered it to have recourse to R.14 (6) when charge or charges had not been proved

Competent authority was required to record reasons in writing if it was not satisfied with the procedure of inquiry or facts and merits of the case before passing an order for de novo inquiry

No order backed by reasons for de novo inquiry existed in the present case

De novo inquiry could only be ordered when charge was not proved and not otherwise

Authority or tribunal were vested with power/jurisdiction to decide the matter rightly and not wrongly and they were not supposed to transgress the legal provision

Whenever an order or action was taken in violation of law then it would be without jurisdiction rendering amenable to the judicial review in constitutional jurisdiction

Letter addressed to the inquiry officer could not be termed as order of de novo inquiry

Whole proceedings of de novo inquiry were illegal and coram non-judice which could be questioned in constitutional jurisdiction

Impugned proceedings based on letter addressed to the inquiry officer were not final order which could be challenged before the Service Tribunal

Right of appeal had been provided against final order

No interlocutory order could be questioned in appeal before the Service Tribunal

Appeal before Service Tribunal against de novo inquiry order was not maintainable

Action taken or order passed in transgression and violation of statutory provision was open to judicial review

Constitutional petition against illegal and coram non judice order was maintainable

Order for de novo inquiry was declared as illegal, without lawful authority and coram non judice

Any de novo inquiry followed by any order or show cause notice were illegal, unlawful, coram non judice, having been passed without lawful authority were liable to be struck down

Competent authority might proceed on the basis of first inquiry report

Constitutional petition was allowed in circumstances.

2017 PLC(CS) 1128 PESHAWAR-HIGH-COURT Judicial Precedent

S. 4Appeal before Service TribunalCondition

Appeal and representation could lie only against an order passed by a "Departmental Authority" with regard to any of the terms and conditions of service.