Misconduct

In case a civil servant has been sent to civil prison on his failure to deposit the decretal amount pursuant to a judgment or decree in a civil suit, it does not fall within the definition of misconduct, for the reason that civil servant is not charged for any moral offence, nor is convicted by Court of law for a criminal offence.

In the disciplinary proceedings under the Industrial Relations Laws, the primary burden rests on the employer to prove the misconduct so that the matter be decided on preponderance of the evidence which is so clear, credible and gives support to the finale with little room for doubt

By and large, when any employee challenges his termination or dismissal from service, the burden often shifts upon the employer to establish that the action was based on independent, unbiased and logical reasons and while terminating the employee or dismissing the employee from service, the principle of natural justice and due process was religiously followed and the employer has to produce substantial evidence to persuade the court that the decision was not motivated by any revenge, bias and/or with any prejudiced aspiration

To prove the guilt on the charges of misconduct is a serious matter and at least for the delinquent, the stakes are much higher than the employer, therefore, before declaring guilty, due diligence should be made.

In the disciplinary proceedings under the Industrial Relations Laws, the primary burden rests on the employer to prove the misconduct so that the matter be decided on preponderance of the evidence which is so clear, credible and gives support to the finale with little room for doubt

By and large, when any employee challenges his termination or dismissal from service, the burden often shifts upon the employer to establish that the action was based on independent, unbiased and logical reasons and while terminating the employee or dismissing the employee from service, the principle of natural justice and due process was religiously followed and the employer has to produce substantial evidence to persuade the court that the decision was not motivated by any revenge, bias and/or with any prejudiced aspiration

To prove the guilt on the charges of misconduct is a serious matter and at least for the delinquent, the stakes are much higher than the employer, therefore, before declaring guilty, due diligence should be made.

Petitioners / civil servants were serving in police who were dismissed from service for physically torturing an accused in custody which resulted in his death

Authorities dismissed petitioners / civil servants from service and their appeals were also dismissed by Service Tribunal

Plea raised by petitioners / civil servants was that after they had been acquitted in criminal trial, the allegation of mis-conduct had become baseless

Validity

Constitution imposes a duty upon State to protect right to life of every citizen and to prevent custodial violence and killings

Such Constitutional guarantees against illegal detention, arrest, brutality, torture and extra judicial killings in any form are bedrock legal and fundamental principles enshrined in the Constitution, therefore, illegal detention and torture are neither encouraged nor justified under any circumstances

Principle of fundamental rights is to ensure secure and just society, which has been recognized worldwide and adopted by United Nations in 1948 through Universal Declaration of Human Rights (UDHR)

Allegations against petitioners / civil servants in their capacity as police officials of unlawful confinement, maltreatmenot and torture of deceased were established during inquiry through evidence and material described in report of inquiry officer available on record

By detaining deceased accused and subjecting him to torture, petitioners / civil servants acted in violation of their duty to act in accordance with law

Such act of petitioners / civil servants amounted to misuse of authority falling within the definition of grave misconduct defined in Rule 2(iii) of Punjab Police (Efficiency and Discipline) Rules, 1975

Penalty imposed by authorized officer did not commensurate with the gravity of misconduct committed by petitioners / civil servants

Competent authority provided opportunity to petitioners / civil servant to defend themselves

After adopting due process, competent authority was justified in enhancing penalty from reduction in pay by one stage for a period of two years recommended by inquiry officer to that of dismissal from their service

Such departmental proceedings were necessary to uphold rule of law and maintain public confidence in state institutions

Supreme Court declined to interfere in judgment passed by Service Tribunal as petitioners / civil servants were unable to point out any substantial question of law of public importance

Petition for leave to appeal was dismissed and leave to appeal was refused.

In case a civil servant has been sent to civil prison on his failure to deposit the decretal amount pursuant to a judgment or decree in a civil suit, it does not fall within the definition of misconduct, for the reason that civil servant is not charged for any moral offence, nor is convicted by Court of law for a criminal offence.

Principle where general reputation of corruption is attributed to an officer, the superior courts have leaned in favour of imposing the penalty of compulsory retirement

Exception created to such principle

Scope

Such principle is based on the rationale that in order to maintain honesty and integrity among service personnel, improve efficiency in administration of justice and restore public confidence in State institutions, officers of doubtful integrity or suspected of corruption can be compulsorily retired where sufficient evidence is not available to dismiss or remove them from service after considering the employee's length of service, the nature of offence and the context surrounding misconduct

Charge had been proved against the appellant, which swayed the authority to impose the major penalty of dismissal from service upon him

Service appeal of the judicial officer was dismissed, in circumstances.

Petitioner / civil servant was aggrieved of show cause notice issued to him regarding departmental inquiry on the allegation of sexual harassment of a female employee

Validity

Proceedings initiated under provisions of Government Servants (Efficiency and Discipline) Rules, 1973 are a matter between Federal Government in its capacity as an employer and a civil servant in his/her capacity as an employee

Purpose of such proceedings is to ensure that an employee is abiding by the terms and conditions of service prescribed for purposes of his/her conduct in discharge of his/her duties

Object and scope of Protection Against Harassment of Women at the Workplace Act, 2010 is altogether different as the rationale for enactment of such law, as explained in its Preamble, is to provide for protection of women from harassment at workplace

Set of facts on the basis of which a complaint was founded against accused under provisions of Protection Against Harassment of Women at the Workplace Act, 2010 needed to be inquired into, which if proved, consequences and penalties prescribed under Protection Against Harassment of Women at the Workplace Act, 2010 were to flow toward petitioner / civil servant

Proceedings under Protection Against Harassment of Women at the Workplace Act, 2010 are adversarial in nature, where a complainant makes allegations against an accused and the same have to be proved on the basis of cogent evidence

Penalties prescribed in terms of S. 4 of Protection Against Harassment of Women At the Workplace Act, 2010 may be similar to, or overlap with, the penalties prescribed in terms of R. 4 of Government Servants (Efficiency and Discipline) Rules, 1973, and the same has no bearing on the object, purpose and effect of the proceedings under Protection Against Harassment of Women at the Workplace Act, 2010 on one hand and Government Servants (Efficiency and Discipline) Rules, 1973, on the other

High Court declined to interfere in show cause notice issued to petitioner / civil servant

Constitutional petition was dismissed in circumstances.

Petitioner / civil servant was aggrieved of show cause notice issued to him regarding departmental inquiry on the allegation of sexual harassment of a female employee

Validity

Proceedings initiated under provisions of Government Servants (Efficiency and Discipline) Rules, 1973 are a matter between Federal Government in its capacity as an employer and a civil servant in his/her capacity as an employee

Purpose of such proceedings is to ensure that an employee is abiding by the terms and conditions of service prescribed for purposes of his/her conduct in discharge of his/her duties

Object and scope of Protection Against Harassment of Women at the Workplace Act, 2010 is altogether different as the rationale for enactment of such law, as explained in its Preamble, is to provide for protection of women from harassment at workplace

Set of facts on the basis of which a complaint was founded against accused under provisions of Protection Against Harassment of Women at the Workplace Act, 2010 needed to be inquired into, which if proved, consequences and penalties prescribed under Protection Against Harassment of Women at the Workplace Act, 2010 were to flow toward petitioner / civil servant

Proceedings under Protection Against Harassment of Women at the Workplace Act, 2010 are adversarial in nature, where a complainant makes allegations against an accused and the same have to be proved on the basis of cogent evidence

Penalties prescribed in terms of S. 4 of Protection Against Harassment of Women At the Workplace Act, 2010 may be similar to, or overlap with, the penalties prescribed in terms of R. 4 of Government Servants (Efficiency and Discipline) Rules, 1973, and the same has no bearing on the object, purpose and effect of the proceedings under Protection Against Harassment of Women at the Workplace Act, 2010 on one hand and Government Servants (Efficiency and Discipline) Rules, 1973, on the other

High Court declined to interfere in show cause notice issued to petitioner / civil servant

Constitutional petition was dismissed in circumstances.

Whether reasonableness of force to be assessed by reference to criminal law test relating to self-defence or civil law test

Held, that the test to be applied in disciplinary proceedings in relation to the use of force by a police officer in self-defence is the civil law test.

Petitioner / civil servant assailed dismissal of his appeal by Service Tribunal, whereby order of his compulsory retirement from service was maintained

Plea raised by petitioner / civil servant was that he used to be on outdoor duty

Validity

Plea was in itself an admission on the part of petitioner / civil servant of coming late without intimation, particularly in view of the fact that attendance sheet was placed on record which revealed that whenever he was on outdoor duty it was marked as "Out Working"

In the order in question it had been discussed as to how he put his attendance in bio-metric record though he was not on duty

Supreme Court declined to interfere in finding of Service Tribunal that documentary evidence was such that there was no need to hold an inquiry under the relevant law i.e. Removal from Service (Special Powers) Ordinance, 2000

Petition for leave to appeal was dismissed and leave to appeal was refused.

Departmental inquiry is to Determine whether a case of misconduct is made out and whether accused is found guilty by inquiry officer/committee

As a fact finding forum, Service Tribunal is obligated to ascertain whether due process of law or right to a fair trial, as envisaged under Article 10A of the Constitution, was followed

Regular inquiry cannot be considered or labeled as regular inquiry unless fair opportunity is provided to defend the charges.

Petitioner/civil servant was dismissed from service on the charges of misconduct and his appeal was also dismissed by Service Tribunal

Validity

Principles of natural justice require that delinquent should be afforded fair opportunity to contest charges before he is found guilty

No efforts were made by inquiry officer either intentionally or unintentionally to explore guilt of petitioner/civil servant

Such inquiry report could not be construed as fair and impartial, nor was it commensurate with the procedure provided under Government Servants (Efficiency and Discipline) Rules, 1973 for conducting an inquiry into allegation of misconduct

Supreme Court set aside judgment passed by Service Tribunal and order passed by authorities imposing major punishment of dismissal from service was also set aside

Supreme Court remanded the matter to departmental authorities for conducting a de novo regular inquiry into the same allegation of misconduct jotted down in the charge sheet and provide fair opportunity to petitioner/civil servant to defend the charges, as inquiry proceedings and report were defective

Supreme Court directed the authorities to pass speaking order and convey the same to petitioner/civil servant

Appeal was allowed.

During pendency of service appeal civil servant passed away, therefore, disciplinary actions initiated by authorities were set aside by Service Tribunal

Validity

Predominant goal of initiating departmental proceedings including inquiry is to decide whether allegations of misconduct in show cause notice are proven and then to confront delinquent regarding why disciplinary action, including imposition of minor or major penalty should not be taken

Before taking such drastic action, a fair opportunity should be provided to employee to defend allegations

In departmental inquiries, standard of proof is based on balance of probabilities or preponderance of evidence

Regular inquiry is commenced only when an even handed and fair opportunity to present a defense is offered

Service Tribunal in determination of facts and law, is the highest appellate forum with exclusive jurisdiction over matters relating to terms and conditions of service of civil servants

Supreme Court may grant leave to appeal under Article 212 (3) of the Constitution, against judgment, decree, order or sentence of Administrative Court or Tribunal only if it is satisfied that the case involves a substantial question of law of public importance, which is otherwise sine qua non

Supreme Court declined to interfere in judgment passed by Service Tribunal as no such question was involved

Petition for leave to appeal was dismissed and leave was refused.

Petitioner / civil servant assailed dismissal of his appeal by Service Tribunal, whereby order of his compulsory retirement from service was maintained

Plea raised by petitioner / civil servant was that he used to be on outdoor duty

Validity

Plea was in itself an admission on the part of petitioner / civil servant of coming late without intimation, particularly in view of the fact that attendance sheet was placed on record which revealed that whenever he was on outdoor duty it was marked as "Out Working"

In the order in question it had been discussed as to how he put his attendance in bio-metric record though he was not on duty

Supreme Court declined to interfere in finding of Service Tribunal that documentary evidence was such that there was no need to hold an inquiry under the relevant law i.e. Removal from Service (Special Powers) Ordinance, 2000

Petition for leave to appeal was dismissed and leave to appeal was refused.

Petitioner/civil servant was dismissed from service on the charges of misconduct and his appeal was also dismissed by Service Tribunal

Validity

Principles of natural justice require that delinquent should be afforded fair opportunity to contest charges before he is found guilty

No efforts were made by inquiry officer either intentionally or unintentionally to explore guilt of petitioner/civil servant

Such inquiry report could not be construed as fair and impartial, nor was it commensurate with the procedure provided under Government Servants (Efficiency and Discipline) Rules, 1973 for conducting an inquiry into allegation of misconduct

Supreme Court set aside judgment passed by Service Tribunal and order passed by authorities imposing major punishment of dismissal from service was also set aside

Supreme Court remanded the matter to departmental authorities for conducting a de novo regular inquiry into the same allegation of misconduct jotted down in the charge sheet and provide fair opportunity to petitioner/civil servant to defend the charges, as inquiry proceedings and report were defective

Supreme Court directed the authorities to pass speaking order and convey the same to petitioner/civil servant

Appeal was allowed.

Departmental inquiry is to determine whether a case of misconduct is made out and whether accused is found guilty by inquiry officer/committee

As a fact finding forum, Service Tribunal is obligated to ascertain whether due process of law or right to a fair trial, as envisaged under Article 10A of the Constitution, was followed

Regular inquiry cannot be considered or labelled as regular inquiry unless fair opportunity is provided to defend the charges.

During pendency of service appeal civil servant passed away, therefore, disciplinary actions initiated by authorities were set aside by Service Tribunal

Validity

Predominant goal of initiating departmental proceedings including inquiry is to decide whether allegations of misconduct in show cause notice are proven and then to confront delinquent regarding why disciplinary action, including imposition of minor or major penalty should not be taken

Before taking such drastic action, a fair opportunity should be provided to employee to defend allegations

In departmental inquiries, standard of proof is based on balance of probabilities or preponderance of evidence

Regular inquiry is commenced only when an even handed and fair opportunity to present a defense is offered

Service Tribunal in determination of facts and law, is the highest appellate forum with exclusive jurisdiction over matters relating to terms and conditions of service of civil servants

Supreme Court may grant leave to appeal under Article 212 (3) of the Constitution, against judgment, decree, order or sentence of Administrative Court or Tribunal only if it is satisfied that the case involves a substantial question of law of public importance, which is otherwise sine qua non

Supreme Court declined to interfere in judgment passed by Service Tribunal as no such question was involved

Petition for leave to appeal was dismissed and leave was refused.

This is the bare minimum expectation to maintain an efficient and transparent administration and safeguard public interest

An employee found guilty of misconduct cannot be considered equal to other employees and must be treated distinctly

When evaluating an employee for promotion, their complete service history must be examined

If a promotion committee considers penalties imposed on an employee and subsequently denies them promotion, such a decision would not be deemed unlawful or without merit within the principles of service law

A promotion cannot be automatically deferred solely for the pendency of disciplinary proceeding after two years

The Departmental Promotion Committee (DPC) must assess each promotion proposal on a case-by-case basis, considering all relevant factors, including the employee's overall service record.

Complaints filed before the Supreme Judicial Council ("SJC") against a sitting Judge of the Supreme Court, who resigned during pendency of the proceedings before the SJC

Misconduct

Violation of the Code of Conduct for Judges of the Supreme Court and High Courts

Removal from the office of Judge

Purchase of properties and construction raised thereon without having sufficient declared income/money in income tax returns/wealth statement

Purchase of property at half its market price to deprive minor co-owners of their share in the property

Misuse of office to exercise influence over government officials

Grant of undue favours to a businessman to buy properties from him at heavily discounted prices

Judge in question ('the accused') bought a property knowing that it was co-owned by children, and that without a Guardian Court granting permission to sell it he could not have bought it

Accused did not produce any notice published in any newspaper, which prudent buyers do by inviting public objections by publishing the same in prominent newspapers

Accused also elected not to testify, and by not doing so an adverse presumption could be drawn against him

Accused did not disclose his tax filings nor came forward to testify; he also did not disclose how much he had earned over the years and/or the income tax paid thereon

It was also not stated when he started filing tax returns and paying income tax

Since the accused did not make the requisite disclosure nor testified the SJC was not in a position to determine whether or not he had sufficient income tax paid/declared money to justify the purchase of the properties bought by him

A property developer through his company, paid Rupees fifty million to the seller as portion of the sale consideration for a property bought by the accused

A judge accepting such largesse from a property developer, who claimed that he hardly knew the accused-Judge, raised very serious questions of propriety

Since no viable explanation for paying the said fifty million rupees was forthcoming the SJC was left to assume that such incomprehensible generosity to a Judge was with the expectation that it would be handsomely recompensed

Furthermore, documents on record established that the accused applied for and was allotted four properties by the Federal Government Employees Housing Foundation ('the Foundation') and the Supreme Court Employees Cooperative Housing Society

Within a period of less than two years after being administered oath as a Judge of the Supreme Court, the accused got four properties, while serving as a Judge of the Supreme Court

Organizations from whom he got the four propertips were set up for providing housing to its members

Accused did not explain why he obtained four properties, surely he could not reside in all of them

Judge of the Supreme Court should not want to deprive others, which would be the result of actions of the accused

Two sons of the accused were given properties at heavily discounted prices in projects owned by a property developer

Said property dealer admitted in his testimony that each of the sons was given the properties of which they only paid ten percent of their price; that he had not given similar allotment to any other judge or his children; and that he had also sent £ 5,000 to the daughter of the accused in a foreign country

Accused violated his oath of office which required him to abide by the Code of Conduct for Judges of the Supreme Court and High Courts ('the Code of Conduct') by violating a number of the provisions of the Code of Conduct

Accused could not be said to be untouched by greed, and so violated Article-II of the Code of Conduct

It also cannot be stated that he was above reproach, and so had violated Article-III of the Code of Conduct

Conduct of accused was also not free from impropriety expected of a Judge in his official and private affairs, and to such extent he also violated Article-III of the Code of Conduct

It is clear that actions of accused were swayed by consideration of personal advantage, and so he violated Article-IV of the Code of Conduct

He knowingly deprived minors of their valuable property, and so violated Article-VI of the Code of Conduct

By receiving substantial unexplained gifts, the accused violated Article-VI of the Code of Conduct; the gifts included receiving fifty million rupees, his sons receiving two commercial plots and two residential plots at a nominal price and his daughter receiving UK pounds £5,000

Accused was guilty of misconduct and should have been removed from the office of Judge

Number of instances of misconduct committed by the accused had damaged the reputation of the judiciary

SJC directed that as the accused should have been removed for having committed serious misconduct, the honorific 'Justice' or 'Judge' should not henceforth be used with the name of the accused.

During execution proceedings, High Court imposed fine upon petitioner/judgment debtor for filing second Constitutional petition suppressing the fact of dismissal of earlier petition on the same subject

Validity

While dismissing Constitutional petition High Court made serious observations about misconduct of petitioner/judgment debtor who by concealment of relevant facts from lawyers and Courts, managed to file miscellaneous application as well as second Constitutional petition after dismissal of his appeal on merits by Lower Appellate Court and after withdrawal of his earlier Constitutional petition from the High Court by making false accusations against lawyers without any substance

Petitioner/ judgment debtor did not deserve any leniency nor there were convincing reasons to waive off the cost imposed by High Court

Supreme Court declined to entertain request for satisfaction of judgment and decree in instalments, as no such application was filed by petitioner/judgment debtor before Executing Court

Petition for leave to appeal was dismissed and leave was refused.

Petitioner/workman was terminated from service for absent being from duty without leave for a period of more than ten days

Trial forum did not consider absence for such period as misconduct therefore, reinstated the petitioner/workman in service

Lower Appellate Forum set aside order of reinstatement and High Court maintained that order

Validity

National Industrial Relation Commission (Trial forum) in its original order overturned the law and ordered reinstatement but it did not keep in mind doctrine of proportionality and reasonableness and modified act of misconduct from 10 days' absence to 15 days' absence

Full Bench of National Industrial Relation Commission (Lower Appellate Forum) rightly set aside such order in appeal which was affirmed by High Court

Addressing of misconduct aids, keeps an eye on and protects wellbeing of the organization and its employees in order to make sure that the workplace is in a trouble free environment

It is prerogative and inherent right of employer to trigger disciplinary proceedings in accordance with law to address misconduct, if committed by any employee but course of action for encountering any act of misconduct should stick to the principle of natural justice and the set of guidelines provided to ensure due process of law

Wrong handling of misconduct cases results in bad impact on industrial relations and also adversely affects trust level between management and workers

It is also essential for employer to maintain transparency, uniformity and egalitarianism, which insinuates compliance of all legal requirements with equal treatment to employees without any discrimination or favoritism

Supreme Court declined to interfere in order passed by High Court and Lower Appellate Forum

Petition for leave to appeal was dismissed and leave was refused.

Petitioner/workman was terminated from service for being absent from duty without leave for a period of more than ten days

Trial forum did not consider absence for such period as misconduct therefore, reinstated the petitioner/workman in service

Lower Appellate Forum set aside order of reinstatement and High Court maintained that order

Validity

National Industrial Relation Commission (Trial forum) in its original order overturned the law and ordered reinstatement but it did not keep in mind doctrine of proportionality and reasonableness and modified act of misconduct from 10 days' absence to 15 days' absence

Full Bench of National Industrial Relation Commission (Lower Appellate Forum) rightly set aside such order in appeal which was affirmed by High Court

Addressing of misconduct aids, keeps an eye on and protects wellbeing of the organization and its employees in order to make sure that the workplace is in a trouble free environment

It is prerogative and inherent right of employer to trigger disciplinary proceedings in accordance with law to address misconduct, if committed by any employee but course of action for encountering any act of misconduct should stick to the principle of natural justice and the set of guidelines provided to ensure due process of law

Wrong handling of misconduct cases results in bad impact on industrial relations and also adversely affects trust level between management and workers

It is also essential for employer to maintain transparency, uniformity and egalitarianism, which insinuates compliance of all legal requirements with equal treatment to employees without any discrimination or favoritism

Supreme Court declined to interfere in order passed by High Court and Lower Appellate Forum

Petition for leave to appeal was dismissed and leave was refused.

Appellant (Civil Judge-cum-Judicial Magistrate) tendered his resignation after two months of the report of the Inquiry Officer who recommended the imposition of major penalty in the shape of dismissal from service against him

Contention of the appellant that there were serious threats to his life due to which he tendered his resignation, which was not voluntary, rather on account of compelling circumstances

Validity

No such contention/reason was mentioned in the resignation itself having been tendered by the appellant

It was also evident from the relevant notification that the resignation of the appellant was accepted on account of droppage of disciplinary proceedings initiated against him on the charge of misconduct

It was also manifestly clear that despite the fact that matter of acceptance of resignation remained under consideration for a considerable period but no effort was made by the appellant to move for its withdrawal

Even after acceptance of the resignation the appellant remained mum for a considerable period and finally he moved the representation after more than one year and nine months (from date of Notification), which was rejected by the respondents (Registrar High Court) after six months or so

Definitions of the term "resignation" as given in various law dictionaries leads to an irresistible conclusion that resignation means "formal renouncement or relinquishment of an office", which must be intentional and voluntary, and for drawing a conclusion as to whether the resignation is voluntary or otherwise facts and circumstances in toto have to be taken into consideration

Once a resignation is accepted by the competent authority, the employee tendering the same is precluded to recall it

High Court viewed that the resignation of the appellant was voluntary without any hint of doubt and as such he was precluded to ask for its withdrawal and reinstatement in service

Appeal filed by the ex-Judicial Officer, being devoid of any merits, was dismissed, in circumstances.

Allegation upon Civil Judge-cum-Judicial Magistrate was of receiving illegal gratification for dismissal of the bail application he was hearing

Validity

Oral as well as documentary evidence adduced by the prosecution showed that the prosecution though had established link of appellant-judge with the complainant, but had failed to establish the charges of receiving of illegal gratification or other gains and criminal intimidation

Record of as many as 96 incoming and outgoing calls exchanged between appellant and complainant/litigant was revealed

Judge could not develop terms/liaison with the litigants

Ethics prevalent globally specifically prohibited the judges from maintaining any contact with the parties appearing in their Courts

Speaking privately to the litigants by a judge, even when the conversation was on an unrelated topic, was against the propriety of his office

Practice of a Judge having contact with the litigant through social media was also deprecated

In the present case, interaction of the appellant (being a judicial officer) with litigant was against service discipline

Such conduct unbecoming of a Judicial Officer came within the definition of 'misconduct' stipulated in R. 2(e) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999

Authority could, in its discretion, award major or minor penalty but this power must be exercised reasonably which was also justifiable

Penalty should commensurate with the magnitude of the misconduct committed

Extreme penalty for an act of a lesser degree would definitely defeat the reformatory concept of punishment in administration of justice

While punishing an employee found guilty of misconduct, the competent authority was required to take into account, inter alia, the gravity of misconduct found proved and its impact on the organization/department

As allegations of receiving illegal gratification and criminal intimidation have not been established against the appellant and he was also ready not to claim back benefits, therefore, major penalty of removal from service did not commensurate with the gravity of misconduct

Tribunal converted the penalty of dismissal from service into major penalty of reduction to three lower stages in pay-scale of the appellant

Appeal was partly allowed, in circumstances.

Such charge cannot be decided without following procedure provided under Standing Order 15 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

Lower Appellate Court declined back benefits to petitioner / employee, who during pendency of proceedings attained age of superannuation

Effect

During pendency of matter, petitioner / employee had already crossed age of superannuation, therefore, his reinstatement could not be ordered rather he was entitled for pensionary emoluments

If petitioner / employee was involved in any subversive activities, he could be proceeded against Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, but non-adherence to the provisions could not be condoned

It is mandate of the Constitution that everybody should be dealt with in accordance with law and any violation on the part of the delinquent cannot be let unnoticed

High Court in exercise of Constitutional jurisdiction declined to interfere in findings of two fora below regarding reinstatement of petitioner / employee as the same were concurrent in nature which findings were neither perverse nor were result of some misreading or non-reading of material available on record

Petitioner / employee was not gainfully employed elsewhere with effect from his termination of service and such fact was not denied by respondent / employer

Penultimate order was passed by respondent / employer in clear violation of S. 15 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, against petitioner / employee

Punjab Labour Appellate Tribunal did not give any persuasive reasons while declining back benefits to petitioner / employee

High Court set aside judgment passed by Punjab Labour Appellate Tribunal and restored that of Labour Court

High Court directed Labour Court to ensure implementation of its decision

Constitutional petition was allowed accordingly.

In constitutional petition challenging vires of judgments passed by Labour Court as well as Punjab Labour Appellate Tribunal, if no injunctive order is issued by High Court, there is no justification for employer to avoid implementation of such decision

Labour Court as well as Punjab Labour Appellate Tribunal cannot refuse execution of judgment of Labour Court merely on account of pendency of constitutional petition before High Court.

No hard and fast rule existed that the competent authority in all circumstances is bound to adhere to the recommendations of the inquiry committee or inquiry officer, but what carries great weight is the assiduousness and onerous duty of the competent authority to scrutinize and gauge the inquiry proceedings and inquiry report with proper application of mind for a fine sense of judgment

If charges of misconduct were proved and ample opportunity of defence was afforded to the accused during the inquiry, then obviously, keeping in mind all attending circumstances including the gravity or severity of the proven charges, the competent authority may impose the punishment in accordance with law.

Where a matter reached the Tribunal arising out of the case of misconduct in which major penalty had been imposed, the Court or Tribunal had to see in depth whether the charges against the delinquent had been proved in the inquiry or the inquiry was conducted in cursory or slipshod manner or in violation of principles of natural justice.

Held, that imposition of penalty was within the domain of Inquiry/Authorized officer, who was fully empowered to impose such penalty upon its employee on finding him guilty of commission of misconduct as it considered appropriate and conversion of penalty imposed by Inquiry/Authorized Officer would require strong justifiable reasons for the Tribunal to lessen its gravity

Powers of the Tribunal to modify the punishment imposed by the Inquiry/Authorized Officer were neither unbridled nor unlimited

Penalty of dismissal from service was maintained

Appeal was dismissed, in circumstances.

Court or Tribunal would ordinarily avoid substituting its own findings with that of the departmental authority, unless it appeared that the quantum of punishment was structured on unreasonable, irrelevant, extraneous considerations or on the face of it against the law

Concept of punishment to a delinquent public servant was founded on the principles of retribution, deterrence or reformation

Court or Tribunal, after being convinced with the findings of the departmental authority with regard to the guilt of the public servant had to concur with the quantum of punishment, unless it alarmingly did not commensurate with the charge(s)

Appellant (judicial officer) was proceeded departmentally on account of serious charges of misconduct and after holding preliminary inquiry, he was confronted with a regular departmental inquiry which followed the opportunity of personal hearing, wherein most of the charges leveled against him were duly established

Charges were very serious and keeping in view their seriousness, the appellant did not deserve any leniency

Penalty of dismissal from service was maintained

Appeal was dismissal, in circumstances.

Trial Court earlier declined bail to accused but subsequently on same facts bail was allowed by same Judge and only advocate of accused was replaced

Complainant sought transfer of case from Trial Court to some other Court of competent jurisdiction

Validity

Such conduct of Trial Court warranted interference to the extent of transfer application

Documents relied upon showed that another counsel had appeared before Trial Court while granting bail

High Court directed to transfer the case from Trial Court to another Court of competent jurisdiction

Application was allowed accordingly.

United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards, 1958 (New York Convention), Art. V(1)(e)

Foreign arbitral award

Misconduct

Proof

Appellant/National Highway Authority was aggrieved of Foreign arbitral award passed against it in proceedings held in Paris, France

Appellant assailed the award on the plea of misconduct before District Judge Islamabad but the application was dismissed

Validity

New York Convention did not permit any review of merits of award to which it applied

Grounds on which recognition and enforcement of a foreign arbitral award could be refused were exhaustively set out in Art. V of New York Convention

Even in cases where any of such grounds were satisfied, High Court could proceed to recognize and enforce the award

Use of word "may" in Arts. V(1) & (2) of New York Convention made refusal to recognize and enforce an award permissive and not mandatory

Grounds on which recognition and enforcement of award could be refused under Art. V of New York Convention did not include an erroneous decision in law or in fact by Arbitral Tribunal

High Court, while deciding an application under S. 6 of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 was not to review merits of Arbitral Tribunal's decision

High Court directed to execute the award and accorded recognition to the award, as none of the grounds envisaged by Art. V of New York Convention for refusing to enforce a foreign arbitral award were satisfied by appellant/National Highway Authority

Appeal was dismissed, in circumstances.

Allegation against employee (Data Entry Operator) of National Database and Registration Authority ('NADRA') was that he was involved in illegal processing of CNICs of non-nationals

On rejection of departmental appeal, the employee invoked constitutional jurisdiction of the High Court

Contention of the petitioner (employee) was that competent authority could not enhance the quantum of punishment from reduction to a lower post for a period of two years, as recommended by the inquiry committee to dismissal from service

Validity

Record revealed that confessional statement was made by the petitioner which was in his own writing; he affixed his thumb impressions and signatures on it; and while admitting receiving Rs. 15,000/= as bribe for the illegal processing of CNIC form each person, he had stated that he had processed about 40 forms, meaning thereby that as per his own confession he had taken bribe amounting to Rs. 600,000/=

All the legal and codal formalities had been completed, in the present case, by the respondents/department

Even otherwise, the employees of National Database and Registration Authority ('NADRA') were to be proceeded against under the Government Servants (Efficiency and Discipline) Rules, 1973, as the same were adopted by NADRA under the non-statutory Regln. 23 of the National Database and Registration Authority Employees' (Service) Regulations, 2002 ('the Regulations 2002')

Constitutional petition filed against the NADRA was not maintainable, the terms and conditions of the services of employees of NADRA are governed under master and servant rules, as the Regulations 2002 are non-statutory

Petitioner failed to point any violation of Rules and Regulations

Constitutional petition, being not maintainable, was dismissed, in circumstances.

In the departmental inquiry conducted on the charges of misconduct, the standard of proof was that of "balance of probabilities or preponderance of evidence" but not a "proof beyond reasonable doubt", which strict proof was required in criminal trial.

Where a matter reached the Tribunal arising out of the case of misconduct in which major penalty had been imposed, the Court or Tribunal had to see in depth whether the charges against the delinquent had been proved in the inquiry or the inquiry was conducted in cursory or slipshod manner or in violation of principles of natural justice.

Whether competent authority could dispense with regular inquiry in view of registration of FIRs against the delinquent police official/respondent

Held, that in the present case although the respondent (police official) was booked in some FIRs lodged against him but he was not convicted by the court in any case when the show cause notice was issued to him, therefore, in order to reach just and proper conclusion, regular departmental inquiry should have been conducted by the police department as the case of respondent's misconduct could not be solitary based on mere documentary evidence but on the basis of the FIRs lodged where the prosecution had to prove the guilt of accused beyond any reasonable doubt

Inquiry was dispensed with on the pretext that FIRs were lodged which did not culminate in the conviction of the respondent before show cause notice, therefore, in the peculiar circumstances, neither inquiry could be dispensed with nor registration of FIRs could relax or absolve the obligation of holding regular inquiry to decide the allegations of misconduct against the respondent

Appeal was dismissed and judgment of Service Tribunal whereby respondent's dismissal from service was converted into forfeiture of two years of service was maintained with the observation that conduct of the police department in the present case was quite negligent and reckless giving the impression that departmental inquiry was intentionally dispensed with to accord technical benefit to the respondent by perpetration of procedural lapses.

In the departmental inquiry conducted on the charges of misconduct, the standard of proof was that of "balance of probabilities or preponderance of evidence" but not a "proof beyond reasonable doubt", which strict proof was required in criminal trial.

Whether competent authority could dispense with regular inquiry in view of registration of FIRs against the delinquent police official/respondent

Held, that in the present case although the respondent (police official) was booked in some FIRs lodged against him but he was not convicted by the court in any case when the show cause notice was issued to him, therefore, in order to reach just and proper conclusion, regular departmental inquiry should have been conducted by the police department as the case of respondent's misconduct could not be solitary based on mere documentary evidence but on the basis of the FIRs lodged where the prosecution had to prove the guilt of accused beyond any reasonable doubt

Inquiry was dispensed with on the pretext that FIRs were lodged which did not culminate in the conviction of the respondent before show cause notice, therefore, in the peculiar circumstances, neither inquiry could be dispensed with nor registration of FIRs could relax or absolve the obligation of holding regular inquiry to decide the allegations of misconduct against the respondent

Appeal was dismissed and judgment of Service Tribunal whereby respondent's dismissal from service was converted into forfeiture of two years of service was maintained with the observation that conduct of the police department in the present case was quite negligent and reckless giving the impression that departmental inquiry was intentionally dispensed with to accord technical benefit to the respondent by perpetration of procedural lapses.

No hard and fast rule existed that the competent authority in all circumstances is bound to adhere to the recommendations of the inquiry committee or inquiry officer, but what carries great weight is the assiduousness and onerous duty of the competent authority to scrutinize and gauge the inquiry proceedings and inquiry report with proper application of mind for a fine sense of judgment

If charges of misconduct were proved and ample opportunity of defence was afforded to the accused during the inquiry, then obviously, keeping in mind all attending circumstances including the gravity or severity of the proven charges, the competent authority may impose the punishment in accordance with law.

Petitioner was ex-Vice Chancellor of Gomal University D.I. Khan, who criticized converting agriculture department of the University into Agriculture University D.I. Khan

Petitioner wrote a letter to Prime Minister pinpointing defects in the decision of provincial cabinet with regard establishing Agriculture University

Governor in his capacity of Chancellor of the University vide notification in question had sent petitioner on forced leave

Validity

Notification in question whereby petitioner was sent on 'forced leave' was issued by competent authority within its statutory domain to which no exception could be taken

Establishment of universities more particularly in technical and professional field was need of the day

Provincial Government was fully empowered to create and establish university through amendment in Khyber Pakhtunkhwa Universities Act, 2012, which exercise had been done by Provincial Government in accordance with its Constitutional powers by inserting University of Agriculture D.I. Khan at S.No.21 in Sched.-I to Khyber Pakhtunkhwa Universities (Amendment) Act, 2018, such act of government was not amenable to Constitutional jurisdiction of High Court

Gomal University was established having a complete autonomous status under Khyber Pakhtunkhwa Universities Act, 2012, without being subject to Government control and free in discharging its function

Autonomy guaranteed to the University was hallmark of the Legislature

Immovable property was ownership of Gomal University D.I. Khan and could not be distributed, acquired or alienated by any authority without permission / assent / approval of the Syndicate of the University

All demands and proceedings regarding transfer and distribution of assets of Gomal University D.I. Khan to newly established Agriculture University of D.I. Khan was without lawful authority and jurisdiction and was set aside

Provincial Government or Higher Education Department could approach through its Vice-Chancellor for lending or transferring of any property to the newly established University of Agriculture D.I. Khan

High Court declined to interfere in the matter

Constitutional petition was dismissed, in circumstances.

When an employee is to be terminated on the ground of misconduct, which in itself is a stigma, it is mandatory for the department to hold regular inquiry enabling the employee to defend the allegations levelled against him before an unbiased and independent forum.

Detenu was recovered from police station and his arrest was not mentioned in Roznamcha (daily dairy) of the police station

Contention of authorities was that the detenu was arrested in investigation of a criminal case but no case dairy could be produced in support of such plea

Validity

Case diary was not personal property of investigating officer

On returning of investigating officer from investigation of case at police station, he under R. 25.54(3) of Police Rules, 1934, was to number and date each case diary mentioned at the back side of FIR available at police station in relevant FIR register

Station House Officer and investigating officer exceeded their powers and jurisdiction and committed gross misconduct which fell within the ambit of offence under S.155 (c) of Police Order, 2002

High Court directed police authorities to register FIR against the two officials

Constitutional petition was disposed of accordingly.

Petitioner was awarded major penalty on the premise that he had failed to achieve the targets from the last three months i.e. recovery had fallen (-4.5%) as compared to the last year as well as on poor performance

Punishment awarded to the petitioner was prima facie harsh, since he had attained the age of superannuation during the pendency of the petition and no justifiable reason was put forward by the department to award major penalty without holding proper/regular inquiry, therefore, impugned order was declared to be against the principles of natural justice

Impugned order was set aside and the petition was disposed with direction to the Competent Authority to re-calculate the pensionary benefits of the petitioner and other benefits as admissible under the law and make payment of the same to the petitioner within a period of 30 days.

Connotation.

No provision existed in Capital Development Authority Employees Service Regulations, 1992, that could empower authorized officer or authority to order a de-novo inquiry against officers who had already been exonerated

Even if Regln. 08.09 of Capital Development Authority Employees Service Regulations, 1992, authorized the authority to order de-novo inquiry after the authorized officer had exonerated an officer, such power could not be exercised at mere discretion of the authority in an arbitrary manner or without plausible reasons

Office orders whereby earlier order for exoneration of petitioner was withdrawn and a de-novo inquiry was ordered were devoid of reasons

Such orders were in violation of S.24-A of General Clauses Act, 1984 and could not be sustained

No fresh material was discovered warranting a de-novo inquiry, which was to be on the same charges levelled against him in earlier inquiry, which had culminated in findings that the charges against him were not proved

High Court declared it unfair and iniquitous when charged officer succeeded before Inquiry Committee and Authorized officer exonerated him and such exoneration was approved by the authority, for such officer to be subjected to a de-novo inquiry on the same charges

High Court set aside the order conducting de-novo inquiry against petitioner

Constitutional petition was allowed, in circumstances.

Plea of petitioner that he had a genuine reason for his absence, namely, the involvement of his mother in an accident and therefore, he had to leave his post in an emergency

Held, that admittedly leave was not obtained by the petitioner nor was any written application submitted by him for seeking such leave

During the period of his absence his mobile phone remained switched off

When the petitioner's Sector Commander received a SMS message from the petitioner, he wanted to contact him but the petitioner was not available

Petitioner's mother was admittedly advised rest for a few days after her thigh injury had been attended to

In the circumstances, the petitioner could have returned immediately thereafter, which he did not

Petitioner did not have a valid reason to remain absent from duty for 12 days

Petitioner belonged to a disciplined force/service and his absence from duty without authorization was a serious misconduct

Service record of petitioner showed that it was the third time during his service span that he remained absent without authorization

Action taken against the petitioner was justified, however the severity of the punishment of dismissal was the consequence that the petitioner could not seek government employment in any other department or office

Petitioner was an able bodied young man and may qualify for government employment where strict discipline was not enforced

Consequently, petition for leave to appeal was converted into appeal and partly allowed converting the petitioner's penalty of dismissal into removal from service.

Code of Conduct for Judges of the Supreme Court and High Courts (framed by the Supreme Judicial Council under Art. 209 (8) of the Constitution), Preamble

Supreme Judicial Council Procedure of Enquiry 2005, R. 3(l)

Supreme Judicial Council ('the Council')

Reference against a judge of the Superior Court on grounds of 'misconduct'

Misconduct

Meaning, scope and standard of proof.

Petitioner was Chief Financial Officer and his services were terminated by Board of Directors on the allegation of misconduct

Plea raised by petitioner was that he was condemned unheard

Validity

Board of Directors did not discuss material produced by petitioner nor referred the same and ignored it the time of maintaining its earlier decision regarding termination of petitioner

Such act of Board of Directors showed bias towards petitioner

Petitioner could be removed from service but strictly in accordance with law and by providing him an opportunity of hearing

Opportunity of hearing was a fundamental right in order to ensure fairness, justness and transparency which could not be denied to him under any circumstances

When dismissal for removal of contract employee was result of allegations of misconduct even then he was to get a fair chance of hearing in order to vindicate his position

To achieve the goal of transparency, petitioner was to be issued a show cause notice with charge sheet in order to provide him a reasonable opportunity of defence, followed by an inquiry in order to keep him abreast of the allegations

High Court set aside termination letter issued by authorities but denied him remunerations under the principle of "no work no gain"

Constitutional petition was allowed, in circumstances.

Besides acts and omissions enumerated under S.15(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, any other act prejudicial to good discipline also falls within the ambit of misconduct.