Disciplinary proceedings

At its core, the principle of proportionality requires that when an administrative authority exercises discretionary power, it must strike a fair balance between the adverse effects of its decision on the rights, liberties, or interests of individuals and the legitimate aim or purpose the decision seeks to achieve

A more refined version of the principle of proportionality analysis adopts a structured, four-stage test, requiring courts to address the following questions to determine whether an impugned measure is constitutionally or legally justifiable, which includes: (i) Legitimacy: Does the action pursue a legitimate objective recognized by law? (ii) Suitability (Rational Connection): Is the measure capable of achieving that objective, i.e., is there a rational nexus between the means employed and the aim pursued? (iii) Necessity: Could the same objective have been achieved through a less restrictive or less onerous alternative? and (iv) Proportionality stricto sensu (Balancing): Does the measure maintain a fair balance between the severity of its impact on the individual and the importance of the public interest it serves?

Moreover, Articles 4, 14 and 25 of the Constitution collectively impose a duty upon the courts to ensure that executive or disciplinary measures not only pursue lawful objectives but do so in a manner that is just, fair, and proportionate

In disciplinary jurisprudence, proportionality maintains a delicate balance between public and private rights

While civil servants are entitled to procedural fairness and protection from arbitrary sanctions, these rights must be balanced against the compelling public interest in maintaining the integrity and accountability of public institutions

The principle of proportionality at its most functional level ultimately hinges on a singular, decisive question: whether the interference with private rights is justified by a corresponding and weighty public interest

This balancing offers a structured framework for assessing the sustainability of disciplinary penalties

The penalty imposed must be evaluated not in isolation, but in relation to the degree of harm caused to the public interest and the severity of intrusion upon the private rights of the officer

A constitutionally and administratively sustainable penalty is one that serves a legitimate public objective without inflicting excessive or unnecessary harm upon individual rights

The test is not merely whether discipline is warranted, but whether the measure adopted strikes a fair and reasonable equilibrium between the legitimate aims of the institution and the human dignity of the individual

Accordingly, the principle of proportionality, in its clearest form may be said to rest on the following standard: The action taken achieves a necessary public goal without causing disproportionate harm to private interest

Furthermore, while proportionality strengthens constitutional adjudication when properly employed, its misuse can undermine the very values it seeks to uphold

A disproportionate decision may also violate the rule of law.

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.

It is the prerogative and inherent right of employer to trigger the disciplinary proceedings in accordance with the law to address the misconduct of committed by any employee but the 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.

The petitioner, a permanent workman within the meaning of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and the Industrial Relations Act, 2012, was employed by the respondent company

In September 2015, he underwent a dental procedure for which he submitted a medical bill of Rs.10,000 to the company for reimbursement under the approved policy

Subsequently, on 1st December 2015, he was served a show-cause notice alleging that the bill was bogus

Despite denying the allegations and participating in the inquiry, he was dismissed from service

The petitioner filed a grievance before the National Industrial Relations Commission (NIRC), where a single-bench upheld his dismissal, but the full-bench later set aside that decision and ordered his reinstatement

The company then filed a Constitutional petition before the High Court which was allowed restoring the order of dismissal, leading to the present appeal before the Supreme Court

Held: Since there were several bills for the dental treatment available on record, it was the responsibility of the inquiry officer either to call the doctor or the representative of dental clinic for evidence in the inquiry to prove which document issued by them was true and correct and which document was fake or forged

When the contradictory receipts were available on record it was obligatory for the inquiry officer to call the witnesses from the hospital for evidence and verification with the right of cross-examination to the petitioner without which the truth could not be unearthed

In the present case, the evidence of the representative of dental clinic/doctor was inevitable for proving the guilt whether the petitioner paid Rs.7000 or Rs.10,000/- and whether he really submitted a bill of excess amount or not

The witness from the hospital could be the star witness in this case who was ignored and no efforts were made by the management representative to call him before the inquiry officer as management's witness and no burden could be shifted on the employee to call him if the management did not want to verify or confront those medical bills to their star/key witness which by their own mistake lost its evidentiary value and nothing proved on record which bill of hospital/clinic was genuine

Appellate judgment of full bench NIRC was quite rational and judicious

Impugned judgment of the High Court was set aside and appellate judgment of NIRC's full bench was restored

Petition was converted into an appeal and was allowed, in circumstances.

It is the prerogative and inherent right of employer to trigger the disciplinary proceedings in accordance with the law to address the misconduct of committed by any employee but the 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.

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.

The petitioner, a permanent workman within the meaning of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and the Industrial Relations Act, 2012, was employed by the respondent company

In September 2015, he underwent a dental procedure for which he submitted a medical bill of Rs.10,000 to the company for reimbursement under the approved policy

Subsequently, on 1st December 2015, he was served a show-cause notice alleging that the bill was bogus

Despite denying the allegations and participating in the inquiry, he was dismissed from service

The petitioner filed a grievance before the National Industrial Relations Commission (NIRC), where a single-bench upheld his dismissal, but the full-bench later set aside that decision and ordered his reinstatement

The company then filed a Constitutional petition before the High Court which was allowed restoring the order of dismissal, leading to the present appeal before the Supreme Court

Held: Since there were several bills for the dental treatment available on record, it was the responsibility of the inquiry officer either to call the doctor or the representative of dental clinic for evidence in the inquiry to prove which document issued by them was true and correct and which document was fake or forged

When the contradictory receipts were available on record it was obligatory for the inquiry officer to call the witnesses from the hospital for evidence and verification with the right of cross-examination to the petitioner without which the truth could not be unearthed

In the present case, the evidence of the representative of dental clinic/doctor was inevitable for proving the guilt whether the petitioner paid Rs.7000 or Rs.10,000/- and whether he really submitted a bill of excess amount or not

The witness from the hospital could be the star witness in this case who was ignored and no efforts were made by the management representative to call him before the inquiry officer as management's witness and no burden could be shifted on the employee to call him if the management did not want to verify or confront those medical bills to their star/key witness which by their own mistake lost its evidentiary value and nothing proved on record which bill of hospital/clinic was genuine

Appellate judgment of full bench NIRC was quite rational and judicious

Impugned judgment of the High Court was set aside and appellate judgment of NIRC's full bench was restored

Petition was converted into an appeal and was allowed, in circumstances.

At its core, the principle of proportionality requires that when an administrative authority exercises discretionary power, it must strike a fair balance between the adverse effects of its decision on the rights, liberties, or interests of individuals and the legitimate aim or purpose the decision seeks to achieve

A more refined version of the principle of proportionality analysis adopts a structured, four-stage test, requiring courts to address the following questions to determine whether an impugned measure is constitutionally or legally justifiable, which includes: (i) Legitimacy: Does the action pursue a legitimate objective recognized by law? (ii) Suitability (Rational Connection): Is the measure capable of achieving that objective, i.e., is there a rational nexus between the means employed and the aim pursued? (iii) Necessity: Could the same objective have been achieved through a less restrictive or less onerous alternative? and (iv) Proportionality stricto sensu (Balancing): Does the measure maintain a fair balance between the severity of its impact on the individual and the importance of the public interest it serves?

Moreover, Articles 4, 14 and 25 of the Constitution collectively impose a duty upon the courts to ensure that executive or disciplinary measures not only pursue lawful objectives but do so in a manner that is just, fair, and proportionate

In disciplinary jurisprudence, proportionality maintains a delicate balance between public and private rights

While civil servants are entitled to procedural fairness and protection from arbitrary sanctions, these rights must be balanced against the compelling public interest in maintaining the integrity and accountability of public institutions

The principle of proportionality at its most functional level ultimately hinges on a singular, decisive question: whether the interference with private rights is justified by a corresponding and weighty public interest

This balancing offers a structured framework for assessing the sustainability of disciplinary penalties

The penalty imposed must be evaluated not in isolation, but in relation to the degree of harm caused to the public interest and the severity of intrusion upon the private rights of the officer

A constitutionally and administratively sustainable penalty is one that serves a legitimate public objective without inflicting excessive or unnecessary harm upon individual rights

The test is not merely whether discipline is warranted, but whether the measure adopted strikes a fair and reasonable equilibrium between the legitimate aims of the institution and the human dignity of the individual

Accordingly, the principle of proportionality, in its clearest form may be said to rest on the following standard: The action taken achieves a necessary public goal without causing disproportionate harm to private interest

Furthermore, while proportionality strengthens constitutional adjudication when properly employed, its misuse can undermine the very values it seeks to uphold

A disproportionate decision may also violate the rule of law.

When a civil/public servant in response to a show-cause notice has specifically denied the charges and considering the nature of the charges, all those allegations require evidence, then it becomes incumbent upon the authority to order regular inquiry and in the given situation departure from a normal course does not reflect bona fide on the part of the authority.

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.

Held: it was observed by the inquiry officer that the specific accusation concerning the approval of fourteen expense vouchers lacked tangible evidence

Crucially, the petitioner's alleged signatures on the questioned documents were neither subjected to forensic examination nor verified through any scientific or technical process, as such, there was no conclusive proof establishing the petitioner's complicity in the alleged misconduct

The inquiry officer further opined that the allegations were ambiguous, speculative, and fraught with doubt

Despite the inquiry's clear and favorable findings, the respondent bank authorities proceeded to punish the petitioner without any additional or independent justification, thereby undermining the principles of natural justice and fair inquiry

In these circumstances, and in the interest of justice, High Court was of the considered view that the disciplinary action taken against the petitioner employee was arbitrary, unjustified, and without lawful authority

Impugned order having been passed in contravention of due process and contrary to the findings of the inquiry officer was unsustainable in the eyes of law

Employee of NBP could maintain writ petition in relation to his grievance regarding service matters

Constitutional petition was allowed, in circumstances.

Prosecutor who does not apply his independent mind while taking prosecutorial decisions or giving opinions exposes himself to a legal action by Prosecutor General under S.10(2) of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 which again regards the prosecutors as public servants

Provision of S.10 (2) of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 reinforces independence of criminal prosecution service that until Prosecutor General recommends, no authority in government can take action against prosecutors.

Show-cause notice, whether initial or final, was not amenable to Constitutional jurisdiction unless it was shown to be a nullity in law

Issuance of show-cause notice was a procedural step intended to afford the employee an opportunity to explain his conduct and did not by itself constitute adverse determination of rights

Constitutional Courts do not sit as appellate forums over departmental inquiries

Petitioner was to exhaust remedies available under service rules, including right to reply, personal hearing and appeal, when the adverse order was passed

Premature judicial intervention undermined disciplinary framework and set a deleterious precedent for circumventing lawful accountability

Mere show-cause notice filed at a stage when no final determination had been made, failed to meet threshold of maintainability under Art. 199 of the Constitution

High Court declined to interfere in the matter as it was premature, misconceived, legally deficient and factually unsubstantiated

High Court directed the competent authority to proceed with the disciplinary inquiry strictly in accordance with the law, ensuring due process and affording petitioner a fair defence opportunity

Constitutional petition was dismissed accordingly.

Such proceedings are meant to confirm and ensure that terms and conditions of service prescribed for purposes of Civil Servants Act, 1973 including requirements as to conduct and efficiency of an employee, are being complied with.

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.

Such proceedings are meant to confirm and ensure that terms and conditions of service prescribed for purposes of Civil Servants Act, 1973 including requirements as to conduct and efficiency of an employee, are being complied with.

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.

Courts must balance individual rights with the larger public interest.

Punishment of compulsory retirement was imposed upon civil servant who remained absent from service for 48 days, without leave

Validity

Authority of competent authority in imposing any of the three major penalties is not restricted under second proviso to section 13(5)(ii) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006, even where period of absence from duty is less than one year

Where competent authority elects to impose a major penalty in cases of absence from duty for less than a year, it must do so in accordance with the principle of proportionality

Civil servant remained absent from duty for a total of 48 days and imposition of major penalty of compulsory retirement failed to meet test of proportionality

Neither the punishment established rational nexus between misconduct and severity of penalty nor it considered less restrictive alternatives

Supreme Court set aside judgment passed by High Court to the extent of the penalty imposed

Supreme Court directed that reinstatement of civil servant would be subject to a fresh determination by competent authority

Supreme Court directed competent authority to revisit case of civil servant and impose a penalty commensurate with the gravity of misconduct

Appeal was allowed.

Main object of affording fair opportunity of cross examination in defence is to obliterate testimony of witness or witnesses to disprove charge or allegations both in civil and criminal matters, including domestic/departmental inquires conducted under labour laws or civil servant laws

Mere statement of any witness has no legal value unless heis subjected to cross examination which cannot be envisaged as a concession

It is a vested right and a fundamental limb of dogma of fair trial

During regular inquiry, it is an unavoidable obligation of inquiry officer to provide fair opportunity of cross examining the witnesses without which it was not possible to fix responsibility for charges of misconduct

Such violation of an elementary principle of law sabotaged the fabric and substratum of entirety of disciplinary proceedings and worth and credibility of inquiry

On the basis of defective inquiry, major punishment of compulsory retirement was imposed upon civil servants

In total five persons were indicted in inquiry and on the strength of same inquiry report only two civil servants were punished with compulsory retirement, while one accused was punished with reduction to a lower time-scale and two senior officers were exonerated from inquiry proceedings

Supreme Court set aside judgment passed by Service Tribunal and matter was remanded to departmental authorities for de novo inquiry into the allegations against civil servants

Appeal was allowed.

Civil servant was absent from duty and authorities laid out sufficient reasons to show why they did not want civil servant to continue with his service, considering that he willfully absented himself, did not obtain clearance before travelling, and started looking for jobs after travelling abroad, all of which the civil servant was unable to sufficiently rebut

Due process was observed and followed by authorities

Where absence from duty was admitted, there was no need to hold regular inquiry

Service Tribunal had no justifiable reason to reduce the punishment from major penalty of removal from service into compulsory retirement on the pretext that the punishment was harsh given that the civil servant had studied abroad and was an asset for Pakistan

Supreme Court set aside judgment passed by Service Tribunal as it exceeded its jurisdiction by arbitrary exercise of discretion which was illegal and without lawful authority and restored penalty imposed by authorities

Appeal was allowed.

Courts must balance individual rights with the larger public interest.

Punishment of compulsory retirement was imposed upon civil servant who remained absent from service for 48 days, without leave

Validity

Authority of competent authority in imposing any of the three major penalties is not restricted under second proviso to section 13(5)(ii) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006, even where period of absence from duty is less than one year

Where competent authority elects to impose a major penalty in cases of absence from duty for less than a year, it must do so in accordance with the principle of proportionality

Civil servant remained absent from duty for a total of 48 days and imposition of major penalty of compulsory retirement failed to meet test of proportionality

Neither the punishment established rational nexus between misconduct and severity of penalty nor it considered less restrictive alternatives

Supreme Court set aside judgment passed by High Court to the extent of the penalty imposed

Supreme Court directed that reinstatement of civil servant would be subject to a fresh determination by competent authority

Supreme Court directed competent authority to revisit case of civil servant and impose a penalty commensurate with the gravity of misconduct

Appeal was allowed.

Main object of affording fair opportunity of cross examination in defence is to obliterate testimony of witness or witnesses to disprove charge or allegations both in civil and criminal matters, including domestic/departmental inquires conducted under labour laws or civil servant laws

Mere statement of any witness has no legal value unless he is subjected to cross-examination which cannot be envisaged as a concession

It is a vested right and a fundamental limb of dogma of fair trial

During regular inquiry, it is an unavoidable obligation of inquiry officer to provide fair opportunity of cross examining the witnesses without which it was not possible to fix responsibility for charges of misconduct

Such violation of an elementary principle of law sabotaged the fabric and substratum of entirety of disciplinary proceedings and worth and credibility of inquiry

On the basis of defective inquiry, major punishment of compulsory retirement was imposed upon civil servants

In total five persons were indicted in inquiry and on the strength of same inquiry report only two civil servants were punished with compulsory retirement, while one accused was punished with reduction to a lower time-scale and two senior officers were exonerated from inquiry proceedings

Supreme Court set aside judgment passed by Service Tribunal and matter was remanded to departmental authorities for de novo inquiry into the allegations against civil servants

Appeal was allowed.

Show-cause notice was issued on 29.05.2013; appellant furnished reply on 06.06.2013 and personal hearing was afforded on 08.06.2013, however the proceedings were concluded by issuing Notification dated 27.09.2016 i.e. after lapse of more than three years from personal hearing

No justification and sufficient reasons had been advanced by respondent for the delay in concluding the proceedings, especially when regular inquiry was dispensed with on the ground that a judicial order of the appellant was sufficient to show his inefficiency and misconduct

Pendency of disciplinary proceedings was also a punishment and appellant had suffered agony and mental torture for such a long period

Tribunal allowed the appeal against the orders imposing penalty of withholding promotion for a period of three years retrospectively and declining pro forma promotion to the appellant

Appeal was allowed, in circumstances.

Petitioners/civil servants challenged jurisdiction of Election Commission to initiate departmental proceedings against them, especially in the light of the fact that after annulment of election in the constituency they no more remained election officials

Validity

High Court declined to dismiss the petition for the reason that petitioners/civil servants would have a chance to challenge final order to be passed by the Commission on the conclusion of the departmental proceedings

If any proceedings right from their inception were untenable, jurisdiction of High Court to take care of such proceedings/orders could not be abridged on technical grounds

Commission could only proceed against a person till the time he fell within the definition of an election official as contemplated under S. 2(xviii) of Elections Act, 2017

Constitutional petition was maintainable, in circumstances.

Petitioners/civil servants performed election duties and on conclusion of elections, Election Commission issued show cause notices to them for initiating disciplinary proceedings against them

Validity

According to S. 55(1) of Elections Act, 2017, a person can be deemed to be under the control, superintendence and discipline of the Commission for the period commencing from his date of appointment or deputation till publication of name of returned candidate in Official Gazette

Both the relevant Provincial laws as well as Federal Rules relating to efficiency and discipline of civil servants provide complete mechanism to proceed against an official/officer and any order passed in derogation of such procedure cannot be allowed to hold the field merely on technical grounds that High Court cannot adjudicate upon a dispute relating to terms and conditions of government servants

Merely declaring the Commission as competent authority to conduct disciplinary proceedings against an election official does not empower it to by-pass the procedure provided under the relevant law

When law requires that a particular act is to be performed in a specific manner, the same cannot be allowed to be deviated and any violation on the part of the Executive in such regard is amenable to judicial review by superior courts

Election Commission, under S. 55 of Elections Act, 2017 can initiate disciplinary proceedings against an election official, who remains election official for the period starting from date of his appointment/deputation for election till the date that fate of election in the constituency is declared

After declaration of fate of election held in the Constituency, petitioners/civil servants did not remain subject to its superintendence and control

Upon declaration of fate of election in the Constituency, petitioners/civil servants no more remained election officials, hence, the Commission had no jurisdiction to initiate proceedings against them

High Court set aside disciplinary proceedings initiated by Election Commission against petitioners/Civil servants as the same were coram-non-judice

If the Election Commission thinks that the petitioners/civil servants were involved in any subversive activities during their deployment in election duty, it would be at liberty to refer the matter to their parent departments for initiation of proceedings under relevant law

Constitutional petition was allowed accordingly.

The government and its instrumentalities are bound by the principle that they cannot act to the detriment of an individual, merely, because he pursued a lawful remedy

This is consistent with the doctrine of estoppel, which prevents public authorities from acting in a manner that contradicts their prior conduct to the detriment of an individual.

Imposition of punishment under the law is primarily the function and prerogative of the competent authority and the role of the court is secondary, which comes into play only when the imposed penalty is found to be unlawful or unreasonable

Reasonableness for the purposes of assessing the quantum or nature of a penalty imposed by the department is to be gauged by applying the test of proportionality

In essence, an administrative decision must not be more drastic than necessary and therefore, it follows that the penalty imposed must be commensurate with the misconduct or inefficiency that has been proved.

Plea raised by appellant / judicial officer was that no regular inquiry was conducted against him during departmental proceedings

Validity

Appellant / judicial officer did not submit any representation envisaged by R. 6(3)(c) of Punjab Civil Servants (Efficiency and Discipline) Rules, 1999, against decision of Authority to dispense with an inquiry

Inquiry could be dispensed with where there was no dispute with respect to facts alleged against accused

Appellant / judicial officer in his reply to show cause notice disputed facts which had formed the basis of issuance of show cause notice to him

There was no separate order of Authority on record dispensing with conducting a regular inquiry against appellant / judicial officer

Show-cause notice listed the reasons which caused competent authority to take a prima facie view that appellant / judicial officer committed misconduct but they were not the reasons for dispensing with regular inquiry

Said reasons simply stated the allegations that were levelled against appellant / judicial officer and nothing more

Mandatory condition of recording reasons for dispensing with regular inquiry had not been fulfilled in departmental proceedings in question

High Court set aside order passed against appellant / judicial officer for non-recording of essential prerequisites for dispensing with regular inquiry and matter was remanded to competent authority for proceedings afresh

High Court declined to award back benefits as allegations against appellant / judicial officer were to be inquired into and his entitlement to back benefits would depend on the result of such proceedings

Appeal was allowed accordingly.

Constitutional jurisdiction of the High Court is not meant to be exercised to restrain the competent authority from taking action under law against a public servant against whom prima facie evidence showing his involvement in the serious charges of misconduct is available

Any such direction will be disharmonious to the principle of good governance and canon of service discipline rather it would cause undue interference to hamper the smooth functioning of the departmental authorities

In law show-cause is not defined as a punishment

Petitioner could not file a constitutional petition against the issuance of show-cause notice (SNC), which was simply an opportunity to explain the position in the course of the inquiry

Against the adverse result of inquiry arising out of SCN, if any, the petitioner would have the remedy of appeal

In presence of such adequate remedy, High Court at this juncture would not step in to declare the SCN issued to the petitioner illegal or void

Petitioner's objection on the issuance of SCN was technical and procedural, and there was no malice or ulterior motives on the part of respondent/CAA and/or violation of the principles of natural justice

Court would not exercise its discretion to thwart the whole process arising out of the SCN and set aside SCN on any of the technical grounds, as it would amount to interfering in the right of the authority to enquire into allegations against the petitioner

Besides, respondents had levelled serious allegations against the petitioner in their comments about his qualification of B.A. degree being fake document, which would certainly be considered by the competent authority in the inquiry proceedings against the petitioner

Since the show cause was issued against the petitioner and he replied and it was for the respondent/CAA to decide under law for which the High Court was not required to show indulgence in the matter under Art. 199 of the Constitution to set aside the disciplinary proceedings initiated against him

High Court did not see any infringement of the right of the petitioner which could be called in question by way of constitutional petition

Public Servant has no vested right to call in question the disciplinary proceedings in constitutional petition

Constitutional petition having been filed against the issuance of show-cause notice was dismissed.

Petitioner (Deputy Director/BPS-18) filed constitutional petition against his suspension order contending that impugned order could not be termed as an order passed within the terms and conditions of his service

Plea of the petitioner was that previously he invoked constitutional jurisdiction against the respondent/Sindh Building Control Authority (SBCA), so with mala fide intention and out of personal vendetta SBCA proceeded against him

Validity

Plea /analogy of the petitioner was misconceived as the pendency of the disciplinary proceedings fell within the ambit of expression terms and condition of service of the public servant

Final decision against the petitioner was yet to be taken by the respondent/SBCA and the petitioner would have an opportunity of hearing before impugned final action, if any, taken against him by the Competent Authority of SBCA

Constitutional petition was dismissed, in circumstances.

Show cause notices issued by Pakistan Bar Council ("PBC") to the Secretary and Additional Secretary Supreme Court Bar Association (SCBA) were followed by notification of their de-seating

Legality

Amicable settlement

Elected representatives of PBC and SCBA conveyed their proposals in Court for agreement/settlement and, after due deliberation and thoughtful consideration, they consensually reached to an amicable settlement

Terms and conditions of the settlement stated.

Authorized officer cannot issue directions to the competent authority to decide the disciplinary proceedings in a particular manner nor could he give directions to conduct a de novo inquiry if proceedings were dropped/filed after due consideration.

No rigid or definitive rule that in each and every case after issuing show cause notice a regular inquiry should be conducted, but if the department aspires to dispense with the regular inquiry due to some compelling circumstances or exigency, then justifiable reasons should be assigned in writing before dispensing with the regular inquiry

No doubt, if a charge is set up or stems from admitted documents, no full-fledged regular inquiry is obligatory, but if the allegations are based on disputed questions of facts, then obviously the employee cannot be denied a right of regular inquiry, specifically where the allegations cannot be resolved without leading evidence and providing a fair opportunity to the parties to cross-examine the witnesses.

No rigid or definitive rule that in each and every case after issuing show cause notice a regular inquiry should be conducted, but if the department aspires to dispense with the regular inquiry due to some compelling circumstances or exigency, then justifiable reasons should be assigned in writing before dispensing with the regular inquiry

No doubt, if a charge is set up or stems from admitted documents, no full-fledged regular inquiry is obligatory, but if the allegations are based on disputed questions of facts, then obviously the employee cannot be denied a right of regular inquiry, specifically where the allegations cannot be resolved without leading evidence and providing a fair opportunity to the parties to cross-examine the witnesses.

Authorized officer cannot issue directions to the competent authority to decide the disciplinary proceedings in a particular manner nor could he give directions to conduct a de novo inquiry if proceedings were dropped/filed after due consideration.

Petitioner was serving as Inspector Market Committee who was compulsorily retired from service during departmental proceedings but lesser punishment was imposed upon Secretary Market Committee

Validity

If Administrator Market Committee had passed an illegal order without taking Secretary Market Committee into confidence, or without his guidance even after deposit of outstanding dues and issuance of receipts, the Secretary Market Committee could bring the matter into notice of Administrator for taking further steps in line with law on the subject but shyness on his part had spoken volumes about his dubious conduct towards performance of his duties

Present was a case of clear discrimination as no distinguishing feature for imposition of harsher penalty against petitioner as compared to Secretary Market Committee was mentioned

Such act of departmental authorities was violative of Art. 25 of the Constitution

High Court maintained the conviction but reduced the punishment into one imposed to the Secretary Market Committee

Constitutional petition was dismissed accordingly.

Prime Minister ('the Authority') not agreeing with the recommendation of the Inquiry officer ordered a de novo inquiry against the civil servant

Civil servant filed a Constitutional petition before the High Court challenging the order of de novo inquiry

Maintainability

Rule 2(a)(iii) of the Civil Servants (Appeal) Rules, 1977 provided that an order by the Prime Minister was appealable to the President

In the present petition, no such appeal was filed

Instead the civil servant choose to file a Constitutional petition before the High Court

Right of appeal being available under the rules, which was admittedly not availed, the High Court should have refrained from exercising its extraordinary constitutional jurisdiction which was equitable and discretionary in nature

Furthermore the issue raised clearly fell within the ambit of Federal Service Tribunal in terms of Art. 212 of the Constitution

Appeal was allowed with the consequence that Constitutional petition filed before the High Court was dismissed.

As per R. 5(iv) of the Government Servants (Efficiency and Discipline) Rules, 1973 ['the E&D Rules'], the Authorized Officer upon receipt of the report of the inquiry Officer or Inquiry Committee was required to determine whether the charge against the accused was proved

If it was proposed that a major penalty be imposed, the Authorized Officer was required to forward the case of the accused to the Authority ( i.e. the Prime Minister) along with all the requisite material forming basis for the proposed penalty

Once the same was done it was then upon the Authority to decide and pass the final order

Authority was fully empowered to examine the record and recommendation which it had received from the Authorized Officer and pass an appropriate order

Authority had the power to agree with the recommendation, disagree with the recommendation and either pass a final order on the basis of the record before it after providing an opportunity of hearing, or if dissatisfied with the inquiry, order a de novo inquiry for valid and recorded reasons

Appeal was allowed.

Where the fact of absence from duty was admitted, there was no need for holding of a regular enquiry for that there was no disputed fact involved to be enquired into.

Prime Minister ('the Authority') not agreeing with the recommendation of the Inquiry officer ordered a de novo inquiry against the civil servant

Civil servant filed a Constitutional petition before the High Court challenging the order of de novo inquiry

Maintainability

Rule 2(a)(iii) of the Civil Servants (Appeal) Rules, 1977 provided that an order by the Prime Minister was appealable to the President

In the present petition, no such appeal was filed

Instead the civil servant choose to file a Constitutional petition before the High Court

Right of appeal being available under the rules, which was admittedly not availed, the High Court should have refrained from exercising its extraordinary constitutional jurisdiction which was equitable and discretionary in nature

Furthermore the issue raised clearly fell within the ambit of Federal Service Tribunal in terms of Art. 212 of the Constitution

Appeal was allowed with the consequence that Constitutional petition filed before the High Court was dismissed.

As per R. 5(iv) of the Government Servants (Efficiency and Discipline) Rules, 1973 ['the E&D Rules'], the Authorized Officer upon receipt of the report of the inquiry Officer or Inquiry Committee was required to determine whether the charge against the accused was proved

If it was proposed that a major penalty be imposed, the Authorized Officer was required to forward the case of the accused to the Authority ( i.e. the Prime Minister) along with all the requisite material forming basis for the proposed penalty

Once the same was done it was then upon the Authority to decide and pass the final order

Authority was fully empowered to examine the record and recommendation which it had received from the Authorized Officer and pass an appropriate order

Authority had the power to agree with the recommendation, disagree with the recommendation and either pass a final order on the basis of the record before it after providing an opportunity of hearing, or if dissatisfied with the inquiry, order a de novo inquiry for valid and recorded reasons

Appeal was allowed.

Where the fact of absence from duty was admitted, there was no need for holding of a regular enquiry for that there was no disputed fact involved to be enquired into.

Petitioner, an employee of OGDCL impugned office memorandum of respondent OGDCL whereby major penalty of dismissal from service was imposed on him, inter alia, on ground that he submitted fake matriculation certificate in order to obtain increments

Validity

Perusal of record revealed that officer of OGDCL authorized to proceed against petitioner had recommended that petitioner be exonerated from charge of forgery by giving him benefit of doubt

Said recommendation was not denied by OGDCL and had not been recalled and nothing on record showed as to why said recommendation was not accepted by OGDCL and no reasons were recorded by competent authority for not agreeing with said recommendation

High Court held that such omission rendered the impugned office memorandum liable to be set aside

Constitutional petition was allowed, accordingly.

Court could examine and judicially review the executive discretion exercised by the authorized officer on the ground of proportionality

Alongside reasonableness, proportionality was a central standard directing the action of the executive branch

Disproportionate act that infringed upon a human right was an illegal act

Court, which guarded the legality of the acts of the executive branch, performed judicial review over these acts and examined whether they fulfilled the tests of proportionality

Proportionality was a standard that examined the relationship between the objective the executive branch wished to achieve, which had the potential of infringing upon a human right, and the means it had chosen in order to achieve that infringing objective

Fiduciary duty, from which the administrative duty of fairness and administrative reasonableness were derived, demanded administrative proportionality as well

Courts would quash exercises of discretionary powers in which there was not a reasonable relationship between the objective which was sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior courts were wholly out of proportion to the relevant misconduct

Administrative measure must not be more drastic than necessary

Standards of proportionality and unreasonableness were inextricably intertwined

Unreasonableness contained two elements of proportionality when it required the weight of relevant considerations to be fairly balanced and when it forbade unduly oppressive decisions

Under the first element, proportionality was a test requiring the decision maker to maintain a fair balance, and under this category the courts evaluated whether manifestly disproportionate weight had been attached to one or other considerations relevant to the decision

Second element was that the courts considered whether there had been a disproportionate interference with the claimants rights or interests

More sophisticated version of proportionality provided for a structured test, where under the courts asked first whether the measure, which was being challenged, was suitable to attaining the identified ends (the test of suitability)

Suitability here included the notion of "rational connection" between the means and ends

Next step asked whether the measure was necessary and whether a less restrictive or onerous method could have been adopted (the test of necessity - requiring minimum impairment of the rights or interest in question).

Petitioner was employee of Port Qasim Authority and his termination from service was set aside by High Court with the direction to reinstate him in service with back benefits with effect from 7-11-2003

Authority assailed the order before Supreme Court and the petition was dismissed on 2-5-2013

Petitioner, in the meantime, had attained the age of superannuation on 15-4-2007 and his retirement order was issued on 25-7-2014 with retrospective effect

Authority treated intervening period as leave without pay, for the purposes of calculating back benefits

Plea raised by the Authority was that back benefits could not be awarded to petitioner upon his reinstatement

Validity

Disciplinary proceedings, under Fundamental Rule 54-A, could not be continued or conducted, as petitioner ceased to be employee of the Authority on attaining age of superannuation on 15-4-2007

Plea raised by the Authority was not tenable in law, as the Authority could not conduct fresh proceedings / inquiry against petitioner in compliance with the order of High Court

Authority was left with no option but to award back benefits in terms of order passed by High Court earlier

Allegations could not be inquired and petitioner was not heard on the allegations leveled against him

High Court directed the Authority to re-calculate pensionary benefits of petitioner of intervening period and other benefits as admissible under law and make payment of the same to petitioner within a period of 30 days

Constitutional petition was allowed accordingly.

If it was decided that there should be inquiry either by Inquiry Officer or Inquiry Committee then procedure laid down in R.6 of Civil Servants (Efficiency and Discipline) Rules, 1973, was to be followed and requirements enumerated therein were that charge should be framed and employee would be allowed to reply to charge after which evidence was to be recorded by examining witnesses in support of the charge allowing opportunity to affected employee to cross-examine witness and he could also produce witnesses in his defence

No inquiry into allegations levelled by employer company against employee was conducted and required procedure, which included charge sheet, was also not followed, so as to ensure transparency in arriving at decision of imposing major penalty of removal from service upon the employee

High Court directed the employer company to reinstate petitioner to his original position and remanded the matter to conduct impartial inquiry into allegations levelled against him

Petition was allowed accordingly.

Question as to which standard was applicable to Law Society's decision finding lawyer guilty of professional misconduct for in-court incivility

[Per Moldaver J; Majority view] Reasonableness standard applied to Law Society's misconduct findings and sanctions

Decisions of specialized administrative bodies interpreting their own statute or statutes closely connected to their function were entitled to deference from courts, and were thus presumptively reviewed for reasonableness ? Law Society's approach to determining when incivility amounted to professional misconduct and its application of that approach in assessing a lawyer's conduct involved an interpretation of the Rules of Professional Conduct enacted under its home statute and the discretionary application of general principles to the facts before it

Determining when in-court behaviour amounted to professional misconduct did not fall under the category of questions of central importance to the legal system as a whole and outside the decision-maker's expertise, for which correctness standard would be appropriate

Although the permissible scope of lawyers' behaviour was arguably of central importance to the legal system as a whole, it could not be said that assessing whether incivility amounted to professional misconduct was outside the Law Society's expertise

To the contrary, Law Society disciplinary tribunals had significant expertise regulating the legal profession, and Law Society disciplinary panels were composed, in part, of other lawyers, who were aware of the problems and frustrations that confronted a practitioner

Furthermore, a deferential standard of review did not threaten a trial judge's power to control his or her courtroom

Trial judge was free to control the conduct in his or her courtroom irrespective of the degree of deference accorded to a Law Society's disciplinary decision by a different court

Fact that the behaviour occurred in a courtroom was an important contextual factor that must be taken into account when evaluating whether that behaviour amounted to professional misconduct; but it did not impact on the standard of review

[Per Karakatsanis, Gascon and Rowe, JJ; Majority view] Reasonableness was the applicable standard of review

Fact that a lawyer's behavior occurred in the courtroom did not deprive the Law Society of its legitimate role in regulating the profession nor did it justify heightened judicial scrutiny

[Per Côté, J; Minority view] Where the impugned conduct occurred in a courtroom the Law Society's finding of professional misconduct was reviewable on the correctness standard

Fact that the relevant conduct occurred in a court of law implicated constitutional imperatives about the judiciary's independence and its capacity to control its own processes, and rebutted the presumption of reasonableness

Correctness review/standard was required because the Law Society's inquiry into in-court professional misconduct engaged the contours of the constitutional relationship between the courts and government regulators

Judicial independence was, without question, a cornerstone of democracy and essential to both the impartiality of the judiciary and the maintenance of the rule of law

Inquiry by a law society into a lawyer's in-court conduct risked intruding on the judge's function of managing the trial process and his authority to sanction improper behaviour

To protect judicial independence, and the authority of judges to manage the proceedings before them in the manner they saw fit, the judiciary ? not a regulatory body, a creature of the political branches of government ? should have the final say over the appropriateness of a lawyer's conduct in that sphere

Reasonableness standard of review, which required judicial deference to a Law Society's disciplinary determinations, was inconsistent with such prerogative

Correctness review was required to ensure proper respect for the judiciary's constitutionally guaranteed place in democracy.

Petitioners, who were employees of National Bank of Pakistan, impugned show-cause notices issued in pursuance of disciplinary proceedings on the grounds, inter alia, that the same were issued in violation of rules and policy, and were also time-barred

Validity

Mere charge-sheet/show-cause notice did not give rise to any cause of action, since the same did not amount to an adverse order, which affected right of any party, unless the same had been issued by a person having no jurisdiction to do so

Only when a final order imposing some punishment or an otherwise adverse order affecting a party was passed, then such party could to be said to have a grievance

Constitutional jurisdiction of High Court was discretionary and could not be exercised to quash a show-cause notice or charge sheet

Petitioners also had an alternative remedy to state their defence before respective inquiry officer

Constitutional petitions were dismissed, in circumstances.