Departmental Proceedings

Major penalty of dismissal from service cannot be awarded without conducting regular inquiry or providing opportunity of being heard to a civil servant, as it amounts to violation of principles of natural justice.

Where an accused does not specifically refer to his right to cross-examination in a reply to a show-cause notice, that right is not somehow waived

Such right remains intact and it is upon the Inquiry Officer to ensure that such right is told to the accused, properly afforded and if the accused does not wish to proceed with cross-examination, Inquiry Officer is to record the reasons and put that into writing

It is incumbent upon the inquiry officer to ensure that the right is not treated so casually and dispensed away with especially without any reasons recorded in writing

Right remains intact, guaranteed under Art. 10-A of the Constitution even where the accused does not make a request to cross-examine any witness at any point during the investigation process

Right to a proper defence-and, by necessary implication, the right to cross-examine-is a vested and inalienable right of the accused

Article 10-A of the Constitution casts a constitutional canopy over all proceedings, shielding the accused from being left exposed to the harsh glare of arbitrary or one-sided departmental action, as it ensures that no person is condemned unheard and that fairness permeates every stage of the disciplinary process

Order of dismissal from service and judgment of the Tribunal were set aside with a direction to conduct de novo inquiry strictly in accordance with Art. 10-A of the Constitution

Civil petition was converted into an appeal and allowed, in circumstances.

Where an accused does not specifically refer to his right to cross-examination in a reply to a show-cause notice, that right is not somehow waived

Such right remains intact and it is upon the Inquiry Officer to ensure that such right is told to the accused, properly afforded and if the accused does not wish to proceed with cross-examination, Inquiry Officer is to record the reasons and put that into writing

It is incumbent upon the inquiry officer to ensure that the right is not treated so casually and dispensed away with especially without any reasons recorded in writing

Right remains intact, guaranteed under Art. 10-A of the Constitution even where the accused does not make a request to cross-examine any witness at any point during the investigation process

Right to a proper defence-and, by necessary implication, the right to cross-examine-is a vested and inalienable right of the accused

Article 10-A of the Constitution casts a constitutional canopy over all proceedings, shielding the accused from being left exposed to the harsh glare of arbitrary or one-sided departmental action, as it ensures that no person is condemned unheard and that fairness permeates every stage of the disciplinary process

Order of dismissal from service and judgment of the Tribunal were set aside with a direction to conduct de novo inquiry strictly in accordance with Art. 10-A of the Constitution

Civil petition was converted into an appeal and allowed, in circumstances.

Briefly, the petitioner was appointed as a driver in the Punjab Workers Welfare Board in 1997 and was served with a show-cause notice on 23.12.2015 for alleged absence from duty, after which the competent authority, following a personal hearing but without conducting a regular inquiry, imposed the major penalty of removal from service

Departmental appeal was dismissed

Thereafter petitioner filed are presentation which was rejected, followed by proceedings before the Labour Court and Labour Appellate Tribunal, both of which ultimately declined relief on jurisdictional grounds, leaving the petitioner to invoke the constitutional jurisdiction of the High Court

The issue requiring determination before the High Court was "whether the penalty of removal from service imposed without holding a regular inquiry under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 was lawful and sustainable?"

Held: Disputed facts were involved in the matter as the petitioner in his reply had taken ground of medical treatment and for issuance of license from another city and authenticity or otherwise of such facts could not be considered without conducting a regular inquiry

If the allegations had been levelled on the basis of complaint of principal, then there was a requirement that right of cross-examination had to be given to the petitioner

No reason had been mentioned by the competent authority to dispense with the inquiry and had proceeded against the petitioner only on the basis of opinion which was not in accordance with the relevant rules

Imposing major penalty to the petitioner in such circumstances was not permissible under any rule or law

Nevertheless, allegation against the petitioner was no more in the filed as his absence period had been converted into leave kind due

The absence period for which the petitioner had already been granted extra ordinary leave without pay could not be considered/mentioned again while imposing on him major penalty of removal from service rather it could be considered that absence period had been regularized by the authority

The respondent department in a stereotype and mechanical manner proceeded against the petitioner and imposed him major penalty of removal from service which was not warranted under law

Even otherwise while dispensing with the regular inquiry, cogent and justifiable reasons should have been recorded by the competent authority but in the present case inquiry had been dispensed with in an arbitrary manner, therefore, the impugned orders were in violation of Arts. 4, 10-A and 13 of the Constitution and Ss. 7, 9 and 10 of the Act

Impugned orders were set aside

The competent authority was at liberty to conduct regular inquiry under the law

Constitutional petition was allowed, in circumstances.

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.

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.

Determination of validity of orders passed by a judicial officer in departmental proceedings instead of appellate jurisdiction

Scope

Appellant assailed the order passed by respondent (Registrar High Court), whereby his departmental appeal had been rejected

Validity

Decision passed by any judge may ultimately turn out to be incorrect and be set aside by a higher judicial forum, however, the erroneous exercise of judicial power, resulting in an order based on an incorrect application of the law, cannot and should not cast doubt on the integrity of the Judicial Officer

Quality of a judgment or order passed by a Judicial Officer can only be properly assessed in appellate judicial proceedings and, ordinarily, not through disciplinary proceedings, unless extraneous factors that influenced the judgment or order are proved with cogent material presented before the inquiry officer

Inquiry Officer or Hearing Officer conducting disciplinary proceedings cannot act as an appellate or revisional forum over the judgments or orders passed by the Judicial Officer

Judicial independence of the subordinate judiciary must be respected and safeguarded at all costs

Inquiry Officer or Hearing Officer must proceed with extreme caution in such matters, as any overreach would have a chilling effect on the functioning of the subordinate judiciary, impeding its ability to perform judicial functions freely and fairly

No supporting material was available to establish any extraneous considerations on the part of the appellant in passing the order that was the subject matter of the inquiry

Order was passed on allegations of inefficiency and misconduct, but these allegations were not substantiated during the inquiry, especially considering the similar order passed by the appellant's successor, which had attained finality

Word 'or' appearing in R. 4(1)(a)(ii) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999, particularly regarding the penalties of withholding an increment or promotion, to be termed as disjunctive, which means that only one minor penalty (either withholding of increment or withholding of promotion) should be awarded at a time, rather than combining both penalties

Appeal was allowed, in circumstances.

Petitioner/Company filed constitutional petition against order passed under S. 221 of the Income Tax Ordinance, 2001 ('the Ordinance, 2001')

Contention of the petitioner (Company) was that since applicability of S. 4C of the Ordinance 2001 had been decided by the Sindh High Court in the case titled as Shell Pakistan Limited v. Federation of Pakistan reported as 2023 PTD 607 ('the Shell Pakistan case'), hence, the present (constitutional) petition was maintainable

Validity

Admittedly, the petitioner had not challenged vires of S. 4C of the Income Tax Ordinance, 2001, before

Record also showed that the petitioner was given a Show-Cause Notice which was contested and an order under S. 221(1) of the Income Tax Ordinance, 2001, was passed along with certain others orders ; order under S. 124 of the Income Tax Ordinance, 2001, as well as an Appellate Order under S.129 of the Ordinance, 2001, against the petitioner was also passed

Admittedly, the petitioner was planning to avail further remedy in accordance with law

But despite said fact(s), present (constitutional) petition was filed on the basis of the Shell Pakistan case

Said conduct of the petitioner was not appreciable as the petitioner could not avail two different remedies at the same time to seek redressal of its grievance

Petitioner was at liberty to approach the High Court directly by challenging the vires of S. 4C of the Ordinance, 2001 as had been done by various other taxpayers, and if not, then the petitioner could not, in between the departmental proceedings, file a constitutional petition and seek adjudication of the Show-Cause Notices or even orders passed by the Department under its hierarchy

Doctrine of election denotes that the election to commence and follow an available course, from concurrent avenues, vests with a suitor, however, once an option is exercised then the suitor is precluded from re-agitating the same lis in other realms of competent jurisdiction

Thus the contention of the petitioner was misconceived

Constitutional petition, filed by taxpayer, was dismissed with costs.

Petitioners assailed their discharge orders before the departmental appellate authority, Service Tribunal and Centralized Re-examination Committee, but remained unsuccessful, then they filed present Constitutional petition with the contention that they had been discriminated and instead of proceeding against them under the Removal from Service (Special Powers) Sindh Ordinance, 2000, they had been discharged from service under the Police Rules, 1934

Validity

Matter fell within the competence of the Service Tribunal, thus, notification could not be challenged before High Court under Art.199 of the Constitution in view of the bar set out in Art.212 of the Constitution

Petitioners themselves had approached the Tribunal and accepted the manner in which their appeals were decided as they had awaited the outcome of proceedings before the Centralized Re-examination Committee prior to approaching High Court

If the petitioners were aggrieved by the decision of the Tribunal and wished to advance their challenge to being discharged from service, the appropriate course for them was to have approached the Supreme Court

Since grievance of the petitioners had arisen out of the proceeding of the Re-examination Committee, which had not been impugned before the High Court, thus, the plea of discrimination that respondents had been unduly appointed did not even otherwise serve to advance the cause of the petitioners for their own appointment

Constitutional petition was dismissed, in circumstances.

Departmental proceedings, pending against government service, stand abated under R. 54-A of Fundamental Rules, in the event of his retirement from government service.

Right to procedural fairness/propriety was applicable to judicial, quasi-judicial and non-judicial proceedings.

Conversion of penalty from compulsory retirement from service to reduction to lower stage in present time scale by five steps for a period of five years without future effect

Fact that HESCO had adopted the existing rules of WAPDA for its internal use did not make such rules statutory in the context of HESCO

In view of the fact that HESCO did not have statutory rules governing the terms and conditions of service of its employees, the relationship between HESCO and its employees was governed by the principle of "master and servant", therefore, petitioner could not invoke the constitutional jurisdiction of the High Court for redressal of his grievances

Constitutional petition was dismissed in limine accordingly.

Petitioners were employees of Pakistan Civil Aviation Authority, who were being proceeded departmentally on the allegations of issuing fake licenses to pilots

Validity

Discretionary jurisdiction under Art.199 of the Constitution, could not be exercised in a vacuum and had to be grounded on valid basis showing violation of specific enforceable legal or Constitutional rights

Such discretion was to be exercised in a structured and calibrated manner with due regard to parameters put in place by the Constitution as well as by the superior courts

Necessary factors were lacking and High Court in exercise of Constitutional jurisdiction vested under Art.199 of the Constitution could neither enter into factual controversy nor decide disputed questions of fact

High Court declined to interfere in the matter, as the same pertained to disputed questions of fact

Constitutional petition was dismissed, in circumstances.

When there was sufficient documentary evidence available, regular inquiry could be dispensed with to secure expeditious conclusion of departmental proceedings after confronting the delinquent officer with the available evidence and providing him an opportunity to explain his position.

Mere delay in initiating proceedings would not vitiate the enquiry unless the delay results in prejudice to the delinquent officer

Each delay does not necessarily prejudice the accused

Material has to be presented to demonstrate how it had prejudiced the appellant in the conduct of the departmental inquiry.

Service Tribunal reinstated employee in service with option to the department to conduct de novo inquiry within a specific period

Department having failed to complete de novo inquiry within a period provided by the Service Tribunal

Non-compliance of judgment of Service Tribunal

Effect

Petitioner-employee was reinstated in service by the Service Tribunal and Department was directed to conduct de novo inquiry within a period of ninety days after receipt of judgment

Employee was reinstated in service but de novo inquiry was not completed within a period provided by the Service Tribunal

Contention of petitioner was that no inquiry proceedings could be conducted after expiry of period provided by the Service Tribunal

Validity

Compliance of order of Court in letter and spirit was not only the responsibility of general public but government departments too were required to honour the verdict of the Courts and Tribunals

Sufficient time had been granted to the Department to conduct de novo inquiry but they had adopted dilatory tactics to delay the implementation of judgment of Service Tribunal

Impugned order for de novo inquiry had been passed after expiry of period for completion of inquiry proceedings provided by the Service Tribunal

Inquiry proceedings had become void being violative of judgment of Service Tribunal in circumstances

Departmental action against a civil servant was an executive discretion of the authority and High Court in order to protect the administration of justice could examine and judicially review the said discretion

Acts done by the authority in violation of judgment of Service Tribunal could not be given cover under Art. 212 of the Constitution

Act of non-compliance with the orders of the Court or Tribunal by itself was an illegal act and High Court in its constitutional jurisdiction could review such act of the Executive

Inquiry conducted by the department after expiry of period provided by the Service Tribunal was illegal, contumacious and against rule of law

Departmental proceedings initiated against the petitioner were declared null and void, in circumstances

Constitutional petition was allowed, in circumstances.

Petitioner Tehsil Officer in Tehsil Municipal Administration did not get tender notices published in newspapers, which resulted into delay in completion of project and escalation in estimated cost of project

Petitioner was departmentally proceeded and minor penalty of withholding of five increments for five years was imposed

Plea raised by petitioner was that Town Nazim was not agreeing with his suggestion of taking penal action against contractor

Validity

Such ground did not absolve petitioner from his responsibility of taking steps for publication of tender notices after cancellation of contract of first contractor without further loss of time

Due to lethargic attitude and conduct of petitioner, the estimated cost of project was enhanced causing heavy financial loss to public exchequer

Competent authority had rightly imposed minor penalty of withholding of annual increments for a period of five years upon petitioner

High Court in exercise of Constitutional jurisdiction, declined to interfere in the order passed by authorities as there was no illegality or legal infirmity in the orders

Constitutional petition was dismissed in circumstances.

Petitioner sought his reinstatement in service on the ground that he was acquitted of the charge of embezzlement by Court under National Accountability Ordinance, 1999

Validity

Acquittal from National Accountability Bureau Reference did not make any difference as judicial trial could not be treated as substitute of departmental proceedings

Petitioner was indicted in National Accountability Bureau Reference on account of embezzlement whereas charge sheet showed that departmentally he was proceeded against on account of negligence, inefficiency and misconduct

If petitioner was dismissed on account of his involvement in criminal case then he would have been well within his rights to claim reinstatement in service after acquittal from that case

Subject of both the matters was different and decision of one had no bearing on the other

Constitutional petition was dismissed in circumstances.

Civil servant remained absent without leave and medical certificate produced by him was found by Inquiry Committee to be forged and bogus; therefore, he was dismissed from service

Order of dismissal from service was maintained by Service Tribunal

Plea raised by civil servant was that one of the members of inquiry committee for mala fide reasons reduced himself to the level of a witness in the inquiry when he visited concerned hospital to verify about genuineness of certificate produced by civil servant

Validity

Held, it was for inquiry committee to decide how best to verify correctness of medical certificate in question

Civil servant, in his petition, did not level any personal allegation of mala fides against any member of the committee which could persuade the Court to concluded that the Committee was motivated by malice in making report against civil servant

Inquiry report and penalty awarded to civil servant was not arbitrary or against relevant rules and law declared

Civil servant failed to raise any question of law of public importance within the meaning of Art.212(3) of the Constitution to warrant interference

Leave to appeal was refused.

Civil servant remained absent without leave and medical certificate produced by him was found by Inquiry Committee to be forged and bogus; therefore, he was dismissed from service

Order of dismissal from service was maintained by Service Tribunal

Plea raised by civil servant was that one of the members of inquiry committee for mala fide reasons reduced himself to the level of a witness in the inquiry when he visited concerned hospital to verify about genuineness of certificate produced by civil servant

Validity

Held, it was for inquiry committee to decide how best to verify correctness of medical certificate in question

Civil servant, in his petition, did not level any personal allegation of mala fides against any member of the committee which could persuade the court to concluded that the Committee was motivated by malice in making report against civil servant

Inquiry report and penalty awarded to civil servant was not arbitrary or against relevant rules and law declared

Civil servant failed to raise any question of law of public importance within the meaning of Article 212(3) of the Constitution to warrant interference

Leave to appeal was refused.

No final order having been passed against appellant and only initiation of disciplinary proceedings by competent authority against appellant were challenged, therefore, petition under Art.199 of the Constitution was not maintainable

Division Bench of High Court refused to interfere in the judgment passed by Single Judge of High Court

Intra-court appeal was dismissed, in circumstances.

Petitioners were employees of Punjab Government and their grievance was that once they had been exonerated by competent authority, no de novo inquiry could be ordered

Validity

Upon receipt of inquiry report, three options or courses were open to competent authority, who. could either exonerate the accused or punish them or order a de novo inquiry, if it was satisfied that inquiry proceedings were not conducted lawfully or on merits

Competent authority could not exercise more than one option and could not order de novo inquiry once it had exercised option of exonerating accused official

Petitioners were duly exonerated by competent authority under section 13(5) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006, no fresh inquiry or de novo inquiry was called for or could be held under section 13(6) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006

Grievance of petitioners could not be made subject matter of appeal before Service Tribunal who had no jurisdiction to remedy the wrong done to petitioners

Order for holding de novo inquiry against petitioners was unwarranted and unlawful and bar of Art. 212 (2) of the Constitution did not come in the way of High Court to exercise its jurisdiction under Art, 199 of the Constitution

High Court declared the order passed by competent authority for holding de novo inquiry as illegal and without lawful authority

Petition was allowed in circumstances.

Petitioner during his deputation to borrowing department was absorbed in that department on the basis of a letter which proved to be forged and fake letter

Effect

Petitioner disowned the letter on the basis of which letter borrowing department regularized his services

Parent department stated the letter to be a forgery

Letter having not been issued by parent department, there was no document on the basis of which it could be concluded that consent of parent department was obtained by borrowing department before absorption of petitioner in its service

Borrowing department acted upon the basis of letter which proved to be a forged document, therefore, basis desideratum of decision to absorb petitioner in employment had disappeared

It was only the employer who could take domestic disciplinary action against his employee and a stranger though he' might resort to civil remedy or criminal action, could not initiate domestic action against a person who was claimed to be no more his employee

It was legal obligation on parent department to take back the petitioner in employment and was at liberty to proceed against him on the basis of show-cause notice already issued to him

While taking disciplinary action against petitioner, parent department should in no way be influenced by contents of its earlier letter or proceedings of inquiry conducted by borrowing department

Petition was dismissed accordingly.

Grievance of civil servant was that he was compulsorily retired from service without holding any regular inquiry and without providing him proper opportunity to defend his case

Validity

Except in extraordinary and exceptional circumstances, dispensation of regular inquiry in case involving factual controversy would amount to withholding right of fair opportunity of a person to rebut the charges against him

Civil servant was proceeded departmentally and he was duly informed of charges levelled against him and high power committee was constituted to probe into the matter

Civil servant was afforded reasonable opportunity of personal hearing before imposition of penalty and the same was considered enough to provide opportunity of defence

It was for competent authority to decide whether formal inquiry was required, or not in terms of provisions of S.5(4) of Removal from Service (Special Powers) Ordinance, 2000

Service Tribunal had rightly dismissed appeal filed by civil servant assigning sound and cogent reasons, which were not open to legitimate exception

Civil servant failed to point out any misreading or non-reading of material on file or any infirmity, legal or factual, calling for interference by Supreme Court

No substantial question of law of public importance could be raised within the meaning of Art.212(3) of the Constitution

Leave to appeal was refused.

Grievance of civil servant was that he was compulsorily retired from service without holding any regular inquiry and without providing him proper opportunity to defend his case

Validity

Except in extraordinary and exceptional circumstances, dispensation of regular inquiry in case involving factual controversy would amount to withholding right of fair opportunity of a person to rebut the charges against him

Civil servant was proceeded departmentally and he was duly informed of charges levelled against him and high power committee was constituted to probe into the matter

Civil servant was afforded reasonable opportunity of personal hearing before imposition of penalty and the same was considered enough to provide opportunity of defence

It was for competent authority to decide whether formal inquiry was required or not in terms of provisions of S.5(4) of Removal from Service (Special Powers) Ordinance, 2000

Service Tribunal had rightly dismissed appeal filed by civil servant assigning sound and cogent reasons, which were not open to legitimate exception

Civil servant failed to point out any misreading or non-reading of material on file or any infirmity, legal or factual, calling for interference by Supreme Court

No substantial question of law of public importance could be raised within the meaning of Art.212(3) of the Constitution

Leave to appeal was refused.

Case of petitioners was hit by R.1.8 of West Pakistan Civil Servants Rules, whereby it was mandatory that Departmental proceedings would not be instituted after more than d year from date of retirement of government pensioners

No such proceedings had commenced in the present case

Petitioners had not been able to point out any irregularity or illegality in impugned judgment

Petition for leave to appeal was dismissed.

Prosecution on a criminal charge of a civil servant and departmental proceedings against him entirely different as one relates to the enforcement of criminal liability whereas the other is concerned with the service discipline, as such, acquittal from criminal charge has no bearing on disciplinary proceedings.