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Petitioner: MUHAMMAD ZAMAN CHEEMA VS Respondent: PRESIDENT, THE BANK OF PUNJAB, HUMAN RESOURCE DIVISION, LAHOREHonorable Justice Faisal Zaman KhanJunaid Jabbar Khan,Saleem Baig
2015 P L C (C.S.) 1125
[Lahore High Court]
Before Faisal Zaman Khan, J
MUHAMMAD ZAMAN CHEEMA
versus
PRESIDENT, THE BANK OF PUNJAB, HUMAN RESOURCE DIVISION, LAHORE and 2 others
Writ Petition No.6028 of 2011, heard on 15th April, 2015.
(a) Constitution of Pakistan---
----Art. 199---General Clauses Act (X of 1897), S.24-A---Constitutional petition---Civil service---Departmental appeal---Object---Mandate of appellate authority---Scope---Appellate order passed without giving independent findings/reasons---Impugned order revealed that no independent finding was given by the appellate authority which would show that it applied its independent mind and had passed the order without being impressed by the findings of the competent authority---Appellate authority did not discuss in its order that thirteen different allegations were raised against the petitioner through the show-cause notice and which ones were proved---Appellate authority decided the appeal in a slipshod manner and without adverting to the case set up by the petitioner---Order passed by the appellate authority had not qualified to be a reasoned order as contemplated under S.24-A of the General Clauses Act, 1897---No independent reasons/findings had been given by the appellate authority, which was mandatory---Appellate authority by merely upholding the order of the subordinate functionary had frustrated the mandate of providing an appeal---Order was set aside---Constitutional petition was accepted.
Secretary Ministry of Health, Government of Pakistan, Islamabad and another v. Dr. Rehana Hameed and others 2010 SCMR 511 rel.
(b) Constitution of Pakistan---
----Art. 199---General Clauses Act (X of 1897), S.24-A---Constitutional petition---Civil service---Decision of appeal by appellate authority---High Court provided guidelines in that behalf.
An Appellate Authority is suppose to consider the following aspects while deciding an appeal:---
(a) Allegations against the appellant;
(b) Findings/recommendations of inquiry, if conducted;
(c) Order passed by the competent authority;
(d) Grounds of appeal raised by the appellant; and
(e) After appraisal of the above, independent finding with reasons rendered by the appellate authority.
Junaid Jabbar Khan for Petitioner.
Saleem Baig for Respondents.
Date of hearing 15th April, 2015.
JUDGMENT
FAISAL ZAMAN KHAN, J.--- Facts in brief are that the petitioner while working as Regional Manager (Agri) at Wazirabad Branch of the Bank of the Punjab (respondent-bank) was issued a show cause notice under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (PEEDA Act) and after inquiry, his services were terminated vide order dated 14-10-2010.
2. Feeling aggrieved, he preferred an appeal, which was dismissed vide order dated 3-1-2011, therefore, this petition.
3. Learned counsel for the petitioner submits that the grounds raised in his appeal have not been looked into and decided by the appellate authority and the same has been dismissed in a slipshod and perfunctory manner; that in his appeal, the petitioner has categorically, pointed out the infirmities in the inquiry proceedings, however, in complete oblivion of the same appeal has been dismissed on extraneous considerations and that too without any reasons, therefore, the same is not sustainable.
4. Learned counsel for the respondent Bank asserts that the procedure as laid down in the PEEDA Act has been duly followed i.e. both preliminary and final show cause notices were issued, inquiry was conducted and after hearing by the competent as well as the appellate authorities, orders were passed, therefore, they do not require interference of this Court.
5. Replying to the question of non-availability of reasons in the order passed by the appellate authority, learned counsel for the respondent-bank has placed on record order dated 29-12-2010 passed by the Chairman/appellate authority of the respondent Bank. On the strength of this, learned counsel submits that sufficient reasons have been .provided for dismissal of the appeal, therefore, the objection raised by the learned counsel for the petitioner does hold good.
6. I have heard the learned counsel for the parties and have gone through the available record.
7. It shall be in the fitness of things, if the order communicated to the petitioner regarding dismissal of his appeal is reproduced:---
"Reference you appeal for reinstatement in service and subsequent personal hearing granted by the Appellate Authority on 29-12-2010.
This is to advise you that your appeal has been rejected."
8. From the afore-noted order, it is abundantly clear that no reasons whatsoever have been assigned by the appellate authority for decision of the appeal. On pointation of the above lacuna, respondent-bank during the course of this petition has placed order dated 29-12-2010 passed by the Chairman/appellate authority through which appeal was supposedly decided, which is also reproduced for convenience:
"APPEAL FOR REINSTATEMENT OF MR. MUHAMMAD ZAMAN CHEEMA EX-OG-II (EMP # 2710
ORDER;
This order shall dispose of the appeal dated 12-11-2010 filed by Mr. Muhammad Zaman Cheema Ex-OG-II against the termination of his Services ordered vide letter # HRD/DAC/03/18505 dated 14-10-2010.
Brief facts of the case are that the appellant was charge-sheeted on various allegations of gross misconduct. An inquiry was conducted into the allegations. The Inquiry Officer held him guilty of sham adjustments/rollovers in borrowers' account, violations of Bank's rules/procedures and concealment of facts on the basis of which the President terminated his services.
The appellant was heard on 29-12-2010 in presence of the representative of the Human Resource Division. When confronted with the allegations, the appellant could not put up any plausible justification to the charges against him. During hearing, he admitted that he used to facilitate the borrowers of the branch through sham adjustment/roll-overs in their finance accounts and tax evasion on cash withdrawals. I have gone through the relevant record which reveals a series of transactions executed by the appellant to provide sham adjustments in the accounts of the borrowers. Frequent heavy transactions have also been observed in his salary account. He also violated the rules and committed evasion of compulsory deduction of withholding tax on cash withdrawals causing loss to the Government Exchequer.
In view of the foregoing, I do not find any ground to interfere in the impugned order. The instant appeal is accordingly rejected.
Sd/- (A.Z.K. Sherdil) Chairman/Appellate Authority, The Bank of Punjab 29-12-2010."
9. From the above extract, it is noted that some admissions about his guilt were made by the petitioner, whereafter, the appellate authority decided the appeal. Contrary to this learned counsel for the petitioner denied any admission made by the petitioner before the appellate authority. He with force submits that this stipulation per se show the mala fide intent of the appellate authority.
10. Be that as it may, I have also gone through the order subsequently placed on the record. From paragraph-3 of the said order one can clearly make out that no independent findings have been given by the appellate authority which would show that he applied his independent mind and without being impressed by the findings of the competent authority has passed the order. He has also not discussed that through the show-cause notice 13 different allegations were raised against the petitioner, out of whom, which were proved. He in a slipshod manner and without adverting to the case set up by the petitioner, decided the appeal.
11. It is clear and obvious from the order passed by the appellate authority that it does not qualify to be a reasoned order as contemplated in Section 24-A of the General Clauses Act; no independent reasons/findings have been given by the appellate authority, which was mandatory otherwise the mandate to provide an appeal is frustrated if the said authority is merely to uphold the order of the subordinate functionary. Reliance in this regard can be placed on Secretary Ministry of Health, Government of Pakistan, Islamabad and another v. Dr. Rehana Hameed and others (2010 SCMR 511).
12. An Appellate Authority is suppose to consider the following aspects while deciding an appeal:---
(a) Allegations against the appellant;
(b) Findings/recommendations of inquiry, if conducted;
(c) Order passed by the competent authority;
(d) Grounds of appeal raised by the appellant; and
(e) After appraisal of the above, independent finding with reasons rendered by the appellate authority.
13. The appellate order does not fulfill the criteria set up above as the appellate authority has neither applied its independent mind nor has recorded his reasons while deciding the appeal of the petitioner.
14. In view of what has been discussed above, I find the order dated 3-1-2011, passed by the appellate authority, to be not maintainable therefore, the same is set aside. The appeal of the petitioner shall be deemed to be pending before the appellate authority, who shall decide the same in accordance with law through a reasoned order after hearing all necessary parties and keeping in view the observations made in this judgment.
15. The upshot of the above discussion is that this petition is accepted in the afore-noted terms.
JJK/M-128/L Petition accepted.