Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: TAHIR MAHMOOD VS Respondent: SECRETARY, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE
1997 P L C (C
1997 P L C (C.S.) 929
[Lahore High Court]
Before Mian Nazir Akhtar, J
TAHIR MAHMOOD
versus
SECRETARY, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE and 3 others
Writ Petition No. 8504 of 1996, heard on 13th February, 1997.
(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑‑‑
‑‑‑‑Rr. 7‑A & 8‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑De novo inquiry‑‑‑Validity‑‑‑Constitutional jurisdiction, exercise of‑‑‑Order of de novo inquiry passed by Authorised Officer was a final order in pursuance of which civil servant was to undergo the ordeal of a fresh inquiry‑‑‑Such order could not be termed as an interim order because Authorised Officer had disposed of matter which was no longer pending before him‑‑‑Order of de novo inquiry, thus could lawfully be challenged by civil servant in Constitutional jurisdiction of High Court under provisions of Art. 199 of Constitution of Pakistan (1973).
(b) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑‑‑
‑‑‑‑Rr. 7‑A & 8‑‑‑De novo inquiry‑‑‑Authorised Officer after receipt of report from Inquiry Officer, would have to determine whether charge against accused civil servant had been proved‑‑‑In case of affirmative findings Authorised Officer could impose a minor penalty on the accused civil servant after affording him opportunity of showing cause against him about proposed action‑‑‑If Authorised Officer felt that major penalty had to be imposed on accused civil servant then he had to forward matter to Authority with his recommendation as Authorised Officer had no power of ordering de novo inquiry in the matter, but power to order de novo inquiry expressly vested in Authority by virtue of proviso under S. 8 of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑‑‑Even if Authorised Officer made recommendation to drop proceedings against accused civil servant, Authority could still order de novo inquiry against accused civil servant, keeping in view facts and circumstances of case.
(c) Maxim‑‑‑
‑‑‑‑ If law expressly requires a thing to be done in a particular manner, it ought to be done in that manner or not at all.
Atir Mahmood for Petitioner.
Ch. Ijaz Ahmad for Respondents.
Date of hearing: 13th February, 1997.
JUDGMENT
This Constitutional petition has been filed to challenge the legality of order dated 2‑11‑1995 passed by the Authorised Officer respondent No. 1 for holding de novo inquiry.
2. The petitioner was employed as Data Entry Operator in the office of the Board of Intermediate and Secondary Education, Lahore. He was alleged to have made a wrong entry of registration number of a student while preparing the results of the Board. An inquiry was ordered to be held against him in which he was exonerated by the Inquiry Officer vide his report dated 22‑10‑1995. The Authorised Officer did not agree with the report and passed the following order: ‑‑
"I do not agree with the findings of Enquiry Officer since he based his finding on the fact that 'prosecution failed to produce any witness.' It is an enquiry and not a trial of prosecution versus accused. The findings can be given on the basis of facts gathered by Enquiry Officer and not on the basis of presence or absence oft, ' prosecution witnesses'. A de novo enquiry is ordered. Prof. Muhammad Nazar is appointed as Enquiry Officer."
3. The petitioner's learned counsel contends that the Authorised Officer was not competent to order de novo inquiry; that he could have either recommended that the proceedings be dropped or imposed minor penalty on the accused or forwarded the case to the Authority if he considered that major penalty was not called for in the circumstances of the case and that the Authority could have ordered de novo inquiry. On the other hand, learned counsel for the respondent submits that order for de novo inquiry being an interim order could not be challenged at this stage and that there was no bar prohibiting the Authorised Officer from ordering de novo inquiry.
4. The impugned order of de novo inquiry is a final order in pursuance of which the petitioner will have to undergo the ordeal of a fresh inquiry. The said order cannot be termed as an interim order because the Authorised Officer has disposed of the matter, which is no longer pending before him. Hence the order could be lawfully challenged by the petitioner under the provisions of Article 199 of the Constitution of Pakistan.
5. The Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, have been adopted by the Board of Intermediate and Secondary Education, respondent No. 2 for the purpose of departmental action against its employees. By virtue of provisions of Rule 7‑A of the Rules, after receipt of the report from the Inquiry Officer the Authorised Officer has to determine whether the charge has been proved. In case of affirmative findings he can impose a minor penalty on the accused after affording him an opportunity of E showing cause against the proposed action. If he feels that major penalty has to be imposed then he has to forward the matter to the Authority with his recommendation. Obviously he has no power of ordering de novo inquiry in the matter. It is settled principle of law that if law expressly requires a thing to be done in a particular manner it ought to be done in that manner or not at all. In express provisions of law, therefore, excluded any other mode of doing the act, which is not specifically provided. The power to order de novo inquiry expressly vests in the Authority by virtue of proviso under section 8 of the Rules, which is reproduced below: ‑‑
"Provided that where the authority is satisfied that enquiry proceedings have not been conducted in accordance with these rules and/or facts and merits of the case have been ignored it may order initiation of de novo enquiry."
It may be observed that even if the Authorised Officer makes a recommendation to drop the proceedings against the accused the Authority can still order de novo inquiry keeping in view the facts and circumstances of a case.
6. For the foregoing discussion this petition is accepted, the
impugned order dated 2‑11‑1995, passed by the Authorised Officer/respondent No. 1 is declared to be without jurisdiction, without lawful authority and of no legal effect. The matter will be deemed to be pending before him and he may pass a fresh order within the four corners of the provisions of section 7‑A of the Rules.
H.B.T./T‑17/L ???????????????????????????????????????????????????????????? ??????????? Petition accepted.