Full Judgment Text & Judicial Ruling

2016 P L C (C.S.) 1039

[Lahore High Court]

Before Faisal Zaman Khan, J

JAHANZAIB KHAN NIAZI----Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Irrigation, Lahore and 8 others----Respondents

W.P. No.28334 of 2015, heard on 4th April, 2016.

Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006)---

----S. 4(1)(b)(v)---General Clauses Act (X of 1897), S.24-A---Contract employee---Penalty of removal from service, imposition of---Appeal---rder without reasons---Scope---Employee was removed from service after conducting regular inquiry against which appeal was also dismissed---Contention of employee was that order passed by the appellate authority was without reasons---Validity---Order passed by the appellate authority did not qualify to be a reasoned order---No independent reasons/findings had been given by the appellate authority which was mandatory---If appellate authority was merely to uphold the order of subordinate functionary then mandate to provide an appeal would be frustrated---Appellate authority was supposed to consider the questions agitated in the representation/appeal; order passed by the competent authority; grounds of appeal raised by the appellant and independent findings with reasons to be rendered---Appellate authority had neither applied its independent mind nor had recorded his reasons while deciding the appeal of the employee---Impugned order passed by the appellate authority was not maintainable which was set aside---Appeal of employee would be deemed to be pending before the appellate authority who should decide the same in accordance with law through reasoned order after hearing all the necessary parties---Constitutional petition was allowed in circumstances.

Secretary Ministry of Health, Government of Pakistan Islamabad and another v. Dr. Rehana Hameed and others 2010 SCMR 511 and Muhammad Amin Muhammad Bashir Ltd. Karachi v. Government of Pakistan through Secretary Ministry of Finance Central Secretariat, Islamabad and others 2015 SCMR 630=2015 PTD 1100 rel.

Tipu Salman Makhdoom and Rai Shahid Saleem for Petitioner.

Ghazanfar Haider Pasha and Omer Farooq Khan, A.A.G. for Respondents.

Date of hearing: 4th April, 2016.

JUDGMENT

FAISAL ZAMAN KHAN, J.--- Through this petition orders dated 17.09.2014, 29.04.2015 and 25.08.2015 passed by respondents have been assailed.

2. Succinctly, the facts of the case are that petitioner while working as Assistant Manager (Reforms), Area Water Board, LCC (East) Circle, Faisalabad on contract basis was proceeded against under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 and after conducting a regular inquiry vide order dated 29.04.2015, petitioner was imposed the major penalty of removal from service by respondent No.4. Feeling aggrieved, petitioner filed an appeal before respondent No.7, which was dismissed on 25.08.2015, therefore, this petition.

3. Learned counsel for the petitioner submits that the appellate order passed by respondent No.7 is without any reasons, therefore, the same is not sustainable.

4. On the other hand, learned Law Officer as well as learned counsel for the respondents took a unanimous stance that the impugned orders have been passed after following the procedure prescribed under the law, which has been upheld by the appellate authority, therefore, the impugned orders are in accordance with law.

5. Arguments heard. Record perused.

6. It would be in the fitness of things, if the operative part of order dated 25.08.2015 regarding the rejection of departmental appeal of the petitioner is reproduced, which read as under:-

"And therefore, the Board of Management PIDA, being the competent Appellate Authority, while considering the appeal on 24.06.2015, has observed that the contents of his appeal are the same as reflected in the defence reply submitted against the "Show Cause-cum-Personal Hearing Notice" issued on 27.01.2015, and is repetition of the same at the time of "personal Hearing" already considered before the final order passed vide order No.PIDA/GT-57/849/2015 dated 29.04.2015. Further the context of charge No.2 is wider in scope as reflected in Show Cause Notice, but with more specific in meaning, while issuing Removal from Service Order i.e. alleged gratification from the Irrigation Officers. As such no significant reasons have been mentioned which appears valid for consideration, hence, his appeal is rejected unanimously."

7. From the above narratives, it is manifest that the order passed by the appellate authority do 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. The mandate to provide an appeal is frustrated if the said authority is merely to uphold the order of the subordinate functionary and not to give its independent findings that too backed by reasons. 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) and Muhammad Amin Muhammad Bashir Ltd. Karachi v. Government of Pakistan through Secretary Ministry of Finance Central Secretariat, Islamabad and others (2015 SCMR 630=2015 PTD 1100).

8. An Appellate Authority is suppose to consider the following aspects while deciding an appeal:--

(a) Questions agitated in the representation/appeal;

(b) Order passed by the competent authority;

(c) Grounds of appeal raised by the appellant; and

(d) After appraisal of the above, independent finding with reasons to be rendered by the appellate authority.

9. The afore-noted appellate order does not fulfil 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.

10. In view of what has been discussed above, I find the order dated 25.08.2015 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 respondent No.7, which, admittedly, is the appellate authority under the law, who shall decide the same in accordance with law through a reasoned order after hearing all necessary parties.

11. In the above terms, this petition is accepted.

ZC/J-2/L Petition allowed.

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