Full Judgment Text & Judicial Ruling

2006 PLC(C

2006 PLC(C.S.)741

[Lahore High Court]

Before Umar Ata Bandial, J

MUHAMMAD SANA ULLAH MALIK

Versus

PUNJAB EMPLOYFES SOCIAL SECURITY INSTITUTION and another

Writ Petition No.17310 of 2002, heard on 22nd March, 2006.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----Rr_ 4(1)(b)(i) & 7-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Reversion to lower post---Major penalty of. reversion to lower post was imposed on petitioner after holding inquiry against him 9n charge of receiving illegal gratification---Two other employees were also proceeded against along with the petitioner, but Inquiry Officer exonerated them---Contention of petitioner was that on similar facts two officers had been exonerated whilst petitioner had been punished despite fact that disciplinary proceedings undertaken against all three officers were identical, which had shown inconsistency; that a major penalty of reduction to lower post had been imposed on petitioner by Authority without a recommendation to said effect by Authorised Officer and that petitioner, in circumstances had been deprived of protection of R.7-A of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---Validity---Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 provided a safeguard with respect to imposition of major penalty which had created a right in favour of accused employee---Authorized Officer and Authority in the case of petitioner being one and the same person, imposition of major penalty on petitioner at his hands would amount to a violation of the right of petitioner available under procedural safeguards of R.7-A Of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---Order passed against petitioner, in circumstances was illegal, defective and in violation of due process and safeguard provided by law which was set askde by High Court.

Dr. Ehsan-ul-Haq Khan for Petitioner.

Sarfraz Ali Cheema for Respondents.

Date of hearing: 22nd March, 2006.

JUDGMENT

UMAR ATA BANDIAL, J---The petitioner is an employee of the Punjab Employees Social Security Institution ("PESSI") and does not fall within the definition of civil servant under the Punjab Services Tribunal Act, 1974. He is aggrieved by the impugned order dated 11-2-1999 imposing upon him the major penalty of reversion to lower post allegedly for receiving illegal gratification on different occasions. The enquiry proceedings under the Punjab Civil Servants (Efficiency and Disciplinary) Rules, 1975 ("Rules") into the commission of the said charge were conducted against the officers, namely, the petitioner, one Rifat Jameel Awan and another Abdul Razzaq. The Enquiry Officer exonerated Abdul Razzaq accused whilst Rifat Jameel Awan, who had been compulsorily retired was reinstated in service by the appellate authority.

2. Learned counsel for the petitioner submits that evidence upon which the said disciplinary proceedings were undertaken against the three aforesaid officers was identical; namely, receipts signed by each of the accused officers bearing contents written in someone else's handwriting demanding illegal gratification from the complainant. He submits the fact that on similar facts two accused officers have been exonerated whilst the petitioner has been punished shows inconsistency. Furthermore, learned counsel asserts that in the present case a major penalty of reduction to lower post has been imposed on the petitioner by the authority without a recommendation to same effect by the authorized officer. This is because one person has served both as authorized officer and as authority. Resultantly, the petitioner has been deprived of the protection of Rule 7A ?of the Rules.

3. Learned counsel for the respondents accepts that two out of three persons accused in the enquiry proceedings were exonerated and the petitioner is the only person who has been punished on the aforesaid allegations. Learned counsel for the respondents also accepts that the authorized officer and authority in the present case is the same person, namely, respondent No.2 Commissioner of PESSI. He acknowledges that the employees of PESSI. are not civil servants; however, disciplinary proceedings against its employees are conducted under the Punjab Civil Servant (E&D) Rules, 1975. Rule 7-A of the Rules provides that on receipt of report of the enquiry officer, the authorized officer has to determine whether the charge has been proved against the accused officer. If it is proposed to impose minor penalty, then after affording hearing to the accused, the authorized officer is competent to pass an order accordingly against an accused officer. If on the other hand, it is proposed to impose major penalty against an accused officer, as in the case of the petitioner, then after granting an opportunity of hearing to the accused against the recommendation to impose a major penalty, the authorized officer must forward the case to the authority along with the charge sheet, statement of allegation served on the accused, explanation of the accused, finding of the enquiry officer and his own recommendation regarding the proposed penalty. The rules contemplate the independent application of two minds to concur on the imposition of a major penalty. In the present case where both authorized officer and authority is the same person, the application of two minds independently in the matter of imposition of major penalty against the accused petitioner did not occur as contemplated by the Rules. The Rules provide a safeguard with respect to imposition of major penalty which creates a right in favour of an accused person, including the petitioner. As the authorized officer and authority in the case of the petitioner is one and the same person therefore the imposition of major penalty at his hands amounts to a violation of the right of the petitioner available under the procedural safeguards of rule 7A of Rules, Resultantly, the impugned order passed against the petitioner is legally defective and in violation of the due process and safeguards provided by law. The impugned order dated 11-2-1999 is accordingly set aside without comment on the merits of the case. The respondents are at liberty to pass a fresh order against the petitioner strictly in accordance with law in respect of the allegations made in the charge sheet.

H.B.T./M-256/L????????????????????????????????????????????????????????????????????????????????? Petition allowed.

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