MUHAMMAD MOAZZAM KHAN Versus The DIRECTOR GENERAL, LAHORE DEVELOPMENT AUTHORITY, LAHORE
MUHAMMAD SAJID MEHMOOD SETHI, J.--- Through instant petition, petitioner has assailed vires of orders dated 15.08.2017 and 25.01.2018, passed by respondents Nos. 2 and 1, whereby major penalty of "dismissal from service" was imposed upon petitioner on account of his involvement in preparation of bogus documents/receipts in favour of one Abdullah, showing him as transferce of plots Nos.290 and 291, Block-M, M.A. Johar Town, Lahore and fabrication of property files of said plots, and his appeal in this regard was rejected.
2. Learned counsel for petitioner submits that de novo inquiry proceedings were conducted against the petitioner without giving any fresh show cause notice. He adds that petitioner being an employee of respondent-LDA, instant constitutional petition is the only remedy available with the petitioner against impugned dismissal order under the Punjab Employees Efficiency, Discipline and Accountability ("PEEDA") Act, 2006 in view of the law laid down in Haroon-ur-Rashid v. Lahore Development Authority and others (2016 SCMR 931). He argues that no fresh charge has been framed against the petitioner in de novo inquiry proceedings. He argues that petitioner has not been awarded opportunity to cross-examine the witnesses rather their statements have been recorded at the back of petitioner. He argues that in case of imposition of major penalty, regular inquiry cannot be dispensed with, which includes opportunity of cross-examination to the accused. In support, he has relied upon National Bank of Pakistan v. Muhammad Iqbal (1986 SCMR 234), Basharat Ali v. Director, Excise and Taxation, Lahore and another (1997 SCMR 1543), Pakistan International Airlines Corporation through Managing Director, PIAC, Head Office, Karachi Airport, Karachi v. Ms. Shaista Naheed (2004 SCMR 316), Pakistan Railways through G.M. and another v. Abdul Fateh and another (2012 SCMR 181), Muhammad Riaz v. Medical Superintendent, Service Hospital, Lahore and 2 others [2016 PLC (C.S.) 296], Iqbal Hussain v. Federation of Pakistan through Secretary Ministry of Information and Technology Government of Pakistan and 7 others [2019 PLC (C.S.) 475] and Muhammad Waris v. Director General, Punjab Emergency Services Rescue 1122, Lahore and 3 others [2022 PLC (C.S.) 367].
3. On the other hand, learned counsel for respondent-LDA defends the impugned orders by contending that petitioner is directly involved in forging anti-dated exemption letters, who unlawfully involved himself in the sale / purchase of LDA plots, which is misuse of his employment status.
4. Arguments heard. Available record perused.
5. Record reflects that the inquiry officer submitted his inquiry reported dated 20.09.2016, recommending imposition of minor penalty upon petitioner. However, respondent No.2, being the competent authority, disagreed with the said recommendations and ordered for initiation of de novo inquiry. During de novo inquiry proceedings, procedural requirements of a fair trial were not followed, rather straightaway major penalty of "dismissal from service" was proposed against the petitioner.
6. The primary contention of petitioner is that he was not given opportunity to cross-examine the witnesses. Needless to say that the foremost aspiration of conducting departmental inquiry is to find out whether a prima facie case of misconduct has been made out against the delinquent officer. Guilt or innocence can only be thrashed out from the outcome of inquiry and at the same time, it is also required to be seen as to whether due process of law or right to fair trial was followed or ignored while conducting inquiry. It is against the principle of natural justice to draw a conclusion adverse to the interest of a person on the basis of disputed facts either without recording evidence or providing him proper opportunity of cross-examining the witnesses and lead evidence in his defence. In a regular inquiry, it is a precondition that an evenhanded and fair opportunity should be provided to the accused and if any witness is examined against him, then a fair opportunity should also be afforded to cross-examine the witnesses. In a departmental inquiry on the charges of misconduct, the standard of proof is that of balance of probabilities or preponderance of evidence. Where any authority regulates and performs its affairs under a statute which requires the compliance of the principles of natural justice, then it should have been adhered to inflexibly. Reference, in this regard, can be made to Abdul Qayyum v. D.G., Project Management Organization, JS HQ, Rawalpindi and 2 others (2003 SCMR 1110), Government of Punjab through Secretary Schools Education Department, Lahore and others v. Tauqeer Mazhar Bukhari (2008 SCMR 1362), Usman Ghani v. The Chief Post Master, GPO Karachi and others (2022 SCMR 745) and Federation of Pakistan through Chairman Federal Board of Revenue FBR House, Islamabad and others v. Zahid Malik (2023 SCMR SCMR 603). Needless to observe, every citizen is entitled to due process, right to be treated fairly at all times, right to procedural fairness and right to procedural propriety. Petitioner has the right to a fair procedure, which was constitutionally guaranteed. In this regard, reliance is placed on Naubahar Ali v. Vice-Chancellor and others (2010 PLC (C.S.) 783), Muhammad Umar v. D.G. Excise and Taxation and others (2011 PLC (C.S.) 384) and Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others (2017 SCMR 2010).
7. Even there is no specific reference to the evidence or material, which urged respondent No.2 to award major penalty of "dismissal from service". Thus, the said major penalty does not to appear to be in conformity with law. Reference can be made to Shibli Farooqui v. Federation of Pakistan (2009 SCMR 281), Asif Yousaf v. Secretary Revenue Division, CBR Islamabad and another (2014 SCMR 147) and Director Postal Life Insurance, Lahore v. Shakeel Ahmad (2021 SCMR 1162).
8. In view of the above, instant petition is allowed to the extent that impugned orders are declared to be illegal and without lawful authority. Consequently, the matter is remitted to respondent No.2 with the direction to first hold regular inquiry by providing opportunity of cross-examining the witnesses and then proceed in the matter, strictly in accordance with law, without being influenced by any previous findings. The whole process shall be accomplished within a period of sixty days from the date of receipt of certified copy of this judgment, under intimation to this Court through Deputy Registrar (Judl.). Office to transmit copy of this petition along with annexures to the concerned respondent forthwith.
MQ/M-101/L Petition allowed.