KHURRUM RASHEED Versus The SECRETARY TO GOVERNMENT OF THE PUNJAB
ORDER
JAWAD HASSAN, J.--- Through the instant Intra Court Appeal filed under Section 3 of the Law Reforms Ordinance, 1972, the Appellant has called in question the legality of impugned order dated 10.01.2017 passed in W.P. No.225/2017 by the learned Single Judge whereby he dismissed the petition.
2. Brief facts tersely revealed from the appeal are that the Appellant was appointed as Surveyor in BS-11 in the Respondents Department and subsequently after seven years on the complaint of a Generalist he was proceeded against under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (the "PEEDA Act") and ultimately terminated vide order dated 16.12.2016 in view of Clause XIII of the Appointment Order dated 14.02.2009. Feeling aggrieved thereby the appellant filed W.P. No.225/2017 which was dismissed by the learned Single Judge on the ground that the petition is not maintainable as an efficacious remedy is available to the Petitioner viz: remedy of appeal against the impugned order. Hence, the instant appeal.
3. Learned counsel for the Appellant submitted that the impugned order is liable to be set aside on the grounds that the learned Single Judge has not applied his judicial mind while passing the impugned order by not appreciating the law applicable to the case in hand; that the learned Single Judge has not taken into consideration the fact that the termination order (the impugned order) has been passed under Clause-XIII of the Contract Appointment Order dated 14.02.2009 and has held that against the impugned order appeal under Section 16 of the PEEDA Act lies; that the learned Single Judge has also ignored the fact that against the impugned order which has been passed under Clause XIII of the Contract Appointment Policy, 2004, no appeal is provided and therefore, the petition before this Court was competent; that the Appellant has been deprived from his fundamental right enshrined under Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"); that even otherwise no proceedings under the said Clause could be initiated against the Appellant as he has not violated any of its term.
4. On the contrary, learned Law Officer vehemently contested the arguments advanced by the learned counsel for the Appellant and prayed for dismissal of the instant appeal on the grounds that the impugned order has rightly been passed by the learned Single Judge; that all the proceedings were initiated under the PEEDA Act, therefore, in the impugned order it has rightly been held that efficacious remedy is available to the Appellant under the law; that the Appellant has failed to show any illegality or perversity in the impugned order which otherwise has been passed in consonance with the spirit of law; that the Appellant has already availed the remedy of appeal before the competent authority which is still pending, therefore, the instant appeal is not maintainable.
5. We have heard the arguments of both the sides and perused the record.
6. The bare examination of the record it reveals that the Appellant was appointed as Surveyor in BS-11 on vide order dated 14.02.2009 on contract basis for a period of three years, liable to be extended from time to time. The proceedings against the Appellant were initiated on the complaint of one Ghulam Mustafa Bodani, Generalist. Admittedly, the Executive Engineer, Dera Ghazi Khan was deputed to enquire the matter in the light of the PEEDA Act and to submit fact finding report. In compliance of which the said Executive Engineer submit his report by declaring the Appellant's appointment illegal. Subsequently, the Petitioner was issued show cause notice dated 01.12.2016 under Section 13(4) of the PEEDA Act which was replied by the Appellant through a request and ultimately order dated 16.12.2016 was issued terminating the Appellant with immediate effect in terms of Clause XIII of his offer of appointment letter bearing No.61/ST, dated 14.02.2009.
7. Admittedly, all the proceedings against the Appellant were initiated and conducted under the PEEDA Act whereas he was terminated under Clause XIII of his offer of appointment letter bearing No.61/ST, dated 14.02.2009. From this it is clear that no proper procedure prescribed under the law has been followed while passing the termination order of the Appellant.
8. Under Article 4 of the Constitution every individual has the right to be dealt with in accordance with law and no person is liable to do which the law does not require him to do. In the case titled Faisal Sultan v. E.D.O. (Education) and others (2011 PLC (C.S.) 419 [Lahore]), it has been clearly held as follows:
"An integral, intrinsic and incidental part of "law" under Article 4 is the right to procedural due process, right to be treated fairly at all times, right to procedural fairness and right to procedural propriety. Right to a fair procedure is, therefore, constitutionally guaranteed in Pakistan and makes the Constitution standout proudly in the Constitutions of the world. Article 4 of the Constitution is a robust and dynamic amalgam of the cardinal principle of natural justice, procedural fairness and procedural propriety of the English jurisprudence and Procedural Due Process of the American jurisprudence. Constitution of Pakistan has boldly recognized this right to be an inalienable right of every citizen or of any person for the time being in Pakistan."
9. It has been established in the case of Azizullah Memon v. Province of Sindh and another (2007 SCMR 229) that since impugned action was initiated and taken to its logical conclusion under a misconception of law and under a wrong law, it had vitiated entire proceedings including final order, which could not be sustained under the law. The Supreme Court converted petition into appeal and proceedings as well as impugned order of the Service Tribunal, were set aside accordingly. Furthermore, in the case of Muhammad Haleem and another v. General Manner (Operation) Pakistan Railways Headquarter, Lahore and others (2009 SCMR 339), it was clearly held that when initial order or act relating of initiation of proceedings was contrary to law and illegal, then all subsequent proceedings and actions taken thereon would have no basis and would fall.
10. Similarly, in the case of Sharafat v. Additional Sessions Judge/Justice of Peace (2015 PCr.LJ 1758 [Lahore]), it was held that special law had provided special procedure for initiation of criminal proceedings against accused. When a thing was provided to be done in a particular manner, it was to be done in that manner and if it was not so done, it was illegal. High Court in exercise of powers under Art.199 of the Constitution, set aside order passed by Ex-officio Justice of Peace as the same was patently illegal and ultra vires. High Court advised that aggrieved persons could adopt remedy provided under the law. Petition was allowed under the circumstances. Furthermore, in the case of Abdul Fatah Bhutto v. Election Commission of Pakistan through Secretary (2014 CLC 639 [Karachi]), it was held that candidate neither adopted the specified procedure nor approached the proper forum in the given time. When a thing was to be done in a particular manner, same must be done in that manner and not otherwise. Legal remedy was available to candidate, but he did not adopt the prescribed course/remedy by not approaching the specially constituted Bench.
11. Similarly, it is an established principle of law that where procedure had been provided for doing a thing in a particular manner then same should be done in that manner alone and not in any other way or it should not be done at all; otherwise it would be considered non-compliance of the legislative intent and would be deemed illegal. (rel. Abdul Khaliq Mandokhel v. Chairman, Balochistan Public Service Commission (2016 PLC (C.S.) 1184 [Quetta]); Falak Niaz v. Amal Din (2016 YLR 2047 [Peshawar]); Sabz Ali Khan v. Inspector General of Police, KPK (2016 YLR 1279 [Peshawar]); Cantonment Board Clifton v. Sultan Ahmed Siddiqui (2016 CLC 919 [Karachi]); and Federation of Pakistan v. Asad Javed (PLD 2016 Islamabad 53).
12. In view of above mentioned facts, circumstances, laws and case laws, this Court suffice it to say that the impugned order dated 16.12.2016 is against the Petitioner's fundamental rights guaranteed under the Constitution.
13. Furthermore, this Court in case titled Mirza Rizwan Ahmed v. Chairman, Technical Education and Vocational Training Authority Government of Punjab, Lahore and another (2008 PLC (C.S) 224) has held that any proceedings are liable to be declared as not sustainable in the law if they are conducted under misconception and under wrong law. Guidance in this regard can be sought from the case titled Aziz Ullah Memon v. Province of Sindh and another (2007 SCMR 229) wherein the Hon'ble Supreme Court of Pakistan has held as under:
"On perusal of the record and after hearing learned counsel for the parties we find that despite promulgation of Removal from Service (Special Powers) Ordinance (Sindh Ordinance IX of 2000) (hereinafter referred to as the "Ordinance") promulgated with effect from 20-8-2000 the entire proceedings commencing from issuance of charge-sheet, departmental enquiry, order of imposition of penalty, alteration of the penalty by the authorized officer and final order impugned before the Tribunal were conducted under the provisions of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973. It is pertinent to note that section 3 of the Ordinance provides the mechanism for disciplinary proceedings against civil servant on variety of grounds and prescribes punishments, which may be imposed upon a civil servant found guilty of charge. Section 11 of the Ordinance (sic) that notwithstanding anything to the contrary contained in the Sindh Civil Servants Act, 1973 and the rules made thereunder and any other law for the time being in force:
"11. The provisions of this Ordinance shall have effect notwithstanding anything to the contrary contained in the Sindh Civil Servants Act, 1973 and the rules made thereunder and any other law for time being in force."
3. In the presence of express and specific language employed in the Ordinance neither the departmental authorities nor the Tribunal bothered to notice that after the date of promulgation of the Ordinance all disciplinary proceedings should have been initiated under Ordinance rather than the old Rules enforced in 1973. This Court has already ruled in a number of judgments that this Ordinance has the overriding effect over all other laws on the subject except in case of proceedings, which were already pending before promulgation of the Ordinance. Since the impugned action was initiated and taken to its logical conclusion under a misconception of law and under a wrong law, it has vitiated the entire proceedings, including the final order, which cannot be sustained under the law. The proceedings as well as final order is, therefore, liable to be set aside.
4. Accordingly after converting this petition into appeal, we set aside the same as well as the impugned judgment of the Tribunal. The department would be at liberty to initiate fresh proceedings against the petitioner and finalize it within three months from today. The petitioner is reinstated into service. However, the question of award of back benefits to him would certainly depend on the outcome of fresh enquiry, if any, as above:
14. As it has been held above that all the proceedings done were not in accordance with the relevant law and the Hon'ble Supreme Court of Pakistan has held that if any action is initiated and taken to its logical conclusion under a misconception of law and under a wrong law, it vitiates the entire proceedings, including the final order, which cannot be sustained under the law; consequently, the whole proceedings as well as final order is, therefore, liable to be set aside.
15. It is unequivocal that the show-cause notice dated 01.12.2016 was issued under Section 13(4) of the PEEDA Act in which a Probing Officer was appointed who was required to inquiry the matter and submit his probing report under the PEEDA Act. The show-cause notice also reveals that the Appellant was directed to submit his reply within seven days of the receipt of said notice and was afforded opportunity of personal hearing on 09.12.2016. In reply thereto, the Appellant submitted an application seeking extension in time; soon after that the impugned termination letter dated 16.12.2016 was issued under Clause XIII of the offer of appointment letter dated 14.02.2009. It is a great example of pick and choose by the respondents as the disciplinary proceedings and the procedure were adopted by the Respondents firstly issue notice under the PEEDA Act and then, while reply to the said show-cause notice was awaited, has terminated the Appellant under Clause XIII of the offer of appointment letter dated 14.02.2009. If the Appellant was to proceed under the PEEDA Act, after issuance of show cause notice under Section 13(4), the further procedure was to be adopted viz: after affording personal hearing to the Appellant or on receipt of the report of the hearing officer, the competent authority, keeping in view the findings and recommendations of the inquiry officer or inquiry committee and the defence offered by the Appellant/accused during personal hearing, was to exonerate or suggest a penalty under Section 13(5) but in the instant case after initiating proceedings under the PEEDA Act, the Respondents awarded penalty to the Appellant under Clause XIII of the offer of appointment letter dated 14.02.2009 but this aspect has not been taken into consideration by the learned Single Judge while delivering the impugned order. Furthermore, admittedly, the verification of Diploma, on the basis of which all the proceedings were initiated and impugned order was passed, has been sent to the concerned Department vide letter dated 17.03.2017 and the result of which is still awaited.
16. From the perusal of impugned order dated 10.01.2017 it reveals that the learned Single Judge erred while observing that against the order dated 16.12.2016 a remedy of appeal is provided because the termination was not made under the PEEDA Act, rather under the Clause-XIII of officer of appointment letter bearing No.61/ST, dated 14.02.2009, as such is not sustainable in the eye of law and liable to be set aside.
17. Moreover, as stated above, the comments submitted on behalf of the Respondents reveal that the Department has written a letter dated 17.03.2017 to the concerned Board for verification of the disputed Diploma and report of which is still awaited.
18. In view of what has been discussed above, the instant petition is accepted and the impugned orders dated 10.01.2017 and 16.12.2016 are set aside. The Department would be at liberty to initiate fresh proceedings against the Petitioner and finalize it within three months from the receipt of certified copy of this order. The Petitioner is reinstated into service. However, the question of award of back benefits to him would certainly depend on the outcome of fresh enquiry, if any, as above.
ZC/K-12/L Appeal allowed.