2017 PLC(CS)N 98

UMAR DRAZ KATHIA Versus SECRETARY TO GOVERNMENT OF THE PUNJAB

Citation2017 PLC(CS)N 98

CourtLahore High Court

Judge(s)Shams Mehmood Mirza

ORDER

SHAMS MEHMOOD MIRZA, J.--- This judgment shall dispose of the present writ petition as well as Writ Petition No.18104 of 2011 and W.P. No.18549 of 2011 as common questions of law are involved in all these writ petitions.

2. The petitioners were all employees of Market Committee, Shah Jewana and are aggrieved of orders dated 20.05.2010 and 02.07.2010 whereby major/minor penalties have been imposed on the petitioners by respondents Nos.1 and 2 respectively.

3. Facts relevant to the disposal of this case are that the petitioner while working as Secretary Market Committee, Shah Jewana was alleged to have illegally sold 49 plots in Grain Market, Shah Jewana without depositing the amount of the sale proceed in the funds of Municipal Committee, Shah Jewana. Consequently disciplinary proceedings were initiated under Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (PEEDA) by serving him with order of inquiry (charge sheet) dated 29.06.2008. For the sake of convenience, the precise allegations against the petitioners leveled in the charge sheet are reproduced hereunder:

Mr. Umar Draz Kathia Ex-Secretary Market Committee, Shah Jewana from 01.10.2004 to 29.12.2005 is involved in illegal sale/allotment of 49 plots in Grain Market, Shah Jewana. The amount accruing from sale/allotment of these plots was not deposited in the funds of MC, Shah Jewana. He did not perform his duties as required under Punjab Agricultural Produce Markets (Ordinance) 1978 and rules framed thereunder. His inefficiency and misconduct caused serious financial and administrative loss to MS, Shah Jewana.

Mr. Aslam Riaz, petitioner in W.P. No.18549 of 2011:

Mr. Aslam Riaz, Secretary Market Committee, Shah Jewana is involved in illegal sale/allotment of 63 plots in Grain Market, Shah Jewana. The amount accruing from sale/allotment of these plots was not deposited in the funds of MC, Shah Jewana. He did not take any action against the occupants of plots sold/allotted illegally. He did not maintain the office record property. He is involved in tempering of official record. His inefficiency and misconduct caused serious financial and administrative loss to MC, Shah Jewana.

Ch. Muhammad Tariq Naeem petitioner in W.P. No.18104 of 2011:

Ch. Tariq Naeem, Ex-Secretary Market Committee, Shah Jewana from 17.03.2004 to 01.10.2004 is involved in illegal sale/allotment of 13 plots in Grain Market, Shah Jewana. The amount accruing from sale/allotment of these plots was not deposited in the funds of MC, Shah Jewana. He did not perform his duties as required under Punjab Agricultural Produce Markets (Ordinance), 1978 and rules framed thereunder. His inefficiency and misconduct caused serious financial and administrative loss to MC, Shah Jewana.

This judgment shall henceforth deal with the facts of the present writ petition as the facts of the other two writ petitions are identical. The petitioner submitted a written reply on 10.07.2009 to the charge sheet refuting the allegations contained therein. A preliminary inquiry in the first instance was conducted by Ch. Muhammad Sharif Kasana and Ch. Bashir Ahmad, EADA and on the basis of the report of the preliminary inquiry, regular inquiry proceedings were initiated under PEEDA by constituting an inquiry committee comprising of Liaqat Ali, EDO and Haji Bashir Ahmad, Deputy Director Agricultural (E&M). The petitioner filed his written defense wherein he again controverted the allegations leveled against him. The said committee after the inquiry held the petitioners to be guilty and recommended imposition of major/minor penalty under the PEEDA in addition to ordering recovery of an amount of Rs.13,43,727/-. Pursuant to the report of the inquiry committee, a show-cause notice dated 15.01.2010 was issued to the petitioner by respondent No.1. After granting an opportunity of personal hearing to the petitioner, the competent authority (respondent No.1) passed order dated 20.05.2010 whereby the major penalty for dismissal for service along with recovery of Rs.13,43,727/- was imposed on the petitioner. The petitioner filed the departmental appeal on 10.06.2010, which was dismissed on 02.07.2010 by the Chief Secretary, Government of Punjab.

4. Feeling aggrieved, the petitioner filed Service Appeal No.264 of 2010 before the Punjab Services Tribunal. However, during the pendency of the aforementioned appeal, the Chairman Punjab Service Tribunal dismissed the appeal on 29.07.2011 being not maintainable in view of the law laid down by the Hon'ble Supreme Court in a judgment reported as Executive Council, Allama Iqbal Open University Islamabad v. M. Tufail Hashmi 2010 SCMR 1484. As a result of the dismissal of the appeal the petitioners filed the present writ petitions challenging the orders passed by respondents Nos.1 and 2.

5. Learned counsel for the petitioners contended that charges leveled on the petitioners were vague in as much as the area and description of the plots and the name of the buyers was not mentioned in the charge sheet; that the inquiry report on the basis of which show cause notices was served was not supplied to the petitioner despite repeated applications; that the inquiry conducted in respect of the 49 plots was defective in that it was held at the back of the petitioner and that the statements of the allottees of 49 plots was not recorded; and that in face the inquiry committee did not record statements of any witness and did not confront the petitioner with the record. Learned AAG, on the other hand, supported the orders passed the respondents.

6. Arguments heard and record perused.

7. The inquiry report made the following observations against the petitioner:

It is evident from the perusal of record, defense reply and cross-examination that the accused official Mr. Umar Draz did not performed the duties of Secretary Market Committee as required under Rule 69 of the Punjab Agricultural Produce Market Committee, 1978 (General) Rules, 1979. He did not take any step to check illegal sale of allotment of 49 plots which incurred heavy financial loss to the Market Committee Mandi Shah Jewana. The office of Market Committee Shah Jewana is located almost in center of Market. The illegal possession of plate forms, Roads and construction of shops and business other than Agriculture Produce was continued during his tenure clearly showed inefficiency and misconduct on the part of accused official.

This irresponsible attitude resulted in the illegal sale/allotment of 49 plots. It is proposed that the major penalty may be imposed on the accused official Mr. Umar Draz Ex-Secretary Market Committee under the PEEDA Act, 2006 besides recovering the proportionate price of the 49 plots illegally sold amount to Rs.1,343,727/-.

The perusal of the inquiry report shows that no concrete evidence regarding the involvement of the petitioners was presented before the inquiry committee. The inquiry committee did not record the statements of any witnesses and any record procured by them was not mentioned in the inquiry report. Thus much is apparent from the following excerpt of the inquiry report:

That the illegal occupants were interviewed to ascertain how this illegal sale/allotment plots were managed besides the determination of the extent of involvement of staff of the Market Committee and Ex-Administrator/Ex-Chairman. The purchasers of these shops were not prepared to get their statements recorded. They are scared because the case of cancellation of mutations is under trial in the court of DO (R) Jhang. If anything is given in writing that may not affect the case adversely.

It is further clear from the inquiry report that no direct or incriminating material was found by the inquiry committee against the petitioners. In the findings it was simply stated that since the office of the Market Committee is located in the center of the Market, therefore, the petitioners cannot plead ignorance about the construction on the plots and the encroachments by the illegal allottees. It is also clear that the petitioners were not provided with the record that was obtained by the inquiry committee and the proceedings with regard to the interview conducted by the inquiry committee of the illegal allottees were also carried out at the back of the petitioners in sheer violation of section 10 of PEEDA. In a judgment reported as Syed MIR Muhammad v. NWFP Government Through Chief Secretary PLD 1981 Supreme Court 176, it was held that

After giving our anxious consideration to the submission made by the learned counsel for the parties, we have formed the view that in a case where a formal inquiry is held, it seems to be an implicit requirement of the relevant rules that a copy of the inquiry report should be furnished to the accused official so as to enable him to offer his explanation with regard to the adverse findings, if any, recorded against him by the inquiry officer or the Inquiry Committee, as the case may be. Such a requirement cannot be brushed aside by saying that it would amount to a second show-cause notice.

If a formal inquiry is held, then the authorized Officer, should, after he has tentatively decided upon the action he proposes to recommend to the Authority, give an opportunity to the accused officer to offer his explanation against the proposed action in the light of the findings of the Inquiry Officer or Inquiry committee before sending his recommendations to the Authority. This would, of course, necessitate that a copy of the inquiry report be furnished to the accused Officer at this stage, and he should be apprised of the action proposed against him.

The inquiry report was also silent about the names of the allottees to whom the plots were allegedly sold/allotted by the petitioners. The inquiry report was also conspicuously silent about the exact location and the area of the plots and the amount received by the petitioners in lieu of the said plots.

8. Pursuant to the findings of the inquiry report, the Secretary Agriculture, Government of Punjab, respondent No.1, served on the petitioner show cause notice dated 15.01.2010. However, the said show cause notice did not allege sale/allotment of 49 plots of grain market by the petitioner rather the petitioner was stated to be inefficient and negligent in failing to check the illegal sale/allotment of said 49 plots. The relevant portion of the notice dated 22.02.2010 reads as under:

That he did not performed the duties of Secretary Market Committee, as required under 69 of the Punjab Agricultural Produce Markets Ordinance, 1978 (General) Rules, 1979. He did not take any step to check illegal sale of allotment of 49 plots which incurred heavy financial loss to the market committee Mandi Shah Jewana. The office of Market Committee Shah Jewana is located almost in the center of market. The illegal possession of plate forms, roads and construction of shops and business other than Agriculture Produce was continued during his tenure clearly showed inefficiency and misconduct on his part. This irresponsible attitude resulted in the illegal sale/allotment of 49 plots.

The inquiry report after its conclusion was also not provided to the petitioner as is apparent from the letters addressed to the Secretary Agricultural Government of Punjab by the petitioner. It is thus apparent from the record that the mandatory procedure provided for in PEEDA was not followed by the Inquiry Committee. As the petitioner was not provided with the inquiry report or the record collected and the statements recorded by the Inquiry Committee, it cannot be said that the petitioners were provided with an adequate opportunity to show cause in terms of section 13(4) of the PEEDA.

9. During the course of hearing before respondent No.1, petitioner again complained regarding the non-supply of the inquiry report and further stated in his defence that he did not sell/allot any plot to anybody and that during his tenor no construction was raised on the plot in question. The points urged by the petitioner were not adverted to by the Secretary Agriculture, Government of Punjab, respondent No.2, who while passing order dated 20.05.2010 found the petitioner to be guilty and accordingly awarded the following penalties:

Mr. Umar Draz Kathia:

Major penalties of dismissal from service along with recovery of the loss caused to Market Committee amounting to Rs.13,43,727/- is imposed upon Mr. Umar Draz Kathia, Ex-Secretary Market Committee, Shah Jewana, now posted as Secretary Market Committee, Kabirwala, with immediate effect. The amount shall be recovered from him under the law for the time being in force;

Mr. Tariq Naeem:

Major penalties of compulsory retirement along with recovery of the loss caused to Market Committee amounting to Rs.3,016,653/- is imposed upon Mr. Tariq Naeem, Ex-Secretary Market Committee, Jhang (holding additional charge of Secretary Market Committee, Shah Jewna now posted as Secretary Market Committee, Jhang with immediate effect. The amount shall be recovered from him under the law for the time being in force.

Mr. Aslam Riaz:

Major penalties of dismissal from service along with recovery of the loss caused to Market Committee amounting to Rs.1,892,187/- imposed upon Mr. Aslam Riaz, former and present Secretary Market Committee, Shah Jewna, with immediate effect. The amount shall be recovered from him under the law for the time being in force;

10. The petitioners filed their respective appeals before the Chief Secretary, respondent No.2 under section 16 of PEEDA against the order of respondent No.1. The Chief Secretary vide order dated 02.07.2010 dismissed the appeals filed by the petitioners and came to the conclusion that the petitioners were involved in sales/allotment of plots of Grain Market Committee, Shah Jewana. The relevant portion of order dated 02.07.2010 passed by the Chief Secretary reads as under:

AND WHEREAS, after examining the record/material available on case file, enquiry report and listening to the contentions of the appellants and the Departmental Representative, I am of the considered opinion that the appellants failed to perform their duties with due diligence and honestly. Therefore, Secretary Agriculture Department/Competent Authority had rightly imposed the impugned penalty upon the appellant. The appellant during the hearing proceedings could not produce and submit any plausible arguments, documentary evidence or record to alter the impugned orders of the Competent Authority. The perusal of enquiry report reveals that Chairman, Administrators and Secretaries of Market Committee remained involved in illegal sale/allotment of plots during their tenure. For instance, Mr. Iftikhar Bhoslana, Haider Ali Shah, Rana Sultan Mahmood worked as Administrator, Chairman and Secretary of Market Committee Shah Jewana respectively and were in illegal sale/allotment of shops/plots. The Enquiry Officer further observed that departmental representative Malik Muhammad Shafi, EADA (E&M) Jhang also served as Administrator of the said Market Committee and was aware of this fraud but remained silent during enquiry proceedings to hush up the matter. Above all, the staff of Revenue Department, Jhang seems to be fully involved in the illegal act of sale/allotment of plots. They despite of intimation that NOCs issued from the office of the Market Committee Shah Jewana were bogus did not stop passing of mutations.

NOW THEREFORE, I Nasir Mehmood Khosa, Chief Secretary Punjab/Appellant Authority in exercise of powers vested in me under section 16 of the Punjab Employees, Discipline and Accountability Act, 2006, do hereby reject the appeals of M/s Shahid Bashir Cheema, Ex-EADA (E&M), R.Y. Khan, Tariq Naeem, Ex-Secretary Market Committee, Jhang, Umar Draz Kathia, Ex-Secretary Market Committee Burewala and Aslam Riaz, Ex-Secretary Market Committee, Shah Jewana and uphold the orders dated 24.05.2010 passed by the Competent Authority/Secretary Agriculture.

11. Both respondents Nos.1 and 2 failed to appreciate that charges against the petitioners were too vague and that no incriminating evidence was adduced to prove that the petitioners were directly responsible for allotment of plots and that amounts were received by them from the allottees which were not deposited with the Municipal Committee. The respondents also overlooked the material fact that the inquiry was conducted contrary to the norms of inquires as there was no prosecution statement recorded in the presence of the petitioners. The Establishment Manual Volume I contains the procedure for holding departmental inquires under West Pakistan Government Servant (Efficiency and Discipline) Rule, 1960. Rule 7 thereof provides as under:

If it is decided by the authority under para.4 that the allegations, if proved, would call for major penalty the following steps shall be taken: a. . b. The charge should be brief but specific and precise as far as possible. It must however, state clearly with reference to subject time, Occasion, place person, amount, etc. what the accusation is so that the accused know what he has to meet. c.

The witnesses for the Government are to be heard first and the accused may cross examine each one of them as his evidence is given. The evidence of the witnesses would be confirmed only the charged which are not admitted unless it is necessary for clearness to refer to any other matter. After the witnesses of the Government have been examined and cross-examined, the accused would be asked to produce his defence witnesses, if he so desires.

In a judgment reported as Government of NWFP and others v. Asif Iqbal 2010 SCMR 1345, it was held as follows:

Let we make it clear at the outset that "the recommendations of the Inquiry Committee are not binding upon the "Competent Authority". Abdul Rashid v. C.S.C. 1989 SCMR 1417 and any actions as may be deemed fit and proper can be taken by the Competent Authority subject to law with one exception that such action must be supported with reasoning.

There was not an iota of evidence on the record to substantiate the charges of illegal allotment of plots and causing financial loss to the public exchequer by the petitioners. The inquiry committee did not examine any witness and the persons who were "interviewed" were not allowed to be subjected to cross-examination by the petitioners. It is, therefore, clear that these so-called "interviews" cannot form basis for holding the petitioners guilty of the charges leveled against them. Another vital fact that escaped the attention of the respondents was that the copy of report of the inquiry committee was never made available to the petitioners and, therefore, they were not aware regarding the exact nature of accusation and the incriminating material relied upon in the inquiry report with the result that the petitioners were deprived of the opportunity to defend themselves or clear their position on the findings of the inquiry committee. In a judgment reported as Syed Mir Muhammad v. NWFP Government through Chief Secretary PLD 1981 SC 176 it was held as follow:

The case of misconduct and corruption could not be proved against the petitioners and accordingly the imposition of major/minor penalties against the petitioners was contrary to the mandatory provision of PEEDA.

12. Respondent No.2, being an appellate authority was under a duty to take into account the facts of the case, as set forth in the record presented on appeal; to assess the grounds urged in support of the appeal and to review and correct the errors of law and facts in the order passed by the competent authority; and to independently render his findings after appraisal of the record. The appeal is a valuable right conferred by law. The order of the appellate authority must, therefore, reflect its conscious application of mind by recording findings which are supported by reasons on all the issues arising along with the contentions put forth by the parties. In the present case, the order passed by respondent No.2 being the appellate authority does not fulfill the requisite criteria and, therefore, does not reflect application of independent mind. The orders passed by respondents Nos.1 and 2 (impugned herein) are thus not sustainable in law.

13. In the result, this writ petition is allowed and impugned orders dated 20.05.2010 and 02.07.2010 passed by respondents Nos.1 and 2 respectively are declared to be without lawful authority and of no legal effect. The petitioners are reinstated in service from the date of their dismissal and intervening period shall be considered as leave of its kind due.

ZC/U-1/L Petition allowed.