IFTIKHAR AHMAD Versus GOVERNMENT OF KHYBER PAKHTUNKHWA
ORDER
WAQAR AHMAD SETH, J.--- This single order shall also dispose of connected writ petition bearing No. 1964-P of 2016 titled Shafiq ur Rehman v. Govt. of Khyber Pakhtunkhwa through Chief Secretary etc, as both are arisen out of one and same charge sheet/ statement of allegations dated 23.11.2015.
2. In essence the case of petitioner is that, on the allegations of irregularities in the purchase of Jute Tats, Science equipments and furniture, he was proceeded against under Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011 and after inquiry, was imposed a major penalty of "Reduction to Lower Post". Feeling aggrieved petitioner along with others preferred service appeal before Khyber Pakhtunkhwa Service Tribunal. The learned Tribunal connected / clubbed all the identical appeals and vide order/judgment dated 27.01.2015 decided the same through common judgment in the following manner:--
"In view of the afore-stated situation, the appeals referred to above, are accepted and the impugned orders are set-aside and it is directed that the competent authority may proceed against the appellants after fulfilling the codal formalities essential for conducting the inquiry in the prescribed manner within three months. In view of the afore-stated situation, the services of the appellants are restored to their position as it was before the imposition of penalties. The issue of back benefits shall be subject to the outcome of fresh inquiry. Parties are left to their own cost."
3. In compliance with the said order, the respondents / competent authority on 23.11.2015 framed the impugned charge-sheet and a committee was constituted for fresh inquiry, hence the instant writ petition.
4. Comments were called from respondents which they furnished and denied the assertions of petitioner and stated that petitioner has suppressed material facts and is taking undue advantage of the judgment of Service Tribunal to cover up his corruption. All the allegations against the petitioner is true, correct and admitted / confessed by him. That the charge sheet and initiation of inquiry are in accordance with law rules and natural justice, requested for dismissal of the writ petition.
5. Arguments heard and available record gone through.
6. We have before us judgments delivered in Service Appeals Nos.136/2013 and 159/2013 dated 27.01.2015, wherein the learned Competent Khyber Pakhtunkhwa Service Tribunal Peshawar while setting aside the punishment imposing order directed the competent authority to proceed against the petitioners/applicants after fulfilling the codal formalities, essential for conducting the inquiry in the prescribed manner, within three months and the issue of back benefits shall be subject to the outcome of fresh inquiry in the service appeals of both the petitioners in both the writ petitions.
7. Record further suggests that the above referred decision dated 27.01.2015 was put up before the Scrutiny Committee on 13.3.2015 under the Chairman Ship of Secretary Law Department in order to determine the suitability / fitness of the subject matter for filing of appeal before the apex Court. The scrutiny committee attended by four members/officials and while declaring the case unfit for filing of appeal in the upper forum advised the Administrative Department i.e. respondents to conduct fresh inquiry within the limitation as mentioned by the Service Tribunal within the period of three months. The section officer litigation and legal representative represented the respondent department in the said committee dated 13.3.2015.
8. In spite of the clear direction of the Service Tribunal regarding de novo proceedings within three months from the date of judgment dated 27.01.2015 and directions of the scrutiny committee, record suggests that petitioner was issued a charge sheet on 23.11.2015 i.e after a laps of about 10 months from the original judgment and 7 months from the decision of the scrutiny committee and admittedly it amounts to non implementation of judgment of Service Tribunal within stipulated period of three months, therefore prima facie it is held that respondents had flouted the directions as prescribed in the judgment of the learned Service Tribunal. If the judgment of the Service Tribunal was not implemented and petition for leave to appeal was not filed as per observation of the scrutiny committee and that scrutiny committee directed the Administrative Department to implement the judgment within the given time, no escape route was before the department, as except to implement the judgment in letter and spirit. In the event of not comply within time, all the proceedings thereafter would be void.
9. In the case of Zahooruddin Sheikh v. Pakistan Atomic Energy Commission, reported in 2007 PLC (C.S.) 959, it has been held as under:--
"----Rr. 4(1)(b)(iii), 5 & 6---Service Tribunals Act (LXX of 1973), Ss. 4 and 5---Removal from service---Reinstatement in service---Powers of Service Tribunal to implement its order---Appeal order of removal from service passed against appellant was set aside by Service Tribunal directing appellant to be reinstated in service with the condition that authority would hold de novo inquiry proceedings within a period of six months from the date of judgment of service tribunal and that in case inquiry was not conducted and completed within six months, appellant would be entitled to all back benefits provided appellant would file affidavit to the effect that he did not work for gain anywhere during period of his removal from service---Judgment of service tribunal was upheld by Supreme Court ---As soon as Supreme Court declined to interfere with judgment of service tribunal it became obligatory for the authority to implement judgment of service tribunal and de novo disciplinary proceedings should have been held against appellant according to direction of service tribunal in its judgment, but same had not been done by the authority---Authority had contended that six months period for commencement and completion of de novo inquiry proceedings against appellants would start from the judgment of Supreme Court as judgment of service tribunal stood merged in the judgment of Supreme Court was not applicable in the present case as Supreme Court had not changed directions contained in the judgment of service tribunal and did not give any direction contrary to those contained in judgment of service tribunal---Non implementation of judgment of service tribunal within stipulated period of six months had flouted the directions as prescribed therein---Charge sheet show cause notice and removal order issued after expiry of said prescribed period of six months were void, non-existent and of no legal value---Setting aside order of removal from service passed against appellant, authority was directed to ensure implementation of order within specified period.
10. Like wise the apex court dilated upon the issue in the case of National Bank of Pakistan v. Shamoon Khan and others, reported in 2010 PLC CS-608 (c) which reads as under:--
---S. 4---Constitution of Pakistan (1973), Art. 212(3)---Reinstatement---De novo inquiry---Service Tribunal reinstated employee in service with option to bank employer to initiate de novo inquiry---Validity---Inquiry was not got conducted against employee in accordance with relevant provisions of law and it was found in flagrant violation of the principles enunciated in cases already decided by Supreme Court---Service Tribunal had given fair opportunity to bank to initiate inquiry proceedings do novo within a period of three months, but nothing could be done for the reasons best known to it-Judgment passed by Service Tribunal was free from any illegality or infirmity and did not call for interference.
11. Learned AAG failed to put forward even a single reason for such a delay on the part of respondents-department nor in the comments respondents had offered any reason or justification, justifying such a delay of 7/9 months in conduct of de novo proceeding. Even at the time of arguments respondents-department or for that matter learned AAG never requested for extension of time for the purpose of conducting of de novo proceedings.
12. When law requires a thing to be done in a particular manner then it would be a nullity in the eye of law, if not performed in that very prescribed manner. In the instant case, the directions of the Tribunal became law, the moment respondents have not called in question before the appellate forum, therefore, it was mandatory for them to have performed in the manner in which the competent court of law has issued the directions. Even otherwise, public functionaries are supposed to act upon and execute / implement the judgment of court of law in order to maintain the rule of law and supremacy of justice.
13 Since the judgment of a Competent Tribunal have been flouted with no obvious reason therefore, we while allowing this writ petition set aside all the proceedings, so initiated by the issuance of time barred charge sheet and statement of allegations.
14. The writ petition is allowed in above terms.
ZC/350/P Petition allowed.