MUHAMMAD KHALIQ vs BOARD' OF INTERMEDIATE AND SECONDARY

' Petitioner, a Junior Clerk in the respondent-Board was proceeded against on charges of misconduct alongwith his associates including. Muhammad Yousaf, Senior Clerk. After enquiry and other codal formalities, the petitioner, on 23-10-1997, was imposed minor penalty of withholding of annual increment for one year. This order, in so far as the petitioner is concerned, attained finality.

Muhammad Yousaf, the co-official, was imposed major penalty of removal. Muhammad Yousaf filed Writ Petition No, 24991 of 1997 on the ground that the order of removal is bad and even though appeal is competent before the Full Board, but because the Board is presided over by the Chairman himself who has passed the order of removal the appeal was not adequate alternative remedy. This Court disposed of the petition in limine on 30-10-1997 holding that the apprehension was baseless and there is no reason to hold that the other members of the Board would be influenced by the opinion of the Chairman. Thereafter, the matter was taken up by the Board and on 14-3-1998, the Board decided to constitute a Committee of four members to make fresh enquiry into the matter and make a report. It is asserted that the Members of the Enquiry Committee reopened the case of the petitioner as well and summoned him to appear before the Committee. It is claimed that petitioner's request for summons in writing was not accepted. The petitioner, therefore, has filed this Constitutional petition praying that the fresh proceedings be declared as incompetent.

2. In the report and parawise comments the facts are substantially admitted. It is, however, asserted that the official has orally admitted the guilt in the light of his statement, the Board felt it appropriate to have a fresh. Enquiry held at the higher level and, in the circumstances, petitioner's grievance is incorrect.

3. During the course of hearing learned counsel for the petitioner has attacked the fresh proceedings on the basis of Article 13 of the Constitution by arguing that fresh proceeding amount to vexing twice for the same cause.' He has relied inter alia on the Director-General (Field), Agricultural Development Bank, Lahore and another v. Haji Abdul Reitman (1989 SCM R 1224) to substantiate the claim. Learned counsel for the Board of course has defended the impugned action by urging that not only it is competent but also by arguing that it is appropriate as the Board is attempting to read out corrupt elements and petitioner and his colleagues are the persons responsible for committing acts of corruption in the Board.

4. While this Court does appreciate the attempts of the Board to tackle corruption and to weed out corrupt elements, it cannot bless any illegal act taken even for the laudable object. Petitioner having been punished once by imposition of minor penalty and that action having attained finality, by no principle of law the same matter can be reopened for the apparent purpose of imposing a higher penalty, even on the ground that discovery of fresh material points to the graver misconduct of the petitioner. The Supreme Court judgment relied upon by learned counsel supports his contention and almost clinches the issue.

5. In the circumstances, this petition is allowed and the initiation of fresh proceedings against the petitioner on the same facts and charge is declared as without lawful authority and of no legal effect. It is clarified that this judgment will not debar the Board from making action against the petitioner on any other fresh charge. No order as to costs.