' Abdullah Gondal former Senior Clerk in the office of Deputy Director, Food Rawalpindi Division, Rawalpindi, was served with charge-sheet accompanied by statement of allegations spelling out the following charges:-- ' CHARGE No.1 ' He was found guilty of misconduct and punished by reducing him in grade to junior clerk for a period of three years vide orders Endst. No RWP-EA (Gondal-SC) 89/5190, dated 14-12-1989 and was kept under watch during the said period also with particular reference to financial matters on the following grounds:--
(i) He purchased bonds of Rs.10,000 out of Government cash.
(ii) He misappropriated Rs.15,932 and utilized the same instead of payment to the official concerned.
(iii) He arranged payment of earnest money of Rs.31,000 to the highest bidder without obtaining order of the competent Authority.
(iv) He lent Government .Money to other officials at his own accord.
(v) He did not maintain the cash book properly. CHARGE No.2 ' He was censured vide order No.4103 dated 21-12-1992 on account of negligence/Irresponsibility of inordinate delay in performance of official duty.
' CHARGE No.3.
' He was awarded minor penalty of withholding of annual increments for three years vide order No.4999 dated 1-12-1993 on account of delaying submission of T.A. Bill of Mr. Irshad Khan, FGI to District Accounts Office as a result of which the T.A. Bill had become time-barred.
' CHARGE No.4.
' He was awarded minor penalty of "censure" vide order No. 4998, dated 1-12-1993 on account of misconduct/negligence.
' CHARGE No.5.
' A complaint dated 12-4-2001 from Messrs Tariq Flour Mills, Attock on account of corruption/malpractice against him has also received and charges levelled against him by the complainant have been proved during the preliminary inquiry conducted by Mr. Ahmed '
Nawaz,sistant Food Controller.
' CHARGE No.6 ' His ACR for the year 1985 is not satisfactory. Detail is as under:-- ' A.Pen Picture: His disposal of work is not accurate, the Treasury Challan pertaining to the Centre were not sent in time. He submitted when the Centre Incharge made hue and cry. He carry this when he is loaded. It is noticed that he is in the habit of preparing the pay bills/arrears bills of the staff without obtaining the sanction of Drawing and Disbursing Officer, which leads to misappropriation, whenever he is advised on the point he gives negative attention. Moreover, he cannot work swiftly being a left handwriter. No responsible duty may be entrusted to him. He is also shirk worker.
' Remarks of finalization authority I agree. He is careless worker.
2. Appellant gave his reply to each of the charge, which did not find favour with the Inquiry Officer who vide his report dated 14-5-2001 held the charges to be proved. Deputy Director Food, Rawalpindi Division, Rawalpindi while acting as authority on the recommendations of the Inquiry Officer proceeded to compulsorily retire the appellant under the provision of Punjab Removal from Service (Special Powers) Ordinance, 2000 (hereinafter called the Ordinance) on 10-9-2001. Appeal filed by the appellant on 4-10-2001 did not receive the attention of the Appellate Authority for 60 days, hence recourse to the Punjab Service Tribunal, through the instant appeal was made on 4-1- 2002.
3. Learned counsel for the appellant contended that Charges Nos.1, 2,3,4 & 6 related to previous omissions for which the appellant was punished and had become a closed and past transaction which could not be raked up to impose the present major penalty. As regards, Charge No.5, it was contended that only a preliminary inquiry was conducted and no show-cause notice or personal hearing was provided as envisaged under the Ordinance. Another limb of the argument was that co-accused Muhammad Amin, junior clerk was also proceeded under this charge and exactly the same evidence against the said Muhammad Amin was available before the Authority, however, in his case minor penalty of censure was imposed on 16-11-2001 by the Authority but discrimination was made in the case of the appellant by imposing major penalty of compulsory retirement which offends Article 25 of the Constitution of Islamic Republic of Pakistan. Departmental Representative on the other hand stated that the Department proceeded on the basis of a notification requising good governance/cleaning of the Government machinery.
4. I have heard the arguments of the respective counsel and Departmental Representative and have also perused the record carefully.
5. Undoubtedly, without any cavil the appellant was tried on Charges Nos.1,2,3 and 4 previously and awarded punishments. Charge No.6 relates to adverse entry for his ACR for the year 1985. These omissions relate to previous transactions/charges for which the appellant was adequately punished and can be rightly termed as closed and past transactions and cannot by any stretch of imagination be raked up once again to imposed major penalty of compulsory retirement, as it amounts to violation of law.
6. Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 relating to fundamental rights provides protection against double punishment and self-incrimination, which provisions reads, as under:-- ' No person:--
(a) shall be prosecuted or punished for the same offence more than once;
7. The said rule also finds mention in section 403 of the Code of Criminal Procedure, according to which no one is to be vexed twice for one and the same offence. This section is based on the time- tested maxim of "autrefois acquit" and "auterfois convict". In simple words the rule enunciated by this maxim is defined as a rule of "Double Jeopardy". It is a cardinal principle of law that rule of double jeopardy has application in every branch of laws whether it be criminal law, civil law or quasi-criminal proceedings. In criminal law section 403 of the Code of Criminal Procedure is applicable, which protects the accused from punishment once he has been acquitted or convicted. In the civil proceedings, similar bar is contained under section 11 of the Civil Procedure Code commonly known as res judicata, whereas Article 13(a) of the Constitution of Islamic Republic of Pakistan ensures, that rule of double jeopardy be not resorted in every kind of proceedings including departmental proceedings envisaged under E&D Rules or the present Ordinance, as an act of omission previously punished cannot be taken up afresh imposing any penalty, matter becomes closed and buried once for all. Even otherwise reference to rule 3 of the Ordinance makes it abundantly clear that the Authority can initiate proceedings for inefficiency, misconduct or corruption or having sought appointment or promotion on extraneous grounds in violation of law, not inquired, tried or applied previously.
8. Misconduct used in this rule relates to the misconduct, on, which fresh proceedings have to commence and does not envisage misconduct, which has been tried and punished by way of penalty whether major or minor. When the Departmental Representative was asked to clarify how the Department can proceed on these charges which are not envisaged under rule 3 of the Ordinance he stated that action was taken under notification which authorized the Authority to proceed against the incumbent on the ground of good governance/cleaning of the Government machinery. I am afraid the Notification cannot override the provision of the rule, legislated in the Ordinance. The Notification can undoubtedly go side by side with the rule if the misconduct falls within the ambit of the definition provided under rule 2(b) cannot be in derogation of rule 3 of the Ordinance, for an act and omission which already stand punished. In this regard reference is invited to the case of Agha Mumtaz Ali v. Deputy Director Directorate of Intelligence and Investigation Regional Office Punjab and 2 others reported in (1998 PLC (C.S.) 648) where it was held that previous laxities of civil servant already administratively dealt with could not form basis of future penalties as previous omission could not justify future penalties, particularly when omission had already been adjudicated upon administratively. Action taken afresh by compulsory retiring the appellant on the Charges Nos.1,2,3,4 and 6, therefore, cannot be upheld.
9. As regards Charge No.5, without going into details whether any show-cause notice was served upon the appellant or opportunity of hearing was provided to him, except holding a preliminary inquiry. Suffice it to say that the simple ground which has convinced me is that the penalty imposed can be overturned on ground of discrimination. Learned. Counsel has supplied me the order of the Authority dated 16-11-2001, in the case of Muhammad Amin, junior clerk who was also proceeded along with the appellant in the preliminary inquiry with the same charges. Muhammad Amin was let off with the minor penalty of censure whereas the appellant has been compulsorily retired, as Charge No.5 forms one of the charges appearing in the statement of allegations. This surely offends Article 25 of the Constitution of Islamic Republic of Pakistan, which is captioned as "equality of citizens" and provides that all citizens are equal before law and are entitled to equal protection of law Muhammad Amin, junior clerk having been punished with censure, with similar and identical allegations, the same penalty has to be imposed upon the appellant as well.
10. The appellant is absolved of Charges Nos.1,2,3,4 and 6 for reasons given in the preceding paragraphs of this judgment and his penalty of Charge No.5 is converted from compulsory retirement to censure, as was the case of Muhammad Amin, junior clerk. On the same analogy one isolated adverse entry earned in the year 1985 cannot be made ground of imposition of major penalty, specially when appellant was promoted as senior clerk in July, 1987. With these observations, appeal is partially accepted and order of the Authority dated 10-9-2001 regarding Charges Nos.1,2,3, 4 and 6 are set aside but as far as Charge No.5 it is converted from compulsory retirement to censure.