ORDER ' HAFIZ TARIQ NASIM, J.--- The petitioner's learned counsel submits that the impugned show- cause notice dated 6-2-2008, is issued by the respondent in excess of his jurisdiction, without application of independent mind, virtually an outcome of colourable exercise of power and as such is liable to be interfered with.
2. Further contends that the show-cause notice is just a formality and nothing else whereas respondent is adamant to oust the petitioner from service by adopting the shorter procedure of show-cause notice instead of holding regular inquiry.
3. The petitioner seeks only a direction to the respondent that instead of resorting to the procedure of show-cause notice, full opportunity of defence conducting a regular inquiry through an independent officer be provided to her as the allegations are false and same have already been refuted specifically through reply to the show-cause notice.
4. It is further submitted that the impugned show-cause notice is complete departure from the law laid down by the apex Court wherein it is repeatedly held that in case the allegation is refuted specifically then resorting to the procedure of show- cause notice is not justified whereas the propriety demands that inquiry be conducted through an independent Officer affording a chance of defence to the petitioner and then the competent authority is at liberty to pass any order as deemed proper because the petitioner is not praying for a clean chit rather, she is only requesting for the enforcement of law laid down by the Honourable Supreme Court of Pakistan which otherwise is binding as per provisions of the Article 189 of the Constitution of Islamic Republic of Pakistan, 1973.
5. On the other hand, the learned Assistant Advocate General Punjab, Lahore contends that the writ is barred by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and it is the competent authority to decide whether the petitioner would have been proceeded through a show-cause notice or through the procedure of regular inquiry and the petitioner cannot insist for the holding of regular inquiry being the only domain of the competent authority.
6. Arguments heard, available record is perused.
7. First of all the objection of maintainability of writ is to be addressed being an important objection.
8. There is no dispute that in respect of terms and conditions of a civil servant the jurisdiction rests with Service Tribunal, however before invoking the same, any aggrieved civil servant is to fulfill the requirements of section 4 of the Service Tribunals Act, which is reproduced as follows:--- "Appeals to Tribunals.--- (1) Any civil servant aggrieved by any order whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal. ' Provided that: (a) where an appeal, review or representation to a departmental authority is provided under the Punjab Civil Servants Act, 1974, or any rule against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred; (b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade; ..."
9. The record shows that in the present case no final order or appellate order is passed to extend the jurisdiction of the Service Tribunal, hence keeping in view the law laid down in a case reported as I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041 wherein it is held that:-- "if the Service Tribunal does not have jurisdiction to adjudicate upon a particular type of grievance, the jurisdiction of the other Courts remained intact---Service Tribunal has jurisdiction against a final order, whether original or appellate, made by a departmental authority in respect of any terms and conditions of service."
10. In the present case neither any original order is impugned before this Court nor the appellate order whereas only a direction is sought for and in that respect the law is very clear by the apex Court in a series of judgments wherein it is held, "that the High Court in exercise of its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can direct the authorities to perform the acts in accordance to law. ' So the objection of Article 212 of the Constitution of Islamic Republic of Pakistan, 19'13 is repelled being not attracted in the present case. Reliance can be placed on the law laid down by the Honourable Supreme Court of Pakistan in case of Pakistan Railways v. Muhammad Allauddin Babari 1998 SCMR 1605, in this case the employee being aggrieved of withholding of salaries approached the learned Wafaqi Mohtasib who directed the department to release the salary however, the department did not honour the direction of the learned Wafaqi Mohtasib and as such the employee filed writ petition in the Lahore. High Court for the implementation of the order of the Wafaqi Mohasib. The High Court allowed the writ petition but it was challenged before the Honourable Supreme Court of Pakistan wherein it was held:-- "the impugned order appears to be fair and proper on the face of record to meet the ends of justice. The direction having been issued by the High Court to the department to pay the arrears to the employee is fully warranted in law as the High Court through its order has done substantial justice...."
11. In another case reported as Administrator, District Council Larkana and others v. Ghulab Khan and 5 others 2001 SCMR 1320 it was held that, "High Court would become competent in issuing a direction to the respondents who are admittedly persons performing functions in connection with the affairs of the Federation/ Provinces, to do a thing which they are required by law to do within the jurisdiction of the High Court."
12. The next submission of the learned Assistant Advocate-General Punjab is that in all cases the competent authority is to decide whether the petitioner should have been proceeded through a show-cause notice or through the procedure of regular inquiry is misconceived as there is ample law laid down by the Honourable Supreme Court of Pakistan wherein it is held that first of all the discretion in respect of dispensation of inquiry is to be exercised with full vigilance and with the application of independent mind, particularly after examining the allegations and its reply and, if the reply of the allegations contain specific denial then the only course left with the competent authority to adopt the procedure of regular inquiry and not the shorter procedure of show-cause notice. In a case titled Saad Salam Ansari v. Chief Justice of Sindh High Court 2007 SCMR 1726, it is held that, "this is correct that Authorized Officer had to decide that which of the two procedures provided in the rules, was to be adopted and if he is in favour of conducting the summary proceedings, he must have exercised this discretion with extra care so that no prejudice is caused to the civil servant facing departmental proceeding for the charge of misconduct. The decision regarding dispensation of regular inquiry always depends on the nature of charge and circumstances of each case. This is settled law that in a case in which charge cannot be established without recording evidence and providing a proper opportunity to the civil servant to cross-examine the witnesses and also produce evidence in defence, the dispensation of regular inquiry is not justified except in extraordinary circumstances." ' In the present case if the contents of the show-cause notice in juxta position with the reply of the petitioner is perused, there shall be no difficulty to arrive at the conclusion that not only the petitioner has refuted the allegations rather, she requested for the holding of inquiry through an independent Inquiry Officer instead of adopting the shorter procedure of show-cause notice.
13. As the Honourable Supreme Court of Pakistan already held in series of judgments that where controversial facts are visible from the record then the holding of regular inquiry is necessary. In this respect reliance can be placed on Alamgir v. Divisional Forest Officer, Multan and others 1993 SCMR 603 held, "for resolving controversy, questions of fact where evidence has to be recorded and opportunity of cross-examination has to be given, the proper course is always to hold a full-fledged inquiry. Otherwise, the findings recorded, as in this case, will be based on mere conjectures than on evidence..."
14. In another case titled Ghulam Muhammad Khan v. Prime Minister of Pakistan 1996 SCMR 802, it is held that, "the question as to whether the charge of a particular misconduct needs holding of a regular inquiry or not will depend on the nature of the alleged misconduct. If the nature of misconduct is such a finding of fact could not be recorded without examining the witnesses in support of the charge or charges, the regular inquiry cannot be dispensed with."
15. The Honourable Supreme Court of Pakistan went to the extent in a case reported as Fatima Bibi v. Deputy District Education Officer 2007 PLC (C.S.) 597, held that n"although in instant case, stand of the department is that it is in possession of documentary evidence to establish that petitioner is guilty of impersonation but at the same time the petitioner is also in possession of the document to negate the allegation as it is evident from the reply of show-cause notice. Therefore, on having gone through such material the competent authority may have not dispensed with the inquiry which was necessary to probe into charge, particularly, in view of the fact that there was likelihood of imposing major penalty upon her if allegation of impersonation is proved on record. It is well settled by the time that in such like cases, instead of condemning the Government official unheard, the department is required to conduct a regular inquiry instead of removing Government official from service on the basis of fact-finding inquiry report..."
16. It is to be noted that as per dictates of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 the judgments/law laid down by the Honourable Supreme Court of Pakistan is binding on all the organs of the State and the deviation from this cannot be allowed in any manner.
17. As discussed above, the petitioner seeks only a direction to the respondent to act strictly in accordance to the judgments of the Honourable Supreme Court of Pakistan whereby the petitioner could defend her case reasonably through a process of regular inquiry and as such I am inclined to interfere in the impugned matter.
18. The sole purpose for interference in the impugned matter is that the petitioner seeks justice for which she has posited her confidence in the judiciary. The Courts are not only duty bound to ensure that justice prevails without crossing the limits and boundaries settled by law but are also under the restraint of ensuring that the essence of Fundamental rights i,e, justice, fair play and equity as guaranteed under the Constitution of Islamic Republic of Pakistan, 1973, is preserved and provided where demanded.
19. In my view an employee should not be denied practical justice by letting him/her seek and hunt her remedy through a lengthy and unnecessarily extended process of litigation. In effect, an E employee should not be discourteously thrown on the road for the search of justice.
20. For example in the present case, if the authorities are allowed to continue with the proceedings, the ultimate result would be the dismissal from service of the petitioner and to reach the stage of vindication she would have to undergo a very lengthy and tiresome process of having recourse, firstly to the Service Tribunal and then ultimately to the apex Court and this process starting from the Authorities and ending up at the Court of last resort i,e, the Supreme Court of Pakistan would take a number of years.
21. Keeping in view the series of judgments of the Honourable Supreme Court of Pakistan, I can safely observe that once the petitioner reaches the apex Court, it would finally accept her appeal purely on technical grounds which shall in effect hold that due to non-holding of regular inquiry, the petitioner's case has been prejudiced and as such the case would be remanded back to the first stage from where the petitioner came i,e, the departmental authorities for de novo proceedings meaning thereby that the steps which were to be taken at the first instance shall be taken at the last stage after a lapse of several years.
22. At the end of the day the entire exercise would not only defeat the ends of justice but would also force the petitioner and her whole family, which may be dependent on her alone, to go through a lengthy and severe period of financial turmoil which would also include humiliation among society and mental agony for the petitioner and her family members. Last but not the least the petitioner in starting from the departmental authorities and agitating her way up to the Supreme Court of Pakistan, would have lost a considerable period of her valuable time for which no authority or Court would allow any compensation.
23. It is well- settled law laid down by the Honourable Supreme Court of Pakistan in case reported as Mst. Razia Jaffer v. Government of Balochistan 2007 SCMR 1256 wherein it is held that, "nobody shall be prejudiced by the act of Court or act of public functionaries."
24. Keeping in view all the circumstances of the case and the law laid down in this respect the best possible option for this Court is to interfere right at this stage and stop the petitioner from going through the cumbersome process of losing her valuable time and money, stopping her and her family from going through the mental agony of waiting for her to be dismissed in the end and simultaneously on the other hand to restrain the departmental authorities from violating the well-settled law which of course is the duty to abide.
25. In the above stated scenario, the case is remanded to the respondent with a direction to withdraw the impugned show-cause notice, frame charge-sheet/statement of allegation, appoint an independent Inquiry Officer higher in rank the petitioner, communicate the charge- sheet/statement of allegations to the petitioner, obtain her reply and direct the Inquiry Officer to hold the inquiry strictly in accordance to law and rules affording a chance to the petitioner to cross-examine the witnesses produced by the department and also to have an opportunity to rebut the documentary evidence if the same is produced by the department, in addition to providing the petitioner an opportunity to produce her defence.
26. After the completion of inquiry proceedings the competent authority is required to provide the copy of the inquiry report to the petitioner if the allegations are held to be proved against her and then of course the competent authority shall be at liberty to issue her show-cause notice and then proceed strictly in accordance to law and pass an appropriate order against the petitioner. ' Till such time, the directions mentioned above are not complied with in letter and spirit; no adverse order shall be passed against the petitioner. With these observations the writ petition is disposed of.