' MASHIR ALAM, J.---Petitioner serving as a Deputy Collector of Customs in BS-18 has impugned conduct of the purported second inquiry dated 28-1-2010 (Annexure "B" to the memo of petition at page 31) and proceedings thereunder to be mala fide and without jurisdiction and consequential restraining orders against the respondents Nos.3 'and 4 from conducting the enquiry into allegations contained in the order of inquiry.
2. It is the case of petitioner that in performance of his duty a consignment of Messrs Easy Way Recycling Company was processed by the examining authority and documents were endorsed by the petitioner. Later, the staff of the Directorate-General of Intelligence and Investigation, FBR Karachi intercepted the consignment, which resulted in dutiable consignment that led to preliminary inquiry. According to the learned counsel, in the inquiry the petitioner was exonerated, it was noted in the inquiry that 'however, negligence on the part of the examining staff could not be ruled out as they failed to appreciate that the impugned container was not examined at all'.
Consequent upon such report dated 11-12-2009, concerned examination staff has been posted out and place at non-public dealing positions through office order dated 12-12-2009. It seems that followed by finding in the report, Competent Authority, in exercise of powers conferred under section 5(1) of the Removal from Service (Special Powers) Ordinance, 2000 issued impugned order of inquiry dated 28-1-2010. An Inquiry Committee comprising three members was constituted to scrutinize the conduct of the accused officer through formal inquiry proceedings into the charges of inefficiency, misconduct and corruption An terms of section 3(1)(a), (b) and (c) of the "Removal from Service (Special Powers) Ordinance 2000". The petitioner instead of associating with the inquiry chose to file the instant petition.
3. Today, when the matter came up for consideration the respondents filed the comments. Learned counsel for petitioner proceeded with the matter on merits and chose not to file any rejoinder.
4. Ms. Pooja Kalpana, learned counsel for petitioner, contended that the first inquiry was initiated on 11-11-2009, result of inquiry was made known on 23-12-2009. It was urged that the responsibility of petitioner is to examine only 10% and not the entire 100% consignment. It was urged that since the other examining officers in the lower formation had carried out the exercise, the petitioner merely endorsed the documents and the matter was duly inquired into and even the petitioner was inflicted punishment of transfer, which was taken up in good spirit and it was conceded that some negligence is attributed to the petitioner, therefore, such transfer and posting was not challenged.
In support of her contention, she vehemently-urged that second enquiry is illegal and impugned order is liable to be struck down. In support of her contentions; reliance was placed on the case- laws reported as Muhammad Azhar v. General Manager (Operation), Power WAPDA PLD 1990 Lahore 352, Muhammad Khaliq v. Board of Intermediate and Secondary Education 2000 PLC (C.S.)
1373 and Gursewak v. State AIR 1954 Pepsu 129.
5. In the case of Muhammad Azhar PLD 1990 Lah. 352 petitioner charge-sheeted under the WAPDA Employees (E&D) Rules, 1978, was ultimately found guilty and penalty of reduction by one lower rank was inflicted. The petitioner was again removed under section 17(1A) of the WAPDA Act, 1958, however the petitioner was reinstated by the Service Tribunal, WAPDA could not succeed before the Supreme Court. It seems that the General Manager after seven years reviewed the earlier order on the premise that some lacuna was left in the earlier enquiry, which culminated in penalty of reduction in rank. It was held that under Rule 12 ibid, the Authority and not the GM had power no review, after inflicting penalty GM became functus officio. Court noted that when the authorities realized that earlier order imposing penalty will be hurdle in its way, recalled the earlier order. It was held that in face of final order in field there was no legal basis even to draft the show-cause notice and by this way order has been passed to furnish legal basis for second round, which course was not approved by the court. Muhammad Khaliq 2000 PLC (C.S.) 1373 (1375) in cited case where the petitioner a junior clerk was proceeded on the charge of misconduct and imposed a minor penalty and co-employee who was imposed a major penalty of removal from service successfully challenged the removal, case of co-worker was remanded for decision afresh. Authority also reopened the case of the petitioner. It was held that Civil Servant having being punished by imposition of minor penalty and the action having attained finality, by no principle of law same could be reopened for the purposes of imposing higher penalty, even on the ground that discovery of fresh material had pointed to the grave misconduct, which action was struck down. In the case of Gursewak AIR 1954 Pepsu 129, in said case it was held that once the matter is finally disposed of by the competent authority it cannot be reopened by the successor, except under the express authority. Ms Puja in addition to above also cited Javed Maqbool Bhatti v. Secretary Irrigation and Power Department 1998 PLC (C.S.) 208, in said case on a complaint report was called from a high powered committee, on the recommendation made by the committee, petitioner was charge- sheeted and proceeded, later another charge was added. He was exonerated in the inquiry. The authorized officer did not concur with recommendation of the enquiry, ordered de novo enquiry, on challenge the court allowed the petition partly to the extent that the petitioner shall not face another trial on the same allegations, which stand concluded by the Inquiry Officer and which still has to be proceeded by the Authorized Officer per Rule 7A of the Punjab Civil Servant (E&D) Rules, 1975. However for the other charge, which was inflicted without amending the charge-sheet inquiry was allowed to proceed. In Aftab Ahmad Jafri v. Pakistan 2004 PLC (C.S.) 52, petitioner charge- sheeted was in appeal before Service Tribunal, another charge-sheet was issued on similar grounds, which amounted to nullifying the proceedings before the Service Tribunal was not approved by the High Court. Union of India v. K.D. Panday and another (2002) 10 SCC 471 in said case inquiry authority exonerated the respondent. Disciplinary Authority however remitted back for further inquiry on the premise that out of six charges at least four charges could be substantiated and proved. In absence of any finding that inquiry held earlier was bad or finding were perverse, Court held that there was no justification on the part of disciplinary authority to commence fresh inquiry on same set of charge. In the case of Samiullah Khan Marwat v. Government of Pakistan 2003 SCMR 1140, Court while upholding dismissal from service held that material not confronted to the Petitioner cannot be used against him. On examining the cases cited and noted above it is evident that in the above cases the employee was properly charge-sheeted/show cause considering the reply examining the evidence and after affording an opportunity of being heard invariably punitive orders were passed and attained finality. In such context the courts have disapproved second inquiry on the same charges.
6. It was next contended that under the Removal from Service (Special Powers) Ordinance 2000, there is no provision for second inquiry as it contemplated under the Punjab Removal from Service (Special Powers) Ordinance 2000 (Hereinafter abbreviated as Punjab Ordinance 2000). Learned counsel has taken us to the second proviso to section 8 thereof. It is provided that the competent authority on being satisfied that the inquiry has not been conducted in accordance with the provision of the Punjab Ordinance, 2000 may within a period of third days after recording of reasons either remand the inquiry or may order de novo inquiry. She has relied upon the case-law reported as "Muhammad Hayat Superintending Engineer v. Government of West Pakistan PLD 1964 Lahore 264 to urge that unless provided in the law, no second inquiry is permissible. It was urged that section 8 of the Sindh Removal from Service (Special Power) Ordinance, 2000 does not provide for any second inquiry as against contemporary provision per Second Proviso to section 8, of Punjab Removal from Service (Special Power) Ordinance, 2000, where second inquiry is envisaged, provided re-inquiry is ordered within 30 days for the reasons to be recorded in writing. She has drawn our attention to a case reported in Khalida Amjad v. Government of Punjab 2009 PLC (C.S.) 1, wherein it was held that where the successive inquiry was not initiated within thirty (30) days as provided in the second proviso to section 8 of the Punjab Removal from Service (Special Power)
Ordinance, 2000, order passed after cut-off date was struck down. Indeed in all the similar Ordinances issued by the Federation and respective provinces in analogous Ordinance for the removal of their employees two proviso added to section 8 in the Punjab Ordinance, 2000 are not explicitly available, whereby in Punjab the authority is invested with power to afford person an opportunity of being heard and secondly the authority may for the sufficient reasons to be recorded within 30 days may remand the inquiry with such directions as may be appropriate including for de novo proceedings.
7. Mr. Zain Jatoi, learned counsel for respondent No,2, contended that the impugned inquiry termed as "second inquiry" is in fact the first inquiry after the Fact-Finding Report given by the Authority concerned. It is urged that in the "Fact Finding", no proper trial and proceedings were initiated and through impugned inquiry order, the matter would be inquired into alleged inefficiency, misconduct and corruption of the petitioner or otherwise. In aid of his contention, he has placed reliance on the case-law reported in M. Siddique Mirza v. Assistant Director E.E Cell (FIA) 1990 MLD 1588 and Mansoor Ahmad v. The State 2003 MLD 1050, in the first mentioned case the petitioner therein were being proceeded departmentally in earlier F.I.R. They were not nominated, in second F.I.R. Registered under the Customs Act matter was being investigated learned Division Bench refused to stop the investigation. In the second case where the accused was being proceeded by the Military Court on lifting of Martial Law, he was being prosecuted by ordinary criminal Court, Court rejected the argument holding that where the accused was neither acquitted not convicted before any forum principle of double jeopardy, enshrined under Article 13(a) of the Constitution, 1973 does not apply. Mr. Zain therefore, urged that second inquiry is not prohibited and same could be carried out, as the first did not culminate into any conviction or exoneration. It may be observed that the cases cited by the learned counsel have no bearing in the instant service matter.
8. Mr. Mian Khan Malik, learned D.A.-G. And Mr. Raja Muhammad Iqbal, learned counsel for respondents Nos.3 and 4 have supported and adopted the arguments advanced by Mr. Zain Jatoi, learned counsel for respondent No,2.
9. We have heard the arguments of learned counsel for the parties, pursued the material available on record and thoroughly examined the reported case-laws cited at bar.
10. From record it appears that the Federal Board of Revenue through letter dated 11-11-2009 ordered "a Fact-finding inquiry" to determine the role of the examination staff, who signed the Goods Declaration No, KAPR-HC-30059 dated 22-10-2009. Fact-finding Report dated 11-12-2009 annexure 'A' to the Petition was submitted. Consequently concerned examination staff has been posted out and placed at non-public dealing position vide office order dated 12-12-2009, which was followed by formal order of inquiry dated 28-1-2010 impugned herein.
11. Contention of learned counsel for the petitioner that impugned inquiry is the second inquiry as evidence was also collected by the Inquiry Officer. We have given anxious consideration to the contentions of learned counsel for the parties.
12. Admittedly prior to impugned inquiry order, no show-cause notice was issued either to the petitioner or to any of the concerned examination staff. In order to appreciate the contentions of Ms. Poja, we have examined the `Annexure A' to the petition. It shows that the record of subject consignment was examined by the officer himself, statement of the Petitioner and other concerned examination staff were recorded. The Probing Officer in the report opined 'However, negligence on the part of the examining staff could not be ruled out as they failed to appreciate that the impugned container was not examined at all". The report did neither fix any responsibility nor did charge any person nor recommend any action against any of the examination staff. Fact-finding or preliminary inquiry cannot be equated or be substituted for a formal inquiry envisaged under section 5(1) of the Removal from Services (Special Powers) Sindh Ordinance, 2000 (abbreviated as Sindh RSO, 2000). Therefore it cannot be said that any inquiry within the contemplation of Sindh RSO, 2000 was held. In instant case what was termed as first inquiry, was in fact preliminary or Fact-finding inquiry, which was taken into consideration where upon the authority decided to initiate formal enquiry envisaged under the Sindh RSO, 2000 impugned in the instant petition.
13. In many a situation competent authority is confronted with the wrong doing or delinquency or the staff working under its subordination. In all such cases it is not always possible to straight away fix the responsibility or charge any one of the transgression, misconduct or wrongdoing complained of or that may come to its notice. In all such cases where the competent authority is not clear as to delinquency of an employee, before formally charge-sheeting the delinquent, may consider expedient to carry a fact-finding or preliminary inquiry. Fact-finding or preliminary inquiry neither exonerates nor punishes the delinquent, it only enable the authority to objectively make a decision whether substantial material and justification exists to embark upon formal departmental disciplinary proceedings within the contemplation of disciplinary law. Purpose of preliminary or fact-finding or preliminary inquiry is neither to exonerate nor to punish the delinquent, it is only held for the purpose of collecting evidence in support of allegation for holding regular inquiry under relevant disciplinary rules and or regulations. Fact-finding or preliminary inquiry is not compulsory but it depends on case to case basis, and where the competent authority is prima facie convinced that there is substantial material before it to proceed against the delinquent, there is no need to embark on fact finding expedition and regular inquiry could be initiated directly. No procedure is prescribed to hold such fact-finding inquiry, delinquent may or may not be examined, it may be exparte, and it all depends on the nature delinquency complained of. However, if any material or evidence collected during fact-finding process is to be used to charge-sheet the delinquent, it has to be confronted to the delinquent in a formal inquiry, otherwise evidence collected behind the back of the delinquent cannot be used against such person. In the case of Province of Punjab v.
Abdul Rehman Durrani PLD 1979 SC 711 honourable Supreme Court dispelled contentions similar to one urged before us "that the West Pakistan Government Servant (Efficiency and Discipline) Rules 1959 did not contemplates any inquiry in the absence of the accused official, whereas the report of the S.P. And D.I.-G. And I.-G. Were based on ex parte and secret inquiry or inquiries which were from that point of view nullity in the eyes of law, apex Court at page 718-719 dispelled the contentions as follows;-- ' We have carefully considered these pleas but we must say that we have not been able to find any merit in them. Taking up the question whether there was any warrant or authority for holding of an inquiry or for putting up report on the part of the S.P. And other higher Police Officers it may be mentioned that the said inquiries or reports were nothing but just of a nature of a preliminary probe into a complaint brought to the notice of the concerned authorities by the Deputy Commissioner of the District. In our view when the competent authority had to form any opinion under rule 4 of 1959 Rules whether "there are reasonable grounds for believing that a Government Servant is liable to be dismissed removed, reduced in rank or compulsorily retired under rule 3 "namely (confining to the facts of this case) he "is corrupt or may reasonably be considered to be corrupt", warranting initiation of formal departmental proceedings against him the competent authority had to do so obviously on the basis of some material which may have been collected by the concerned quarters and which had to be placed before him. The very requirement of seeing the existence of reasonable grounds and the entertainment of the requisite belief implied that the authorities concerned will collect and will have the power to collect the relevant material for placing the same before the competent authority, to enable him to form an opinion on the subject aforesaid. However, there was no provision in 1959 Rules that the accused official was also to be associated in the aforesaid preliminary probe or collection of material or that the said probe had to be made in his presence . The mere fact therefore that the plaintiff was not fully associated in those preliminary probes did not detract anything from the power of the competent authority to issue a charge sheet to a Government official who had been in the aforesaid manner reported against. (Underlined to add stress)
14. In the case of Champaklal Chimanlal Shah v. Union of India AIR 1964 SC 1854 Indian Supreme Court held that preliminary inquiry is really for the satisfaction of the employer to enable him to decide whether punitive action should be taken and for the purpose of collections of facts in regard to conduct and work of the employee, so that the employer may decide whether or not to hold inquiry. It was further held that it may be held ex parte, since it is merely for the satisfaction of the employer. In the case of Inspector-General of Police v. Shafqat Mehmood 2003 SCMR 207 punitive action of dismissal on the basis of fact-finding inquiry, in which civil servant was not associated was disapproved by the Services Tribunal and upheld by the Supreme Court.
15. In the case in hand contention of the learned counsel for the petitioner is that the petitioner was transferred as a consequence of the inquiry he cannot be punished twice. It may be observed that only punishment recognized under the respective Provincial and Federal RSO 2000 is dismissal, removal, premature retirement or reduction to lower rank or pay scale. Under section 4 ibid a person could be placed under suspension against whom an action is proposed to be taken under section 3(1) (ibid) even in appropriate cases authority may require him to proceed on leave as may be admissible to him, transfer and position of civil servant is but incidental to terms and conditions of service and cannot be treated or construed as a punishment or penalty, therefore, contention of Ms. Puja that petitioner was earlier punished by way of transfer cannot be subscribed.
16. It may be observed that, where authority is possessed of sufficient documentary evidence against the delinquent and for the reasons to be recorded in writing, it is satisfied that there is no need of holding an inquiry, may also dispense with holding inquiry, before inflicting any penalty under the law. However, where no such tangible material is available before forming an opinion as to guilt or otherwise of a delinquent on any count under section 3 of the RSO, 2000 the authority may carry out investigation into allegations/charges through Inquiry Officer/Committee. The Inquiry Officer/Committee may scrutinize the conduct of delinquent, who is alleged to have committed any act of omission or commission specified under section 3 ibid, by giving him fair opportunity of showing cause, examine oral or documentary evidence in support of charge or in defense and after being heard give a finding on the charges. Admittedly no charge-sheet or show- cause notice was issued to the Petitioner prior to the order in inquiry dated 28-1-2010 impugned herein, charging the petitioner of the acts of omission and commission constituting inefficiency, misconduct and corruption detailed therein. Petitioner before replying to charge has invoked the jurisdiction of this Court.
17. In view of the foregoing discussion we do not find any merits in the petition same is dismissed.
Petitioner is directed to file written defence within 7 days from today in terms of clause (b) to subsection (1) of section 5 of the Sindh RSO, 2000. The Inquiry Committee may inquire into charge, examine evidence and after giving the petitioner fair opportunity of being heard and to lead or produce evidence in defence, if he so chooses, conduct and conclude the inquiry and submit its finding and recommendation to the competent authority strictly in accordance with law. Parties to bear their own costs.