The petitioner Khalid Mehmood, Senior Auditor, working in Collectorate of Customs, Sales Tax Wing, Vehari Chowk, Multan has through this Constitutional petition assailed the orders dated 22.4.2003 and notice dated 5.7.2003 issued by Respondent No. 2 that the same were passed in violation of law and without lawful authority.
2. Briefly stated facts as those emerge out of this petition are that petitioner joined the respondent department in the year 1998 as Senior Auditor. A case bearing FIR No. 37/99 was registered under Section 5(II) of the Prevention of Corruption Act 1947; read with Sections 468, 471, 109, 409, 161 CPC at Police Station FIA, Multan wherein number of persons including the petitioner were involved as accused persons. The petitioner was arrested and interrogated by FIA and after three months petitioner was released on bail allowed to him by this Court.
3. On the basis of registration of aforesaid criminal case, the departmental proceedings were also initiated against him by issuance of charge sheet dated 20.7.2000 to which he submitted a detailed reply denying the charge contained therein. The inquiry was initiated vide order dated 3.10.2000 against the petitioner and two others under the Government Servant (E&D) Rules 1973. A show-cause notice, subsequently was issued on 47.10.2001 which was replied by the petitioner explaining his position, the petitioner, however during the course of inquiry was found innocent and thus exonerated. But still vide order dated 30.6.2002, the petitioner was terminated by the Respondent No. 3 under Rule 4 (1)(b)(4) of Government Servants (E&D) Rules 1973 with retrospective effect i.e. 27.11.1999, when the petitioner was suspended, where against the petitioner filed a departmental appeal before Respondent No. 1/Appellate Authority which was allowed vide order dated 21.4.2003 and the order of the penalty dated 30.6.2002 passed by authority was set aside. Consequently, the petitioner was reinstated in service.
4. The grievance being voiced through this Constitution petition is that inspite of exoneration of the petitioner during the course of inquiry and acceptance of his appeal, again disciplinary proceedings vide order dated 7.5.2003 were issued under some alleged direction from the Revenue Division, of the Central Board of Revenue dated 22.4.2003. These two orders are being assailed through this Constitution petition.
5. This petition was admitted to regular hearing on 20.5.2003, on which date, operation of impugned orders was also suspended.
6. It is inter-alia contended by Sardar Muhammkd Sarfraz Doger, Advocate learned counsel for the petitioner that the proceedings were initiated under the provisions of Government Servants (E&D)
Rules 1973 and also concluded under the same law, therefore, no proceedings under the provisions of Removal From, Service (Special Powers) Ordinance, 2000 could be initiated afresh; that proceedings once initiated and concluded under the relevant old law could not be converted into the law subsequently enacted; that petitioner having once faced the charges/agony of inquiry, the matter stood concluded after his exoneration and finally by acceptance of his departmental appeal, became a past and closed chapter/transaction, therefore, no fresh proceedings on the basis of same allegations could be initiated particularly hen the order of appellate authority was not assailed; before higher forum and the same had attained finality by efflux of time that the petitioner under the law could not be vexed twice. The same is also violative of Article 13 of the Constitution of Islamic Republic of. Pakistan, in support of his contentions places, reliance upon Wali Muhammad Vs. General Manager Electricity WAPDA Lahore etc: (PLD 194). W.P. Peshawar 167.
Ch. Munawar Hussain Bhatti Vs. Pakistan Water & Power Development Authority and four others (1983 PLD OCS) 266 and water & power Development Authority Vs. Muhammad Ali (1987 SCM R 261)
Muhammad Nawai Vs. District & Sessions Judge etc. (2003 SCM R 1720).
7. Conversely, learned DAG of Pakistan has vehemently opposed the submission made at bar by learned councel for the petitioner but could not rebut the arguments of learned counsel for the petitioner with the support of some case law.
8. Arguments heard. Record perused.
9. The following issues to my mind need adjudication by this Court:--
(a) Whether the proceedings once having been initiated and concluded under some law applicable at the relevant time, could be converted info subsequently enacted law.
(b) Whether the proceedings against a Civil Servant, once concluded and having attained finality, could be re-initiated on the same charges?
(c) Whether a civil servant can be vexed twice?
(d) Whether in view peculiar facts and circumstances of the case the impugned order could be justifiably passed?
10. Adverting to the first proposition, first admittedly the proceedings against the petitioner were initiated under the provisions of Government Servants (E&D) Rules, 1973. During the year 1999 and were concluded under the provisions of said rules, when the Removal From Service (Special Powers) Ordinance, 2000 was not even in existence. The same, therefore, under the law could not be switched over to RSO 2000, Section 13 whereof is reproduced for ready reference:-- 'Pending proceeding to continue ... For the removal of doubt, it is hereby provided that all the proceedings pending immediately, the Civil Servants Act (LXXI of 1973) and rules made there under or any other law or rules, shall continue under the said laws and rules and as provided there."
11.Admittedly, the Government Servants (E&D) Rules, 1973 were framed by the President of Pakistan in exercise of powers conferred upon him by Section 25 of Civil Servants Act, 1973 (LXXI of 1973), therefore, the afore-referred provisions of Section 13, do cover cases initiated or concluded under the Rule 1973.
12.Coming to the second Issue, law on the subject is very clear it is not only the cardinal principal of law rather a right guaranteed by Constitution to every citizen of Pakistan, therefore, the proceedings once having attained finality cannot be re-opened except in accordance with law and no provision exists either in the (E&D) Rules 1973 or the appeal rules which authorize to departmental authorities to re-open the past and closed chapter. Article 13 of the Constitution of Islamic Republic of Pakistan for ready reference is re-produced hereunder:-- "No Person (A) shall be prosecuted or punished for the same offence more than once."
13.Coming to the last query in view of above discussion answer to this issue is very simple which is in the negative. The proceeding against the petitioner neither could be switched from Rule, 1973 to Special Order 2000 nor could he be vexed twice thus issuance of fresh notice/impugned orders are illegal rather ab-initio void; Law cited by Sardar Muhammad Sarfraz Dogar learned counsel for the petitioner is fully attracted in view of the facts and circumstances of the case. In the cited case of Muhammad Nawaz referred to Supra (2003 SCM R 1720) their Lordship observed as follow: "The contention appears to be correct, for Section 13 of the Ordinance is explicit on the point that disciplinary proceedings initiated prior to coming into force of the said Ordinance were to be completed under (E&D) Rules and not under this Ordinance."
14.In view of the above this petition is allowed the order impugned dated 22.4.2003 and 7.5.2003 passed by the respondent vide, which fresh proceeding have been initiated against the petitioner are hereby declared to be illegal, unlawful, arbitrary, mala fide, without lawful authority, hence of no legal effect, consequently, the same are hereby set aside. No order as to costs.