' SHAHID MUBEEN, J. --- Through this Petition under Article 199 of, the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have challenged the vires of order dated 09.03.2011 passed by learned Punjab Labour Appellate Tribunal, Lahore and judgment dated 31.08.2009 passed by the learned Labour Court No. 6, Rawalpindi,
2. Brief facts of the case are that respondent No. 1 was appointed as Naib Qasid on. 01 .01.1984 in the petitioners bank, subsequently, promoted as Cashier in the year 1988 and, thereafter, his services were terminated vide order dated 29.08.2002. The respondent No. 1 after receiving termination order filed departmental appeal on 12.09.2002, however, same was rejected vide order dated 05.10.2002. Feeling aggrieved with the said order, he filed an appeal before learned Federal Services Tribunal which was dismissed on the point of jurisdiction vide order dated 30.04.2004. The respondent No. 1 filed an appeal before august Supreme Court of Pakistan against the order dated 30.04.2004 passed by learned Federal Services Tribunal which was accepted and matter was remanded to learned Federal Services Tribunal for its decision afresh, in accordance with law.
During the pendehcy of appeal before learned Federal Services Tribunal, on the basis of judgment dated 27.06.2006 of the august Supreme Court of Pakistan, the appeal of respondent No. 1 was abated. The abatement wad communicated to respondent No. 1 vide notice dated 14.07.2006. The respondent No. 1 after availing the period of 90-days granted by the august Supreme Court of Pakistan vide above judgment, filed the grievance petition before the learned Presiding Officer Punjab Labour Court, Rawalpindi on 25.09.2006.
3. The grievance petition was vehemently contested by the petitioners by maintaining that the petition is incompetent as well as barred by time on merits and asserted that respondent No. 1 was charge-sheeted lawfully. In an inquiry conducted by the bank he was found guilty and his services were rightly terminated in accordance with law.
4. The parties led their evidence pro and contra to prove their respective contentions. The grievance petition of respondent No. 1 was partly accepted vide order dated 31.08.2009 passed by Presiding Officer, Punjab Labour Court, Rawalpindi and the order of termination was converted into the compulsory retirement from the date of order passed by the respondent No.
3. However, it was held that the respondent shall not be given wages from date of termination till 31.08.2009. Feeling aggrieved from the impugned order dated 31.08.2009 both the parties preferred appeals. Learned Punjab Labour Appellate Tribunal vide judgment dated 09.03.2011 accepted the appeal of respondent No. 1 and compulsory retirement of respondent No. 1 was converted into the stoppage of his three annual increments. Further relief given to respondent No. 1 was that 50% back benefits were also allowed during the period he remained out of job. The appeal filed by the petitioners' bank was dismissed. Feeling aggrieved from the impugned judgments, the petitioners have instituted the present writ petition.
5. It is contended by the learned counsel for the petitioners that competent authority is fully competent to convert the penalty of compulsory retirement into the termination. It is further contended that the findings of the inquiry officer is not binding on the authority.
6. On the other hand, it is contented by the learned counsel for respondent No. 1 that the allegations levelled against the respondent No. 1 are false and baseless and the impugned termination order was passed in violation of mandatory provision of law. It is further contended that despite the fact that the inquiry officer after completion of inquiry had recommended for compulsory retirement of respondent No. 1 from service but the competent authority while disagreeing with the findings of the inquiry officer imposed major penalty of termination upon the respondent No.
1. Lastly the learned Assistant Advocate General and the learned counsel for respondent No. 1 have supported the impugned judgments.
7. Heard. Record perused.
8. The contention of the learned counsel for the petitioners that the findings of the inquiry officer are not binding on the authority has no force. The authority while enhancing penalty from compulsory retirement into termination must have given reasons in letter dated 29.08.2002 but it is lacking in the instant case. It is established law that if the competent authority wants to enhance penalty then reasons must be given. Reliance is placed on "Secretary, Government of Punjab (C&W) and others v. Lkramullah" (2013 PLC (CS) 801). The relevant portion is reproduced as under:- "Having heard learned Law Officer and learned counsel for the respondents, we find that a two member committee comprising of senior officials of the C&W Department was constituted to inquire into the allegations levelled against the respondents and the said committee in the detailed report has discussed the role attributed to the respondents in the light of the evidence recorded during inquiry and came to the conclusion in case of respondent in Civil Petition No. 733- L of 2012 (Ikram Ullah) that none of the charges stood proved; in case of respondent in Civil Petition No. 737-L of 2012 (Iftikhar Ahmed) that some charges were proved and it recommended minor penalty of withholding of two increments for two years; in case of respondent in civil Petition No. 755L of 2012 (Syed Atta Hussain) that some of the charges were proved and minor penalty of withholding of one increment for one year was recommended; in case of respondent in Civil Petition No. 1988-L of 2012 (Ameen Ahsan Shah) that some of the charges were proved, some were partially proved and one charge was not proved and it recommended reduction of three stages in his pay scale and withholding of promotion for three years when due; in Civil Petition No. 1989-L. Of 2012 (Qazi Altaf Hussain Shah) that some of the charges were proved, some were partially proved and one charge was not proved and it recommended penalty of reduction by two stages in pay scale and withholding of promotion for three years when due. Similarly in Civil Petition No. 1990-L of 2012 (Asif Shaheen Khan) one charge was proved and four other charges were not proved and it recommended minor penalty of withholding of two increments for one year. The 'Competent Authority without assigning any reason to disagree with the findings of the Committee with reference to the evidence collected enhanced the penalty and converted the same into major penalties as indicated in column No. 4 of the chart referred to in para 3 above. There is no cavil to the proposition that the competent authority on receipt of the report from inquiry officer of the inquiry committee can proceed in any of the options available to him in terms of sub-sections (2) to (8) to Section 13 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006.
However; while doing so, it has to follow the procedure laid down therein and if it proposes to enhance the penalty it has to give reasons germane to the charges levelled and the evidence collected during inquiry and that too with reference to the liability of each of the officers who were inquired into. Unfortunately the Competent Authority did not give any reason whatsoever except that he gone through the record and the defence pleas of the respondents and had also personally inspected the road, defective construction of which was a moot point during inquiry.
Mere deplorable condition of the road at site was not enough to hold each respondent guilty unless the Competent Authority specifically had referred to the role and liability of each one of the respondents in the light of material / evidence collected during inquiry. Learned Law Officer on Court query, could not dispute the fact that the competent authority neither gave any reason for enhancing the penalty nor apportioned the liability of each of the respondents specifically. Even the site inspection of the road was carried out, it is not denied by the learned Law Officer, after four years of the completion of the said project and that too in absence of the respondents."
9. Reliance is also placed on "Asif Yousaf v. Secretary Revenue Division, CBR, Islamabad and another" (2014 SCMR 147). The relevant portion is reproduced as under:--- "There is no cavil to the proposition that the Competent Authority is not bound by the recommendation of Inquiry Officer qua the award of penalty to the accused officer. However, while disagreeing and awarding higher penalty than recommended by the Inquiry Officer, he has to firstly provide opportunity of hearing to the accused officer and secondly, he has to pass a reasoned order with conscious application of mind. The tenor of the order passed to which reference has been made above indicates that although the Inquiry Officer had found the appellant to be negligent in his conduct and the charge of "mal-administration" was not proved yet the Competent Authority while awarding him major penalty of dismissal from service found that "there was substantial evidence on record to prove the charges". There is no reference to the evidence or material which found favour with the Competent Authority to award major penalty of dismissal from service. Admittedly there was no allegation that the accused officer was guilty of corruption or of financial gain."
10. The concurrent findings of fact recorded by the two Courts below do not suffer from any mis- reading and non-reading of evidence available on the record.
11. Sequel to the above, this petition having no force is dismissed leaving the parties to bear their own costs.