' FAISAL ZAMAN KHAN, MEMBER --- This appeal under Section 5 of the Punjab Subordinate Judiciary Service Tribunal Act, 1994 calls in question notification No, 68/RHC/AD&SJ, dated 28.03.2011 issued by respondent No, 1 on behalf of the Administration Committee of the Lahore High Court, Lahore (AC), whereby appellant has been awarded major penalty of compulsory retirement from service.
2. Succinctly, the facts of the case are that appellant was appointed as Civil Judge in 1988, was promoted as Senior Civil Judge in 2001 and lastly was promoted as Additional District & Sessions Judge in 2003. In pursuance of a complaint filed by ex-Civil Nazir, Civil Court, Khanewal against the appellant, initially a show-cause notice dated 07.08.2009 was issued to the appellant under the Punjab Civil Servants (Efficiency & Discipline) Rules, 1999 (Rules) dispensing with the regular inquiry upon which reply was filed by the appellant, whereafter, the said notice was withdrawn.
Subsequent thereto, on 05.12.2009, a fresh charge-sheet was issued and a regular inquiry was ordered to be conducted, whereupon, District & Sessions Judge, Multan was appointed as Inquiry Officer, who conducted a detailed inquiry and on 26.07.2010 while making recommendations proposed imposition of minor penalty of withholding of promotion of the appellant for a period of four years. Thereafter, for imposition of recommended penalty Inquiry Officer issued a show-cause notice to the appellant which was duly replied, whereafter, complete inquiry proceedings, show cause notice and the reply were forwarded to respondent No, 1 for placing it before the A.C.
3. On 30.08.2010, a show-cause notice for enhancement of penalty was issued by respondent No, 1 on behalf of the AC upon which a reply was filed by the appellant which was found unsatisfactory, whereupon, on 18.01.2011, a final show-cause notice was issued to the appellant, which was duly replied, whereafter, the Hearing Officer conducted the hearing and recommended imposition of major penalty. Consequently vide notification dated 28.03.2011, major penalty of compulsory retirement was imposed. Feeling aggrieved a review petition was filed on 11.04.2011, which was not decided within the stipulated time, therefore, this appeal.
4. Learned counsel for the appellant submits that AC had no lawful authority under the law to issue notice of enhancement of penalty; that the AC could assume jurisdiction to enhance punishment if the inquiry officer had imposed minor penalty; and, that since the minor penalty was not imposed, the subsequent proceedings culminating in the impugned notification are void ab initio.
5. Replying to the above, learned counsel for the respondent submits that the penalty, which has been enhanced by the AC is in accordance with law, therefore, this appeal is not maintainable.
6. Arguments heard. Record perused.
7. The question which falls for determination in the present lis is whether the AC could issue a notice for enhancement of penalty or enhance the penalty especially so when no minor penalty was imposed/awarded by the inquiry officer and a mere recommendation was made.
8. The said question is in the nature of threshold question and, therefore, its answer would determine the fate of the present case In order to find out the answer to the question, under discussion, it is imperative to examine Rule 7(7)(a) of the Rules, which reads as under-- "7(7)(a) The Inquiry Officer/Inquiry Committee shall within 10 days of the conclusion of the proceedings, in terms of sub-rule (6) determine whether the charge has been proved, if it is proposed to impose a minor penalty, the Inquiry Officer or the Inquiry Committee, as the case may be, shall, after affording the accused an opportunity of showing cause against the action proposed to be taken against him, pass order accordingly and inform the authority of the action taken by it and send the whole record of the case. The authority, if dissatisfied, with the quantum of the punishment, awarded to the accused or for any other reason may within 30 days of the receipt of the case, order initiation of de novo inquiry or it may enhance the penalty after affording the accused a chance of being heard in person. If no order is passed within the stipulated period the minor penalty awarded by the Inquiry Officer/Inquiry Committee, as the case may be, shall attain finality.
(Emphasis supplied)
(b) If it is proposed to impose a major penalty, the Inquiry Officer or the Inquiry Committee shall, after affording the accused an opportunity to offer explanation against its recommendations for imposition of major penalty, forward the case to the authority a longwith the charge-sheet, served on the accused, explanation of the accused, the findings of the Inquiry Officer or Inquiry Committee, with its recommendations regarding the penalty to be imposed.
(c) In case it is proposed to drop the proceedings, the Inquiry Officer or the Inquiry Committee shall submit the case to the authority. The authority may, within a period of 15 days either accept the recommendations of the Inquiry Officer or the Inquiry Committee, as the case may be or it may order initiation of a de novo inquiry by passing a speaking order. "
9. From the above narrative, it is evident that once inquiry is completed by the Inquiry Officer/Inquiry Committee, as the case may be, within 10 days of the conclusion, if the charges are proved and a minor penalty is recommended, after issuance of show-cause notice, the Inquiry Officer/Committee shall pass order imposing minor penalty accordingly and then inform the authority of the action taken by it by way of sending the complete record to the authority. In case the authority is not satisfied with the quantum of punishment awarded, it may within 30 days of the receipt of the case may either initiate de novo inquiry or issue notice for enhancement of penalty.
10. In the case in hand, although the Inquiry Officer recommended minor penalty of withholding of promotion for four years for imposition of which he issued a show cause notice as contemplated in the afore-noted Rule which was duly replied, yet he never imposed the said penalty and instead sent the record to the authority.
11. At this stage it would be apposite to cite celebrated principle/maxim of law i.e, A communi observatia non est recedendum (Where a thing was provided to be done in a particular manner it had to be done in that manner and if not so done, same would not be lawful.) . The said principle has been sufficiently dilated upon and interpreted by the Honourable Supreme Court of Pakistan in judgments reported as Mansab Ali v. Amir and 3 others (PLD 1971 S.C. 124), Rashid Ahmad v. The State (PLD 1972 S.C. 271), Shabbir Ahmad v. Mst. Kabir-un-Nisa and others (PLD 1975 S.C. 58), Muhammad Akram v. Mst. Zainab Bibi (2007 SCM R 1086) and Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 SC 255).
12. In the light of above-said principle of law, the authority could only issue notice for enhancement of penalty once minor penalty is awarded/imposed by Inquiry Officer and upon receipt of record, if the authority comes to the conclusion that the punishment awarded was insufficient or it does not commensurate with the offence which has been committed by the Judicial Officer only then they can exercise the power conferred under the Rule for enhancement of penalty.
13. In the present case, the Inquiry Officer failed to impose any minor penalty, which could be enhanced by the authority, therefore, the authority/AC had no jurisdiction to issue a notice for enhancement of penalty. In the attending circumstances-, we are constrained to hold that in the instant case the authority exceeded its jurisdiction vested in it by issuing a notice for enhancement of penalty on the basis of whidh the impugned notification awarding major penalty to the appellant was issued.
14. The upshot of the above discussion is that since the notice for enhancement of penalty issued by the authority/AC was without lawful authority and jurisdiction as no penalty was awarded by the inquiry officer which could be enhanced thereof the impugned notification is not sustainable and is, therefore, set aside. Since the appellant had attained the age of superannuation (25.10.2013) during the currency of this appeal, no order of reinstatement can be passed.
15. In the above terms, this appeal is accepted.