By way of this writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 29.09.2012 passed by respondent No.2/Se cretary , Agriculture Department (Marketing Wing), Lahore whereby major penalty of removal from service in terms of Section 4(b)(v) of Punjab Employees Efficiency , Discipline and Accountability Act, 2006 (PEEDA Act, 2006) was imposed upon the petitioner and order dated 28.01.2013 passed by respondent No.1/The Chief Secretary , Govt . of the Punjab, Lahore whereby the appeal preferred by petitioner was rejected.
2. Tersely , the facts relevant for the dispo sal of this writ petition are that petitioner had been performing his duties as Inspector in Market Committee, Haroonabad for the last 28 years. While posted at Haroonabad the petitioner was directed by respondent No.3 vide letter dated 14.02.201 1 that shops be got constructed at the place of Sub Office, Faqirwali but he refused to do so as prior sanction is required for demolishing of building and construction of shops and it is the responsibility of Secretary/Administrator to get sanction from the higher authorities as well as to solve the matters legally. Vide letter dated 08.06.2011, the petitioner was again directed to do the needful with a warning that in case of failure the action will be taken against him but the petitioner again refused to do so.
Thereafter, respondent No.5 conducted an inquiry of this case against the petitioner and recommended imposition of major penalty of compulsory retirement from service upon the petitioner in terms of Section 4(b)(iv) of the PEEDA Act, 2006 to respondent No.2 who vide impugned order dated 29.09.2012 while disagreeing with the recommendation of Inquiry Officer, imposed major penalty of Removal from Service upon the petitioner in terms of Section 4(b)(v) of PEEDA Act, 2006. Feeling aggrieved, the petitioner filed departmental appeal before respondent No.1 which met with the same fate and was rejected vide impugned order dated 28.01.2013. Hence, this writ petition.
3. It is contended by learned counsel for the petitioner that competent authority awarded major penalty of Removal from Service to the petitioner in terms of Section 4(b)(v) of the PEEDA Act, 2006 which is not in consonance with the penalty recommended by the Inquiry Officer i.e. Compulsory Retirement from Service in terms of Section 4(b)
(iv) of the PEEDA Act, 2006. Further contends that competent authority has passed the impugned order without assigning any reasons while differing from the penalty imposed by the inquiry officer.
4. Conversely, learned AAG contends that petitioner is a civil servant and writ petition is not competent as remedy lies with the Punjab Service Tribunal under Section 4 of the Punjab Service Tribunal Act, 1974 which provides remedy of filing appeal before the Service Tribunal if any civil servant is aggrieved by any final order, whether original or appellate made by a departmental authority in respect of any of the terms and conditions of his service. Further contends that the competent authority has jurisdiction under Sub-section 4 of Section 13 of the PEEDA Act, 2006 to pass such an order.
5. I have heard learned counsel for the parties and perused the record minutely .
6. The Inquiry Officer after holding regular inquiry recommended imposition of major penalty of Compulsory Retirement from Service upon the petitioner in terms of Section 4(b)(iv) of the PEEDA Act, 2006 whereas competent authority vide impugned order dated 29.09.2012 imposed major penalty of Removal from Service upon the petitioner in terms of Section 4(b)(v) of PEEDA Act, 2006. To resolve controversy , it will be advantageous to reproduce herein below Sub-section (4) of Section 13 of PEEDA Act, 2006:- "(4) Where the charge or charges have been proved against the accused, the competent authority shall issue a show cause notice to the accused by which it shall-
(a) inform him of the charges proved against him and the penalty or penalties proposed to be imposed upon him by the inquiry officer or inquiry committee;
(b) give him reasonable opportunity of showing cause against the penalty or penalties proposed to be imposed upon him and to submit as to why one or more of the penalties as provided in section 4 may not be imposed upon him and to submit additional defense in writing, if any, within seven days of the receipt of the notice, before itself or the hearing officer , as the case may be;
(c) indicate the date of personal hearing or appoint a hearing officer to afford an opportunity of personal hearing on his behalf; provided that the hearing officer shall only be appointed where the competent authority is of the rank of Secretary to Government of the Punjab or above.
(d) provide a copy of the inquiry report to the accused; and
(e) direct the departmental representative to appear , with all the relevant record, on the date of hearing before himself or the hearing officer , as the case may b e."
7. There is no cavil to the proposition that the competent authority is not bound by the recommendations of Inquiry Officer qua award of penalty to the accused officer, however , while disagreeing and awarding higher penalty than recommended by the Inquiry Officer, the competent authority has to pass a reasoned order with conscious application of mind. It will not be out of place to mention here that there is no reference to the evidence or material which found favour with the competent authority to award major penalty of dismissal from service to the petitioner differing from Inquiry Officer who recommended imposition of major penalty of Compulsory Retirement from Service upon the petitioner . The compete nt authority has not recorded any reason as to why he was not inclined to agree with the findings of the Inquiry Of ficer.
8. In case law titled as "Khalid Mansoor v.Director, F.I.A., Rawalpindi and another" (2008 SCMR 1174), the Inquiry Officer recommended imposition of major penalty of reduction to lower stage in time scale for a period of three years upon the appellant, howev er, while disagreeing with the recomme ndation of Inquiry Officer, the competent authority imposed major penalty of dismissal from service upon the appellant. The Hon'ble Supreme Court of Pakistan, while dealing with the said case held as under:- "However , we find force in the contention of learned counsel for the appellant that the competent authority imposed major penalty upon the appellant without recording specific reasons of disagreement with the recommendations made by the Inquiry Officer and instead of adjudicating upon the question involved, added the additional charges which were neither contained in the order of inquiry nor in the statement of allegations or even in the final show- cause notice. The responsibility , in our considered view, could not have been solely placed on the appellant' s shoulders. The recommendations of the Inquiry officer should have been given respect."
In another case law reported as "Muhammad Saleem v. Federation of Pakistan through President, President' s Secretariat, Islamabad and 3 others" (2007 SCMR 1008 ), while dealing with the same situation, the Hon'ble Supreme Court of Pakistan held as under:- "It is also an admitted fact that competent authority without giving any show-cause notice or recording any reason for dissenting with the penalty recommended by Authorised Officer imposed the major penalty of dismissal from service upon appellant, which is not sustainable in law and against the settled norms of justice. This Court in the case of Samiuddin Qureshi referred (supra) while dealing with this aspect of the matter held that the order of dismissal must be based on some evidence."
In latest pronouncement by the Hon'ble Supreme Court of Pakistan in case law titled as "Secretary , Government of Punjab (C&W) and others v. Ikramullah and 5 others" (2013 PLC(C.S.) 801) wherein minor penalty of Censure was recommended by the Inquiry Comm ittee which was reversed by the competent authority by awarding major penalty of reduction to lower post i.e. from Executive Engineer to Sub Divisional Officer for a period of five years, it has been held as under:- "There is no cavil to the proposition that the competent authority on receipt of the report from the inquiry officer of the inquiry committee can proceed in any of the options available to him in terms of subsection (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 leveled and the evidence collected during inquiry and that too with reference to the liability of each of the officers who were inquired into."
9. The contention of learned Assistant Advocate General that writ petition is not competent under Article 199 of the Constitution of Islamic Republic of Pakist an, 1973 in view of bar contained in Article 212 of the Constitution as the petitioner is a civil servant according to Rule 70(6) of the Punjab Agricultural Produce Markets (General) Rules, 1979, has been completely answered in case titled as "Muhammad Amin and another v. Govern ment of Punjab and others" (2015 SCMR 706 ). Relevant portion of the judgment is reproduced herein below:- "We observe that the Market Committees do not have any statutory service Rules to regulate terms and conditions of service of their employees.
6. Section 2(h)(i) of the Punjab Employees Efficiency , Discipline and Accoun tability Act, 2006, provide that "employee" means a person (i) in the employment of a corporation, corporate body , autonomous body , authority , statutory body or any other organization or institution set up, established, owned, managed or controlled by the Government, by or under any law for the time being in force or a body or organization in which the Government has a controlling share or interest and includes the Chairman and the Chief Executive and the holder of any other office therein." This definition covers the petitioners who are employees, of the Market Committee, which does not have independent statutory service Rules.
7. Section 19 of the Act of 2006 which has been applicable by virtue of section 2(h)(i) of the Act of 2006 read with section 35 of the Ordinance, regulates the services of the petitioners. Section 19 of the Act of 2006 which appears to have been amended subsequently clearly draws a line between the Civil Servants and the employees defined under section 2(h)(i) of the Act of 2006. The Civil Servants who are proceeded against under the provisions of the Act of 2006 have to approach the Punjab Services Tribunal against a final order passed by the Departmental Authorities. The other employees who are covered under section 2(h)(i) of the Act of 2006, if aggrieved by a final order passed by the Departmental Authorities under section 16 or 17 of the Act of 2006, can seek redressal of their grievances before the High Court."
9. We, therefore, in these proceedings clarify that the learned High Court has the jurisdiction under Article 199 of the Constitution to redress the grievance of the employees who are covered by definition of section 2(h)(i) of the Act 2006 except those who are defined under section 2(b) of the Punjab Civil Servants Act 1974."
10. In view of above, this writ petition is allowed and the impugned order of competent authority/respondent No.2 dated 29.09.2012 as well as impugned order dated 28.01.2013 passed by respondent No.1/Chief Secretary, Punjab, Lahore/Appellate Authority are hereby set aside. The case of the petitioner is remanded to the competent authority/respondent No.2 and shall be deemed to be pending before him, who shall pass speaking order afresh with reasons after hearing the petitioner and all other concerned preferably within a period of 60-days from the date of receipt of certified copy of this order under intimation to the Deputy Registrar (Judicial) of this Court.