JAWAD-UL-HASSAN, MEMBER-II Epigrammatic ally stated, the facts of the case as gathered from the record are that the respondent No. 3 Parveen Akhter w/o Sh. M. Farooq, Advocate Ex-Naib Nazim Zila Jhang filed a complaint against the appellant before the District Collector that he fraudulently, dishonestly being Halqa Patwari issued fard Malkiyat for sale of commercial property (undivided) in favour of Ghulam Qasim son of Khan Muhammad whereafter got registered the sale-deed in favour of Muhammad Riaz her tenant. The respondent No. 1/A.0 in view of sufficient documentary evidence dispensed with the regular inquiry. Preliminary inquiry was conducted by DCO, Jhang himself on 28.10.2010 whereafter the departmental proceedings under Sections 7(b) and 5(1)(a) of the PEEDA Act, 2006 were initiated against the appellant on the directions of the DCO/District Collector Jhang who passed such order on 28.10.2013. A show-cause notice was issued calling the appellant to submit reply within seven days vide No. 988/A/HC dated 1.11.2013. The appellant failed to reply the show-cause notice. As a result thereof, the Assistant Commissioner, authority/respondent No. 1 found him guilty of the charges and imposed major penalty of dismissal from service vide order dated 27.11.2013. The appellant filed his ditch curative appeal against the impugned order as addressed to the Commissioner, Faisalabad who referred the said appeal to District Collector, Jhang. The said District Collector vide impugned order dated 29.12.2014 dismissed his departmental appeal, hence this appeal.
2. Arguments heard and record perused.
3. Record evinces that the appellant was vexed with 9 allegations. The substratum of the allegations was that he issued Fard Malkiyat in favour of Ghulam Qasim of different Khata numbers, having taken illegal gratification from said Ghulam Qasim. The respondent No. 1 while deciding the fate of show-cause notice and allegations therein heard the respondent No. 3 and took her written statement. The learned counsel for the appellant emphasized that said Ghulam Qasim was co-owner in the joint khata who according to the law on the subject was owner in possession of the common property, in every inch thereof. The allegations as contained in the show cause notice were refuted by the learned counsel and in order to dig out the truth, regular inquiry was necessary. In the present case the controversy in respect of disputed facts is involved. The factual controversy could not be ascertained without resorting to regular inquiry and providing reasonable and fair opportunity of defence to the appellant. The charge of 'misconduct' involving factual controversy was required to be proved through evidence in regular inquiry, whereas mere conducting of a probe/fact finding inquiry as in case in hand amounts to condemn the appellant unheard. The law favours the adjudication even in quasi-judicial proceedings on merits while adhering to provide the accused proper opportunity to defend himself. In this regard, I am of the considered view that holding of departmental inquiry against the appellant was a necessary condition. In case in hand a major penalty of dismissal has been awarded against the appellant which could not have been done without due course of law. In Naseeb Khan's case (2009 PLC (CS)
19) in Para-5 the honourable Supreme Court of Pakistan held that in case of imposing major penalty, the principle of natural justice requires that a regular inquiry is to be conducted in the matter and opportunity of defence is to be provided to the civil servant proceeded.
4. In view of the above, the appeal is allowed and the impugned orders are set aside and the appellant shall stand reinstated in service. The case is remanded to the competent authority to hold a regular inquiry in the matter accordingly and finalize the same within a period of two months positively from the date of receipt of this judgment. The nature of intervening period during which the appellants remained out of service shall depend upon the outcome of the departmental proceedings. The relevant staff of this Tribunal in view of rule 21 of the PST (Procedure) Rules, 1975 is directed to furnish/send the copy of this judgment to the competent authority within 15 days from the date of receipt of this order in the concerned branch.