' Jawad-Ul-Hassan, Member-IL-By this order we intend to decide the application u/S. 151 of CPC for implementation of judgment dated 13.3.2015 handed down in favour of the petitioner in his service appeal No, 1785/2013.
2. Some relevant facts for disposal of the application at hand are that the petitioner was serving as Medical Superintendent, Kot Khawaja Saeed Hospital, Lahore in the year 2011. He was proceeded against under the provisions of the PEEDA Act, 2006 on the following charges which are being reproduced verbatim:-- "While posted as Medical Superintendent, Kot Khawaja Saeed Hospital, Lahore, you have committed the following misconduct:
(i) On 5.6.2010 at 2.00 pm you handed over Mst. Rubi, a young Mashi female Ward Cleaner of your hospital, illegally and against the ethics to Mr. Iqbal Hussain Lakhwaira (an outsider Journalist) to conduct inquiry inside your retiring room in privacy. The lady had come to complain against Dr. Mubin, DMS, for sexual harassm ent. The matter should have been got inquired by a female staff member.
(ii) You intentionally kept Mst. Rubi awaiting in your retiring room for couple of hours unnecessarily on 5.6.2010 from 2.00 pm to 7.30 pm with your ulterior motives who had come for the want of justice.
(iii) When Mst. Rubi disclosed about your immoral behavior with her in your retiring room and complained against you to the EDO (Health), Lahore you illegally strucked her off by misuse of power.
(iv) While striking her name off, you told a baseless and concocted story to the EDO Health, Lahore that Mst. Rubi was caught red handed in an ambulance within the premises of the hospital by some Journalist.
(v) You blackmailed Mst. Rubi by getting published news items in daily SAMA on 23.6.2010 against her character just to defame her with your ulterior motives.
(vi) You managed to hand over a pre written application on behalf of Mst. Rubi and asked her to hand over the same to higher authorities of Health Department, while in fact this application was not written by her.
(vii) You used all sorts of pressure tactics upon the complainant including threats for getting yourself gutted out of the charges which is against the conduct rules;
(viii) You had appointed Mst. Abida Parveen as female Ward Servant on 20.10.2009, who never performed duty in the Hospital w,e,f, her date of appointment uptill the period when she proceeded on maternity leave in 2010, and kept her at your residence at Jouhar Town, Lahore for your private affairs and
(ix) Government vehicle No, LWB 2662 (KKSH) was stolen on 7.8.2010 from outside the house of Mr. Nazir Hussain Zaidi, Bio Medical Engineer, KKSH, Lahore situated in Wahadat Colony, Lahore. But you did not inform the Health Department and did not bother to obtain the report of Internal Hospital Committee constituted by you uptil transfer regarding the theft of vehicle.
2. The petitioner denied all the charges during the course of inquiry. The I.0 found that the Charge No, 1, 6, 8 and 9 were proved, Charge No, 7 was partially proved whereas it was found that Charge No, 3, 4 and 5 were not proved. The inquiry officer vide his report dated 30.6.2012 recommended penalty against the petitioner follows:-- "(i) Minor penalty i,e, withholding of promotion for a specific period, subject to a maximum of five years; provided that this period shall be counted from the date when a person junior to the accused is considered for promotion and is promoted on regular basis for the first time.
(ii) Reduction to a lower post and pay scale from substantive. Or regular post for a period of 5 years."
' In view of the recommendation of the I.O. The competent authority vide order dated 3.04.2013 had imposed the recommended penalties in the following words:
(i) Withholding of promotion for a period of five years; under Section 13(5) of the PEEDA Act, 2006 and
(ii) Reduction to a lower post and pay scale for a period of five years under Section 13(5) of the PEEDA Act, 2006.
' The petitioner called in question the said penalty order against him in Service Appeal No, 1785/2013 which was accepted vide order dated 13.3.2015 by this Tribunal. This Tribunal has found that the I.0 could not discuss the evidence at all. Likewise the outcome of the cross-examination was also not discussed. It was specifically held by this Tribunal that the findings as recorded by the I.0 were vague, blur and abstruse. Likewise, this Tribunal while discussing the Charge No, 1 and 2 observed about a supplementary statement of the complainant Mst. Rubi dated 29.10.2010 wherein she unveiled that she was persuaded by Dr. Iftikhar Ahmad Gumman erstwhile Medical Officer of KKS Hospital, Lahore to move against the petitioner. It was observed that the I.0 recorded his findings on account of some fact findings/ probe and evidence was not assessed. In this background this Tribunal accepted the service appeal. Impugned order were set aside. The petitioner was reinstated to his original service status. The case was remanded back to the competent authority with the following directions:-- "The case is remanded to the competent authority to reconsider the entire case in its true perspective with then---- ' observations that the authority may, if so desired, hold denovo proceedings. Copy of this order be sent to the Secretary Health/ Respondent No, 1."
' The authority vide impugned order dated 11.9.2015 while agreeing with the judgment of this tribunal restored the petitioner to his original service status as he was before passing of the impugned order. In the same order the authority directed to conduct a denovo inquiry under the PEEDA Act, 2006 against the petitioner while appointing the inquiry officer on account of the same charges. This order was challenged before the competent authority through a representation under Section 21 of the PCS Act, 1974. When such review was not decided in time, the petitioner invoked the jurisdiction of this Tribunal under Section 151, CPC for the implementation of its judgment dated 13.3.2015 as passed in Service Appeal No, 1785/2013. The respondents were proceeded against exparte but later on they joined the proceedings and submitted parawise comments and also filed a copy of order dated 28.12.2015 according to which the representation of the petitioner was dismissed by the authority.
3. Learned counsel for the petitioner argued that the authority' was in agreement with the judgment of this Tribunal in favour of the petitioner but without assigning any reasons and affording opportunity of hearing mechanically passed an order dated 11.9.2015 for denovo inquiry even regarding those charges which were not proved against the petitioner. He stated that in view of Section 24- A of General Clauses Act and law pronounced by the honourable Supreme Court of Pakistan reported as 1991 SCMR 323, the impugned order of denovo inquiry is in conflict with the directions issued by this Tribunal in Service Appeal No, 1785/2013. He stated that therefore a proper directions be issued to the respondents for implementation of judgment dated 13.3.2015 for consideration of the case in its true perspectives.
4. Conversely, learned District Attorney assisted by the D.Rs stated that the impugned orders were passed strictly in accordance with the judgment of this Tribunal and the competent authority considered the case in true perspectives, therefore, they claimed for dismissal of the instant application.
5. Arguments heard and record perused.
6. In order to resolve the issue we consider it appropriate to reproduce the direction issued by this Tribunal in Service Appeal No, 1785/2013 embodied in judgment dated 13.3.2015: "For the fore going reasoning, we found that the impugned order dated 3.4.2012 whereby the penalty was imposed is not sustainable and is set aside. The subsequent order in this regard by the competent authority is not tenable in the eye of law. Resultantly, the appeal is accepted. The petitioner shall stand restored to his original service status as it was before passing of the impugned orders. The case is remanded to the competent authority to reconsider the entire case in its true perspective with the observations that the authority may, if so desired, hold denovo proceedings. Copy of this order be sent to the Secretary Health/ Respondent No, 1."
' The directions ibid undeniably implies that competent authority was required to ponder over the entire evidence procured by the I.O. Actually matter was referred to competent authority to use his discretion under Section 13(6) of the PEEDA Act, 2006. For ready reference the Section 13(6) of the PEEDA Act, 2006 is reproduced below: "where the competent authority is satisfied that the inquiry proceedings have not been conducted in accordance with the provisions of this Act or the facts and merits of the case have been ignored or there are other sufficient grounds, it may, after recording reasons in writing, either remand the inquiry to the inquiry officer or the inquiry committee, as the case may be, with such directions as the competent authority may like to give or may order a denovo inquiry."
' The discretion of the competent authority under Section 13(6) ibid for denovo inquiry is not unbridled rather the same are restricted because the authority was bound to discuss facts, circumstances and evidence if any against the petitioner. Moreover, Section 13(6) and directions issued vide order dated 13.3.2015 imply that the authority before passing the order of denovo inquiry was bound to indicate the reasons and evidence etc. In this background the question arose: "Whether the competent authority examined the evidence and record as ascertained by the previous I.Q. And if so whether the competent authority independently rendered the fair reasons in order to exercise his discretion under Section 13(6) of PEEDA Act, 2006."
7. The impugned order in hand dated 11.9.2015 of denovo inquiry, depicts that no reasons were given by the authority. Likewise, evidence in view of which denovo inquiry was required was also not indicated. Direction of this Tribunal was to reconsider the entire case in its true perspectives and matter was left on the discretion of the authority to hold denovo proceedings if so required.
The words "if so required" used by this Tribunal explicitly evinces that it was not the mandatory directions to hold denovo inquiry in every circumstances 'rather the matter was put before the competent authority for use of discretion under Section 13(6) of the PEEDA Act, 2006. It is also evident from the recital of the impugned order dated 11.9.2015 that no chance of hearing was given to the petitioner before making the order of denovo inquiry. It was passed unilaterally and element of arbitrariness is floating on the surface. In Tariq Aziz ud Din and others' case (2010 SCM R 1301) the honourable Supreme Court of Pakistan at page 1331 held that arbitrariness in any manner is to be avoided to ensure that action based on discretion is fair and transparent. It was further observed by the honourable Supreme Court of Pakistan that wnerever wide-worded powers conferring discretion exist, there remains all need to structure the discretion. In view of this legal background the competent authority was required to use his discretion in well structured manner while giving his independent opinion to the facts and circumstances of the case and evidence on the record. It is evident from the order dated 11.9,2015 (denovo inquiry) the authority passed the order ritualistically and no evidence was discussed by him and no reasons were given as required Section 24-A of General Clauses Act. It is evident that before passing the order of denovo inquiry neither any kind of such show-cause notice was issued to the petitioner nor he was heard. The authority unilaterally subjected the petitioner to face another inquiry on the same charges without any assigning cogent and coherent reasons. Further we found that the impugned order for denovo inquiry is sketchy and brusque in nature. Here we feel it appropriate to refer a judgment of the honourable Supreme Court of Pakistan in Abdul Jabbar's case (see 1991 SCM R 2335) observed as under: "In this case it cannot be said that no reason is mentioned in the rejection of respondent's representations in the orders dated 6/9.10.1988. But in many other cases we have been seen that the rejection is a simple ritualistic rejection. Even if it is not a mandate by any law that the officer concerned should be informed about the reasons which prevailed with the authority concerned it would not be illegal either to give reasons; at least, from now onward. It being the judgment of this Court on this legal question, the same would be observed as declared law. (the underline is mine)
' In the light of the foregoing discussion we accept these appeals and remand the cases to the departmental concerned for consideration of the representations submitted from the respondent's side on merits and to decide the same by reasoned orders. And with the further directions that the reasons should also be conveyed to the respondents. The respondents shall be at liberty to amend their representations and include additional grounds either of facts as alleged in two Civil petitions dealt herein or of law."
' In view of the above discussion, it was imperative upon the authority to inform the reasons to the petitioner for denovo inquiry and likewise, in terms of Section 24-A General Clauses Act the authority was also statutorily required to give reasons for denovo inquiry. The order of denovo inquiry and subsequent inquiry proceedings are the part and parcel of decision of the government and authority. It refers to a quasi judicial adjudication. Section 24-A of General Clauses Act actually is a diktat, the observance of which cannot be avoided in every circumstances. Said section requires a reasoned order in quasi judicial and administrative order even the order of denovo inquiry under Section 13(6) of the PEEDA Act, 2006.
8. For what has been discussed above, the impugned order dated 11.9.2015 is liable to be brushed aside being violative of law as discussed supra, therefore, the same is set aside. The representation of the petitioner against this order was also dismissed by the authority vide order dated 28.12.2015.
No reasons were given by the authority regarding the points and facts narrated by the appellant in his representation. This order is also violative of Section 24-A of General Clauses Act as discussed herein above. Thus, the same is also set aside. We feel it appropriate to remind the authority that the appellant has been retired from service on 9.1.2016 on attaining the age of superannuation. In wake of our directions as contained in order dated 13.3.2015 passed in service appeal of the appellant Bearing No, 1285/2013, we also feel appropriate to direct the authority to analyse the evidence in its true perspectives brought on their record by the previous inquiry officer. In this regard, statement of PW.1 Mst. Rubi and defence witnesses namely Ch. Shahbaz MPA, Mr. Iqbal Hussain Lakhveria shall be looked at and examined before proceeding further. Likewise, the affidavits tendered by Tariq Butt, Azhar Abbas Chowkidar, M. Hasnain Rehmani, Muhammad Saber, M. Khalil,M.Kamran, Khawaja M.Azeem, M. Riaz Rana, Asghar Abbas, Khurram Shahzad, Khawaja M.
Saleem, Azmat Ghulam Rasool, Shahbaz Ahmad, Amanat Ali, Dr.Khalid Agha, Haji Javed Ch and other witnesses brought on the record by the parties shall also be taken into account while assessing their evidence. Having examined and analyzed such evidence, the authority if comes to the conclusion of denovo inquiry, will issue a show-cause notice to the appellant and after hearing him may pass appropriate order, if needed. This application is accepted in above terms.