JAWAD-UL-HASSAN, MEMBER-J -- Brief facts of the case as gathered from the record are that previously the appellant was subjected to a departmental action under the provisions of the PEEDA Act, 2006 by the then Dy. District Officer Revenue, Sahiwal vide an order bearing No 240/HC-DDO Sahiwal dated 12.4.2010 on the following allegations:- "While you Mr. Nosher Ali Patwari posted as Patwari Halqa Chak No, 124/9.L, you had entered the following mutations: Sr.
No.Mutations No.Date
1. 604 24.11.2008
2. 605 31.1012008
3. 606 31.10.2008
4. 610 24.11.2008
5. 613 30.3.2009
6. 614 22.12.2008
7. 618 30.3.2009 The aforesaid mutations have been showed sold out repeatedly which is against the rules.
After the inquiry into the allegations, the then Dy. District Officer (Revenue), Sahiwal vide order dated 30.9.2010 penalized the appellant with the penalty of withholding of increments for a period of three years. Record reflects that Commissioner, Sahiwal when was hearing an appeal, titled Abdul Ghafoor etc. Lashkar etc. in respect of mutations pertaining to Chak No 124-9-L Sahiwal, noticed the irregularities of mutations No, 605 and 606 regarding sale of 8-K land which was attested on 31.10.2008. Whereas mutation No, 604 entered on 4.2.2008 was yet pending in respect of redemption. Likewise .noticed that mutation No 610 (gift) dated 10.11.2008 was entered before mutation No 604 (redemption) in respect of 29-K and 7-M which was mutated in favour of Ramzan which he already sold 8-K land vide mutations No, 605 and 606 and he was owner of 31-K. It was also noticed by the Commissioner, Sahiwal that 14-K more land was transferred to different vendees vide mutations No, 613, 614 and 618, dated 17.12.2008, 22.12.2008 and 2.2009 respectively. He summoned the report of Assistant Commissioner, Sahiwal regarding punishment of stoppage of three increments vide order dated 30.9.2010. Such report was perused and found that Hasan Nawaz N. Tehsildar and M. Aslam Girdawar were also involved and were responsible in addition to the appellant Nauhser Ali for negligence and corruption and called for a joint proceedings against aforesaid set of trio. In this regard, Commissioner, Sahiwal through his epistle No 3910RB/Com, dated 14.2.2013 requested the Senior Member Board of Revenue to take joint action. In the said letter, he quashed the previous departmental proceedings against the appellant Nausher Ali Patwari. The Senior Member Board of Revenue vide his order dated 17.3.2014 commenced the departmental proceedings against the appellant and others and, directed an inquiry into the matter under the. PEEDA Act. 2006. The departmental inquiry was conducted by Additional District Collector, Sal-mai who recommended major penalty of "dismissal" from service against the appellant the Senior Member, Board of Revenue issued a show-cause notice-cum-personal hearing notice to the appellant and others on 26.5.2015 and thereafter awarded the major penalty of dismissal from service against the appellant vide impugned order dated 9.6 2015. The other person complained against namely, Rai Hassan Nawaz .was penalized with minor penalty of withholding of increments of three years and the penalty of withholding of 25% pension for the period of three years was imposed upon M. Aslam Girdawar, since retired. The appellant filed a departmental appeal before the Chief Secretary which remained abortive and was dismissed by the Chief Secretary vide order dated 16.12.2015. The said appeal was not decided in time which led the appellant to file appeal in hand on 7.10.2015 and during the pendency of this appeal the departmental appeal was rejected.
2. Arguments heard and record perused.
3. During the course of arguments this Tribunal framed three following questions and appointed amicus curiae to assist the Tribunal:
(1) Whether the authority within the meaning of Section 17 of the PEEDA Act, 2006 can open the case against the appellant*while taking Suo Motu notice regarding previous inquiry and penalty.
(2) Whether the Commissioner Sahiwal through his order dated 30.9.2010 was entitled to quash the inquiry proceedings on the same charges and recommend the fresh inquiry proceedings to the SMBR against the appellant.
(3) If order of the Commissioner dated 30.9.2010 is not challenged within the prescribed period then what is its impact in the eye of law.
Admittedly, on the same charges of mutations in question the appellant was previously proceeded against and penalized with the penalty of withholding of increments of three years vide order dated 30.9.2010. This proceeding was quashed by Commissioner Sahiwal as is evident from letter dated 4.12.2013 whereby he requested the Senior Member for initiation of inquiry against the appellant and others. In this background the aforesaid questions were framed in order to ascertain legal position. In answer to said questions Section 17 of the PEEDA Act, 2006 was perused. The same is reproduced for ready reference: Section 17
(1) The Chief Minister, Chief Secretary or the Administrative Secretary or any other appellate authority may, call for the record of any proceedings within one year of the order of the exoneration or imposition of a penalty, passed by the competent authority or the order of the appellate authority, as the case may be for the purpose of satisfying himself as to the correctness, legality or propriety of such proceedings or order.
(2) On examining the record of the case, such authority may--
(i) uphold the orders of the competent authority or the appellate authority, as the case may be, or
(ii) order the competent authority to hold de novo inquiry;
(iii) impose or enhance a penalty or penalties: Provided that no order prejudicial to the accused, shall be passed under this Section unless the accused has been given a reasonable opportunity showing cause against the proposed action and an opportunity of personal hearing."
According to Section 17 ibid the appellate authority, no doubt has departmental Power to call for record of any proceedings but the same can only be done within one year from passing .the order.
Order of penalty in question was passed 'on 30.9.2010 by the then competent authority i,e, Dy.
District Officer Revenue, Sahiwal. The Commissioner, Sahiwal actually had exercised his powers of revision in terms of Section 17 of the PEEDA Act, 2006 beyond statutory period of one year, after 3 years, 4 months and 4 days for which he had no authority to extend the said period fixed by the statute' itself. Thus it is found that the Commissioner, Sahiwal reopened the shut and closed case illegally without jurisdiction. The powers of appellate authority like Commissioner, Sahiwal were exercisable subject to condition mentioned therein, rather the same were restricted one. The proviso of Section 17 (revision) of the PEEDA Act, 2006 created as further bar upon the appellate authority as no order prejudicial to accused shall be passed under Section unless accused has been given a reasonable opportunity showing cause against the proposed action and opportunity of personal hearing. The proviso of Section 17 of the PEEDA Act, 2006 actually curtails the powers of, the authority mentioned therein and subjected the authority under restriction of show-cause notice and time limit. It cuts down the power of the authority. The proviso is a rider on the exercise of power by the Commissioner, Sahiwal in Suo Motu revision. The perusal of order and letter of Commissioner, Sahiwal bearing No, 391-RB/Com/SWL, dated 14.2.2013 reflects that the Commissioner, Sahiwal unilaterally without affording any opportunity of hearing and without issuance of show-cause notice quashed the previous - department proceedings in which he was penalized Therefore, it is found that Commissioner erred in law while again commencing legal action against the appellant and had no authority to quash the previous inquiry proceedings. Next question is that what was the impact when the appellant had not challenged the order dated 14.2.2013. It was an interim order. The appellant can challenge the same even in arguments in view of law on the subject. The order of Commissioner Sahiwal as passed in Revision found without jurisdiction and void. The subsequent proceedings in pursuance of such order and report even by the competent authority is void and liable to be set aside.
4. For what has been discussed above the appeal is allowed and impugned orders are set aside and the appellant shall stand reinstated in 'service. The previous penalty in respect of the same charges i,e, withholding of increments for a period of three years shall remain intact and operative, if not set aside by any competent forum. Furthermore, this 'judgment only pertains' to the impugned order dated 9.6.2015 and 16.12.2015 (original and appellate) whereby he was dismissed from service and shall have no effect on any penalty order against the appellant on different charges.