JAWAD HASSAN, J.----Through the instant Constitutional petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has impugned his dismissal order dated 16.07.2014 as well as rejections of Appeals orders dated 21.08.2015 and 17.05.2017.
2. The facts tersely revealed from the petition are that the Petitioner is a PhD Scholar Student in Animal Breeding and Genetics, Department of Livestock Production, University of Veterinary and Animal Sciences (the "University") vide Registration No,2005-va-173 (Sessions 2007). He was appointed as Lecturer in the University on 16.11.2011 on regular basis. The Petitioner after return from United State Department of Agriculture (USDA), USA on the grant of the US, defended his PhD thesis research work publically before final "submission dated 01.06.2012 after approval of supervisor Committee in Directorate of Advanced Studies dated 25.06.2013. Thereafter, the list of external examiners panel for the PhD thesis evaluation of the Petitioner was constituted by Professor Dr. Khalid Javed, Chairman Board of Studies who submitted the same to Mr. Sajjad Haider Controller Examination vide letter dated 11.07.2013 under Regulation 56 of PhD Theses Examination Regulations, as given in the University Calender-I, Clause 56 P.228 (the "Regulations"). Two external examiners namely Dr. Warren Snelling and Dr. Brian W. Kirkpatrick were appointed from the approved list of external examiners by the Respondent No,4 after the verification of the Respondent No,6/Controller Examination vide dated 22.07.2013. Subsequently, the Respondent No,6 after completing the PhD thesis evaluation process of the Petitioner, himself complained to the Respondent No,4 on 27.09.2013 against the Petitioner "that this office has found serious offence during the thesis evaluation of Mr. Hamid Mustafa, Reg.No,2005-va-173, a PhD student of Department of Livestock Production that was submitted in his office on June, 2013. Similarly, Panel of examiners was submitted by the Chairman, Department of Livestock Production on July, 2013. After getting the completion of other formalities the panel of examiners was submitted and the following external examiners were appointed." In pursuance of which the competent authority approved initiation of inquiry proceedings under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (the "PEEDA Act"). Professor Dr. Muhammad Ashraf, Dean, Faculty of Biosciences/was appointed as inquiry Officer against Professor Dr. Khalid Javed, Chairman Department of Livestock Production who without approval of competent authority conducted the inquiry against the Petitioner called him and submitted his preliminary inquiry report recommending initiation of proceedings against the Petitioner's removal from the University services under the PEEDA Act. Consequently, Professor Dr. Masood Rabanni, Director University, Diagnostic Lab was appointed as inquiry officer to proceed against the Petitioner in the capacity of Lecturer to which the Petitioner joined and denied all the allegations. But the Petitioner was recommended to major penalty of removal from service.
Thereafter, the Petitioner was issued show cause notice, reply of which was filed by the Petitioner denying all the allegations but vide the impugned order dated 16.07.2014 he was removed from service.
3. Feeling aggrieved thereby the Petitioner preferred an Appeal before the Respondent No,2 which was decided by the said Respondent after a direction was passed by this Court in W.P.
No,15552/2015 vide order dated 28.05.2015 and dismissed his Appeal vide the impugned order dated 21.08.2015. Thereafter, the Petitioner being aggrieved from the orders dated 16.07.2014 and 21.08.2015 filed W.P. No,27980/2015 and also filed W.P. No,14224/2014 on account of stoppage of his thesis, evaluation. In pursuance of order dated 08.12.2015 passed in W.P. No,14224/2014 a re-inquiry of the Petitioner was again initiated by Unfair Means Committee as PhD student and pursuant to the recommendations of the said Committee, the Vice-Chancellor was pleased to allow thesis evaluation process of the Petitioner after getting new panel of examinations from the Board of Studies of the Department as per the Regulations. Thereafter, this Court vide order dated 04.04.2017 disposed of the W.P. No,27980/2016 with the direction to Respondent to decide as the contention petition treating the same as representation of the Petitioner as the contention of the Petitioner was that in view of the order of the Vice-Chancellor for reevaluation of the thesis, his termination has become abated. But the concerned Respondent again dismissed the representation vide the impugned order dated 17.05.2017, Hence, this petition.
4. In compliance of order of this Court dated 21.06.2017, the Respondents filed their report and parawise comments and denied all the allegations and prayed for dismissal of the petition.
5. Learned counsel for the Petitioner inter alia submitted that the impugned orders have been passed by the Respondents in sheer violation of law as they have not taken into consideration the fact that the allegations i,e, providing the list of examiners with fake email addresses and manipulated his PhD thesis evaluation" levelled against him have no footing as provision of list etc. was never ever his responsibility rather it was the duty of the Professor Dr. Khalid Javed, Mr. Sajjad Haider and Vice-Chancellor; that during inquiry proceedings irregularities and flaws have been found on the part of Professor Dr. Khalid Javed and Mr. Sajjad Haider but the Petitioner has been held responsible for the same which is against the law and Regulations; that the Petitioner should not be suffered due to the act of the others; that the Petitioner has been treated by the Respondents with clear discrimination because on the same allegation which were attributed to the Professor Dr. Khalid Javed, Mr. Sajjad Haider and Vice-Chancellor the Petitioner has been subjected to major penalty whereas the said persons have been exonerated; that the impugned orders were passed in violation of the provisions of the PEEDA Act; that the Petitioner has been proceeded against without approval of the competent authority; that as the PhD thesis of the Petitioner were again processed therefore, the charges have become vanished; that a harsh penalty has been awarded to the Petitioner mere on the basis of a preliminary inquiry; that except alleged confession, there is nothing against the Petitioner which connects him with the commission of alleged allegations and that too was under duress; that the said concession was obtained from the Petitioner by the hi-ups under duress and coercion whereas prior to that he has vehemently denied the allegations levelled against him and thereafter as well; that the alleged confession has never been confronted to the Petitioner during the course of regular inquiry; that any fact finding inquiry or preliminary inquiry cannot be taken into consideration for the purpose of final adjudication; that the inquiry is defective as no prosecution witness was ever examined in presence of the petitioner nor any opportunity to cross-examine him has been afforded to him; that the inquiry in questionnaire as in the case of the Petitioner, was not permissible under the law; that the impugned orders are non-speaking and do not disclose any sound reasoning; that on the same allegation the petitioner has been subjected to double jeopardy which is against the Article 13 of the Constitution. To fortify his contentions learned counsel for the Petitioner has placed reliance on the case titled Federal Government Wo Defence, Rawalpindi v. Lt. Col. Munir Ahmad Gill (2014 SCMR 1530), Dr. Masroor Ellahi Babar v. University of Veterinary and Animal Sciences, Lahore and others (PLD 201 7 Lahore 381), Azizullah Memon v. Province of Sindh and others (2007 SCMR 229), Muhammad Haleem and others v. General Manger (Operation) Pakistan Railways Headquarter Lahore and others (2009 SCMR 339), Muhammad Yasin v. Secretary, Government of Punjab and others (2007 SCMR 1769), Syed A.S. Shah v. University of Punjab and others (2015 YLR 1733), Rashid Ahmad v. The State (PLD 1972 Supreme Court 271), Allah Ditta v. Province of Punjab and 2 others (2017 PLC Lahore (CS) 437), Deputy Inspector General of Police v. Shafique-ur- Rehman and others (2000 SCMR 669), Noor Muhammad Lashari v. Federation of Pakistan through Divisional Superintendent Pakistan Railways and 6 others (2008 PLC (C.S.) 1058), Syed Yaqoob Shah v. XEN, PESCO (WAPDA) Peshawar and others (PLD 2002 Supreme Court 677), Bashir Ahmad Sheikh v. Chairman, Port Qasim Authority, Karachi and 2 others (2006 PLC (C.S.) 766), Rashid Ahmad v. The State (PLD 1972 Supreme Court 271), Allah Ditta v. Province of Punjab and 2 others case (2017 PLC (CS) 437), National Bank of Pakistan v. Muhammad lqbal (1998 SCMR 234), Bashir Ahmad Sheikh v. Chairman, Port Qasim Authority, Karachi and 2 others (2006 PLC (C.S.) 766), Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi and another (1993 SCMR 1440), Muhammad Khaliq-ur-Rehman v. Secretary Housing Urban Development and Publication and 2 others (2006 PLC (CS) 1320),
6. On the other hand, learned Law Officer vehemently opposed the arguments advanced by the learned counsel for the Petitioner and prayed for dismissal of the petition mainly on the grounds that the proper inquiry was conducted against the Petitioner and he was subjected to major penalty after fulfilling all the formalities and proving the case; that the Petitioner was afforded opportunity of personal hearing before passing the impugned orders; that none else but the Petitioner himself admitted his guilt before the inquiry committed in writing and thereafter he cannot deviate from the same; that the petition is nothing but based on false grounds, as such liable to be dismissed. In support of his contentions, the Respondents have also appended with the report and parawise comments copies of certain documents from annexure R-1 to R-14.
7. I have heard the arguments advanced by both the sides and perused the record minutely.
8. The main controversy involved in the matter is that the Petitioner has been terminated from service by the Respondents vide the impugned orders on the allegation that he provided fake e-mail addresses of external examiners and made manipulation in his PhD thesis evaluation. For the sake of clarity Regulation 56 of the Regulations is reproduced below and is as follows: "Two external examiners from Technologically Advance Countries shall be appointed by the Vice .Chancellor for evaluation of Ph.D. thesis. The panel of examiners shall be recommended by concerned Board of Studies of respective Department and be submitted directly to the office of Controller of Examinations under the sealed cover as "Confidential" information. The Controller of Examinations shall get the final approval of the Vice Chancellor for such appointment before processing the thesis with these examiners.
(Amended by Academic Council in its Meeting held on 22.02.2005)."
9. In view of the above mandate, Professor Dr. Khalid Javed, Chairman/Supervisor who was the Chairman Board of Studies in the case of the Petitioner, prepared a list of subject specialists in Animal Breeding and Genetics as potential reviewers for the PhD thesis evaluation of the Petitioner and sent the same to the Controller Examination of the University vide letter dated 11.07.2013. The said list was verified by the Controller Examinations and two names of external examiners namely Dr. Warren Snelling and Dr. Brian W. Kirkpatrick were chosen from the approved list by the Respondent No,4./Vice Chancellor of the University on 22.07.2013 under Regulation 56 of the Regulations. It is pertinent to mention here that in the said list the e-mail addresses against each entry were also provided.
10. The departmental proceedings against Professor Dr. Khalid Javed, Chairman Department of Livestock Production Ravi Campus, Pattoki were initiated vide Order of Inquiry dated 30.09.2013 when the Respondent No,6 found that the e-mail addresses of the above said persons were wrongly provided. The Inquiry Officer vide letter dated 26.10.2013 dragged the Petitioner into the disciplinary proceedings initiated vide letter dated 30.09.2013 against Professor Dr. Khalid Javed by stating that he has been appointed as inquiry officer to proceed against the Petitioner and Professor Dr. Khalid Javed.
11. From the above facts and circumstances, it is very much clear that firstly the Petitioner has neither any role in the provision of list of external examiners and their e-mail addresses and thereafter chosen of two above mentioned names of external examiners along with their e-mail addresses, therefore, he cannot held responsible for the act which has been done by the concerned Respondents. Secondly, vide order dated 30.09.2013 only the inquiry officer was mandated to proceed against Professor Dr. Khalid Javed for misconduct and discipline but the Petitioner was also called by stating that he has been appointed inquiry officer to proceed against the Petitioner whereas from the letter dated 30.09.2013 it is explicit that he was never ever appointed as Inquiry Officer to proceed against the Petitioner rather only against Professor Dr. Khalid Javed. The record also reveals that in the said inquiry the concerned Respondents were only advised to remain careful in future whereas, recommended that Petitioner's removal from university services may be initiated under proceedings of PEEDA Act". In this regard guidance can be sought from the case of Muhammad Yasin and Syed A.S. Shah supra wherein it has been held as under: "Nobody should suffer on account of any omission and commission on the part of government functionaries"
12. Furthermore, the Petitioner has specifically alleged in paragraph 18 of the petition that the mandatory proceedings as mentioned in the PEEDA Act have not been followed by the inquiry officer and the inquiry has been conducted in a slipshod manner. He also alleged that he has not been afforded an opportunity of cross-examination over the concerned persons, as such the whole proceedings are liable to be quashed. In support of his contention he appended with the petition copy of Confidential Report dated 12.04.2014 which shows that only a questioner was given to the Petitioner instead of providing opportunity of cross-examination. In response to that paragraph, the Respondents in the report and parawise comments have replied that the contents of Para No,18 are false, hence controverted and vehemently denied. It is pertinent to highlight here that the Petitioner himself gave the confessional statement and accepted all the allegations levelled against him. Although the Respondents have denied the contention of the Petitioner yet has not specifically replied the same whether the Petitioner has been given opportunity of cross- examination or not which is mandatory requirement of the PEEDA Act and relied upon the confessional statement regarding the allegations by the Petitioner. This Court in Allah Ditta case supra has held as follows: "Violation of Section 10 of the 2006 Act
11. Learned counsel for the Petitioner specifically raised objection regarding the defectiveness of the inquiry by submitting that no witness has been recorded while concluding the inquiry except only one and the right to cross-examine the said witness has not been given to the Petitioner. The learned counsel for the Petitioner has drawn the attention of this Court towards section 10 of the 2006. Act which is reproduced below:
10. Procedure to be followed by inquiry officer or inquiry committee.---(1) On receipt of reply of the accused or on expiry of the stipulated period, if no reply is received from the accused, the inquiry officer or the inquiry committee, as the case may be, shall inquire into the charges and may examine such oral or documentary evidence in support of the charge or in defense of the accused as may be considered necessary and where any witness is produced by one party, the other party shall be entitled to cross-examine such witness.
(2) If the accused fails to furnish his reply within the stipulated period, or extended period, if any, the inquiry officer or the inquiry committee, as the case may be, shall proceed with the inquiry ex parte.
(3) The inquiry officer or the inquiry committee, as the case may be, shall hear the case from day to day and no adjournment shall be given except for reasons to be recorded in writing, in which case it shall not be of more than seven days.
(4) Where the inquiry officer or the inquiry committee, as the case may be, is satisfied that the accused is hampering or attempting to hamper the progress of the inquiry, he or it shall administer a warning and if thereafter, he or it is satisfied that the accused is acting in disregard to the warning, he or it shall record a finding to that effect and proceed to complete the inquiry in such manner as may be deemed expedient in the interest of justice.
(5) If the accused absents himself from the inquiry on medical grounds, he shall be deemed to have hampered or attempted to hamper the progress of the inquiry, unless medical leave, applied for by him, is sanctioned on the recommendation of a Medical Board; provided that the competent authority may, in its discretion, sanction medical leave upto seven days without recommendation of the Medical Board.
(6) The inquiry officer or the inquiry committee, as the case may be, shall Submit his or its report, containing clear findings as to whether the charge or charges have been proved or not and specific recommenation regarding exoneration or, imposition of penalty or penalties to the competent authority within sixty days of the initiation of inquiry:
12. Section 10(1) of the Act clearly reveals that where any witness is produced by one party, the other party shall be entitled to cross-examine such witness. But in the present case although the Petitioner has been given opportunity of hearing yet he has been deprived of his right, bestowed by the Act, to cross-examine the witness produced by the other side. Furthermore, an inquiry cannot be held in an arbitrary manner and principles of natural justice must be followed. Fair chance of cross-examination and production of evidence in rebuttal must be provided. Hence, this Court is of the opinion that the inquiry has not been concluded in accordance with procedure provided under Section 10 of the 2006 Act by the Inquiry Officer. In National Bank of Pakistan v.
Muhammad IOW (1986 SCMR 234) the Honourable Supreme Court of Pakistan has held that if the Petitioner is not allowed to cross-examine, dismissal order is set aside. Reliance is placed on Pasroor Sugar Mills Ltd. v. Abdul Qadeer (1988 PLC 246)."
13. It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and is without jurisdiction. Reliance in this regard is placed on the case of Rashis Ahmed Supra. So far as the reply of the Respondents regarding the confessional statement of the Petitioner is concerned, in this regard it is stated that the Petitioner has although not denied his confessional statement but alleged that the same was recorded under duress. He further stated that at the time of regular inquiry he denied all the allegations levelled against him and his alleged confessional statement was never confronted to him during the course of regular inquiry. He also placed reliance on the cases of Syed Yaqoob Shah and Bashir Ahmed Sheikh supra in which it has been held as under: "Confession of civil servant is not valid till the same is not confronted with the civil servant in regular inquiry"
14. Reliance has also been placed on the case of Noor Muhammad Lashari supra wherein it has been held that preliminary inquiry cannot be taken into consideration for the purpose of final adjudication nor could any evidence taken in such preliminary inquiry be treated as substantive piece of evidence during inquiry.
15. In view of what has been discussed above, I am inclined to set aside the impugned orders dated 16.07.2014, 21.08.2015 and 17.05.2017; consequently, the instant petition is allowed and the Respondents are directed to reinstate the Petitioner into service from the date he was terminated within a fortnight without any fail. However, he shall not be entitled to any monetary back benefits as Petitioner's termination period shall be considered as leave without pay.