1. JUSTICE (R) SHOAIB SAEED, CHAIRMAN.-- Briefly, appellant while serving at Government College of Technology, Sargodha was promoted to BPS-19 in the year 1999, and made Principal of the said College. He kept performing his duties till 2013. In January, 2010, appellant was promoted to BPS-20 as Senior Chief Instructor and later transferred to Government College of Technology, Lahore.
2. By an order of inquiry dated 9.3.2010 appellant was served with the following on account of misconduct for his acts of omission and commission under the PEEDA Act, 2006:---
(i) Temporary financial embezzlement amounting to Rs, 37,320/- by drawing excess allowance.
(ii) Temporary embezzlement of Rs, 32,240/- drawn as conveyance allowance & getting Govt. vehicle No, SGA1055 registered in his own name.
(iii) Non-deposit of proceeds on account of sale of trees belonging to the institute.
(iv) Delivering lectures at Superior College & University of Sargodha without prior approval of Authority.
(v) Violation of rules while allotting college quarter to Mr. Sarfraz Malik, Instructor (Mech.) of the Institute.
3. (vi)Non-payment of stipend of Mr. Iftikhar Zulqarnain as a trainee of Auto CAD.
(vii) Not recovering Rs, 1,42.600/- from Mr. Ashraf Joya, recoverable from him on account of stolen lab equipment's.
(viii) He got himself included as a member of Selection Committee and helped his brother-in-law selected as Jr. Instructor BS-14.
4. The competent authority/Chief Minister, Punjab vide order dated 9.3.2010, appointed Mr. Muhammad Arshad Bhatti (BS-21), Member Board of Revenue, Punjab, Lahore as inquiry officer. The designated inquiry officer could not complete inquiry owing to his transfer. The competent authority in the light of the same appointed Mr. Khizar Hayat Gonda!, Secretary, LG & CD Department, Punjab to conduct inquiry vide order dated 5.12.2012. Later inquiry officer too could not complete inquiry and was transferred and in his place the competent authority vide order dated 28.5.2013 appointed Mr. Tahir Yousaf (BS-20) as inquiry officer.
5. Appellant submitted detailed written reply to the allegations levelled dated 3.6.2013 and denied the charges. Later with regard to allegation No, viii appellant submitted additional defence on 3.6.2013.
6. The inquiry officer submitted inquiry/findings dated 26.11.2013, holding that charges No, i, iv, vi & viii were proved while charges No, ii & v were partially proved whereas charge No, iii could not be proved and recommended another independent inquiry. Regarding charge No, vii the inquiry officer held that appellant could not be held responsible as incident regarding said charge did not take place in his institution, recommended. "withholding of two increments for a period of two years."
7. The competent authority in para-3 held as under:-- "And whereas after due examination of the fact of the case, findings/recommendations of the inquiry officer, it is observed that while the inquiry officer had held that accused officer guilty of the serious charge, minor penalty of "Withholding of Two increments for a period of Two Years" recommended by him is not commensurate with the gravity of the charges".
8. In para 4 the authority while remanding the case to inquiry officer directed "to review his recommendations in the light of the gravity of the charges which stood proved partially."
9. The competent authority being dissatisfied with recommendation of minor penalty by inquiry officer in exercise of powers vested under Section 13(6) remanded the case to the inquiry officer to review it in the light of gravity of charges vide order dated 1.1.2014.
10. The inquiry officer conducted inquiry, re-submitted inquiry report dated 29.1.2014 and in the light of charge No, vii held that appellant included himself as Member of the Selection Committee and helped his brother-in-law selected as Junior Instructor, therefore in addition to his earlier recommendation included major penalty of reduction to a lower post and past scale for three years may be imposed on appellant.
11. Thereafter, Secretary, Excise & Taxation, Punjab was appointed as Hearing Officer under Section 13(4) of the Act ibid vide show cause cum-personal hearing notice dated 17.7.2014 appellant appeared before the hearing officer and submitted written defence, denying the charges attributed while iterating earlier stance.
12. The Hearing Officer submitted report, agreeing with findings of the inquiry officer.
13. The competent authority, thereafter, on receipt of inquiry report and report of the hearing officer, held the charges stood proved against appellant and in exercise of powers conferred under Section 13(5) of the Act ibid imposed penalty of reduction to lower post and pay scale for three years and withholding of two increments for a period of two years to appellant with immediate effect vide order dated 28.10.2014.
14. The order was assailed through review petition filed under Section 16 of the Act ibid which was rejected vide order dated 21.4.2015.
2. I have considered the arguments of both parties and perused the record.
3. The first inquiry officer exhaustively discussed each and every allegation in its report/findings.
15. The documents placed were examined/sifted and on the basis of same by highlighting and elucidating/covering factual aspects and keeping in view the gravity of charges and material before it, recommended penalty of withholding of two increments for a period of two years.
16. Thereafter, on furnishing of report the competent authority observed that inquiry officer held appellant guilty of serious charges, but recommended minor penalty which was not commensurate with the gravity of charges and remanded the case to the inquiry officer to review his recommendations in the light of gravity of charges which stood partially proved.
17. Under Section 13(6) of the Act ibid, where the competent authority is satisfied that the inquiry proceedings were not 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 can remand the case to the inquiry officer with direction's the competent authority may like to give.
18. Paragraphs 3 & 4 of the order impugned dated 1.1.2014 passed by the authority has been reproduced in the earlier para wherefrom it is evident that the authority without highlighting any defect germane to the charges which stood partially proved during inquiry failed to provide any reasons/findings in its remand order while disagreeing with the recommendations of the inquiry officer/Hearing Officer which was patently in violation of Section 13(6) of the Act ibid. Reliance is placed on 2013 SCM R 572 titled as "Secretary, Government of the Punjab (C&W) and others v. Ikramullah and five others":--- "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 sub-sections (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 levelled and the evidence collected during inquiry and that too with reference to the liability of each of the officers who were inquired into. Unfortunately the Competent Authority did not give any reason whatsoever except that he had gone through the record and the defence pleas of the respondents and he also personally inspected the road, defective construction which was a moot point during inquiry".
19. After remand the inquiry officer conducted free inquiry submitted its report dated 29.1.2014. In its 2nd inquiry report the inquiry officer in addition to. earlier recommendation imposed major penalty of reduction to lower post and pay scale for three years on appellant, with reference to charge No, viii of inquiry officer in his recommendations held that appellant "the gravity .of charge of getting himself included as Member Selection Committee and helped his brother-in-law selected Junior Instructor."
20. That charge No, viii in the 1st inquiry report already stood proved, in the light of the remand order re-discussing the charge was beyond directions of the order dated 01.01.2014. The inquiry officer in findings part of his 2nd inquiry held in the Departmental Representative submitted that record pertained to each of the charge stand minutely examined and there is nothing additional which require further examination meaning thereby that in 2nd inquiry no additional documents in respect of any of the charges were provided the inquiry officer was evident from 2nd inquiry report that regarding charges No, 2, 3 & 5 neither fresh material was placed before the inquiry officer nor any findings given in inquiry report in that regard as directed under the remand order. The findings on charge No, viii are verbatim of the earlier findings. Under such circumstances what was the reason/justification which compelled inquiry officer for recommendation of enhancement in punishment is perplexing/dubious and done mala fidely.
21. The competent authority issued show cause-cum- personal hearing notice dated 17.7.2014 under Section 13(4) of the Act ibid, appointed Mr. Khalid Masood Chaudhary as hearing officer. Appellant replied by reiterating his earlier stance. The hearing officer agreeing with the findings of the inquiry officer recommended his findings in a mechanical manner without discussing the charges attributed. Thereafter the competent authority without application of judicious mind passed the order holding appellant guilty by imposing major penalty of reduction to lower post and pay scale for three years coupled with withholding of two increments for a period of two years on appellant.
22. The competent authority did not bother to glance its remand order wherein directions were to review only gravity of charges which stood partially proved but the inquiry officer went beyond the mandate and recommended for enhancement Of punishment on the basis of charge No, viii which stood proved in the 1st inquiry. Moreover, while enhancing penalty the Competent Authority failed to specify/explicitly give reasons in its remand orders dated 01.01.2014 and 28.10.2014.
23. Reliance is placed on 2013 SCM R 372 titled as "G.M. Pakistan Railways and others v. Muhammad Rafique":--- "The show-cause notice dated 5-11-1991 appended with the petition does not explicitly give reasons for enhancement and merely mentions that the penalty awarded was not commensurate with the gravity of the offence. Under the law broadly there are two kinds of penalties i,e, major and minor. The competent authority while awarding the penalty has to keep in mind the gravity of the charge in the attending circumstances. In partly allowing the appeal and restoring the original penalty awarded by the competent authority, the learned Tribunal was persuaded by the fact that the General Manager Railways while enhancing penalty had not given reasons. The said finding of the Tribunal has not been found by us to be arbitrary, against the record or the law declared".
4. In view of what has been discussed above, this appeal is partly allowed, impugned orders dated 29.10.2014 and 21.4.2015 are modified to the extent that the penalty of reduction to lower post and pay scale for three years is set aside and withholding of two increments for a period of two years shall remain intact.