IRFAN SAADAT KHAN, J.---The instant petition has been filed with the following prayer:- "a). Set-aside the impugned Punishment order dated 02.09.2004 (Annexure-"C" and Departmental Appellate order dated 28.10.2004 (Annexure-"M") as illegal, unlawful and without any legal effect. b). Re-instate the Petitioner in service w,e,f, from 16.08.2001 to his post of Assistant (BPS-15) with all back benefits. c). The period of suspension w,e,f, 24.05.2000 to 15.08.2001 may be treated on duty. d). Grant any other relief as this Honourable Court may dream fit and proper under the circumstances and nature of the case, and e). Cost of Petition may also be allowed."
2. Briefly stated the facts of the me are that the petitioner had joined the service as Time Scale Clerk (BS-7) in East-Pakistan (now Bangladesh) Telegraph and Telephone Department now Pakistan Telecommunication Company Limited on 17.1.1963 and thereafter he was promoted as Lower Selection Grade Clerk (BS-9) on 4.2.1988 and subsequently was granted Selection Grade (BS-15) on 15.12.1992. Then, the petitioner was granted move-over in BS-16 vide order dated 2005 w.e. f. 1.12.1998. Upon receiving some complaints against the petitioner disciplinary proceedings were initiated against him in the year 2000 and thereafter he was served with the charge sheet on 8.6.2000 alleging a number of charges against him. The petitioner filed his reply by denying these allegations and thereafter on 8.6.2000 an enquiry officer was appointed to conduct an enquiry, who conducted the enquiry from 26.8.2000 to 11.9.2000. Thereafter, the petitioner was served with a show-cause notice dated 17.10.2000 by the D.E. Clifton Telephone Exchange against which the petitioner put-up his defence and denied all the charges levelled against him, however, vide order dated 16.8.2001 the service of the petitioner was terminated. The petitioner then filed a department appeal on 10.9.2001, which also was dismissed vide order dated 16.9.2001 and against which the petitioner filed appeal bearing Appeal No,67(K)(CS)/2002 before the Federal Service Tribunal (FST) and the FST vide judgment dated 16.6.2004 accepted the appeal and set aside the impugned order dated 16.8.2001 and the appellate order dated 16.9.2001 and directed the respondents-department to initiate "de novo proceedings" against the petitioner and complete the same within a period of four months. The FST, however, left open the question of back benefits on the outcome of the fresh proceedings against the petitioner within the stipulated period, failing which the petitioner shall be entitled to back benefits. The respondents-department then once again initiated proceedings against the petition and issued a show-cause notice dated 27.7.2004 to him. In respect of which the petitioner furnished a comprehensive reply dated 3.8.2004 to the Deputy General Manager who after considering the reply furnished by the petitioner passed the Punishment Order (PO) dated 2.9.2004. The petitioner then filed a departmental appeal, which was dismissed vide order dated 28.10.2004. The petition then filed a grievance petition before FST which was dismissed vide order dated 7.10.2008 by directing the petitioner to approach the appropriate forum for redressal of his grievance. The petitioner then moved an application under section 151, C.P.C. before the FST in Appeal No,240(K)(CS)/2004 praying therein that his appeal has wrongly been abated and may be restored to its original position and thereafter his application was allowed and the matter was restored to its original position vide order dated 20.2.2009. Again, the matter was heard by the FST and this time also the FST vide order dated 14.6.2010 abated the appeal by directing the petitioner to approach the appropriate forum for redressal of his grievance. Again, an application bearing MP No,194 of 2011 in Appeal No,240(K)(CS)/2004 was moved by the petitioner before the FST and once again vide, order dated 9.1.2015 the appeal of the petitioner was restored to its original position. The appeal thereafter was again heard by the FST and this time too, the appeal was dismissed vide order dated 27.4.2015 and the petitioner was directed to approach the appropriate forum for redressal of his grievance. The petitioner then approached the Hon'ble Supreme Court of Pakistan through Civil Appeal No,157-K of 2015 and the Hon'ble Apex Court vide judgment dated 15.8.2016 observed that the proper remedy for the petitioner was to invoke constitutional jurisdiction of the High Court, rather than filing an appeal before the FST. It was then the instant petition has been filed by impugning the PO of 2.9.2004 and the order dated 28.10.2004 passed on the representation filed by the petitioner.
3. The petitioner has appeared in person and has stated that the P.O. passed by the respondent No,3 is illegal since he was not competent person to pass the order and, thus, the order is void ab initio. He further stated that no enquiry in the instant matter was conducted and the petitioner was straightaway issued a show-cause notice by the Respondent No,3 and hence, all the proceedings initiated without conducting the enquiry are void ab initio and may be declared illegal and unlawful. He also stated that the FST while remanding the matter to the respondents has categorically directed for initiation of "de novo proceedings" against the petitioner, rather than, conducting de novo proceedings the Respondent No,3 started proceedings by issuing show-cause notice without conducting any independent enquiry which is illegal and uncalled for as according to the petitioner the parameters of section 5(1) and section 5(1)(a) of the Removal from Service (Special Powers) Ordinance, 2000 (now repealed) have not been followed in letter and spirit. He further stated that since the Respondent No,3 has not followed the directions of the FST the PO order may be vacated. He further stated that in the representation also the respondent No,2 did not consider the matter and has affirmed the PO without any legal and lawful justification. He stated that he, therefore, may be reinstated into service from 16.8.2001 and his suspension period from 24.5.2000 to 15.8.2001 may be treated as on duty. In support of his above contentions the petitioner has relied upon the following judgments:-
(1) Shakeel Ahmed v. P.T.C.L. and others (2017 PLC (C.S.) Note 76, p. 78).
(2) Federation of Pakistan and another v. Gohar Riaz (2004 SCMR 1662).
(3) Noor Muhammad v. Air Chief Martial of Pakistan and others (1990 PLC (C.S.) 246).
(4) The Province of Punjab v. Khan Khaliq Dad Khan (PLD 1953 Lahore 295)
4. Mr. Abdul Moiz Jaferii Advocate has appeared on behalf of Respondents Nos,2 to 7 and has vehemently opposed the instant petition. He stated that the PO was passed by the competent authority. He further stated that due opportunity of hearing was provided to the petitioner since a show-cause notice was issued to him in respect of which he had furnished his reply and after considering his reply and the material available on record the Respondent No,3 thereafter passed the PO and the services of the petitioner were dispensed with by compulsory retiring him from service w,e,f, 16.8,2001, which was rightly upheld by the Respondent No,2. He submitted that there are a number of allegations upon the petitioner since he was in the habit of making frivolous complaints against his superiors before different authorities. He stated that the interpretation of the "de novo proceeding" placed by the petitioner is not correct since in his view "de novo proceedings" were rightly initiated against him by issuing a proper show-cause notice to him which was duly replied by him hence there was no question of any enquiry in this matter since the documents and the material of the previous enquiry were already available with the Respondent No,3, which according to him is evident from the fact that a comprehensive reply was furnished by the petitioner in this behalf. In support of his contention the learned counsel has read out section 5(4) of the RSO, 2000. He further stated that petitioner does not have a good service record and there were several complaints against him, which according to him is quite evident from the charge- sheet, comprising of four voluminous pages. He submitted that the present claims of the petitioner are misplaced since he was given a back dated promotion and the claims now made by him are not available to him since he was compulsory retired from the service from 16.8.2001 hence the question of allowing him hack benefits, etc. from the period i,e,, 16.8.2001 does not arise. In the end he submitted that the decisions relied upon by the petitioner are distinguishable from the facts obtaining in the instant petition and the petition being meritless may be dismissed with cost by affirming the PO dated 2.9.2004 and the decision on the representation filed by the petitioner dated 28.10.2004.
5. Shaikh Liaquat Hussain, Assistant Attorney General for Pakistan has appeared for Respondents Nos,1 and 8 and has adopted the arguments of the learned counsel for the Respondents Nos,2 to 7 and has prayed for dismissal of the instant petition.
6. We have heard the petitioner and both the learned counsel for the respondents at considerable length and have perused the record and have also gone through the decisions relied upon by the petitioner.
7. From the pleadings of the petitioner and the respondents two questions are seen to be arising in the instant matter; 1) whether the PO has been passed by the competent authority and 2) whether the respondents have acted as per the directions given by the FST with regard to the de novo proceedings in accordance with law. So far as the first question is concerned, it is seen that the PO has been issued by the Deputy General Manager i,e,, respondent No,3 to whom a due authority has been accorded by his superior authorities to act as competent authority, which is evident from the documents furnished by the learned counsel for the respondents Nos,2 to 7 in this behalf, hence, so far as this aspect of The matter is concerned, we repel the arguments of the petitioner. Apropos, the question of de novo proceedings is concerned, before proceeding any further, we would like to discuss what is the term "de novo" connotes. As per Black's Law Dictionary "de novo" means a "new, afresh" and "de novo trial" means "trying a matter anew, as if the same had not been heard before and as if no decision had been previously rendered". As per Words and Phrases, Volume 12, "de novo" means "fresh, anew", "a trial as if no action whatever had been instituted in Court below", "a trial, appeal, which is to be tried anew to try a case/suit as if the matter has been filed originally in Court", "a case which is to be heard as if it were original proceedings", "a trial as if no action whatever had been initiated in the Court below", "de novo hearing" means "hearing to all the parties to the proceeding". As per Ballentine's Law Dictionary "de novo" means "anew; over again; a second time" and "trial de nova" means "trying anew the matter involved in an administrative determination the same as if it had not been heard before and as if no decision had been previously rendered, the hearing being upon the record made before the administrative agency and such further evidence as either party may see fit to produce". As per Cornell Law School Legal Information Institute "de novo" means "When a court hears a case de novo, it is deciding the issues without reference to any legal conclusion or assumption made by the previous Court to hear the case". An appellate Court hearing a case de novo may refer to the lower Court's record to determine the facts, but will but rule on the evidence and matters of law without deferring to that Court's findings. A trial Court may also hear a case de novo following the appeal of an arbitration decision. De novo review occurs when a Court decides an issue without deference to a previous Court's decision. Trial de novo occurs when a Court decides all issues in a case, as if the case was being heard for the first time. As per Handbook of Legal Terms and Phrases by M. Ilyas Khan "de novo" means "it is held that evidence recorded in previous trial cannot be read as evidence in any subsequent proceedings. Such an evidence would be relevant only if witness are not to be found for reasons mentioned in section 33 Evidence Act. Court erroneously placing reliance upon evidence recorded during previous trial-On proceedings of de novo trial, held, vitiated. Zafrullah v.
State 1972 PCr.LJ 734 [Lahr As per Concise Oxford English Dictionary "de novo"' means "anew, from new". As per Wharton's Law Lexicon "de novo" means "afresh; anew", "if the trial is to be afresh and anew, then everything previous to the commencement of the fresh trial is wiped out".
8. From the above it is clear that de novo connotes something which has to be started afresh, as if there were no proceedings initiated previously. If the present case is examined, it would be seen that the FST directed the respondents to initiate "de novo proceedings" which, in our view, means that the proceedings have to be initiated from the very beginning, keeping in view the provisions of RSO, as if there were no proceedings initiated previously. The FST while allowing the appeal has observed that the proceedings initiated earlier were null and void since these were not initiated as per the RSO and hence had rendered the impugned order not sustainable. The FST, while setting aside the impugned order, has again observed that the proceedings against the present petitioner were to be initiated under the provisions of the RSO and are to be completed within a period of four months' time. Though the proceedings were completed within a period of four months' time but, in our view, while doing so the provisions of RSO have not been complied with in letter and spirit, which view is strengthened from the fact that firstly no de novo proceedings were initiated by the respondents rather it has categorically teen observed in the show-cause notice dated 27.07.2004 that the show-cause notice is being served after dispensing the enquiry as per powers conferred upon the competent authority, which clearly stipulates that the proceedings were initiated from the stage of show-cause notice and thereafter providing the opportunity of hearing to the present petitioner the PO was passed.
9. Now the question would arise that whether initiation of the proceedings from the stage of show- cause notice, without conducting an independent enquiry, would be considered de novo proceedings? Again, in our view, the answer to this question would be in emphatic "No", since, as stated above, de novo means initiation of fresh proceedings as if there were no proceedings initiated earlier. Hence, in our view, while proceeding de novo all the parameters as enshrined in the. RSO have to be initiated from the very beginning and all the provisions of the RSO in this behalf have to be complied with in letter and spirit. It is an admitted position that in the instant case no regular enquiry in de novo proceedings has been conducted and the proceedings have been initiated against the petitioner after dispensing the enquiry in view of subsection (4) of section 5 of the RSO. Now the question is whether the proceedings with regard to enquiry could be dispensed with? In our view, this proposition has already been laid at rest by a number of judgments given by the Hon'ble Supreme Court of Pakistan wherein it has been held that in order to determine the guilt or innocence of a person a fair and reasonable opportunity to make defence to a party is his primary right.
10. It is also an admitted position that while initiating proceedings against the petitioner major penalty of compulsory retirement has been imposed upon him without there being any regular enquiry, which as per the respondents has been dispensed with. It is thus clear that the respondent No,3 while initiating proceedings against the petitioner has not applied his independent mind while passing the PO and had relied upon the enquiry conducted previously against the petitioner and the material gathered by the Enquiry Officer in the earlier enquiry, meaning thereby there was neither an independent application of mind nor fresh regular enquiry in de novo proceedings which, in our view, was imperative. It is also an undeniable position that when show-cause notice was issued to the petitioner he categorically denied all the charges levelled against him and through his letter dated 3.8.2014 apprised the respondent No,3 that since he is proceeding de novo against him, the regular enquiry is imperative but no regular enquiry was conducted rather in a perfunctory manner punishment order dated 02.09.2004 was issued by imposing a major penalty of compulsory retirement upon the petitioner. We are of the view that when the petitioner has categorically denied all the charges levelled against him, it was imperative upon the respondents to hold a regular enquiry to examine the veracity of the submissions of the petitioner and simple reliance on the previous enquiry and the material gathered previously could by no stretch of imagination be considered a proper dispensation of justice. No doubt the law has provided for dispensation of enquiry but, in our view, regular enquiry becomes inevitable when a specific denial in respect of the allegations is made by a person. In the instant case also when initiating de novo proceedings against the petitioner, which means initiation of proceedings afresh, in view of the specific denial of the allegations by the petitioner dispensation of regular enquiry by the respondent No,3 in the present circumstances appears to be totally uncalled for.
11. We have made some research in the instant matter and have come to the irresistible conclusion, in view of the decisions cited below, that holding of regular enquiry in case of imposition of major penalty is a prerequisite and mandatory condition which could not be dispensed with. Reference in this regard may be made to the following decisions:
1. Naseeb Khan v. D.S. Pakistan Railways (2008 SCMR 1369).
2.. Alamgir v. Divisional Forest Officer, Multan (1992 SCMR 603).
3. Nawab Khan v. Government of Pakistan (Ministry of Defence) (PLD 1994 SC 222).
4 Basharat Ali v. Director Excise and Taxation Lahore (1997 SCMR 1543).
12. It was further held in the decisions reported below that holding of enquiry is an essential condition to prove the charges of fact, which could not be dispensed with. Reference in this regard may be made to the following decisions:
1. Muhammad Haleem v. General Manager (Operation) Pakistan Railways Headquarter, Lahore (2009 SCMR 339).
2. Executive Engineer GEPCO Limited v. Liaqat Ali (2009 PLC (C. S.) 987).
3. Chief Election Commissioner of Pakistan v. Miss Nasreen Pervez (2009 PLC (C. S.) 650).
4. Muhammad Naeem Akhtar v. Managing Director Water and Sanitation Agency LDA, Lahore and others (2017 SCM R 356).
13. The upshot of the above discussion is that the impugned orders are found to be not in accordance with law, accordingly, the same are hereby set aside.
14. In view of the above legal position of the case, since the petitioner has already attained the age of superannuation no regular enquiry now could be conducted, hence, in view of the facts and circumstances of the case, we 'direct the respondents to award back I benefits to the petitioner w,e,f, 16.08.2001 till the retirement of the petitioner on attaining the age of superannuation and his suspension period from 24.05.2000 to 15.08.2000 is to be treated as leave with pay.
15. The instant petition stands allowed in the above terms.