MUHAMMAD SHAN GUL, J:- Through this judgment the titled constitutio nal petition as also constitutional petitions bearing No.17713 of 2019, 12855 of 2021, 18071 of 2016, Crl. Org. No.814 W/2018 and Crl. Org. No.927-W/2018 are sought to be decided. All these petitions have been filed by the same person against the same Administrative Department challenging various orders of transfer , posting, suspension and dismissal from service passed against the petitioner by the Administrative Department of Local Government & Commu nity Development, Province of Punjab.
2. In W.P. No. 17713 of 2019 the petitioner has laid a challenge to an order dated 08.11.2019 passed by Secretary, Punjab Local Government & Community Development Department, Lahore wherein according to him despite an order of restraint passed by this Court in W.P. No.13654/2019, the impugned order has been passed by which additional charge of the post of Chief Officer, Municipal Committee, Chowk Sarwar Shaheed has been assigned to Chief Officer, Town Committee, Dera Din Panah in addition to his own duties whereas pursuant to the previous order, petitioner had the charge of the post of Chief Officer, Municipal Committee, Chowk Sarwar Shaheed.
3. In W.P. No.18071/2016 the petitioner has laid a challenge to the order dated 04.11.2016 passed by Secretary , Punjab Local Government & Community Development Department, Lahore/respon dent No.2 whereby respondent No.2 has rejected the appeal of the petitioner on the ground that up gradation of the post of the petitioner was made without obtaining the prior approval of the competent authority .
4. In W.P. No.12855/2021 the petitioner has laid a challenge to the order dated 10.8.2021 passed by Secretary , Punjab Local Government & Community Development Department, Lahore/respon dent No.2 whereby respondent No.2 imposed major penalty of dismissal from service upon the petitioner in terms of section 4(1)(b)(vi) of the PEEDA Act, 2006.
5. In Crl. Org. No.814-W/2018 the petitioner has sought initiation of contempt proceedings against the respondents for violating order of this Court dated 28.5.2018 passed in Crl. Org . No.315-W of 2017.
6. In Crl. Org. No.927-W/2018 the petitioner has sought initiation of contempt proceedings against the respondents for violating order of this Court dated 05.7.2018 passed in Crl. Org . No.315-W of 2017.
7. The present petition No.10683/2021 was filed by the petitioner against the impugned order dated 04.10.2019, show cause notice dated 10.6.2021 and personal hearing notice dated 01.7.2021. According to the counsel for the petitioner the petitioner is an employee of the Punjab Local Government Board, an attached department of the Local Government & Community Development Department and the petitioner, according to him, has been targeted, victimized and exploited by the Administrative Department for no apparent fault of his and such exploitation has finally resulted in a show cause notice dated 10.6.2021.
8. He submits that eversince conversion of his post of Tax Inspector to which he was appointed on 14.7.1993 to that of Chief Officer in BS-14 on 28.12.2005, he has been the focus of attention, albeit negative, for the respondent-department. The counsel for the petitioner submits that his post of Tax Inspector was converted into Chief Officer of the Municipal Committee by the competent authority at the relevant time and in the garb of proceedings under PEEDA Act, 2006 the respondents were bent upon profession ally strangulating the petitioner and coercing him into submission.
9. This petition was admitted on 12.7.2021 and by way of interim relief it was ordered that no adverse or final order shall be passed against the petitioner till the next date of hearing . This petition was then posted for hearing for 15.7.2021. On 15.7.2021 parawise comments were submitted and certain connected petitions (mentioned above) were ordered to be clubbed along with the present petition. Injunctive relief granted vide order dated 12.7.2021 was extended till the next date of hearing. On 30.7.2021, the matter was again clubbed for hearing but was adjourned so as to allow the counsel for the petitioner an opportunity to read up the comments so submitted. However, no order extending injunctive relief was passed. The matter then posted for hearing for 09.8.2021 and on which date with mutual consent of the counsel for the parties the hearing was adjourned for 14.9.2021. Again there was no order for extending the injunctive relief provided on the first date of hearing. The matter was thereafter listed for hearing twice but no further extension in injunctive relief was ordered.
10. The respondent-department gaining impetus albeit wrongly from the non-extension of injunctive relief went ahead with the disciplinary proceedings against the petitioner and imposed the major penalty of dismissal from service on 10.8.2021 and the petitioner was shown the door .
11. In issue before this Court are the following four questions:- (a). What is the effect of non-extension of order granting injunctive relief when the said relief had been granted till next date of hearing.
(b). Can the respondent-department be allowed to reap benefits out of its own illegality?
(c). Whether the penalty imposed on the petitioner in the very peculiar facts and circumstances of the case is proportionate or excessive?
(d). Relief to be given in the present circumstances.
12. When this case was listed for hearing on 08.9.2021, this Court was surprised to learn that in the presence of injunctive relief, an order of dismissal from service had been passed and, therefore, this Court directed for the Administrative Secretary of the Local Government & Community Development to be present in person before this Court so as to answer the queries of the Court.
13. Today , the Secretary , Local Governme nt & Community Development is present in the Court and submits that on account of disconnect between the intern al accountability board of the departmen t on the one hand and the legal wing on the other , the correct legal posit ion had not been brought into his notice and even the petitioner had not objected to the passage of the final order that he passed on 10.8.2021 and that he unequivocally submits himself to the Court and shall implement whatever direction is sent his way. While throwing in the gauntlet he prayed for compassion and leniency . Even the coun sel for the petitioner halfheartedly argued about the initiation of contempt proceedings but chose not to press the same when once he realized that the Administrative Secretary had himself requested the Court to put things back on an even keel. No such petition for initiating proceedings in contempt has been filed in any case.
BRIEF HIST ORY OF THE CASE
14. The petitioner was initially appointed as Tax Inspector (BS-08) by Chairman, Municipal Committee, Kot Addu on 04.7.1993. The legal regime governing such appointment and providing for terms and conditions of such appointment was at that time the Municipal Committee Service Rules, 1969 repealed by Punjab Local Council Servants (Service) Rules, 1997. The said post of Tax Inspector was upgraded to BS-1 1 on 20.2.1995 and then subsequently to BS-14 on 05.9.1995 by the then Administrator , Kot Addu. The indecent haste and hurry is what is being banked upon by the respondent-department.
15. The then Tehsil Nazim, Kot Addu posted the petitioner as Chief Officer, Unit Sinawana, in his own pay and scale on 16.6.2002. This according to the version of the Administrative Department is a violation of Rule 4(8) of the TMA Rules of Business, 2002 because according to the department a Tehsil Nazim could only assign additional charge of the post of a Chief Officer to any other Tehsil/Town Officer or a Chief Officer and not a Tax Inspector. According to the department the petitioner was not entitled to be posted against the post of Chief Officer since the post of Chief Officer falls in a different cadre and is governed under Punjab District Service (Tehsil/TMA Cadre) Rules, 2005 as opposed to Punjab Local Government Servants (Service) Rules, 1997. Even though it is the considered stance of the Administrative Department that a servant of Local Government cannot be posted or appointed against a post belonging to TMA cadre service, this order was confirmed by the then DCO, Muzaffargarh on 27.7.2002. No action whatsoever was initiated or taken against the then DCO, Muzaffargarh and the respondent-department acquiesced in the matter, so to speak.
16. The petitioner was then appointed Chief Officer in BS-14 on regular basis by the then Tehsil Nazim, Kot Addu on 28.2.2006. This according to the department was again illegal because only an incumbent occupying substantive post of Chief Officer could have been appointed and besides the post was never advertised. No action was, however , taken and petitioner was allowed to assume duty .
17. The petitioner was then transferred and posted as Chief Officer, Khan Garh, TMA, Muzaf fargarh, by the Commissioner , D.G. Khan on 25.2.2014 but this order was withdrawn by the Commissioner himself and the petitioner was directed to report to the Tehsil Nazim, TMA, Kot Addu for posting on his original post of Tax Inspector in BS-14. This is first time that the Administrative Department or Administrative hierarchy woke up from its slumber and stopped the petitioner from assuming what according to the department was an illegal assumption of charge.
18. The petitioner approached this Court by filing W.P. No.8927/2014 which was disposed of by ordering for the petition to be treated as a representation. No injunctive relief was granted.
19. Tehsil Municipal Administration, Khan Garh relieved the petitioner and asked him to report to the Local Government Department. This was technically wrong because he ought to have been sent to TMA, Kot Addu as Tax Inspector .
20. This order of Tehsil Municipal Corporation, Khan Garh was challenged by the petitioner by filing W.P.
No.9926/2016 and by means of order dated 22.6.2016 the impugned order was suspended and the petition was ordered to be treated as an appeal so as to be decided by the Secretary , Local Government and Community Development Department.
21. By a consolidated order dated 04.11.2016, the representation and the appeal were rejected. The petitioner again laid a challenge to this order dated 04.11.2016 by filing W.P. No.18081/2016 and which is still pending adjudication and fixed before this Court today and in which a direction dated 16.12.2016 was passed directing for no adverse action to be taken against the petitioner .
22. The petitioner was then posted as Chief Officer, Chowk Sarwar Shaheed by the then Commissioner , D.G. Khan on 17.8.2018 but this order was again withdrawn on 20.8.2018 and another person Jawad-ul Hassan (BS-10) was appointed against the said post on 20.8.2018.
23. The litigious petitioner again filed W.P. No.11909/2018 and again this petition was disposed of with a direction to treat it as a representation vide order dated 24.8.2018.
24. By about this time, according to the department, it had gained acquaintance with the alleged shenanigans of the petitioner and, therefore, disciplinary proceedings under PEEDA Act, 2006 were initiated against the petitioner on 04.10.2019. In the meanwhile, one Jawad-ul-Hassan BS-16 was posted as Chief Officer by Municipal Committee, Haveli Lakha on 17.9.2019 and the petitioner again laid a challenge to it by means of W.P.
No.3721/2020 wherein the order posting Jawad-ul-Hassan was suspended on 24.4.2020 and the matter was remitted to the Chief Secretary for a decision.
25. As a result of disciplinary proceedings initiated against the petitioner and as a result of the consequent inquiry , a show cause notice under section 13(4) of the PEEDA Act, 2006 was issued to the petitioner who evaded personal hearing on 12.7.2021 and filed constitutio nal petition No.10683/2021 (the present petition under adjudication) and obtained injunctive relief from the Court on 12.7.2021 in the following terms, no final order shall be passed till the next date of hearing." This order was not extended on 30.7.2021 as also on 09.8.2021 and on 10.8.2021, the petitioner after being heard in person, was dismissed from service. Having recorded the chequered history of the petitioners? association with his department it is indeed time to address the legal issues noted in the earlier part of this judgment.
26. It is trite that the injunctive relief once granted by a High Court, even if granted till the next date of hearing, remains in force and its operation remains in effect till the time the Court itself positively intervenes in the matter and by means of application of judicial mind recalls, modifies, vacates or suspends such injunctive relief itself. In Raja Talat Mehmood v. Ismat Ehtisham-ul-Haq (1999 SCMR 2215 ), it has been unequivocally held that no specific order was required to be passed on each date of hearing while extending injunctive relief and that injunctive relief once granted could only be rendered of no legal effect if the High Court were to vacate it itself. The precedent case notes that when no request was made for discharge of injunctive relief, the legal position would be that the injunctive relief would continue despite no specific order having been passed extending the order granting injunctive relief. In "Raja Talat Mehmood v. Ismat Ehtisham ul-Haq " (2000 MLD 1755 ), the master of civil laws, Mr. Justice Mian Saqib Nisar has held that an injunctive order even if not extend ed by a specific order would be extended and it would be presumed that the extension had been granted. In the same judgment, it has been noted that any order granting interim relief will remain in force and operational till the date such interim relief order was either expressly cancelled, vacated or recalled through an order or the case is finally disposed of.
27. The rationale behind this rule has quite aptly been explained by the Madhya Pradesh High Court in "Smt.
Sangeeta Bansal v. State of M.P. & others" (AIR 2015 Madhya Pradesh 51). In the said judgment, it has been noted that since an injunctive order is provided after application of mind to a case at hand, it follows that the same exercise of application of mind and consideration is necessary to be undertaken while withdrawing, recalling or vacating the order providing injunctive relief. "While determining the extension or otherwise of a stay order passed till next date of hearing? and not extended specifically in later proceedings it should be noted that since date of hearing is the date upon which the Court issuing a stay order applied its judicial mind to the issue of the case, hence, unless a proper hearing takes place wherein competing contentions are addressed, the injunctive order shall be deemed to be operative even if it is not extended specifically and the acts done by the parties after passing of such interim order will always be analyzed with reference to the said interim order." In "Vishnu Dutt Sharma and etc. v. Regional Joint Director of Education, Agra and etc." (AIR 2001 Allahabad 165), it has been held as follows:- "The law thus appears to be settled, so far this Court is concerned, that time bound stay orders do not cease to be effective by efflux of time. The result in law is that a time bound order has the same effect as an order till further orders of the Cour t. In other words it continues to opera te till it is recalled, vacated or modified . The Rules also do not provide for time bound stay orders."
28. In "Ram Abilakh Misra v. Cane Commissioner and others"(1996 LCD 734), the Allahbad High Court provides an alternative yet convincing logic behind this rule and attributes the same to pendency of a large number of cases in a court making it impossible for the court to take up each and every case and apply its judicial mind to it. This results, the judgment holds, in a case being brought from the record room only to be taken back to it without being touched judicially.
"I have given my anxious consideration to this aspect of the matter and am of the view that a judicial order continues until and unless the same is vacated or not extended on the case being taken up. It shall not lapse of its own when the case though shown in the dally cause list is not taken up by the Court. Everybody about 50-60 or more cases are listed in the daily cause list but only extremely urgent cases on the request of the counsel are taken up and the rest of the cases are not even called out due to lack of time. In these circumstances, merely because the order, was not extended by passing another judicial order, it cannot be said that even in absence of any order being passed by the Court the interim order earlier passed lapses automatically."
29. From the above it is evident that interim orders (specifically stay orders affecting rights of the parties) even if issued "till the next date of hearing" are presumed to be in force until final adjudication or until such orders are specifically modified or vacated.
30. Having answered the first question quite categorically and having noted that injunctive relief provided till next date of hearing holds even if the same is not extended on the subsequent date, it is time to move on to the second question framed.
31. It is a fact that by refusing to follow acknowledged law, explained above, the respondent-department dismissed the petitioner from service and reaped the benefits of its own illegality . In "Milkmen Producer Cooperative Society Limited and 8 others v. Commissioner Rawalpindi Division, Rawalpindi and 5 others " (PLD 2001 Lahore 444), it has been held at paragraph No.11 that, "by contravening an injunctive order the party against whom the order is passed has done something for its own advantage to the disadvantage of the other party , this Court under its inherent jurisdiction in terms of Section 151 CPC can bring back the party and restore to its position where it originally stood by deeming that the violation never occurred. This salutary principle has been laid down so that no party is allowed to take advantage of his wrong in spite of order to the contrary passed by the Court ."
32. In "Bakhtawar etc. v . Amin etc. " (1980 SCMR 89 ), it has been held as follows:- "It is well settled that when by contravening an injunction order the party against whom the order is passed has done something for its own advantage to disadvantage of the other party, it is open to the Court under its inherent jurisdiction to bring back the party to a position where it originally stood, as if the order had not been contravened. The exercise of this inherent power is based on the principle that no party can be allowed to take advantage of his own wrong in spite of the order to the contrary pissed by the Court."
33. In "Messrs Chaudhry Sugar Mills Ltd. v. Province of Punjab and others " (PLD 2017 Lahore 848), a Division Bench of this Court has reiterated the principle of law noted above.
34. In "Iftikhar Ali v. Javaid Dastgeer Mirza and 6 others " (PLD 1975 Lahore 126) , it has been held as follows: - "5........An injunction is a most solemn and authoritative form of order made by the Court expressly enjoining a party either to do a particular act, in which case the injunction is known as a mandatory injunction, or to refrain from doing a particular act, in which case the injunction is known as a prohibitory injunction. When an injunction order has been issued, it must be obeyed; and the only remedy of the aggrieved party is to come up in appeal to a superior Court to have the order vacated. So long as the order stands and its operation has not been suspended by another Court or by the Court which passed the order, it will not be tolerated that any person should disobey that order. It is so because the administration of justice can only be effective if it has the means to enforce Court orders. In Spokes v. Banbury Board of Bealth (1865) L R 1 Eq. 42, Wood, V-C., said that "the simple and only view is that an order must be obeyed, that those who wish to get rid of that order must do so by the proper course, an appeal. So long as it exists, the order must be obeyed, and obeyed to the letter, ". Again, in Knight v. Clifton (1971) 2 All E R 378 at p. 393 (C A) Sachs, L. J., observed that "when an injunction prohibits an act, that prohibition is absolute, and is not to be related to intent unless otherwise stated on the face of the order . . . . . ." In Eastern Trust Co. v.
McKenzie Mann & Co. Ltd. 1915 A C 750 (P C), Sir George Farwell observed that it should perhaps be added that an interim or interlocutory injunction has the same force as a final order, and that the same principles of obedience apply. It is thus settled that a person cannot disregard an order or an injunction of a Court, and if he, in fact, disobeys it, he does so at his peril."
35. The answer to the second question is also crystal and leaves no room for any other interpretation. The dismissal order dated 10.8.2021 has to be declared to be of no legal ef fect!
36. The third question confronting the Court relates to the proportionality of action taken by the respondent- department against the petitioner . The petitioner has been dismissed from service because the department believes that the petitioner has maneuvered his unprecedented promotions and has exploited his relations with politicians to gain an indecently speedy progression in career and has, therefore, violated the law with impunity . On the face of it, these grounds do not carry much weight when measured in the context of the fact that no action whatsoever was taken by the Administ rative Department or even by the Provincial Government against the Municipal Corporation officials as also the civil servants who had remained in league with the petitioner and on whose behest he had benefitted. This, therefore, renders the department as a contributory in the matter . The department remained in a state of slumber and took no action. Not even against the then D.G. Khan Commissioner who was instrumental in posting the petitioner twice against posts which the department believes could not have been occupied by the petitioner . Put simply , the department tacitly allowed the petitioner by way of persistent omission in retaining fruits of alleged unjust enrichment. The petitioner has been able to do what he has done and whatsoever that has caused offence to the department only because he was allowed to do so and in fact he was helped and aided in doing so by the executive itself. Therefore, the penalty of dismissal from service imposed on the petitioner is indeed excessive, irratio nal and disproportionate. The penalty is reflective, prima facie , of dislike and disdain for the petitioner on account of his litigious nature. A proportionate penalty, it may be observed, may have been to revert him to his original position of Tax Inspector , if at all.
37. Proportionality means that a measure which interferes with an individuals? rights must not only be authorized by law but must correspond to a special social need and go no further than what is strictly necessary in a pluralistic society to achieve its permitted purpose. That a measure must be appropriate and necessary to its legitimate aim.
When there is a choice between several appropriate measures, recourse must be had to the least onerous and the disadvantages caused must not be disproportionate to the aims pursued. In R v. Secretary of State ex p Brind (1991) 1 AC 696, the House of Lords has adopted a picturesque way of describing the test of proportionality while observing the Secretary of State has used a sledg ehammer to crack a nut.' In the matter before this Court the Administrative Secretary by imposing the extreme penalty of dismissal from service has allowed his action to be labeled as disproportionate because of the contributory negligence of the department itself in allusively perpetuating petitioners' rise in service and in remaining a silent spectator throughout.
38. In R v. London Borough of Newham (2004) EWCA 55, Lord Justice Laws has held that a public body may choose to deploy powers it enjoys under a statute in so draconian a fashion that the hardship suffered by affected individuals in consequence will justify the Court in condemning the exercise as irrational or even disproportionate.
39. In Ghosh v. General Medical Council (2001) 1 WLR 1915 , it has been held that in the matter of disciplinary proceedings, the Court can decide whether the sanction imposed was appropriate and necessary in the public interest or was excessive and disproportionate.
40. In R v. Secretary of State ex p Benwell (1985) QBD 554, it has been held that in an extreme case an administrative penalty can be successfully attacked on the ground that it was so disproportionate to the offence so as to be perverse.
41. Our own Hon'ble Supreme Court in "Muhammad Sharif v. Inspector General " (2021 SCMR 962), has alluded to the application of doctrine of proportionality in the context of administrative law proceedings and noted it with approval. Similar observations have been made in "MCB v. Ghulam Muhammad " (2008 PLC 40) by the Sindh High Court.
42. Analyzing the penalty of dismissal from service imposed upon the petitioner on the touchstone of the precedent cases noted above, it can very easily be observed that the penalty imposed on the petitioner is indeed disproportionate, excessive and possibly irrational. If the complaint or grievance of the department pertained to the petitioner assuming the charge of a Chief Officer then a proportionate penalty would have been to revert him to his original yet upgraded post of Tax Inspector, ceteris paribus!
43. The discussion made above brings us to the final question about relief. It is clear that the penalty was imposed on the petitioner while disregarding the injunctive relief provided by this Court and, therefore, the penalty is declared to be of no legal effect. The petitioner is, therefore, placed at the same position that he was before the said penalty was imposed. The matter is remanded to the Secretary , Local Government and Community Development Department for taking a fresh look at the matter after associating the petitioner . Constitutional petitions No.10683/2021 and 10855/2021 are allowed while all other petitions mentioned in the earlier part of this judgment are disposed of .