AHMAD ALI, J.---- Through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners are seeking the following relief: It is, therefore, prayed that on acceptance of the instant petition, this Hon'ble Court be pleased to: i. Set aside the backdated impugned Termination Orders dated 19.01.2017 issued illegally against the petitioners by Respondent No.1 as being unlawful and contemptuous since the same are against the order dated 20.01.2017 of this Hon'ble Court. ii. Declare the impugned show-cause notice No.1/12.270/01 dated 16.01.2017, Show-Cause Notice No.1/13.326/07 dated 16.01.2017 and Show-Cause Notice No.1/13.379/05 dated 16.01.2017 as illegally and without lawful authority . iii. Declare that respondent No.1 has no authority to initiate any disciplinary actions against the petitioners. iv. Restrain respondent No.1 from taking any further adverse actions on the basis of impugned Termination Orders against the petitioners such a depriving them of their pay , service benefits and plots.
Any other relief not specifically prayed for but found just in the given facts and circumstances of the case may also graciously be allowed.
2. Brief and essential facts of the prese nt writ petition are that the petitioners were the employees of erstwhile 'Provincial Urban Development Board' established under N-W.F.P. Urban Planning Ordinance, 1978 which was thereafter repealed by N-W.F.P. Urban Development Board (Dissolution) Ordinance, 2002; and thereby the entire assets, authorities and employees were placed under the control of respective District Governments. An open auction of all kinds of residential and commercial plots in different phases/sectors of Hayatabad, Regi Model Town, Jehangir Abad and Tehkal Payan was conducted on 23rd to 26th June, 2015 was advertised in the national dailies and an auction committee comprising of the Director Estate Management, Director Finance, Director PDA, Deputy Director Estate Management, Housing Officer Headquarter and Deputy Regi Model Town was constituted.
However , one commercial Plot No.6AA Sector A-2 measuring 2.7 Kanal, plase-V , Hayatabad, received the highest bid from one Ihsanullah who was acting as representative on behalf of Shahid Ali, Shah Nawaz, Masood Faizullah and Muhammad Amjad. The said highest bid was approved and finally , the said plot was allotted to Shahid Ali etc. Thereafter , the respondent No.1 issued show-cause notices to petitioners accusi ng therein the illegal transfer of said plot in favour of Shahid Ali etc instead of original bidder Ihsanullah. Petitioners applied for the issuance of the copies of complete record enabling them to submit their replies to show-cause notices, but respondents refused to provide them copies of the record. Petitioners then called in question the vires of show-cause notices through Writ Petition No.213-P/2017 before this Court; and vide order dated 20.01.2017, this court suspended the operation of show-cause notices but petitioners received their termination letters dated 19.01.2017, which according to them, are antedated and petitioners have impugned their termination letters through present constitutional petition seeking relief as quoted in the preceding Para.
3. This court directed respondents to file their parawise comments which they did wherein they resisted the issuance of desired writ. Petitioner also filed rejoinder .
4. Learned counsel for petitioners argued that the impugned dismissal orders issued to petitioners are antedated and the same was issued after the grant of interim relief by this Court on 20.01.2017 but respondents, in order to sabotage the rights of petitioners, deliber ately put a backdate. He maintained that, even otherwise, the impugned dismissal orders are hit by the doctrine of lis pendence as they were served with the notices before the institution of writ petition and they were aware of the filing and pendency of writ petition before the Honourable High Court.
Learned counsel for petitioners kept on to say that petitioners were not afforded with ample opportunity to defend their rights as they were fully unaware of the documents which were made basis for issuance of show-cause notices and it was duty of respondents to provide copies of same to petitioners to submit reply/defence. It is stressed that the impugned show cause notices and dismissal orders were issued by the Director-General who was not the competent authority in the case of petitioners. He argued that the allotment was finalized under the signature of Director General and petitioners cannot be held responsible for the acts done by the D.G.
5. Mr. Saqi Raza Advocate, while appearing on behalf of respondents, stated that the petitioners have not come to the court with clean hands. They illegally and by misusing their official authority provided aid and assistance to Shahid Ali etc to get the allotment of commercial Plot No.6AA despite the fact that they neither appeared in the bidding process nor token was issued in their names. The original successful bidders for the said plot was Ihsanullah but the allotment was made in favour of Shahid Ali etc despite the fact that the allotment of plots was not transferable. Petitioners were provided sufficient time to submit their replies to show-cause notices and they were also provided access to the record but they delayed the filing of their defence reply and as such penalty of dismissal from service was imposed upon them which is quite justified.
6. We have given our deep thought to the arguments of learned counsel for the parties and perused the record with their valuable assistance.
7. We would first like to mention that the allotees Shahid Ali etc filed Writ Petition No.267-P/2017 against Peshawar Development Authority etc whereby the authority stopped them from constructing the building of hospital. The said writ petition was dismissed vide Judgment dated 02.03.2017 by this Court on the ground that factual controversy was involved. Accordingly , the said Shah id Ali etc filed a civil suit which is now pending before the learned Civil Court and the controversy as to whether the actual bidder Ihsanullah was representative of Shahid Ali etc, and whether the allotment to Shahid Ali etc was legal? will be determined by the Civil Court after recording evidence.
Therefore, we do not think it apposite to pass any verdict as to the legality of the allotment proceedings and procedure. The only question for determ ination before this Court is the legality of the departmental proceedings against petitioners and their termination letters.
8. There is no denial of the fact that the petitioners are the erstwhile empl oyees of the Provincial Urban Development Board and presently they have been serving as housing officers in BPS-17. This Court, in the case of "Muhammad Mushtaq Qureshi and others v. Government of Khyber Pakhtunkhwa and others" (2019 PLC (C. S.) 565) decided vide Judgment dated 22.01.2018, has already settled that the service of employees of erstwhile Provincial Urban Development Board can only be governed by the PUDB Service Rules, 1978. The said judgment was upheld by the august Apex Court through a common judgment dated 05.07.2018.
9. Record unfolds that the respondents took start of departmental proceedings against petitioners by issuing them show-cause notices, wherein the authority while dispensing with the inquiry , directed petitioners to show-cause within three days as to why major penalty of dismissal from service be imposed on them under PUDB Service Rules, 1978. The last para of the show-ca use notice of each petitioner is the same which is reproduced hereunder for ready reference: "Keeping in view the above-mentioned facts, the undersigned being Competent Authority has decided to dispense with inquiry . Therefore, you are directed to Show your Cause within 03-days of receipt of this letter that why not major penalty of dismissal from service be imposed upon you under PUDB Service Rules, 1978."
(emphasis supplied).
10. After the receipt of show-cause notice, petitioners applied for copies of the record enabling them to submit reply but record manifests that no such copies were provided to them; and finally , petitioners were terminated vide letters dated 19.01.2007. The last para of the termination letters also signifies that the penalty was awarded under PUDB Service Rules, 1978. The relevant Para runs as under: "NOW THEREFORE, I being the Competent Authority am satisfied that the accused officer is guilty of the charges levelled against him. Therefore, under the provisions of rule 23(g) of PUDB Service Rules, 1978, the major penalty of dismissal from service is imposed upon the above-named Officer with immediate effect." (emphasis supplied).
11. Evidently , the proceedings have been initiated and culminated against petiti oners under the PUDB Service Rules, 1978. In the Provincial. Urban Development Board Service (PUDB) Rules, 1978, only Rules 22 and 23 deal with the disciplinary actions against an official. Rule 22 of the Rules describe the nature of misconduct whereas, procedure for disciplinary action has been specified in the Rule-23 which provides as under: Procedure for disciplinary action.--
23. (a) On any alleged action of misconduct the employee will be informed in writing and will be given an opportunity to explain in writing the circumstances of misconduct alleged against him within the time specified in the letter . The Competent Authority shall on receipt of the explanation appoint an inquiry officer to conduct the enquiry into the alleged misconduct.
(b) If considered necessary the employee may be suspended during the period of enquiry . The order of suspension shall be in writing and shall take effect immediately on delivery to the employee. During the period of suspension, the employee concerned shall be paid a subsistence allowance of not more than 50% of his salary . If he is found not guilty , he shall be deemed to be on duty suspension and shall be entitled to during the period of the same salary as he would have received had he not been suspended.
(c) The Enquiry Officer shall obtain necessary record and statements etc. relating to the complaint. The Statement of witness if any may be obtained in the presence of accused who may be allowed to cross-examine the witness.
Such cross-examination and answer shall also be recorded. The enquiry officer shall then record his own opinion giving a definite verdict and submit his report along with the record of inquiry to the Competent Authority for taking decision.
(d) While taking decision the Competent Authority shall take into account the previous record of the employee. He shall have discretion to award any of the under mentioned punishment keeping in view the gravity of the misconduct.
Dismissal from service without any compensation. Premature retirement.
3. Reduction to a lower grade/post
4. With-holding increment or promotion for a specified period.
5. Reprimand/Censure .
12. In the above-cited provisions, the use of the word 'shall' by the legislature brands a provision as mandatory , especially when an authority is required to 'do something in a particular manner . Reliance in this regard is placed on the case of Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited (PLD 2012 SC 247) wherein* while interpreting Order VII, Rule 1 1 of the Code of Civil Procedure, 1908, the august Apex Court held: "9. We have already noticed that the court is bound by the use of the mandatory word "shall" to reject a plaint if it "appears" from the statements in the plaint to be barred by any law ."
This view was further elaborated by the apex Court in the case titled "The Collector of Sales Tax, Gujranwala and others v . Messrs Super Asia Mohammad Din and Sons and others" (2017 SCMR 1427 ).
13. A threadbare perusal of the Rule-23 of the PUDB Service Rules, 1978, reveals that 'the only procedure provided to proceed against an of ficial on the allegations of misconduct is to: i. Issue explanation letter to accused official to explain in writing the circumstances of the misconduct alleged against him; ii. Appoint an inquiry of ficer to conduct the inquiry into the alleged misconduct; iii. Inquiry officer shall obtain record and collect evidence giving opportunity to accused-of ficial to cross-examine the witnesses if produced; iv. Inquiry officer shall record his opinion giving a definite verdict and submit report along with record to Competent Authority . v. Finally , the Competent Authority will take decision in view of the previous record of the employee and gravity of the misconduct.
14. Here, in the present case, a novel procedure has been adopted by the respondents. There is no mention of dispensing with the inquiry in the Rule 23 ibid rather the holding of inquiry is mandatory . Even the show-cause notice too is alien to the provision of the above-quoted Rule. The entire procedure given in the above Rule 23 is mandatory , instead, the departmental proceedings initiated and finalized against petitioner are totally strange to the rule governing procedure for disciplinary action against an employee of PUDB. If law required a thing to be done in a particular manner , that should be done accordingly . In case the prescribed procedure is not followed then a strong presumption would be that the same has not been legally done. For rendering this view, we are fortified by the dictum laid down by the Hon'ble Apex Court in of Director , Directorate-General of Intell igence and Investigation and others v. Messrs AL-Faiz Industries (Pvt.) Limited and others (2006 SCMR 129). Reliance is also placed on the case of Muhammad Hanif Abbasi v. Imran Khan Niazi and others (PLD 2018 Supreme Court 189) wherein it was held:
(e) Administration of justice--- ----Where the law required something to be done in a particular manner , it must be done in that manner .
(f) Administration of justice--- ----What could not be done directly could not be done indirectly .
15. Another aspect which attracted our attention, that the petitioners were awarded punishment under Rule 23(g) of the PUDB Service Rules, 1978, which is an error. Yet there is another aspect; respondents have not only deviated from law by issuing show-cause notices to petitioners but also remained reluctant to provide them copies of the record to make their defence reply . It is a right of an official to be acquainted with all the record and evidence establishing his alleged misconduct, in order to have an ample opportunity to establish his defence which is his fundamental right. The authority in the present case was proceeding against petitioners without any inquiry on the basis of documentary evidence but petitioners were not provided with the said documentary evidence to clarify their position and circumstances of the misconduct.
16. For what has been discussed above, we are unanimous that the entire departmental action against petitioners commencing from show-cause notice and culminating on their dismissal from service is void ab initio and thus have no legal sanctity . The impugned office orders are thus, set aside and petitioners are reinstated into service retrospectively with back benefits. However , if the competent authority wants to proceed against the petitioners, then they are at liberty to proceed against them strictly under the PUDB Service Rules, 1978.
17. In view of the above, the instant writ petition is allowed in the above terms, with no order as to cost.