Through this constitutional petition, petitioner , who is former Assistant Director , National Accountability Bureau, Lahore ("N.A.B."), has called in question order dated 26.01.2017 passed by Director General N.A.B. whereby , major penalty of removal from service has been imposed against petitioner and has also called in question order dated 14.01.2019 passed by President of Pakistan whereby representation filed by the petitioner against the afore- referred order has been declined.
2. Learned counsel for the petitioner states that charges leveled against the petitioner were disputed by him and factual inquiry was required to determine the authenticity of the same, therefore, regular inquiry could not have been dispensed with by N.A.B. Authorities before imposing major penalty of removal from service and the said aspect of the matter has also not been given due consideration by President of Pakistan while declining the representation filed by the petitioner . Hence, impugned orders are not sustainable.
3. On the other hand, Special Prosecutor appearing on behalf of N.A.B. has defended the impugned orders by stating that sufficient material was available with the respondents to reach conc lusion that the charges leveled against the petitioner were established on record and as proceedings were initiated against the petitioner on the basis of available record hence no special inquiry was required to establish the same and consequently regular inquiry was rightly dispensed with, therefore, the impugned orders do not suffer from any illegality or jurisdictional defect for this Court to interfere in the same.
4. Heard, record perused.
5. Petitioner was working as Assistant Director N.A.B. and on 18.02.2016 a show cause notice was issued against him by Director General H.R.M. N.A.B. in his capacity as authorized officer on charges of corruption and misconduct under Section 11.02 (a) & (b) of National Accountability Bureau (NAB) Employees Terms and Conditions of Service (TCS) 2002 on account of following charges: a. You being authorized Investigation Officer (IO) of case against accused Rana Liaqat Ali used to share classified & confidential information regarding case proceedings with your father Rana Muhammad Akram in violation of Section 10.19 of NAB TCS, Confidentiali ty Undertaking & Code of Conduct & Ethics signed by you at the time of joining NAB. On the basis of your disclo sure, Muhammad Akram allegedly extracted money from accused Rana Liaqat Ali. b. You kept track of case of Inquiry against Khalid Javed and were interested in the proceedings despite of fact that inquiry was conducted by CIT of IW-III. Again you kept on sharing the information with your father Rana Muhammad Akram who allegedly extracted money from Khalid Javed. c. Further , you alongwith your father allegedly shared confidential information regarding case proceedings with brothers of accused Muhammad Shahbaz (under custody) and extracted money from them. d. Thus, the acts of sharing of classified/confidential information of the cases and taking undue interest in other cases belonging to IW -III are unbecoming like an officer of NAB."
6. In the said notice, it was mentioned that fact finding inquiry committee has submitted its report to the authorized officer who has examined the report and its enclosures closely and has reached at the conclusion that there is no need for formal inquiry and hence notice was issued to the petitioner , through which he was called upon to show cause within 14 days from the date of receipt of notice as to why one or more of the penalties including penalty for dismissal from service specified under Section 11.03 of National Accountability Bureau (NAB) Employees Terms and Conditions of Service (TCS) 2002 may not be imposed against him on the afore-mentioned charges with further observation that if no reply to show cause notice is received within stipulated period, it shall be presumed that petitioner has no defence to of fer and accepts the charges.
7. Petitioner filed reply and additional reply to refute the allegations leveled against him, however , his reply was not found satisfactory and impugned order dated 26.01.2017 for removal from service was passed against him, against which he preferred representation before President of Pakistan which has been rejected on 14.01.2019.
Simultaneously , alongwith the disciplinary proceedings a criminal case was also registered against petitioner in which petitioner was acquitted from charges. It is claimed by counsel for the petitioner that where on the basis of same charges, criminal case and departmental proceedings are initiated against an employee and he is acquitted from charges in criminal case then proceedings against him on departmental side without conducting regular inquiry are not sustainable.
8. On the other hand, learned Prosecutor N.A.B. has vehemently argued that criminal proceedings as well as departmental proceedings can proceed side by side and are independent of each other and result of one type of proceedings would not affect the decision of the other type of proceedings, besides father of the petitioner , who had acted on behalf of petitioner to seek illegal gratification from the accused persons, who petitioner had investigated, had confessed to being a facilitator of the petitioner in commission of acts resulting in the charges leveled against him, therefore, there was no need to establish the said fact through regular inquiry as established fact need not to be proved.
9. There is no doubt the criminal proceedings and departmental proceedings are different and can proceed side by side as argued by learned counsel for the respondent in view of principles laid down by the Supreme Court in case titled SHAHID WAZIR VS. SECRET ARY, KASHMIR AFFAIRS AND NOR THERN AREAS AND STATES OF FRONTIER REGIONS DIVISION, GOVERNMENT OF PAKIST AN, ISLAMABAD (2006 SCMR 1653 ) while relying on DAWOOD ALI VS. SUPERINTENDENT OF POLICE AND OTHERS (2005 SCMR 948) wherein it is held as under: "7. The departmental penalty was imposed on the petitioner , not on account of criminal proceedings but, as a consequence of departmental inquiry having been conducted in which the petitioner was found guilty of the charge though he was afforded full opportunity of defence. The departmental and criminal proceedings can be taken simultaneously and independent of each other ."
10. Despite legal principles discussed in the afore-referred judgment, the plea of criminal and departmental proceedings being different is not a sufficient reason to dispense with the regular inquiry against the employee by the department in departmental proceedings as dynamics of both the proceedings are not only different, rather the same may in some cases result in different decisions i.e. one in favour of employee and other against him, consequently both the said proceedings are to be determined on their own merits in accordance with law by following the prescribed procedure provided by law in its true letter and spirit.
11. In the present case the main allegatio ns against the petitioner are that he, through is father , had approached the accused persons of the cases under his investigation, who were Rana Liaqat Ali, Khalid Javed & Muhammad Shehbaz and extracted money from them in exchange for sharing classified and confidential information regarding case proceedings, however , the said allegations are purely factual in nature, which the petitioner has disputed throughout the departmental proceedings initiated against him. In these circumsta nces, mere confession by father of the petitioner would not establish the said allegations against the petitioner unless regular inquiry is conducted and he is confronted with the statements of witnesses and material produced against him, with opportunity of explanation, rebuttal and cross-examination to find out the truth. In this behalf reliance may be placed on the principle laid down by the Hon'ble Supreme Court in case titled "SENIOR SUPERINTENDENT OF POLICE (OPERA TIONS) and others Vs. SHAHID NAZIR" ( 2022 SCMR 327 ) wherein it is laid down as under: "8. There is no hard and fast rule that in each and every case after issuing show cause notice the regular inquiry should be conducted but if the department wants to dispense with the regular inquiry there must be some compelling and justiciable reasons assigned in writing. ... In this case, the inquiry was dispensed with on the pretext that FIRs were lodged which were not culminated in the conviction of the respondent before show cause, therefore, in the peculiar circumstances, neither inquiry could be dispensed with nor registration of FIRs could relax or absolve the obligation of holding regular inquiry to decide the allegations of misconduct against the respondent ... ... Hon'ble Supreme Court in the case of "Naseeb Khan v. Divisional Superintendent, Pakistan Railways, Lahore and another" (2008 SCMR 1369 ) held that in case of imposing a major penalty , the principle of natural justice requires that a regular enquiry be conducted in the matter and opportunity of defence and personal hearing be provided to the civil servant proceeded against. Reliance is place on "PAKIST AN INTERNA TIONAL AIRLINES CORPORA TION VS. MS. SHAIST A NAHEED (2004 SCMR 316) and INSPECT OR GENERAL OF POLICE, KARACHI AND 2 OTHERS VS. SHAFQA T MEHMOOD (2003 SCMR 2007)... ... Recently in the case of "CHIEF POSTMASTER, FAISALABAD, GPO AND ANOTHER VS. MUHAMM AD FAZAL (2020 SCMR 1029 )" it was held by this Court that it is not a hard and fast rule that where there are serious allegations against an employee which are denied by him the department is under an obligation to conduct a regular inquiry in all circumstances in case the departmental authorities come to the conclusion that there is sufficient documentary evidence available on record which is enough to establish the charge, it can, after recording reasons, which are of course justiciable, dispense with the inquiry in the interest of expeditious conclusion of departmental proceedings."
12. In this behalf reliance may also be placed on the principle laid down by the Sindh High Court in case titled "SHAKIR ALI and another Vs. NATIONAL ACCOUNT ABILITY BUREAU through Chairman, Islamabad and another" ( 2021 PLC (C.S.) 683 ) wherein it is provided as under: "6. ... Imposition of major penalty of dism issal from service, without inquiry , would suggest the element of bias and unfair treatment at least in the matter of quantum of sentence; findings of a fact finding inquiry/committee, without joining the civil servant against whom findings are compiled, cannot be made basis for his removal from service as such proceedings would be contrary to the principles of natural justice enshrined in the maxim audi alteram partem;... and, imposition of major penalty of removal from service without holding inquiry would result into grave miscarriage of justice and prejudice to the aggrieved civil servant.
7. The views expressed by us in the preceding paragraph are fortified by the law laid down by Hon'ble Supreme Court in Muhammad Idris Khan Vs. Secretary/Chairman, Ministry of Railways Islamabad and 5 others (2006 SCMR 104), Fatima Bibi Vs. Deputy District Education Officer and others (2007 PLC (C.S.) 597), Divisional Forest Officer Kasur and another Vs. Zahid Ali (2011 PLC (C.S.) 1382 ), Muhammad Afzal Vs. Regional Police Officer, Bahawalpur and others (2012 PLC (C.S.) 728), and Muhammad Naeem Akhtar Vs. Managing Director Water and Sanitation Agency LDA, Lahore and others (2017 SCMR 356). Therefore, the impugned dispensation of inquiry against the petitioners, the impugned show-cause notice issued to them and the impugned orders of their removal from service, being contrary to law , are not sustainable."
13. In view of the principles laid down in the afore-referred judgments, the judicial consensus is that major penalty cannot be imposed on an employee without holding regular inquiry , which may only be dispensed with if sufficient material is available on the record for the said purpose and that too could only be done after recording of reasoning for the same which reasoning is justiciable before Courts of law in judicial review . In the present case show cause notice issued to the petitioner and other documents relied upon by the respondent do not show conscious application of mind to the facts of the case to dispense with the regular inquiry . The reason given for dispensing with regular inquiry by mere reliance on confessional statement of father of the petitioner and opinion of fact finding inquiry committee in its report prepared without associating the petitioner for the said purpose without providing reasonable opportunity to explain his position was not a sufficient reason to dispense with the regular inquiry especially when from the same it is not apparent that allegations against the petitioner were established beyond doubt. Consequently , the impugned order whereby inquiry proceedings have been dispensed with and further proceedings have been initiated on the basis of same merely through a show cause notice are not sustainable and resultantly this Court is inclined to set aside the impugned orders whereby petitioner has been removed from service by imposing major penalty against him under provisions of National Accountability Bureau (N.A.B.)
Employees Terms and Conditions of Service (TCS) 2002 and the matter is remanded to competent authority of N.A.B. for proceedings afresh against the petitioner by holding regular inquiry and providing him with reasonable opportunity to defend the same. The claim of back benefits will be subject to decision of fresh inquiry proceedings.
14. During these proceedings stance has been taken by respondents that in previous proceedings petitioner absented himself despite the fact that respondent issued various notices to him, therefore, it is claimed that he was not entitled to be granted further opportunity of being heard, however , this Court is not in agreement with said stance taken by learned counsel for the respondents as the said argument is against the concept of fair trial provided in Article 10-A of Constitution of Pakistan, 1973 and principles of natural justice which have a force of law, hence, on the basis of said grounds taken by learned counsel for the respondents this court is not inclined to uphold the order passed by the respondent authorities whereby major penalty for removal from service has been imposed against the petitioner , however , in order to ensure proper proceedings in the matter petitioner is directed to join proceedings and not to absent himself without any just cause in future.
15. The respondent authorities shall conc lude the matter after initiating regular inquiry within next six months and if the petitioner still absents himself or does not join the proceedings, the respondent authorities shall be at liberty to proceed with the matter on its own merits in accordance with law .
16. With this observation, this writ petition is allowed in the afore-referred terms.