Ch. Muhammad Amin Javed Member.--The appellant Maqbool Hussain has assailed the impugned order dated 2.2.2017, whereby he was discharged from service. He submitted departmental appeal on 28.2.2017, which was rejected on 7.6.2017.
2. The relevant facts for the purpose of disposal of the case are that the appellant was appointed as regular employee on 19.8.1992 as Civil Driver. Respondent No. 3 verbally terminated him on 6.11.2009, which was agitated through departmental appeal. He filed service Appeal No. 122(L)CS/2010 in this Tribunal, which was allowed vide judgement dated 27.11.2015, setting aside the impugned orders. He was reinstated into service. The respondents were directed to hold de novo inquiry. The question of back benefits dependent upon outcome of such inquiry. Vide letter dated 11.2.2016 Respondent No. 3 informed the appellant for initiation of inquiry against him. Through his application dated 19.2.2016 addressed to the President of the Court of Inquiry with the request that he has not been reinstated into service and as such inquiry cannot be initiated and subsequently he was reinstated through order dated 22.2.2016, reflecting their biasness. A Show-Cause Notice was issued to the appellant on 9.3.2016 coupled with a Charge Sheet on the allegation of illegal sale of used engine oil sustaining alleged loss of Rs. 25628/-. On 14.3.2016 he filed reply to the Show-Cause Notice. He also filed a detailed reply to the Charge Sheet on 15.3.2016. Consequent upon judgment of this Tribunal no pay was released to him. Vide impugned order dated 5.12.2016 he was dismissed from service and subsequently Respondent No. 4 issued a formal order of discharge from service on 2.2.2017 besides recovery of Rs. 32000/-. He submitted departmental appeal on 28.2.2017 and subsequently filed service Appeal No. 231 (L)/2017 in this Tribunal by assailing his discharge and NLC Service Rules, 1986, which was remanded vide order dated 12.5.2017, to the department for disposal of departmental appeal, which was refused vide impugned order dated 7.6.2017. As such he again moved this Tribunal by filing instant appeal in a third round of litigation.
3. In response to the appeal the respondents filed reply, wherein they have maintained that the appeal is not maintainable and the appellant has no locus standi to file this appeal. He was ousted from service in due course of law and requested for dismissal of the appeal. After filing the comments, the respondents remained absent. The Respondent No. 1 was absented on 2.11.2020 and was proceeded against ex-parte. On 11.2.2021 the remaining respondents were also absent and the same practice was repeated on 17.6.2021, as well as on 7.12.2021 and eventually they were proceeded against ex-parte. The conduct of the respondents also demonstrated their non- seriousness to pursue the matter for which they were under legal obligations, however, the appeal is being decided on merits.
4. The learned counsel for the appellant inter alia contends the respondents issued a Show-Cause Notice dispensing with the inquiry along with a Charge Sheet on the same date. It is further contended that the appellant was discharged from service on 2.2.2017 without conducting regular inquiry, as such the discharge order is illegal, unlawful and non-existent in law. He further argued that in written, reply the respondents have conceded the legal flaw and inasmuch as the order of the Tribunal was also not complied with regarding de novo inquiry, he further added that the regular inquiry cannot be dispensed with in the charge of misconduct. In support of his contention he relied on PLJ 2002 SC 525, 2011 SCM R 1618, 2003 SCM R 207 and 2001 SCM R 56. The appellant has been condemned unheard without providing him opportunity of personal hearing, he also submitted that the question of maintainability of the appeal has already been settled by the Hon'ble Supreme Court of Pakistan holding that the respondent-NLC being attached Department with the Respondent No. 1 is squarely the subject matter of the Civil Servants Act, 1973 and Government Servants (Efficiency and Discipline) Rules, 1973 are applicable.
5. We have heard the learned counsel for the appellant and gone through the available record minutely and with precision. It is clear and obvious from the record that previously the appeal of the appellant was accepted on 27.11.2015 by the Tribunal and categorically directed the respondents for conducting de novo inquiry against the appellant. The operative part of the judgment runs as under: "For the foregoing reasons we accept both these appeals and there by set aside the impugned orders. Consequently the appellants will be reinstated into service. The respondents shall hold departmental denovo inquiry against the appellants under the relevant law. The entitlement of the appellants to the back benefits will depend upon the outcome of the said inquiry and in accordance with the instructions contained at Sr. No. 155 Vol-II of Civil Establishment Code (Estacode 2007 Edition) and the dictum laid down by the Hon'ble Supreme Court of Pakistan in the judgment reported as Federation of Pakistan through Secretary, Ministry of Education and others v. Naheed Naushahi (2010 SCMR 11)."
It is settled law enunciated by the Hon'ble Supreme Court of Pakistan in its various judgments that in cases of Misconduct, significantly, relating to major punishments regular inquiry cannot be dispensed with.
6. It is noted with regret that the departmental authority did not even pay any heed to the direction of the Court qua the de novo proceedings against the appellant. This being so we are constrained to hold that in this case no departmental inquiry was conducted against the appellant. It is a trite law that in cases entailing imposition of major penalty holding of departmental inquiry is a sine qua non. In so holding we are fortified by the dictum laid down in Naseeb Khan v. Divisional Superintendent, Pakistan Railways, Lahore (2008 SCMR 1369). It has been held in a case Alamgir v. Divisional Forest Officer, Multan (1993 SCMR 603) that "for resolving controversial questions of facts where evidence has to be recorded an opportunity of cross-examination has to be given, the proper course would be to hold a full-fledged inquiry otherwise findings recorded would be based more on conjectures than on evidence/material available on record properly produced and accepted." Similar view was also taken in Chief Election Commissioner of Pakistan and others v. Miss Nasreen Pervez (2009 SCMR 329), whereby it was held that "before imposing such penalty, regular inquiry must be held to determine factual basis of allegations required to be proved in accordance with law."
7. It is essential for imposing major penalty where the allegation is altogether denied and contested by the accused employee a regular inquiry be conducted. Reliance is placed on Muhammad Naeem Akhtar v. Managing Director, Water and Sanitation Agency LDA, Lahore and others [2017 PLC (C.S.) 676] whereby it is held that Fact Finding Inquiry may not accuse the appellant personally for committing misappropriation and the Hon'ble Supreme Court of Pakistan set aside the major penalty of dismissal from service imposed on the appellant/accused employee and remanded his case to the Department for holding regular inquiry after giving him full opportunity of representation in accordance with law. In the case of Secretary to Government of N.-W.F.P and 2 others v. Saifur Rehman (1997 SCMR 1073). In Saleem Wazir Professor Community Medicine and 6 others v. Government of KPK [2019 PLC (CS) 224 (Peshawar)] through Secretary Health Peshawar and 2 others major penalty of removal/dismissal from service must be inquired through regular inquiry which cannot be dispensed with in matter where controversial facts and ticklish questions are involved - 2017 SCM R 356, 2010 SCM R 1546, 2008 SCM R 1362, 2014 PLC (CS) 856, 2007 SCM R 1643 and 2014 SCM R 1263 rel. It has also been held in 2009 PLC (CS) 650 (SC) that regular enquiry must be held to determine factual basis of allegations required to be proved in accordance with law - when allegations required explicit proof, then holding of inquiry could not be dispensed with. For resolving controversial question of facts, a regular inquiry is must, as enshrined in 2009 PLC (CS) 987.
8. In case of imposing a major penalty, the principles of natural justice required that a regular enquiry was to be conducted in the matter and opportunity of defence and personal hearing was to be provided to civil servant otherwise he would be condemned unheard - 2006 SCM R 846 - 1996 PLC (CS) 868 - PLD 1994 SC 222.
9. The objection of the respondents in the reply qua the maintainability of the appeal with respect to appellant being an employee of NLC is not civil servant is overruled as this issue has already been settled by the Hon'ble Supreme Court of Pakistan.
10. We have also observed that in this case the appellant has been forced to move from pillar to post and is roaming in search of justice for the last twelve years.
11. In face of the above reasons narrated above we have not found the impugned decision of the departmental authorities dated 2.2.2017 and 7.6.2017 to be sustainable. The same are, therefore, set aside. Consequently the appeal is accepted and the appellant will be reinstated in service from the date of his discharge from service with back benefits with the condition that the intervening period will be treated in terms of judgment of the Hon'ble Supreme Court of Pakistan reported as Federation of Pakistan through Secretary, Ministry of Education and others v. Naheed Naushahi (2010 SCMR 11).
12. No order as to costs. Parties be informed accordingly.