MUHAMMAD SAJID MEHMOOD SETHI, J.----Through instant petition, petitioner has assailed orders dated 29.04.2014, 26.03.2015 and 05.09.2016, passed by respondents Nos.2, 1 and 4, -respectively , whereby petitioner was removed from service and his appeals were also dismissed.
2. Brief facts, as stated in this writ petition, are that the petitioner was appoin ted as LTV (Driver) in Punjab Emergency Service Rescue 1122, District Sargodha, on 05.01.2009 and his servi ces were regularized vide order dated 14.10.2009. Petitioner was served with Show-Cause Notice (hereinafter referred to as "SCN ") dated 12.03.2014 mainly with the allegation that petitioner received emergency call on 23.09.2013, whereby a poisoning case was reported at Noori Gate Chowk by the caller . Petitioner proceeded towards the destination, however , met with an accident whereby ambulance SGA-02 collided with the tractor trolley near main gate of University of Sargodha, approximately 450 meters away from central station, thereby causing huge loss to official vehicle.
Petitioner furnished reply to SCN, which was not found satisfactory and consequently , petitioner was removed from service vide order dated 29.04.2014, pass ed by respondent No.2. Fecling aggrieve d, petitioner filed representation / appeal before respondent No.1, which was dismissed vide order dated 26.03.2015. Later on, petitioner filed appeal before Punjab Service Tribunal, Lahore, however , on assurance of respondent No.1 that if appeal is withdrawn, petitioner would be reinstated, he withdrew the same on 26.02.2016. Against order dated 26.03.2015, petitioner approached respondent No.4 by filing appeal, which was dismissed being time barred and not maintainable vide order dated 05.09.2016. Petitioner again filed appeal before Punjab Service Tribunal but same was dismissed as withdrawn vide order dated 20.1 1.2018. Hence, instant petition.
3. Learned counsel for petitioner submits that Tractor Trolley had neither lights nor any reflector , and its driver was driving rashly and negligently . He adds that one Imran Ali, owner of nursery and Waseem Mehmood, colleague of petitioner , who was with petitioner at that time, submitted affidavits that occurrence took place due to negligence and carelessness of driver of Tractor trolley but this evidence was totally ignored by the competent authority without giving any solid reason to disbelieve these statements. He further submits that other allegations are minor , and petitioner performed his duties with full devotion and sincerity . He contends that major penalty of removal from service has been passed without conduc ting regular inquiry and inviting evidence to establish the allegations. He argues that copy of inquiry report was not handed over to petitioner , which was mandatory requirement under the provisions of PEEDA Act. He maintains that respondent No.4 ex parte decide d the appeal without providing opportunity to petitioner to explain his position.
4. On the other hand, learned A.A.G. defends the impugned orders, and submits that petitioner's performance has persistently been unsatisfactory . He further submits that all the proceedings taken against petitioner were in accordance with law wherein petitioner was found guilty and proceeded against as per law. He argues that petitioner has already availed all the legal remedies available under the law. He lastly submits that instant writ petition is not maintainable.
5. Arguments have been heard and record perused.
6. Perusal of record reveals that in the SCN dated 12.03.2014, the following allegations were levelled against the petitioner:- Whereas, the Control Room of the Punjab Emergency Service, District Sargod ha received an emergency call No.57452 on 23.09.2013 at 0252 hrs wherein a poisoning case was reported at Noori Gate Chowk by the caller , Mr. Mustansar , in response to the emergency call, an ambulance SGA-02 was dispatched to deal with said emergency . However within two minutes after dispatch, the ambulance collided with a Tractor Trolley near University Main Gate which is approxima tely 450 meters away from Central Station. As per inquiry report you are found negligent and guilty for the said accident.
Whereas, at the time of emergency you were found sleeping behind the ambulance, one of the Emergency Medical Technician awaked you to respond the emergency . You were unable to apply the brakes due to over speed and your snoozing condition. Due to your gross negligence and recklessness, collis ion took place which was very drastic and destroyed the complete front side of the ambulance containing engine and other important accessories.
Whereas, your track record shows that you have committed various misconducts during duty. You did not pay attention or shown interest towards your job and you were given number of opportunities / ample time to improve but you failed to improve. Consequently , you have been issued multiple penalties, explanations, warnings, due to absence / late coming from duty, negligent during duty, failed to follow conduct regulations of the service, misuse of emergency vehicle for own purpose and complaint by civilian against you. Your attitude and conduct is unbecoming of a rescuer .
Whereas, your performance remained unsatisfactory during the entire service from 01.07.2010 to 31.12.2010, 01.01.201 1 to 31.12.201 1, 01.07.2013 to 31.12.2013 which clearly indicates your level of interest and motivation in your job.
Whereas, your actions has caused great defame and badly hampered the image of a disciplined life saving Emergency Service which requires honesty , nice behaviour , diligent and efficient while performing duties, therefore, being an employee of Punjab Emergency Service (Rescue 1122) your actions are not tolerable and liable to penalty .
The SCN clearly shows that there are multiple stigmatic and serious allegatio ns against the petitioner , and petitioner has refuted these allegations in his reply to SCN. In this eventuality , the matter involving controversial questions of facts cannot be decided without detailed scrutiny and proper appreciation of oral and documentary evidence. The services of petitioner are governed by the Punjab Emergency Service Act, 2006 (IV of 2006) and in exercise of powers conferred under Section 26 of the Act ibid, the Punjab Emergency Service Leave, Efficiency and Discipline Rules, 2007 have been framed. Rule 7 of the Rules ibid deals with proceedings to be conducted against an official of respondent-department in accordance with Punjab Emplo yees Efficiency , Discipline and Accountability Act, 2006 (XII of 2006) (" PEEDA Act") and reads as under:- "7. Proceedings under the Act XII of 2006. - An official shall be liable to be proceeded against under the provisions of the Act XII of 2006, if he is:
(a) guilty of misconduct or any undesirable act;
(b) guilty of corruption or is reasonably considered to be corrupt;
(c) inef ficient; and
(d) engaged or is reasonably believed to be engaged in subversive activities, and his retention in service is prejudicial to national security , or is guilty of disclosure of of ficial secrets to any unauthorized person."
7. Removal from service is a major penalty as contemplated in Section 4(b)(v) of PEEDA Act. Section 9 deals with procedure of inquiry to be followed by competent authority . The spirit of law i.e. PEEDA Act is that such major punitive action against an employee should be taken after an inquiry within contemplation of law. The competent authority may, in exercise of the powers under PEEDA Act, 2006, by dispensing with the requirement of regular inquiry , follow the summary procedure, but this power must be exercised in exceptional cases, in which either there is no factual controversy or the facts are admitted. The competent authority may, without holding a regular inquiry , pass the final order , if the charge is not based on disputed questions of facts, otherwise dispensation of regular inquiry would amount to depriving of a person from right of defence and fair opportunity of hearing.
8. Needless to say that it is against the principle of natural justice to draw a conclusion adverse to the interest of a person on the basis of disputed facts without recording the evidence and providing him proper opportunity of cross- examining the witnesses and to make his defence. In the instant case, respondents have proceeded to impose major penalty upon the petitioner , without resorting to the procedure of inquiry as contemplated by the provisions of PEEDA Act, 2006. Even otherwise, the superior Courts of Pakistan have already laid down that in cases where major penalty of removal from service has been proposed against the delinquent employee, the regular inquiry has to be conducted. Reference in this regard can be made to the case law reported as Abdul Qayyum v. D.G., Project Management Organization, JS HQ, Rawalpindi and 2 others (2003 SCMR 1110), Salman Faruqui v.
Javed Burki, Authorized Officer, Secretary , Ministry of Water and Power , Government of Pakistan, Islamabad and another (2007 SCMR 693), Saad Salam Ansari v. Chief Justice of Sindh High Court, Karachi through Registrar (2007 SCMR 1726 ), Muhammad Abdul Moied v. Gover nment of Pakistan through Secretary , Ministry of Housing and Works and others (2010 PLC (C. S.) 1143), Muhammad Sadiq v.
Inspector-General of Police Punjab Lahore and others (2017 SCMR 1880), Farhan Mehmood v. Secretary , Government of the Punjab Health Department and 3 others [2018 PLC (C. S.) Note 70], Prof. Dr. Abdul Waheed v. Rector , Comsats Institute of Information Technology , Islamabad and others [2019 PLC (C. S.)
235] and Dr. Karim Shah v. Chairman, Search and Nomination Council / Health Minister , Government of Khyber Pakhtunkhwa, Peshawar and others [2021 PLC(C.S.) 235].
In the case of Abdul Qayyum supra, the Hon'ble Supreme Court of Pakistan observed as under:- "....This is correct that the requirement of regular inquiry can be dispensed with in exceptional circumstances but if the recording of evidence is necessary to establish the charge, the departure from the requirement of regular inquiry under the rules, would amount to condemn a person unheard.
The petitioner in the present case was not provided proper opportunity to cress-examine the witnesses and explain the circumstances under which he associated himself with the transaction through the evidence, therefore, his dismissal from service in summary manner was violative of principle of natural justice. The contention of the learned counsel for the respondents that the petitioner was employed in an Organization which is part of the Armed Forces and he was supposed to be gover ned by the rules of the said Organization, therefore, it, was not incumbent upon the respondents to strictly follow the procedure provided, under the Government Servants (E & D) Rules, 1973, has no substance. The perusal of the documents placed on record on behalf of the respondents (Paper Book No.II) would show that the authorized officer in his note has stated that the petition er was being proceeded against under the provisions of Government Servants (E and D) Rules, 1973 for misconduct, therefore, without an explicit order of dispensation of the requirement of regular inquiry , the departure from the normal rule was not legal."
As the allegations contained in the SCN involve factual controversy which could not be proved without holding regular inquiry , in accordance with PEEDA Act, 2006, therefore, the impugned order passed without holding regular inquiry is not sustainable in the eye of law .
9. Petitioner has fundamental rights to fair trial, due process and to be treated in accordance with law for determination of his civil rights and obligations as envisaged under Articles 4 and 10-A of the F Constitution of the Islamic Republic of Pakistan, 1973. Right to fair trial means grant of a proper and fair hearing giving a reasonable opportunity to defend. Reference can be made to Ishtiaq Ahmed v. Hon'ble Competent Authority through Registrar , Supreme Court of Pakistan (2016 SCMR 943) and Khalid Mehmood v. Punjab Labour Appellate Tribunal, Lahore and 3 others (2018 PLC 56).
10. Even otherwise, impugned appellate orders lack valid lawful reasons, thus, violative of Section 24-A of the General Clauses Act, 1897, which binds the public functionaries to dilate upon all aspects of the matters presented before them, while determining rights of the 4 parties and decide the same after application of mind, assign cogent reasons and pass speaking orders, which is undoubtedly lacking in instant case. It is now well-settled that any order passed by judicial or quasi-judicial authority has to be supported by lawful reasons. The appellate orders dated 26.03.2015 and 05.09.2016, passed by the respondents Nos.1 and 4 do not meet the requirements set up by law, thus the same are not sustainable in view of law laid down in Ikram Bari and 524 others v. National Bank of Pakistan through President and another (2005 SCMR 100), Messrs United Woollen Mills Ltd. Workers'
Union v. Messrs United Woollen Mills Ltd. (2010 SCMR 1475 ), Fasih-ud-Din Khan and others v. Government of Punjab and others (2010 SCMR 1778 ) and Government of Pakistan through Director-General, Ministry of Interior , Islamabad and others v . Farheen Rashid ( 2011 SCMR 1 ).
11. As far as objection of learned counsel for the respondents as to maintainability of the writ petition is concerned, suffice it to say that action has been taken under PEEDA Act, 2006, and no regular inquiry has been held in the instant matter as required by law , therefore, instant writ petition is held to be maintainable in circumstances.
12. Resultantly , this petition is allowed and the impugned orders are declared to be illegal and without lawful authority and the same are set aside. The disciplinary proceedings initiated against the petitioner shall be deemed to be pending before respondent No.2, who shall decide the same after holding regular inquiry , strictly in accordance with law, within a period of two months from the date of receipt of certified copy of this order .
Compliance report shall be furnished to this Court through Deputy Registrar (Judicial).