Through this Constitutional petition under Article 199 of the Constitution of Islam ic Republic of Pakistan, 1973 petitioner has challenged office order dated 16.12.2019 passed by Respondent No. 1/D.G. LDA alongwith the order passed by the departmental authorities; i.e. dated 12.10.2017 passed by Respondent No. 3/ Director Administration, LDA whereby the petitioner was awarded major penalty of dismi ssal and order of the Appellate authority passed on 04.01.2018 rejecting his appeal with a further prayer to order for reinstatement of the petitioner from the date of dismissal with all back benefits.
2. Brief facts giving rise to the filing of this Constitutional petition are that petitione r was appointed as Junior Clerk but was later posted as Anti-Encroachment Inspector and during the said period Respondent No. 6/ Senior Estate Officer (EM-1) LDA prepared a report on 31.05.2017, disciplinary proceedings under PEEDA Act, 2006 were initiated against the petitioner and on 22.06.2017 Respondent No. 5 was appointed as the inquiry officer who observed that as per report prepared by Respondent No. 6/ Senior Estate Officer (EM-1) LDA, the petitioner was found responsible for illegal construction on a portion of Plot No. 10, J/3, M.A. Johar Town, Lahore. Said Respondent No. 3 was appointed as departmental representative in the disciplinary inquiry . In the inquiry report dated 31.08.2017 major penalty for forfeiture of service of three (3) years was recommended. Vide order dated 12.10.2017, Respondent No. 3/Director (Administration) LDA enhance the major penalty of dismissal from service without issuing any notice. The petitione r filed a department appeal before Respondent No. 1/Director General, LDA on 09.11.2017 against the order of dismissal, who rejected the same on 04.01.2018. Meanwhile, petitioner sent a reminder to Respondent No. 1/Director General, LDA to decide the representation but of no avail. The petitioner , therefore, was constrained to file W.P. No. 51057 of 2019 which was disposed of on 16.09.2019 directing D.G. LDA to decide the appeal of the petitioner within a month. However , after the said period, a contempt petition was filed before this Court whereafter on 16.12.2019 the impugned order was passed. Hence, petitioner challenged both the orders dated 12.10.2017 passe d by Respondent No. 3/Director (Admin istration) LDA as well as dated 04.01.2018 passed by Addl. Director (General) LDA.
3. Learned counsel for the petitioner contends that no prosecution witness was presented in the inquiry to support the imposition of major penalty of dismissal from service and that the revisional authority had failed to exercise its jurisdiction as envisaged in Sections 14 and 17 of PEEDA Act, 2006. Adds that neither oral nor documentary evidence was recorded on oath as stipulated under Article 1 of Qanun-e-Shahadat Order , 1984 as well as Section 12 of the PEEDA Act, 2006. It was further contended that in fact on ground a single story constructed building was already present on Plot No, 10, J/3, M.A. Johar Town, Lahore and the civil litigation was already pending between the private party and the LDA, therefore, he got recorded the Rapt Roznamcha on 29.12.2016 in the Police Chowki Shaheed Tariq, Kamboh and also submitted many applications to the higher LDA officials but due to strong land mafia actively working to protect the said property who politically influenced the administration of LDA and, therefore, the bonafide efforts of the petitioner were bulldozed. Adds that petitioner had applied for allotment of official accommo dation and on the basis of seniority accommodation No. 746 Block-F Jubilee Town, Lahore allotted to him on 22.01.2015 but the Director (Administration) LDA tried his best to dispossess the petitioner which led him to file suit for permanent injunction in the year, 2017 and therefor , on the basis of mala fide the process was illegal ly initiated against the petitioner to take his revenge, hence prays for the relief.
4. In the report and parawise comments submitted by Respondents No. 1 to 6, the allegations were denied. It was specifically argued that the procedure was validly adopted before imposition of the major penalty under Section 13(4) of the PEEDA Act, 2006 since the petitioner being a responsible officer of Anti-Encroachment drive had failed in his duty by not stopping the illegal construction on the second floor of the house in question against the illegal gratification. Adds that under Section 4(b)(iii) of the PEEDA Act, 2006 the major penalty of forfeiture of service of three years was validly awarded. Further adds that petitioner was heard where after the impugned order was passed since he had nothing to say in his defence and prays for the dismissal.
5. Arguments heard. File perused.
6. After hearing, the learned counsel for the parties and perusing the file, it is straightway observed that VIDE impugned order dated 16.12.2019 Director General, LDA in paragraph No. 5 observed as follows: "5. Thorough examination of the record shows that petitioner has been dealt with strictly in accordance with law. He has been provided every opportunity to plead his case as detailed in PEEDA Act, 2006. The petitioner has failed to bring forth any new evidence/arguments in his defence that can be made part of the proceedings to change the outcome of this case."
This order reflects that it is a non-speaking order whereby the findings given by his junior officials were adopted.
The grounds raised before him in the appeal/representation were not discussed and as such this order is directly hit by Section 24 of the General Clauses Act, 1897. The questions; whether petitioner had committed criminal lapse permitting to carry on the illegal construction single, handedly or whether this concession/ permission was reciprocated by the delinquents in the form of bribe either in cash and kind; and whether the other officials of LDA had connived or were privy to this inaction during the Anti-Encroachment drive, was not deliberated upon.
7. Here it will be important to refer Paragraph No. 4 of the order dated 12.10.20 17 passed by Respondent No. 3/Director (Administration) LDA in which the pertinent questions of fact were not addressed, which is reproduced as under: "4. AND WHEREAS, the accused was given an opportunity for personal hearing on 09.10.2017 wherein he has heard in detail in presence of Departmental Representative. The inquiry report and whole relevant record has been delved into. It has transpired that possession of Plot No. 10, Block-J/1 11, M.A. Johar Town, Lahore was handed over-to Mr. Rasheed Ahmed S/o Karam Din through GPA Muhammad Rasheed vide letter No. JT/NB-II/1348- M/1028 dated 07.07.2003. However , the same was cancelled vide Order No. DLD-11/2579 dated 28.04.2004. As per record, there existed a single story shop at the said plot which is illegal as the same has been cancelled. In December , 2016, a fresh construction was made by the encroachers at some portion of the said plot. This new construction activity was not reported by the concerned Anti-Encroachment Inspector i.e. the accused which clearly shows his involvement in the said illegal construction. The construction was pointed out through an application received in the office of Director Estate Management-1, LDA and subsequent upon which an Anti-Encroachment Operation was conducted on 29.12.2016 and the fresh construction was demolished. In addition, the accused being the concerned Anti-Encroachment Inspector , LDA was sternly directed to remain vigilant and keep watch and ward of the said plot.
On 30.05.2017, another complaint was again received regarding fresh construction activity at the said plot.
Subsequently , a visit was made to the site and the concerned officer observed that fresh construction had been done by the encroachers at some portion. Once again it was not reported by the accused. This time clearly proving that he is in cahools with the land encroachers and is completely responsible for the fresh construction. The accused has tried to absolve himself from the blame with the contention that he was on leave from 20.04.2017 to 22.04.2017 but the fact that he did not report the illegal construction even after returning from leave clearly show his involvement. In fact, the construction was pointed out even the second time through a complaint received on 30.05.2017 almost a month after his 03-days leave. The accused has also tried to produce an application in his defence that was submitted to in-charge Choki, Block-L. M.A. Johar Town, Lahore on 24.04.2017. However , the same is neither signed by the Estate Officer nor the Senior Estate Officer, LDA. In addition to the application not being signed the accused completely failed to report it to his superiors within the office. Even if a lenient view is taken with regard to the construction made earlier in 2016, the accused cannot be absolved from intentionally not reporting the construction second time, by which time the matter had been highlighted and he had been specifically directed to keep watch and ward of the plot in question."
These questions/observations if seen in juxta position of the finding given by the inquiry officer vide impugned report dated 31.08.2017, it is clear that the finding was to the extent of committ ing negligence, misconduct and willful omission in performing his official duties and deliberately facilitating the encroachers to carry out illegal construction and that stand taken by the petitioner that construction was carried out in his absence since he remained on leave from 20.04.2017 to 22.04.2017 as such construction up to the rooftop was not possible within 4 days, was to be supported with some material/ evidence to make out a case for awarding major penalty of dismissal from service.
8. Besides, this Court has noted that before enhancement of the major penalty from forfeiture of service of three (3) years to dismissal from service a notice was required to be issued to the petitioner asking him to explain as to why major penalty should not have been imposed. This notice was neither part of the file nor it was so asserted by the respondents/LDA. In Secretary , Government of Punjab (C&W) and others versus Ikramullah and 5 others (2013 SCMR 572), it was held in paragraph No. 6 that competent authority without assigning any reason to disagree with the finding of the inquiry committee with reference to the evidence collected, could not enhance the penalty and converted the same into major penalty that too without issuing a notice. Relevant extract is reproduced as under: "The Competent Authority without assigning any reason to disagree with the findings of the Committee with reference to the evidence collected enhanced the penalty and converted the same into major penalties as indicated in column No. 4 of the chart referred in para 3 above. There is no cavil to the proposition that the competent authority on receipt of the report from the inquiry officer of the inquiry committee can proceed in any of the options available to him in terms of sub-section (2) to (8) to Section 12 of the Punjab Employees Efficiency , Discipline and Accountability Act, 2006. However , while doing so, it has to follow the procedure laid down therein and if it proposes to enhance the penalty it has to give reasons germane to the charges levelled and the evidence collected during inquiry and that too with reference to the liability of each of the officers who were inquired into. Unfortunately the competent authority did not give any reason whatsoever except that he had gone through the record and defence pleas of the respondents and had also personally inspected the road, defective construction of which was a moot point during inquiry . Mere deplorable condition of the road at site was not enough to hold each respondent guilty unless the Competent Authority specifically had referred to the role and liability of each one of the respondents in the light of material/evidence collected during inquiry . Learned law officer on Court query , could not dispute the fact that the competent authority neither gave any reason for enhancing the penalty nor apportioned the liability , of each of the respondents specifically .",
9. For the foregoing reasons, this writ petition is allowed to the extent that order passed by the competent authority as well as Director General is set aside and the case is remanded to the competent authority to re-decide the matter keeping in view the legal requirements as well as material/evidence against the petitioner .