Muhammad Mushtaq Jadoon, Member. Appellant joined NH & MP in 2000, promoted as APO w.e.f.
03.09.2009 and SI/PO w.e.f. 05.01.2016. While serving in Beat 05, M/2, North Chakri, the SSP (Respondent No. 1) passed an order on 22.02.2019 imposing minor penalty of forfeiture of two years of service. Appellant filed departmental appeal on 02.04.2019 which was decided on 18.09.2019, penalty was upheld, hence this appeal.
2. The learned counsel for the appellant argued that, the very impugned order dated 22.02.2002, indicates, that no explanation of appellant was called. No inquiry was ordered, charge sheet or Show Cause was issued and the appellant condemned unheard. Impugned order has been passed in such a casual manner that even date of personal hearing not given. In support of his argument he referred to the National Highways and Pakistan Motorway Police (Efficiency and Disciplinary) Rules 2016 (herein after to be referred as Rules). He referred to Rule 7 and the procedure thereof.
3. The Authority, based on facts and circumstances of the case, to decide whether to issue a show- cause or order an inquiry through inquiry officer or Inquiry Committee. In the instance case none of the procedure followed and based on incident report and fact finding inquiry penalty was awarded. He relied on case law as reported in 2019 SCMR 640, whereby it was held that due process of law must be followed. In regard to observance of mandatory provisions of law and rules he relied on 2005 SC 85, 1994 SCMR 2232, PLD 2014 Islamabad, 2015 PLC (CS) 1270 and PLD 2014 Lahore 167.
4. The learned AAG and the DR relied on parawise Comments and contented that the appeal to departmental authority was time barred and as held in many cases, whereas the departmental appeal was time barred the appeal before the Service Tribunal is incompetent. He pointed out that the appellant was granted personal hearing on both the occasions by the authority as well as departmental authority. Proper inquiry was conducted by ASP/DSP, CPO-07 which was submitted on 14.01.2019. Misconduct, hot temper and threat of committing suicide was reported by DSP/Chief Patrol Officer on 08.01.2019 and also reported in Roznamcha (Madd 2) dated 05.01.2019.
5. Arguments heard and record perused.
6. We tend to agree with the learned AAG to the extent of sequence of inquiry i.e. "Roznamcha report", Incident Report, fact finding inquiry and rejection Girder by the appellant authority. Without further discussing the contents and merits of initial and inquiry reports, the procedure followed in this case is discussed.
7. NH&MP (E&D) Rules, 2016 are clear as per procedure laid down in Rule 7. Rule 7(1) states that the authority shall determine whether in lights of facts and circumstances of the case or in the interest of justice departmental inquiry through an Inquiry Officer or Inquiry Committee is necessary to inquire into charges framed against an accused' (emphasis added).
8. Very word "facts" and "circumstances" of the case or "in the interest of justice" presupposes a report, or information received by the Authority in regard to an employee. Thus "determination" by the authority is adjudication and the authority is bound to give reasons for his satisfaction and reaching at conclusion of ordering initiation of formal inquiry under E&D Rules, 2016. Determination is a judicial decision. Black's Law Dictionary defines determination, "a final decision by a Court or administrative agency". Thus very decision to initiate regular inquiry under the Rules must start with a speaking order, In case there is some fact finding inquiry as was done in this case, it is the right of the accused that such fact finding inquiry should be shared with the employee to seeks his response. If on the basis of reply the Authority feels that a regular inquiry under the Rules is required then the Authority would issue an order as such. In fact such determination would be judicial determination as per spirit of the concept of determination. Such employee cannot be addressed as an "accused" till initiation of regular inquire. Although not essential and prerequisite under the Rules yet in the interest of justice such employee may be called upon to explain why departmental inquiry under the Rules should not be initiated against him. Fact finding inquiry is in the interest of justice specially in, complicated and technical matters which warrants professional' and technical input. In the light of reply of employee the authority may come to the conclusion whether a formal inquiry under the Rules is necessary or otherwise? Once the Authority determines, citing cogent reasons, that an inquiry under the rules is essential then procedure under Rule 7 is to be followed.
Once formal inquiry under the Rules is initiated then such employee becomes an accused. Word "Charges" is indicative of the fact that charge has had to be framed as per criminal proceedings.
As per Rule 9 (2), proceedings under these Rules shall be deemed to be judicial proceedings within the meanings of Sections 193 and 228 of the Pakistan Penal Code, 1860. For the purpose of an inquiry under these rules, the Inquiry Officer or the Inquiry Committee shall have the powers of Civil Court trying a suit under the Code of Civil Procedure (1908). NH&MP has, mutatis mutandis, adopted E&D Rules, 1973. Framing a Charge under Rule 7(2), whereby the authority decides under sub Rule (1) that it is not necessary to hold an inquiry he shall, by order in writing, inform the accused of the action proposed to be taken against him and the grounds of such action, by giving him reasonable opportunity of showing cause within a period of not less than seven days and not more than fourteen days or within such an extendable period as may be allowed by authority.
There are following exceptions, and exceptions are always for exceptional circumstances, which requires justification, where the authority may dispense with issuing Show Cause.
9. Under Rule 7(3) no opportunity of showing cause under sub-rule (2) shall be given where the authority is satisfied that in the interest of security of Pakistan or any part thereof it is not expedient to give such opportunity. Rule 10 is reproduced below.
(a) Where the accused is reduced in rank, removed or dismissed from service on the ground of conduct which has led to a sentence of fine or of imprisonment or both; or
(b) Where the authority competent to reduce a person in rank, remove or dismiss him from service is satisfied that, for reasons to be recorded in writing by that authority, it is not reasonably practicable to give the accused an opportunity of showing cause. Case file indicates that no such order, as per Rule 7 (3) or Rule 10, was passed by the authority.
10. While, irregularity not adversely affecting the fundamental rights of accused are curable procedural irregularity, bordering illegality, is hardly condonable. Since the mandatory procedure was not followed in the inquiry therefore eleven days delay in filing departmental appeal is condonable as the inquiry proceedings are declared void abinitio.
11. Record indicates that there was an incident report and a fact, finding inquiry by DSP. The Authority, on receipt of fact finding report should have determined that a regular inquiry under the Rules was required. Once authority determines as such then mandatory procedure as laid down in Rule 7 is to be followed. There was no order under Rule 7(3) or Rule 10 to dispense with issuing of Show Cause. Otherwise also the facts of the case, prima facie, do not fall within purview of Rule 7(3) or Rule 10. In this case the authority just issued' an impugned order without Show Cause notice under Rule 7(2)(a)(b) or to hold an inquiry through an Inquiry Officer or an Inquiry Committee, as the case may be, as per provisions of Rule 7(4). Even in case the authority decides that it is not necessary to hold an inquiry the authority must cite valid reasons to dispense with inquiry and opt for Show Cause notice.
12. In Gazette notification SRO dated December 10, 2016, Registered No M-302/L 7646) in Rule 7 (b) in the last line instead of 'may be "the word "many be "used which requires correction.
13. Keeping in view the serious procedural lapses, irrespective of merits of the case, Appeal, due to cited reasons, is accepted, impugned order dated 22.02.2019 and appellate order dated 18.09.2019 are set aside. Case is remanded back to the respondents for de novo inquiry strictly on merit of the case and following procedure as per rules and explained in the proceeding paras.
14. A copy of this order be sent to IG, NH&MP for amendments, correction in Rules, 2016 as pointed out at para-8 ante.
15. No order as to costs. Parties be informed.