Briefly put, while serving as Inspector, Market Committee, Shorkot, disciplinary proceedings were initiated against the petitioner along with the then Secretary, Market Committee, Shorkot. Precisely, charges against the petitioner were as under:- i. He misguided the Administrator Market Committee Shorkot to allow the defaulters to deposit the time barred outstanding dues of Plots Nos.21, 31 and 41 of Grain Market, Shorkot in the funds of Market Committee, Shorkot. ii. He received and issued receipts of an amount of Rs. 11,500/- for Plot No. 21 on 13.09.2011, Rs.
21000/-for Plot No. 41 on 14.09.2021, and Rs. 16875/- for Plot No. 31 on 01.10.2011 respectively against the prescribed terms and conditions of allotment/auction of plots in Grains Market Shorkot.
Upon conclusion of the departmental proceedings, the Special Secretary to Government of the Punjab, Agriculture Marketing Department, Lahore (Respondent No. 1) on the recommendations of the Inquiry Officer, imposed major penalty of compulsory retirement from service, alongwith recovery of Rs. 22,13,750/-, against the petitioner, vide order, dated 05.03.2015. Aggrieved of penalty imposed against him the petitioner filed an appeal which was rejected by the Chief Secretary, Govt. of the Punjab, Lahore (Respondent No. 2), vide order, dated 06.08.2015 which was assailed by him by filing a revision petition before the Chief Minister, Punjab, Lahore (Respondent No. 3) which too was declined, factum thereof was conveyed to him through communication dated 27.12.2016.
The petitioner challenged the impugned orders by filing a constitutional petition (W.P. No. 3043 of 2017) before this Court which was disposed of vide judgment, dated 01.12.2020, directing the relevant authority to pass speaking order in terms, of Section 17 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (PEEDA Act, 2006). Pursuant to the direction issued by this Court, Respondent No. 3 dismissed the revision petition of the petitioner by reiterating its earlier decision factum whereof was conveyed to the petitioner through order, dated 25.08.2021, issued by the Director General, Punjab Agricultural Marketing Regulatory Authority, Lahore; hence this petition.
2. Learned counsel for the petitioner submits that Special Secretary, Agriculture Marketing, was not the competent authority in respect of Secretary Market Committee who was high ranking officer amongst the accused employees, thus, the entire proceedings were coram-non-judice; that though the petitioner raised number of legal questions in his appeal as well as revision but none of them were attended to in the impugned orders; that the grounds taken by the petitioner in this petition have not specifically been denied by the respondents rather they have admitted them; that according to the Punjab Agricultural Produce Markets (General) Rules, 1979 (the Rules, 1979) the Secretary Market Committee was bound to guide the Administrator on procedural matters but the petitioner did not figure anywhere rather he had to comply with the orders passed by his Seniors, hence no overt act could be attributed to him; that Rana Waseem Khan, the then Administrator Market Committee, Shorkot, while submitting reply during the departmental proceedings initiated against him, admitted that he was misguided by the Secretary Market Committee, thus, no ill-will can be attributed to the petitioner; that itis case of clear discrimination inasmuch as the Secretary Market. Committee, whose role was more crucial as compared to the petitioner, was imposed minor penalty in the shape of withholding of increments whereas penalty of compulsory retirement was imposed against the petitioner; that no loss has been caused to the national exchequer as the amounts received by the petitioner were duly deposited in the relevant head; that since construction on the plots in question was stayed by the government itself, no ill- will can be attributed to the petitioner mere on account of belated receipt of outstanding amount and that though the petitioner implemented the order passed by the Administrator, while permitting certain persons to deposit the outstanding amount, but he (the Administrator) was not joined in the proceedings initiated under PEEDA Act, 2006. Relies on Directorate General Emergency Rescue Service 1122 Khyber Pakhtunkhwa, Peshawar v. Nizakat Ullah (2019 SCMR 640), I.-G. (Prisons) N.-W.F.P. Peshawar and others v. Muhammad Israil, Assistant Superintendent Jail, Haripur (2006 SCMR 1948) and Mazhar Ilyas Nagi and others v. Governor, State Bank of Pakistan and others (2018 PLC (C.S.) 99).
3. Learned Law Officer, while opposing the submissions made by the learned counsel for the petitioner, contends that since during his personal hearing the petitioner admitted his guilt, he was estopped to agitate against imposition of penalty against him; that due to act of the petitioner, litigation between the allottees and the department has reached upto Hon'ble Supreme Court of Pakistan, thus, he cannot claim that nothing happened due to his conduct; that according to the Punjab Government Rules of Business, 2011, Special Secretary falls within the definition of the competent authority, thus, the petitioner has no cheeks to claim relief by objecting against the competence of said authority to initiate proceedings against him and that in case the petitioner is aggrieved of disproportionate sentence awarded to him, as compared to the Secretary Market Committee, the department is ready to take up the matter in its revisional jurisdiction to enhance the penalty imposed against the Secretary Market Committee. Relies on Provincial Selection Board, Government of Khyber Pakhtunkhwa through Chairman/Chief Secretary, Khyber Pakhtunkhwa v. Hidayat Ullah Khan Gandapur (2021 SCMR 1904) and Government of the Punjab through Chief Secretary, Civil Secretariat, Lahore, v. Khadim Hussain, (1999 SCMR 1639).
4. Learned counsel representing Respondents Nos.4 and 5, in addition to adopting the arguments advanced by the learned Law Officer, states that since the matter was not routed through the Secretary Market Committee the petitioner cannot claim any leniency on the ground that the Secretary failed to perform his obligations in terms of Rule 69 of the Rules, 1979.
5. While exercising his right of rebuttal, learned counsel representing the petitioner submits that though in his report the Inquiry Officer dealt with the plea of the petitioner that he was made scapegoat for omission on the part of the then Secretary Market Committee in an exhaustive manner but he did not give any persuasive reason to award harsher penalty to the petitioner as compared to the Secretary Market Committee.
6. I have heard learned counsel for the parties at considerable length and have also gone through the documents, annexed with this petition, as well as the case-law cited at the bar.
7. Firstly, taking up the plea of the petitioner that since he received amounts and issued receipts in compliance with the orders of the Administrator and deposited the same in the National Exchequer, no omission or commission was made out on his part, thus, he was entitled for clean chit, I am of the view that it is admitted position that petitioner facilitated time barred deposit of outstanding amounts by the allottees, thus, he could not shrug off his liability to apprise the then Administrator regarding the fact that time for deposit of said charges already stood expired notwithstanding the guiding role of the then Secretary Market Committee. Even otherwise, compliance of illegal/void orders of the superiors by a government servant itself constitutes misconduct and said fact cannot be used as defence. Reliance in this regard can be placed on the cases reported as Muhammad Jawed Hanif Khan (Supra) and Syed Muhammad Akhtar Naqvi (Supra).
8. Now coming to the quantum of penalty against the petitioner, I have noted that admittedly, proceedings against the petitioner and the then Secretary, Market Committee were initiated under the provisions of PEEDA Act, 2006 in the light of the order passed by the Governor of the Province.
The Inquiry Officer, while finalizing his recommendations, proposed imposition of major penalty of compulsory retirement against the petitioner whereas penalty of withholding of one increment for two years was proposed against the then Secretary, Market Committee, by holding that the petitioner was directly involved in collection of time barred dues and issuance of illegal receipts.
While recommending so, the Inquiry Officer omitted to note that responsibility to guide the Administrator in procedural matters lied with the Secretary, Market Committee in the light of rule 69 ibid. Further, while submitting reply, during inquiry proceedings, the then Administrator, Market Committee took the following stance: A cursory glance over the afore-imaged stance of the Administrator, Market Committee, Shorkot makes it crystal clear that the time barred deposit of amounts by the defaulter allottees occurred due to his inefficiency, negligence and lack of experience. Further, in Paragraph No. 3 of the afore- imaged reply the then Administrator stated in unequivocal words that the Secretary Market Committee, who was very much present at the time of issuance of direction to the petitioner to receive amount and issue receipt, apprised him that he (Administrator) was competent to pass order to the petitioner for recovery of outstanding amounts whereupon he directed the petitioner to receive outstanding amounts and issue receipts. In this backdrop, gravity of the charge levelled against the petitioner cannot be considered harsher than that of the Secretary, Market Committee. The apex Court of the country in the case of Secretary Government 'of the Punjab v. Khalid Hussain Hamdani (2013 SCM R 817) while highlighting the importance of the fact that penalty against a government servant should commensurate with gravity of charge(s) levelled against him/her, has inter alia held as under: "19. While examining the penalty awarded in the light of two salutary principles of judicial review of administrative actions, discussed in paras 14 to 17 above i.e. 'reasonableness' and `proportionality', we find that the Competent Authority disagreeing with the recommendation of the Inquiry Officer enhanced the penalty by relying on a report of the Chief Engineer submitted after the inquiry which was prepared on the asking of the said Authority. This was neither part of the inquiry nor the respondent officers were given any notice of the said report. After the submission of the inquiry report, show-cause notices were issued to the respondent officers and it was only thereafter that the Competent Authority asked the Chief Engineer to submit a report in the preparation of which the respondent officers were admittedly not associated. The award of penalty on the basis of the said report was unreasonable and was squarely hit by Wednesbury test of reasonableness. The enhancement of penalty in the afore-referred circumstances was based on an extraneous material and cannot stand the threshold of the said test and therefore is not sustainable. The quantum of sentence even otherwise was disproportionate to the gravity of the charge as admittedly neither there was an allegation of collusiveness with the contractor or of corruption.
Respondents' case in these circumstances calls for judicial review of the penalty awarded."
(emphasis provided)
If the sustainability of the penalty imposed against the petitioner is adjudged on the touchstone of the afore-referred judgment of the Hon'ble Supreme Court of Pakistan there leaves no ambiguity that the same does not commemorate with the gravity of charges levelled against him.
9. Though, the learned Law Officer as well as learned counsel representing the respondents tried to demonstrate that role of the then Secretary Market Committee was lesser grave as compared to the petitioner, by contending that since the matter was directly taken up by the then Administrator, Market Committee without intervention of the Secretary, Market Committee, no charge against the said Secretary was made out. In this regard, I do not see eye to eye with them firstly for the reason that while filing afore-imaged reply during the proceedings initiated against him, the then Administrator categorically stated at the time of passing of order to the petitioner the then Secretary Market Committee was not only present but also he (Secretary Market Committee) apprised him that he (the Administrator) could direct the petitioner for collection of outstanding amount and issuance of receipt in token thereof. Secondly, if the Administrator, Market Committee passed an illegal order without taking the Secretary, Market Committee into confidence, or without his guidance, even after deposit of outstanding dues and issuance of receipts, the Secretary Market Committee could bring the matter into notice of the Administrator for taking further steps in line with the law on the subject but shyness on his part speaks volumes about his dubious conduct towards performance of his duties.
10. A cursory glance over the inquiry report, coupled with the orders passed by the competent authority, shows that it is case of clear discrimination inasmuch as no distinguishing feature for imposition of harsher penalty against the petitioner as compared to the Secretary, Market Committee was mentioned. This act of the departmental authorities being violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, coupled with judgment of the Apex Court of the country reported as Mehar Muhammad Nawaz v. Managing Director, Small Business Finance Corporation and 2 others (2009 SCMR 187), cannot be let unnoticed.
11. Now coming to the case-law referred by the learned law officer I am of the view that the same is inapplicable to the facts and circumstances of the present case inasmuch as in the case of Muhammad Jawed Hanif Khan (Supra), it was held that compliance of order of the superiors which otherwise is void, is no defence and same view has been taken by this Court in Para No. 7 Supra but in the said judgment it has nowhere been mandated that the persons saddled with same charge can be imposed different penalties. Likewise, in the case of Syed Muhammad Akhtar Naqvi (Supra) the Apex Court of the country sensitized the civil servants that they are not bound to succumb to the illegal orders passed on the basis of political pressure rather they are supposed to act in accordance with law, which is not the position in the case in hand as the petitioner received amounts from allottees and issued receipts in compliance with the orders of the then Administrator.
12. For what has been discussed above, I have no doubt to hold that in respect of imposition of penalty the petitioner was discriminated as compared to the then Secretary Market Committee.
Consequently, instant petition is partially accepted and penalty of compulsory retirement imposed against the petitioner is converted into that imposed against the then Secretary Market Committee. No order as to costs.