MUHAMMAD SAJID MEHMOOD SETHI, J. This consolidated order shall also dispose of following connected petitions as common questions of law and facts are involved in these cases:-
1. W. P. No. 7305 of 2020 titled Jalil Ahmed v. Government of Punjab through Secretary Local Government and Community Organization, Punjab, Lahore and others
2. C.M.No.4261 of 2013 in W.P.No.764 of 2006 titled Jalil Ahmed v. Tehsil Municipal Administration and others
2. Through instant petition, petitioner has challenged vires of orders dated 05.09.2013, issued by respondent No.3, whereby major penalty of dismissal from service was imposed upon petitioner.
3. Learned counsel for petitioner submits that under the law Tehsil Municipal Officer is the competent authority to pass the order whereas impugned order has been passed by an incompetent authority, which is not sustainable in the eye of law. When confronted, learned Legal Advisor for respondents as well as learned Law Officer could not give any satisfactory response despite arguments at some length.
4. Heard. Available record perused.
5. The stance of petitioner is that as per the provisions of Punjab Tehsil/Town Municipal Administration Rules of Business, 2002, Tehsil Municipal Officer is the competent authority in the case of petitioner and not the Administrator: and that allegation of misconduct on account of A absence from duty for a long period has been levelled against petitioner, which he has denied, therefore, regular inquiry could not have been dispensed with.
6. Perusal of record shows that in response to above contentions of petitioner, no specific replies have been given by respondents in the report and parawise comments rather it has been stated that "Not related to the answering respondents". Record reflects that petitioner was reinstated into service pursuant to order passed by this Court in W.P.No.764 of 2006, and in order to frustrate said order, instead of challenging the same before higher forum, fresh order / impugned order of dismissal from service has been passed and mala fide / defiance is floating from the report and parawise commented, the relevant part whereof is reproduced hereunder:- "The petitioner while working as junior clerk (BS-5) in TMA Chishtian tendered his resignation which was accepted and circulated by the competent authority i.e. TMO, TMA Chishtian, vide order dated 06.09.2003. Later on, the petitioner in collusion with co-accused constructed a fake inquiry regarding embezzlement in the TMA funds and on the basis of that inquiry, he was dismissed from service. As per plan, the petitioner filed Writ Petition No.764/2006/BWP before this Honourable Court and the petition was decided in favour of the petitioner on the basis of weak defence and parawise comments submitted by the then TMO (co-accused) wherein the fact of his resignation was concealed. Accordingly, he was reinstated into service vide order dated 13.09.2006 in compliance with the order of this Honourable Court in the above referred writ petition.
The matter was brought into the notice of government by the complainants M/s Ghulam Mustafa and Sadiq Hussain resident of Chak No.46/F Tehsil Chishtian. The fact-finding inquiry was conducted by the DG(I&M) LG&CD Department wherein it was proved that the petitioner tendered resignation and thereafter maneuvered his re-entry into service in connivance with the co- accused. Therefore, recommended initiation of disciplinary proceedings against the accused including the petitioner which was initiated on the charges of inefficiency and misconduct vide order dated 04.02.2011 as under:- i. The petitioner tendered resignation but later on maneuvered to conceal the facts of his resignation. ii. He embezzled Rs.15,61,441/- and same were deposited after long time.
The inquiry officer vide his report dated 01.02.2013 proved the charges against the accused including the petitioner and recommended penalties against the co-accused according to the gravity of guilt proved against them, but did not recommended penalty against the petitioner in the presence of reinstatement order dated 13.09.2006 issued in compliance with the order of this Honourable Court in W.P. No.764 of 2006/BWP.
The Administrator, TMA Chishtian, therefore, was directed vide letter dated 15.08.2013 to file an application under section 12(2) C.P.C in the Honourable Court for getting the judgment order dated 13.09.2006 set aside and then the petitioner may be relieved of his charge along with issuance of notice to return all the monetary benefits he had received from the date of acceptance of his resignation till date. The Administrator without comprehending the contents of the above referred letter, relieved the petitioner forthwith without getting the said judgment challenged before this Honourable Court and now the petitioner has filed the instant writ petition against the order dated 05.09.2013 issued by the Administrator / Respondent No.4."
7. It is self-evidently clear that order dated 13.09.2006, passed by this Court in earlier round of litigation was not accepted by respondents and instead of challenging it before competent forum proceeded to defeat the same by passing fresh order of petitioner's removal from service.
Therefore, it is a case of deliberate defiance of order passed by the Court on part of respondent- authority, which amounted to frustrate the fundamental stone of the scheme of administration of justice. Willful, deliberate and contemptuous attempt to frustrate the order of this Court might attract penal consequences. However, this Court while exercising judicial restraint and taking a lenient view is not proceeding against the respondent-authority and is providing another opportunity to redress petitioner's grievance strictly in accordance with law.
8. Even otherwise, there is nothing on record to show that petitioner procured his appointment through fraud or illegal means. It is settled law that employee should not be made to suffer for action or inaction of the authority, who was obliged to follow the law. The Hon'ble Supreme Court of Pakistan, vide judgment dated 11.06.2014, passed in C.P. No.51-L of 2014 titled Ahsan Jabbar v.
Government of the Punjab and others, has held that if some fault was committed by the departmental authorities while assessing eligibility for appointment, the employee could not be deprived from his job due to faults of the department. Reference can be made to Province of Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulfiqar Ali (2006 SCMR 678), the relevant portion of which is as under:- "7. We are afraid that the contention so raised by him is not correct as the Director Agriculture appointed him on 10.11.1990 and thereafter his service was regularized w.e.f. the same date in the year of 1993. He served the department for about 11 years as a regular employee and during course whereof, there was no complaint of whatsoever nature against him, calling for action under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. It may be noted that these rules contemplate an action against an employee who is guilty for the breach of good service order, indiscipline, misconduct etc. but it does not, contain any provision on the basis of which appointment of an employee can be cancelled on the ground that it has been made illegally. In other words in such-like situation instead of taking action against an appointee it is appropriate if an action is taken against the Appointing Authority who apparently committed a misconduct by making such appointment, as it has been observed by this Court in the case of Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others 2002 SCMR 1034.
9. So far as C.M.No.4261 of 2013 i.e. application under Section 12(2), C.P.C is concerned, applicants alleged therein that petitioner submitted resignation on 05.09.2003, however, with connivance of official namely Muhammad Shafique, T.M.O. concealed his resignation and filed constitutional petition by showing him an employee of TMA; that writ petition was filed after 02-years of termination order, which was hit by lathes; that attendance register w.e.f. 05.09.2003 to July, 2004 was maintained through fraud; that pursuant to an inquiry, petitioner has been relieved from his duty with direction to return monetary benefits received from acceptance of resignation i.e. 06.09.2003 onward, vide order dated 07.09.2013. Record shows that applicants were duly represented in the matter through counsel, who contested and argued the matter at length, which was decided on merit. Applicants have not challenged the decision rendered in the constitutional petition, which has attained finality and application under Section 12(2), C.P.C., is not substitute to regular appeal, revision or review nor such provisions could be construed as something over and above the normal modes of questioning a decision by way of appeal, revision or review. Reference can be made to Noor Muhammad v. Muhammad Iqbal and 5 others (2014 CLC 1459) and Jubilee General Insurance Company Ltd. v. Ravi Steel Company through Proprietor (2020 CLC 1440).
Applicants have has failed to establish elements of fraud or misrepresentation, hence, no interference is warranted.
10. In view of the above, impugned order is declared to be illegal and without lawful authority with the direction to respondents to release the payable salaries of petitioner forthwith.
11. With the above observations and direction, instant petition, along with connected petitions, is disposed of accordingly.