MALIK MUHAMMAD AWAIS KHALID, J. Through the instant constitutional petition, the petitioner has called in question the order dated 07.4.2015 passed by respondent No.3 and order dated 19.5.2021 passed by respondent No.2 in departmental appeal being illegal, void, unjust, beyond jurisdiction and lawful authority.
2. Brief facts of the case are that petitioner was proceeded under the Punjab Employees (Efficiency, Discipline and Accountability) Act, 2006, ('the Act') and thereafter after conducting inquiry was terminated from service vide order dated 09.10.2009 which was assailed before this Court and petitioner was reinstated vide order dated 26.8.2014 passed in Writ Petition No.4954 of 2009. In compliance of said order of this Court, petitioner was not reinstated rather was suspended for an indefinite period vide order dated 02.10.2014 and inquiry was ordered to be conducted and a show cause notice was served to the petitioner. The petitioner filed reply while denying the allegations levelled against her. Thereafter, vide order dated 07.4.2015 major penalty of 'dismissal from service' and recovery of emoluments was imposed by the department without complying the order of this Court dated 26.8.2014. Feeling aggrieved, petitioner filed writ petition before this Court which was disposed of vide order dated 07.4.2021 passed in W.P. No.8141 of 2017 with the direction to respondent No.2 to treat it as appeal against order dated 07.4.2015 (impugned order) and decide the same without being influenced by the orders impugned through that petition. Respondent No.2 dismissed the appeal filed by the petitioner vide order dated 19.5.2021 (impugned appellate order).
3. Arguments heard. Record perused.
4. The petitioner was appointed as Lab Assistant (Embroidery) and was terminated from service vide order dated 09.10.2009 with the allegation that petitioner submitted bogus qualification certificate. The said order was earlier challenged before this Court through writ petition which was accepted vide order dated 26.08.2014. Thereafter the petitioner was suspended vide order dated 02.10.2014 and an inquiry was initiated against the petitioner under the Act. The Inquiry Officer recommended imposition of major penalties of 'dismissal from service and recovery of emoluments drawn throughout the service as prescribed under section 4(1)(b)(vi & i) of the Act.
The show cause notice under section 13(4) of the Act was issued to the petitioner after conducting the inquiry to the effect why not the penalties as recommended by the Inquiry Officer be imposed on her. Thereafter, penalties of 'dismissal from service and recovery of emoluments drawn throughout the service vide impugned order were imposed. The departmental appeal filed by the petitioner was also dismissed by respondent No.2 vide impugned appellate order. The allegation against the petitioner was that at the time of her appointment she submitted two certificates i.e. Special Course (Tailoring & Dressm aking) for nine months for session January 1988 to September 1989 and Special Short Course (Knitting) for four months for session from July 1989 to October 1989 issued from Mother & Children Home, Women Community Centre (Sub Sanatzaar), Bahawalpur. It was alleged that aforesaid documents after verification were found bogus. Perusal of Inquiry Proceedings reveals that Inquiry Officer recorded statements of three witnesses namely Mrs. Shamooz Akhtar Jr. Instructor Embroidery PW.1, Muhammad Shahzad Computer Operator/Office Assistant PW.2 and Saeed Rizwan Admin Accounts Officer PW.3 but during evidence said documents and verification report were not confronted to the petitioner in order to prove the allegations levelled against her under law. Further no relevant witness or person from said Institute recorded a statement against petitioner regarding the genuineness of the letter and academic qualification. The department produced three witnesses but no witness was relevant, such as appointing authority or person from the Institute from where the petitioner obtained said degree/certificate and nothing substantial was confronted with the petitioner as well. For the purpose of regular inquiry while in order to ascertain the truth all cannons of justice were inevitable and allegations must substantially be proved against the petitioner before awarding any penalty hence, material against the petitioner was not sufficient to prove her guilt, therefore, findings/recommendations without concrete evidence were not in accordance with law. There must be the unimpeachable evidence to pass the impugned orders as the petitioner was working for the last 16 years and there was nothing on the record. The recovery of amount against the petitioner is harsh whereas petitioner was continuously working and no charge or complaint regarding her performance was in the charge sheet.
5. It is the prerogative of the concerned institute to declare any certificate bogus subject to confrontation in a lawful manner whereas such exercise is missing in this case. Guidance in this regard is sought from the case of Muhammad Sadiq Vs. Inspector General of Police Punjab Lahore and others (2017 SCMR 1880) wherein it has been held as under:- "It is a matter upon which an opportunity to record evidence ought to have been granted.
Likewise, the availability of documentary evidence, if any, with the respondents that justified dispensation of any inquiry ought to have been disclosed/ confronted to the appellant. In the absence thereof, we find that the impugned punishment has been imposed upon the appellant without complying with the provisions of law."
The stance of the department is that the certificates submitted by the petitioner were sent for verification which were found bogus vide letter No.SUPT/GMC/BWP/2009/232 dated September, 3, 2009 but during the inquiry proceedings neither any witness from the said institution was summoned in order to prove the allegations nor an opportunity to cross-examine was afforded to the petitioner in this regard. Reliance is placed on the case of Tariq Khan and another Vs. Additional Director General (North) Federal investigation Agency, Islamabad and others (2025 SCMR 453) wherein it has been held as under:- "The major object of affording a fair opportunity of cross-examination in the defense is to obliterate the testimony of witness or witnesses to disprove the charge or allegations, both in civil and criminal matters, including domestic/departmental inquiries conducted under the labour laws or civil servant laws. A mere statement of any witness has no legal value unless he is subjected to cross-examination which cannot be envisaged as a concession. On the contrary, in fact, it is a vested right and fundamental limb of the dogma of fair trial. During a regular inquiry, it is an unavoidable obligation of the inquiry officer to provide a fair opportunity of cross-examining the witnesses, without which it was not possible to fix responsibility for the charges of misconduct.
Such violation of an elementary principle of law sabotages the fabric and substratum of the entirely of the disciplinary proceedings and the worth and credibility of the inquiry."
Further reliance is placed on the case of Muhammad Nasir Ismail Vs. Government of Punjab through Secretary Law and Parliamentary Affairs Division Lahore and others (2005 SCMR 708).
6. It is held by the Hon'ble Supreme Court of Pakistan in case of The Vice-President (Admin.), National Bank of Pakistan and others Vs. Basharat Ali and others (1996 SCMR 201) that paramount object of framing of the rules and enactment to provide a fair and reasonable opportunity to an accused employee to defend himself against the charge brought against him by his employer in order to ensure adherence of the principles of natural justice. This will implicitly include the right to have a copy of charge-sheets with all material particulars relating to allegations on the basis of which charges are founded, to have reasonable time to submit a reply to the charge-sheet, to participate in an inquiry proceeding, to examine the documentary evidence produced in support of the charges, to cross-examine the witness produced by the employer and to produce oral and/or documentary evidence in rebuttal to the evidence produced in support of the charges. If an accused employee is provided opportunity as above, it will be difficult for him to urge that such an inquiry was not fair or that it was violative of the principles of natural justice. The Hon'ble Supreme Court of Pakistan in the case of Saad Salam Ansari Vs. Chief Justice of Sindh High Court, Karachi through Registrar (2007 SCMR 1726) where it has been held as under:- The appellant has been subjected to a major penalty terminating his service prematurely. The spirit of the law namely PEEDA Act, 2006 is that such terminal punitive action against a civil servant should be taken after an inquiry has been conducted. In the present case, whether the appellant had a satisfactory explanation for his absence for the period mentioned in the show- cause-notice has not been attended by the respondents. It is a matter upon which an opportunity to record evidence ought to have been granted. Likewise, the availability of documentary evidence, if any, with the respondents that justified dispensation of an inquiry ought to have been disclosed/confronted to the appellant. In the absence thereof, we find that the impugned punishment has been imposed upon the appellant without complying with the provisions of the law.
Further reliance is placed on the case of Abdul Qayyu m Vs. D.G. Project Management Organization, JS HQ. Rawalpindi and 2 others (2007 SCMR 1726), where it has been held as under:- The petitioner in the present case was not provided proper opportunity to cross-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 governed 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.
7. The principles of natural justice require that delinquent should be given fair opportunity to contest charges levelled against her before she was found guilty. A regular inquiry cannot be considered an inquiry unless fair opportunity is provided to a person to defend the charges. For all purposes, the Inquiry Report cannot be construed as fair and impartial nor it commensurate with the procedure provided under the Act. The imposition of major penalty of 'dismissal from service' and recovery of emoluments drawn throughout the service cannot be sustainable in the absence of principle of due process and transparency so the same cannot be termed as regular inquiry under the Act. Petitioner cannot be unjustly penalized without being given opportunity to present her complete defence under law. Reliance is placed on the case of The Government of Balochistan, through Secretary Energy Department, Quetta and another Vs. Muhammad Yasir (2025 SCMR 367) wherein it has been observed as follows: "This action was in sheer contravention of Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"), and lacked due process of law. To enjoy the protection of law and to be treated in accordance with the law is a basic fundamental right of every citizen within the precincts ad confines of Article 4 of the Constitution which, in fact, assimilates the doctrine of equal protection of law and accentuates that no action detrimental to life and liberty can be taken without due process."
Further reliance is placed on the case of Sanaullah Sani Vs. Secretary Education Schools and others (2024 SCMR 80) and Muhammad Saeed Vs. Pakistan Telecommunication Company Limited through President PTCL and another (2023 PLC (C.S.) 517), where it has been held as under:- "The treatment afforded to the petitioner for throwing him out of service after rendering 20 years' service as being regular employee, in no way can be termed justified and in accordance with the cannons of law. The treatment under due process is right of every employee while principle of fair trial is also a fundamental right in terms of Article 10-A of the Constitution"
8. The underlying aspiration of conducting departmental inquiry is to determine whether a case of misconduct is made out and whether the accused is found guilty by the Inquiry Officer/ Committee is obligated to ascertain whether due process of law or the right to a fair trial, as envisaged under Article 10-A of the Constitution of the Islamic Republic of Pakistan 1973, was followed or not. A regular inquiry cannot be considered or labelled a regular inquiry unless fair opportunity is provided to defend the charges and confrontation of material and cross-examination of witnesses.
The inquiry report appears to be defective, not in accordance with law and the Judgments laid down by august Supreme Court of Pakistan. The impugned orders have been passed in excess of jurisdiction. Likewise, The appellate authority has not applied independent mind and passed the impugned appellate order in a mechanical manner. The administrative functionaries are under obligation to discharge their responsibilities and duties in a reasonable manner with impartiality and full application of law in order to ensure that no one is denied to earn his livelihood because of the unfair action being departure from the mandatory provision of law, equity and justice.
The upshot of above discussion is that impugned orders are set aside and the competent authority shall conduct a de novo inquiry on the allegations levelled against the petitioner keeping in view the observations supra. Needless to observe that payment of emoluments, if any, shall also be subject to final outcome of the de novo inquiry.
The instant writ petition is allowed in above terms.