Asim Akram, Member. Through the titled appeal the appellant has assailed the original order dated 15-09-2021 whereby a minor penalty of withholding of promotion for a period of two years was imposed upon the appellant. A departmental appeal to this effect was filed on 17-09-2021 which was regretted vide appellate order dated 21-09-2021. Feeling aggrieved both of the orders were initially assailed in Appeal No. 1400(R)CS/2021. In the said appeal the appellant has also assailed another original order. The Tribunal while observing the irregularity directed the appellant to assail one impugned order in an appeal. The appellant as per observation of the Tribunal amended his Appeal No. 1400(R)CS/2021 and assailed the orders, referred above, through the titled service appeal.
2. The appellant contends that numerous inquiries of the charges in statement of allegation dated 07-06-2021 have been held previously. In the last inquiry report dated 26-10-2018 all the twelve allegations levied against him stood not proved. The Authorized Officer agreed with the conclusions of the inquiry report through his recommendations dated 10-04-2020. He further pointed out the said inquiry report as well as its acceptance by the Authorized officer was never over ruled by the Authority. Re-initiation of depart mental proceeding on same set of allegations is contrary to the principles of law and is liable to be set aside, The appellant further states that the original as well appellate order had been passed without any authority and are void ah-initio.
Acceptance of the titled appeal is prayed for.
3. The Respondent No. 1, Ministry of Climate Change, contends that the assailed orders have been passed in furtherance of denovo inquiry which were initiated in light of the judgment dated 04-04- 2019 passed by this Tribunal in Appeal No. 2049 RCS/2017. All legal requirements were adopted while conducting the departmental proceedings. The appellant was provided all necessary documents and eight of the charges against the appellant stood proved. Dismissal of the appeal is prayed for.
4. The Respondent No. 2, Pakistan Environmental Protection Authority (Pak-EPA), has raised the preliminary objection of the titled appeal being time bard. They have also stated that there were two set of inquiries, i.e. Inquiry No. 1 and Inquiry No. 2, pending against the appellant. The inquiry No. 2, with twelve allegations, is under 'consideration out of which eight allegations against the appellant stood proved. This denovo inquiry was initiated in furtherance of the directions of this Tribunal in appeal No. 2049 (R)CS/2017. The respondent further contends that the appellant has a stained service record and he kept in litigation with the department on several issues from time to time. All regularities have been followed while conducting the departmental proceedings. Dismissal of the appeal is prayed for.
5. The Respondent No. 3, Establishment Division, and Respondent No. 4, Cabinet Division, in their reports have contended that the matter relates to Pak-EPA and the respondents have no concerns or have any order passed by them, which are under consideration. Accordingly, deletion of their names from the list of respondents is prayed for. The Respondent No. 5, Prime Minister Secretariat, has not filed any objections to the titled appeal.
6. Arguments heard; records perused.
7. A denovo inquiry was initiated against the appellant vide charge sheet dated 07-06-2021. As per the statement of allegation twelve (12) charges were framed against the appellant. These charges are identical to the charges mentioned in the earlier inquiry report dated 26-10-2018 which is attached as Annexure-VII of the main appeal. All the allegations were discussed in detail in the inquiry report dated 26-10-2018 and none of the same stood established. The Authorized Officer, Mr. Shahzad Durrani, Joint Secretary upheld the inquiry report and forwarded it to the Authority i.e., Secretary, Ministry of Climate Change through his recommendation dated 10-04-2020. There is nothing on record to establish that the Authority disagreed with the inquiry report and the recommendation of the Authorized Officer. An Authority can disagree with the Authorized officer and pass such order in relation thereto as it may deem fit in terms of sub-Rule (1) of 6-A of the Government Servants (Efficiency and Discipline) Rules, 1973 subject to sub-rule (2). As per sub-Rule
(2) no order can be passed under sub-rule (1) against the accused unless the authorized officer to be designated by the authority has informed him in writing of the grounds on which it is proposed to make the order and has been given an opportunity of showing cause against it, including an opportunity of personal hearing if requested by the accused or is otherwise necessary in the interest of justice, in particular, when the authority contemplates to pass an order adverse to the interest of the accused.[1] Following of the Rule 6-A has all to gather ignored by the Authority.
Where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law without deviating from the prescribed procedure, and where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all.[2] When the law requires a thing to be done in a particular manner then it would be a nullity in the eyes of law, if not performed in that very prescribed manner.[3] This was enunciated by Privy Council "that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden."[4]
8. Latest inquiry was conducted vide inquiry order dated 7.6.2021 which directs to conduct denovo inquiry proceeding. Neither there is any reason of disagreement with the previous inquiry report and recommendation by the Authorized officer nor any order for their cancellation. The Respondent No. 1 and 2 have referred to the judgment dated 04-04-2019 in Appeal No. 2049 RCS/2017 whereby this Tribunal set aside an order dated 02-11-2016 and directed for a denovo inquiry. In the said judgment seven allegations have been reproduced on the basis of which the order dated 02-11-2016 was passed. None of the allegation mentioned in the charge sheet and statement of allegation dated 07-06-2021 and 24-07-2018 tally with the allegations mentioned in the judgment ibid. It is evident from the judgment dated 04-04-2019 that the Tribunal directed for denovo inquiry regarding the allegations mentioned in the judgment and not all the allegations levied against the appellant against which different set of departmental proceedings were initiated. No order for denovo inquiry regarding the twelve (12) allegations, under consideration, were passed by the Tribunal in the said judgment. The authority has misconstrued the judgment in Appeal No. 2409 (R)CS/2017 and conducted a denovo inquiry upon the allegations which have already been declared "not established" by the inquiry report dated 16-10-2018 and upheld by the Authorized officer on 10-04-2020. As per the rules the authority has to disagree with the inquiry report and had to give reasons for his disagreement while ordering a denovo inquiry. No such formality has been followed while passing the denovo inquiry order dated 7.6.2021. As held by the Apex Court the super structure construed on an illegal order is not sustainable in the eye of law.
The inquiry against the twelve (12) allegations is past and closed transaction.
9. Another important issue which needs consideration is the statement by the Authorized Officer in his report dated 10.2.2020 according to which five inquiries on the same allegations had already been conducted against the appellant. From this very statement it can be easily drawn that the appellant has been victimized for his alleged litigation against the department.
10. The titled appeal has been filed along with an application for condonation of delay. We agree and appreciate the stance of the appellant that he assailed the impugned order within time in appeal No. 1400(R)CS/2021. The Tribunal during proceeding of the said appeal observed that the appellant, being in person, has assailed two orders therein; the appellant was directed by the Tribunal to assail one impugned order in one appeal. The appellant amended the said appeal by withdrawing the assailed impugned orders and filed the titled appeal. The titled appeal was filed within time after amendment in Appeal No. 1400(R)CS/2021. Also, as argued above hole of the structure of the impugned orders have been constructed on an illegal order and it would be against the principle of natural justice to keep a super structure on a wrongful base. So far as the question of limitation is concerned it was further held that it may considered sympathetically after taking into consideration the relevant facts which means that condonation may be accorded keeping in mind the relevant facts which may show some reasonable grounds.[5] For the reasons the delay in filling of the titled appeal is condoned.
11. Fore the foregoing reasons the order dated 07-06-2021 of the denovo inquire is declared illegal being passed by mis-interpreting the Tribunal's earlier judgment in Appeal No. 2409(R)CS/2019.
Also, the appellant has been declared clear of all the twelve (12) charges by the Inquiry Report dated 26-10-2018 and up-held by the Authorized Officer. The Authority while passing the order dated 07-06-2021 has, neither disagreed with the earlier inquiry report nor given any reason for denovo inquiry. The appeal stands accepted accordingly, the order of denovo inquiry and the original and appellate orders dated 15.9.2021 and 21-09-2021, respectively, are hereby set aside.
12. There is no order as to cost; parties be informed.
1. Rule 6-A of the Government Servants (Efficiency and Discipline) Rules, 1973.
2. M/s Tri-Star Industries (Pvt.) Limited vs. TRISA Burstenfabrik AG Trlengen & another (2023 SCMR 1502).
3. Muhammad Akram v. Mst. Zainab Bibi, (2007 SCMR 1086)
4. Nazir Ahmad v. King Emperor (_____).
5. Managing Director, Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas and others (PLD 2003 SC 724).