JUDGMENT TANV1R BASHIR AN5ARI, ]. The facts are that on 24.11.2000 charge-sheet was issued by the Secretary/Chairman Railways as the competent authorities to the petitioner. The said charge- sheet/statement of allegations contained numerous allegations of misconduct. The inquiry committee was constituted and the petitioner was required to submit his reply to the allegations contained in the charge- sheet.
2. The petitioner submitted an interim reply on 28.11.2000 to respondent No. 2, wherein, he made a reference to an order passed by Sindh High Court in C.P. 696/99, whereby, the Ministry of Railways was restrained from taking any adverse action till the disposal of the said C.P. He also referred to an order of injunction issued on 23.5.2000 passed in a civil suit by a learned Civil Judge at Karachi.
On merits it was contended that the allegations contained in the charge-sheet were already made the subject- matter of an earlier held inquiry in which the petitioner claimed to have been exonerated and that the second charge- sheet on the same allegations was not in accordance with law. He further requested for supply of copies of the documents on the basis of which charges have been levelled.
3. A further charge-sheet dated 30.12.2000 was issued to the petitioner. A statement of allegations contained in the said charge-sheet are enumerated as under:- "You Mr. Ghulam Muhammad Qureshi in your capacity as Divisional Engineer-I, Pakistan Railways, Karachi are charged for misconduct as under:-
(1) You failed to file a counter-affidavit in cases Nos. D. 414 to 418/1992 and 359/1992 to 362/1992 for cancellation of lease of Railway land at Gilani Railway Station to P.R.E.C.H.S., Karachi, resulting in ex parte decision against Railway by the Sindh High Court on 2.4.1994.
(2) You also failed to nominate a Railway Counsel to file an appeal in the Supreme Court of Pakistan within the limitation period nor did you make any reference to the Head-quarters seeking guidance in this regard. Although copy of the Sindh High Court decision was received at Karachi from the Ministry of Railway on 26.4.1994, and Chief Property Manager also reminded you vide his telegram dated 30.5.1994 issued by Chief Property Officer, Headquarters Office, Lahore to get certified copies of the judgment and to file the appeal by 2.6.1994. Instead, a time-barred review petition under Section 155 was filed in Sindh High Court on 23.6.1994 which was dismissed on 7.12.1995.
(3) Again the appeal against the judgment of Division Bench dismissing the review petition was filed on 26.6.1996 instead of 6.2.1996 which was dismissed by the Supreme Court on 10.3.1997 being time-barred.
(4) Your failure to attend to the important issue intentionally put the Railway administration in embarrassing situation besides financial loss."
4. The petitioner continued communication with respondent No. 2 vide letters dated 31.1.2001, 14.2.2001, 19.3.2001 but did not submit a specific reply to the charges alleged against him. In his letter dated 22.3.2001, the proceedings of the Inquiry Committee were acknowledged. The petitioner who was warned by the Inquiry Committee to submit his defence forthwith, finally submitted his reply to the allegations through his letter dated 22.3.2001.
5. The petitioner thereafter filed the present writ petition on 9.4.2001, wherein, the charge-sheets were sought to be quashed/set aside on the ground that the charge-sheets were issued without lawful authority were without jurisdiction suffered from mischief to double jeopardy as they have already been inquired into and wherein the petitioner was exonerated; that the charge-sheets were issued in a mala fide manner and that action initiated against the petitioner was discriminatory. The petitioner also challenged the proceedings of inquiry and alleged that the inquiry proceedings were being conducted against the principles of law and natural justice and also on the ground that the Inquiry Officer/Committee was inimical towards him. On 9.4.2001 upon C.M. 2118/2001 it was ordered by this Court that the respondents may continue with the inquiry proceedings and conclude the same, but that no final order may be passed.
6. In the meanwhile as per directions of this Court report and parawise comments on behalf of respondents Nos. 1 and 2 were placed on the file on 2.5.2001. It was contended therein that series allegations of misconduct were made against the petitioner and it was the legal obligation of the petitioner to have submitted his explanation thereto and also to facilitate the inquiry proceedings.
Instead of doing so the petitioner was thwarting the disciplinary procedure on untenable grounds, It was also contended that the petitioner was admittedly a Civil Servant and that no writ petition in respect of terms and conditions of Service including disciplinary matters can be agitated through the extra-ordinary Constitutional jurisdiction of this Court, It was specifically emphasised that Constitutional petition against the issuance of a charge-sheet is not competent. Reference was also made to the ouster of jurisdiction under Removal From Service (Special Powers) Ordinance, 200G as amended.
7. Mr. Abdul Ghafoor Mangi, Advocate on behalf of the petitioner and Miss Shaista Altaf, Advocate, on behalf of the respondents have been heard and record perused.
8. The learned counsel for the petitioner contended that the proceedings common being continued under Removal From Service (Special Powers) Ordinance, 2000 was in violation of Section 13 ibid. According to him the petitioner was sent on Forced Leave on 12.4.2000 which was before the commencing day of the Removal From Service (Special Powers) Ordinance, 2000 and thus would be governed Lv^ the Efficiency and Discipline Rules then in the field. His precise submission is that action of sending the petitioner on Forced Leave shall be regarded as pending proceedings even In respect to the charge-sheet issued after the promulgation of the above- mentioned Ordinance and thus were liable to continue under old law and not under Special Powers Ordinance, 2000. To support his contention the learned counsel for the petitioner has placed reliance upon Mushtaq Hussan Qazi and others v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (2001 PLC (C.S.) 223) and Mst. Karim Bibi and others v. Hussan Bakhsh (PLD 1984 SC 344).
9. He next contended that the charge-sheet issued by the Chairman is violative of Section 5( 1 )(a)
(b) as according to Section 2(a) and Section 2(a a) the competent authority shall be the Chief Executive as defined in Section 2(a). It was next contended that the petitioner was exonerated in an earlier inquiry which was conducted by a duly authorised Inquiry Officer and that the petitioner could not be subjected to the same charges once again as this would amount to double jeopardy.
The learned counsel for the petitioner also made reference to the lodging of a number of FIRs against the petitioner and his discharge from the same. It is contended that in this view of the matter, the respondents were precluded from undertaking any departmental action against the petitioner.
10. The learned counsel for the petitioner laid great emphasis upon a series of acts which are described as depictive of express mala fides of the respondents against the petitioner. Instances relating to the petitioner as well as to his brothers were sited. It was submitted that mala fide act is a fraud on the statute and has the effect of nullifying the most solemn of proceedings.
11. On the other hand, Miss Shaista Altaf, Advocate, appearing for the respondents contended that admittedly the petitioner is a Civil Servant and all matters relating to die Terms and Conditions of Service including the disciplinary matters are to be exclusively dealt with by the appropriate Service Tribunal, if any adverse order has been passed against the Civil Servant. It is submitted that in this view of the matter, the petitioner cannot invoke the extra-ordinary Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The learned counsel for the respondent laid stress upon the object and purpose of promulgation of the Removal From Service (Special Powers) Ordinance No. XVII of 2000 and urged that the said Ordinance has been promulgated in view of special circumstances, wherein it is necessary for speedy disposal of cases falling within the purview of the Ordinance. It is contended that the petitioner has abused the process of the Court as he has filed the instant writ petition at the stage of a mere issuance of a charge-sheet/statement of allegations, whereupon the final order is yet to be passed. It is submitted that even after the conclusion of the Inquiry proceedings if any adverse action is proposed against the petitioner the law ordains the issuance of a show-cause notice.
According to the learned counsel the writ petition when it was filed was patently pre-mature and did not give any cause of action to the petitioner. It was agitated that although the writ petition has not been admitted to regular hearing yet the conclusion of the disciplinary action has remained suspended in deference to the injunctive order passed by this Court. Reliance is placed upon Mst.
Bilquis Jaffar v. Zulfiqar Ahmad Ghuman, Cantonment Magistrate Office of Cantonment Board.
Lahore and another {20O2 CLC 42). In reply to the objection that the proceedings could not be continued under Ordinance XVI! Of 2000 as the petitioner was sent on Forced Leave on 12.4.2000, it was contended that the proceedings in a disciplinary matter shall commence from the issuance of the charge-sheet and not from a preceding date.
12. Regarding the objection that the petitioner was discharged in the cases lodged against him through various FIRs, it was contended that the departmental proceedings and criminal proceedings are separate and distinct and that the decision in one cannot influence the decision in the other. Reliance has been placed upon Abdul Rashid Nadir v. Government of Punjab through Chief Secretary, Government of Punjab, Civil Secretariat, Lahore and 8 others {2O0O YLR 718) and Tariq Mahmood and another v. A.D.B.P., Sindh and 5 others {2001 M.L.D. 1494). As regards, the question of double jeopardy, it is contended that the disciplinary action commenced upon the issuance of the charge-sheet under Ordinance XVII of 2000 are independent proceedings and shall be dealt with on their on .Merits as a result of the ensuing proceedings. Regarding the question of mala fides as alleged by the petitioner, it is contended that the mala fides is a question of fact which can be proved only through a detailed determination by holding an inquiry. Mere allegations of mala fide are not sufficient to defeat the disciplinary proceedings unless the same were proved.
Reliance was placed upon Munshi Faruq Akbar, Patwari, Halqa Tatar, Sub- Division Okara, District Okara v. Assistant Commissioner/Collector, Okara and others (KLR 1998 Labour fil Services Cases 68) to contend that even the question of mala fides is to be agitated before appropriate Service Tribunal, once an adverse order based on the alleged mala fides have been passed against the petitioner.
13. Arguments have been heard. Record perused.
14. The petitioner was sent on Forced Leave vide order dated 12.4.2000. However, the charge-sheet was issued on 24.11.2000 and 30.12.2000 as indicated herein before. The Disciplinary Proceedings commenced with the issuance of the charge-sheet and its communication to the accused as this is the terminus qua of the commencement of the said proceedings. It is through the communication of a charge- sheet alongwith the statement of allegations that an accused is apprised of any meaningful allegation made against him to which he is required to submit his necessary explanation. While an order of suspension or the order through which the accused Civil Servant is sent on leave is in the nature of an Administrative Action, the issuance of the charge-sheet and the statement of the allegation is the start of gas-judicial investigative process through which the allegations are brought to the notice of the accused which are then proved or otherwise through the inquiry which is conducted in accordance with law. In my view the pending proceedings contemplated in Section 12 relate to the proceedings that commenced with the issuance of the charge-sheet and not by an administrative act of sending an accused person on Forced Leave. In this view of the matter, as the charge-sheet was issued after the commencement of the Ordinance XVII of 2000 Section 13 ibid shall have no application and the proceedings commenced under the Ordinance shall continue to its culmination under that Ordinance. The case of Mushtaq Hussan Qazi and others v. Federation of Pakistan (2001 PLC (C.S.) 223) (supra) has been noticed. In the cited case the Civil Servant was under suspension under the Government Servants (Field) Rules, 197J5 when he was made Officer on Special Duty (OSD) under provisions of Section 13 of Removal From Service (Special Powers)
Ordinance, 2000. The distinguishing features of the said case are that after having been suspended, the plaintiff in that case was served with a charge-sheet under Government Servants (E&D) Rules, 1973 as a result of which he was found guilty of the charges levelled against him.
Consequently, a show cause notice was issued to the plaintiff calling him to show-cause as to why the major penalty of dismissal from service should not be imposed upon him. Reply to the show- cause notice had also been given. Penalty of withholding, three annual increments for a period of two years under E&D Rules, 1973 was imposed upon him whereupon the plaintiff has filed an appeal before the Federal Service Tribunal, it was during this period that the plaintiff was reinstated in Service but was made O.S.D..
15. The present case is quite different and distinct. Although the petitioner was sent on Forced Leave before the promulgation of Ordinance XVII of 2000, yet the charge- sheet was issued to him after the promulgation of the Ordinance and as such the petitioner is liable to be dealt with under Ordinance of 2000. The term proceedings shall mean a prescribed course of action for enforcing a legal right and in this context the proceedings in a disciplinary matter shall not commence till the issuance of a charge-sheet/statement of allegation.
16. The contention of the learned counsel for the petitioner that the charge-sheet issued by the Chairman Is violative of Section 5(1 )
17. The contention of the learned counsel that holding another inquiry shall amount to double jeopardy is also not supported by the facts on the record. The proceedings of inquiry conducted by Abdul Waheed, Chief Property Manager Pakistan Railways Lahore has been examined. The above- mentioned inquiry was a fact finding inquiry which was conducted on various counts as number of complaints had become rampant which was given were publication in the press. The said inquiry firstly was not conducted in pursuance of any specific charge-sheet or show-cause notice but was in the nature of fact finding inquiry only. Secondly the charges contained in the instant charge- sheet are different and distinct. The contention of the learned counsel for the petitioner has no substance.
18. The reference made to the FIRs registered against the petitioner which were later cancelled cannot be an impediment in the process of a departmental inquiry. Departmental proceedings and criminal proceedings are different and distinct, the two do not overlap each other in any area.
The dismissal of the criminal proceedings does not necessarily mean that departmental proceedings must also fail if the case against the accused is otherwise proved during the departmental proceedings. Reliance is placed on the rule laid down in Messrs Habib frank Ltd. v.
Shahid Masud Malik and others (2001 SGMR 2018).
19. The learned counsel for the petitioner has cited number of instances to contend that the intention of the respondents in issuing the charge-sheet was based on mala fides. In the first place the mere allegation of mala fides by itself is no proof that the act is actually based on mala fides.
Even otherwise, in case an adverse action is taken in a mala fide manner, the question of mala fide also is to be dealt with exclusively at the appropriate stage by the Service Tribunal in its exclusive jurisdiction. Reliance is placed on Zahid Akhtar v. Government of Punjab (PLD 1995 SC 530).
20. This will take us to the actual nature of the charge- sheet in the scheme of the disciplinary proceedings. A charge- sheet is merely an expression made by the department against its employees stating ' therein that the particular 'acts of misconduct are alleged against him. This is the first step to commence the disciplinary proceedings. It is neither a condemnation of the Civil Servant nor indeed a stigma or slur on his service record. Unless proved it remains in the nature, Of an allegation which may or may not be proved during the course of an inquiry. Putting an end to charge-sheet, at its very inception, unless the charge-sheet is shown to be ah initio, void, shall be tantamount to stifling of the disciplinary proceedings which shall result in thwarting and defeating the purpose and object of the disciplinary proceedings themselves. Invoking writ jurisdiction at such a stage shall not be a prudent exercise of jurisdiction.
21. In this view of the matter, there is no merit in this writ petition which is dismissed.