Necessity of Procedural Justice in Disciplinary Proceedings

Necessity of Procedural Justice in Disciplinary Proceedings Case Laws Civil Law Coram non judice Disciplinary Proceedings Employment & Incentives Judicial Service Tribunal Knowledge - Civil Law Lahore High Court Litigation & Arbitration Procedural Justice Solutions - Civil Law Mr. Justice Shahid Waheed in his judgment has decided the issue regarding necessity of procedural justice in disciplinary proceedings in Service Appeal No. 25 of 2011.

1. This appeal arises from the disciplinary proceedings which were initiated against the appellant under the provisions of the Punjab Civil Servants (Efficiency & Discipline) Rules ,1999. In these proceedings the appellant stood charged for misconduct. The Authority got inquired into the said charge through a regular inquiry. The Inquiry Officer, after holding a detailed inquiry, in his report dated 26.07.2010 recommended minor penalty of withholding of promotion for a period of four years. Accordingly notice in terms of Rule 7 (7) (a) of the Punjab Civil Servants (Efficiency & Discipline) Rules, 1999 was issued. This notice was replied. The Inquiry Officer, however, without passing any order forwarded the record to the Authority. The recommendations of the Inquiry Officer did not find favour with the Authority and resultantly on 30.08.2010 notice was issued to the appellant to show cause as to why one of the major penalties be not imposed upon him. The appellant accordingly submitted his reply which was not found satisfactory and, thus, vide notification No.69/RHC/AD&SJ dated 28.03.2011 a major penalty of compulsory retirement from service was imposed upon him. The appellant by filing a representation sought review of the said penalty. The said representation was not responded and, therefore, the appellant through this appeal under Section 5 of the Punjab Subordinate Judiciary Service Tribunal Act, 1991 has challenged the validity of the notification No.69/RHC/AD&SJ dated 28.03.2011.

2. The question which falls for determination in this case is whether the proceedings from the stage when the Inquiry Officer after getting reply of the show cause notice for imposition of minor penalty forwarded the record to the Authority till the imposition of major penalty of compulsory retirement were conducted in accordance with rules and, therefore, interference therewith is called for. This is a pure question of law and, therefore, appraisal of the merits of the case and charge is not required.

3. In order to find out the answer to the question, under discussion, it is essential to examine relevant rule, that is, Rule 7 (7) (a) of the Punjab Civil Servants (Efficiency & Discipline) Rules, 1999. According to said Rule the Inquiry Officer within 10 days of the conclusion of the proceedings is required to take following steps: firstly, to afford the accused an opportunity of showing cause against the action proposed to be taken against him; secondly, to pass order accordingly; thirdly, to inform the Authority of the action taken by him; and, fourthly, to send the whole record of the case to the Authority. Upon receipt of record, the Authority may agree or disagree with the quantum of punishment awarded to the accused. In case of disagreement the Authority may, within 30 days of the receipt of the case, order initiation of de novo inquiry or it may enhance the penalty after affording the accused a chance of being heard in person. If no order is passed within the said period of 30 days the minor penalty awarded by the Inquiry Officer attains finality.

4. Now, in the light of above stated requirements of rules the facts of the present case are analyzed. Perusal of the record of present case unfolds that the Inquiry Officer in his report dated 26.07.2010 had recommended imposition of minor penalty of withholding of his promotion for a period of four years upon the appellant. After making the above recommendations the Inquiry Officer issued notice under Rule 7 (7) (a) of the Punjab Civil Servants (Efficiency & Disciplined) Rules, 1999 to the appellant to show cause as to why the said penalty be not imposed upon him. This notice was contested by the appellant. The Inquiry Officer, however, without imposing minor penalty sent the whole record of the case to the Authority for further proceedings. This was a procedural injustice. Since the Inquiry Officer had not imposed any minor penalty, the question of dissatisfaction with the quantum of punishment; and, occasion for assuming jurisdiction by the Authority for enhancing the penalty could not arise. It is a fundamental requirement of law that the doctrine of natural justice and procedural justice be complied with and the same has, as a matter of fact, turned out to be integral part of administrative jurisprudence of this country. Infraction of the said requirement is a vice which vitiates the proceedings. This aspect of the matter was also not considered by the Authority while issuing notice for enhancement of penalty.

Notwithstanding the said omission, the Authority was required to pass an order for enhancement of penalty within 30 days from the receipt of record. This was a mandatory requirement of the rules. The record suggests that the Authority after the lapse of nine months passed the final order for enhancement of punishment vide impugned notification dated 28.03.2011. This was not a valid notification as after the lapse of stipulated period the Authority had ceased to have any lawful authority and jurisdiction to pass any order. The Hon’ble Supreme Court of Pakistan in the case of Mansab Ali v Amir and 3 others (PLD 1971 SC 124) has held that if a mandatory condition for the exercise of jurisdiction by a court, tribunal or authority is not fulfilled, the entire proceedings which follow become illegal and suffer from want of jurisdiction. This principle was followed by this Tribunal in the case of Abdul Haseeb Sheikh v The Registrar, Lahore High Court (2016 LHC 1208) which is available at the website of Lahore High Court (www.lhc.gov.pk). Thus, the proceedings from the stage when the Inquiry Officer transmitted the record to the Authority till the imposition of major penalty through impugned Notification are not valid for want of jurisdiction, non-compliance of the doctrine of procedural justice, non-adherence to the principle of fair trial and due process which have been guaranteed as fundamental right under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 and the principle of communi observatia non est recedendum (where a thing is provided to be done in a particular manner it has to be done in that manner and if not so done, same would not be lawful).

5. Before parting with the judgment it is germane to examine the objection raised by the respondent. Learned counsel appearing on behalf of the respondent, Mr. Zubda Tul Hussain, senior Advocate, in his usual eloquence submitted that the above noted flaw in the disciplinary proceedings was not fatal as it did not injuriously affect justiciable rights of the appellant; and, that an omission or error in procedure, unless it has occasioned a failure of justice or prejudiced a party in the presentation of his case, is not a sufficient ground for reversing the decision of the Authority. In support of his contention he placed reliance on the case of The Tariq Transport Company, Lahore v The Sargodha-Bhera Bus service, (2) Regional Transport Authority, Lahore and (3) the Provincial Transport Authority, Lahore (PLD 1958 SC 437) and Zafar-ul-Ahsan v The Republic of Pakistan, through Cabinet Secretary, Government of Pakistan (PLD 1960 SC 113). The above noted arguments appear to be convincing at first blush but on deeper analysis of the matter the same are found to be without any substance. It may be seen that the proper course of action in the instant case for the Inquiry Officer was that after he had tentatively decided upon the action he proposed to take against the appellant, he should have passed order after affording the appellant a chance of being heard. This was not done. Non-compliance of the mandatory provisions of rules seriously prejudiced the appellant. In this regard reliance may be placed on the case of Major Muhammad Nawaz v Pakistan through Secretary, Communication, Government of Pakistan, Islamabad (PLD 1970 Lahore 811) wherein it was held that the provisions of the Efficiency and Discipline Rules were mandatory, non-compliance whereof constituted denial of reasonable opportunity which per se would vitiate action taken.

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