PLJ 2010 Tr.C. (Services) 116
[Balochistan Service Tribunal,
Present: Muhammad Hashim Khan Kakar, Chairman,
Muhammad Naeem Ghalzai
& Muhammad Anwar Khan, Members
LIAQAT ALI, EX-NAIB TEHSILDAR TAMBOO, NASIRABAD--Appellant
versus
SENIOR
MEMBER, BOARD OF REVENUE, BALOCHISTAN,
S.A. No. 60
of 2010, decided on 31.5.2010.
Balochistan Service Tribunal Act, 1974--
----S.
4--Removal from Service (Special Powers) Ordinance, 2000,
S. 5(4)--Civil servant--Major penalty of reduction to lower post for five years
was imposed--Question of--Whether any regular inquiry was conducted in matter
since a major penalty was imposed--Validity--Civil servant was directly
appointed as Naib Tehsildar
on regular basis by method of initial recruitment--Show-cause notice--Charge of
preparation of wrong mutation entry--Held: When a major penalty is to be
imposed on a civil servant a regular inquiry is to be held to determine the
factual basis of the allegations which are required to be proved in accordance
with law--It is true that authority has discretion to hold or dispense with regular
inquiry but it is also equally true that such discretion is to be exercised in
fair and judicial manner--Constituted major penalty and could not be inflicted
without holding full fledged inquiry which could not be dispensed within terms
of S. 5(4) of Removal from Service Ordinance--Although initial inquiry without
associating the civil servant was carried out in the instant case being a
summary procedure as provided under Ordinance, 2000 but dictates of justice
requires that the mode providing better opportunity of defence
to civil servant should be applied specially in cases involving factual
controversy--Further held: Order passed against the civil servant in derogation
of judicially propounded dicta justice is not only to be done but should
undoubtedly and manifestly appear to have been done--Impugned order was hereby
set aside. [Pp. 118, 119 &
120] A & D
Disciplinary
Proceedings--
----Vitiation
of--Question of reversion--Direct recruit to post cannot be reverted to a lower
post--Civil servant was directly appointed as Naib Tehsildar by method of initial recruitment--Charge of
preparation of wrong mutation entry--Major penalty of reduction to lower post
was imposed--Validity--Vitiation of entire disciplinary proceedings as well as
impugned order--Civil servant could not be reduced in rank to a post which
civil servant never held--Question of reversion can only arise when a valid and
proper promotion has been made--Direct recruit to a post cannot be reverted to
lower post, it is only a promotee who can be reverted
from promotion post to lower post from which he was promoted. [P. 119] B
Constitution
of
----Art.
4--Violation of law--When law requires an act to be done in a particular manner
that must be done in that manner and doing of it in any manner contrary to
prescribed manner would be illegal--Impuned order
passed in sheer violation of law is not sustainable. [P. 119] C
Mr. Mazhar Illyas Nagi,
Advocate for Appellant.
Mr. Naseer Bangulzai, Additional
Advocate General for Respondents.
Date of
hearing: 26.5.2010.
Judgment
Muhammad Hashim Khan, Chairman.--This appeal u/S. 4 of the Balochistan Service Tribunals Act 1974 has been preferred
by the appellant against the order dated
2. The relevant facts in small compass are that
the appellant was directly appointed as Naib Tehsildar in the year 1990 on regular basis by the method
of initial recruitment. He was served with a show cause
Notice dated
3. The appellant being aggrieved of the impugned
order made departmental representation, which remained unturned, lastly while
finding no other way out, he approached this Tribunal by filing the instant
appeal. The respondents contested the appeal on legal and factual aspect by
filing their written reply.
4. We have examined the matter anxiously in the
light of submissions made by both learned counsel, material on the file and
relevant provisions of law.
5. At the very outset we have inquired from Mr. Naseer Bangulzai learned
Additional Advocate General as to whether any regular inquiry was conducted in
the matter since a major penalty was imposed upon the appellant. The learned
A.A.G. has frankly conceded that no such inquiry has been carried out in the
appellant's case.
6. It is now settled principle of law that when
a major penalty is to be imposed on a civil servant a regular inquiry is to be
held to determine the factual basis of the allegations which are required to be
proved in accordance with law. It is true that the authority has the discretion
to hold or dispense with regular inquiry but it is also equally true that such
discretion is to be exercised in fair and judicial manner. Admittedly
"Reduction to lower post for five years" constituted major penalty
and could not be inflicted without holding full fledged inquiry which could not
be dispensed with in terms of S.5(4) of the Ordinance 2000. Although initial
inquiry without associating the appellant was carried out in the instant case
being a summary procedure as provided under the Ordinance 2000, but dictates of
justice requires that the mode providing better opportunity of defence to the civil servant should be applied specially in
cases involving factual controversy.
7. The impugned order also suffers from another
material legal infirmity going to the root of the case and resulting in
vitiation of the entire disciplinary proceedings as well as impugned order.
Admittedly the appellant was directly appointed as Naib
Tehsildar and never held any substantive post in
lower rank, therefore, appellant could not be reduced in rank to a post which
appellant never held. The question of reversion can only arise when a valid and
proper promotion has been made. Direct recruit to a
post cannot be reverted to a lower post; it is only a promotee
who can be reverted from promotion post to lower post from which he was
promoted. It is an inalienable night of every citizen under Art. 4 of the Constitution of Islamic Republic of Pakistan, 1973 to be
dealt in accordance with law. When law requires an act to be done in a
particular manner that must be done in that manner and doing of it in any
manner contrary to prescribed manner would be illegal. As such, the impugned
order being passed in sheer violation of law is not sustainable.
8. There is an other important aspect of the
case that the show cause notice as well as impugned order have been passed and
issued by the then Commissioner Naseerabad Division
who was not authorized to do so. It would be advantageous to reproduce here in
below S. 2(a) of the Ordinance, 2000, which defines "competent
authority" in the following words:
"Competent
Authority" means the [Chief Minister] and where, in relation to any person
or class of persons, the [Chief Minister] authorizes any officer or authority,
not being inferior in rank to the appointing authority prescribed for the post
held by the persons against whom action is proposed to be taken, to exercise
the powers of competent authority under this Ordinance, that officer or
authority, and, in relation to an employee of a Court or Tribunal functioning
under the Government, the appointing authority or the Chairman or Presiding
Officer of the Court or the Tribunal."
9. Admittedly the Commissioner was not
authorized either to issue the show cause or passed the impugned order because
he was not authorized to do so under the provisions of Ordinance 2000. There is
also nothing on record to show that he was authorized by the Chief Minister to
exercise the powers of competent authority. It may also be pertinent to mention
here that the Respondent No. 2 i.e. Commissioner was also asked by the Senior
Member Board of Revenue to withdraw all the proceedings against the appellant.
10. We are of considered view that the impugned
order has been passed against the appellant in derogation of Judicially
propounded dicta "Justice is
not only to be
done but should undoubtedly and manifestly appear to have been done" as
such, the impugned order is hereby setaside and the
appellant is restored to his original substantive post of Naib
Tehsildar. However, the competent authority is at
liberty to initiate departmental proceedings against appellant in accordance
with law if so desire. There shall be no order as to costs.
(R.A.) Appeal
accepted.