Validity of Show Cause Notice under PEEDA and Protection of Fair Trial Rights.
شوکاز نوٹس میں لگائے گئے الزامات میں تفصیل کی کمی تھی، خاص طور پر بدعنوانی کے الزام میں، جہاں یہ واضح نہیں کیا گیا کہ درخواست گزار نے کسی سے رشوت لی ہے
اس کیس میں قانونی نکات درج ذیل ہیں:
1. شو کاز نوٹس کی اہمیت:
2. الزامات کی وضاحت:
3. تحقیقات کی درستگی:
4. غیر موجود مواد پر سزا:
5. طریقہ کار کی خلاف ورزی:
6. سرکاری افسران کے فیصلے:
7. انصاف کی فراہمی:
خلاصہ:
Must read Judgement
2024 S C M R 80
[Supreme Court of Pakistan]
Present: Jamal Khan Mandokhail and Shahid Waheed, JJ
SANAULLAH SANI---Petitioner
Versus
SECRETARY EDUCATION SCHOOLS and others---Respondents
Civil Petition No. 1276 of 2020, decided on 17th August, 2023.
(Against the order dated 11.10.2019 passed by the Punjab Service Tribunal in Appeal No. 4309 of 2012)
(a) Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006)---
----Ss. 5(1) & 7(1)--- Charges of inefficiency, misconduct and corruption---Show cause notice---Purpose of a show cause notice and essential elements to which a show cause notice must conform stated.
A show cause notice is not an accusation made or information given in abstract but an accusation made against an employee in respect of an act committed or omitted, cognizable thereunder. As such, the law intends that a show cause notice must conform to at least seven essential elements, and these include:
(i) it should be in writing and should be worded appropriately;
(ii) it should clearly state the nature of the charge(s), date, and place of the commission or omission of acts, along with apportionment of responsibility;
(iii) it should clearly quote the clause of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 ('PEEDA') under which the delinquent is liable to be punished;
(iv) it should also indicate the proposed penalty in case the charge is proved;
(v) it should specify the time and date within which the employee should submit his explanation in writing. It is also preferable to add in the show cause notice that if no written explanation is received from the accused within the prescribed date, the enquiry will be conducted ex-parte;
(vi) it should be issued under the signature of the competent authority; and
(vii) it should contain the time, date and place of the inquiry and the name of the inquiry officer.
Strict compliance of the above conditions is vital so that the principle of natural justice is not violated. The charges made in the show cause notice should not be vague. All the acts of commission or omission constituting the charge, and also forming the ground for proceeding against the employee, should be clearly specified because otherwise, it will be difficult for an employee, even by projecting his imagination, to discover all the facts and circumstances that may be in the contemplation of the competent authority to be established against him, and thus, it will not only frustrate the requirement of giving him a reasonable opportunity to put up a defence but also amount to a violation of his fundamental right to a fair trial.
State of Andhra Prdesh and others v. Sree Rama Rao AIR 1963 SC 1723; Surath Chandra Chakravrty v. The State of West Bengal AIR 1971 SC 752; Sawai Singh v. State of Rajasthan (1986) 3 SCC 454 and Anil Gilurker v. Bilaspur Raipur Kshetria Gramin Bank and others (2011) 14 SCC 379 ref.
In the present case the first charge levelled against the petitioner (retired employee) was corruption, but the alleged acts of omission and commission stated in the notice/order lacked material particular to that charge. It did not mention that the petitioner had accepted a huge bribe from anyone. Therefore, the Inquiry Officer could not have read this charge in the show cause notice/order, and it appears that this is why the Inquiry Officer did not mention this charge in his report. The Inquiry Officer, in his report has not referred to any statement of witness which says the taking of bribe by the petitioner. This charge, therefore, fails on two counts: one, assuming the alleged acts of omission and commission are correct, no case of corruption is made out from there, and two, no evidence has been brought on record to prove the same. So, this charge could not have led to any punishment.
Mian Abdul Qadeer v. Government of Pakistan and others 2005 SCMR 1560 and Muhammad Alamzeb Khan v. Registrar, Peshawar High Court, Peshawar and another 2008 SCMR 1406 ref.
The petitioner was also charged with misconduct and inefficiency on the basis that he allowed three absentee teachers to join duty without checking the office records and genuineness of their appointment orders and thus, caused a heavy loss to the government exchequer. A perusal of the inquiry report indicates that the Inquiry Officer, instead of proving the charges of misconduct and inefficiency, had put in his energy to establish that the appointment orders of the teachers were not genuine. This fact alone is sufficient to conclude that when the petitioner allowed the teachers to join duty, no complaint or adverse material against them was available. In such a situation, the petitioner was not expected to have checked the genuineness of the appointment orders of the teachers while allowing them to resume duty. So, again, the charges were vague, which vitiates the inquiry proceedings and the resultant punishment.
Lal Muhammad and another v. Government of Sindh 1980 SCMR 850 ref.
The charges levelled against the petitioner were laconic, and the Inquiry Officer has taken into consideration non-existing material, and findings of all facts recorded by him cannot be sustained in the eye of law. And so, the punishment awarded also loses the backing of the law.
Allah Bakhsh, Foodgrain Supervisor (Retd.) v. Director Food, Punjab, Lahore and others 2006 SCMR 403 ref.
Petition for leave to appeal wass converted into an appeal and allowed, the judgment of the Service Tribunal was set aside, the punishment order was quashed, and the department/respondents were directed to restore the full pension of the petitioner, and refund the amount of Rs.963,467/- along with the amount so far recovered from the pension of the petitioner.
(b) Public functionaries---
----Acts performed and orders made by public authorities---Such acts and orders deserve due regard by Courts, and every possible explanation for their validity should be explored, and the whole field of powers in pursuance of which the public authorities act or perform their functions should be examined, and only then if it is found that the act done, order made or proceedings undertaken is without lawful authority should the Courts declare them to be of no legal effect.
(1) The Chairman, East Pakistan Railway Board, Chitta Gong; and (2) District Traffic Superintendent, Pakistan Eastern Railway, Pahartali, Chitta Gong v. Abdul Majid Sardar, Ticket Collector, Pakistan Eastern Railway, Laksam PLD 1966 SC 725 and Lahore Improvement Trust, Lahore through its Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others and University of the Punjab, Lahore v. Custodian, Evacuee Property, West Pakistan, Lahore and 4 others PLD 1971 SC 811 ref.
(c) Administration of justice---
----Judicial order---Proper adjudication---Judicial order must be a speaking order manifesting by itself that the Court or Tribunal has made an effort to resolve the questions involved for their proper adjudication---If the final order does not bear an imprint of such effort and, on the contrary, discloses arbitrariness of thought and action, the inescapable result would be that justice had neither been done nor seemed to have been done.
Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others PLD 1970 SC 158 ref.
Ch. Afrasiab Khan, Advocate Supreme Court and M. Mehmood Chaudhry, Advocate Supreme Court along with Petitioner (in person) for Petitioner.
Sanaullah Zahid, Additional A.G., Punjab and Muhammad Imran, Law Officer, School Education Department, Government of Punjab for Respondents