ORDER WITH THE SIGNATURE OF THE JUDGE

For Katcha Peshi.

18.04.2012

Mr. Shah Muhammad Metlo, advocate for the petitioner

alongwith petitioner Ms. Shakila Naz.

Mr. Pervez A. Shams, advocate for respondent No. 1.

Mr. Shabbir Ahmed, advocate as Amicus Curie.

Through the instant petition, the petitioner has sought the following reliefs:-

i. To set aside the impugned orders dated 14.12.2003 and 09.2.2004 passed by the respondent No. 1 in the case of the petitioner.

ii. To direct the respondents to restore the increments awarded to the petitioner before passing of impugned orders by the respondent No. 1.

iii. To declare that the petitioner is/was innocent and the charge sheet leveled against her was uncalled for and having sanctity in the eyes of law is null and void as she was having clean hands.

It was vide order dated 04.12.2003 that the petitioner, who is presently serving as a Junior Officer with the respondent No. 1 Corporation has been reduced to ten (10) stages lower in the time scale. Such was purportedly done in pursuance of an inquiry, conducted by Deputy Manager of the respondent corporation on the charges that the petitioner through extra official means got her re-designated from Lab-Attendant PG-IV to Lab-Assistant PG-IV with effect from 30^th July 1990 and subsequently PG-VII with effect from 30^th July 1990 although she did not fulfill required criteria for appointment to the post of Lab.-Assistant as laid down in the trade/grade structure Promotion and Recruitment Rules for workers of the respondent corporation.

We have gone through the Inquiry Report and have found that nothing has come on record that the petitioner in fact used extra official means, on the contrary it has been noted that it was responsibility of the management to see/check whether or not the request/process for re-designation was as per laid down procedure. It is also noted that in response to a question put by the prosecutor, the petitioner had replied that she had applied for re-designation through proper channel and not through C.B.A. The other question put to the petitioner was that there were some hidden hands working behind her case thereby pressuring/using extra means and putting the dealing Admn. Officer under pressure to process her case according to their will and to secure undue benefits. It is noted that the reply of the defendant/petitioner was unsatisfactory and thus the conclusion drawn by the Inquiry Officer was that the petitioner is guilty of using extra official means for securing undue benefits and recommended stoppage of one annual increment.

Mr. Shabbir Ahmed, advocate, the learned Amicus Curie, in the first place, submits that the authority who was competent to appoint the petitioner was the Chairman of the respondents corporation and in terms of sections 3 and 5 of the Removal from Service (Special Power) Ordinance 2000, it is only the appointing authority who can inflict / impose any penalty on such employee and therefore the impugned order is absolutely without jurisdiction. Learned Amicus further submits that although the Inquiry Officer has recommended stoppage of one annual increment, however, contrary to the recommendation, she has been penalized with reduction of ten (10) stages lower in the time scale which again is contrary to law. Learned Amicus in support of his contention refers to the case of Khalid Mansoor v. Director FIA Rawalpindi & another; reported in 2008 SCMR 1174 where though the Inquiry Officer recommended penalty of reduction to lower stage in time scale for a period of three years, however, the competent authority imposed penalty of compulsory retirement without recording specific reasons of his disagreement with recommendations of Inquiry Officer and without any additional charges, the Hon’ble Supreme Court whilst holding that recommendations of Inquiry Officer should have been given respect, set-aside the impugned penalty and maintained the penalty recommended by the Inquiry Officer. Learned Amicus further submits that even otherwise the penalty imposed is highly dis-proportionate. There is absolutely no finding as to what nature of extra means the petitioner deploys for attaining re-designation. He refers to the report and submits that the question put to the petitioner in that regard is merely that there was some hidden hands working behind her case thereby pressuring/using extra means and putting the dealing Admn. Officer under pressure to process her case according to their will and to secure the undue benefits which suggestion was not admitted by the petitioner. Learned Amicus further submits that the question was vague and did not specify as to what means she really deployed. Learned Amicus in support of the aforesaid contention has referred to the case of Muhammad Ali Bukhari v. Federation of Pakistan reported in 2008 SCMR 214 where it has been held that the quantum of severity of penalty in service matters has to be determined in the light of the nature and gravity of the charges. Learned Amicus submits that though the petitioner was upgraded despite the fact that she did not possess the requisite experience, however, as noted above, nothing has come on record to show that the petitioner used illegal and unlawful means to acquire such upgradation. Even otherwise such upgradation does not justify the impugned penalty that has been imposed upon her. Learned Amicus further submits that on the one hand the petitioner has been reduced to ten (10) stages lower in the time scale and on the other no period has been specified for such penalty.

In view of the foregoing and keeping in view the fact that firstly; nothing has come on record to support the allegations that in fact the petitioner has used unlawful and extra official means to achieve the upgradation that has been granted to her, secondly; admittedly the appointing authority of the petitioner was/is the Chairman of the respondent Corporation and in terms of the Removal from Service (Special Power) Ordinance 2000, it was only the Chairman who could have imposed the impugned penalty, thirdly; though the Inquiry Officer has recommended the stoppage of one annual increment, however, through the impugned order the petitioner has been reduced to ten (10) stages lower in the time scale, that too without there being any suggestion for such penalty either in the show cause notice or in the Inquiry Report. There is also no reason mentioned in the impugned order for not concurring with the recommendations of the Inquiry Officer and for imposing much harsher penalty; furthermore no time period has been fixed for such penalty, whereas the Hon’ble Supreme Court in the above cited judgment has clearly stated that time has to be prescribed for imposition of the penalty. In the circumstances, we find the impugned order wholly unjustified, illegal and without authority, set-aside the same and approve the recommendation of the Inquiry Officer, which would result in stoppage of one annual increment of the petitioner for a period of one year only.

The Petitioner stands disposed off in the fore-going terms.

J U D G E

DB.Mr.Justice Maqbool Baqar & Mr.Justice M.Shafi Siddiqui/18.4.2012\zahid