Civil service

--- Inquiry --- Fact-finding inquiry and regular inquiry --- Distinction --- A fact finding inquiry is distinct from a regular inquiry as envisaged under the E&D Rules, 1973.

--- Disciplinary proceedings --- Scope --- Major penalty of dismissal from service cannot be awarded without conducting regular inquiry or providing opportunity of being heard to a civil servant, as it amounts to violation of principles of natural justice.

--- Inquiry --- Dispensation of regular inquiry --- Scope --- While imposing any major or minor penalty regular inquiry has to be conducted to establish the charges against a civil servant, unless it is dispensed with, while disclosing sufficient reason in writing in terms of Rule 5(iii) of E&D Rules, 1973 --- The law does not permit the dispensation of regular inquiry even in cases where minor penalty is imposed, unless there are sufficient reasons disclosed by the competent authority for dispensation of regular inquiry --- In order to ensure transparency and fair trial in the departmental proceedings against a civil servant, adherence to the Law, Rules and procedure prescribed therein must be made in letter and spirit --- Fair trial is sine qua non as guaranteed under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 which has to be read into every statute, including the Civil Servant Act, 1973 and cannot be ignored under any circumstances, irrespective of the fact that the penalty imposed against a civil servant pursuant to such proceedings is major or minor in nature.

--- Validity of appointment --- Scope --- Inquiry Officer virtually endorsed and justified the recruitment process of the petitioners and recommended their retention in service on so-called humanitarian grounds --- Held, such an approach is wholly alien to settled principles of service jurisprudence, wherein appointments must stand or fall on the touchstone of legality rather than sympathy.

--- Validity of appointment --- Scope --- Where appointments are made through a process initiated by the competent authority itself, pursuant to a duly published advertisement, and the appointees possess the prescribed qualifications, they ordinarily cannot be penalized for procedural lapses or administrative irregularities attributable to the competent authorities, particularly in the absence of any allegation of fraud, misrepresentation, concealment, or active connivance on their part --- Instead of removing such employees from service, action should be taken against the authority that had misused or improperly exercised its powers --- To hold otherwise would amount to shifting the burden of institutional impropriety onto individuals who had neither control over the process nor any role in the decision-making hierarchy, and who merely responded to a public advertisement in good faith.

--- Art. 18 --- Freedom of trade, business or profession --- Scope --- Article 18 encompasses the right of every citizen to compete for appointment to posts in any Federal or Provincial Government department, including attached departments, autonomous bodies, or corporations, on the basis of open competition --- Such a right, however, can only be effectively exercised when the process of appointment is conducted in a transparent, fair, and just manner, free from any bias or complaint regarding its integrity --- Any departure from these standards not only violates the constitutional mandate but also undermines public trust in the fairness of government employment, which forms the backbone of an accountable and equitable administrative system --- Consequently, failing to select the most suitable candidates also constitutes a serious breach of public trust and an affront to the public, who have the right to be served by the best.

--- Age-relaxation --- Scope --- Where a candidate has successfully competed and secured the top position in a merit list, the department cannot deny appointment on technical grounds without strictly adhering to the applicable age relaxation rules.

--- Misconduct vis-à-vis criminal offence --- Scope --- Misconduct is generally a misuse of authority, conduct prejudicial to good order, willful absence from office, any wrongful, improper or immoral conduct or abusing an official position for undue advantage --- The relevant rule provides different punishments for a misconduct, which can range from verbal and written warnings and can lead to more severe outcomes like demotion or termination, depending on the nature of the misconduct --- While the criminal act, defined in criminal laws, committed by an official in his official capacity, is called a criminal misconduct --- That can be prosecuted in criminal courts in accordance with the relevant penal laws, in addition to disciplinary proceedings --- Thus, acquittal of an accused official from a criminal charge shall not exonerate him from disciplinary proceedings on account of misconduct.

--- Disciplinary proceedings --- Scope --- The allegations against the petitioners are that they in their capacity as police officials unlawfully confined, maltreated and tortured a person which was established during the inquiry through evidence and material described in the report of the inquiry officer as well as available on the record --- By detaining the victim illegally and subjecting him to torture, the petitioners acted in violation of their duty to act in accordance with law --- The act of the petitioners amounts to misuse of authority, falling within the definition of grave misconduct --- The penalty proposed by the authorized officer was not commensurate with the gravity of the misconduct committed by the petitioners --- The RPO, being the competent authority, provided opportunity to the petitioners to defend themselves --- After adopting due process, the competent authority was justified in enhancing the penalty, from reduction in pay by one stage for a period of two years, recommended by the inquiry officer, to that of dismissal from their service --- Such departmental proceedings were necessary to uphold the rule of law and maintain public confidence in State’s institutions --- The learned counsel for the petitioners had not been able to point out any substantial question of law of public importance in the petitions, warranting interference --- Leave to appeal was dismissed.

--- Disciplinary proceedings --- Mandatory observance of prescribed procedure --- Scope --- Courts in Pakistan have consistently stressed the mandatory observance of due process before imposing any penalty on a civil servant --- This principle arises from the right to due process and fair hearing, as well as the rule of law, ensuring that penalties are based on proven fraud or misconduct through a lawful inquiry, not administrative discretion or suspicion --- No civil servant can be penalized for fraud or misconduct without following the prescribed procedure laid down in the applicable efficiency and discipline rules --- These rules prescribe a complete procedure for taking disciplinary action --- The observance of the procedure prescribed in these rules is mandatory, not directory, and any penalty imposed without strictly following the prescribed procedure is void, without lawful authority, and of no legal effect.

--- Disciplinary proceedings --- Scope --- A penalty cannot rest on suspicion, complaints, or preliminary fact-finding.

--- Disciplinary proceedings --- Determination of guilt --- Scope --- A penalty cannot be imposed solely on the basis of a fact-finding inquiry --- A fact-finding inquiry may justify initiating disciplinary proceedings under the relevant efficiency and disciplinary rules, but cannot by itself result in punishment --- In contrast, the purpose of a departmental inquiry under the efficiency and disciplinary rules is to determine guilt or innocence of a civil servant --- The procedure is formal; charge sheet and statement of allegation are required to be issued; a written reply is to be filed; evidence is to be recorded, and an opportunity is to be given to the civil servant to cross-examine the witnesses against him --- In other words, the civil servant is to be given a full right of defense --- The outcome of such an inquiry is binding and forms the basis for a penalty.

--- Disciplinary proceedings --- Reasoned order --- Scope --- After considering the inquiry report and defense, the competent authority is required to issue a reasoned order, stating what charges are proved, how they are proved, and why a particular penalty is justified --- Reasoned decisions are cornerstones of due process and facilitate judicial review.

--- Validity of appointment --- Verification and authenticity --- Role of Public Service Commission --- Personal statement --- Not a substitute for inquiry --- Scope --- The personal statement of the Chairman, Public Service Commission, valuable though it may be, cannot be treated as a substitute for a legally mandated inquiry conducted in accordance with the procedure prescribed under the relevant rules --- Only through such a process can a fair, transparent, and lawful determination be made regarding the authenticity of the candidate’s appointments.

--- Termination of appointment --- Due process --- Fair hearing --- Scope --- When an employee’s appointment is terminated on the ground that it was obtained fraudulently or that he or she was never validly recommended for appointment, the essence of the charge is misconduct—a serious allegation that impugns the employee’s integrity --- Such a charge cannot be acted upon summarily or on the basis of mere administrative suspicion; it must be established through proper proceedings in which the accused is afforded a fair opportunity to defend himself or herself --- Articles 4 and 10A of the Constitution guarantee that no person shall be deprived of his rights except in accordance with law, and that every person has the right to a fair trial and due process.