2025 P L C (C.S.) 523
[Balochistan High Court]
Before Muhammad Hashim Khan Kakar, CJ and Muhammad Aamir Nawaz Rana, J
MUHAMMAD ILYAS
Versus
GOVERNMENT OF BALOCHISTAN through Chief Secretary and 2 others
Constitution Petition No.1417 of 2022, decided on 22nd November, 2024.
(a) Balochistan Employees' Efficiency and Discipline Act (VI of 2011) ---
----Ss. 13(6) & 17(2)(b) ---Fundamental Rules, F.R. 54--- Constitution of Pakistan, Arts. 13,
199 & 212--- Constitutional petition ---Maintainability ---Bar contained under Art. 212 of the
Constitution ---Scope ---Reinstatement--- Back benefits including arrears, seniority and
promotion---Issuance of a directive by the Chief Secretary constituting a committee for
determination of question as to back benefits ---Misinterpretation of directive ---Initiation of
de novo inquiry on the same charges ---Double jeopardy ---Contention of the petitioner was
that where an employee is reinstated/exonerated after detailed inquiry a subsequent de novo inquiry on the same allegations was illegal, void and violative of principle of double jeopardy ---Validity ---No final order qua terms and conditions of the service of petitioner had
been passed, which could be assailed before the Service Tribunal, thus, the objection as to maintainability of the petition was without any merit ---Petitioner, after reinstatement, applied
for back benefits, arrears, seniority, and promotion--- Secretary S&GAD directed the
Balochistan Public Service Commission to proceed with the case under FR -54, subsequently,
the Chief Secretary withdrew the S&GAD's letter, forming a committee to review the petitioner's back benefit claim in light of a judgment of Supreme Court of Pakistan, however, Secretary S&GAD, misinterpreting the Chief Secretary's directive initiated a de novo inquiry with the same allegations the petitioner was already exonerated of ---High Court found this
new inquiry illegal, void, and violative the principle of double jeopardy under Art.13 of the Constitution ---Statement of allegations/de -novo inquiry under S.13(6) of the Balochistan
Employees' Efficiency and Discipline Act, 2011, was set -aside and the competent authority
was directed to conduct the inquiry only to determine entitlement of the petitioner for back benefits in accordance with law or otherwise.
Muhammad Tariq Saeed and 2 others v. Government of the Punjab through Secretary
Forest, Wildlife and Fisheries Department and 2 others 2011 PLC (C.S.) 884; Muhammad Bashir v. Government of Punjab and others 1994 SCMR 1801 and The Director -General
(Field), Agricultural Department, Lahore and another v. Haji Abdul Rehman and 1989 SCMR 1224 rel.
(b) Constitution of Pakistan ---
----Art. 13---Double jeopardy---No one can be vexed twice for the same cause.
The Director -General (Field), Agricultural Department, Lahore and another v. Haji
Abdul Rehman and 1989 SCMR 1224 rel.
Ms. Muhammad Ali Kanrani, Rasool Bakhsh Khosa and Ali Mujtaba for Petitioner.
Zahoor Ahmed Baloch, Additional Advocate General ("AAG") assisted by Awais
Ahmed, Law Officer Balochistan Public Service Commission for Respondents.
Date of hearing: 17th October, 2024.
JUDGMENT
MUHAMMAD AAMIR NAWAZ RANA, J. ---The petitioner was working as
Assistant (BPS -16) in the Balochistan Public Service Commission ("BPSC") when on
24.09.2007 he was charge -sheeted, which charge sheet contained following allegations:
1. Whereas I, consider that in the light of facts of the case and in the interest of justice, it
is necessary to hold an enquiry through an Inquiry Officer.
2. Now, therefore you Mr. Muhammad Ilyas former Senior Clerk now Assistant is
hereby charged as under: -
3. While posted as Senior Clerk in the Recruitment Branch Public Service Commission Quetta has prepared a forged list of successful candidates for Lecturers (BPS -17) in
English for Education Department and included name of Mr. Dileep Kumar who was not a successful candidate. In the forged list you signed on behalf of Mrs. Rukhsana Ashraf Controller Recruitment BPSC and Secretary BPSC.
4. You have been involved in Malpractices during the examination of post of Assistant held on 5th May 2004 with the connivance of Mr. Muhammad Zahid Mustafa Veterinary Officer, Livestock and Dairy Development Department. In this connection an inquiry was also conducted by Mr. Khalid Anwar, Secretary BPSC who concluded your involvement in malpracticing in the examination of post of Assistant by
changing the solved answer sheets.
2. The petitioner was also provided with statement of allegations and subsequently fact
finding inquiry was conducted and petitioner was dismissed from service vide order dated
06.08.2010. The petitioner assailed the said order by filing Service Appeal No.218/2010
which was also dismissed vide judgment dated 27.06.2012. The petitioner assailed the
aforementioned judgment of Services Tribunal as well as order dated 06.08.2010 passed by
the Competent Authority before the Hon'ble Supreme Court of Pakistan by filing Civil
Petition No.169 -Q/2012, which was allowed. The relevant excerpt of the same is reproduced:
"After hearing the learned counsel for the parties, we find that the petitioner is a civil servant and he has been dismissed from service without holding a regular inquiry. When confronted, the learned counsel for the respondent has not been able to satisfy us that after the fact finding inquiry, a regular inquiry as required under the law was conducted against the petitioner. In light of the above, we set aside the impugned orders and direct the department to conduct a de novo inquiry without reinstatement of petitioner and decide the same within a period of three months. Besides, the question of reinstatement of the petitioner and his entitlement to the back- benefits
shall also be decided by the competent authority. This petition is converted into an appeal and according disposed of."
3. The record transpires that thereafter in accordance with law regular inquiry was
conducted and the petitioner was exonerated from all the charges. The recommendations of the inquiry officer are reproduced as under:
"In light of the above findings, submissions, based on the available records, the undersigned is of the view that the entry of forged name of Daleep Kumar in successful list for the post of Lecturer was not inserted by Mr. Muhammad Ilyas (Ex-Assistant), and even if it is assumed that he had then it couldn't have been done by him single handedly, and the Education Department would not have been reluctant to cooperate and provide relevant documents. Apparently, and based on the non-provision of any single data/record related to the case by Education Department, it is assumed that the officials of Education Department were sure shot involved in this act of misconduct since Mr. Kumar was already serving in the Department as Acting Senior Clerk. Education Department may be held responsible as in how the official government record is not available with them and corrective measures be adopted accordingly.
The allegations on Mr. Muhammad Ilyas Ex- Assistant may be withdrawn in light of
above fact -finding inquiry and his services may be re -instated. It may also be noted
that the accused have satisfactory PERS throughout his service (from 30/5/1990 to 31/12/2007). It's important to highlight here that Mr. llyas was accused of being "Involved in malpractices during the examination for the post of Assistant held on 5th May, 2004" (Para B above). Despite this he had been awarded satisfactory PERs thereafter, up to 2007 which is contradictory to the allegation made (F/O).
4. In the light of the aforementioned recommendations the competent authority vide
notification dated 17th July, 2019 reinstated the petitioner and in pursuance of the S&GAD
Notification dated 17th July, 2019 the BPSC vide order dated 1st August, 2019 also reinstated the petitioner and further was posted as Assistant in the (Administration Branch) of BPSC. Thereafter the petitioner filed an application to the Chairman BPSC for grant of
back benefits including arrears of the pay, seniority position and promotion etc. in the light
of Fundamental Rules -54. The application of the petitioner was forwarded by the Chairman
BPSC to the Secretary, S&GAD Department Government of Balochistan, in response
whereof the Section Officer (Service- IV) S&GAD Department wrote a letter dated 3rd June,
2021 to the Secretary BPSC. The same is reproduced:
"The undersigned is directed to enclose herewith a copy of an application along with its enclosure dated 28 -02-2021 submitted by Mr. Muhammad Ilyas, Assistant
Balochistan Public Service Commission, regarding request for grant of back benefits on account of re -instatement in service vide notification dated 17 -07-2019.
2. In this regard, the competent authority has desired that the instant case may be processed under clause (a), of FR -54, section- I, Chapter -VIII (copy enclosed), that:
i. Mr. Muhammad Ilyas, Ex- Assistant of Balochistan Public Service Commission is
re-instated in service from the date of his removal from service i.e., 06- 08-2010.
ii. His absence from duty will have to be treated as on duty against any vacant post of equal grade. In case of non availability of a post vacant, a supernumerary post of equal grade is required to be created for the period in consultation with Finance Department."
5. Subsequently the Chief Secretary, Government of Balochistan vide notification dated
31st August, 2022 ("impugned notification") withdrew the order/letter of S&GAD dated 3rd
June, 2021 on the ground that the Government of Balochistan constituted a Committee vide
No. S&GAD/S -IV/1(28)/2021/804- 810 dated 16.12.2021 with the following tasks:
"The committee was assigned the task to examine the case of Mr. Muhammad Ilyas, office Assistant BPSC and furnish its recommendations whether the incumbent is entitled for grant of back benefits or otherwise. However, without any recommendation of the committee inadvertently the Order / letter No. S&GAD/S -
IV/1(28)/2021/459, dated 03- 06-2021, was issued which is contrary to the judgment
of the Hon'ble Supreme Court of Pakistan, i.e. 1994 SCMR 1801 as advised by Law and Parliamentary Affairs Department.
Keeping in view of the above, the grant of back benefits is subject to the outcome of the De Novo inquiry report and the recommendations of the ibid committee."
6. In the light of impugned notification dated 31st August, 2022, the Secretary S&GAD
without considering the context of the issue, issued statement of allegations for de -novo
inquiry under Section 13(6) of the Balochistan Employees' Efficiency and Discipline Act, 2011 (Hereinafter referred "the BEEDA, 2011"). The petitioner being aggrieved has assailed the impugned notification dated 31st August, 2022 as well as statement of allegations for denovo inquiry of even date through this Constitution petition.
7. Learned counsel mainly contended that since in the light of direction of the Hon'ble
Supreme Court of Pakistan already detailed inquiry had been conducted by the competent authority, in which the petitioner was exonerated and subsequently vide notification dated 17th July, 2019 the competent authority while reinstating the petitioner had accepted the recommendations of the inquiry officer and BPSC had also posted the petitioner as Assistant in the (Administration Branch) of BPSC, therefore the de -novo inquiry on the same charges
could not have been initiated which infact according to learned counsel is not only illegal but also unconstitutional considering Article 13 of the Constitution of Islamic Republic of Pakistan, 1973.
8. While responding to the contention so raised by the learned counsel for the petitioner,
learned AAG assisted by the representative BPSC submitted that considering the bar of Article 212 of the Constitution, the petitioner could not have invoked the jurisdiction of this court under Article 199 of the Constitution; further states that in view of Section 17(7) of the BEEDA, 2011, the Chief Secretary had the authority to order for de -novo inquiry despite the
fact that in the regular inquiry the petitioner was exonerated and recommendations were
accepted by the competent authority.
Argument heard and relevant record perused.
9. The objection taken by the learned AAG that considering the bar of Article 212 of the
Constitution of Pakistan, this constitution petition is not competent was considered but since no final order with regard to terms and condition of the service of petitioner had been passed which could have been assailed before the Service Tribunal, therefore this objection is without any merit. Reliance in this regard is being placed on the case of Muhammad Tariq Saeed and 2 others v. Government of the Punjab through Secretary Forest, Wildlife and Fisheries Department and 2 others
1, whereby it has been held as under:
13. Learned A.A.G. has also referred to Article 212(2) of the Constitution to contend that this Court cannot exercise its constitutional jurisdiction as the grievance of the petitioners relates to their terms and conditions of service in respect of which the exclusive jurisdiction lies with the Punjab Services Tribunal. According to Article 212(2) of the Constitution, the jurisdiction of the other Court including the High Court is barred only "in respect of a matter to which the jurisdiction of such administrative Court or Tribunal extends". In the present case, the order for the de novo inquiry, being not a final order, is not appealable before the Punjab Service Tribunal in view of section 4 of the Punjab Service B Tribunals Act, 1974, which limits the jurisdiction of the Punjab Service Tribunal to appeals against final orders passed by the departmental authority. In support, I may refer to case titled Sayyed Saeed Hussain Shah v. Province of Punjab (1981 PLC 297) wherein it was held that the bar of Article 212(2) of the Constitution was not applicable as the order for re -
opening of inquiry against a civil servant, exonerated of the same charge earlier, was not a final order and that such an order was void for being violative of the principles natural justice. Guidance can also be sought from Muhammad Yar Buttar v. Board of Governors, Overseas Pakistanis Foundation, Islamabad and another (1999 SCMR 819) wherein the honourable Supreme Court, while determining the scope of the Federal Service Tribunal's jurisdiction under section 4 of Federal Tribunal Act, 1974, laid down the rule that orders relating to the holding of the inquiry cannot be challenged in appeal before the Federal Service Tribunal. It is significant to note that section 4 of the Punjab Service Tribunals Act, 1974, provides for an appeal against a final order only whereas section 4 of the Federal Tribunal Act, 1974, as amended, allows an appeal even if the order is not final. This means that the jurisdiction of the
Punjab Tribunal to hear appeals is even more limited compared to that of the Federal Service Tribunal. The bar contained in Article 212(2) of the Constitution does not appear to apply as the grievance of the petitioners cannot be made the subject matter of the appeal before the Punjab Service Tribunal who has no jurisdiction to remedy the wrong in the present case. Since the order for holding the de novo inquiry against the petitioners appears to be patently unwarranted and unlawful, I am of the view that the bar of Article 212(2) of the Constitution does not come in the way of this Court to exercise its jurisdiction under Article 199 of the Constitution.
10. The admitted feature of the case is that after detail inquiry in the light of directions
issued by Hon'ble Supreme Court of Pakistan vide order dated 12th February, 2018 the petitioner was reinstated into service vide notification dated 17th July, 2019.
11. The record transpires that after reinstatement petitioner had applied for back benefits,
arrears, seniority and promotion and on the application of the petitioner the Secretary S&GAD had addressed a letter dated 3rd June, 2022 to the Secretary, BPSC and it was mentioned in the letter supra that the competent authority had desired that the case of the petitioner be proceeded under Clause (a), of FR -54, section -I
Chapter -VIII.
12. Subsequently the Chief Secretary through impugned notification dated 31st August,
2022 withdrew the letter sent by the S&GAD dated 03.06.2021 on the ground that the Government of Balochistan has constituted a committee to examine the case of petitioner and furnish its recommendations whether the petitioner is entitled for grant of back benefits or otherwise. The aforementioned notification dated 31st August, 2022 stipulated that the claim
of the petitioner for back benefits and arrears has to be examined in the light of the dictum
laid down by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Bashir v. Government of Punjab and others
2. For facility of reference the guidelines provided by the
Hon'ble Supreme Court are reproduced as under:
3. The learned counsel for the appellant has submitted that, as per Rules, a Committee has to decide the entitlement of the appellant with regard to the back benefits, therefore, the Service Tribunal should have left this matter upon the Committee for decision. He has placed reliance on F.R. 54 and section 16 of the Punjab Civil Servants Act. F.R. 54 reads as under: --
"When the suspension of a Government servant is held to have been unjustifiable or not wholly justifiable; or
When a Government servant who has been dismissed, removed or suspended is reinstated the revising or appellate authority may grant to him for the period of his absence from duty --
(a) if he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal, removal or suspension;
(b) if otherwise, such proportion of such pay and allowances as the revising or appellate authority may prescribe.
In a case falling under clause (a), the period of absence from duty will be treated as a
period spent on duty. In a case falling under clause (b) it will not be treated as a period spent on duty unless the revising or appellate authority so directs:
Provided that the amount of arrears payable to the Government servants concerned, whether he is re- instated as a result of a Court judgment or acceptance of his appeal
by the departmental authority, shall be reduced by the amount earned by way of salary or as profit on account of his having accepted some employment or been engaged in some profitable business during the period he remained dismissed, removed or suspended, and for the determination of the said amount a committee shall be constituted consisting of two officers of the Administrative Division and a representative of the Finance Division."
In the present case clause (b) would attract. The Committee shall also take into consideration whether a civil servant has earned any amount by way of salary or as profit on account of his having accepted some employment or been engaged in some profitable business during the intervening period. Similarly, according to proviso (ii) of section 16 of the Punjab Civil Servants Act, 1974, where an order of removal of a civil servant has been set aside, he shall be entitled to such arrears of pay as the authority setting aside the `order may determine. In the instant case the Tribunal has not allowed the arrears of pay without assigning any reason. The learned counsel appearing on behalf of the respondents has referred to comments of the Punjab Service Tribunal, which state as under: --
"While hearing the case the appellant Muhammad Bashir had given his comment to forego arrears in case of his re- instatement in service.
Consequently in the last para. of the judgment dated 28- 3-1992 it is observed that the
intervening period during which the appellant remained out of service shall be treated as leave without pay."
This concession of the appellant has not been incorporated in the impugned judgment of the Service Tribunal. There is also no reference that the back benefits are not allowed in view of the concession of the appellant, therefore, these comments cannot be taken into consideration.
This appeal is accepted, and the case is remanded to the official respondents for deciding the matter in accordance with law. The Committee will decide the appellant's entitlement of arrears of pay and adjustment, if any, in accordance with above Rule F.R. 54 and Civil Services Laws. There shall be no order as to costs."
13. Surprisingly the Secretary S&GAD while misinterpreting the judgment supra instead
of conducting inquiry with regard to claim of the petitioner to the extent of back benefits,
seniority and promotion etc. issued statement of allegations for de -novo inquiry, which
contains all those allegations regarding which the petitioner had already faced the inquiry and subsequently was exonerated by Inquiry Officer i.e. Tauqeer Ali Akbar, which inquiry was finally accepted by the competent authority vide notification dated 17th July, 2019 and
the petitioner was reinstated into service. Since to the extent of allegations levelled in the
impugned statement of allegations, the matter had attained finality as the recommendations
of the inquiry officer has already been accepted by the competent authority, therefore considering the settled principle of law that 'no one can be vexed twice for the same cause' the impugned statement of allegations is illegal void -ab-initio. Even otherwise it is also
against the fundamental rights as guaranteed under Article 13 of the Constitution of Islamic Republic of Pakistan, which protects the citizens from double jeopardy. Reliance in this regard is being placed on the case of the Director -General (Field), Agricultural Department,
Lahore and another v. Haji Abdul Rehman
3, whereby the Hon'ble Supreme Court of Pakistan
held as under:
"2. The services of the respondent who was working as an Assistant in the Office of
the Director, Soil Conservation, Punjab, Rawalpindi, were terminated on 11- 2-1978
on account of wilful absence from duty. On appeal by him, the Director, however, set
aside the order of termination of his services, the period of absence was treated as leave without pay and a warning was given to him. The respondent's services were again terminated on 12- 7-1982 on the same charges. He approached the High Court
but was directed to seek his remedy before the Punjab Service Tribunal. The learned
Tribunal after considering the case held that the subsequent order was unlawful and
void ab initio in that the respondent could not be vexed for the same charge twice, hence the present petition.
3. We have heard the learned counsel for the petitioners and we hardly find any merit in this petition. The same is dismissed."
14. The offshoot of the above discussion is that the impugned statement of allegations
dated 31st August, 2022 has been issued by the Secretary S&GAD without considering the actual controversy involved into the matter. The Secretary S&GAD has also misinterpreted the letter dated 31st August, 2022 of Chief Secretary Government of Balochistan in which reference had been made for inquiry to the extent of entitlement of the petitioner to get back
benefits in the light of FR -54 as well as guidelines given by the Hon'ble Supreme Court in
the case of Muhammad Bashir Supra.
For foregoing reasons the impugned statement of allegations/de -novo inquiry under
Section 13(6) of the BEEDA, 2011 dated 31st August, 2022 issued by the Secretary S&GAD is set -aside and the competent authority is also directed to conduct the inquiry whether the
petitioner is entitled for back benefits in accordance with law or otherwise.
The petition is partly allowed and disposed of in the above terms.
SA/166/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.