Federation of Pakistan through Secretary Establishment Division, Islamabad vs. Shafqat-ur-Rehman Ranjha and others (Supreme Court)

Federation of Pakistan through Secretary Establishment Division, Islamabad vs. Shafqat-ur-Rehman Ranjha and others (Civil Appeal No. 497 of 2020)

Citation: 2021 SCMR 153

Facts:

Shafqat-ur-Rehman Ranjha, the respondent no. 1 (“R1”), belongs to the Pakistan Administrative Service and was working as Additional Secretary in the Ministry of Industries and Production (“Ministry”). R1 was suspended on 05.08.2016, but after an inquiry, the inquiry officer recommended that R1 be exonerated. The authorized officer thereafter exonerated R1. The matter was then forwarded to the office of the Prime Minister (“PM”) which ordered a de novo inquiry (a fresh inquiry). R1 whilst initially was promoted to BPS-21, as per directions issued by the Supreme Court in Federation of Pakistan and others vs. Dr. Muhammad Arif and others (2017 SCMR 969), his promotion was reviewed and recalled. R1 challenged such action before the Islamabad High Court through writ petition.

The IHC allowed the petition to the extent that a fresh inquiry could not have been ordered by the PM as he had been exonerated from the said charges. The IHC further, however, held that for redressal of his grievance relating to his suspension, R1 ought to approach the Service Tribunal. The appellants assailed the order of the single judge through ICA which was dismissed as being time barred. Thereafter, the appellants filed leave to appeal before the Supreme Court which was granted.

Arguments:

The appellants contended that:

·??????The matter being a service matter is covered under Article 212 of the Constitution which bars the High Court from entertaining such service matters through constitutional petition.

·??????The Enquiry Officer and Authorized Officer both merely “recommended that R1 be exonerated” and therefore no final order was passed in this matter. The PM being unconvinced of the recommendations ordered a fresh inquiry as per the PM’s powers.

·??????The exoneration was withdrawn and the same was communicated to the Establishment Division after which de novo inquiry was ordered by the PM.

·??????The delay in filing the ICA ought to have been condoned as the matter relates to an exorbitant amount of money.

R1 contended that:

·??????A final order by the authorized officer had been passed for R1’s exoneration and the same could not be revised.

·??????R1’s demotion and suspension were against the law as the constitutional petition as well as the ICA were based on a question of enforcement, fundamental rights and protection against double jeopardy and therefore the same was maintainable.

Issue No. 1: Whether a de novo inquiry (fresh inquiry) could be ordered by the PM?

Held: A de novo inquiry (fresh inquiry) could have been ordered by the PM as the PM is to pass the final order in the case of officers belonging to BPS-20 and above.

Reasoning:

·??????The Government Servants (Efficiency and Discipline) Rules 1973 (“E&D Rules”) define the word “Authority” by referring to rule 6 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 (“Appointment Rules”). Under rule 6 of the Appointment Rules for all officers belonging to BPS-20 and above, the appointing authority is the PM.

·??????As per rule 5(iv) of the E&D Rules, the authorized officer upon receipt of the report of the inquiry officer is required to determine whether the charge against the accused is proved. If it is proposed that a major penalty is to be imposed, the authorized officer is required to forward the case of the accused to the Authority (which is the PM in the case of R1). The Authority (PM) shall then decide and pass the final order. Consequently, the view taken by the IHC that there was no need for the authorized officer to send a recommendation to the Authority (PM) is ex facie erroneous and ill founded.

·??????Additionally, rule 6A of the E&D Rules gives the Authority the power of revision. It provides that subject to Rule 6A(2), the “Authority may call for the record of any case pending before, or disposed of by the authorized officer and pass such order as it deems fit.” The Authority (PM) while ordering a fresh inquiry recorded valid reasons. Consequently, there was no reason to hold that the recommendations were to be treated as final.

·??????Rule 6A(2) of the E&D Rules provides that no order shall be passed against an accused unless inter alia, the accused is provided a fair opportunity to defend himself. Perusal of the charge sheet reveals that R1 was given such opportunity and the consequences of ex parte proceedings were made clear to him.

·??????The IHC has lost sight of the fact that the letter of demotion clearly states that the demotion of R1 is in line with the judgment of the Supreme Court reported as 2017 SCMR 969. Moreover, as for the claim that R1 was exonerated, such exoneration was later withdrawn and a fresh inquiry was ordered.?

·??????The IHC has held that a fresh inquiry could not have been ordered as it would amount to “Double Jeopardy” (the prosecution or punishment of a person twice for the same offence) which is prohibited under Article 13 of the Constitution. This opinion is incorrect as the action against R1 does not fall within the purview of double jeopardy given that as per rule 5(iv) of the E&D rules the final order could only have been made by the Authority which was the PM in the current case. Such final order was not yet made by the PM. Moreover, the PM has the power to agree or disagree with the recommendation of the inquiry officer, or to order a fresh inquiry. If the PM is dissatisfied with the inquiry a fresh one could have been ordered for valid reasons. Such reasons were recorded by the PM and as such the exercise of the executive power was not malicious.

Issue No. 2: Whether the Constitutional Petition and the ICA were maintainable?

Held: The constitutional petition and the ICA were not maintainable and therefore they are both set aside and this appeal is accordingly allowed.

Reasoning:

·??????Having held that no fundamental right of R1 had been violated regarding inter alia double jeopardy, the constitutional petition was not maintainable. The issues raised clearly fell within the exclusive jurisdiction of the Federal Service Tribunal as per Article 212 of the Constitution (See my case brief on the exclusive jurisdiction of the service tribunals available at: https://bit.ly/3pi7nF3).

·??????As per rule 2(a)(iii) of the Civil Servants (Appeal) Rules 1977 an order by the PM is appealable to the President. In the instant petition, however, no such appeal was filed and R1 chose to file the writ petition before the High Court. As the right of appeal available under the rules was not availed the High Court should have refrained from exercising extraordinary constitutional jurisdiction.

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