The Supreme Court of Pakistan has held that a regular inquiry cannot be conducted beyond the allegations mentioned in the show cause notice.
The top court's Justice Muhammad Ali Mazhar authored a seven-page written order in which the distinction between a discreet inquiry, fact-finding, and regular inquiry is discussed. The order also addresses the issue of two show cause notices on similar allegations under the Punjab Police (Efficiency and Discipline) Rules, 1975.
Justice Mazhar was part of a three-judge bench headed by Justice Amin-ud-Din Khan, which heard an appeal from a police official against the Punjab Services Tribunal judgment.
"No doubt, the employer, on any allegation of misconduct, can hold a departmental inquiry/proceedings against the delinquent and, on some concrete grounds or reasons, may dispense with the inquiry while recording reasons for doing so and communicating the reasons to the accused person," the order stated.
Justice Mazhar maintained that the foremost step triggering the inquiry is the show cause notice and statement of allegations sent to the accused person to respond to for further proceedings and consideration.
"The departmental proceedings may be initiated on the basis of the allegations contained in the show cause notice and not on allegations that were never part of the show cause notice."
"The purpose of a show cause notice is to solicit a response explaining, with reasonable cause, why a specific action on a particular act of misconduct should not be taken against the employee."
"By and large, it is a well-defined and well-structured process designed to provide the alleged defaulter with a fair chance to respond to the allegations raised against him and explain his position within a reasonable timeframe, ensuring that he is not taken by surprise upon the culmination of the proceedings or subjected to any adverse action based on allegations that were never presented to him or where he was not allowed an opportunity to respond and defend himself."
"Therefore, in all fairness, the departmental action on account of any misconduct should be confined to the allegations mentioned in the show cause notice/statement of allegations and should not travel beyond its precinct, because the accused of misconduct, who is the petitioner in this case, was only liable to answer the allegations communicated to him in the show cause and had no supernatural knowledge to respond to allegations not known to him."
If this tendency or practice is accepted and illegal departmental actions are reinforced or fortified by the courts and tribunals, then there will be a ludicrous state of affairs. In a nutshell, the whole purpose of the provisions provided for disciplinary proceedings under Civil Servants and Labour Laws will not only become redundant and superfluous, but will also be deemed a sham— a feigned and mala fide exercise of power to victimize and get rid of the employee, by hook or by crook, without the due process of law and without observing the universal norms of natural justice.
Justice Mazhar held that the benchmark of establishing innocence or guilt in departmental proceedings initiated on account of acts of misconduct under the relevant laws, meant for civil servants and workmen under Industrial Relations Laws, is not the same as required to be proved in a criminal trial.
"In departmental inquiries, the standard of proof is based on the balance of probabilities or preponderance of evidence, not strict proof beyond any reasonable doubt."
"Let us also discuss the genre of inquiries to distinguish their primary purpose."
The written order further observed that the primary objective of conducting a discreet inquiry is to gather information without alerting the alleged delinquent, allowing for an understanding of whether the allegations lodged in a complaint or report of misconduct establish a prima facie case for proceeding with disciplinary action.
"Obviously, while forming such an opinion on the basis of information and data collected during the course of the discreet inquiry, the accused does not need to be involved in his defense." "Likewise, a fact-finding inquiry is more or less the same," the top court observed, adding that its purpose is also to investigate, establish facts, and compile a report for the management so that disciplinary proceedings may be initiated if the competent authority chooses to do so in accordance with the law.
"The purpose of the fact-finding inquiry is not to declare the delinquent innocent or guilty, which is the function of the inquiry officer/inquiry committee, as the case may be."
"Whereas, a regular inquiry is triggered after issuing a show cause notice with a statement of allegations, and if the reply is not found suitable, then the inquiry officer is appointed and a regular inquiry is commenced (unless dispensed with for some reasons, in writing) in which it is obligatory for the inquiry officer to allow an evenhanded and fair opportunity to the accused to place his defense. If any witness is examined against him, then a fair opportunity should also be given to him to cross-examine the witnesses."
The top court has set aside the tribunal's judgment and remanded the matter to be decided afresh in accordance with the law.
"It is somewhat difficult to assimilate how the learned tribunal reproduced the contents of the show cause notice and noted certain allegations in the judgment which were never expressed in the show cause notice dated 27.10.2014," the top court observed.
The top court noted that this is a unique case in which the allegation of misconduct was something entirely different, but the petitioner was dismissed on some other ground.
"Neither the department considered this crucial question, nor did the learned tribunal address this lacuna or blunder."
"All the more so, the learned tribunal sustained the dismissal order and declared it valid without focusing on the actual case."
No doubt, the top court observed, the award of punishment is the domain of the competent authority and the role of the tribunal or court is secondary unless the punishment imposed upon the delinquent employee is found to be unreasonable, disproportionate, or against the law.
"In order to appreciate the line of reasoning of awarding punishment vis-à-vis the act of misconduct, the learned tribunal could consider the ground of proportionality and reasonableness of the quantum of punishment with proper application of mind."
"The acid test of judging the unreasonableness of any departmental decision or action in the Civil Servant Laws and/or the Industrial Relations Laws is that the said decision or action is so unreasonable or irrational that no reasonable person could have arrived at it, whereas the sane criteria to judge proportionality is that the punishment imposed on any delinquent is unequivocally out of proportion or illogical to the act of misconduct alleged against the employee."
The proportionality test, in some jurisdictions, is also described as the "least injurious means" or "minimal impairment" test to safeguard the fundamental rights of citizens and ensure a fair balance between individual rights and public interest, the top court noted.
"Proportionality is more concerned with the aims and intentions of the decision-maker and whether the decision-maker has achieved the correct balance or equilibrium."
"The Court, entrusted with the task of judicial review, has to examine whether the decision taken by the authority is proportionate—that is, well-balanced and harmonious," the top court concluded.