' YOSUF ALI MIRZA (MEMBER-I).---The facts necessary for the purpose of disposal of the present appeal are that at the first instance appellant Nasrullah Sahito, Assistant Food Controller, Hyderabad was served with a show-cause notice dated 14-5-1997 issued by the Assistant Director Food, Hyderabad Region/Authorized Officer, alleging therein: "That while his working/posting at Ilyd. Govt. Food Grains Godowns, Government wheat worth Rs, 79,72,736 and Bardana valuing Rs,7,96,000 have so far been mis-appropriated as per first report of Rationing Controller, Hyderabad, Apart from it a further shortage of 184, 795 M.T. Of wheat and 51.324 M.T. Of wheat has also been reported by the Rationing Controller, Hyderabad vide his letter No,517 dated 17-3-1997 and No,1088 dated 3-5-1997, respectively."
' In this reply, appellant denied the allegation, which was not found satisfactory. He was served with final show-cause notice dated 11-3-1991 issued by the Deputy Director Food, Hyderabad Region, which too the appellant replied and denied the allegation. Vide order dated 9-4-1991 appellant was awarded major penalty of dismissal from service by the same Deputy Director in the capacity of 'Competent Authority'. He preferred departmental appeal which by order dated 16-12-1991 was allowed, the order of dismissal from service was set-aside on the ground that appellant was involved in this case alongwith other officers/officials including an officer in BPS-16, under sub-rule
(6) of rule 5 of the Sindh Civil Servants (E&D) Rules, 1973, the Director Food should have been Authorized Officer with regard to all officers/officials involved in the case. Consequently, the appellant, was ordered to he reinstated in service against his original post of Assistant Food Controller.
2. Although no orders for initiating fresh disciplinary proceedings against the appellant was made, yet he was proceeded with afresh. This time he was served with a show-cause notice dated 5-6- 1997 containing same allegation by the Director Food Sindh, Karachi/Authorized Officer followed by a final show-cause notice dated 21-11-1997, which the appellant replied and reiterated his earlier stand, which as usual were not found satisfactory. Ultimiately, by an order dated 22-6-1998 he was again awarded major penalty of "Dismissal from Service" by the Director Food, Sindh/Authorized Officer, He preferred departmental appeal to the Secretary, Govt, of Sindh, Food Department, Karachi, which remained un-responded. Hence, this appeal.
3. In support of appeal, learned counsel for the appellant argued that once the appellant's major penalty was set aside by the Appellate Authority and he was reinstated in service, the fresh proceedings on the same set of allegations were illegal, null and void and any penalty on the basis of illegal proceedings being without lawful autority and of no legal effect, liable to be set aside. He placed reliance on the Supreme Court case of Amjad Gulzar v. Divisional Forest Officer, Layyah, 2001 C.L.R.
1537. Next, he contended that on the similar allegation the appellant was sent up to face trial before the Court of learned Special Judge, Anti-Corruption (Provincial), Hyderabad and was acquitted vide order dated 18-12-1996. Therefore, there was nothing left against the appellant and he was illegally proceeded with departmentally. Further, he submitted that allegations were serious which the appellant denied vehemently, yet no regular enquiry was ordered/conducted which was very much imperative in the circumstances of the case and the penalty in the absence of regular enquiry under the law is not sustainable. Lastly, he stated that Director Food, Sindh, had acted in dual capacity by assuming the role of the Authorized Officer' and that of ' Authority', therefore, by no stretch of imagination, the impugned order can be maintained/sustained.
4. In rebuttal, learned Asstt. A.G. Contended that earlier order of penalty was set aside by the Appellate Authority on technical legal ground, as such initiation of fresh proceedings were within the competence of the authorities concerned. Next, she submitted that under the law criminal proceedings and the departmental proceedings can proceed side by side and mere acquittal of appellant from the criminal proceedings did not debar the department from initiating departmental proceedings. In the end, she stated that appellant had misappropriated a huge Government money, therefore, was rightly awarded major penalty, which being just and proper may be maintained.
5. We have considered the above submissions and perused the material placed on the record.
There is no denial of the fact that appellant was earlier dismissed from service vide order dated 9- 4-1991, which was set aside by Appellate Authority vide order dated 16-12-1991 and appellant was ordered to be reinstated in service against his original post of Assistant Food Controller. However, once again the disciplinary proceedings were initiated against the appellant on the same set of allegations, which absolutely without lawful authority and of no legal effect. Besides, appellant was found guilty on the basis of fact finding enquiry to which appellant was not joined the same, therefore, cannot be used against the appellant. The nature of allegations certainly required a thorough probe, but instead a short cut procedure of issuance of show-cause notice followed by final show-cause notice was adopted. Such-like procedure has been discarded by our superior Courts. Reference in this connection is invited to the cases reported as 1990 SCM R 1358 and PLD 1999 SC-335. It was also observed in 1993 SCM R 603, that for resolving controversial questions of facts where evidence has to be recorded and opportunity of cross-examination is to be given, proper course would be to hold a full-fledged enquiry, otherwise findings recorded would be presumed to be based more on conjectures than on evidence/material available on record properly produced and accepted. No doubt the acquittal of appellant under section 249-A,. Cr.P.C.
In criminal charge has no bearing of the departmental proceedings, but in such circumstances, the full-fledged enquiry was necessary but no such exercise was undertaken. Above all, in the present case Respondent No,2 had acted indual capacity and he simultaneously assumed the role of Authorized Officer' and that of 'Authority'. The first and final show-cause notices were admittedly issued by him in the capacity of Authorized Officer' and under rule 5(4)(a) of the Sindh Civil Servants (E&D) Rules, 1975, he was competent to impose minor penalty as mentioned in rule 4(a) of the said Rules. However, for imposing major penalty, under rule 5(4)(b) of the said Rules, it was obligatory upon him to forward the case papers to the 'Competent Authority' i,e, the Secretary to Government of Sindh, Food Department, Karachi, alongwith the copies of the show-cause notices, relies/explanation of the appellant, and his own recommendations regarding the penalty to be imposed and it was for the 'Authority' to pass such orders as it may deem fit and proper. It is thus, clear that impugned order passed by Respondent No,2 is nullity in the eye of law, coram non judice and in excess of the powers conferred upon him, is neither maintainable nor sustainable.
6. For the aforesaid reasons, the impugned order dated 22-6-1998 being illegal and without lawful authority is hereby set aside and the appeal is allowed. So far re-instatement and intervening period is concerned, the appellant has already attained the age of superannuation on 10-4-1999 as per his date of birth mentioned in the impugned orders. Accordingly, we direct that intervening period from the date of passing of dismissal order till the date appellant attained the age of superannuation be treated as leave of the kind due as he did not perform any duty and the department may issue necessary -notification of appellant's retirement from the date he reaches the age of superannuation. There shall be no order as to costs.
7. Announced in open Court.