' JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHARIMAN).-- -Through the instant appeal, the appellant has assailed the legality and validity of the original impugned order, dated 12-4-2001, dismissing him from service passed by Respondent No, 1 . Feeling dissatisfied he preferred departmental appeal to the Respondent No,1 and receiving no response, appellant filed the present appeal.
2. Facts of the case, in brief are that initially an anonymous application was moved against the appellant regarding his illegal absorption against the post of Assistant Commissioner, Mines, Labour Welfare organization aid mis-appropriation of funds by him. On the said application, the then Minister Labour called for comments. The Secretary, Labour Department, after verifying the relevant record, in his comments stated the allegations are ill-founded and based on fictitious grounds and recommended that the anonymous application may be filed, which recommendation was accepted by the Minister, Labour on 15-2-1997. Subsequent thereto, on an application of one Shabbir Memon of Karachi, the departmental proceedings against the appellant were initiated, on the allegations, firstly; that appellant unauthorizedly regularized 148 work charged/contingent paid establishment; and secondly appellant illegally utilized the funds from personal ledger account meant for welfare of workers for the purchase of office building and its furnishing. Mr. Shahabuddin, Chairman Sindh Minimum Wages Board, Karachi was appointed as Inquiry Officer. In his preliminary enquiry, the Inquiry Officer recorded the statements of appellant and two witnesses namely Messrs Yar Muhammad Khan Accounts Officer and Asif Ahmed, Secretary. In his detailed enquiry report, dated 6-10-1997, the enquiry officer found the appellant not guilty and exonerated him from the charges. On the same allegations, the matter was also referred to the Anti-Corruption Establishment, Karachi, Meanwhile, the then Chief Minister on a summery floated to him ordered that the inquiry against the appellant (Rebnawaz Hingoro) be dropped in the interest of justice and fair play on the ground that all this has happened due to opponents against the Officer (appellant). The Chief Minister further ordered that all other initiated summaries/reports by other authorities/Minister may be filed and exonerated the officer (appellant) of the charges. Although, through conditional letter, dated 7-11-1998, the Secretary (Services) S&GAD, Karachi was apprised of the position and the order of the Chief Minster, with a request that the Anti-Corruption Establishment may be moved intimating them the position of the case for taking further action accordingly, yet the Anti-Corruption Establishment conducted full fledged enquiry in the matter. Mr. Moin-ulIslam, Assistant Director, Anti-Corruption Establishment, Karachi in his detailed enquiry report containing 31 pages, recommended that no irregularity/illegality has been committed in the purchase of office building and the enquiry papers may be filed. The matter was then placed before the Anti-Corruption Committee-I in its meeting on 1-7-1999 and it was decided to close the enquiry against the appellant.
3. In spite of exoneration of the appellant, the department initiated disciplinary proceeding against the appellant on the same charges under the Sindh Civil Servants (E&D) Rules, 1973. He was served with a charge-sheet, dated 23-12-1999 issued by the Secretary, Government of Sindh, Labour Department/Authorized Officer, containing following allegations "(1) That you converted 147 Nos. Worked charged/containgent paid staff into regular establishment by preparing an entirely fabricated statement while the organization did not need their services as the Excise Duty is collected through the auction or self assessment basis from the Mines Owners.
(2) That you purchased the office accommodation at Al-Burhan Centre, Saddar, Karachi for Rs,2.00 Million which was paid from personal Ledger Account (PLA) meant for certain Labour schemes for the labourers without the concurrence of Finance Department."
' Vide order, dated 23-12-1999, an enquiry committee comprising Messrs Malik Asrar Hussain, Director Labour Sindh, Asadullah Khan, Commissioner, Sindh Employees Social Security Institution and Syed Gulzar Ali Shah, Deputy Director (Technical), Directorate of Manpower and Training Sindh Karachi was appointed to conduct enquiry against the appellant and two others namely Messrs Muhammad Khalid Mirza, Inspector of Mines-cum-Training Officer and Zahid Pervaiz Memon.
Inspector of Mines (CTC). In his detailed reply, appellant once again refuted the allegations and also challenged the legality and maintainability of the charge-sheet.
4. However, before any outcome of the above charge-sheet, the appellant was served with another show-cause notice, dated 15-3-2000, containing following mis-conducts;
(i) That during the course of identification/verification of alleged regularized work charged employees by the Additional Director, Labour Hyderabad, it was noticed that Messrs Abdul Sattar S/o Muhammad Aslam and Khalid Akram S/o Muhammad Akram who believe to be your real nephews were threatening various persons outside the office of Additional Director Labour, Hyderabad of dire consequences if they did nit give statements against Mr. Yar Muhammad Khan.
(ii) That you appointed a number of persons whose ages vary between 13 and 14 years at, the time of their appointment.
(iii) In their statement, 21 persons who appeared before the Additional Director Labour, Hyderabad reported that you have been taking duty from them in your village and paying them nominal salaries and later the services of whom were reportedly terminated.
(iv) That under the order of the then Government of Sindh, for scrutiny of ghost employees and fearing exposure, you terminated the services of about sixty eight employees thus confirming the allegations of their ghost status.
(v) That you in collaboration with Mr. Yar Muhammad Khan continued disbursement of salary to the worker during the period when the contract for collection of excise duty on specified minerals were awarded to the contractors by public auction whereas it was the obligation of the contractor(s) of pay the salaries to such staff as per agreements signed by you.
(vi) That as per statement of Dr. Anwar Ali Leghari, Medical Officer/Incharge Lakhra Coal Field Dispensary that the following staff is employed in the Dispensary at Lakhra Coal Field:-- {{TABLE}}
(a) Mr. Aman Teacher.
(b) Mr. Muhammad Hashim Teacher.
(c)Mr. Shahimann Teacher.
(d) Mr. Ghulam Akbar Naib Qasid.
(e)Mr. Abdul Rasool Naib Qasid.
(f) Mr. Muhammad Arif Teacher.
(g)Mr. Naib Bux. Designation not known. {{TABLE}} ' Out of above 7 (Seven) employees, only Messrs Shahiman and Muhammad Arif Teachers were regular, rest were absconding, non-existant and drawing their salaries regularly since long.
(vii) That you and Mr. Yar Muhammad Khan continue to disburse salaries to such staff but parted way on some financial matters and accused each other of corruption although you both were involved in the protection of alleged ghost employees.
' The appellant in his reply refuted the allegations vehemently. He was thereafter served with a final show-cause notice, dated 13-4-2000 as his reply to the show-cause notice was not found satisfactory for the following reasons;
(i) that you have failed to justify the appointment of persons whose ages vary between 13 and 14 years during 1989.
(ii) That during the course of enquiry, 21 persons who appeared before the Additional Director Labour, Hyderabad reported that you have been taking duty from them in your village and paying them nominal salaries and later their services were terminated.
(iii) You could not satisfy about terminations of services of about 68 (Sixty eight) employees, thus confirming the allegations of their ghost status.
(iv) That you failed to produce authentic documentary evidence for disbursement of salaries during the period when the contract(s) for collection of excise duty on specified minerals were awarded to the contractor(s) by public auction whereas it was the obligation of the contractor(s) to pay the salaries to such staff as per agreements signed by you.
(v) That you being Head of Office in collaboration with Yar Muhammad Khan continued to disburse salaries to such staff and hence cannot absolve yourself of the charges of misappropriation of Government funds.
' This final show-cause notice too was replied by the appellant and once again refuted the allegations. However, his reply was not found satisfactory and by an order, dated 12-4-2001, he with the approval of Authority was awarded major penalty of 'Dismissal from Service' against which, he preferred departmental appeal and on getting no response within stipulated period of 90 days, he filed the present appeal.
5. In his written statement, Respondent No,2 rebutted- the appellant's averments in the memo of appeal and 'supported the impugned order. It is further averred in the written statement that an enquiry committee was constituted and on the basis of the findings the appellant was found guilty and was penalized purely in accordance with the Sindh Civil Servant (Efficiency and Discipline)
Rules, 1973 and that no illegality was committed by the Department. It is also stated that the appellant had filed C.P. No, D-579 of 2000 before the Honourable High Court of Sindh, Karachi which was dismissed in limine vide order, dated 1-11-2000, the copy of which the appellant obtained on 9- 1-2001 and after tampering the same submitted the same to Department on 20-1-2001. On verification, the Additional Advocate General confirmed that the same was tempered with which contains forged signatures of Honourable Chief Justice and Justice Sarmad Jalal Usmani. Later on an F.I.R. At P.S. Artillery Maidan was lodged under the directives of the Registrar, High Court of Sindh, the appellant was arrested and later-on was released on bail and he is still facing trail in the Court of the learned Special Judge, Anti-Corruption (Provincial), Karachi.
6. In support of the appeal, learned counsel for the appellant vehemently contended that:-
(1) No regular enquiry with regard to the allegations contained in show-cause notice, dated 15-3- 2000 was conducted, thus the principles of natural justice were violated and the enquiry so conducted was a preliminary fact finding enquiry which has no legal value and even the copy of the said enquiry report was not supplied to the appellant. He relied upon 1982 PLC (C.S.) (sic) to and 1984 SCMR 451.
(2) Number of enquiries were conducted against the appellant by the department as well as by the Anti-Corruption authorities on the similar allegations but in none of them the appellant was found guilty and he was exonerated, therefore, initiation of fresh proceedings on the same set of allegations is against the law, fair play and justice and amounts of double jeopardy. He relied upon i), PLD 1969 SC 407, ii), 1997 SCMR 15, iii), 1983 PLD (CS) 408, iv), 1999 PCr.LJ 181 and v). PLD 1973 Lah.
188.
(3) Appellant remained under suspension for indefinite period without obtaining approval for extension of suspension period from the competent authority. He relied upon 1988-PLC (CS) 294.
7. On the other hand, learned Asstt. A.G. Argued that all the requisite formalities required by the Sindh Civil Servants (E&D) Rules,1973 were fully complied with and no illegality or irregularity was conimitted by the department in imposing the penalty upon the appellant. He submitted that appellant was involved in a series of mis-conducts, embezzlement of Government funds, misappropriated salaries of number of employees of which there was ample documentary evidence, therefore, the department rightly dispensed with regular enquiry. It is next contended that allegations in the earlier shim-cause notice and that contained in the last show-cause notice are altogether different therefore, there was no question of double jeopardy. He fully supported the impugned order and stated that appellant in view of the nature of allegations deserved no leniency.
8. We have considered the above submissions, perused the material made available before us and have gone through the case law referred to by the learned counsel for the appellant.
9. Precisely the allegations against the appellant which led to the passing of impugned dismissal order are that he appointed many employees who were teenager, appointed number of Ghost employees and usurped their salaries, many of employees complained that they were working at the village of appellant, etc., all these allegations were undoubtedly serious in nature and vehemently denied by the appellant but instead .Of conducting full fledged regular enquiry a short cut summary procedure was adopted. Learned Asstt; A.G. Contended that the Authorized Officer being competent to dispense with regular enquiry has rightly dispensed with the same. Perusal of the show-cause notice, however, reveals that the Authorized Officer had neither dispensed with the regular enquiry as per Rule 5(2) nor ordered for conducting regular enquiry as required by Rule 5(3) of the Sindh Civil Servants (E&D) Rules, 1973, thus the very show-cause notice issued to the appellant was illegal and sketchy. It is by now a well established principle of law that in cases involving factual controversy, holding of regular enquiry is a requirement of law. Reference may be invited to the following cases:
(i) Deputy Inspector General of Police, Lahore and others v. Anisur-Rehman Khan, PLD 1985 SC 134.
(ii) Alamgir v. Divisional Forest Officer, Multan and others, 1993 SCMR 603.
(iii) Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi and another 1993' SCMR 1440.
(iv) Nawab Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others, PLD 1994 SC 222.
(v) Ghulam Muhammad Khan v. Prime Minister of Pakistan and others, 1996 PLC (C.S.) 869.
(vi) Besharat Ali v. Director, Excise and Taxation, Lahore and others, 1997 SCMR 1543..
(vii) The Secretary, Government of Punjab through Secretary, Health Department, Lahore and others v. Raiz-ul-Haque, 1997 SCMR 1552, and (viii)Muhammad Nawaz Khan v. Multan Development Authority, Multan through Director and two others, 2001 PLC (C.S.) 296.
' In all the above celebrated judgments, it has been held that if an accused Civil Servant/employee is charged with misconduct which cannot be proved without holding regular enquiry, the removal or dismissal from, service of a civil servant on the basis of a summary enquiry is not sustainable at law.
10. In case at Sr. No, (iv) supra, the Honourable Supreme Court of Pakistan after referring of plethora of cases has observed that:-- "The ratio of the above cases seems to be that under Rule 5( I)(iii) of the Rules, an authorized officer has discretion to decide, whether in a disciplinary proceedings against a civil servant in response to his reply to the charge-sheet, a regular enquiry should be' held or not. The above discretion is not controlled by any precondition or guideline but nevertheless this discretion like other discretions is to be exercised fairly and reasonably and not arbitrarily or capriciously with the object to deny the civil servant the right of fair defence. So if, the charge is founded on admitted documents/facts, no full fledge enquiry is required but if the charge is based be denied a regular enquiry, as the same cannot be resolved without recording evidence and providing opportunity to the parties to cross-examine the witness. In such a matter, if findings of facts are recorded without recording any evidence, the same will be based on surmises and conjectures, which will have no evidentiary value as to warrant imposition of any punishment on 'the civil servant concerned."
' In another case at Sr. No, (vi), it was observed that:-- "That question, as to whether a regular enquiry is to be held in a case of misconduct against an accused civil servant/employee or not, will depend on the facts of each case. While considering the above question Court should keep in mind the fact that the concept that no person should be condemned unheard (i,e, audi alteram partem) has acquired new dimensions with the passage of time. Nowadays, the Courts apply the above cardinal principle of jurisprudence more liberally even to the cases in which there is no statutory requirement of personal hearing. Furthermore, the right of personal hearing does not mean simplicitor hearing, but if it should be fair. What is fair hearing, it will depend on the facts of each case. There cannot be any general criterion of universal application."
' It was further observed; "If the allegations against the accused civil servant/employee are of serious nature and if he denies the same, a regular enquiry cannot be dispensed with. In such a case, the initial burden is on the department to prove the charge, which cannot be done without producing evidence."
11. Although in the show-cause notice as well as in the Final show-cause notice it is no where mentioned about any enquiry conducted by any person or committee, yet in the written statement in paras. 13 and 16 it is specifically stated that an enquiry committee was constituted and the said committee considered all the record as is evident from the enquiry report and that the Respondent has acted in accordance with the enquiry report and on the basis of appellant's unsatisfactory replies. Be that as it may, the same at the most can be termed/treated as fact finding enquiry/preliminary enquiry which has no legal value and under the law cannot be made the basis for awarding major penalty. If any case law is needed, reference can be invited to the case of Khalid Naveed v. The Member, administration and Chairman, P.A.E.C. Islamabad 2000 PLC (C.S.)
857. There is also nothing on the record to indicate if at any stage the appellant was called to participate in the said preliminary enquiry. It is worthwhile to mention here that the copy of the said enquiry report was also not supplied to the appellant. It is settled law that order imposing major penalty in the absence of supply of enquiry officer's/committee's report to the appellant amounted to the contravention of rules. Reference in this behalf is invited to the case of Ghulam Rasool v.
Governor of Sindh and 3 others, 1982 PLC (C.S.) 76 and the case of Qazi Faizul Haq v. N.W.F.P.
Through the Chief Secretary, 1984 SCMR 451.
12. Contention that appellant had already faced the disciplinary proceedings on the similar charges so also the matter was enquired by the Anti-Corruption Establishment, Karachi but the appellant was found not guilty and was exonerated and the proceedings were thus dropped, therefore, fresh proceedings initiated against the appellant tantamount to double jeopardy not permissible by law. There is no cavil that it is a fundamental rule of law that none shall be vexed twice for one and same cause. However, the instant case is not covered by the said rule of law. In the earlier departmental proceedings the allegations levelled against the appellant were altogether different. None of the allegation which form part of the instant proceedings were the subject-matter of 'the earlier proceedings. There is thus no substance to the contention that appellant has been vexed twice.
13. Contention of learned counsel for the appellant that appellant remained under suspension for indefinite period and no approval from the competent authority was obtained for extension of suspension after every three months though has some substance as according to sub-Rule (1) of Rule 5 of the Sindh Civil Servants (E&D) Rules, 1973 continuation of the law cannot be sustained. On the same set of allegations, the appellant was booked in Crime No, 7 of 2001 registered at P.S. Malki and challaned in the Court of law to face trial. Learned IInd Additional Sessions Judge Special Judge, Control of Narcotics Substance, Thatta after full fledged trial of the case found the appellant and three others not guilty while remaining three accused were found guilty. Therefore, the learned Judge vide judgment, dated 13-8-2002 acquitted the appellant and three others; remaining accused were convicted. Therefore, the very basis on which the appellant was awarded major penalty stands disappeared. Reference is invited to the case reported as 2002 SCMR .57. So far reversion order, dated 3-3-2001 is concerned, there is nothing on the record to indicate if the same was challenged by appellant before the departmental Appellate Authority prior to approaching this Tribunal. In the absence of departmental appeal the present appeal against the order, dated 3-3-2001 reverting appellant to his substantive post of ASIP, is not maintainable. Besides, two orders of distinct nature cannot be challenged in one appeal. The case of P.C. Allah Buz v. Inspector General of Police and others decided by this Tribunal referred to by appellant has no application as in the said case appellant before approaching this Tribunal had exhausted the departmental remedy.
' For the aforesaid reasons, the original impugned order, dated 26-4-2001 and appellate order, dated 10-1-2002 are set aside and the appeal is allowed to that extent. The appellant is directed to be re-instated in service to the post of A.S.-I. P. From where he was dismissed. As regards intervening period, the same shall be treated as 'Leave of kind due'. There will be no order as to (Above are the reasons of our short order, dated 27-5-2003). accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.