1. ' JUSTICE AMANULLAH KHAN (CHAIRMAN).---This appeal under section 4 of the Balochistan Service Tribunal Act, 1974, is directed against the order dated 20-3-2001, whereby the appellant was dismissed from service under Rules 7 sub-rule 8 read with rule 4(b) -IV of E&D Rules, 1992.
2. ' Facts of the case are that the appellant was promoted, as Executive Engineer (B-18) on regular basis in the year 1982. Thereafter, he was posted as Acting Superintending Engineer (B-19) in the year 1999. He was charge-sheeted by the Secretary C&W Department Government of Balochistan, on 28-1-2000 and Mr. Naseerulah Jaffar the then Acting Superintending Engineer, B&R Department Nasirabad Circle was appointed as Enquiry Officer, who issued charge-sheet alongwith statement of allegation against the appellant which reads as follows:- "GOVERNMENT OF BALOCHISTAN COMMUNICATION WORKS PHYSICAL PLANNING AND HOUSING DEPARTMENT.
3. ' CHARGE SHEET.
4. ' Whereas it is felt that sufficient grounds exist to proceed against you in terms of rule 5 (1). Of Civil Servants Efficiency and Discipline Rules, 1992, and if proved guilty one or more penalties in terms of ,rule 4 of the E&D Rules shall be imposed.
2. Therefore; I, Nasir Ali, Secretary C&W Department, Government of Balochistan/Authorized Officer in your case, charge you Mr. Rashid Ahmed Baloch, Acting Superintending Engineer (under suspension) as under:--
(1) That while posted as XEN Building Maintenance No,1 you carried outworks without allotments/approval and created huge amount of liabilities for the Government.
(2) That you and your dependents own the property viz one Bungalow at Satellite Town, one Bungalow at Toughi Housing Scheme, Quetta, 1/2 share in land at Sariab Road, Quetta, which is disproportionate to your known sources of income.
(3) That you have assumed a style of living beyond your ostensible means.
(4) That the above mentioned acts tantamount to misconduct in the meaning of rule 2 (1) (f) of the E&D Rules 1992.
3. Now therefore, you are hereby required to submit your written defence to the above charges within fourteen (14) days of the receipt of this charge-sheet, and statement of allegations, explaining as to why disciplinary action, as aforesaid, should not be taken against you, and stating at the same time, whether you also desire to be heard in person.
4. Please take notice that your written defence should reach Mr. Naserullah Jaffar, Acting Superintending Engineer, B&R Circle Nasirabad, appointed as Inquiry Officer, within the aforesaid period. Failing which it shall be presumed that either you have no defence to offer or you have declined to offer the same and accepted the charges and in that case action shall be taken ex parte.
5. ' STATEMENT OF ALLEGATION.
6. ' Following are the allegations against Mr. Rashid Ahmed Baloch, Acting Superintending Engineer Communication and Works Department:--
(1) That while posted as XEN Building Maintenance No,1 you carried out works without allotments/approval and created huge amount of liabilities for the Government.
(2) That you and your dependents own the property viz one Bungalow at Satellite Town, one Bungalow at Toughi Housing Scheme, Quetta, 1/2 share in land at Sariab Road, Quetta which is disproportionate to your known sources of inoome,
(3) That you have assumed a style of living beyond your ostensible means.
(4) That the above mentioned acts tantamount to misconduct in the meaning of rule 2 (1)'(f) of the E&D Rules 1992.
2. That above mentioned allegations amount to misconduct and are liable to disciplinary proceedings under rule 5 (1) of E&D Rules, as well as legal action in term of rule-4 of the E&D, 1992.
7. (NASIR ALI)
8. 'SECRETARY."
9. ' The appellant filed his reply to the said charge-sheet denying the allegations levelled against him.
10. After completion of enquiry, the Enquiry Officer submitted his report, wherein allegation No,1 mentioned in the charge-sheet was proved. However, allegations Nos.2 and 3 were not proved.
11. Thereafter, he was given a show-cause notice by the appellant; the Secretary/Authorized Officer issued the impugned notification whereby services of the appellant were terminated. The appellant filed a Review Application before the Competent Authority, but no reply was given. Thus the instant appeal was filed.
12. ' Mr. Muhammad Aslam Chishti, learned counsel appeared on behalf of the appellant, challenged the validity of proceedings on the ground that at the time when the appellant was holding the charge of Superintending Engineer (BPS-19), the Authorized Officer was the Chief Secretary and he was only competent to issue the charge-sheet. Whereas in the case in hand, the charge-sheet was issued by the Secretary C&W Department, who was not authorized under the E&D Rules to issue the C charge-sheet and the Enquiry Officer had to be an Officer senior to the accused Officer, but in the case in hand, the Enquiry Officer was Naseerullah Jaffar, who was holding the post of Acting Superintending Engineer. Learned counsel pointed out that since the enquiry has been conducted by an incompetent officer, therefore, the entire proceedings are liable to be vitiated.
13. ' Mr. Ghulam Mustafa Mengal, learned Additional. Advocate General, appearing on behalf of the official respondents vehemently opposed the appeal and contended that since the appellant was holding acting charge, therefore, the Secretary C&W Department, was competent to act as Authorized Officer.
14. ' We have heard the learned counsel for the parties at length and have perused the record with their assistance.
15. ' Mr. Muhammad Aslam Chishti, learned counsel for the appellant pointed out that before issuance of charge-sheet, the matter was referred to the Secretary, S&GAD, for opinion and the S&GA Department advised the respondents that since the appellant at that time was assigned acting charge, of a higher post. It is pertinent to mention here that under the E&D Rules, he was also entitled to the privileges attached to the post of Superintending Engineer (BPS-19), therefore, under the E&D Rules, which are strictly applicable, the charge-sheet would have been served by the Chief Secretary who was the Authorized Officer. It would be appropriate to refer the extracts of the letter dated 18th September, 1995 issued by S&GAD and operative portion of letter regarding disciplinary proceedings against the appellant issued by the Communication,and Works Department:-- "2. In cases where officers are assigned acting charge of a higher post, they are given the full authority/responsibility and are entitled to all benefits privileges attached to that post and as such, they are to be tried for their actions and deeds as applicable', to -the higher post, irrespective of the personal grade/pay scale carried by the officer concerned.
16. ' To elaborate the position, it is stated that an Executive Engineer holding charge as Superintending Engineer and committing offence under the E&D Rules in that capacity, is required to be proceeded against in the same way as any other Superintending Engineer may be tried under the rules. In that case, therefore, the authorized officer shall be Chief Secretary (as provided in the Schedule of (E&D) Rules, 1992, for B-19 Officers and not the Secretary of the Department (who is authorized officei for an Executive Engineer, '(B-18)."
17. ' As a matter of Rules failure to comply with the requirements of Balochistan Civil Servants (E&D)
18. Rules 1992 impairs and at time vitiates the entire proceedings and orders imposing penalty (ies) upon the accused are frequently set aside either by the appellate authority or the Court of Law.
19. This not only results in loss of prestige for the Government but also in the loss of unnecessary expenditure which the Government has to incur in defending the appeals of the aggrieved Government servants in the Court of Law.
20. ' It is therefore, advised to serve charge-sheet accompanied by statement of allegations upon all the accused under the signature of authorized officer (i,e, Secretary C&W Department) except M/s. Rashed Ahmed and Saadat Anwar and re-draft the charge-sheet in case of both the officer holding B-19 posts to be served by the Chief Secretary according to prescribed format".
21. ' It would be appropriate to reproduce the said rules (hereinafter referred to as the rules:-- S.No, Civil Servant. Authority Authorized Officer.
1. ...
2. Civil Servants in BPS-19 Chief Minister, Chief Secretary (Additional Secretary/Joint Secretary or equivalent).
22. 3.
23. 4.
24. 5.
25. 6.
26. ' The contention of Mr. Muhammad Aslam Chishti, learned counsel for the appellant has substance that under the E&D Rules, the Chief Secretary is Authorized Officer. The Schedule to the E&D Rules clearly states that in case of (BPS-19) the Authorized Officer is the Chief Secretary but in the case in hand, the charge-sheet was issued by the Secretary, C&W Department who was not competent to do so and besides, Mr. Naseerullah Jaffar Acting Superintending Engineer could not have acted as Enquiry Officer as he should have been rank senior to the appellant. Thus, since the proceeding held by the Department was in mischief of the (E&D) Rules and by an incompetent Officer, the entire proceedings are liable to be vitiated.
27. ' For the foregoing reasons, without going into the merits of the case it is held that the impugned order regarding dismissal of the appellant based upon the proceedings by an incompetent Officer is set aside. Consequently, the appellant is reinstated in service. However, the matter is remanded to the department for proceedings against the appellant strictly in accordance with the E&D rules, if they so desire. Parties are left to bear their own costs.