1. ' JUSTICE AMANULLAH KHAN (CHAIRMAN).---This appeal under section 4 of the Balochistan Service Tribunals Act, 1974, is directed against the order dated 17-11-2000, passed by respondent No,3, under rule 7(8) of the Efficiency and Discipline Rules, 1992, whereby appellant has been dismissed from service.
2. ' The factual background of the case is, that appellant was serving in the Communication and Works Department as Executive Engineer and was posted as XEN, Kachhi at Dhadar on 24-4-1990.
3. After bifurcation of District Kachhi into two Districts nemely District Bolan and District Jhal Magsi, appellant was transferred and posted as XEN, Jhal Magsi, with its Headquarter at Dera Murad Jamali on 21-9-1992. The office of Superintending Engineer is also situated at Dera Murad Jamali.
4. The Superintending Engineer since was transferred therefore, vide order dated 2-4-1998, appellant was directed to hold the additional charge of the post of Superintending Engineer, as the office of S.E. Was situated at Dera Murad Jamali. On 3-9-1998, an order was made by the Chief Secretary, Government of Balochistan, whereby appellant was posted as Project Director, Farms to Market Roads with office at Quetta, and the charge of the posts of XEN, Jhal Magsi as well as additional charge of the post of S.E. Were also given to appellant. On 7-9-1998, an application was submitted by the appellant wherein request was made for relieving him from the two additional charges, but the Secretary, did not accede to his such request and ordered on 16-9-1998, that appellant shall continue to hold two charges till further order. On 17-9-1998, one Qamaruddin Baloch was posted as S.E. Appellant however, relinquished the charge of the post of XEN on 9-8-1998 and only was holding the post of Project Director, Farms to Market Road. Vide Notification dated 4-11-1999, issued by the Secretary, appellant was directed to report with immediate effect and on the next day i,e, 5- 11-1999, he was placed under suspension. A charge-sheet was served through Secretary, C&W Department on 26-1-2000 requiring him to submit his reply within 14 days and Mr. Naserullah Jaffar, Acting Superintending Engineer was appointed as Enquiry Officer. On 28-1-2000, statement of allegations, was also served upon the appellant. The charge-sheet and statement of allegations, for sake of convenience is reproduced hereinbelow:- "GOVERNMENT OF BALOCHISTAN COMMUNICATION WORKS PHYSICAL PLANNING AND HOUSING DEPARTMENT.
5. ' CHARGE SHEET.
6. ' 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. Saadat Anwar, Acting Executive Engineer/Former Director Farm to Market Road Project (under suspension) as under:--
(a) That you managed to get posting as Director Farm to Market Road Project which was beyond your official position and at the same time retained the posting as Superintending Engineer B/R Circle, Nasirabad and XEN B/R Division, Jhal Magsi, without official notification.
(b) That while posted as XEN B/R Division, Jhal Magsi, you made advance payment to the contractor.
(c) That you arid your dependents own the property viz, one Bungalow at Satellite Town Quetta, and one Plot, measuring 12,500 sq. Yard at Khuzdar, which is disproportionate to you known sources of income.
(d) That you have assumed a style of living beyond your ostensible means.
(e) That you have persistent reputation of being corrupt.
(f) That the above mentioned acts tantamount to misconduct in the meaning of rule 2 (1)(e) 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. Naseerullah Jaffer, Acting Superintending Engineer B/R Circle, Nasirabad, C&W Department, 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."
7. "STATEMENT OF ALLEGATIONS ' Following are the allegations against Mr. Saadat Anwar, Acting Executive Engineer, Communication and Works Department/former Director Farms to Market Road Project:--
(1) That he managed to get posting as Director Farm to Market Road Project which was beyond your official position and at the same time retained the posting as XEN Jhal Magsi, without official notification.
(2) That while posted as XEN B&R Division Jhal Magsi, he made advance payment to the contractor.
(3) That he and his dependents own the property viz, one bungalow at Satellite Two Quetta, and one Plot, measuring 12,500 Sq. Yards at Khuzdar, which is disproportionate to his known sources of income.
(4) That he has assumed a style of living beyond his ostensible means.
(5) That he has persistent reputation of being corrupt.
(6) That the above mentioned acts tantamount to misconduct and are liable to disciplinary proceedings under Rule 5 (1) of E&D Rules, as well as legal action in terms of Rule-4 of the E&D Rules, 1992."
(7) The 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 terms of rule 4 of the E&D Rules, 1992."
8. ' Appellant submitted his reply on 6-6-2000, clarifying his position and on 19-6-2000 clarifying his position noted here that, certain objections were taken in the reply, but record reveals that such objections were not dealt with. Record further shows that, certain applications were also filed by appellant, wherein objections were raised, regarding conduct of the Enquiry Officer (E.O.) in the proceedings. However, the enquiry was completed and report was submitted to the Secretary, C&W Department. It may be pointed out that, appellant submitted applications to the Secretary, on 12-62000 and 19-6-2000, wherein request was made for change of Enquiry Officer, on the ground of impartiality, however, the said application was rejected by the Secretary on 6-7-2000. It may also be noted that during such time, Enquiry Officer also examined one witness and an application was filed by the appellant for cross-examination of the said witness, which was not acceded to, thus the appellant filed a Constitutional Petition bearing No,552 of 2000, before the learned High Court, which was ultimately dismissed on 8-9-2000, on the ground that, appellant had an alternate remedy. Thereafter a final show-cause notice was issued to appellant on 16-9-2000 by the Competent Authority i,e, the Governor, as to why major penalty may not be imposed upon him.
9. Reply was filed to the said show-cause notice and vide order dated 17-11-2000, appellant was ordered to be dismissed from service. A departmental appeal was filed, on which no action was taken, thus appellant has filed instant appeal.
10. ' Mr. Basharatullah learned counsel for appellant contended as under:-- A. The substance of allegations, must have been supplied with the statement of allegations and since it was not done, thus the conduct of enquiry proceedings, culminating into dismissal, is against the E&D Rules.
11. B. The Enquiry Officer was not competent to issue the substance of allegations under the E&D Rules and further could not add additional charge in the charge-sheet. C. Application filed for change of Enquiry Officer could not have been lawfully rejected by the Authorized Officer, without hearing the appellant. D. Enquiry was not conducted in presence of appellant. E. Right of cross-examination was not given to appellant and right to make a statement in defence was also not 'afforded. Thus the order of dismissal has been passed in violation of the principle of natural justice. F. The allegation against the appellant was that he made advance payments to the contractor whereas, in the contract agreement and under the Building Code, he was authorized to do so and besides no loss has been caused to the Government.
12. G. Even if the irregularity was committed by appellant and laws found proved, still penalty of dismissal from service, was not justified.
13. ' Mr. Ghulam Mustafa Mengal, learned Addl. A.G. However, opposed the appeal and relied on the parawise comments and written arguments. He stated that, appellant has been rightly dismissed from service.
14. ' We have heard the learned counsel for parties and also gone through the record of case.
15. ' Learned counsel for appellant, stressed with vehemence that the charge-sheet along with statement of allegations served upon the appellant, should have contained specific and unambiguous allegations. He further stated that after lapse of three months of the suspension of appellant, he was served with a charge-sheet, which is in disregard of the prescribed procedure laid down under the rules. He further pointed out that, none of the charges, contained any material/relevant documents, supporting the charges and further the statement of allegations contained no material facts and the particulars of the charges were not supplied to the appellant.
16. It may be observed here that rule 6 (7) of the Rules, contemplates communication of charges in writing to the person charged together with the statement of allegations, on which such charge is based and of any other circumstances. A perusal of the said sub rule, further reveals that it rules out action without communication or, at least disclosure of the basic material to the official charge. It may be observed here that, under the rules, E.O. Was to fix a date, on which, evidence would have been taken and allowed an opportunity of cross-examination to the' appellant, so as to dispute or admit the allegations, as required by rule-7 (1) of the rules. In the case in hand, it appears that, Enquiry Officer initially did not fix any date and he conducted the proceedings by visiting the site in the absence of appellant and even recorded the statement of witness without affording any opportunity of cross-examination to the appellant. It is an admitted fact that, only one witness was examined, that too, in absence of the appellant, despite his request that, he be allowed to cross examine witness, and his such request was not acceded to. It has also come on record that during course of inspection of the site, appellant was not associated. Thus, the Enquiry Officer had deviated from the rules.
17. ' It may be observed that, nothing has been brought on record to the plea of appellant that, enquiry was conducted in his absence. Even the record was called by the Investigating Officer and checked in his absence. Inasmuch as, appellant was never conveyed about the inspection of record or the site.
18. ' Learned Addl. A.-G. Could not explain to our satisfaction, as to why the Enquiry Officer has not issued and served the process of enquiry proceedings, directly on the appellant. Thus, in our considered opinion, there is no doubt that, ever any intimation whatsoever was given to the appellant, about the enquiry proceedings. Even the record reveals that, applications were submitted by the appellant before the Enquiry Officer but he did not pay any head to it, much less the Authorized Officer even did not consider the application of appellant, for change of E.O. Moreso the Enquiry Officer also did not call the S.D.O., Assistant Engineer and others concerned staff, who had also made suggestions for clearing the bills of the contractor.
19. ' Thus, in view of the above, it can therefore be safely concluded that, E.O. Did not hold the enquiry as required under the rules. It may be pointed out that, when an officer is asked to be prescribed by the relevant statutory provisions. A non-compliance or deviation from the same would amount to transgression of rules, under which, it was obligatory' upon the E.O. To have afforded reasonable opportunity to the appellant, against whom the action was sought to be taken. Thus, non- compliance if the statutory rules, would itself, constitute denial of reasonable opportunity, which per see would vitiate the action taken. In this regard, reliance is placed on (PLC 1982 (C.S.) 266).
20. ' Learned counsel for appellant pointed out that, under the rules, Authorized Officer is under a legal obligation to supply record to the E.O. But when the Authorized Officer communicated the charge to appellant, relevant record was not supplied, which is in violation of rule 6 (8) of the Rules, which prescribes that, after communication of the charges to the Officer charged under sub rule (7) other material, as necessary for the conduct of enquiry, should have been supplied to the E.O. Or the Committee, as the case may be. In the instant case, no such record was supplied to the E.O.
21. Respecting advance payments, and when the record was placed before the E.O., it was supplied by the Prosecutor. Here it may also be noted that one Abdullah Jan, Under Secretary, appeared as Prosecutor, whereas there is no provision under the Rules, for appointment of a Prosecutor. Rule-12 clearly contemplates that, no officer charged shall be represented by an Advocate or a pleader, during the pleadings. Thus appearance of Prosecutor, itself was against the provisions of the rules, what to say of placing record by him before the E.O, and that too. In absence of the appellant.
22. Besides, the E.O., being the Superintending Engineer, posted in the area where the appellant has served, should not have been appointed as E.O. Because he himself acted, as Judge and Prosecutor and consulted the record, behind the back of appellant, Thus, in our considered opinion, the enquiry was conducted in sheer violation of the rules, which therefore, is void, ab initio and of no legal effect.
23. ' Adverting to the contention that, enquiry was conducted in absence of appellant and the material was also collected by the E.O. Of his own, without associating the appellant, which amounts to violation of the principles of natural justice, it has come on record that, even appellant was not afforded an opportunity to cross-examining the single witness, examined during the enquiry, much less to learned evidence in defence. Even the appellant was not put to notice, in respect of the proposed action, in the light of findings of the Enquiry Officer, after he recommended the proposed action to be taken against appellant to the Authorized Officer. Thus, the enquiry, which formed the basis of impugned order, was in violation of the principle of natural justice and in sheer violation of the rules.
24. ' Coming to the last contention of learned counsel regarding merit of the case, it may be pointed out that, appellant was transferred, as Project Director, Farms to Market Roads and the allegation against him was that, he had been making advance payments to the Contractor. Before dilating upon the facts, it would be appropriate to refer to the said projects. A project known as Restoration of flood damages Jhal Magsi Kot Magsi, restoration of flood damages of Naushro (Gandawah) Jhal Magsi Road and Kot Magsi (Band) to Chanrina Road was approved in the financial year, 1995-96 at the cost of Rs,9.70 Millions. The total work was to be completed in one year and the same was to be allocated in three different categories, but the work could not be completed till the year, 1999, when appellant was appointed as Project Director. Even vide lette'r dated 15-7-1999, he was directed by the Secretary, C&W to rectify the bills of contractor, by way of re-measurment. The re- measurement as carried out in the tenth Running bill and the amount was paid out to the contractor nothing has come on record to show, as to why the work could not be completed within the specified period.
25. ' Learned counsel also pointed out that, besides appellant, there were other officers also, concerned in the said work, but none of them was associated in the enquiry proceedings nor made party and only appellant was picket out. Learned counsel stated that on completion of work, it was inspected and allegations that, advance payment was made to the contractor, even if accepted, then too, no loss whatsoever has been caused to the Government Exchequer.
26. ' Learned Addl. A.G. Could not controvert the said arguments of learned counsel for appellant.
27. ' Besides it may be pointed out that despite the lapses mentioned hereinabove, no opportunity was given by the E.O. To the appellant to explain as to why the payments were made to the contractor in advance and further on checking the work, it was found complete and satisfactory and no objection regarding the quality of work was ever raised or brought on record and further it was held that the amount paid, was for the work, had been completed satisfactorily.
28. ' Thus, in our considered opinion, the appellant could not have been penalized for the major penalty of dismissal from service by making over-payments in a case, where no loss has been occurred to the Government and only minor penalty could have been imposed for deviating from the contract agreement, regarding payment to the contractor.
29. The over-all discussion leads us to hold that impugned order of dismissal of appellant from service dated 7-11-2000, is not sustainable under the law. Consequently the same is set aside and appellant is ordered to be reinstated in service, from the date of suspension.
30. ' We have found the enquiry proceedings untenable in view of the legal defects, however, it shall be open for the Authorities to proceed afresh against the appellant in accordance with law, if they so desire.