' JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN).--The facts necessary for the purpose of disposal of the present appeal are that the appellant working as Director, Sindh Arid Zone Development Authority, Government of Sindh, Hyderabad, on account of certain allegations of 'misconduct' was served with a show-cause notice dated 9-1-2002 issued by the Director-General, SAZDA, Hyderabad. The details of allegations as per show-cause notice are as under:-
1. You in connivance with Director Engineering and Regional Director Thar awarded contract of a road from Umerkot to Chachro via Ratnur (100 KMs) costing Rs.246.0 million clandestinely without floating tenders in the leading newspapers nor pre-qualification of a contractor was made for this road.
2. You are responsible for making irregular payments for earth work more than 12 kilometers having no provisions in the PC-1/BOQ on Mithi-Islamkot Road Project.
3. You are responsible for making irregular payments and returned 50% security in violation of agreement on the road from Indus Highway (Sann) to Marikot.
4. You are responsible for recommending irregular payments to the contractor of Mithi-Chelhar Road and returned. 50% security in violation of agreement, hence given SAZDA a heavy financial loss.
5. You are responsible for making irregular payments to the contractor of Mithi-Chelhar Road, 2nd time by revising rates for the work already completed 4 years ago and the bills were cleared accordingly.
6. You are responsible during your posting as Regional Director, Kohistan Region for unauthorizedly purchasing three tractors/trolleys (which were of no use to SAZDA), and used them at the land of your own and they were seen working there. The condition of the tractors are itself the witness at Base Station Johi.
7. During your posting as Regional Director Kohistan, you embezzled Rs.1.9 million which were allotted for repair and maintenance of tubewells of Kohistan Region but spent that amount by showing purchase (fake) of submersibles pump and other materials on tubewells which are stuck up since 8-10 years, even which were not touched (The condition of tubewells at village Hathal Booth, Khamisani, Bhall is itself witness). No proper records were maintained proforma and or Stock Register or any other official documents were maintained."
' In his detailed reply, the appellant denied the allegations vehemently which was not found satisfactory. Ultimately, by an office order dated 30-1-2002, appellant was awarded major penalty of Removal from Service. Feeling aggrieved, he preferred departmental appeal/review addressed jointly to the Chief Secretary/Appellate Authority, Additional Chief Secretary, Planning and Development Department/Authority and the Director-General/Authorized Officer, SAZDA: By an order dated 22-6-2002 appellant's petition was rejected by the Director-General, SAZDA, Hyderabad. Hence, this appeal.
2. In support of appeal, learned counsel for the appellant at the very outset contended that appellant was a Federal Governemtn employee and was on deputation with SAZDA, therefore, SAZDA was under the law not competent to initiate any disciplinary proceedings and punish him.
Further inter alia contended that the allegations levelled against the appellant in the show-cause notice were made by one Shafi Muhammad Kandro in his application addressed to the then Chairman, Chief Minister's Inspection and Enquiry' Team, Karachi in the year, 1999 which was sent to the then Director-General, SAZDA for conducting enquiry and report. Mr. Nisar Ahmed Siddiqui, the then Commissioner Sukkur Division was nominated to conduct enquiry, who in his report expressed nothing against the appellant. The copy of the enquiry report along with comments was then furnished to the Chairman, Chief Minister's Inspection Team, Karachi. In July, 2001, once again the enquiry was entrusted to an enquiry committee headed by Mr. Aijaz Hussain Mughal, Director- General Design)/Additional Secretary (Technical) Communication and Works Department Government of Sindh, Karachi, which, too, in its enquiry report said nothing against the appellant meaning thereby that he was exonerated from the charge, but all of sudden the appellant was served with a show-cause notice referred to above. Further, learned counsel submitted that the disciplinary proceedings initiated against the appellant were in utter disregard and violation of the mandatory provisions of the SAZDA (E&D) Rules, 1990, inasmuch as the Director-General SAZDA namely Mr. Muhammad Tariq Ayub had acted as the Complainant, the prosecutor and the Judge, as firstly by assuming the role of Authorized Officer he had issued show-cause notice to the appellant, secondly by assuming the role of Authority he awarded impugned major penalty of Removal from Service to the appellant and finally by acting as an Appellate Authority he had rejected the appellant's petition by order dated 22-6-2002, thus on this ground alone the impugned orders being illegal, ab initio null and void, without jurisdiction and coram non judice are liable to be set aside. Next, it is contended that admittedly the allegations levelled against the appellant were of serious nature which he denied vehemently yet no regular enquiry was ordered and conducted against the appellant., and that the enquiries so referred in the original impugned order were fact-finding enquires wherein at no stage the appellant was associated which under the law cannot be made the basis for awarding major penalty to the appellant. Besides, neither the copies of said enquiry reports were supplied to the appellant nor any final show-cause notice was issued/given to the appellant, which vitiates the whole departmental proceedings. In support of above contentions he relied upon, i) PLD 1964 SC 64, ii) 1999 SCMR 1311 and iii) 2002 PLC (C.S.) 1349.
3. Conversely, learned Asstt. A.G. Contended that appellant as a matter of fact was permanently absorbed in the year, 1994 in SAZDA., therefore, he being an employee of SAZDA was rightly proceeded with departmentally and that he had committed a series of misconducts by making illegal and irregular payments to the Contractors, awarded contracts of roads Without inviting tenders, embezzled huge money and thus caused heavy monetary loss to the Government, and that such allegations during preliminary enquires were proved against the appellant, therefore, he was rightly awarded major penalty, which calls for no interference. Further she submitted that under rule 1(3)(ii) of the SAZDA (ED&D) Rules, 1990, the Director-General, SAZDA being the "Authority" had rightly initiated disciplinary proceedings against the appellant and awarded him the major penalty, which being proper, legal and just may be maintained.
4. We have considered the above submission, perused the material placed on the record and the case-law cited at bar. Contention that appellant being an employee of Federal Government, the SAZDA was not competent to initiate disciplinary proceedings and to award him any punishment, has no force. Appellant no doubt was initially sent on deputation from Ghee Corporation of Pakistan to SAZDA through notification dated 27-7-1993 but subsequently by another notification dated 19-12-1994 he was permanently absorbed in SAZDA, therefore, he severed all his connections with Federal Government.
5. Admittedly, the Director-General had acted in dual capacity in violation of the SAZDA (E&D)
Rules, 1990. Under the rules the person acted as "Authority" must be higher in rank than the (Authorized Officer). In order to arrive at a judicious conclusion and for the sake of convenience, sub-rule (3) (ii) and (iii) of rule 1 which define the ' Authority' and the ' Authorized Officer' and sub- rule (4) of rule 6 of the Sindh Arid Zone Development Authority Employees (Efficiency and Discipline) Rules, 1990, are reproduced as under: "Rule 1 (3) (ii) "authority" means the Director-General or an officer or authority designated by him to exercise the powers of the authority under these rules;
(iii) "Authorized Officer" means any person or authority authorized by the authority to perform the functions of an authorized officer under these rules; ' Rule 6 (4) On receipt of the report of the Inquiry Officer or Inquiry Committee or where no such Officer or Committee is appointed, on receipt of the explanation of the accused, if any, the Authorized Officer shall determine whether the charge has been proved and (a) if it is proposed to impose a minor penalty, he shall pass orders accordingly;
(b) if it is proposed to impose a major penalty, he shall forward the case to the authority along the charge and statement of allegations served on the accused, the explanation of the accused, the findings of the Inquiry Officer or Inquiry Committee, if appointed, and his own recommendations regarding the penalty to be imposed, and the Authority shall pass such orders as it may deem proper: ' Provided that the Authorized Officer shall subject to proviso to sub-rule(3), before imposing minor penalty or recommending imposition of a major penalty as the case may be, by notice accompanied by copy of the inquiry report, if any, intimate the accused of the aforesaid penalty and grounds thereof and call upon him to show cause within a fortnight of the notice why the proposed penalty should not be imposed or, as the case may be, recommended and the reply, if any, to the said notice shall be taken into consideration before imposing or recommending a penalty."
7. Cursory perusal of the above rules makes it clear that the Authority' as defined by sub-rule (3)(ii) of rule 1 is a person different than the ' Authorized Officer' as defined by sub-rule 3(iii) of rule 1.A reading of rule 6 (4) above clearly shows that on receipt of any explanation or reply from the accused it is the 'Authorized Officer' who shall determine whether the charge has been proved and if he proposes to impose a minor penalty, he is authorized by clause (a) of sub-rule (4) to pass the order himself. But if it is proposed to impose a major penalty, he shall forward the same to the '
Authority' and in that case the ' Authority' shall pass any order which it may deem proper. However, before doing so, the Authorized Officer under proviso to sub-rule (4) of rule 6, before imposing minor penalty or recommending imposition of a major penalty, intimate the accused by notice accompanied by copy of enquiry report, if any, of the aforesaid penalty and grounds thereof and call upon him to show cause within a fortnight period why the proposed penalty shall not be imposed or recommended and the reply of employee, if any, shall be taken. Into consideration before imposing or recommending penalty. Here in the present case, the above mandatory rule was violated while initiating disciplinary proceedings against the appellant and imposing penalty upon him. Even the second/final show-cause notice was not issued/given to the appellant. Thus the whole proceedings as well as the penalty being illegal, without lawful authority and coram non judice are not sustainable.
8. On merits too, as it appears from the record, there is nothing adverse against the appellant. In the two preliminary enquiries said to had been conducted by Mr. Nisar Ahmed Siddiqui, the then Commissioner, Sukkur Division and the Committee headed by Mr. Aijaz Hussain Mughal, the then Director-General (Design), Communication and Works Department, not a single word has been said against or about the appellant's involvement in the allegations levelled against him as contained in the show-cause notice the Enquiry Committee headed by Mr. Aijaz Hussain Mughal in his report simply stated so far appellant is concerned that; "The record is silent about any charge against the Officer. No charge-sheet/show-cause notice have been issued by the SAZDA. Hence, the Committee cannot probe into the matter in absence of charges. The Director-General, SAZDA may take further action in the matter."
' It is pertinent to point out that Mr. Ghiasuddin Junejo, the then Director General, SAZDA in his comments dated 7-12-1999 addressed to the Chairman, Governor's Inspection and Evaluation Team, Govt. Of Sindh, Karachi, in its para 6 commented as under:-- "Regarding irregularities said to have been committed by Mr. Sahito as R.D. Kohistan those, have time and again been investigated at various forums, as given by him and he has always been absolved of the allegations. Further inquiry into the same allegation would also receive the same fate. The comments (para-wise) as received from Mr. Abdul Karim Sahito have been placed at pages from 23 to 28."
' As stated earlier, in the case in hand, the Director-General has acted as Prosecutor, Judge and punishing authority merely because of power of removal vested in him. In this connection, it is pertinent to refer the following observation of Honourable Supreme Court in the case of Muhammad Mohsin Siddiqui v. Govt. Of West Pakistan, PLD 1964 Supreme Court 64; "The whole proceedings in a departmental enquiry is required by the Rules to be conducted in accordance with the principles of justice. The superior Courts will not tolerate, and certainly not within the framework of the judicial administration itself, conditions in which officials can be made prosecutors, Judges and punishing authorities when they themselves are the complainants, merely on the ground that the power of removal is vested in them as appointing authorities under the Rules. There is power and there are facilities available, to place the conduct of the enquiry and the report thereon in other hands and in such a case the officer who is the offended complainant must give his evidence in support of the complaint before such officer."
9. Respectfully following the dictum laid down by Apex Court and the reasons aforesaid, the appeal is accepted, the impugned order dated 30-1-2002 and 22-6-2002 are set aside and the appellant is directed to be reinstated in service. The intervening period, however, be treated as `leave of kind due'. There shall be no order 8 to costs.
10. Announced in open Court.