' JUSTICE (RRTD.) ABDUL GHANI SHAIKH (CHAIRMAN).---This appeal is directed against the original impugned order dated 6-3-2002 passed by respondent No.1 whereby appellant was awarded major penalty of 'Removal from Service' and appellate order communicated to appellant vide letter dated .17-7-2002, rejecting appellant's departmental appeal by respondent No.2.
2. The necessary facts for the purpose of disposal of the appeal are that on 16-4-2000 appellant during his posting as Medico-legal Officer, Civil Hospital, Karachi, examined one injured Abdul Rasheed, and found four injuries on his person. Injury No.2 for want of X-ray report was kept reserved. On receipt of X-ray report the injury was in the final medical certificate declared as `Shujjah-i-Mudihah'. However about 2-1/2 months thereof, standing Medical Board was constituted which examined the injured on 1-7-2000. The Board declared the medico-legal certificate issued by the appellant as incorrect and fabricated. On the basis of findings of the Medical Board, appellant was served with a show-cause notice dated 2-8-2000 issued by the respondent No.1 in the capacity of 'Authorized Officer', alleging therein that:-- "As submitted by the Director Health Services Karachi Division vide his letter No. DHSK/(Gen: P.S)/8011/12 dated 15-7-2000 that Standing Medical Board was constituted to examine injured Abdul Rahseed son of Abdul Latif. The Board declared that the MLC No.1693 of 2000 dated 16-4- 2000 issued by you in respect of injured Abdul Rasheed son of Abdul Latif is incorrect."
3. In his elaborated reply, appellant denied the allegation and explained his position. His reply was not found satisfactory, as such a final show-cause notice dated 28-6-2001 was issued to him, which too he replied and re-stated the stand earlier taken by him. Moreover, by order dated 6-3- 2002 appellant was awarded major penalty of 'Removal from Service'. Being aggrieved of the said penalty, he preferred departmental appeal to respondent No.1., which was rejected and such rejection order was communicated to appellant through letter dated 17-7-2002.
4. In support of appeal, learned counsel for the appellant argued that whole disciplinary proceedings were conducted in utter disregard of the mandatory provisions of the Sindh Civil Servants (E&D) Rules, 1973. He stated that in the instant case the respondent No.1 instead of following the procedure laid down by the E&D Rules, travelled through a short cut and passed the impugned order in flagrant departure from the relevant Rules. The impugned order was passed on the basis of one sided/ex parte report submitted by the. Medical Board, which was constituted without intimation to the appellant and without inviting appellant to participate in the same and to furnish his view point in order to defend himself and that the enquiry report of the Board being a fact finding enquiry under the Rules cannot be made the basis of awarding major penalty to the appellant.
5. Conversely, learned Asstt. A.-G. Argued that it was the sole discretion of respondent No.1 to exercise his option whether to proceed against a civil servant under rule 5(3) of the Sindh Civil Servants (E&D) Rules, 1973 or not. In this case the respondent No.1 decided to proceed under the relevant rules and found the appellant guilty of the charges levelled against him. It was mainly a matter of record that the charges against the appellant could be proved and, therefore,. It was not considered necessary to hold an inquiry.
6. We have considered the above submissions and perused the material placed on the record. The allegation against the appellant that he had issued an incorrect and fabricated certificate in respect of injury No.2 sustained by injured Abdul Rasheed s/o Abdul Latif, which the appellant denied vehemently. In these circumstances, keeping in view the seriousness of the charge and its vehemence denial by the appellant, it was imperative duty of the respondent No.1 to order for conducting full-fledged regular enquiry, but instead of adopting a proper and legal course a short cut procedure was adopted which was neither justified nor can be sustained. Perusal of the report of the standing Medical Board shows that injured was examined after about 2-1/2 months of the incident and the possibility that by that time the injury in question was healed up, cannot be ruled out of consideration. The observation of the standing Medical Board that appellant had left sufficient space between the words "is" and "Expose" in injury No.2 of Medico-legal' Certificate (M.L.C.) with mala fide intentions to make alterations in future, appears to be based on personal presumption and assumption. Had the appellant been allowed to participate in the meeting of standing Medical Board he could have explained his position but surprisingly enough, no such opportunity was provided to him. Thus the principles of natural justice were violated. It is pertinent to state here that the copy of the report of the standing Medical Board was never supplied to the appellant either with show-cause notice or with final show-cause notice. The appellant was thus deprived to defend himself properly. The departmental enquiry is not a confidential matter. The record must show involvement/association of the accused. The enquiry proceedings are of judicial nature in which the presence of an accused official is a must for the reason that the departmental inquiry is the first stage of judicial proceedings which must be conducted perfectly in accordance with, the requirements and dictates of law and not whimsically, in the latter case it loses its legal validity. In case of doubtful proceedings the benefit goes to. The official accused. Reference is invited to the case of Khalid Naveed v. Member, Administration and the Chairman, Pakistan Atomic Energy Commission, Islamabad 2000 PLC (C.S.) 857. It was further observed in the cited case that the departmental authority acts as a first Court for its subordinates and is supposed to do as much justice as is required by the legal forum/Courts.
6-A. There' is no cavil to the legal proposition that under the provisions of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, (hereinafter referred to Rules of 1973), the 'Authorized Officer', 'Authority' and the 'Appellate Authority' are separate entities and must not be the same person. The perusal of the case file indicates that the Secretary, Government of Sindh, Health Department in the case of appellant, acted as an 'Authorized Officer' and in that capacity he had issued show-cause notice followed by the final show-cause notice to the appellant. As is evident, the authorized officer was not satisfied with the replies furnished by the appellant. Therefore, as it appears, from the original impugned order he forwarded the case papers to the 'Authority' i.e. The Chief Secretary, as required by sub-rule 4(b) of rule 5 of the Rules of .1973, and recommended major penalty against the appellant, which recommendation was accepted by the 'Authority', consequently appellant was awarded major penalty of 'Removal from Service' vide original impugned order dated 6-3- 2002. Aggrieved by the said order appellant as provided by sub-rule(1) of rule 10 of the Rules of 1973 read with sub-rule (1) of rule 3 of the Sindh Civil Servants (Appeal) Rules, 1980, (hereinafter referred to as Rules of 1980), preferred a departmental appeal addressed to the Chief Secretary, Sindh. The Chief Secretary (Respondent No.2) as per law laid down by apex Court in Federation of Pakistan v.
Muhammad Azam Jawaid 1988 SCMR 1458 ought to have forwarded the same to the 'Appellate Authority' viz the Chief Minister, as per schedule attached to the Rules of 1973 and Rules of 1980. But as it reflects from the appellate order dated 17-7-2002, the respondent No.2 instead of forwarding the appellant's departmental appeal to the Chief Minister, himself by assuming the role of `Appellate Authority' rejected the same. Thus the impugned appellate order pass by the person not legally competent to pass the same is E illegal, without jurisdiction, coram non judice and is liable to be struck down.
7. We could have remanded the matter to the 'Authorized Officer' for holding regular enquiry but since the charge pertains to the year, 2000, we feel it expedient that no useful purpose would be served if the matter is remanded after a period of four years.
8. Accordingly, the appeal is accepted and both the impugned orders dated 6-3-2002 and 17-7- 2002 are set aside. The appellant is directed to be reinstated in service. The intervening period be treated as "leave of kind due" There shall, however, be no order as to costs.
9. Announced in open Court.