' JUSTICE (RTD.) ABDUL GHANI SHAIKH (CHAIRMAN).---This is an appeal against the original impugned order dated 4-4-2000 passed by the then Deputy Commissioner, Larkana (now Executive District Officer, Revenue), dismissing appellant from service.
2. Precisely stated the facts of appellant's case are that he was posted as Junior Clerk/Incharge Rehabilitation Branch of the office of the Deputy Commissioner, Larkana. After his transfer from the said Branch, it transpired that a large number of claim files, Registers etc., were missing and were not delivered by the appellant to his successor. He was, therefore, placed under suspension by order dated 25-10-1999, Vide order dated 10-11-1999 a committee of 3 clerks were constituted to scrutinize the record, maintain the claim files properly and Taluka-wise, update' the registers and other record, detect the missing case files and fix the responsibility in respect of missing record.
The committee verified and scrutinized the record and submitted its report. On the basis of such report, appellant was served with a show-cause notice dated 22-12-1999, alleging therein that 964 claim files of urban and rural landed properties and 5 registers of urban properties in his possession were found missing from the Branch as the same were not handed over by him to the said committee. Besides, it was alleged that the keys of one small size cupboard lying in rehabilitation Branch and that of one wooden cupboard lying in Revenue Branch were also not handed over by him to the committee. In his reply, appellant denied the allegations and explained his position. His reply was not found satisfactory and.He was served with a final show-cause notice dated 7-1-2000, wherein it was alleged that during scrutiny of the record of Evacuee and Rehabilitation Branches by the Committee headed by Additional Deputy Commissioner-II, it transpired that appellant knowingly did not hand over 2 files, 5 registers of Evacuee and 272 claim files to the committee. In his detailed reply appellant again denied the allegations and explained his position. Ultimately, after affording a chance of personal hearing appellant vide order dated 4- 4-2000 was awarded major penalty of dismissal from service. Feeling dissatisfied, he preferred departmental appeal to the then Commissioner, Larkana Division (now District Coordination Officer) and on getting no response within stipulated period of 90 days appellant through the instant appeal involved the jurisdiction of this Tribunal.
3. Learned counsel for the appellant challenged the impugned order on various legal grounds. He mainly contended that whole of the disciplinary departmental proceedings initiated against the appellant were not in conformity with the mandatory provisions of the Sindh Civil Servants (E&D)
Rules, 1973. The allegation of missing important claim files was serious which despite the fact appellant denied vehemently but no regular enquiry was ordered to arrive at a proper and judicious decision. He submitted that appellant was proceeded with and penalized on the basis of fact finding enquiry which under the law has no legal sanctity as at no stage appellant was associated with said fact finding enquiry. Learned counsel stated that the then Deputy Commissioner, Larkana had acted in dual capacity of 'Authorized Officer' and that of 'Authority', and that no approval as required under rule 5(4)(b) of the Sindh Civil Servants (E&D) Rules, 1973 was obtained from the ' Authority' i.e. Commissioner, Larkana Division before awarding major penalty of dismissal from service to the appellant. Thus the very order dismissing the appellant from service is illegal, ab initio null and void, without jurisdiction and coram non judice is liable to be set aside on this score alone. On merits the learned counsel while referring to several documents argued that claim files said to have been misplaced by the appellant were in fact never delivered to him by his predecessor, but the Respondent No.1 without verifying the record and without associating appellant to participate in the fact-finding enquiries, held the appellant guilty and penalized him in a haphazard manner. In the end, learned counsel submitted that the missing claim files and the registers for which the appellant was penalized have been traced by the department, thus the very basis of appellant' s dismissal from service stands washed away and he is entitled to be reinstated in service with all back and consequential benefits.
4. Learned Asstt. A.G. Confined her arguments to the averments raised in the written statement filed on behalf of respondents and fully supported the impugned order, She, however, admitted that the misplaced files and registers have been traced during the pendency of appeal.
5. We have considered the arguments advanced at Bar and have minutely perused the material made available before us. Admittedly, the allegation' of misplacing very important claim files/registers intentionally, involving valuable rights of hundreds of claimants was a very serious and required thorough probe through impartial and independent Enquiry Officer/Committee which in view of appellant's total denial was a legal requirement but no such exercise was undertaken.
The appellant was thus deprived of the right to defend himself. Perusal of the case file shows that Respondent No.1 placed much reliance on the report submitted by a three-member enquiry committee comprising, three clerks who were assigned task not only to maintain and update the claim files but also to detect the missing files and fix the responsibility in respect of the missing record, but surprisingly the appellant who was earlier placed under suspension for being responsible of missing files, was not allowed to sit with the committee members and to assist them in tracing the missing files. It is by now a well-established principle of law that if the allegations against the accused civil servant/employee are of serious nature and he denies the same, a regular enquiry cannot be dispensed with. It has also been held that initial burden in such a case is on the department to prove the charge, which cannot be done without producing evidence.
Otherwise, the findings recorded, as in this case, will be based more on conjectures than on evidence/material available on record properly produced and accepted. Reference is invited to the cases of (i) Alamgir v. Divisional Forest Officer, Multan and others, 1993 SCMR 603 (ii) Nawab Khan and another v. Govt. Of Pakistan through Ministry of Defence, Rawalpindi and others, PLD 1994 SC 222, (iii) Ghulam Muhammad Khan v. Prime Minister of Pakistan and others, 1996 PLC (C.S.) 868 and (iv) Basharat Ali v. Director, Excise and Taxation, Lahore and another, 1997 SCMR 1543.
6. Besides, in the instant case, the first and final show-cause notices were issued by the Deputy Commissioner, Larkana in the capacity of 'Authorized Officer', he was thus not legally competent to impose/award major penalty of dismissal from service. Under rule 5(4)(b) of the Sindh Civil Servants (E&D) Rules, 1973, it was obligatory upon the "Authorized Officer" (Respondent No.1) to forward the case papers to the competent Authority (Commissioner, Larkana Divison), along with his recommendations, which exercise was not undertaken to the present case. The impugned order thus is nullity in the eye of law, coram non judice and in excess of the powers conferred upon Respondent No. 1.
7. In the present case, all along the appellant had denied the factum of having misplaced the claim files/registers. His stand was that the charge of Rehabilitation Branch was given to him by Munshi Imdad Ali Sunani, Rehabilitation Tapedar on 30-9-1991 under the verbal orders of the then Deputy Commissioner, Larkana and that on verification of the record, .120 case files were found missing which were not handed over to him. Such a position through office note was submitted to the then Deputy COmmissioner, Larkana (Mr. Khusro Pervaiz Khan) who called upon the explanation of said Tapedar. In his reply to the final show-cause notice, appellant also stated that after his transfer from , the Rehabilitation Branch the charge was handed over to one Mr. Abdul Qadeer Memon, clerk and that he handed over all the remaining files to his successor. It appears that the Respondent No.1 without considering the replies of the appellant and without ordering for any enquiry in this regard, held the appellant guilty simply on the basis of 3 members enquiry committee comprising of clerks, the very formation of such committee was also neither legal nor proper. Perusal of the record further reveals that Mr. Khuda Bux Larik, Additional Deputy Commissioner, Larkana was appointed as Enquiry Officer, prior to issuance of show-cause notice to appellant, who in his report dated 3-12-1999 observed that Mr. Aijaz Ahmed Qureshi, Office Superintendent played a very dirty role in the matter by concealing the files, but there is nothing on the record to indicate if any departmental proceedings were initiated against said Office Superintendent.
8. It is very much pertinent to mention here that after imposing the penalty of dismissal from Service upon the appellant, he was given notice/explanation vide letter dated 19-4-2000 by the then Deputy Commissioner, Larkana directing appellant to handover the missing files, which the appellant replied and re-iterated his earlier, stand that neither the said files were given to him in charge nor the same were available with him. His explanation/reply was found satisfactory and accepted and by order dated 29-7-2000 the said notice was vacated. The operative part of the order dated 29-7-2000 reads as under: "In view of the above facts and grounds, it is clear that, Inayatullah Jokho Ex-Junior Clerk of Revenue Department was not held responsible for missing of 272 claim files hence the Notice/Explanation letter issued to him under this office No.ESTT/3869 dated 19-4-2000, is hereby vacated. Similarly, it may be enquired from Munshi Imdad Ali Sunani Buledi Tapedar regarding whereabout of the aforesaid files.
' This order makes it abundantly clear that the action imposing major penalty against the appellant was taken hurriedly without taken into consideration the earlier replies of the appellant and without applying judicial mind. This further finds support from the admitted fact that all the missing files have been traced during the pendency of this appeal, meaning thereby that earlier exercise of tracing the missing files was undertaken in a cursory manner. In any case, the impugned order being opposed to the facts, illegal, ab-initio null and void is not sustainable.
9. Accordingly, the impugned order dated 24-4-2000 is set aside and appeal is allowed. The appellant is directed to be reinstated in service, with all back and consequential benefits. No order as to costs.
10. Announced in open Court.