1. ' AMANULLAH KHAN (CHAIRMAN).-This Appeal under section 4 of the Balochistan Service Tribunals Act, is directed against the order, dated 21st April, 2000, passed by the Competent Authority, whereby following minor penalties were imposed upon the Appellant:--
(i) Censure
(ii) Withholding of promotion for a period of three years.
2. ' Facts giving rise to this appeal are that, appellant Muhammad Saeed Jamali was posted as Assistant Commissioner, Taftan where an incident of firing took place on 6th September, 1999, whereby a boy was killed and three other persons were injured by Personnel of Kharan Rifles, stationed at Taftan. The background was that, as Taftan is located on Pak-Iran border and in absence of any source of livelihood, most of the inhabitants of the area resort to smuggling of small items from Iran to earn their livelihood. A new Commander of the Kharan Rifles was posted at Taftan, who activated measures for stopping smuggling, and on the day of incident, while the Wing Commander was patrolling the area, he chased a motor-cyclist and hit him, whereupon the people gathered in large number and started pelting stones at the Frontier Corps (F.C.) Personnel and they in retaliation resorted to aerial firing. Thus the appellant being the Assistant Commissioner, rushed to the place of incident. However, on account of the firing, two persons had received injuries. He brought them to Hospital, where there was no proper treatment, therefore, he took them to a private clinic and then shifted them to Saindak Hospital, one of them expired on the way and news of the same widely spread, whereupon the public flared up and set at fire the office of Military Intelligence and also started pelting stones at the check post of F.C. Thereafter the situation was controlled. However, due to such incident, the appellant being the Assistant Commissioner, was suspended and a charge-sheet under the Government Servants B (Efficiency and Discipline) Rules, 1992 (hereinafter referred as 'the Rules') was served upon the appellant, along with Statement of Allegations, which reads as under:--
(i) You did not enjoy workable relations with the Frontier Corps.
(ii) You in order to subjugate the law-enforcing agencies sided with Prince Qadir (a local influential person) who along with his accomplices instigated the locals against personnel of Armed Forces which resulted in heavy loss to the Government property.
(iii) Your act of remaining absent from the scene of violence which took place on 6-9-1999 at Taftan, clearly indicates your inclinations towards the miscreants.
3. ' Mr. Muhammad Essa, the then Additional Commissioner was appointed as Enquiry Officer, who submitted his Report and held the appellant partially responsible for charge No.3. The. Authorized Officer, on going C through the Report, exonerated the appellant of the charges, levelled against him, vide Notification, dated 20th March, 2000, which is reproduced as follows;-- "Government of Balochistan ' Services Gen: Admn: & Information Deptt.
4. ' (Section-II)
5. ' Dated Quetta, the 20th March, 2000. Notification.
6. ' No . S -II- 1 (515)/2000-SGA&ID . The Government of Balochistan is pleased to exonerate Mr. Muhammad Saeed Jamali (BSC/B-17), then A.C. Taftan of the allegations levelled against him regarding his alleged involvement in the Taftan incident which took place on 6th June, 1999.
7. ' Muhammad Azam Baloch Secretary SGA&ID."
8. ' Thereafter the Government withdrew the order, dated 20th March, 2000, whereby appellant was exonerated of the charge and matter was placed before the Competent Authority, who in exercise of powers under rule 15(i)(ii) of the Rules, imposed the aforementioned minor penalties on the appellant, vide Notification, dated 21st April, 2000. The appellant made Representation/Review Petition to the Competent Authority, which was rejected, vide letter, dated 17th July, 2000, as such, instant appeal has been filed.
9. ' Mr. Muhammad Aslam Chishti, learned counsel for appellant, while assailing the impugned order asserted the following points:--
(i) that, once the appellant was exonerated from the charges, therefore, same could not have been withdrawn.
(ii) That, impugned Notification/order has been passed by the Competent Authority, in derogation of rule-15(ii) of the rules, and
(iii) that, impugned order has been passed in violation of the principles of natural justice, as before imposing any penalty, appellant was entitled for an opportunity of. Hearing.
10. ' Mr. Salahuddin Mengal, learned Advocate-General, appearing on behalf of the official respondents, opposed the appeal and contended that the order has been properly passed, as the Competent Authority was empowered under Rule-9(2) of the Rules, to pass an order, without giving an opportunity of hearing to the appellant.
11. ' We have heard the learned counsel for the parties and also perused the record of the case with their assistant.
12. ' Before dilating upon the contentions of learned counsel for parties it may be observed that, admitted features of the case are that, appellant was' only held responsible by the Inquiry Officer, for being absent when the second incident took place. The Authorized Officer on going through the Enquiry Report, exonerated the appellant from the said charge: Thereafter the said Notification was withdrawn and minor penalties of Censure and withholding promotion for three years, were imposed by the Competent. Authority. It may be observed here that while passing the impugned Notification, rule 15(1)(2) has been pressed into service. It would be appropriate to refer to the said rule, which reads as follows:-
15. Revision:-- (1)
13. (2)
14. ' Provided that an order made under this rule, if prejudicial to the civil servant, shall not be passed unless he has been given opportunity of showing cause: ' Provided further that an order imposing penalty shall not be revised suo motu or otherwise after the lapse of a period of three months from the date of its communication to the civil servant, if no appeal is preferred.
15. ' First proviso to sub-Rule (2) of Rule 15, embodies that, if any order prejudicial to the Civil Servant is passed, the same shall not be passed, unless he has been given an opportunity of a show-cause.
16. ' In the instant case, admittedly appellant was exonerated from the charge, by the Authorized Officer, though the Competent Authority while not agreeing with the Authorized Officer, while invoking the aforesaid rule, has imposed the aforementioned penalties. A perusal of the same clearly indicates that, order was passed, without giving any opportunity of hearing to the appellant.
17. The contention of Mr. Muhammad Aslam Chishti. Learned counsel has substance that the order has been passed in derogation of first proviso to sub-rule (2) of rule-15 of the Rules. Learned counsel referred to the case of "Maqsood Ahmad Shah v. Islamic Republic of Pakistan through Secretary, Establishment, Government of Pakistan and others (1987 SCM R 1562), where while discussing rules, 4, 5 and 6 of the Federal Government Civil Servants (E&D) Rules, which are corresponding to Rules 15(1)(2) of the Rules, held as under:-- "If a case disposed of by the authorized officer is intended to be reviewed by the Authority in exercise of powers under rule 6-A, no order adverse to the interest of the accused officer can be passed without affording him an opportunity of hearing. The rule of natural justice, as is well established is to be read into the provisions of law authorizing a statuary functionary to pass orders in relation to rights of citizens. It is not the case of the Government that action was taken under the aforesaid rule after notice to the appellant."
18. ' In view of the above dictum laid down by the Hon'ble Supreme Court, it is held that, impugned order was passed in violation of rule-15(1)(2) of the Rules and being against the principles of natural justice.
19. ' Learned A.G. However, while referring to the parawise comments stated that the Competent Authority was empowered to pass the impugned Notification under rule-9(2) of the Rules, which reads as under:-- ' Where the Authority is satisfied that for reason to be recorded in writing, it is not reasonably practicable to give the accused civil servant an opportunity of showing cause it may impose any of the penalties under these rules without following the procedure laid down in the preceding rules.
20. ' We are not persuaded to agree with the learned Advocate-General. Suffice it to observe that, said rule is not applicable to the case of appellant, as he was exonerated from the charges by the Authorized Officer. Thereafter under Rule-15(1)(2), record was summoned by the Competent Authority, who imposed the minor penalties in violation of the said rules. Thus the contentions being without substance is repelled.
21. ' In view of the above, the impugned order is set aside and Notification, dated 20th March, 2000 is restored. Parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.