' TALAAT QAYUM QURESHI, J---Through writ petition in hand the petitioner has called in question the order dated 16-10-2000 passed by respondent No.1 whereby the petitioner was dismissed from service with immediate effect.
2. Mr. Yahya Afridi, Advocate representing the petitioner argued that two show-cause notices were issued to the petitioner. One for M/s. Viking Traders (Pvt.) Ltd, on 4-11-1999 and the other for Skinwear (Pvt.) Ltd. On 21-2-2000. Both the show-cause notices were properly replied but without appointing any Enquiry Officer and conducting enquiry, the petitioner was dismissed from service.
3. It was also argued that under rule 12.4 of the Bank of Khyber Employees Service Rules 1998, proper procedure for enquiry was laid down and in rule 12.5 the procedure to be observed by the Enquiry Officer or Enquiry Committee was prescribed. Since no erquiry was conducted either by Enquiry Officer or by Enquiry Committee, therefore, the action against the petitioner was illegal. Reliance in this regard was placed on the following judgments:-- PLD 1978 SC 393, 1982 SCM R 770, 1997 SCM R 1552 and 2000 SCM R 1453.
4. It was also argued that even no reason was given by the authorized officer for not conducting enquiry. The action was, therefore, against the rules and law applicable to the case in hand.
Relance in this regard was placed on 1993 SCM R 956.
5. It was also argued that a stigma was placed on the petitioner for misappropriation of huge amount for personal gains, when he was charged on such allegations, enquiry as prescribed by the Rules mentioned above was necessary. Reliance in this regard was placed on the following Judgments:--
(1) 1996 PLC (C.S.) 886,
(2) 1995 SCM R 1042, and
(3) PLD 1994 SC 222
6. It was further argued that the petitioner had been appointed in the year 1992 as Joint Director. He was given promotion to the Rank of Chief Manager. His service record was clean and clear. The enquiry proceedings were initiated on the report of Internal Auditor, in which 5 persons were held responsible but the Bank authorities only proceeded against the petitioners and other four persons named in the Auditor's report were not proceeded against. The petitioner was thus made a scapegoat.
7. On the other hand M/s. Nisar Ahmad Khan and Nazirullah Qazi Advocates representing the respondent argued that the petitioner was served with show-cause notice in both the cases.
Replies whereof were submitted and in the show-cause notice dated 21-2-2000 reasons for not conducting enquiry through any Enquiry Officer of Enquiry Committee was mentioned and as per rule 12:4 (3) of the ibid Rules, it was the discretion of the Authorised Officer to either hold enquiry or not to hold enquiry. Even the petitioner could be removed from service for the reasons to be recorded in writing by the authority without even issuing any show-cause notice as per rule 12.6 ibid. In the case in hand it was argued that the Authorised Officer proceeded strictly in accordance with the Rules and no illegality whatsoever has been committed. The writ petition being frivolous be dismissed.
8. It was also argued that the Bank Authorities had taken action against other four employees who were named in the Audit Report.
9. We have heard the arguments of the learned counsel for the parties and perused the available record.
10. The argument of the learned counsel of the petitioner that a stigma was placed on the petitioner for mis-appropriation of huge amount for personal gains, when he was charged with such allegations, enquiry as prescribed by the Rules was necessary has a force in it.
11. The petitioner was admittedly appointed as Joint Director in M/s. Khyber Bank (hereinafter referred to as Bank) in January, 1992, he was promoted as Resident Director in January, 1993 and, due to his hard-work, he was further promoted as Chief Manager, Karachi in June, 1999. He was, however, suspended in January, 2000 and was eventually dismissed vide order dated 16-10-2000.
The question that requires consideration in this case is as to whether the action taken against him (petitioner) was in accordance with rules governing the subject or not.
12. The service of the employees of the Bank of Khyber (including the petitioner) was governed by the Bank of Khyber Employees Rules.
1998. As per rule 12.4, the procedure to be observed when the Bank employee is proceeded against has been prescribed which is reproduced for convenience:-- "12.4 Inquiry Procedure: The following procedure shall be observed when a Bank employee is proceeded against under these rules:--
(I) In case where a Bank employee is accused of subversion, corruption or misconduct, the authorized officer may require him to proceed on leave or, with the approval of authority suspend him, provided that any continuation of such leave or suspension shall require approval of the authority after every three months.
(II) The authorized officer shall decide whether in the facts of the case or in the interest of justice an inquiry should be conducted through an Inquiry Officer or an Inquiry Committee. If he so decides, the procedure indicated in rules (12.5) shall apply.
(III) If the authorized officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee he shall
(a) by order in writing inform the accused of the action proposed to be taken in this regard to him and the grounds of the action, and
(b) give him a reasonable opportunity of showing cause against that action: Provided that no such intimation and opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or any 'part thereof or in the interest of the good working/reputation of the Bank, it is not expedient to give such intimation and opportunity. In such case the authority may siraight away impose major penalty.
(IV) On the 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. If it is proposed to impose a minor penalty he shall pass orders accordingly. If it is proposed to impose major penalty, he shall forward the case to the authority along with 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. The authority shall pass such orders as it may deem proper."
13. Perusal of the above quoted provision clearly manifests that the Authorized Officer has discretion to direct holding of inquiry or not. It is by now established law that discretion is not absolute and is to be exercised judicially on the principle for sound reasons. In the normal course, it was always desired by the august Supreme Court of Pakistan that inquiry be held and in exceptional cases it can be dispensed with by order in writing and the accused is to be informed of such action and reasonable opportunity is to be given to him to show cause against dispensation of regular inquiry. The minute study of the above-mentioned rules show that in ordinary course the regular inquiry is to be held but it is the discretion of the Authorized Officer to dispense with departmental inquiry for reasons to be reduced in writing which clearly satisfied him and the proposed action is to be intimated along with the decision that reguar inquiry has been dispensed with. The reasons assigned for dispensation of the inquiry be also intimated to the accused and needless to mention here that such decision can be taken by the Authorised Officer after considering facts and peculiar circumstances of each case.
14. It is also by now established law that if the allegations are such that major penalty of dismissal of service or removal is to be recommended then the justice demand that the departmental inquiry must be held because there is a lot of difference between the departmental inquiry in which the witnesses are examined and cross-examined and defence witnesses can be produced but in case of personal hearing, which can be perfunctionary in its nature i.e. Requirements of 'full hearing' are not fulfilled. Even issuance of show-cause notice is not sufficient compliance of legal requirements. As mentioned above, for the dispensation of regular inquiry there should be an order in writing supported by reasons about which the accused officer is to be informed. In the case in hand, no such separate order duly supported. By reasons was passed by the Authorized Officer dispensing with the regular inquiry.
15. Although the learned counsel representing the respondents did not place any reliance on any of the judgments but in a number of cases where the Athorised Officer had dispensed with holding of regular inquiry and had dismissed/terminated an employee on the basis of material available on record, the august Supreme Court of Pakistan had approved such action. A few cases are listed below:--
(i) "The Deputy Inspector General of Police, Lahore and others v. Anis-ur-Rehman Khan." (PLD 1985 Supreme Court 134).
(ii) "Muhammad Saleem Akhtar v. The Director, Food Punjab Lahore and another". (1987 SCM R 829).
(iii) "Deputy Postmaster General (PS), Metropolitan Circle, Karachi and 2 others v. Syed Shamshad Hussain." (1990 SCM R 347).
(iv) "Alamgir v. Divisional Forest Officer, Multan and others" (1993 SCM R 603)
(v) Government of Sindh and others v. Saiful Haq Hashmi and others". (1993 SCM R 956).
(vi) Javid Akhtar v. Secretary, Ministry of Interior, Government of Pakistan, Islamabad and others"
(1991 SCM R 140) and.
(vii) "Nawab Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others" (PLD 1994 Supreme Court 222).
16. But all the above-mentioned judgments except (PLD 1994 Supreme Court 222) were distinguished by his Lordship Mr. Justice Sajjad Ali Shah, Judge as he then was in "Government of Sindh and others v. Saiful Haq Hashmi and others" (1993 SCM R 956).
17. The consistent view of august Supreme Court of Pakistan in this regard is that when a stigma or charge of mis-conduct is levelled and major penalty for dismissal from service or for removal is recommended then justice demand the departmental inquiry must be held.
18. In (PLD 1974 Supreme Court 393) "Muhammad Sadiq Javed Chaudhry v. The Government of West Pakistan", the probationer services were terminated on the ground of misconduct. It was held that:- "Similarly, in the case of Abdur Rashid Abbasi, appellant, the allegations of corruption were made against him and an enquiry also held but instead of completing the enquiry, his services were terminated on the ground that he is not likely to become a good officer. It was also mentioned in the order that there was complaint of corruption against him. In these circumstances, the order of terminating his services amounts to removal and dismissal and he was entitled to the protection of Article 177 of the Constitution of 1962."
19. Likewise in (1995 SCM R 1042) "Muhammad Iqbal v. Federation of Pakistan through Secretary, Government of Pakistan, Parliamentary Affairs Division, Islamabad and another", it was held:-- "We are of the view that in the circumstances when allegation was of theft of new tyres and their replacement with old tyres and on that ground penalty of reduction is awarded, it was necessary to hold regular inquiry for the purpose of recording evidence in proof of allegations."
20. In (1996 SCMR 868) "Ghulam Muhammad Khan v. Prime Minister of Pakistan and others" the august Supreme Court of Pakistan observed that:-- "It has been consistently held by this Court that there is a marked distinction between rule 5 and rule 6 of the Rules, inasmuch as under the former rule, a regular inquiry can be dispensed with, whereas the latter rule envisages conducting of regular inquiry which will necessitate the examination of witnesses in support of the charges brought against the accused civil servant, his right to cross-examine such witness and his right to produce defence in rebuttal. The question, as to whether the charge of a particular misconduct needs holding of a regular inquiry or not, will depend on the nature of the alleged misconduct. If the nature of the alleged misconduct is such on which a finding of fact cannot be recorded without examining the witnesses in support of the charge or charges, the regular inquiry could not be dispensed with. Reference may be made in this behalf to the case of Nawab Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others (PLD 1994 SC 222).
21. Likewise in (1997 SCM R 1552) "The Secretary, Government of the Punjab, through Secretary, Health Department, Lahore and others v. Riaz-ul-Haq", it was held that:-- "It may be observed that in the present case, inter alia, the respondent was charged with defiance of the orders of his superiors, being rude to his calleagues, having concealed the factum of having a job of a Stenographer with the Board of Excellence of Education and others which the respondent had denied and, therefore, there was a factual controversy which could not have been resolved without holding regular departmental disciplinary proceedings".
22. In (2000 SCM R 1453) "Dr. Shahbaz Khan and another v. WAPDA through Chairman and 4 others", it was observed that:-- "Leave to appeal was granted to consider whether in a case where the WAPDA employee was sought to be removed from service on the basis of serious charges carrying stigma, recourse to the provisions of section 17(1A) of the WAPDA Act could be made or Authority was required to proceed under the Efficiency and Discipline Rules and if the charges are such which required evidence, constitute an inquiry Committee and proceed in accordance with law. This controversy has been set at rest in the cases of WAPDA and others v. Sikandar Ali Abro and others (1998 SCM R 137) and Aleem Jaffar, Ex-Line Superintendent, WAPDA, Lahore v. WAPDA through its Chariman, Lahore and 2 others (1998 SCM R 1445) by this Court in which it has been held that in case the WAPDA employee was sought to be removed from service on account of serious charges carrying stigma, provision of section 17(1A) of the Act could not be invoked and he should be proceeded against in accordance with the Efficiency and Discipline Rules, though for the purpose of simple termination of employment of such an employee, the said provisions could be invoked."
23. In this regard reference may be made to the following cases:--
(i) "Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi and another" (1993 SCM R 1440) and
(ii) "Nawab Khan and another v. Government of Pakistan through Secretary Ministry of Defence, Rawalpindi and others" (PLD 1994 SC 222).
24. The ratio of the above-mentioned judgments show that when dismissal from service on the basis of charges carrying stigma is to be made, and employee was sought to be removed from service on the basis of serious charges, recourse to be made by the Authority to proceed strictly under the Rules and if the charges were such which require evidence, inquiry must be conducted by Enquiry Officer or through Enquiry Committee and the accused officer be given proper opportunity to cross-examine the witnesses and to produce his defence which, as mentioned above, in the case in hand was not done which hence prejudice the case of the petitioner.
25. Perusal of the charge-sheet dated 4-11-1999 shows that the petitioner was charged for committing irregularities to the account of Viking Travels (Pvt) Ltd: at Bahria Complex-II Branch Karachi. He was also charged for being inefficient and negligent in the performance of his duty.
26. In the final show-cause notice dated 21-2-2000 the Authorised Officer proposed to impose the following penalties:--
(a) Stoppage of annual increment for the year 2000 and recovery of partial amount of loss to the extent of Rs.400,000 (his share of contribution towards loss) which should be deposited within 7 days of the notice. OR
(b) In case of his failure to deposit the amount of Rs.400,000 as his share of contribution to the loss caused to the Bank, the said amount shall be treated as liability outstanding against him (petitioner) recoverable from his G.P. Fund balance as per rule and he would stand demoted to lower grade of Assistant Vice-President with effect from the date of expiry of seven days of the receipt thereof.
27. The above quoted penalties show that the Athorised Officer had proposed to impose minor penalties upon the petitioner but the impugned order dated 16-10-2000 show that instead of imposing of minor penalties as shown in the show-cause notice dated 21-2-2000, the major penalty of dismissal from service was imposed. When the Authorized Officer had changed his mind after issuing final show-cause notice (dated 21-2-2000), it was incumbent upon him even at that stage to have intimated the petitioner as to why the regular inquiry was dispensed with and what were the reasons for taking such decision which, in the case in hand, was also not done.
28. Since the allegation levelled against the petitioner was of serious nature and a stigma of mis- appropriation of huge amount was imposed, therefore, the Authorized Officer should have appointed an Enquiry Officer or Enquiry Committee as per rule 12.4 of the Bank of Khyber Employees Rules, 1998 and the petitioner should have been provided an opportunity to cross-examine the witnesses and to produce his defence. The observations of the Auditors which were one sided could not be made basis for taking such extreme action of dismissal from service of an officer who was appointed as Joint Director way back in January, 1992 and had earned promotion due to hard work and good performance till the impugned order was passed against him.
29. We, therefore, allow the writ petition in hand, set aside the impugned order dated 16-10-2000 and direct the respondents that keeping in view the serious nature of allegation of mis- appropriation of huge amount for personal gains and mis-conduct, regular inquiry be held by appointing an Enquiry Officer or Enquiry Committee and the petitioner be given full opportunity to cross-examine all the witnesses, examined by the Bank and to produce his defence strictly in accordance with law.. The needful be done within a period of three months positively. There shall be no order as to costs.