' JUSTICE (RETD.) ABDUL GHANI- SHAIKH (CHAIRMAN).---Through the instant appeal, the appellant has challenged the legality and propriety of the original impugned order dated 30-11-2001 passed by Respondent No.2 removing appellant from service and the appellate order dated 24-4-2002, rejecting his review petition passed by Respondent. No.l.
2. The facts precisely, leading to the filing of the instant appeal are that appellant joined the Education Department as Assistant Teacher in 1966. He has lastly worked as Director Schools Education (B-19). He was served with a show-cause notice dated 7-2-2000 issued by the Chief Secretary Sindh/Authorized Officer, containing details of alleged misconduct as under:-- "(i) You, Sardar Ahmed Siyal, former Director School Education (Primary Sukkur, presently awaiting positing, in collusion with Mst. Sahabzadi Memon, DEO (F/P) Nawabshah/Sub-Divisional Education Officer (Female) Nawabshah increased sanctioned strength of 415 PSTs to 475 and 98 to 136 of non-teaching staff during the period from March, 1999 to August, 1999. Resultantly an amount of Rs.1,153,368 has been drawn from Treasury Office. Nawabshah in excess and Government had to sustain heavy financial loss.
(ii) You, Sardar Ahmed Siyal, in the capacity of former Director School Education (Primary), Sukkur used to call meetings of DEOs/SDEOs at your village Siyalabad on holidays lacking official purpose.
Thus, you converted your own resident into mini Directorate.
(iii) You, Mr. Sardar Ahmed Siyal, made transfer and postings of the officers of Grade-18 falling in the competence of Education Secretary /Education Minister and exercised the powers of higher authority illegally and in violation of rule. A list showing names of officers, transfer order Nos. With dates issued under your signatures, is annexed."
' In his elaborate reply, appellant denied the allegations vehemently and explained his position by producing some documentary evidence. His reply was not found satisfactory and he was served With a final show-cause notice dated 3-5-2001, which too the appellant replied on 24-5-2001. He was heard-in person and ultimately by an order dated 30-11-2001, appellant was awarded major penalty of 'Removal from Service': Against which, he preferred review petition to the Governor of Sindh which was rejected and such rejection order was communicated to the appellant through letter dated 24-4-2002. He has now filed the instant appeal praying for setting aside the original and appellate orders and for his reinstatement in service with all back and consequential benefits.
3. In their written statement, respondents controverted the appellant's averments raised in the memo. Of appeal and prayed for dismissal of appeal.
4. In support of the appeal, appellant appeared in person and contended that he performed his duties with full devotion and dedication and that he committed no illegality or irregularity or any kind of misconduct as defined by the Sindh Civil Servants (E&D) Rules, 1973. To explain his position with regard to the allegations contained in the show-cause notice, he submitted that through letter dated 22-2-1999 he received sanctioned strength of 475 PSTs and 136 posts of Naib Qasids/Chowkidars from the Sub-Divisional Education Officer (Female). Nawabshah duly counter- signed by the District Education Officer (Female), Nawabshah for confirmation. The said strength was also verified by the Deputy Director (Admn.)/Assistant Accounts Officer/Assistain Director, Finance of the Directorate of Primary Education, Sukkur. On the basis of such verification, he through letters dated ,24-2-1999 and 17-3-1999 confirmed the said sanctioned strength and communicated the same to the Sub-Divisional Education Officer (Female), Nawabshah and the Treasury Officer, Nawabshah. However, on the pointation of one of the office member that the confirmation of sanctioned strength required re-verification from the record, he immediately through letter dated 20-3-1999 requested the Treasury Officer, Nawabsah to pass the pay bills of S.D.E.O. (F) Nawabshah only as per working position of February, 1999 without any addition/induction of other staff. The copy of said letter was also endorsed to the S.D.E.O.(F)
Nawabshah directing her to intimate the number and details of the affectee teaching and non- teaching staff with reasons for non-drawal of their salaries from 1997-98 with further directions not to draw.Salaries and in case of non-compliance she will be held personally responsible. He stated that he also confirmed from the Treasury Officer as well as from S.D.E.O.(F). Nawabshah that the salary of extra staff was not drawn till 20-3-1999, therefore, for any reason he cannot be held responsible if any salary of extra staff was drawn by the S.D.E.O. (F), Nawabshah or such bill is passed by the Treasury Officer, Nawabshah. So far second allegation, appellant submitted that he never convened/called any official meeting at his residence/village Siyalabad. However, he called one meeting at Govt. (Boys) High School, Imamabad of Sukkur Division i.e. Within his territorial jurisdiction in connection with the affairs of task force to ascertain the position of ghost teachers within the jurisdiction of Sukkur Division. In reply to the third allegation, appellant submitted that not a single order of transfer/posting of any of B-18 officer was made . By him during his incumbency as Director School Education (Primary), Sukkur Division. However, some transfer orders of B-17 officers were orders by him which were within his competence under rule 9(2) (Serial No.4 of its table) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules 1974, read with S&GAD's notification dated 15-10-1974, the copy of which he placed on the record.
5. Next, it is contended by the appellant that despite the fact that he denied the allegations and produced certain documentary evidence in support of his contentions, the department instead of ordering for the regular enquiry dispensed with the same and adopted summary procedure which is not warranted by law. He submitted that even no preliminary fact finding enquiry was conducted except that a questionnaire was given to him by Professor Mushtaq Ahmed Sundrani and that the enquiry proceedings by way of questionnaire are neither legal nor proper and cannot be made the basis for imposing any penalty. He relied upon 1998 PLC (C.S.) 1338.
6. On the other hand, learned Asstt. A.-G. Fully supported the impugned action against the appellant. He stated that because of appellant's illegal confirmation of sanctioned strength Government sustained heavy financial loss. Further, he argued that under the Rules the Authorised Officer is to dispense with the regular enquiry keeping in view the nature of allegations and that no illegality or irregularity was committed by the Authorised Officer. He contended that the explanation tendered by the appellant in reply to the show-cause notice was legally and properly considered but it was not found satisfactory and that appellant was also afforded a chance of personal hearing but he failed to controvert the allegations, thus was rightly awarded penalty of removal from service.
7. We have considered the above submissions, perused the material placed on the record and the case-law referred to by the appellant. The main allegation against the appellant was that he wrongly and illegally confirmed the sanctioned strength of 475 PSTs and 136 non-teaching staff as against 415 PSTs and 98 non-teaching staff, resultantly Government sustained heavy financial loss.
The appellant vehemently denied the allegation and explained his position and in such an eventuality it was incumbent upon the department to order for conducting regular enquiry as it was not the case of adopting shortest procedure of issuance of show cause/final show-cause notice. In order to put a knot on appellant's long unblemished service career of 36 years, the department had adopted an altogether different method by directing the appellant to answer a questionnaire which method is not warranted by law. Apart from the case of Shakeel Ahmed v.
Commandant 502 Central Workshop E.M.E. Rawalpindi and another, 1998 PLC (C.S.) 1338 referred to by the appellant, there is one another case on the similar point of Jan Muhammad v. General Manager Karachi Telecommunication Region, Karachi and another, 1993 SCMR 1440, in which the Honourable Supreme Court while allowing the appeals of the appellant, observed as under as to the infirmity in the departments proceedings: "6. In Government Servants (Efficiency and Discipline) Rules, 1973, "misconduct" is defined. Rule 4 contemplates minor and major penalties. Rule 5 empowers authorized officer to direct enquiry against Government servant through an Enquiry Officer or Enquiry Committee or if he is satisfied, may order that there would be no enquiry in the interest of security of the country. If it is decided that there should be enquiry either by Enquiry Officer or Enquiry Committee then procedure laid down in rule 6 is to be followed and the requirements enumerated therein are that charge shall be framed and Government servant proceeded against would be allowed to reply to the charge after which evidence is to be recorded by examining witnesses in support of the charge allowing opportunity to the affected Government servant to cross-examine the witnesses and he can also produce witnesses in his defence. It appears that in the instant case this procedure as such was not followed in letter and spirit and witnesses were not examined in support of the charge. It was ,necessary for the reason that ' ultimately major penalty has been imposed upon the appellant. The manner in which enquiry proceedings were conducted by way of questionnaire without examination of witnesses in support of charge or defence cannot be approved as it is not consistent with requirements of rule 6 of the above mentioned Rules."
' No doubt an authorized officer has discretion to decide whether in disciplinary proceedings against a civil servant in response to his reply to the charge-sheet, a regular inquiry should be held or not, but that is to be exercised in exceptional circumstances. It has been consistently held by the Honourable Supreme Court that the above discretion is not controlled by any precondition or guideline but nevertheless this discretion like all other discretions is to be exercised fairly and reasonably and not arbitrarily or capriciously with the object to deny the civil servant the right of fair defence. So, if the charge is founded on admitted documents/facts, no full-fledged enquiry is required but if the charge is based on disputed questions of fact, a civil servant cannot be denied the regular enquiry, as the same cannot be resolved without recording evidence and providing opportunity to the parties to cross-examine the witnesses. In such a matter if findings of fact are recorded without recording any evidence, the same will be based on surmises and conjectures, which will have no evidentiary value as to warrant imposition of any punishment on the civil servant concerned. Reference is invited to the case of Nawab Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others PLD 1994 SC 222. Besides, the above two cases, reference may also be made to the following additional cases on the point in controversy:
(i) Deputy Inspector General of Police, Lahore and others v. Anisur-Rehman Khan, PLD 1985 SC 134.
(ii) Almgir v. Divisional Forest Officer, Multan and others, 1993 SCMR 1440.
(iii) Ghulam Muhammad Khan v. Prime Minister of Pakistan and others 1996 PLC (C.S.) 869.
(iv) Basharat Ali v. Director Excise and Taxation, Lahore and others, 1997 SCMR 1543 and
(v) The Secretary, Govt. Of the Punjab through Secretary, Health Department, Lahore and others v.
Riaz-ul-Haque, 1997 SCMR 1552.
' In the instant case, the appellant in his reply to the show-cause notice has categorically denied the charges mentioned there in. In our humble view, the nature of the charges and its denial by the appellant could not be considered such a matter as could be decided without holding a regular enquiry, rather in the circumstances of the instant case the ends of justice would have served only if a proper enquiry prescribed in rule 6 of the Sindh Civil Servants (E&D) Rules.
1973.
8. Repeatedly, the learned Asstt. A.-G. Was directed to produce the material on the basis of which the appellant was found guilty of `misconduct'. In response thereof, he produced photo-stat copies of letters dated 4-3-1999, 17-3-1999 and 20-3-1999 addressed to the Treasury Officer, Nawabshah by the appellant. These letters in fact have been produced by the appellant himself along with memo. Of appeal in support of his contentions, meaning thereby that the department has no further material to implicate the appellant in the commission of the offence with which he stands charged. Perusal of these letters by no means implicates the appellant rather supports his version that he is innocent and falsely implicated. Besides, learned A.A.-G also produced two transfer orders of M/s. Muhammad Khaiid and Bashir Ahmed and Ms. Sakina Memon and Razia Kamalani made by appellant during his incumbency as Director Primary School Education, Sukkur Region, Sukkur which too the appellant annexed with the memo. Of appeal. There is, however, nothing to show that the above officers were B-18 officers. In para-9 of the written statement it is stated that Ms. Sakina Memon was B-18 officer, which fact the appellant denied and stated that in March, 1999 she was B-17 officer and he under the rules was fully competent to transfer any officer of B-17 within his jurisdiction, which fact is not denied by the Respondents. With regard to the allegation that appellant has called/convened a meeting at his village Siyalabad, it is suffice to say that mere calling a meeting within his territorial jurisdiction does not amount to 'misconduct' as defined in the Sindh Civil Servants (E&D) Rules, 1973.
9. To conclude, we hold that in the circumstances of the case the decision to adopt a shorter procedure was wholly unjustified and unsustainable which rendered the impugned orders unlawful and ultra vires. Besides, the material placed on the record by no stretch of imagination implicates the appellant with the charges levelled against him in the show-cause notice.
10. Accordingly, the impugned orders dated 30-11-2001 and 24-4-2002 are set aside and the appeal is allowed. So far reinstatement and intervening' period is concerned, the appellant has already attained the age of superannuation in March, 2003, therefore, we direct that for the intervening period from the date of appellant's removal from service till the date he attained the age of superannuation be treated as period spent on duty and the Education Department may issue necessary notification of appellant's retirement from service from the date he reached at the age of superannuation. There will be not order as. To costs.
8. Announced in open Court.