' RASHID ALI MIRZA, MEMBER---By this common judgment we intend to dispose of all these four appeals. All the Appellants have filed these appeals under section 4 of the Service Tribunals Act, 1973 against the impugned order dated 30-6-2000 whereby they were removed from service with immediate effect under clause 14(b)(d) of K.E.S.C. Disciplinary Rules under CAO's Letter No.5/85/52 dated 3rd January 1995. The Appellants preferred appeals in this Tribunal on different dates with the prayer to set aside the impugned order and order reinstatement in service with all back- benefits.
2. First we would like to deal with the leading case of Appellant Syed Shah Sawar in Appeal No.583(K)(CE) of 2000.
3. The disciplinary proceedings against the Appellant commenced with the following charge sheet: "THE KARACHI ELECTRIC SUPPLY CORPORATION LTD. Managing Agents: THE PAKISTAN ELECTRIC '
AGENCIES LTD.
Ref: ZM(IND)/CS/98/342 Dated 21 March, 98.
Mr. Shah Sawar, Emp. No.4274-9., Asstt. Office Supdt, I&M Zone. K.E.S.C. LTD. [Karachi] Through D.C.C.B (I&M Zone)
CHARGE SHEET ' It has been brought to the notice of the Management that the following acts prejudicial to good conduct and subversive to discipline have been committed by. You.
' That you have harassed the Consumer M/s. LEMICA CORP.
' Consumer No.AP 13780 A/C No.67730283 by preparing fictitious and exaggerated bills, mentioning the bogus/incorrect load details regarding which complaint has been filed by one Mr. Muhammad Yousuf, Director, M/s. LEMICA Corporation.
' You also committed various sorts of irregularities and put the blame on Consumer just to grab money and resort to illegal gratification.
' The above facts reported to have been committed by you amount to fraud, dishonesty in connection with employees business taking illegal bribes or gratification and constituted, gross misconduct under Clause 14(B)(d) of K.E.S.C. Disciplinary rules issued under C.A.O's Letter No.5/85/52 dated 3-1-1995.
' You are hereby charge-sheeted through this notice for the aforesaid charges and required to submit your explanation within (07) days of receipt of this letter failing which it will be presumed that you have nothing to offer in your defence and further disciplinary action will be taken against you as per rules.
' (Sd.)
' ZONAL MANAGER INDUSTRIES.
4. In his reply to the charge-sheet appellant stated that the charges of receiving fictitious bill levied against him are fabricated based on no ground concerning to his duty which are to prepare the bills rejected by the computer. After correction such are again feeded to Computer so his suspensions is also illegal.
5. That after issuance of show-cause notice dated 21-3-1998 an enquiry was held in the matter in which the Appellant was not found guilty and was absolved of the charges. Despite close of the matter on an enquiry, the Appellant was again proceeded departmentally which is clear act of victimization and based on mala fide. The Appellant further stated in the Memo. Of Appeal that the Consumer on whose complaint the proceedings were initiated has failed to bring any evidence of illegal gratification against the Appellant. Inasmuch as there is no evidence about the claim of the consumer that the wrong and over billing was substituted through fresh bills. Since the bills were never corrected nor re-issued, it was ex officio in this case.
6. The Appellant has further stated in the Memo. Of Appeal that in the evidence recorded by the Enquiry Officer, the consumer/complainant has admitted that Appellant never went to his factory nor he ever demanded/received gratification. The Enquiry Officer acted partially and unfairly as he did not consider the evidence of Assistant Electrical Engineer or Executive Engineer. The complainant failed to bring any independent evidence against the Appellant. The consumer/complainant was defaulter of Rs.37000.
7. In the Parawise Comments it is stated that the Appellant was charge-sheeted for the harassm ent to the consumers by preparing fictitious and exhorbitant bills mentioning the bogus/incorrect load with the collaboration of other four accused. It is further stated that the Management was not satisfied with the conclusion of the first enquiry and it was decided to conduct re-enquiry into the matter and as such re-enquiry was conducted and Appellant was found guilty of misconduct. It is further stated that on re-enquiry the complainant and the witnesses provided sufficient material and the charge was fully proved.
8. We have heard both the learned Counsel for the parties and have also perused the record.
9. In support of the grounds taken by the Appellants, our attention was drawn to the allegations as put forth in the charge-sheet (in all cases) dated 21-3-1998 to argue that charges were vague and unspecific and thus the appellants were seriously prejudiced in putting their defence. The charge- sheet (one out of the four) is reproduced as under: ' THE KARACHI ELECTRIC SUPPLY CORPORATION LTD.
' Managing Agents. THE PAKISTAN ELECTRIC AGENCIES LTD. Ref: ZM(IND)/CS/98/342 ' Date 21 March, 98.
' Mr. Shah Sawar., Emp. No. 4274-9., Asstt. Office Supd., I&M Zone.
' K.E.S.C. LTD.
' Karachi CHARGE-SHEET ' In has been brought to the notice of the Management that the following acts prejudicial to good conduct and subversive to discipline have been committed by you.
' That you have harassed the Consumer M/s. LEMICA COPR. Consumer No.AP13780 A/c No.67730283 by preparing fictitious and exaggerated bills, mentioning the bogus/incorrect load details regarding which complaint has been filed by one Mr. Muhammad Yousuf Director, M/s., LEMICA Corporation.
' You also committed various sorts of irregularities and put the blame on the consumer just to grab money and resort to illegal gratification.
' The above facts reported to have been committed by you amounts to fraud, dishonestly, in connection with the employees business taking illegal bribes or gratification and constituted gross misconduct under Clause 14(B)(d) of KESC disciplinary rules issued under C.A.O's Letter No.05/85/52 dated 3-1-1995.
' You are hereby charge-sheeted through this notice for the aforesaid charges and required to submit your explanation within (7) days of receipt of this letter failing which it will be presumed that you have nothing to offer in your defence and further disciplinary action will be taken against you as per rules.
' (Sd.)
' ZONAL MANAGER INDUSTRIES
10. The learned counsel contended that vagueness of allegations is apparent of details of alleged corruption, demand of gratification, time, date and place even period. In support of his contention he relied upon judgment from the Indian Authority viz. AIR 1986 (SC)' 995, wherein Supreme Court of India held: "Disciplinary enquiry---Fairness---Vague charges---Enquiry vitiated---Omission to raise objection by delinquent as to vagueness of charges---Department is not exonerated from establishing charges---Order of termination of service based on such charges, not sustainable".
11. The learned counsel further argued that similar to the case of Appellant as reported in 2000 SCMR 1743 and 1987 SCMR 602 relevant at 607 the Supreme Court of Pakistan inter alia held: "Show-cause notice which is vague, sketchy and ambiguous does not mention previous conduct and behaviour of civil servant would be violative of requirements of Rule 6 of E&D Rules. No doubt, the E&D Rules are not applicable to the appellants yet the dicta laid down can conveniently be applied to the circumstances of the present appeals."
12. The learned Counsel pointed out that Appellants have denied the charges in terms of replies thereto. The replies clearly spelt out that the charges did not pertain to the duties of the Appellants.
The Appellants stated that it was not their duty to prepare the bills etc. It is argued on the strength on the reply to the charge-sheets, that the Management was required to bring on record and duty chart of the Appellants or at least to allege/suggest that the duties of the Appellants do require the preparation of the bills or that they are involved in the alleged transaction. The learned Counsel has taken us to the documents placed on record by the Respondents to argue that there is no iota of evidence to connect the Appellants with the charges. We are convinced that no effort has been made by the Respondents to bring any evidence to connect the charges. In fact the charges have been levelled without any evidence in support of the same. Neither at the time of framing the charge-sheet nor at the time of holding the first enquiry or the second enquiry.
13. The learned counsel argued that it is idiomatic to refer to the file of enquiry proceedings. He has argued that it is admitted that the Managing Director of the Respondents Corporation summoned the complainant Mr. Muhammad Yousuf and after meeting with him ordered to re-conduct of the enquiry by the same Enquiry Officer namely Donald Dean. The Enquiry Report reveals that it has been signed by both the Officers as Enquiry Officer. Such an action is totally incompetent, unauthorized and without jurisdiction. The Enquiry Report on the basis of this legal infirmity is rendered incompetent and is of no legal value.
14. Learned Counsel contended that it is on record that Mr. Donald Dean, the Enquiry Officer in the first enquiry rendered an enquiry report (page 109 of the file) authored the enquiry report concluding Para of which reads as under:-- "The complainant has stated that in general the modus operandi of KESC is to prepare highly inflicted bills and then harassed the consumers by restoring for illegal gratification and mentioned the name of M.S. Nafees Ahmed in particular but showed no documentary evidence or could not prove it hence after considering the cross-examination and without the non-availability of the relevant documents the charges of gross misconduct under clause 14(b) & (d) of KESC Disciplinary Rules could not be established against all the 5 accused."
15. Another important point urged by the learned counsel for the appellants is that enquiry was re- opened to prejudice the appellants as in the first enquiry they were found innocent. Obviously, there is no justification for conducting re-enquiry and even if it was at all necessary, in all fairness, it had to be conducted by another Enquiry Officer. In support of this proposition, the learned counsel has relied on a case-law 2002 SCMR 872. The Hon'ble Supreme Court has disapproved the appointment of the same Enquiry Officer in the second enquiry. The findings of innocence of the appellants were based on the material placed by the Management before the Enquiry Officer. We are of the opinion that since the first enquiry was a regular enquiry, there was no justification for holding the second enquiry which otherwise conducted by the same Enquiry Officer was illegal and unfair.
16. Another interesting point as pointed out by the learned counsel for the appellants is that an officer who was ordered to assist the Enquiry Officer, assumed the role of Co-Enquiry Officer and recorded findings of guilt of the Appellant which is a nullity in the eye of law and ab initio vague. It was probable that Mr. Donald Dean, the Enquiry Officer had not been influenced or over awed by Mr. Nasir Rajput, the findings would have been the same as a first enquiry. The serious prejudice having been caused to the Appellant can easily be visualized thus the second enquiry report is liable to be condemned as having been authored incompetently, perversely and such findings were not supported by any evidence. Reliance has been placed on a case-law reported in 2002 PLC (C.S.) 136 wherein this Tribunal had concluded as under:- "mere framing the charge-sheet, holding of enquiry and issuance of final show-cause notice does not mean that allegations stand proved. In such-like matters it is the evidence which is brought on record, which is to be sifted in order to arrive at just decision in the matter and one should not be held guilty in a blind fold manner. Finding of guilt would not be sustainable than there is no cogent and convincing incriminating evidence to support it."
17. Relying on the above dictum, we are satisfied that the findings recorded in the second enquiry are based on mere conjectures and surmises. Not a single piece of evidence has been relied upon while recording the purported findings.
18. The learned counsel for the respondents was unable to meet any of the grounds argued in support of the appeals. He simply referred to and relie upon the comments and the file containing the enquiry papers. In fact he had nothing to argue in support of the allegations and/or the procedure adopted during enquiry.
19. It is an admitted position that the Appellants were neither supplied the copy of the enquiry report nor any final show-cause notice was issued to them nor a personal hearing was given to them. These being requirements of law and as such mandatory in nature. For these glaring infirmities the impugned dismissal order is illegal and inoperative. The learned Counsel for the Appellants has relied upon (i) 1985 PLC (C.S.) 279 (ii) 1987 SCMR 1562 (iii) 2002 SCMR 872 (iv) 2003 SCMR 1126 (v) 1996 SCMR 201 (vi) PLD 1994 SC 275 (vi) 2004 PLC (C.S.) 1615 (vi) 2004 PLC (C.S.) 1591 Unreported judgment in Tajuddin v. Executive Committee Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations.
20. In view of what has been discussed above, we have come to the conclusion that the penalty of dismissal from service imposed upon the Appellants was not justified. We would, therefore, accepted the appeals, set aside the impugned order dated 30-6-2000 and direct the Respondents to reinstate the Appellants in service with all back-benefits for which they would submit their Affidavits before the competent authority to the effect that they were not gainfully employed elsewhere. No order as to costs.
21. Parties be informed accordingly.