RASHID MAHMOOD ANSARI, MEMBER.- The appellant is aggrieved by the impugned order dated 14.11.2002 whereby the competent authority had awarded him the punishment of reduction to one stage lower in the the scale under the Removal from Service (Special Powers) Ordinance, 2000, (hereinafter referred to as the Ordinance). His departmental appeal was rejected vide order dated 9.12.2002. The appellant filed the instant appeal before the Federal Service Tribunal on 6.1.2003.
2. The appellant had been appointed as Inquiry Officer vide order dated 9.5.2002 against Mr. Ghulam Abbas Bhatti, Dozer Operator, Makli Limestone Project. The accused worker was hampering the inquiry proceeding and therefore, the Inquiry Officer/appellant taking an ex-parte decision, hold the accused worker guilty of the charges levelled against him and completed the inquiry on 31.7.2002.
3. The Inquiry report submitted by the appellant/inquiry Officer was evaluated as defective by the respondent-corporation's Law Department, in consequence the competent authority of the respondents-Corporation ordered an inquiry against the appellant/inquiry Officer vide order dated 4.10.2002 and an Inquiry Officer was appointed under Section 5 of the Ordinance. The Inquiry Officer issued a statement of allegations and charges vide Memorandum dated 7.10.2002. The following charges had been listed in the statement of allegations and charges:- Quote. After careful examination the Enquiry Report against Mr. Ghulam Abbas Bhatti, Dozer Operator (P. No. 338109) MLP/MDD concluded by you as Inquiry Officer it has transpired that your failed to conduct the above enquiry properly, summoned the eye-witnesses (Prosecution Witnesses) directly without having been produced by the Prosecutor and concluded the enquiry ex-parte without recording the statement of complainant and eye-witnesses of the incident which was mandatory.
Your above acts of gross negligence and dereliction of duty are prejudicial to good service discipline and unbecoming of an officer. Unquote.
4. The Inquiry Officer completed the inquiry against the appellant on 28.10.2002 and found the appellant guilty of allegations and charges as mentioned in the statement of allegation/charges.
However, the Inquiry Officer observed in the inquiry report that the appellant's decision to proceed ex-parte was correct but he forgot and failed to complete the inquiry proceedings as per established procedure, in any case the appellant was issued Show- Cause Notice dated 30.1.2002.
The competent authority was not satisfied with the appellant's reply to the show-cause notice. A personal hearing was also granted to the appellant but finally the complainant patent authority imposed on the appellant the major penalty of reduction to one stage lower in the the scale vide Memorandum dated 14.11.2002. The appellant submitted a departmental appeal dated 26.11.2002 against the impugned order. The competent authority turned down the departmental appeal vide order dated 9.12.2002.
5. The appellant pleaded in his instant appeal that alongwith show-cause notice he was not supplied a copy of the inquiry report which according to him was the mandatory requirement of law and instruction of the Government. He also maintained that the charges levelled against him did not fall within the definition of misconduct under the Ordinance. The appellant also cited the judgment of the definition of misconduct under the Ordinance. The appellant also cited the judgment of the Lahore High Court recorded in 2002 PLC (CS) 1521 wherein the Hon'ble Lahore High Court has held that it is nowhere provided under the law to issue the charge-sheet to an Inquiry Officer. The appellant also maintained that allegations against him were un-sustainable because under the Ordinance, the Inquiry Officer has been vested with powers and authority to adopt his own procedure and summon any witnesses. According to the appellant, Mr. Ghulam Abbas Bhatti, Dozer Operator against whom the appellant was conducting the inquiry was adopting delaying tactics and since the delay in finalization of the inquiry could have landed the appellant in trouble, the latter had taken ex- parte decision and expedited the submission of the Inquiry Report.
6. The respondents sated in their comments that the appellant was given full opportunity to justify his conduct in regard to the inquiry against Mr. Ghulam Abbas Bhatti, Dozer Operator. Respondents maintained that the appellant's act of gross-negligence and dereliction of duty were prejudicial to good service discipline and unbecoming of an officer which fell within the ambit of misconduct under Section 3 (1)(b) of the Ordinance. The respondents claimed that the impugned under the fully justified.
7. We heard the learned counsels of both the appellant and respondent. We have also perused the record.
8. It is indeed ironical, if not comical, that an Inquiry Officer should get punished at two stages for his conduct of the Inquiry. That is what happened in the case of the hapless appellant. At the outset of the inquiry, with the issuance of allegations/charges against Mr. Ghulam Abbas Bhatti, the appellant earned the displeasure of the respondents since the statement of allegations/charges dated 10.5.2002 issued to the accused worker inadvertently failed to indicate the name, designation and the Department of the appellant/inquiry Officer. Disciplinary proceedings were initiated against the appellant under the Ordinance, which led to the imposition of the major penalty of demotion to the lower post of Deputy Manager vide Memorandum dated 4.10.2002. The appellant ultimately submitted an appeal (No. 920(K)CE/2002) to the Federal Service Tribunal.
Eventually as per its judgment dated 6.5.2004 the Tribunal has set aside the impugned order dated 4.10.2002 and directed the respondents to restore the appellant to his original post of Manager.
9. It is significant to note that while the Appellant was conducting the inquiry against the accused worker (Mr. Ghulam Abbas Bhatti), disciplinary proceedings were instituted by the respondents against the appellant referred to in para 8 above, in fact during the pendency of the aforementioned inquiry, an inquiry against the appellant was completed and he was held guilt as charged with the result that a show-cause notice dated 10.7.2002 was served upon him. The appellant naturally became panic-stricken. Since the accused worker was hampering the inquiry and at the same the he (appellant) had received a Show-Cause Notice, he hastened to complete the inquiry report on 31.7.2002 by taking ex-parte decision and holding the accused worker guilty as charged. However it did not save his skin. Disciplinary proceedings were allowed the continue against the appellant which ultimately resulted in imposition of the major penalty of reduction to one stage lower in the the-scale vide Memorandum dated 14.11.2002. it meant that the appellant was imposed two major penalties under two separate set$ of allegation in regard to one inquiry conducted by him.
10. It is intriguing that the respondents did not reassign the inquiry against Mr. Ghulam Abbad Byhatti to some other officer even though the Inquiry Officer/appellant had been found at fault by the respondents in regard to the issuance of Charge-Sheet to the accused worker. A plausible explanation could be that the respondents wanted to keep the appellant/inquiry Officer under pressure. There is therefore, a strong basis to believe that the respondents were acting with mala fide intention.
11. Even if it is accused that the appellant did not follow the prescribed procedure in conducting the inquiry especially in regard to summoning the prosecution witnesses, a question arises as to why the prosecutor remained a silent spectator, it was the duty of the prosecutor to point out the supposes flaws in procedure being followed by the appellant so that the same could be rectified.
Since the prosecutor did not raise any objection during the proceedings, it implied that the prosecutor was in agreement with the procedure followed by the appellant/inquiry Officer. To prosecute the appellant alone, smacks of discrimination on the part of the respondents.
12. A question of fundamental importance is whether an Inquiry Officer can be charge-sheeted for any lapses in his conduct of an inquiry. The Hon'ble Lahore High Court has given a ruling against this course of action as reported in 2002 PLC(CS) 1521. The same principle was followed by this Tribunal is its judgment dated 6.3.2004 in Appeal No. 941(K)CE/2002 and judgment dated 6.5.2004 in Appeal No. 920(KjCE/2002.
13. In view of the above, appeal is allowed and the impugned order dated 11.1.2002 and appellant order dated 9.12.2002 are set aside. The appellant is entitled to have back benefits accordingly.
14. No order as to costs.