Rashid Ali Mirza, Member.--The Appellant was demoted from the grade of Deputy Manager to the grade of Assistant Manager vide order dated 4/12/2002, against which he preferred a departmental appeal to the Chairman, Pakistan Steel on 10/12/2002, which was rejected vide order dated 16.12.2002.
2. Being aggrieved by and dissatisfied with the order of demotion to lower garde and rejection of his departmental appeal, the Appellant preferred the appeal before this Tribunal on 30.12.2002 under Section 4 read with Section 2-A of Service Tribunal Act, 1973.
3. The brief facts leading to this appeal are that the Appellant while under posting at A&P Department was served with statement of allegations & Charges dated 29,10,2002, reproduced hereunder:-- PAKISTAN STEEL (Monitoring Evaluation & Implementation Cell)
No, ME&IC /AKH/2002/740Dated 29.10.2002.
Mr. A. K. Haji, Deputy Manager (P.No, 023728) A&P Department (Under Posting) PAKISTAN STEEL.
STATEMENT OF ALLEGATION AND CHARGES As per order dated 28.10.2002 passed by the Competent Authority under Section 2(aa) read with Sections 3 and 5 of the Removal from Service (Special Powers) Ordinance 2000 as amended, the undersigned has been appointed as an Enquiry Officer to enquire into the following allegations and charges leveled against you: You having been found guilty of charges leveled against you vide SOA&C No, ID/ENQ- AKH/2002/3715 dated 30.8.2002 were served with show cause notice dated 16.10.2002. You were also provided an opportunity of personal hearing by the Competent Authority so as to justify your conduct.
During the course of personal hearing before the Competent Authority on 22.10.2002, you stated that ever since you look over the charge of Zonal Sales Sub-Office, Gujranwala, you had been corresponding directly with G.M. (Marketing) and not through Incharge, Zonal Sales Officer (C)
Lahore. You categorically denied having any correspondence with Incharge ZSO (C Lahore.
Incharge, ZDO (C) Lahore when contacted stated that ExIncharge Zonal Sales Sub-Office, Gujranwala, had misstated facts because you had been operating through Incharge ZSOCL. In support of his statement he has sent certain documents.
The above documents prove that you had deliberately misstated the facts before the Competent Authority with malafide intention of misleading him. -- your above act is prejudicial to good service discipline.
2. As the above allegations are prima facie reflective of misconduct under Section 3(1)(b) of the Removal from Service (Special Powers) Ordinance 2000 as amended, the competent authority has ordered to hold enquiry into the matter and appointed the undersigned as Enquiry Officer to scrutinize your conduct with respect to the above allegations.
3. Now therefore, in exercise of powers conferred under Section 5(1)(e) of the Removal from Service Special Powers) Ordinance 2000 as amended, the undersigned hereby calls upon you to put in a written defence i,e, to explain your position in regard to the above allegations and charges in writing within seven days of the receipt of this communication.
4. On receipt of your explanation, you will be informed about the date, time and place of the enquiry. In case your explanation does not reach the undersigned within the period of seven days it will be assumed that your are not interested in putting written defence and the undersigned will proceed with the enquiry, of which date, place and time will be duly intimated to you.
Sd/- (Engr. Manzur-ul-Haque)
Enquiry Officer DGM/Incharge (ME&IC)
4. The Appellant submitted his reply to the charges and denied allegations vide his reply dated 5.11.2002.
5. The Appellant had raised objection regarding issuance of the notice of enquiry ahead of submission of reply by him. He had also requested the enquiry officer for calling the statements of the then two General Managers (Marketing) so as to confirm the facts from them. The Appellant had made another application for calling the both ex-General Managers (Marketing) for recording their statements by invoking his (enquiry officer's) powers vested in him under Section 6 of the Removal from Service (Special Powers) Ordinance, 2000 as amended, but the enquiry officer did not call either of the witness. The Appellant had produced a copy of memorandum dated 7.9.2001 issued by Respondent No, 2 which contained the list of Incharges. The said list separately mentioned the Incharge ZSO (C) Lahore and Incharge ZSO (Gujranwala). The Appellant authenticated his view point by producing the copy of General Manager (Marketing) letter dated 19.4.2002 which corroborated the statement of the Appellant that he used to report to General Manager (marketing) directly. The Appellant further pleaded that Mr. M. Sirajullah Khan had called the statements of both the ex-General Managers (Marketing) during the earlier enquiry conducted by him, into statement of allegation and charges dated 22.5.2002 wherein both the ex-General Managers had corroborated the statement of the Appellant that he used to report to General Manager (Marketing) directly.
6. The Appellant was served with show cause notice dated 22.11.2002 but was not provided with copy of the enquiry report. He submitted reply to the show cause notice on 29/11/2002 and had denied the charges. ,The Appellant was demoted from the grade of Deputy Manager to the grade of Assistant Manager vide order dated 4.12.2002.
7. We have heard the learned counsels for the parties and perused the authorities cited by them.
8. The learned counsel for Appellant contended that in the enquiry conducted by Mr. M. Sirajullah Khan DGM Finance into the statement of allegations and charges dated 22/5/2002, two Ex-General Managers of Marketing Department have corroborated the contention of the Appellant that he, had been reporting directly to. GM (Marketing) and on the strength. of statement of two General Managers of Marketing department Mr. Sirajulah Khan did not pronounce him guilt of charges. The learned counsel for the Appellant also referred to notes of Ex-GM (Marketing dated 23.4.2002 wherein the then General Manager (Marketing) Mr. Khalid M. Akhtar had endorsed as under:- "(b) It does not seem to be a violation of chain of command in view of the latest instructions issued by Central Administration Circular No, A&P/Org/Estt/01 dated 7.9.2001 wherein both Incharge ZSO (Central) and Incharge ZSO Gujranwala have been named on Page-2 as independent Incharges. It was under stood that none is reporting to each other rather both are reporting to GM (Mktg.)
"20. It is true that Sub-sale Office, Gujranwala has been working under Incharge ZSO (C) but since issue of the A&P Memo No, A&P/Org/Estt/01 dated 7th September, 2001, particularly both the Incharges i,e, Incharge ZSO (c) and Incharge ZSO Gujranwala have been reporting directly to GM (Marketing) and have been receiving instruotions directly.
9. The Learned Counsel for the Appellant also questioned the legality of the impugned order on the grounds That Incharge (A&P) was neither authority nor authorized officer under the Ordinance, as he is not appointing authority in respect of the grade of the Appellant. He also argued that the impugned order was also passed by the incompetent authority (PLJ 2003 SC 511). The enquiry officer did not call or examine any witness. The copy of enquiry report was not supplied to the Appellant before awarding major penalty of demotion (PLD 1981 SC 176). Moreover, in the present case the same authority is complainant and he has passed the final orders, which is not permissible under the law (1987 PLC (CS) 875. The case in hand was off shot of the previous disciplinary action vide show cause notice dated 16.10.2002 and in both the cases of demotions the appellant's pay was fixed at lower stages 10.The Learned Counsel for Respondents stated that the Appellant while working as Manager in Pakistan Steel was posted as Incharge Sub-Zonal Sales Officer, Gujranwala vide letter dated 9.7.2001. During his stay at Gujranwalda the appellant had committed misconduct by not following the laid down channel of commands and as a result the inquiry proceedings were conducted against him and he was found guilty of the charges and was accordingly issued show cause notice dated 16.10.2002. During the course of personal hearing before the competent authority the appellant deliberately misstated that ever since he took over the charge of Zonal Sales Sub-office Gujranwala, he had been corresponding directly with G.M (Marketing) and not through Incharge Zonal Sales Office (c) Lahore, he (I/c ZSO C Lahore) stated that ex-Incharge Zonal Sales sub-office Gujranwala (Appellant) has misstated facts because he had been operating through Incharge Zonal Sub-Office (c) Lahore. The appellant's act of misstatement was prejudicial to good service discipline and is prima facie reflective of misconduct under Section 3 (1)(b) of the/removal from Service (Special Powers) Ordinance 2000 as amended. The Appellant was found guilty of the charges by enquiry officer and was thus issued show cause notice dated 22.11.2002, the reply furnished by the Appellant was found unsatisfactory by the competent authority, who afforded him chance of personal hearing in which he failed to justify his conduct. The Legal Counsel for Respondents further contended that the action of demotion from the position of Deputy Manager to Assistant Manager was correct and lawful and as such the same does no call for any interference by this Tribunal and prayed for dismissal of the appeal.
11.We have carefully considered the above arguments of both sides and the authorities cited by them.
12.There are more than one admissions from senior executives of the Respondent No, 1 that the Appellant was working as Incharge ZSO Gujranwala independently and was reporting directly to GM (Marketing). The Appellant's contention is right and supported by GM (A&P) circular dated 7/9/2001 and evidence of two General Managers that he did not report to Incharge SZO (C) Lahore ever since he assumed the charge as Incharge ZSO Gujranwala as he had taken over the charge of ZSO Gujranwala on 13.12.2001 whereas both the Incharges ZSO(C) Lahore and Incharge ZSO Gujranwala were made independent some three months prior to joining of the Appellant.
13. Undoubtedly, the case in hand is offshoot of the previous disciplinary action in which the appellant was demoted from the grade of Manager to that of Deputy Manager. In this case the role of the Chairman of the Respondent No, 1 is that of complainant, competent authority and appellate authority. There cannot be two opinions as well as a legally accepted norm that no one can be a judge of his own cause. The enquiry officer certainly did not act independently as he did not record the statement of the complainant. which point alone is sufficient to set aside the impugned order.
The Appellant was also not supplied with copy of enquiry report which is violation of rules and principles laid down by their lordships recorded in PLD 1981 SC 176, SCMR 1987 1562 & 1774 and PLC 1985 (CS) 478.
14. The show cause notice issued to the Appellant is also fraught with legal short comings giving the fact that it was issued by Incharge (A&P) who in our opinion was not competent to issue the show cause notice, as the Service Rules of the Respondent Establishment 6.3. vested the powers to concerned Director in respect of Manager, therefore, the disciplinary action against the appellant stood vitiated. The proceedings against the Appellant, however, suffer from a major legal flaw that while demoting the Appellant from the post of the Manager to that of the Assistant Manager, he was issued show cause notice by an incompetent authority and a copy of the Enquiry Report was not given to the Appellant alongwith the show cause notice which are mandatory requirements.
Failure to issue show cause notice proposing any penalty to the Appellant is a major deficiency which is not sustainable in any legal scrutiny as it is gross violation of the principle of natural justice enunciated in numerous judgments of the Hon'ble Supreme Court.
15. In view of foregoing facts and circumstances and for the reasons mentioned above, we allow this appeal and set-aside the impugned order of demotion and consequently the position of the Appellant which stood before issuance of the impugned order stand restored with all back benefits.
16. No Order as to costs.
17.Copies of Judgment be sent to the parties under registered cover and to the irrelevant quarters under Rule 21 of Service Tribunal Procedure) Rules, 1974.