' JUSTICE (RETD.) ABDUL GHANI SHAIKH(CHAIRMAN).---Appellant Akhtar Hussain Shah, Deputy Superintendent of Prisons on the complaint of one Rana Moinuddin, Vice-Chairman, S.P.S.A. That appellant demanded Rs,3,000 and after accepting bribe of Rs,1500 released one accused namely Tahir Pervez Arain, was proceeded with departmentally. He was initially served with show-cause notice dated 13-5-1999 issued under Pakistan Prisons Rules framed under section 59 of the Prisons Act, 1894. However, on promulgation of Sindh Prisons Department (E&D) Rules, 1999 on 26-6-1999, fresh show-cause notice dated 7-12-1999 followed by final show-cause notice dated 25-1-2000 were issued to the appellant, which he replied and denied the allegation. His replies were not found satisfactory and by order dated 11-2-2000 appellant was awarded major penalty Qf 'forfeiture of two years qualified service, by the respondent No,4. Feeling disqualified, appellant preferred departmental appeal to the respondent No,2. On getting no response within stipulated period of 90 days. Appellant has approached this Tribunal through the instant appeal.
2. In their respective written statements, the respondents controverted the averments raised in the memo. Of appeal and also challenged the very jurisdiction of this Tribunal to entertain, hear and decide the appeal.
3. In support of appeal, learned counsel for the appellant contended that earlier appellant was proceeded with under Prison Rules framed under the Prisons Act, 1894, but subsequently when Sindh Prisons Department (E&D) Rules, 1999 were framed the proceedings were suddenly switched over and fresh proceedings were initiated under Rules of 1999. He submitted that allegation of receiving bribe was a serious one which the appellant denied but instead of conducting regular inquiry a short cut method was adopted, which was neither legal nor proper. He also contended that as per allegations, the bribe was received from accused Tahir Pervaiz Arain who made no complaint against the appellant but proceedings were initiated on the complaint of one Rana Moinuddin and this by itself is sufficient to show that action against appellant was not proper being opposed to facts, justice and equity.
4. In rebuttal, learned Asst. A.G. Supported the impugned order and prayed for dismissal of appeal.
5. Initially when the instant appeal came up for regular hearing, the jurisdiction of this Tribunal was challenged on the ground that under rule 15 of the Sindh Prisons Department (E&D) Rules, 1999, no appeal shall lie to the Sindh Service Tribunal or any other forum against an order passed under these rules. However, when the attention of the departmental representatives was invited to Article 212 of the Constitution of Islamic Republic of Pakistan whereunder the Service Tribunals to deal with the matters of Civil Servants were established and the Sindh Service Tribunals Act, 1973, where under this Tribunal was established to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, and for matters connected therewith or ancillary thereto, a summary was floated to the Chief Minister Sindh for the deletion of Rule 15 from the said Rules, although the summary has not yet approved but in view of the fact that appellant admittedly being civil servant, all the matters relating to the terms and conditions of his service are to be entertained, heard and decided only by this Tribunal. It is settled law that rules are always prescribed being Subservient to the original Act, .Therefore, any rule enacted in derogation of original Act of defeating the spirit of Constitution cannot be allowed to prevail. Rule 15 of Rules of 1990 being in derogation of the Sindh Service Tribunals Act, 1973, thus has no legal sanctity.
6. On careful scrutiny of the record made available before us, it transpired that disciplinary proceedings against appellant were initiated on the complaint Moinuddin, Vice-Chairman, S.P.S.A.
That appellant after receiving bribe of Rs,1500 released accused Tahir Pervaiz Arain. Appellant in his reply vehemently denied the allegations, but instead of conducting regular inquiry to probe the matter thoroughly a short cut procedure of show cause followed by final show-cause notice was adopted. Neither the statement of complainant namely Rana Moinuddin nor that of accused Tahir Pervaiz Arain was ever recorded before the appellant. Merely on the basis of a complaint especially of one unconcerned person, awarding major penalty, by no stretch of imagination can be termed as fair, proper and reasonable. It is well settled principle of law that four resolving controversial questions of facts, regular inquiry is very much necessary. In a case of Nawab Khan v. Government of Pakistan through Ministry of Defence, PLD 1994-SC222, it has been observed that:-- 'So, if the charge is found on admitted documents/facts, no full fledged inquiry is required but if the charge is based on disputed questions of fact, a civil servant cannot be denied a regular inquiry, 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."
' The above view has consistently been followed by our Honourable superior Courts in case of Ghulam Muhammad v. Prime Minister and others 1996 PLC (C.S.) 868, D.I.G.P. Lahore v. Anis- urRehman, PLD 1985 SC 134 and Alamgir v. District Food Controller, Multan and others, 1993 SCMR 603.
7. For the foregoing reasons, the appeal is accepted and impugned order dated 11-2-2000 is set aside. No order as to costs.
8. Announced in open Court.