IFTIKHAR MUHAMMAD CHAUDHRY, J.--- This petition has been filed for leave to appeal against the judgment, dated 23rd November, 2000 passed by Punjab Service Tribunal, Lahore.
2. Precisely stating the facts of the case are that petitioner faced departmental proceedings on account of shortage of food in Procurement Centre Kichhi Wala, as the Department alleged against him that he being Foodgrain Incharge of the Centre is responsible for shortage of the Wheat which was ultimately calculated to 242.785 tons, details of which is as under:-- (1)Shortage 221.825 tons (2)Damaged Wheat 20.960 tons Total 242.785 tons
3. The Inquiry Officer vide his report, dated 28th October, 1986 concluded that charge of causing loss to the Food Department has not been established. Such findings were endorsed by the Authorized Officer. However, he recommended as follows:-- "After thorough study of the storage process and scrutiny of relevant record, the undersigned is of the view that full rebate of 31 Ganjies (Units) may be granted to the office and balance amount after deducting Rs,1000 which has been deposited into Government Treasury on auction of damaged wheat of his Centre may be recovered from him due to excessive percentage of the loss."
It seems that above recommendations were placed before the Authority who vide letter dated 19th January, 1987, differ with the view of Authorized Officer and recommended that entire loss, which had accrued, may be written of in full.
4. It may be noted that no further proceedings were required to be drawn after passing of the order by the Authority i,e, Deputy Director (Food) but the case was forwarded to the Director (Food) who somehow remanded the case again to the Deputy Director (Food), who on remand of the case vide order, dated 14th October, 1987 imposed following penalty from the petitioner:- "Besides, it has further been decided as per rule 4(b) of the Punjab Civil Servants (E&D) Rules, 1975 to recover a sum of Rs,25,5601.04 being the cost of 135958 kilo 1982-83 scheme found short of P.R.
Centre, Kichiwala during 1982-83 scheme from Mr. Allah Bakhsh Foodgrain Supervisor and deposited into Government Treasury in six equal monthly instalments within a period of six months.
The order as to the enroute shortages shall follow separately when the official produces GP-7 on 8- 11-1987."
As a result of above order, sum of Rs,255,601.04 has been deducted from the pensionary benefits of the petitioner, who in the meantime on attaining the age of superannuation, had retired from service. Against the above order, petitioner preferred appeal before the Service Tribunal which has been disposed of vide impugned judgment dated 23rd November, 2000. As such instant petition for leave to appeal has been filed.
5. Learned counsel appearing for petitioner contended that the Director Food, after passing of order, dated 19th January, 1987 by the Deputy Director Food, had no authority to remand the case to the Deputy Director Food under the Rules prevailing at that time, therefore, according to him, on account of such remand, serious injustice has been caused to the petitioner because in his absence the order operating in favor of petitioner dated 19th January, 1987 was set aside and case was again referred to the Authority i,e, Deputy Director Food who vide order, dated 14th October, 1987 has imposed penalty of recovery of loss from the petitioner, whereas according to him, findings of facts have been recorded by the Inquiry Officer that no loss has been caused by the petitioner to the Food Department, therefore, the Authority under these circumstances had no jurisdiction to impose the penalty, particularly without affording him right of hearing because under Rule 8 of the Punjab Civil Servants (E&D) Rules, 1975 (hereinafter referred to as 'the Rules, 1975'), if at all the Deputy Director (Food)/Authority had decided to impose the major penalty of the recovery of so-called loss in terms of Rule 4(b) of the Rules, 1975 from the petitioner, it had an obligation to issue a show-cause notice to the petitioner and provide him right of hearing, otherwise, in absence thereof, whole proceedings have become illegal in the eye of law.
6. On the other hand, Mr. Aziz Ahmed Chughtai, Advocate Supreme Court, who has appeared on behalf of caveat, when inquired, candidly conceded that the Authority did not issue show-cause notice to the petitioner nor provided opportunity of hearing to petitioner in view of the Rule, 1975, before passing order, dated 14th October, 1987, however, he maintained that in view of the facts and circumstances of the case, department has established that petitioner is responsible for the loss of Rs,255,601.04, therefore, penalty was imposed upon him.
7. We have heard learned counsel for the parties and have also gone through the relevant provisions of law. It is to be noted that in view of the statement so made by learned counsel for caveat that no opportunity of hearing was given by the Authority/Deputy Director Food to the petitioner before passing order, dated 14th October, 1987, we are inclined to hold that petitioner has been condemned unheard, entirely in violation of the principles of natural justice, enshrined in the maxim audi alteram partem. Besides it, perusal of record indicates that as far as the Investigation Officer is concerned, he has not recommended for recovery of loss against the petitioner, therefore, in such view of the matter, if the Authority wanted to exercise his powers under Rule 8 of the Rules, 1975, it was incumbent upon him to give sound reasons, on the basis of facts available on record or he should have invoked some principle of law in order to come to the conclusion that the petitioner is liable for the recovery of the losses. Since the order impugned dated 14th October, A 1987 is not based upon sound reasons, therefore, following the law laid down by this Court in the case of Zafar Ali v. Deputy Director Food, Multan Region 1982 SCMR 1864, we are inclined to hold that order, dated 14th October, 1987, is not sustainable in the eye of law and the Authority Deputy Director without lawful authority imposed the penalty of Rs,255,601.04, upon the petitioner: Thus, for the foregoing reasons, petition is converted into appeal and allowed, as a result whereof order of the Service Tribunal dated 23rd November, 2000 and order of the Authority dated 14th October, 1987 are set aside and department is directed to refund the amount of Rs,255,601.04 to the petitioner, within a period of three months positively.