' RASHID ALI MIRZA (MEMBER).---Appellant has filed this appeal under section 4 read with section 2- A of the Service Tribunals Act, 1973 to assail the impugned order dated 7-8-2001, whereby he had been retired from service compulsorily, against which he preferred a representation on 31-8-2001 which was not responded despite the lapse of statutory period, hence this appeal.
2. The brief facts of the case are that the appellant had rendered his service for about 28 years in the Respondent-Organization and was lastly posted as Deputy Manager Harbour (Operations)
BPS-18. The appellant has stated that on the instigation of Special Monitoring Team having no provision in the Removal from Service (Special Powers), Ordinance 2000, the appellant was suspended on 15-5-2001 and charge-sheet along with the Statement of Allegations bearing No,PQA/Misc/67/76 in the month of May, 2001 (date not mentioned) was issued to him. The Statement of Allegations and charges are reproduced hereunder:-- ' PORT QASIM AUTHORITY DIRECTOR GENERAL (P&D) SECTT.
No, PQA/P&D/412 /108/73 Dated 5-2001.
"Mr. Bashir Ahmed Shaikh Deputy Manager (Harbour Operations), (Under Suspension) through Dy. General Manager (M.Ops.)
STATEMENT OF ALLEGATIONS AND CHARGES ' As per order of the Competent Authority conveyed vide DGM (HRM) Office Order No,PQA/Estt/42/108/73, dated 22nd May, 2001 an Inquiry Committee has been formed and the undersigned has been appointed as Convenor of the Inquiry Committee to inquire into the following allegations and charges against you.
' On 15-5-2001 at about 1430 hours Special Monitoring Team PQA raided a room adjacent to the Operations Room of PQA and recovered items from a cupboard and an iron box placed therein. It is confirmed that cupboard belonged to you along with its contents and you confessed the same on the spot.
' You however, did not confess the ownership of the box, which contained a carton of liquor i,e, 24 cans of HEINEKEN BEER.
2. In exercise of the powers conferred under section 5(1) of the Removal from service (Special Powers) Ordinance, 2000 the Inquiry Committee 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 and to identify the person to whom the carton of liquor belongs within seven days of, receipt of this communication.
3. On receipt of your explanation, you will be informed about the date, place and time of inquiry. In case your explanation does not reach the undersigned by the above date, it will be assumed that you are not interested in putting written defence and the undersigned will proceed with the inquiry, the date, place and time whereof will be duly intimated to you. WIT for 3 months
(Sd) (IMTIAZ RASOOL) DIRECTOR GENERLA P&D)/ CONVENOR" INQUIRY COMMITTEE 3 . The appellant submitted his written reply on 2-6-2001 to the Statement of Allegations and charges but his reply was found unsatisfactory, therefore Enquiry Committee comprising of 2 members was constituted which investigated the matter summarily and submitted its report. The competent authority without affording him personal hearing imposed the major penalty of Compulsory Retirement with retrospective effect i,e, with effect from 6-8-2001 by impugned Office Order dated 7-8-2001.
4. The respondents filed their Parawise Comments stating therein that the Enquiry Committee conducted the enquiry in accordance with the procedure laid down under sections 6 and 7 of the Removal from Service (Special Powers) Ordinance, 2000. The appellant appeared before the Enquiry Committee and admitted the charges/allegations levelled against him vide his Confessional Statement dated 15-5-2001, hence examination of prosecution witness was not relevant in the instant case. The Appellant was not examined by the Enquiry Committee. The Enquiry Committee for some clarifications in the matter asked the questions from the appellant as the charges against him were serious and of criminal nature. The appellant confessed the possession of foreign cigarettes but failed to identify the owner of the foreign beer which were found in huge quantity in his closet. The Special Monitoring Team of the Respondents raided the room adjacent to the Operation Room on 15-5-2001 and recovered contraband items from the Almirah and Iron Box placed in the said room belonging to the appellant. The appellant submitted his statement on the spot and admitted that the alleged cigarettes belong to him but failed to identify the owner of the foreign beer which were found in huge quantity in his closet.
5. We have heard the learned Counsel for both parties and have gone through the record of the case.
6. The learned Counsel for the appellant contended that no show-Cause notice was issued and the Enquiry Committee did not conduct the enquiry under section 6 of the Removal from Service (Special Powers) Ordinance, 2000. He also contended that no prosecution witness in presence of the appellant was examined or subjected to cross-examination by the appellant. He contended that the enquiry is defective and the punishment awarded to the appellant is not sustainable in the eye of law. Appellant was cross-examined by the Enquiry Committee which was not legally justified. He contended that the Enquiry Committee had not afforded any chance or opportunity to the appellant to produce any witness to defend himself. He has further contended that the appellant was neither supplied a copy of the report of the Enquiry Committee nor was served with a show-cause notice to offer his explanation about the adverse findings of the Enquiry Committee.
No financial loss was sustained by the respondent, yet the appellant has been penalized. He has further contended that ,suspension of the appellant with effect from 15-5-2001 to 5-8-2001 and subsequent conversion into. E.O.L. Was incompetent and ultra vires. He has placed reliance on PLD 1994 SC 72. He has further contended that the record and conduct of the appellant remained unblemished throughout his 28 years continuous and regular service as is evident from the facts that he was neither penalized under Efficiency and Disciplines Rules, 1973 nor there was any adverse entry in his Confidential Report. He has contended that competent authority had imposed major penalty upon the appellant with retrospective effect i,e, from 6-8-2001 by impugned Office Order dated 7-8-2001 which was effective from 6th August, 2001 which is nullity in the eye of law as no executive order can operate retrospectively, as such the impugned order is illegal. He placed reliance on 1996 SCMR 2001, PLD 1994 (S.C.) 899 and 1985 SCMR 1178. Learned Counsel further contended that the punishment of compulsory retirement from service does not commensurate with the gravity of misconduct as possession of cigarette cartons does not amount to misconduct.
He placed reliance on authority reported in 2003 PLC (C.S) 1547, 2002 SCMR 692, 2003 T.D.
106. The learned Counsel further contended that the period of suspension with effect from 15-5- 2001 to 5-8-2001 was ordered on 7th August, 2001 as E.O.I. (leave without pay and allowances) which is illegal. The employee has to get full pay and allowances during suspension period. He placed reliance on authorities reported in 1994 SC page 72, 1996 PLC (C.S.) 1109, 1991 PLC (C.S.) 1205.
The learned Counsel contended that the alleged incident was not a misconduct as it was for the first time that the Enquiry Committee had recommended that the staff may be warned for retention of such Cigarettes Cartons in their custody and it does not amount to misconduct under any law or under any provision of Removal from Service (Special Powers) Ordinance, 2000. He has further contended that rest of the staff who were found in possession of Cigarettes Cartons were issued warnings whereas appellant was imposed major punishment which is unlawful. He contended that the appellant and his colleague were proceeded against on one and the same allegations, but the appellant had been awarded punishment of compulsory retirement from service while his colleague namely Lt. Francis Mathew was awarded lesser punishment which is a clear case of discrimination. He placed reliance on S.B.L.R. 2002 Tr. 75 (Karachi). He has contended that the respondents had failed to determine the veracity of the charges regarding duties and responsibilities of the appellant. The appellant had not breached any kind of discipline in performing his duties.
7. On the point of confession the learned Counsel for the appellant contended that confession of civil servant is not valid till the same is confronted with the civil servant in regular enquiry. He placed reliance on an authority reported in PLD 2002 SC 667.
8. As per inquiry proceedings filed in Court, four witnesses namely Mr. Anwer Baloch, Lt. Francis Mathew, Nair Ahmed and Sayed Aslam Saghir were called for and examined by the Inquiry Committee. The Statement of SLA Bilgrami was also recorded by the Inquiry Committee. None of the P.Ws. Were cross-examined by the accused official, which goes to prove that all witnesses were examined in absence of the appellant.
9. As per para-8 of findings, all OROs had been receiving gifts in the form of cigarettes and drinks.
They had promised to DG, (Ops) that in future no complaints will be received. Warning was ordered to be issued to all OROs for not being vigilant and allowing unclaimed jron box in the room commonly used by the OROs and staff, but the appellant was awarded major punishment of compulsory retirement which is a discrimination in his case. Reliance is placed on 2000 SCMR 669 (Deputy Inspector-General of Police v. Shafique-ur-Rehman and others). In the said case, civil servant serving as Inspector of Police was dismissed from service after issuing him show-cause notice on allegation of misconduct Service Tribunal ordered reinstatement of civil servant holding that case of civil servant was of discrimination. Co-civil servant similarly placed having been reinstated by authority, Service Tribunal had rightly ordered reinstatement of civil servant. In this regard the appellant's learned Counsel quoted Federal Service Tribunal's latest judgment dated 17- 2-2004 in the case of S.M. Abbas Shah v. WAPDA Appeal No,652(R)/(CS)/2002. The learned Counsel for the appellant also cited Federal Service Tribunal's judgment in the case of Sardar Masood Iqbal Khan v. Chairman WAPDA in Appeal No,374(L)(C.S.)/2000 in which the appellant was retired under section 17(1-A(a) of Pakistan WAPDA Act, 1958. In that case the appellant was neither issued show- cause notice nor afforded personal hearing and the Tribunal held as under.
"The fact remains that the appellant was condemned unheard in violation of principle of Natural Justice enshrined in maxim: audi alteram partem. As the appellant has been condemned unheard, we have no alternative but to set aside the impinged order and reinstate the appellant in service.
But it will always remain open for the respondents to commence proceedings under the prevailing rules, if the acts of omission and commission of appellant attract the penal provisions of relevant laws and the guilt of accused is established through regular enquiry. As regards present appeal, the same is allowed .With no order as to costs. The appellant is reinstated in service with back- benefits.
10. The learned Counsel for the respondents contended that the appellant has admitted the charges levelled against him vide his confessional statement dated 15-5-2001, hence examination of the P.W. Was not relevant. The learned Counsel contended that after admission confrontation of the allegation on the part of the appellant, the appearance of the P.W. Before the Inquiry Committee was not necessary, hence the appeal is liable to be dismissed.
11. We have come to the conclusion that the record and conduct of the appellant remained unblemished throughout his 28 years continuous and regular service as is evident from the facts that he was neither penalized under Efficiency and Discipline Rules, 1973 nor there is any adverse entry in the Confidential Report. No Show-Cause Notice was issued to the appellant. The Enquiry Committee did not conduct the enquiry under section 6 of the Removal from Service (Special Powers) Ordinance 2000 and no prosecution witness in presence of appellant was examined or subjected to cross-examination by the appellant, hence the fact-finding enquiry is defective and the major punishment awarded to appellant is not sustainable in the eye of law. The appellant was cross-examined by the Enquiry Committee which was not legally justified Mr appellant was afforded any chance or opportunity to produce any witness to defend himself neither appellant was supplied copy of report of the Enquiry Committee to offer his explanation about the adverse findings of the Enquiry Committee. No financial loss was sustained by the respondents yet the appellant has been penalized. The suspension of the appellant with effect from 15-5-2001 to 5-8- 2001 and subsequent conversion into E.O.L. Was incompetent and ultra vires. Reliance is placed on 1994 PLD 1994 SC 72. The competent authority had imposed major penalty upon the appellant with retrospective effect i,e, from 6-8-2001 by impugned Office dated 5-8-2001 which was effective from 6th August, 2001. No executive order can operate retrospectively, A as such the impugned order is illegal. Reliance is placed on PLD 1994 SC 899-72, 1985 SCMR 1178, 1996 PLC (C.S.) 1109, 1991 PLC (C.S.) 1205. The period of suspension w,e,f, 15-5-2001 to 5-8-2001 as leave without pay and allowances is also violation of Fundamental Rule 53. The punishment of compulsory retirement from service does not commensurate with the gravity of misconduct as possession of cigarettes Carton does not amount to misconduct. Reliance is placed on authority reported in 2003 PLC (C.S.)
1547, 2002 SCMR 692, 2003 T.D. (Service)
106. The appellant had been awarded major punishment of compulsory retirement from service while his colleague namely Lt. Francis Mathew was awarded minor punishment of warning which is a clear case of discrimination. Reliance is placed on authority reported in SBLR 2002 Tr. 75 (Karachi). The confession of civil servant is not valid till the same is confronted .With the accused official in regular enquiry. Reliance is placed on an authority reported in PLD 2002 SC 667. In the Fact-finding enquiry proceedings filed in Court four, witnesses namely. Anwar Baloch, Francis Mathew, Nazir Ahmed and Syed Aslam Saghir were called for and examined by the Enquiry Committee. The Statement of S.L.A. Bilgrami was also recorded by the Enquiry Committee but none of the P.Ws. Were cross-examined by the accused official which goes to prove that all the witnesses were examined in absence of the appellant, hence the fact-finding enquiry is illegal and ab initio void. In para. 8 of the Enquiry Report it is clearly mentioned that the Officers had been receiving gifts in the form of cigarettes and drinks. They have promised to D.G.
(OPS) that in future no complaints will be received, warning may be issued for not being vigilant and allowing unclaimed iron box in the room commonly used by the Officer and staff. Whereas the appellant was awarded ,major punishment of compulsory retirement which is a discrimination in his case. Reliance is placed on authority reported in 2000 SCMR 669 (Deputy Inspector-General of Police v. Shafiqur Rehman and others).
12. Therefore, we hold that the proceedings against the appellant have not been conducted in accordance with the Rules. We find that the principles of natural justice have also been violated and as such, we set aside the impugned order dated 7-8-2001, and direct the respondents to reinstate the appellant in service with all back-benefits for which he shall furnish his affidavit before the competent authority that he was not gainfully employed alse where.
13. Copies of the judgment be sent to the parties and to the relevant quarters under registered cover under rule 21 of Service Tribunal.