1. B. G. N. KAZI (MEMBER).----Appellant Mr. Abdul Ghafoor Junejo who was compulsorily retired by way of punishment under rule 3 of the Government Servants (Efficiency and Discipline) Rules, 1973 by order con--tained in Notification No. 14/IT/Est. Dated 30th October, 1976 has preferred this appeal against the impugned order.
2. The appellant was directly appointed as income Tax Officer in the service of respondent No. 1 with effect from 1st November, 1968 and Continued in, service till 30th October. 1976 when as already stated he was compulsorily retired from service. At the time of passing of impugned order he was posted as Income Tax Officer, Companies, Circle Hyderabad. He had been served with a show- cause notice No. 14/IT/Est. Dated 16th October, 1976 which was issued and signed by the Secretary to the Government of Pakistan, Cabinet Secretariat (Establishment Division), Rawalpindi. He made his explanation dated 23rd October. 1976 in which he had denied and refuted the allegations in the show-cause notice.
3. The appellant aggrieved by his compulsory retirement from service preferred a review petition to the respondent No. 2 dated 25th November, 1976, under Rule 10 of the Government Servants (Efficiency and Discipline) Rules, 1973. The aforesaid review petition was duly received and acknowleged by the President---s Secretariat and the appellant was informed that the President had seen the petition which had been sent to the Prime Minister's Secretariat for necessary action.
4. It is admitted position that there has been no order passed on the review petition till the date of arguments which were heard in this appeal on 18th October, 1978.
5. The appeal was filed before the expiry of 120 days from the date on which the review petition was preferred but after the lapse of 90 days in pursuance of proviso (a) of section 4(1) of the Service Tribunals Act, 1973.
6. The impugned order has been challenged on the following main grounds .- That it was passed in contravention of the provisions of the Govern--ment Servants (Efficiency and Discipline) Rules, 1973 in that: (a)The proceedings under provisions of rule 5(3) of the said rule had been taken against him arbitrarily and with the pre-determined mind to punish him as otherwise there were no circumstances justifying the holding of departmental proceedings under the said provision. It is further contended that looking to the allegations against him, enquiry should have been ordered and the procedure prescribed in rule 6 of Rules should have been observed in the interest of justice.
7. The authorised Officer had failed to exercise discretion given to him in a judicious manner. It is also argued that the mandatory provision clauses (a) and (b) .Of rule 5 (a) had not been followed inasmuch as the appellant had not been given opportunity of showing cause anti the notice did not specify the action proposed to be taken against him.
8. (b)The issuance of show-cause notice dated 16th October, 1976 was just an observance of a formality as mere reply thereto in denial of allegations does not amount to affording the appellant reason--able opportunity of showing cause as required by clause (b) of rule 5 (3), it is emphasised, that after serving the show-cause notice and getting a reply thereto in denial of the allegations con--tained therein a reasonable opportunity of showing-cause against the proposed action could only be given through some overt act and through practical steps which in the instant case should .Have included the appellant's sight of adducing-his defence before the authorised officer in substantiation of what he had:: stated in reply to the show-cause notice-and he should at least have been heard in person and his statement Should- have been recorded by the authorised officer or the authority.
9. (c)That the show-cause notice was ab initio, illegal and void ac it lead not specified action proposed to be taken in regard to the appellant and the mention "as to why a major penalty as prescribed in the above-mentioned rules should not be imposed on you" was not compliance of clause (a) 6f sub-rule (3) of-Rule 5 aforesaid.
10. With regard to ground (a) the summary procedure laid down in rule 5(3) of the Government Servants (Efficiency and Discipline) Rules, 1973 is a departure from, the previous Rules and therefore, the provision has to be strictly construed and interpreted. Sub-rule (3) aforesaid, gives the discre--tion to the authorised officer to proceed in the prescribed manner if he decides that it is not necessary to have an enquiry conducted through an enquiry Officer or Enquiry Committee.
11. With regard to the exercise of discretion where as it is contended on behalf of the respondents that the discretion is an absolute one and can be exercised at the option of the authorised officer, it is contended on behalf of the appellant that the exer--cise of discretion has to be in a judicious manner and not arbitrarily and roust, therefore, be without taking into consideration any reason which is not legal and proper. As already stated it has been further contended on behalf of the appellant that there should have been an order in writing riving reasons for exercise of the discretion in the particular manner.
12. A perusal of the Government Servants (Efficiency and Discipline) Rules. 1973 would show that there is no express provision in the same requiring the authorised officer to give reasons for exercise of the discretion in writing for proceeding in the manner stated in sub-rule (3) of rule 5 of the aforesaid Rules. However, there are decisions of superior Courts on the point that whenever any discretion is given to a authority it has to be exercised not arbitrarily but honestly and in the spirit of Rules. In the decision reported in P. L. D 1955 Sind 78 the passage occurring on Page 123 under chapter "discretion" in Maxwell on Interpretation of Statutes was quoted with approval as under :- ---Where, as in a multitude of acts, something is left to be done according to the discretion of the authority on whom the power of doing it is conferred, the discretion must be exercised honestly and in the spirit of the statute, otherwise the act done would not fall within the statute. According to his discretion means, it has been said according to the rules of reason and justice, not private opinion, according to law and not humour it is to be, not arbitrary, vague and fanciful but legal and regular, to be exercised, not capriciously, but on judicial ground and for substantial reason ------- -----.."
13. The aforesaid passage applies with equal force to discretion given under statutory rules. Similarly in PLD 1964 Lah. 359 it was inter alia observed that discretion vested in executive officer for public purposes is always circumstanced by scope and object of law creating it and must be exercised justly, fairly and reasonably.
14. In the decision reported in PLD 1969 Dacca 417 it was observed that discretion cannot be exercised arbitrarily and Court can interfere to examine the reasonableness in exercise of discretion and can set aside discretion found to have been exercised unreasonably.
15. For the purposes of determining whether the discretion not to hold an enquiry through an Enquiry Officer or Enquiry Committee was properly exercised nature of allegation against the appellant has to be considered the provision for adopting summary proceedings/procedure under sub-rule (3) of rule 5 has been prescribed with the aided precaution as given n clauses (a) and (b) of sub-rule
(3) that firstly the order should be in writing, informing the accused of the action proposed to be taken against slim and the grounds of the action: and (b) give him a reasonable opportunity of showing cause against that action. It is, therefore, clear that the provision with regard to summary procedure should be adopted in a case where it is clear to the Authorised Officer that the accused can be given reasonable opportunity of showing cause against action proposed to he taken. In the show-cause notice the following allegations against the appellant were stated :-
(i) Are reputed to be corrupt.
(ii) Are leading a luxurious life and maintaining three vehicles namely---a Pick up, a Jeep No. KAN- 7198 worth Rs. 20,000 and a Toyota Corola Car No. QA-8558 worth Rs. 60,000.
(iii) Use Tara Chand, Inspector, and Badar-e-Alam; UDC, as your touts through whom you collect bribe money.
(iv) Have one Zaheer Saeedi an Income-tax Practitioner of Hyderabad as your pimp who supplies you women.
(v) Received Rs. 50,000 as bribe from Messrs Noor Textile Mills Ltd., Hyderabad for quick and prompt disposal of their correspondence and for affording them reliefs under the Income-tax/Sales Tax Acts etc. These allegations could not be considered such as could be decided by reference t6 record in a summary manner and the ends of justice would have been served if the discretion for ordering the holding an enquiry through Enquiry Officer or Enquiry Committee had been passed.
16. A perusal of the reply to the show-cause notice made by the appellant makes it clear that be had denied all the allegations that he was leading luxurious life and maintaining three vehicles namely a Pick up, a Jeep No. KAN-7198 worth Rs. 20,000 and a Toyota Corola Car No. QA-8558 worth Rs.
17. 60,000. The appellant had pointed out that since the regis--tration number of the Pick up was not given and he had denied that he maintained such a vehicle the charge being vague he could not made further reply but in respect of a Jeep and Toyota Car he has pointed out that after having consulted vehicle registration record of Excise and Taxation Department and after having conducted further enquiry he had come to know that the Vehicles belong to M/s. Ali Motors Garri Khatta. Hyderabad. He further mentioned that he did not own even a Motor Cycle and he had never used the two vehicles alleged to have been main--tained by him. It is apparent, therefore, that the allegations after the reply made by the accused officer had to be substantiated by a further overt act or by clearly pointing out the evidence on which the authorised officer depended for the allegations to give the appellant a reasonable opportunity to offer his defence. Similarly in allegation No. 5 it was stated that the accused officer had received 50,000 rupees as bribe from M /s. Noor Textile Mills Kotari and had given them benefit of Rs. 3,50,000 in their last assess--ment but the appellant had explained in his reply that the last assessment referred to had been done by his predecessor and not by him and he had clearly denied the allegation of receiving bribe. Again, therefore, it was for the authorised officer to give sufficient opportunity to the appellant by specifying the material on which he had depended for the allegations. The same would be said with regard to the other four allegations which similarly had been totally denied by the appellant after giving reasons for such denial.
18. It is contended by the learned counsel for the respondents that the fact that the show-cause notice was served on the appellant and he was given opportunity of making a reply is sufficient reasonable opportunity. The expression "reasonable opportunity" has been interpretted in judicial decisions. In PLD 1955 Sind 250 it was observed that mere question and answer could not be considered as reasonable opportunity. In that decision it was held that mere asking for explanation without affording reasonable opportunity for showing cause could not be considered as compliance with section 248(3) of the Government of India Act, 1935. It may here be stated that the show-cause notice under the old rules had to be given after the departmental enquiry was over and the authority had decided about the punishment to be awarded. In the Government Servants (Efficiency and Discipline) Rules, 1973 through the final show-cause notice has been dispensed with in the summary procedure to be adopted under sub-rule (3) of rule 5 a mandatory provision has been made in clause (b) under that sub-rule that the accused officer shall be given a reasonable opportunity of showing cause and it is further provided in clause (a) that the action proposed to be taken in regard to him and the grounds of action have to be specifically stated in writing. It would, therefore, appear that in the show-cause notice specific proposed action is to be stated and no general mention is to be made by referring to all the major penalties in the rules. In this respect too the show-cause notice served on the appellant was not strictly in accordance with sub-rule (3) of rule 5.
19. While discussing the interpretation of rule 5 it may be stated that sub-rule (4) of the aforesaid Rule makes it necessary for the authorised officer after receiving explanation of the accused under the summary procedure of sub-rule (3) to determine whether the charge has been proved and in case it is proposed to impose a major penalty he had to forward the case to the authority along with the explanation. Of the accused and his own recommendations regarding the penalty to be imposed.
20. In the instant case reference to the record does not disclose that any such recom--mendation was made by the authorised officer and as has been rightly pointed out by the learned counsel for the appellant the impugned order of compulsory retirement was, passed and notified on 30th October, 1976 whereas the reply had been despatched only on 23rd October, 1976 which must have taken about 2/3 days to reach Rawalpindi. Since the orders were to be obtained at the highest level there is some force in the conten--tion on behalf of the appellant that action had already been decided upon and in all probability no proper notice was taken of the reply to the show-cause notice submitted by the appellant.
21. It may here be stated that the learned counsel for the respondents in his arguments has emphasised the contention that the action taken was under the Government Servants (Efficiency arid Discipline) Rules, 1973 ,which give powers to the authorised officer to dispense with holding of enquiry and the vines of the Rules cannot be challenged before this Tribunal. Since there is no contention on behalf of the appellant challenging the vires of the Rules and the appellant has only challenged the impugned order on the ground that there was breach of observance of the procedure laid down in the Rules, it is not necessary to deal with the conten--tion raised by the learned counsel for the respondents in this respect.
22. I am also unable to accept the contention of the counsel for the respondents that mere opportunity of making reply amounts to reasonable opportunity, for the reasons already given. The framers of the Rules could not have envisaged such interpretation as provisions of clauses (a) and
(b) in sub-rule (3) are mandatory. On behalf of the appellant it has pertinently been pointed out by his learned counsel that the Federal Cabinet had decided that in all disciplinary proceedings under the Efficiency and Discipline Rules it should always be ensured that accused is given right to defend himself properly. In this respect attention of this Tribunal has been invited to Circular letter issued by Regulation wing of the Services and General Administration Department of Government of Sind (No. SOXI-REG (S & GAD) 2/B/1-73 dated the 10th February, 1976) in which there is reference to the aforesaid decision of the Federal Cabinet.
23. The provision as to reasonable opportunity of showing cause against action proposed in clauses
(a) and (b) of rule 5 (3) has been put in the rules of 1973 on the same footing as the provision in subsection (2) of section 240 of the Government of India Act, 1935. Under the law then obtaining reasonable opportunity implied two opportunities of showing cause, first during tote enquiry to defend himself and the 2nd to show cause against proposed punishment. With regard to the summary procedure provided for in rule 5 (3) clauses (a) and (b) are mandatory and provide, minimum safeguards to the civil servant and therefore, the requirement of reasonable opportunity of showing cause against proposed action will only be satisfied if particulars of charge or charges, substance of evidence in support of charges and specific punishment which would follow after the charges are established are communicated to the civil servant who is given reasonable time to explain.
24. For the reasons already given, however, it is apparent that the discretion not to hold enquiry and to adopt the summary procedure under rule 5 (3) was not properly exercised in view of the nature of the allegations against the appellant and in any case neither the action to be taken was specifically mentioned in the show-cause notice in accordance with clause (a), nor was reasonable opportunity given to the appellant as provided for in clause (b) of rule 5 (3) of showing cause against the action.
25. These findings are sufficient to vitiate the proceedings and therefore, the impugned order cannot be supported. It is accordingly set aside and it is further hereby directed that the appellant be re- instated in service with all the consequential service benefits.
26. Parties to be informed.