' RASHID ALI MIRZA (MEMBER).---By this single order we intend to dispose of both these appeals as the facts involved in these appeals are similar to each other.
2. Appellants Lal Khan Warsi and S. Ayaz Ahmed Durani have challenged the impugned order dated 6th November, 2002 whereby they were demoted i,e, Lak Khan Warsi from the Post of Manager to Deputy Manager and S. Ayaz Ahmad Durani from Deputy Manager to Assistant Manager with immediate effect, against which they filed departmental appeal for restoration of their post which was rejected vide order dated 27-11-2002.
3. It would be proper to discuss separately, the facts of each appellant. Appellant Lal Khan Warsi joined Pakistan Steel with effect from 29-5-1976 as A.X.E.N. After due selection. He was later on promoted as XEN in the year 1982 and was lastly promoted as Manager in January 1989 while appellant S. Ayaz Ahmed Durani joined Pakistan Steel w,e,f, 9-9-1976 as Operator, then as Foreman in the year 1982, thereafter as Assistant Manager in the year 1989 and lastly he was promoted as Deputy Manager in the year 1996. Both the appellants performed their duties with maximum potentials in the larger interest of the nation, country and the department. Their services were appreciated by their superiors. Both the appellants had served the respondents for about more than 25/26 years having unblemished record of their entire service. On 19-9-2002 both the appellants were served with Statement of Allegations and Charges by respondent No,3 wherein it was alleged:-- PAKISTAN STEEL ' PROCESS AUTO TRANSPORT DEPTT.
' No, PAT/OPN/MISC/-2/1058 Dated 19th September, 2002 ' To, ' Mr. L.K. Warsi, ' Manager (P No,010057), ' Central Design Bureau, PAKISTAN STEEL STATEMENT OF ALLEGATIONS AND CHARGES ' As per order dated 17th Sept. 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 Enquiry Officer to enquire into the following allegations and charges levelled against you.
"After careful examination of the enquiry report of Mr. Hassan Ali, Assistant (P.No,374784) of Refractories Department it has transpired that you being the Member of Enquiry Committee failed to analyze the evidence brought on record of the enquiry properly suppressed the facts and drawn conclusion devoid of any valid justification, thus you conducted improper enquiry. Your above acts of gross negligence and dereliction of duty are prejudicial to good service discipline and unbecoming of an officer.
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 the powers conferred under section 5(1)(a) 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.
3-A. 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 inquiry of which date, place and time will be duly intimated to you.
(Sd.)
(Farooq Ahmed Khan) Dy. General Manager-PAT "Enquiry Officer"
3-A. Similar Charge Sheet was issued to appellant S. Ayaz Ahmed Durani which reads as under: PAKISTAN STEEL PROCESS AUTO TRANSPORT DEPTT.
NO. PAT/OPN/MISC/02/1057 Dated 19th September, 2002 To.
Mr. S. Ayaz Ahmed Durani, Deputy Manager (P No,072877), TPP, TBS Department, PAKISTAN STEEL.
STATEMENT OF ALLEGATIONS AND CHARGES ' As per order dated 17th Sept. 2002 passed by the Competent Authority under section 2 (aa) read with section 3 and 5 of the Removal from Service (Special Powers) Ordinance 2000 as amended, the undersigned has been appointed as Enquiry Officer to enquire into the following allegations and charges levelled against you.
"After careful examination of the enquiry report of Mr. Hassan Ali, Assistant (P.No,374784) of Refractories Department it has transpired that you being the Member of Enquiry Committee failed to analyze the evidence brought on record of the enquiry properly suppressed the facts and drawn conclusion devoid of any valid justification, thus you conducted improper enquiry.
' Your above acts of gross negligence and dereliction of duty are prejudicial to good service discipline and unbecoming of an officer.
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 the powers conferred under section 5(1)(a) 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.
3-A. 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 you are not interested in putting written defence and the undersigned will proceed with the inquiry of which date, place and time will be duly intimated to you.
(Sd.)
(Farooq Ahmed Khan) Dy. General Manager-PAT "Enquiry Officer"
4. The appellants denied the aforesaid charges and requested that statement of allegations and charges issued to them may kindly be withdrawn. On 25-9-2002 an Enquiry Notice was issued by the Enquiry Officer wherein it was mentioned that enquiry into the allegations/charges will be held in the office of DGM(PAT) Admn. Building PAT Main Plant on 27-9-2002 at 10.00 A.M. On 25th October, 2002 another Show-cause notice was issued mentioning therein that "as a result of enquiry, the allegations/charges levelled against you have been proved/established and you have since been found guilty of misconduct under section 3(1)(b) of Removal from Service (Special Powers) Ordinance, 2000 (as amended) are liable for major penalty." The appellants submitted reply stating therein that "in fact, the enquiry officer had ignored the vital aspect that no allotment order was issued to Mr. Hassan Ali, Assistant Refractories. The other fact which went unnoticed by the enquiry officer that when Mr. Hassan Ali had furnished reply to the Statement of Allegations and charges, the Incharge (Security) Steel Town who was initiator of the report against him (Mr. Hasan Ali) did not contradict the contents of his explanation and instead endorsed it with the remarks.
"The answer of employee if forwarded for your consideration please" and had marked it to Incharge (Estate). Apart from this, the prosecutor could not adduce any evidence to prove the guilt of Mr. Hasan Ali. They stated that their conclusion was based on evidence available on record. Moreover, the prosecution side could not substantiate its view point that Mr. Hasan Ali had sublet the accommodation to Liaquat Ali Guard NPF who was accommodated by him on the instruction of his Incharge i,e, a responsible officer of armed forces who had corroborated the facts narrated by Mr. Hasan Ali. They had no reason to doubt on the confirmation of Lt. Commander (PN) Muhammad Adil Burney made in writing. Hence the conclusion derived by the Committee was on merit and without favouring any one." On 6-11-2002 both the appellants were called by Respondent No,1 for personal hearing. They explained their case through verbal assertions. The respondent No,1 was fully satisfied with their verbal assertions but on 6-11-2002 the respondent No,2 passed the orders of demotion of both the appellants, hence this appeal under section 4 of Service Tribunals Act, 1973 before this Tribunal after filing their departmental appeal to the respondents.
5. Respondents filed their Parawise Comments stating therein that as a result of appellants' failure to conduct the enquiry as a Member of the Enquiry Committee against Hasan Ali Assistant P.
No,374784 Refractories Department, they were issued SOAC Notice on 19th September, 2002. They replied to the charges contained in the SOAC, but their view point was found completely, out of the context/irrelevant to justify their position in relation to the allegations and charges levelled against them. Respondents stated that having found the reply of the appellants unsatisfactory, the Enquiry Officer had no option but to conduct the enquiry as per laid down procedure and he submitted report to the competent authority. During enquiry, the appellants were given free and fair opportunity to defend themselves, but they failed to defend the allegation. However as per enquiry procedure, the appellants were issued Show Cause Notices to submit any congenial substance about their innocence for consideration of the competent authority. The appellants were also given opportunity of personal hearing by the competent authority so as to enable them to submit anything fructuous in their defence, but they could not submit anything worthwhile during personal hearing. They have stated that appellants did file appeal for restoration of their grade, but finding no tenable reason therein, it was rejected.
6. We have:heard both the learned counsel appearing for the parties and have also gone through the entire record.
7. Before drawing any inference it would be necessary to reproduce hereunder the relevant paragraphs and conclusion of the findings of Report of de novo Enquiry made by the respondent as Enquiry Officer in respect of Ali Hassan accused:--
4. Letter No, Estate-06(01)/2001/1487 dated 1-2-2001 (Page-14) was issued to the accused from Incharge (Estt.) Township indicating that, during checking it was found that, house No,B820 has been subletted by Mr. Hassan Ali (P.No,374784) to an unauthorized person/outsider namely Mr. Liaquat Ali presently living with family working in Police Foundation. Mr. Hassan Ali (P.No,374784) was also advised vide that letter, to hand over the vacant possession of the house No,B-820 within 07 days positively, failing which his pay will be stopped and disciplinary action will also be initiated against him as per policy of allotment.
' The accused Mr. Hassan Ali (P.No,374784) has clarified his position vide reply/application dated 6- 2-2001 (page-15) that, as per orders of his Incharge i,e, the then Incharge (Security) Mr. Adil Burney, he (Hassan Ali) has just allowed Mr. Liaquat Ali (the servant of Mr. Adil Burney) and family to reside along with his family for about 10-15 days as guests till their departure to Faisalabad on account of transfer of Mr. Adil Burney. The accused Mr. Hassan Ali has also stated that Mr. Liaquat Ali and family has proceeded to Faisalabad on 4-2-2001. 'The accused Mr. Hassan Ali (P.No,374784) has also submitted the hand written statement (Page-125) of the then Incharge (Security) Lt. Commandar (P.N.) Mr, Muhammad Adil Burney (duly signed and stamped) as an evidence in that respect.
6. The above reply/application dated 6-2-2001 (Page-15) of the accused has also been countersigned and stamped by the Incharge (Security) Steel Town Mr. Muhammad Akram and forwarded to Incharge (Estate) with the remarks that "the answer of the employee is forwarded for your consideration please." Incharge (Estate) has marked the said reply/application to his juniors on 7-2-2002 ordering them to check and report. No further action has been-taken by the Estate.
Deptt. On the said reply/application of the accused. Incharge (Security) Steel Town has however forwarded his report No,STY/Admn/ST/2001/46 dt. 6-2-2001 (Page-13) to the higher authorities which has subsequently been considered as the base for issuing the charge sheet to the accused Mr. Hassan Ali (P.No,374784).
7. The said security report (page-13) has been prepared on verbal orders of Incharge (Security)
Steel Town and on verbal report of the complainant Mr. Zafar Iqabl Kiyani (Security Assistant) and has been sent to the higher authorities without investigation of the case.
8. The allegations has not been proved by the prosecutor/complainant.
CONCLUSION ' Mr. Hassan Ali Assistant, (P.No,374784) has not been found guilty of charge mentioned in the charge sheet/statement of allegations No,AP(PB)-3(04)/2001/478, dated 14-2-2001."
' Thus it is very much clear that the appellants had on the *basis of application from Hassan Ali accused as well as hand written statement of the then Incharge (Security) Lt. Commandar (P.N.)
Mr. Muhammad Adil Burney (duly signed and stamped) as an evidence concluded that Mr. Hassan Ali Assistant had not been found guilty of charge mentioned in the charge sheet/statement of allegation. They had rightly observed that the prosecution/complainant had not been able to prove the charge against the accused (Mr. Hassan Ali). It was held in 2002 PLC (C.S.) 1521 that:- "(a) Punjab Civil Servants (Efficiency and Disciplines) Rules, 1975--- ----Rr. 5, 6 & 7---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Inquiry proceedings---Charge-sheet--Challenge to---Petitioner was entrusted an enquiry against an employee-Petitioner conducted enquiry and submitted report to the concerned Authority--- Competent Authority instead of passing any appropriate order in regard to said inquiry, proceeded to issue charge-sheet to the petitioner whereby he was called upon to explain his conduct as to enquiry against employee---Petitioner had challenged charge-sheet against him by a constitutional petition---Validity---Petitioner had been charge-sheeted for misconducting enquiry, firstly by not consulting and collecting any record or relevant evidence having bearing on the case, secondly that petitioner had admitted before an Officer that enquiry report was not drafted by the petitioner---Two charges levelled against petitioner were pertinently directed against his conduct as Enquiry Officer, which could at the most, entail an order for de novo enquiry or report submitted in that regard could be set aside by authorized officer, bur it was nowhere provided under law to issue petitioner a charge-sheet in that regard since he had acted as a Judicial Officer and had conducted inquiry as such---Chargesheet issued to petitioner was declared by High Court to be without lawful authority and of no legal effect."
' Reliance is also placed on a judgment in appeal No,941(K)(CE)/2002 decided by a Bench of this Tribunal consisting of Mr. Justice (R) Amanullah Abbasi Chairman and Mr. Nazar Mohammad Shaikh Member, wherein the charge against the appellant was that he failed to follow established procedure of conducting enquiries while conducting the disciplinary enquiry and failed to record statement of prosecution witness before starting defendant's side, failed to allow cross examination of the defendant's witness by the prosecutor and also failed to record/examine witnesses one by one, thus he conducted improper enquiry. It was held therein that" the rules do not provide for disciplinary action against an Enquiry Officer for his failure to conduct enquiry in a proper manner The standard procedure in such cases is that the competent authority re-assigns the enquiry to another Officer to hold de nove proceedings---The proceedings against the appellant also suffered from another legal infirmity in so far as with the show-cause notice.
Appellant was not provided a copy of domestic enquiry report which had prejudiced Appellant's right. Furthermore, appellant was also not afforded personal hearing before imposing major penalty of demotion to a lower post which is negation of principle or natural justice."
' Reliance is also placed on a judgment in appeal No,920(K)(CE)/2002 decided by a Bench of this Tribunal consisting of M/s Nazar Mohammad Shaikh and Qazi Muhammad Hussain Siddiqui, Members wherein charge against the appellant was that he was appointed as Inquiry Officer vide No,MMD/Admn/Enquiry/2002/1145 dated 9-5-2002 in the disciplinary case against Mr. Ghulam Abbas Bhatti, Dozer Operator but he served Statement of allegations and Charges No,SPP/Admn/Enquiry/2002 dated 15-5-2002 upon the above accused worker without mentioning his complete particulars i,e, name, designation and department thereby creating confusion in the expeditious finalization of Enquiry which acts of gross negligence and dereliction of duty were prejudicial to good service discipline and unbecoming of an officer." The appellant therein was demoted to a lower post. The Tribunal held that "this is serious lapse which is in violation of section 24-A of General Clauses Act, 1897. The appeal was therefore accepted.
8. In view of above discussion, we accept the appeals and set aside the impugned orders of demotion of both the appellants dated 6-11-2002 and direct the Respondents to restore the appellants to their original post from the date of impugned order with all consequential benefits.
No order as to costs.
9. Copies of the judgment be sent to the parties and to the relevant quarters under registered cover under rule 21 of Service Tribunal.