' RASHID ALI MIRZA (MEMBER)---The appellant has filed this appeal under section 4 of the Service Tribunals Act, 1973 challenging the impugned orders dated 9-12-2002 whereby the penalty of reduction to Deputy Manager has been reduced to three stages lower in the time scale on his appeal dated 29-11-2002, hence this appeal praying therein to set aside order dated 9-12-2002 whereby the penalty of reduction to lower pay scale/post has been imposed upon the appellant illegally, mala fide, arbitrarily, without any justification and lawful authority and to grant any other equitable relief(s) deemed appropriate in the circumstances of the case along with costs.
2. The learned counsel for the appellant has contended that the appellant was originally appointed on contract for one year. Thereafter on his application he was interviewed and regular appointment of Medical Officer was offered to him which was equivalent to Deputy Manager. The learned Counsel further contended that three enquires were held against the appellant on the same charges of obtaining appointment on the basis of political influence. He contended that in two earlier enquires the appellant was exonerated but in the third he was penalized and was reduced in rank but on his reply to show-cause notice the penalty was converted to three stages below in time scale. He has further contended that show caused notice was not issued by the competent authority and the order of the penalty of appointment by the same person as he was not competent to issue two orders. He has further contended that the copy of Enquiry Report was not supplied to the appellant and he was also not personally heard. He has placed reliance on identical judgment of this Tribunal dated 19-7-2004 being appeals Nos.79Q to 794 and 796(K)
(CE)/2002 as also 1996 SCM R 413 and 1997 SCM R 15. He has further contended that after observing all the required formalities including interview which falsified the contention of the respondent that he obtained the appointment by using political/external influence as at the time of appointment of the appellant on regular basis in the year 1985 there was no recommendation of any party for his appointment nor there was political Government. He has contended that before imposing major penalty of reduction to lower post the appellant was not afforded an opportunity of personal hearing as required under law and the appellant has been condemned unheard which is not warranted by law. He further contended that even otherwise, the impugned order is also not sustainable in law as the appellant was appointed after observing all the formalities as regular employee with effect from 4-2-1985 whereas the Removal from Service (Special Powers)
Ordinance 2000 became applicable with effect from 27-5-2000, as such, the entire action taken on the basis of above said Ordinance is ipso facto illegal and without lawful authority. He contended that even otherwise, no inquiry, as required under the law, was conducted against the appellant and the Inquiry Officer himself acted as prosecutor by putting indiscriminating questions to the appellant as well as management witness in order to improve the evidence against the appellant, which is also not warranted by law. The action of the respondents also amounts to double jeopardy as once the appellant has been exonerated from the charges then again on the same evidence he cannot be punished as has been the position in the present case, which vitiates the entire proceedings. He contended that the appellant having been appointed regularly on the recommendation's of the Interview/Selection Committee and duly approved by the competent authority cannot be said to have got the appointment in Pakistan Steel by using extraneous influence and, as such, the very charge sheet being illegal is not sustainable in law. He contended that when the charge sheet itself is not in accordance with law, the entire action taken on the basis of illegal charge sheet stands vitiated and no action detrimental to the appellant can be taken against him on the basis of uncalled for charge sheet. He contended that at the time when the appellant was appointed there was no political government and there was Martial Law in the country and, as such, using of question of political influence at all doesn't arise, which also makes the allegations false, frivolous and self-made. He contended that under the terms of National Security Council all appointments were scrutinized and the persons so appointed were terminated on 1-2-2000 and the Appellant's case after scrutiny was cleared and the present action appears to be an after thought of the management to do away with the services of the appellant for the reasons at least not known to the appellant in which they also failed to bring any evidence against the appellant regarding the alleged misconduct. He contended that the impugned order being illegal, contrary to law, unlawful and without lawful authority and being based on surmises and conjectures of the Inquiry Officer is not sustainable in law and is liable to be quashed. He further contended that the competent authority has itself reduced the punishment from reduction in rank to stoppage of three increments for which no time has been specified which renders the impugned order as illegal and not sustainable in law apart from the fact that the authority imposing penalty has itself considered the punishment as unjustified.
3. The respondents in their parawise comments stated that the action against the appellant was in accordance with law. They stated that clear misconduct is imputed with the appellant, which fell in the ambit of definition of the Ordinance 2000. They stated that the exoneration of the appellant by Enquiry Officer/Committee had not completely absolved him from the liability of misconduct/charges on his part. The Enquiry Officer had sent his report to the Authority, who did not agree with the said report and ordered for de novo enquiry. All that was within the competence of authority as the involvement of the appellant was glaring and documented with proof. They stated that after holding de novo enquiry the truth emerged on scanario when the appellant was found guilty of the charges. They stated that the appointment of the appellant was on retainership basis, but that was behind political consideration. They stated that the appellant routed his application dated 11-12-1983 for employment is Steel Mills through Mr. Mir Ali Ahmed Talpur the then Defence Minister of Pakistan was thus exerted political influence is seeking employment in violation of the rules and procedure. They have stated that personal hearing was afforded to the appellant as is evident for Annexure-"A". They stated that the process of enquiry was launched in accordance with requisite procedure, which the appellant never questioned, during enquiry. They further stated that the definition of double jeopardy is quite distinguishable and imports no bearing in the case of appellant. They stated that the exoneration of appellant was subject to final order by the authority which orders were never passed; therefore, theory of double jeopardy will not stand with. They stated that the appellant got introduction on political consideration which is a matter of record.
The charges are firm and proved.
4. We have heard both the learned counsel for the parties and have also gone through the relevant record.
5. We have come to the conclusion that the appellant's appointment was based on the recommendations of Selection/ Interviewing Committee comprising of Senior Officers of the respondents whose recommendations were approved by the competent authority. Moreover, no proof for using political pressure by the appellant could be produced by the prosecution side in support of his claim. The allegation of misconduct against the appellant has not been proved.
Three enquiries were held against the appellant on the same charges of obtaining A appointment on the basis of political influence. In two earlier enquiries the appellant was exonerated but in the third he was penalized and was reduced in rank but on his reply to show-cause notice the penalty was converted to three stages below in time scale. The show-cause notice was not issued by the competent authority and after observing all the required formalities including interview which falsified the contention of the respondent that the appellant obtained the appointment by using political/external influence at the time of his appointment on regular basis in the year 1985. He has produced such documentary proof at Exh. A-3 along with Memo. Of Appeal. The Respondents have not produced any recommendation of any part for his appointment. The action of the respondents also amounts to double jeopardy as once the appellant had been exonerated from the charges then again on the same evidence he cannot be punished as has been the position in the present case which vitiates the entire proceedings. The appellant have been appointed regularly on the recommendations of the Interview/Selection Committee and duly approved by the competent authority cannot be said to have got the appointment in Pakistan Steel Mills by using extraneous influence and, as such, the very charge sheet being illegal is not sustainable in law hence, the entire action taken on the basis of illegal charge sheet-stands vitiated and no action detrimental to the appellant can be taken against him on the basis of uncalled for charge-sheet. The appellant has successfully completely his probation and his appointment was disputed after more than 15 years which is not legally tenable. It is clear from the above facts that the appellant has been deliberately and dishonestly been alleged by the respondents for using political pressure and the adverse order was pre-planned, this is illegal and bad in law, therefore, decision of the competent authority imposing on the appellant is illegal void ab initio. Reliance is placed on identical judgment of this Tribunal dated 19-4-2004 being Appeal Nos.790 to 794 and 796(K)(CE)/2002 as also 1996 SCM R 413 and 1997 SCM R 15.