QAZI MUHAMMAD HUSSAIN SIDDIQUI, MEMBER:- - Having passed his BS (Electrical) and ME (Electrical Engineering) from the United States. Of America, the Appellant joined the Pakistan Steel Mils Corporation (hereinafter called the Pak. Steel) in December, 1980 as Superintending Engineer. The Appellant gradually rose to the position of General Manager (PSE-V-equivalent to BS- 20) in September, 1998. He had an unblemished service record, but in consequence of disciplinary proceedings, initiated against him on the bases of three show-cause notices/charge sheet issued to him separately on (1) 5.6.2000, (2) 18.7.2000 and (3)
18.7.2000, he was reduced to two stages lower in time scale vide order dated 16.10.2002, demoted to the post of Deputy General Manager vide order dated 15.10.2002 and removed from service vide order dated 16.10.2002 respectively. His departmental appeals against the said three orders were rejected by the competent authority, vide single order dated 27.12.2002 issued by Noor A. Memon for Incharge (A&P).
2. Being aggrieved by the three impugned orders and the order of rejection of his departmental appeal, the Appellant filed three separate appeals (mentioned in the title) on 11.1.2003, praying that the impugned orders be set-aside and he be restored to his original position/reinstated in service with all consequential benefits.
3. The learned counsel for the parties argued all the three appeals together, as these- were based on connected/identical facts and law. We have therefore, decided to dispose of these three appeals together by a single common judgment.
Appeal No. 14(K)CE/2003.
4. The disciplinary proceedings were initiated against the Appellant with the issuance of following charge sheet dated 5.6.2000:- "It has been reported that you took away fish weighing 65 Kgs costing Rs. 1950,00 without payment during cleaning of 100 MG Water Reservoirs from 14th October, 1999 to 29th February, 2000 which was being sold to other employees of Pakistan Steel.
2. Your above act of dishonesty besides being subversive of discipline amounts to Misconduct under PSOSR&R
3. You are hereby called upon to explain your conduct in writing within 7 days of the receipt of this Charge Sheet as to why disciplinary action should not be taken against you failing which it will be assumed that you have nothing to offer in your defence and have accepted the charge.
It Col. Syed Akbar Hussain (Retd).
Director (A&P)"
The Appellant replied the charge sheet on 15.6.2000 wherein he denied the allegations against him.
Consequently, a departmental inquiry was held against him by M. Haroon Khan,. Director (TS) as inquiry officer. During the inquiry, the Appellate made a lengthy statement in writing (pp-27 to 41- annexures A/3 to A/10), He again denied the allegations against him with facts and figures. From the inquiry notice dated 5.9.2002 (annexure A/1 i) by Dr. N. I. Khawaja, Director (Prod), the Appellant was informed that previous inquiry held by M. Haroon Khan had since not been conducted properly, the competent authority had ordered a de novo inquiry and appointed him as inquiry officer for conducting the inquiry into the charges levelled against him vide charge sheet No. A&P/Encell/2000-1400 dated 6.6.2000 (it is same charge sheet which was issued by Director (A&P), but date is incorrectly mentioned as 6.6.2000 instead of 5.6.2000). The Appellant again submitted reply to the charge sheet and the lengthy statement in writing before Dr. N.1. Khowaja, Inquiry Officer (Annexure A/12) denying the charges against him and alleging that he was falsely involved to cover up substantive crimes surfaced as a result of Internal Audit on the affairs of BWS. In this inquiry report dated 14.10.2002, the inquiry officer, however, found the Appellant guilty of the charges. On the basis of such report, the Appellant was awarded the penalty of reduction to two stages lower in the time scale, allegedly, after personal hearing granted to him by the competent authority.
5. The Respondents contested the appeal by filing their written comments wherein they justified the penalty imposed upon the Appellant.
6. We have heard the learned counsel for the parties and perused the record carefully. We have also perused the authorities cited at the bar.
7. The learned counsel for the Appellant forcefully assailed the disciplinary proceedings against the Appellant taken the Respondents, on legal grounds as well as on merits. He argued that the disciplinary proceedings against the Appellant had not been taken in accordance with the provisions of Removal from Service (Special Powers) Ordinance, 2000 (hereinafter called the Removal Ordinance 2000), which was prevalent law at the relevant time, overriding all other laws relating to disciplinary proceedings. He point out that under section-5 of-the Removal Ordinance, the competent authority was required to pass an order for holding by an inquiry officer or the inquiry committee specifying the charges and statements of allegations therein which had to be communicated to the accused by the inquiry committee or the inquiry officer. .The learned counsel argued that in the instant case no such order was passed by the competent authority, which, in the case of the Appellant, was the Chief Executive of Pakistan, as the Appellant was an officer of PSE-V equivalent of BPS-20, but the charge sheet dated 5.6.2Q00 was issued by the Director (A&P) without any reference to the competent authority or the relevant law (Removal Ordinance 2000) under which a charge sheet had to be issued. The requisite statement of allegations was also not appended with the charge Sheet; that the inquiry into the charges against the Appellant was held by Haroon Khan, Director (TS)/Enquiry Officer, but his report, which the Appellant had learnt, was favourable to him, was shelved and a copy thereof was not supplied to the Appellant; that no cogent reasons was given for dispensing with the inquiry proceedings/inquiry report of Haroon Khan and initiating de novo proceedings on the same charge sheet, as mentioned above, after a period of about two years and three months, which depicted the mindset of the constitutional concerned authorities to penalize the Appellant against whom the charges were not proved either in the inquiry by Haroon Khan or subsequent inquiry by dr. N. I. Khawaja: that the Respondents knew that the Appellant being an officer of equivalent BPS-20, could only be penalized by the Chief Executive Pakistan/Prime Minister and that no penalty could be imposed upon him by the Chairman, Pakistani Steel, who was the competent authority respect of employees of BPS- 16 to 19 and not in respect of Officer of BPS-20; that to obviate such handicap, the Respondents resorted to an ingenious device of imposing on the Appellant punishment of demotion from the post of General Manager to Deputy General Manager, one day earlier i.e. On 15.10.2002 so that the penalty of reduction to one stage lower i.e. Demotion to the post of D.G.M. Could be imposed upon the Appellant by the Chairman, Pakistan steel, as being the competent authority for employees of BPS- 16 to 19 forgetting that the post of DGM was also equivalent to BPS-20, The learned counsel finally argued that the entire disciplinary proceedings against the Appellant had been vitiated and these were ab-initio void and nullity in the eye of law because the disciplinary proceedings against him were not initiated by the competent authority viz: the Chief Executive/Prime Minister/Secretary of the Ministry of Production, Government of Pakistan, that the report of the inquiry officer was not supplied to the Appellant nor the second show-cause notice was issued to him and he was not given an opportunity of personal hearing; (period of penalty not specified-FR-29).
8. The Learned Counsel for the Appellant also objected to the competency of Dr. N. I. Khawaja to act as inquiry officer against the Appellant, as Dr. N. I. Khawaja, being .An officer of equivalent grade to that of the Appellant, was not competent to hold inquiry against the Appellant and for that reason he should have refused to conduct inquiry against the Appellant; nevertheless, he conducted the inquiry and to appease the then alleged competent authority i. e. The Chairman of Pakistan Steel, he pronounced the Appellant guilty of the charges although the entire evidence brought on record in the inquiry was not cogent and convincing and was contradictory and not sufficient by any stretch of imagination to hold the Appellant guilty of the charges. The learned counsel argued that Liaquat Ali, who was Supervisor of Bahria Foundation and not an employee of Pakistan Steel or Gulshan-e-Hadeed Committee or Bulk Water Supply Department, responsible for cleaning of the water reservoirs and issuing of the fish taken out from there, was the main and pivotal witness against the Appellant; that said Liaquat Ali was not sure on what date the Appellant had taken away the 64 kilograms of fish. As per other evidence in the inquiry the alleged incident pertained to 17.5.1999, but the proceedings against the Appellant for taking away 65 kilograms fish without making any payment was initiated on the basis of a statement of Liaquat Ali, made by him before Major Niazi of Security Department of Pakistan Steel on 3.4.2000 i.e. After more than four months, itself spoke of involving the Appellant in fabricated charges at the instance of officers of Bulk Water Supply Department against whose illegal activities/demands the Appellant had made a report to the concerned authorities, that there was no explanation for making such a statement by Liaquat Ali after a delay of four months; that Liaquat Ali had failed to produce any reliable documentary evidence or the copy of the gate pass under which fish was allegedly taken away by the Appellant; that these documents were prepared on 30.7.2002 by Nabi Bux, DOH, BWS) on 3.4.2000 (by Liaquat Ali) and on 19.11.1999 (by DGM Jawed Akhtar) which were contradictory; that Javed Akhtar prepared the document only two days after the alleged incident of 13.11.1999 but admitted it has not been mentioned in it; that the Appellant had taken 65 KG fish on that day without payment of price thereof or that any amount had been outstanding against the Appellant; that the evidence of Liaquat Ali was also contradictory with regard to the rate of the fish and the amount outstanding against the Appellant as the rate of fish, had been described in the inquiry as Rs. 25/- and. Rs. 30/- whereas, the amount outstanding against the Appellant was said to be Rs. 1950/- and then Rs.
1624/-; that there was no evidence to show that during the period of four months, Liaquat Ali had ever demanded from the Appellant the alleged price of the fish outstanding against the Appellant; that Liaquat Ali had stated in the inquiry to have apprised Deputy General Manager Javed Akhtar 65 kilogram fish taken away by the Appellant without making payment, but the Deputy General Manager Jawed Akhtar denied to have taken away fish on 17,11.1999, as alleged in the inquiry proceedings; that the charges against the Appellant could not be said to have been proved against him and the could not be held guilty of the charges but the inquiry officer held him guilty of the charges just to appease the then Chairman of Pakistan Steel. The impugned orders were, therefore, liable to be set- aside. In support of his arguments, the Learned Counsel for the Appellant relied on 2000 PLC (CS) 1078, 1989 SCMR 551, 2000 PLC (CS) 270, 1993 PLC (CS) 308, 999 TD (Service)
21, 2001 PLC (CS) 270, PLD 2002 SC 980, 2001 PLC (CS) 591, 2001 SCMR 934, 2001 PSC 50, 20O2 SCMR 1083, 1986 PLC (CS) 419, 2001 PLC (CS) 270, PLJ 2002 SC 1059, 1991 PLC (CS) 497, PLD 1983 SC AJK 95, 1992 SCMR 1420, 1986 SCMR 1137, PLD 1991 LAH 230, PLD 1969 SC 407, 1987 PLC (CS) 875, 1992 PLC
(CS) 43, PLD 1981 SC 176, 1982 PLC (CS) 203, 1984 PLC (CS) 1401, 1985 PLC (CS) 478 & 1108, 1990 PLC
(CS) 835, 1991 PLC (CS) 706, 1992 PLC (CS) 678, PLJ 1998 TRC (Service) 238, 1999 PLC (CS) 592, 2001 PLC (CS) 296, 2000 PLC (CS) 857, PLJ 2000 LAH 163, 1999 PLC (CS) 1539, PLD 1994 SC 222, 2002 SCMR 900, 1984 SCMR 451, PLD 1981 SC 176, PLD 1980 SC 310, 1988 PLC (CS) 945, 1988 SCMR 691 and 2000 SCMR 1376.
9. The Learned Counsel for the Respondents merely relied on the written comment wherein penalty of reduction of the Appellant to two stages lower in time scale was justified. He contended that the said penalty was imposed upon the Appellant by the competent authority in consequence of a full-fledged departmental inquiry giving the Appellant full chance to cross examine the witness and put up his defence as after hearing the Appellant in person, therefore, no illegality was committed in the disciplinary proceedings against the Appellant.
10. We have carefully considered the arguments of both sides and examined the record of the appeal including the lengthy inquiry proceedings and inquiry report.
We find great force in the arguments of the Learned Counsel or the Appellant. The inquiry report of Haroon Khan, said to be favourable to the Appellant, was hushed up without any cogent reason and the inquiry report has not been brought on record by the Respondents, perhaps deliberately, lest the case of the Respondents against the Appellant should become weak. Fantastically, the reason for de novo proceedings, as stated in para-8 of the written comments, was that de novo inquiry was ordered by the competent authority due to difference in the opinion/findings of the members of the inquiry committee. This is dramatically opposed to the recital in the inquiry notice of Dr. N. I. Khawaja dated 5.9.2002 to the effect that the inquiry assigned to M. Haroon Khan, Director (TS)/Enquiry Officer had not been conducted properly, the holding of de 'novo inquiry against the Appellant after more than two years without any cogent reasons smacks of some foul play against the Appellant. This is to be seen in context of the belated statement of Liaquat Ali against the Appellant before the Security Officer and his contradictory evidence during the lengthy inquiry not supported by any reliable documentary evidence. The allegations of taking away the fish by the Appellant without any payment was also investigated by Special Monitoring Team, as argued by the Learned Counsel for the Appellant. Its report/letter dated 8.9.2000 is reproduced as under:- Headquarters Cantonment 5 Corps, Karachi.
Telephone: Military-5710 21401-SMTs 8 September, 2000 To: TSO to the Chairman, Pakistan Steel Karachi.
Information PMCS C/O HQ Karachi Log Area.
Subject: Public Complaint-General Manager Mr. Muzaffar-ul-Islam.
Your letter number TSO/CH/SM/T/7933 dated 9 August 2000 refers.
1. Perusal of the case and interview with Mr. Liaquat Ali, Supervisor Bahria Security and other relevant persons revealed that the charges against Mr. Muzaffar-ul-Islam, General Manager BWS seems to be concocted and based on malice. Mr. Liaquat Ali can not be made responsible for collection of sale proceeds and its deposition as he was not an employee of Pakistan Steel, It appears that statement of Mr. Liaquat Ali is only a cover story as neither he nor any official/employee of BWS ever reported the matter under discussion to then GM. Infact it appears that the case was initiated by the elements who were involved in corruption in BWS department to cover the misdeed to some under commands of officer in question which were surfaced during the course of Internal Audit on the affairs of BWS. Mr. Muzaffar-ul-Islam stated that he on a number of occasions apprised the responsible persons at Pakistan Steel about the wrong doings of some of his sub-ordinates officers. Interestingly till this time no meaningful action has been taken against the real corrupt officials of the BWS department. On the other hand start of 'fish case' can be seen as a sequel to officer's effort to stall malpractices in his department.
2. Furthermore, had the officer been at fault, he could not have initiated case for audit of sale proceeds of fish. Ironically, this important point was neglected by the authorities at Pakistan Steel and on the contrast, as reported by the officer that he has been harassed at different levels and on different grounds.
3. Foregoing in view, it is recommended that case of officer be re-considered at appropriate level by taking into account facts on ground and missing links and justice be done which so far has been denied to the officer.
Sd/- Lieutenant Colonel Officer Incharge Special Monitoring Team (Hammad Ullah Usmani)".
On the note of the Director (S&P) dated 11.7.2000, on 13.7.2000, the Chairman, ordered as under:- "Chairman:-
12. If the case is pressed, the officer may have to face serious consequences. He may be left of with a warning 13. His VRF option stands approved already. This may please be notified on 14th July, 2000. It has been delayed enough already.
Sd /- 13/7 Chairman"
Later on, in connection with the above letter of the Army Monitoring Team, the TSO to the Chairman, vide his letter dated 13.9.2000 submitted following note to the chairman of Pakistan Steel:- "Mr. Muzaffar-UI-Islam, General Manager had made a public complaint to Army Monitoring Team regarding implication in a disciplinary case regarding sale/purchase of some quantity of fish retrieved from 110 MG Reservoir during its cleaning operation. The position was explained vide our letter NO. TSO/CH/SMT/7933 dated 9th August, 2000.
2. Now the Army Monitoring Team after carrying out their own investigations have recommended that , the case be reconsidered/reviewed at appropriate level and the justice be done to the officer. (Annex. A).
3. Submitted for advice please.
Sd/- (Wasif Mehmood)
TSO to Chairman."
The order of the Chairman on it was as under:- "4. In view of the recommendation of the army monitoring team, the fish case may be considered closed.
5. As for acceptance of officers; VRF, I have already conveyed instructions on the personal file of Mr. Muzaffar ul Islam. Please confirm , that acceptance of VRF has been notified as already ordered.
Sd/- 13/9 Chairman
12. The above report of the Monitoring Team does support the case of the Appellant. The record shows that for more than two years following the inquiry report of Haroon Khan (not brought on record) and the above report of the Monitoring Team, no action was taken against the Appellant, but for no plausible reasons the fish matter against the Appellant was resuscitated the charges and allegations against him.
13. In our opinion, in view of the earlier inquiry by ?Haroon Khan, the above report of the Special Monitoring Team and the orders of the Chairman Pakistan Steel, grilling the Appellant twice over years was not justified. So also the penalty imposed upon the Appellant mainly on the basis of the evidence of Liaquat Ali, was also not justified. On the other hand, grave legal infirmities, pointed out by the Learned Counsel for the Appellant in his arguments, which would not be rebutted by the Respondents, also cut at the very root of the case against the Appellant. After departmental inquiry, second show-cause notice had to be issued to the Appellant alongwith a copy of the inquiry report and before imposing any penalty upon the Appellant he had to be heard in person, but the record shows that the Respondents had not supplied the copy of the inquiry report or issued second show-cause notice to the Appellant. So far as the personal hearing is concerned, the Appellant had, in reply to the charge sheet, requested for personal hearing, but he alleged that he was not personally heard. The impugned order dated 16.10.2002 shows that it was passed by the competent authority after granting personal hearing to the Appellant by the competent authority to explain his conduct. The statement of the Appellant is supported by his affidavit, but this was not rebutted by any counter-affidavit, which was necessary in view of the assertions of Appellant to that effect. Apart from this, we find that the inquiry report was submitted on 14.10.2002 and the impugned order was passed on 16.10.2002 and the impugned order was passed on 16,10.2002. There is nothing on -record to show if, between these dates, the Appellant was called by the competent authority for personal hearing.
14. When all is said, we must further state that the time when the disciplinary proceedings had been initiated against the Appellant, he was an officer of BPS-20 and, therefore, disciplinary proceedings had to be initiated against him at the instance or order of the Chairman Pakistan Steel, who was not the competent authority for an officer equivalent of BPS-20, as such, initiating disciplinary proceedings by order of Chairman Pakistan Steel, and not by the Chief Executive (subsequently Prime Minister), who was the competent authority, was ab-initio void, illegal and nullity in the eyes of law.
15. In view of the above-mentioned factual and legal position, we are of the considered view that the impugned order of reduction of the Appellant to two stages lower in the time scale imposed upon the Appellant (without assigning duration of the penalty as required under FR-29) and the combined order of rejection of three departmental appeals of the Appellant, without assigning any reason therefore, cannot be sustained. We therefore, allow this appeal, set-aside the impugned order dated 16.10.2002 and order of rejection of departmental appeal dated 27/12/2002 and restore the original stage of time scale of the Appellant. (It may be pointed out here that the Appellant was holding a post of General Manager till 15.10.2002, when by imposing penalty of demotion on him in appeal No. 13(k) CS/2002 he was demoted to the post of Deputy General Manager; hence, in this appeal at the time of Passing the order he had become Deputy General Manager, a day prior to the passing of the impugned order). The appellant will be entitled to the back benefits, if any.
16. No order as to costs.
APPEAL NO. 13(K) (CE)/2003.
On 18.7.2002, a statement of allegations and charges under section-3 (1)(b) of the Removal Ordinance, containing the following allegations and charges was issued to the Appellant by inquiry officer Dr. N.1. Khawaja, Director (Prod):- You submitted option for voluntary Retirement Facility on 23.6.2000, at your own, through proper channel i.e. Director (TS) which was approved by the Competent Authority on 26.6.2000.
You colluded with the then Director (A&P), and stopped issuance of notification regarding acceptance of your VRF option.
The then Director (S&P), in collusion with you pleaded your retention in service and withdrawal of your option for VRF even without any formal request from your side.
On query from Chairman on 28.7.2000 about non-availability of formal request from you regarding withdrawal of VRF option, it was added the same day i.e. 28.7.2000 by passing Director concerned i.e. Director (T.S.) which indicates your collusion with Ex-Director (A&P).
Your request for withdrawal of VRF option was not acceded to by the Competent Authority on the basis of comments/recommendations of Director (T.S.) and Director (Production) to the effect that there was no possibility of utilizing his services in both Directorates. Even this decision of the Competent Authority was maneuvered and not implemented by the Ex- Director (A&P) who was acting in collusion with you.
Your above acts of flouting the lawful orders of the Competent Authority and manipulation in complicity and collusion with Ex-Director (A&P) for your personal gain are prejudicial to good service discipline and un-becoming of an officer."
In his lengthy reply to the allegations and charges dated 25.7.2002, the Appellant denied the above-mentioned allegations/charges except the allegation of sending the request of withdrawal of VRF option bypassing the Director concerned i.e. Director (TS) (as mentioned in allegation/charges No. 4).
2. In view of the denial of the allegations/charges by the Appellant, a departmental inquiry was held by inquiry officer Dr. N.1. Khawaja, wherein G.S. Khatian, Deputy Manager acted as prosecutor and the Appellant was also examined. No other witness was examined, In the inquiry report dated 27.8.2002, in para-F(ii), it was stated as under:- "........ However from the statements of both sides and their cross examinations vice versa the collusion of the Defendant could not have been established."
Again under para-F (iv), it was stated that, "However as far maneuvering of non implementing the decision of the Competent Authority is concerned, it was the Ex. Director (A&P) who did not comply with the said order of competent authority, the collusion and influence of Ex. Director (A&P) by the Defendant could not be established."
Under para-G of the inquiry report, the findings of the inquiry officer were as under:- "(i) From the above-mentioned discussions, the statement of the Defendant and Prosecutor and their cross examinations vice verse, it is found that the Defendant had submitted his request for withdrawal of his VRF opinion directly to the then Director (A&P), thus by passed the channel of command i.e. Did not route his application through his then concerned Director.
(ii) The submission of his request for withdrawal of VRF on 28.7.2000 i.e. The same day of query of the Chairman indicated his contact with Ex. Director (A&P) but it could not be established whether the then Director (A&P) had advised him for said submission of application or he (defendant) had contacted him (Director. A&P)."
Under Para-H, the conclusion was as under:- "After going through the record of the case made available in this enquiry and examination of the Statement of the Prosecuting Officer, and the Defendant in the matter it is concluded that the Defendant Mr. Muhammad Muzaffar Islam, General Manager (ECD/MMD) is guilty of the charge of bypassing his concerned Director. However in view of above mentioned circumstances a lenient view is suggested."
3. On the basis of inquiry report, a show-cause notice dated 30.8.2002 for imposing major penalty upon the Appellant was issued to him. The Appellant replied such show-cause notice on 9.9.2002.
Then, after granting personal hearing to him, a penalty of demotion to the post of Deputy General Manager (PSE-V) was imposed upon the Appellant vide Memorandum dated 15.10.2002.
4. The Appellant made a representation/departmental appeal against order of his demotion to the Secretary, Ministry of Industries and Production, a Government of Pakistan, Islamabad. His appeal having been rejected, he filed the present appeal, as mentioned above.
5. We have heard the learned counsel for the parties and perused the record carefully.
6: The Learned Counsel for the Appellant assailed the impugned orders on legal as well as factual grounds. He argued that the Appellant being an officer of management cadre-ill (equivalent to BPS-20) could not have been proceeded against by the Chairman, Pakistan Steel (Respondent No. 2) nor the said Respondent was competent to impose any penalty upon the Appellant as he was not competent authority for initiating disciplinary proceedings against an officer of M-III/BPS-20.
The learned counsel also contended that Dr. n. I. Khawaja, who was equivalent officer of the Appellant, could not act as inquiry officer against the Appellant, therefore, on both counts the impugned orders were ab-initio void and nullity in the eyes of law and were liable to be set aside.
The learned counsel further argued that the Chairman of Pakistan Steel, the Respondent No. 2, was also not competent to hold any personal hearing in the matter, as he was not the competent authority. The learned counsel also criticized the rejection of the three appeals of the Appellant without assigning any reasons, In support of his legal objections, the Learned Counsel for the Appellant cited a number of authorities, which have already been mentioned above.
7. On merits, Learned Counsel for the Appellant argued that there was no evidence against the Appellant of any collusion with the Director (A&P); that there was no evidence against the Appellant of maneuvering non- implementation of the order of the competent authority of his retirement under VRF. As to the allegation of by passing Director (TS) and sending the application of withdrawal directly to the Director (A&P), the learned counsel argued that in view of what had happened to him by involving him in a fresh case of taking away fish and not making payment therefore, he had apprehension and no hope of any goodness from the Director (TS), he has sent the application for withdrawal directly to the Director (A&P), who had been dealing with the VRF matters and also for the reason that by that time it was not known to the Appellant that any order had been passed by the competent authority on his application for VRF. The learned counsel submitted that bypassing channel in sending the withdrawal application did not cause any loss to the Pakistan Steel or harassm ent to any one; hence, such a procedural lapse for which the Appellant had submitted plausible reasons, did not merit major punishment of demotion from the post of General Manager to the post of Deputy General Manager. The learned counsel stated that it was an extremely minor sort of misconduct for which the competent authority could, at the most, warn the Appellant to be careful in future. The learned counsel contended that even a minor punishment could not be imposed upon the Appellant by any incompetent authority as had been done in the case of Appellant, as such, the impugned order of harsh punishment of demotion to lower post, not commensurate with the act of the Appellant, was not justified and it was liable to be set-aside.
8. The Learned Counsel for the Respondents rebutted the arguments of the Learned Counsel for the Appellant by the stating that the Appellant had been penalized by holding disciplinary proceedings against him strictly in accordance with law observing all the necessary legal formalities, giving chance to the Appellant to defend himself in writing as well as orally in person; hence, the penalty imposed upon the Appellant was justified.
9. On careful consideration of the material on record and after hearing the counsel for the parties, we have come to the conclusion that the major penalty of demotion imposed upon the Appellant on minor charge of bypassing the normal channel by submitting his application for withdrawal of the VRF option, which had not caused any loss to the Respondent-Pakistan Steel or harassment to any one, was not justified. Moreso for the reasons that the Appellant had explicitly explained the reasons for submitting his application for withdrawal of VRF option to the Director (A&P) bypassing the normal channel of submitting it through the Director (TS). His VRF option had already been accepted by the competent authority on 8.9.2000 which was even not. Known to the Appellant, who had made the application for withdrawal of option subsequently on 28.7.2000. In spite of acceptance of the option of VRF, the same was not notified and the Appellant was allowed to continue in service thereafter by the orders of the competent authority and in that the Appellant had not colluded with any one or influenced any authority.
10. Having contact with any superior officer does not come within the purview of any misconduct especially when it was not proved that there was any collusion in between the two officers for any illegal act or maneuvering anything against the orders of superior authorities. There is no evidence on record against the Appellant of acting against the orders of the superior authorities in collusion with Director (A&F). Strangely enough there is nothing in writing or oral showing that any explanation whatsoever of the concerned Director (A&P) was ever called by the competent authority in connection with his alleged collusion with the Appellant. On the other hand, the record shows that on comments and recommendation called by the competent authority (Chairman Pakistan Steel), the Director (A&P) had 'advocated the case of th$ Appellant' for retaining him in service. There could be no reason for taking the said Director (A&P) to task for expressing his true and candid opinion about an officer i.e. Appellant. The VRF retirement order had already been passed against the Appellant, but it was not implemented not due to any influence or- collusion of the Appellant. On the other hand, the Appellant was allowed to continue in job on the orders of the concerned authorities.
11. Graver charge of bypassing the channel was considered by the Hon'ble Supreme Court in the un-reported judgment dated 30.9.2005 passed in Civil Petition No. 637-K of 2005 (Miss. Rashida Khatoon vs. The Secy. Ministry of Industries and Production and others). Rashida Khatoon, the petitioner in that case, was proceeded against for the charge of indiscipline and conducts unbecoming of a good officer was under:- "As a result of policy decision you were allotted family accommodation in Steel Town alongwith other officers of Pakistan Steel. You, however, did not comply with the law full orders and submitted a petition dated 28.12.2001 addressed to the Chairman, Pakistan Steel directly leveling therein vexatious and frivolous allegations against Management instead of giving any valid reasons for your not shifting to Steel Town.
Your above acts are prejudicial to good service discipline and unbecoming of an officer."
The letter, addressed by the petitioner to the Chairman, Pakistan Steel, was as under:- "2. Sir it is pertinent to trace the background and the circumstances, .Resulting in the issuance of this letter. Through out my service of 21 years in Pakistan Steel, I always earned outstanding reports and very kind remarks from all the senior officers, both reporting and countersigning. However, in the calendar year 2000, I incurred the displeasure of Mrs. Naureen Farooque, a primary school teacher of grade-v, posted as Principle, Mashal Secondary School, who possesses deep influence on the competent authority, by not recommending her case for promotion, keeping in the view the facts available on the file. The reaction to this was so violent, that an advisory entry was made in my ACR for the year 2000 by the Chairman, inspire of the fact that the highest grading was given to me by both the reporting officers, under whom I had the honour to work during the year."
12. As a result of disciplinary proceedings major penalty of dismissal was imposed upon the petitioner Rashida Khatoon, which was modified by the Service Tribunal into reduction to lower rank but the Hon'ble Supreme Court allowed the appeal of the petitioner and set- aside the penalty of her reduction to lower rank holding as under:- "6. The act of a person which is prejudicial to the good order or service discipline or unbecoming of an officer and gentleman, is definitely a misconduct but mere sending the representation by a subordinate directly to a Senor officer is not as such an act which may be treated prejudicial to good order of service discipline or unbecoming of a good officer and a gentleman. The perusal of record would show that the petitioner a junior officer with the intention to bring her grievance to the notice of concerned authorities made a representation directly to the Chairman with the expectation of an appropriate relief and we having . Perused the letter in question, have not been able to find out anything objectionable in the language used therein to be treated insulting or derogatory against the senior officers constituting an act of indiscipline or of unbecoming of a good officer in terms of the definition of misconduct rather the initiation of action against the petitioner on such a ground would create an impression that she was victimized due to the personal annoyance."
Under the Further held as under:- "7. In The light of the foregoing reasons, we are constrained to hold that filing of such a representation to bring to the notice of higher authorities the personal problem being faced by the petitioner would not be ipso fact termed as misconduct................... "
Considered in the light of the above-mentioned judgment of the Hon'ble Supreme Court, the action of the Appellant, for the reasons mentioned above, appears to us to be innocuous not meriting a harsh penalty of demotion to the post of Deputy General Manager. Ordinarily, in such a case like that of the Appellant a minor penalty of censure would have been sufficient to serve the ends of justice, but even such penalty could not have been imposed upon the -Appellant incompetently by the Chairman of Pakistan Steel in view of grave procedural lapses pointed out above. As such, we allow the appeal, set-aside the impugned order of demotion of the Appellant to the post Of Deputy General Manage fr6m the post of General Manager. Consequently, we direct the Respondents to restore the Appellant to the post of General Manager. The Appellant will be entitled to all the consequential benefits.
APPEAL NO. 12(K) CE/2003.
1. On 18.7.2002, a statement of allegations and charges under section-3 (1)(b) of the Removal Ordinance, containing the following .Allegations and charges was issued to the Appellant by inquiry officer Dr. N.1. Khawaja, Director (Prod);-- You submitted a note dated 21.12.2000 to the then Director (A&P) alleging therein that your personal file was suspected to be tampered with and the same may be kept in safe custody.
You submitted the above note directly to the then Director (A&P) whereas your were on the strength of .Production Directorate thus you by passed the channel of command in violation of instructions and committed breach of service discipline.
As a result of this act on your part it appears from the record now retrieved from MOIP, that - all correspondence relating to your acts and omission was kept un-auctioned in the office of Ex- Director (A&P) in connivance with the latter and the access to relevant documents remained denied to Pakistan Steel.
Notification of your retirement of 9th September, 2000 was prevented by your collusion with Ex- Director (A&P) to-date, thus causing an un-warranted financial loss equal to your salary from 8th September, 2000 to-date.
Your above acts of by-passing the known channel of command and expressing unfounded apprehensions keeping all actions on account of your acts and omissions suspended and causing financial loss to Corporation in connivance with Ex-Director (A&P) are prejudicial to good service discipline and un-becoming of an officer."
In his lengthy reply to the allegations and charges dated 25.7.2002, the Appellant denied the above-mentioned allegations/charges except the allegation of submitting a note dated 21.2.2000 directly to the then Director (A&P) alleging therein that his personal file was suspected to be tampered, bypassing the known channel of command of the Director concerned i.e. Director (TS).
2. In view of the denial of the allegation/charges by the Appellant, a departmental inquiry was held by inquiry officer Dr. N. I. Khawaja, wherein G.B. Khatian, Deputy Manager acted as prosecutor and the Appellant was also examined. No other witness was examined.
3. On the basis of inquiry report, a show-cause notice dated 30.8.2002 for imposing major penalty upon the Appellant was issued to him. The Appellant replied such show-cause notice on 9.9.2002.
Then, after granting personal hearing to him, a penalty of removal from service was imposed upon the Appellant under the Removal Ordinance 2000 vide Memorandum dated 16.10.2002.
4. The Appellant made a representation/departmental appeal against order of his demotion to the Secretary, Ministry of Industries and Production, Government of Pakistan, Islamabad. His appeal having been rejected, he filed the present appeal, as mentioned above.
5. We have heard the learned counsel for the parties and perused the record carefully.
6. In his arguments, the Learned Counsel for the Appellant raised the same legal objections about the competent authority, about competence of Dr. N.1. Khawaja for acting as the inquiry officer, the rejection of the departmental appeal of the Appellant without assigning any reasons and about non-examining any witness besides the prosecutor in the support of the allegations against the Appellant. About sending a note dated 21.12.2000 to the then Director (A&P) bypassing the normal channel, the Learned Counsel for the Appellant argued that in view of involving the Appellant falsely in the case of taking away fish and nor paying the price thereof, the Appellant had a genuine apprehension of some bunglings/mischief in case of withdrawal of his VRF option about which inspire of lapse of considerable time, he was unaware of any decision taken by the authorities thereon; that the Appellant had sent note in question directly to the Director (A&P) for the reason that the said officer had been dealing with the VRF matters and was also the custodian of the files of the officers; that for a genuine apprehension the note in question, sent in good faith, could not be made basis of imposing a harsh penalty of removal from service upon the Appellant; that in view of the extremely plausible explanation of the Appellant even minor penalty of any kind also could not be imposed upon the Appellant. The learned counsel further argued that Appellant was, in. No way, in collusion with the Ex-Director (A&P), as alleged in charge No. 3. The learned counsel further argued that the relevant record was available with the Director (A&P) and it was taken away by the Special Monitoring Team, but there is nothing on record to show how the record of the Appellant was sent to the Ministry of Industries and Production (MOIP) and how it was retrieved from there. The learned counsel contended that the Appellant had not caused an unwarranted financial loss to the Pakistan Steel, as alleged in charge No. 4; that the Appellant had not, in any way, acted in manner prejudicial to good service discipline and unbecoming of an officer; the learned counsel pointed out that in the inquiry report in para-G(ii), the inquiry officer had clearly stated that the Appellant had not colluded with Director (A&P) and his finding was only to the effect of bypassing the normal channel by the Appellant as a result of which the Director (A&P) allegedly kept the Appellant's documents with him until these were received from the MOIP and access to such documents remained denied to the Pakistan Steel due to which subsequent actions in the matter remained suspended; that no explanation whatsoever was called from the Director (A&P) for denying the access to Pakistan Steel to such documents of the Appellant.
7. The Learned Counsel for the Respondents rebutted the arguments of the Learned Counsel for the Appellant by stating that the Appellant had been penalized by holding disciplinary proceedings against him strictly in accordance with law observing all the necessary legal formalities, giving chance to the Appellant to defend himself in writing as well as orally in person; hence, the penalty imposed upon the Appellant was justified.
8. We have carefully considered the arguments of both sides and also perused the authorities.
9. The findings and conclusion of the inquiry officer, as mentioned in the inquiry report dated 29.8.2002, were as under:- "Findings:- From the above mentioned discussion, statements of the Defendant and Prosecuting Officer . And their cross examination vice verse and the documents and papers submitted, in inquiry, it is found that:-
(a) The Defendant conveyed directly, i.e. By-passing his immediate Director, to the then Director (A&P) his apprehension of tampering of his P/file. However, he did not identify the name of any person.
(b) From the above discussion it is also inferred that the Defendant had, moved the said note on the instructions of the then Director (A&P) which were communicated to him by the DGM working at that time under the then Director (A&P). The then Director (A&P) took action on his (Defendant's) note and kept his (Defendant's) documents with him, until they were received from MOIP. As a result, the access of Pakistan Steel concerned officials to the documents in question remained denied 'thus subsequent actins in the matter remained suspended.
CONCLUSIONS After going through the record made available in this enquiry and examination of the statement of the Prosecuting Officer and the Defendant in the matter it is concluded that the Defendant Mr. Muhammad Muzaffar Islam, General Manager (ECD/MMD) is guilty of the charge of by passing the channel of command and expressing unfounded apprehensions which kept all actions on account of his acts and omissions suspended."
A perusal of the inquiry report shows that the inquiry officer did not find any collusion in between the Appellant and Director (A&P). As a matter of fact there was no evidence on record establishing the collusion between Appellant and the Director (A&P).
9. From the above-mentioned findings and conclusion in the inquiry report, the position that has emerged is that there was no evidence of any collusion between the Director (A&P) and that no financial loss was caused to the Pakistan Steel, as per the inquiry report. So far as the conveying of his apprehension of tampering of his personal file directly to the Director (A&P) bypassing his immediate Director is concerned, the Appellant had made an exhaustive statement before the inquiry officer, which is reproduced as under:- "The Defendant has accepted that he had submitted a note on 21.12.2000 to the then Director (A&P) that his personal file was suspected to be tampered with and same may be kept in safe custody, In his statement before the undersigned, the Defendant in support of this charge clarified that he had applied for VRF under duress and humiliating circumstances, as he was involved in a concocted fish case even 5 months after , the incidence (5 months after cleaning of Reservoir No. 2). He had claimed that he had brought in the notice of competent authority, Accounts and Audit department certain irregularities of BWS department (pleas see details at page No. 25 para 2 of the Defendant statement and reply to Q. No. 3 at page No. 17). The Defendant further pointed out that as a result of his said action people were after him for harming his service interests (reply of Defendant of Q. NO. 2 and 3 at page NO. 16 and 17 refers). He has also indicated that the then Director (A&P) was also aware of the conditions prevailing at that time and he (Director-A&P) communicated to him (Defendant) through his DGM, about his suspicion for something fishy around. (Defendant's reply to Q. No. 7 at page NO. 18 years), In reply to Q. No. 2 of the Prosecutor (page no. 16) the Defendant accepted that for the reasons stated above he was forced to apply directly to Director (A&P), he has also accepted that the apprehended tampering of his personal file which he claimed top be correct as he is being harassed at this moment i.e. Two years after. The Defendant could not put up cogent reasons in support of his apprehension which he had conveyed directly to the then Director (A&P) i.e. By passing the proper Channel of command of routing this apprehension through his the then concerned Director (Director. Prod)."
10. The above explanation was brushed aside by the inquiry officer stating that the Appellant could not put up cogent reasons in support of his apprehensions which, he had conveyed directly to the then Director (A&P) bypassing the proper channel of command of routing his apprehension through the concerned Director (Prod). We do not agree with the observations/conclusions of the inquiry officer, discarding the explanation of the Appellant. As a matter of fact, the Appellant had very cogently explained his position which is also supported by the investigating report of Special Monitoring Team of the Army, reproduced at page No. 10 in judgment of appeal No. 14(K)CE/04. We do not want to burden the record by reproduction of that lengthy report. The Appellant seems to have a genuine apprehension of some mischief in the wake of pointing out the irregularities in the affairs of BWS department/section of the Pakistan Steel and subsequently involved in the fish case.
As to the finding of the inquiry officer to the effect that the Appellant did not identify the name of any person in connection with his apprehension of tampering of his personal file. We do not know, how the Appellant could name any one for that purpose, but his apprehension can be gathered from the report of the Special Monitoring Team dated 1.12.2001, annexure A/24 of the written arguments of the Learned Counsel for the Appellant, which is reproduced as under:- "3. Mr. Muzaffar ul Islam was implicated in a case of taking away 65 kg of fish costing Rs. 1,950/- without payment which surfaced 4 months after the incident by a Security Report (Annex 'R'): This action appears contrived and to exert pressure on the officer since he has pointed out gross irregularities/corruption of his subordinate, Mr. Javed Akhtar (younger brother of It. Gen Zulfiqar Akhtar Naz (Retd) annex'S')".
11. From the above discussion of the material on record, it is amply clear that the Appellant had genuine apprehension of tampering of his personal file as the fate of his VRF option case was not known to him for a long time. For a genuine reason, in good faith, the Appellant appears to have sent his note of apprehension directly to the Director (A&P), who was custodian of files and dealing with the matters of VRF. Needless to say that in the circumstances of the case, the action of the Appellant never caused any loss to the Pakistan Steel nor he acquired any wrongful gain. Therefore, keeping in view the judgment in case of Miss. Rashida Khatoon vs. The Secretary Ministry of Industries and Production and other passed in Civil Petition No. 637-K of 2005, referred to above, we hold that merely bypassing of the normal channel communication on the basis of genuine apprehension could not be made basis for imposing major penalty of removal upon the Appellant.
12. As per finding-H (b) of the inquiry report no action could have been taken against the Appellant and no action, if any, was to be taken against Director (A&P), who had allegedly kept the documents of the Appellant with him until they were received from MOIP. We have already observed that-movement of his personal file was not known to the Appellant, It was not known, how Why and by whom his documents were sent to MOIP, who had received such documents and when such documents were received. There is nothing on record to show that the concerned authorities were, in any way, prevented the access to the documents of the Appellant. There is no evidence to show that if these documents were called by any official and the same were not available. On the other hand, there is ample evidence on record that the personal file of the Appellant had been submitted before the Chairman and repeatedly as orders were passed on it about his VRF option/retirement, charge sheets and disciplinary actions against the Appellant, and posting of the Appellant to various departments/sections of Pakistan Steel. The allegation/charge of denying the access to the Pakistan Steel of relevant documents was absolutely not proved by any evidence whatsoever. As such, the holding of the Appellant as guilty by the inquiry officer was not justified with regard to his findings under clause-H (b).
13. The Appellant could, at the most, be held guilty of bypassing the normal channel of communication only, but in view of our above discussion of the material on record, we hold that even imposing of a minor penalty on the Appellant did not merit in the circumstances of the case.
Moreso, for the reason that entire disciplinary action against the Appellant was undertaken by incompetent authorities, as already discussed above.
14. In view of the facts and circumstances and for the reasons, mentioned above, we allow this appeal and set- aside the impugned order of removal of the Appellant from service. Consequently, we direct the Respondents to reinstate him in service from the date of his removal from service. The cumulative effect of the judgments in the three appeals of the Appellant will be that he shall be reinstated to his original post of General Manager with all consequential back benefits.
15. No order. As to costs.
16. Copies of the judgment be sent to the parties under registered cover and to the relevant quarters under rule 21 of Service Tribunal (Procedure) Rules, 1974.