RASHID ALI MIRZA,MEMBER.- The Appellant was appointed as ACIO (BPS-11) on 25.6.1974, re- designated as Inspector. He was promoted as DCIO (BPS-17) on 14.4.1981 re-designed as AD (BPS- 17). He was further promoted as AD (BPS-18) in May 1993 now re-designated as DD (BPS-18). While he was posted at Mirpurkhas, in consequence of disciplinary proceedings against him he was compulsorily retired from service under removal from Service (Special Powers) Ordinance, 2000, vide notification dated 25.5.2001. On 08.6.2001. He preferred a departmental appeal to the Chief Executive, Islamic Republic of Pakistan, Chief Executive Secretariat, Islamabad against his compulsory retirement, but it was not responded to within the statutory period, hence, h& filed this appeal before the Tribunal on 22.8.2001 praying to set aside the impugned orders / notification dated 23.5.2001 and 25^5.2001 and to reinstate him in service with full back benefits:
2. The facts leading to this appeal, gleaned from the memo of appeal and the other record of appeal, are that during the last posting of the Appellant at Mirpurkhas, as Deputy Director, Divisional Headquarters, Intelligence Bureau, certain cases of mal-practices and corruption on his part allegedly came to surface; hence, on a telephonic directive dated 14.6.2000 of the Director General, Intelligence Bureau, the Director Intelligence Bureau, Divisional Headquarters, Mirpurkhas, held a preliminary inquiry against the Appellant on the basis of which following charge sheet was issued to him:- CONFIDENTIAL.
Intelligence Bureau Government of Pakistan Islamabad.
NO. 4/113/A-l. Dated: September,07 2000 CHARGE SHEET WHEREAS, I, Maj. Gen. Rafi Ullah Khan / competent authority in your case, am of the considered opinion that you have committed following acts of omission and commission:-
(a) that while posted as Deputy Director (Officer Incharge, Div, HQ I.B., Mirpurkhas, you had drawn or tried to draw the following amounts from Government exchequer on false grounds:-
(i) That you had, vide Memo No. DI/M-156 dated 12.02.2000, submitted a bill of repair and service of radio fitted in Government vehicle No.GP-8065, for Rs.200/- whereas no repair or service Was carried out. Hence you had drawn Rs. 200/- from the Government exchequer on false grounds.
(ii) Jhat you had, vide Memo No. D1 / M- 175 dated 22.02.2000, submitted repair bill of Government vehicle No.GP-8065, for Rs.320/- whereas no repair was carried out. That amount is lying unspent with the Inspector (Admn) at Mirpurkhas. Hence you had tried to draw Rs.320/- from the Government exchequer on false grounds.
(iii) That you had, vide Memo No. D1 / M- 232, dated 08.3.2000 submitted oil fiIter and Speedo meter cable bill of Government vehicle No.GP-8065 for Rs.300/-. The said defect was created.By you because the vehicle was misused by you at Karachi and the Speedo meter was broken deliberately to cover the said misuse of the vehicle. Thus, you had committed crime to misuse the Government vehicle and to cover that crime you destroyed evidence by breaking Speedo meter of the vehicle. By this way you caused additional loss to the Government exchequer of Rs. 300/- on the repair of the vehicle.
(iv) That you had, vide Memo No. D1 / M- 176, dated 22.2.2000 submitted. Brake and Wheel Service bill of Rs. 480/- of Government vehicle No. GP-8065 whereas no such service was provided to the vehicle. That amount of Rs. 480/- is lying unspent with Inspector (Admn) in N the I.B. Office at Mirpurkhas. By this way, you had tried to draw the said amount horn Government exchequer on false grounds.
(v) That you had, vide Memo No. D1 /M-. 267, dated 25.3.2000 submitted repair bill of Government vehicle No.GP-8065 for Rs. 1900/-whereas no such repair was carried out. The said amount is lying unspent with the Inspector (Admn) at Mirpurkhas. Hence you had tried to draw Rs. 1900/- from the Government exchequer on false grounds.
(b) That posted as Deputy Director (Officer Incharge, DIV. HQ I.B. Mirpurkhas), you had claimed / drawn -following T.A /D. On wrong statements which caused damages to Government exchequer:-
(i) that you went to Karachi and retuned back to Mirpurkhas (11-13.03.2000) on Government vehicle No. GP-8065 but submitted T.A. / D.A. Bill vide Memo No. D1 / M-253 dated 21.03.2000 stating th^t you had traveled by public conveyance. By this you had claimed Rs. 190/- against the rules.
(ii) That on 16.03.2000 you had left Mirpurkhas for Karachi on Government vehicle No. GP-8065 at 1430 hours along with one sacrificial goal and Sweeper Muhammad Yaqoob had accompanied you as helper. You returned to Mirpurkhas on 20.03.2000 at 0300 hours in the Government vehicle.
As this visit was made without permission of senior officers, the log book of the Government vehicle was falsely prepared to show that the vehicle went to Digri and Umerkot on 16.03.2000 and 20.03.2000. By this way you had misused Government vehicle on false pretext causing damage to the Government exchequer and made forgery.
(iii) That you left Mirpurkhas on 09.04.2000 at 0900hours on 06 days casual leave. However, at Karachi, you were statedly put on some official job from 10.04.2000 to 21.04.2000 (by the Sindh Provinee HQ I.B. Karachi). You had not returned back to Mirpurkhas on 22.04^2000, instead you left Karachi for Islamabad statedly on official work on 23.04.2000 at 1900 hours by train. However, on your T.A. / D.A., you fcave claimed that you had reached. Mirpurkhas on 22.04.2000 at 1030 hours which is wrong. Similarly, in the T.A. / D.A. Bill you had claimed that you had left Mirpurkhas on 23.04.2000 at 1500 hours wrong particulars in the T.A. / D.A.-bill'have caused damage to the Government exchequer.
(c) That you are enjoying a persistent reputation of being morally and financially corrupt. Many of your subordinates at Mirpurkhas have confirmed that you have been indulging in activities like womanizing, drinking and loose- talk at Mirpurkhas.
(d) That'your above act and Omission have earned bad name for the organization.
2. WHEREAS by reason of above, you appear to be guiIty of misconduct and corruption in violation of law and relevant rules within the meanings of Sections 2(b), 3(1) (b) and 3(1) (c) of the Removal from Service (Special Powers) Ordinance, 2000 for these acts of omission and commission on your part, you are liable to disciplinary action which may involve imposition of one or more of the penaIties under the provisions of Section 3 of the aforesaid Ordinance.
3. AND WHEREAS the undersigned, in exercise of powers conferred under section 5 of the said Ordinance, has decided to constitute Inquiry Committee comprising Mr. Pervez Iqbal, Director to conduct formal inquiry into the above charges.
4. NOW THEREFORE you, Mr. Nasim Ali Khan, Deputy Director, Div. HQ I.B. Mirpurkhas, are hereby advised to submit your reply to the Inquiry Committee, within fifteen (15) days of the receipt of this Charge Sheet and to appear before it for the Inquiry on the date, time and place fixed by it, as to why disciplinary action, as aforesaid, may not be taken against you.
5. Please take notice that if you failed to submit your written defence within the aforesaid period, it shall be presumed that you have no defence to offer or you' have declined to offer the same and accept the charges, whereby ex- parte decision in the matter shall be taken against you.
Maj. General.
(RAFI ULLAH KHAN)
Director General . Competent authority.
Mr. Nasim Ali Khan, Deputy Director, SPHQ IB Karachi.
Copy forwarded for information and necessary action to:- a. Mr. Pervez Iqbal, Director / Chairman of the Inquiry Committee. b. JDG, SPHQ, Karachi.
Mai. General (RAFI ULLAH KHAN)
Director General Competent authority."
Subsequently, following additional charge sheet was also issued to the Appellant:- CONFIDENTIAL INTELLIGENCE BUREAU GOVERNMENT OF PAKISTAN ISLAMABAD.
No. 4/113/A-l. Dated: September 20, 2000.
ADDITIONAL CHARGE SHEET Continuation Charge Sheet No. 4/113/A-l, dated 07.9.2000.
WHEREAS, I, Maj. General Rafi Ullah Khan / competent authority in your case, am of the considered opinion that you have committed following acts of omission and commission in addition:- That you received illegal gratification of Rs. 20,000/- from Mr. Muhammad Iqbal s/o Ch. Abdul Majeed Arain, owner of the I.B. Office and Mr. Mehmood Iqbal s/o Ghulam Muhammad, one of your friends, on January 1.5,1998 for vacating the said building.
2. WHEREAS by reasons of above, you appear to be guiIty of misconduct and corruption in violation of law and relevant rules within the meanings of Sections 2(b), 3(1) (b) and 3(1) (c) of the Removal from Service (Special Powers) Ordinance, 2000 for these acts of omissions and commission on yoJr part, you are liable to disciplinary action which may involve imposition of one or more of the penaIties under the provisions of Section 3 of the aforesaid Ordinance.
3. AND WHEREAS the undersigned, in exercise of powers conferred under section 5 of the said Ordinance, has already constituted an Inquiry Committee comprising Mr.' Pervez Iqbal, Director, to conduct formal inquiry into the charges against you vide order No.4 /113/A-l, dated 07.09.2000.
4. NOW THEREFORE you, Mr. Nasim Ali Khan, Deputy Director, Div. HQ I.B. Mirpurkhas, are hereby advised to submit your reply to the Inquiry Committee, within fifteen (15) days of the receipt of this Charge Sheet and to appear before it for the Inquiry on the date, time and place fixed by it, as to why disciplinary action, as aforesaid, may not be taken against you.
5. Please take notice thaHf you failed to submit your written defence within the aforesaid period, it shall be presumed that you have no defence to offer or you have declined to offer the same and accept the charges, whereby ex- parte decision in' the matter shall be taken against you Maj. General (RAFI ULLAH KAHN) Director General Competent authority.
Mr. Nasim Ali Khan, Deputy Director, SPHQ. IB Karachi.
Copy forwarded for information and necessary action to:- . (a) Mr. Pervez Iqbal, Director / Chairman of the Inquiry Committee.
(b) JDG, SPHQ, Karachi.
Maj. General (RAFI ULLAH KHAN)
Director General Competent authority."
The Appellant received the above charge sheets on 12.9.2000 and 28.9.2000 respectively while he was admitted in a Hospital where he had undergone surgical operation of his spine and had been under treatment and his application . For invalidation retirement was pending as he was declared on 25.10.2000 as permanently unfit for any future service. He stated in the memo of appeal that he obtained a plot of land for the department from its owner Seth Dhanraj Mai but Rana Abdul Baqi, who was Director of IB, DHQ, Mirpurkhas, motivated him to get the market value of the said plot, but on his refusal to do so, the said Director became inimical and hatched a regular programme to remove him from the department at any cost by concocting false stories appearing in the charge sheets. He submitted separate replies of the two charge sheets on 23.11.2000 wherein he denied the allegation against him. It appears that his replies did not find favour with the concerned authorities ; hence , inquiry into the charges was held against him by inquiry officer Sh. Pervez Iqbal. As per the inquiry report only following charges were proved against the Appellant:- 5.5 Regarding charge 1 (b), (ii), of the charge sheet, it has been established that the officer has used the Government vehicle for visiting his residence at Karachi during Eid Holidays and have ' signed the Movement Register showing official visit to Digri and Umerkot on 16.3.2000 and 20.3.2000. Therefore, officer is liable to redress the damage caused to the Government exchequer by the use of staff car in contravention of Rule No. 6 of "The Rule for the use of Staff Cars", 1980. He is therefore required to remit an amount as per existing rates for the distance from Mirpurkhas to Karachi and back, for a distance of Six hundred kilometers (600) only.
5.7 Regarding charge 1 (c) of the charge shefetp.The officer on Oath before the inquiry committee .
Has admitted having parties at his residence in Mirpurkhas whe/e some of his sources and friends used to bring liquorfor their own entertainment. He categorically denied that in none of such gathering any woman ever attended. Further stated that his medical record shows that he can not indulge in drinking and womanizing activities. He has been declared medically unfit / invalid to continue his service. Whereas the statements of the witnesses namely Sweeper Muhammad Yaqoob, Staff Car Driver Abbas Ali have some contradictions. Therefore, the charge has been partially proved.
5.8 Regarding charge 1 (d) of the charge sheet the inquiry committee is of the view that the reputation of DHQ , IB Mirpurkhas along with its district offices since 1995 specially during the charge of Director Ayaz Ahmed, Deputy Director Nasim Ali Khan, Assistant Director Zamir Hussain Abbasi, Assistant Director Khalid Ali Khan, remained questionable. The DHQ was subject of many scandals, financial corruption and irregularities. The reputation of organization has remained persistently jeopardized. The charge against the officer has been proved.
5.9 Regarding charge (1) of the additional Charge Sheet the inquiry committee is of the view that the charge of illegal gratification against Nasim Ali Khan Niazi has been framed on the basis of the statement of SI Javed Khan Niazi. His previous record / conduct on account of inquiry of corruption proved against him, reflects his testimony against Mr. Nasim Ali Khan Niazi is not worthy of evidence, It is evident from the statement of Muhammad Iqbal that SI Javed Ali Khan initiated, negotiated'and completed the deal involving illegal gratification of Rs. 20,000/-. He is also equally involved with Nasim Ali Khan in the deal and can not be taken as a witness without cortfessing whole truth about his own involvement, whereas the additional charge sheet does not cover the charge against the co-accused SI Javed Ali Khan having persistent reputation of corruption, therefore liable of misconduct under rule 3(c) (iii). AIthough the charge against Mr. Nasim Ali Khan has been proved , to some extent but can not be sustained in any further legal process due to omission of the vital evidence by the witnesses."
It has been stated in the inquiry report that aIthough the charge against Mr. Nasim Ali Khan has been proved to some extent, "but it could not be sustained in any further legal process due to omission of the vital evidence by the witnesses."
3. The recommendations of the inquiry committee/officer werd as under:- "6. RECOMMENDATIONS
1. For the charge 1 (b) (i) and (b) (ii) of the charge sheet, the inquiry Committee has proved the^mis-use of government vehicle for 567 and 600 kilometers. The officer is liable for the recovery of- pecuniary loss caused to Government in view of charges leveled against the officer as per existing rates.
2. The officer may also be awarded a penaIty of stoppage of increment for one year on the above charge.
3. For the charge 1 (c) and 1 (d) of the charge sheet the officer has been found guiIty of mis conduct under Section 2 (b) for conduct prejudicial to good orderm and service discipline. It is recommended that the officer may be awarded penaIty of compulsory retirement.
4. For the charge leveled against the officer under additional charge sheet, it has been established that SI Javed Ali Khan having a persistent reputation of corruption was made prime witness against the officer for illegal gratification of Rs. 20,000/-. He was found to be a party in initiating, negotiating and execution of the corruption deal. In view of the criminal implication of the charge, it is recommended that afresh charge sheet may please be issued to prove the charge of illegal gratification against both the partners.
5. The issue of the premises of IB Office, Umerkot occupied without paying any rent since 01.03.1996 should be regularized by paying to the owner, arrears of rent as per agreement."
4. Written comments were filed on behalf of the Respondents wherein initial legal objection was taken about the maintainability of the appeal on the grounds of nonjoinder and cause of action and for Appellant's having failed to comply with Rule 5(3) of the Appeal Rules 1977 (i.e. Not submitting the departmental appeal through proper channel). It was stated that the plot of land in question was a gift made to the Department by the efforts of Inspector Javed Ali Khan, and not the Appellant. Allegations against Director Rana Abdul Baqi were also denied stating the said Director had taken over the charge on 03.4.2000, only a couple of months prior to initiation of disciplinary proceedings against the Appellant, It was stated that the charges against the Appellant were proved by means of a regular departmental inquiry in which full chance was given to the Appellant to cross examine the witnesses and to defend himself, It was further stated that show cause notice for imposing major penaIty was given to the Appellant and major penaIty of compulsory retirement was imposed upon him after he was heard in person by the competent authority, It was denied if any departmental appeal of the appellant as alleged by him was received b> the appellant authority, It was urged that for the aforesaid reason the appeal was liable to be dismissed.
5. We have heard the learned counsel for the parties and perused the record of the appeal and the authorities cited at the bar.
6. The Learned Counsel for the Appellant raised serious legal objections in his arguments aboutmaintainability of the disciplinary proceedings against the Appellant. He argued that the two charge sheets dated 07.9.2000 and 20.9.2000 respectively and the show cause notice dated 30.2.2001 as also the order of compulsory retirement of the Appellant dated 23.5.2001 with retrospective effect from 19.5.2001 was issued by the: Director General, Intelligence Bureau (Respondent No. 1) as. Authorized officer and authority at the same time aIthough he was not competent authority as per definition of 'competent authority' mentioned in sectidns-2(a) and
(aa) of the Removal from Service (Special Powers) Ordinance, 2000. According to him, Secretary Establishment Division was the competent authority under section-6(2) of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and under the Removal from Service (Special Powers) Ordinance, 200Q, no person inferior to the appointing authority could act as competent authority that Director General, Intelligence BuTeau Major General Rafi Ullah Khan (Respondent No. 1), being inferior in rank to the Secretary, Establishment Division, was not competent to initiate disciplinary proceedings against the Appellant under Removal from Service (Special Powers)
Ordinance, 2000 and pass order of compulsory retirement of the Appellant with retrospective effect; hence, the entire disciplinary proceedings against the Appellant were ab initio void, nullity in the eyes of law, without lawful authority and liable to set- aside. In support of his arguments, the Learned Counsel for the Appellant relied upon SBLR 2004 (SC) 01, PLJ 1983 Tr, C (Services) 01 and 1994 PLC (CS) 477.
7. On merits, the gist of the arguments of the Learned Counsel for the Appellant was that Director General, Intelligence Bureau had given the Appellant adverse remarks in the ACR for the period from 01.1.1997 to 19.5.1997 as counter-signing officer inspite of good remarKs given to him by the reporting officer to the extent that the department would be more better without him (Appellant) and in order to prove the truth of the adverse remarks , he, firstly got conducted a one sided preliminary inquiry through Director Rana Abdul Baqi and on the basis of such inquiry he ordered a regular departmental inquiry by Sh. Pervez Iqbal, inquiry officer; that the inquiry officer did not supply to the Appellant the copies of the witnesses examined by Director Rana Abdul Baqi in the preliminary inquiry; that the inquiry officer recorded the statement of witnesses in the absence of the Appellant at Hyderabad and got some of the witnesses cross examined by him at the house of the Appellant when the Appellant was bed ridden; that no independent witness had been examined and few charges said to have been proved against him were based mainly on the evidence of interested witnesses, sub-ordinate to and under the pressure of the Director, witnesses namely PW Sweeper M. Yaqoob and Driver Abbas and to some extent Driver Azam AII; that no independent witness was examined by the inquiry officer and there was no cogent and convincing evidence against the Appellant, but predetermined penaIty of compulsory retirement was imposed upon the Appellant at a time when the Appellant had himself sought retirement on medical grounds due to his surgical operation of his back and he was declared physically unfit for performing his duty any longer; that adverse remarks given by the Respondents No.1 Major General Rafi Ullah Khan were expunged by this Tribunal vide judgment dated 08.4.2003; that the Appellant had become victim of the wrath of the said Director General, who did not consider the good points of Appellant's long service of 26 years, and without any complaint from any side, initiated disciplinary proceedings against the Appellant and kicked out the Appellant while he was in a state of physical unfitness. The Learned Counsel for the Appellant beseeched the Tribunal that justice be done to the Appellant, In support of his arguments, the Learned Counsel relied on PLJ 1987 Tr, C (Service) 324, 2002 SCMR 433, PLJ 1980 Tr. C (S) 119, PLJ 1998 Tr. C (Service) 238, PLJ 19897 Tr. C (Services) 279, AIR 2000 SC 277, 2002 CLC 1584 (Kar) DB, 1995 SCMRT 1249, PLJ 1990 Tr. C (Services)
19, 1984 Tr. C Services) 106, 1991 PSC 511 (SC), PLJ 2000 Tr. C (Services) 241, PLJ 1973 Lahore 714 (K), PLJ 1998 Karachi 180, PLJ 1992 Karachi 46 and 2004 RLC (CS) 495.
8. The learned Standing Counsel reiterated the facts of the Respondent's case, as mentioned in the written comments and reproduce above. He stated that the Respondent No.1 Major General Rafi Ullah Khan or Director Rana Abdul Baqi, had no enmity whatsoever with the Appellant and they had rightly drawn disciplinary proceedings against the Appellant; that the departmental inquiry was conducted in piece meal at two places i.e. Hyderabad anchKarachi due to ilIness of the Appellant at his own request and that the'Appellant was given full chance to cross examine the witnesses and put up his defence, but he failed to dislodge the evidence of material witnesses , which proved the charges against him as mentioned in the inquiry report; that the confidential reports at annexure 'IX' and 'X' with the comments dated 23.1.2001 signed by It. Col. Saeed ud din Hamayun, Maj. Shaukat Hayat Siddiqui, Rana Abdul Baqi, Maj. Javed Anwar and Dr. Amir A. Sheikh showed that the" Appellant was a person of dubious character and a security risk for an elite security organization of the Country i.e. The intelligence Bureau. The learned Standing Counsel lastly argued that the appeal was liable to be dismissed even on the sole ground of the Appellant's having failed to comply with the Rule-5 (3) of Civil Servants (Appeal) Rules, 1977 for not submitting his departmental appeal through proper channel. Lastly Standing Counsel argued that the Director general Intelligence Bureau was the competent authority under Removal from Service (Special Powers) Ordinance, 2000 for disciplinary proceedings under the Removal from Service (Special Powers) Ordinance, 2000.
9. We have carefully -considered the above arguments of both sides.
10. First, we shall deal with the point of maintainability of the appeal raised by either side.
11. The Respondent had denied to have received the departmental appeal which was a sine qua non for maintaining an appeal before the Service Tribunal. The copy of departmental appeal is available on record as annexure 'A/2', but there was nothing on record to show when and how it was sent / submitted by the Appellant. The Appellant was asked to submit proof of submitting or sending such appeal. Vide statement of the Advocate for the Appellant dated 07.10.2005, receipt of TCS was placed before the Tribunal, which shows that on 08.6.2001 Appellant Nasim Ali Khan Niazi had sent a packet (his appeal) to the Chief Executive Secretariat, Islamabad directly. This was not rebutted on behalf of the Respondents. The objection of the learned Standing Counsel was that it was not submitted through proper channel as required under Section -5 (3 ) of the Civil Servants (Appeal) Rules 1977. It is true that the departmental appeal was not sent to the Chief Executive through proper channel and it was sent to the Chief Executive directly through TCS. The Learned Counsel for the Appellant pointed out that two notifications dated 23.5.2001 and 25.5.2001 of compulsory retirement of the Appellant were issued, In para-2 of notification .Dated 23.5.2001 the Appellant was given the right to prefer appeal to the appellate authority within 30 days from the date of issuance of the said notification, as provided in Civil Servants (Appeal) Rules 1977, but in the second notification dated 25.5.2001, para-2 mentioned above was modified stating that Appellant Nasim Ali Khan Niazi had right to prefer representation within 15 days from the -date of issuance of the notification in terms of Rule-9 (1) of the Removal from Service (Special Powers) Ordinance, 2000. The Learned Counsel for the Appellant stated that the Appellant had sent his appeal accordingly within 15 days.
12. The Learned Counsel for the. Appellant argued that the provisions of Removal Service (Special Powers) Ordinance, 2000 over-rode the provisions of Civil Servants (Appeal) Rules, 1977; secondly, that no rules had been framed under Removal from Service (Special Powers) Ordinance, 2000 indicating the mode of submitting the representation or appeal to the,appellate authority; thirdly, as per Section-9 of the Removal from Service (Special Powers) Ordinance, 2000, representation to the Chief Executive or such officer or authority as the officer or authority for preferring appeal was designated by any rules, framed under the Removal from Service (Special Powers) Ordinance, 2000; hence, the Application had no aIternative but to prefer his appeal directly to the Chief Executive.
13. We find considerable force in the arguments of the Learned Counsel for the Appellant. The Respondents had themselves modified the clause-2 of the first notification whereby the Appellant was asked to prefer his appeal to the appellate authority within 30 days from the date of the issuance of the notification as provided by Civil Servants (Appeal) Rules, 1977. Realizing, perhaps, that the appeal was not to be preferred within 30 days, as provided in Civil Servants (Appeal) Rules, 1977, the Respondents modified the clause-2 of the first notification in the second notification, omitting the submission of the appeal under Civil Servants (Appeal) Rules, 1977 and inserting the words therefore 'Removal from Service (Special Powers) Ordinance, 2O0O'. In view of this position the objection of the Respondents regarding maintainability of the appeal on that account is over- ruled.
14. Coming to the objection of the Appellant against maintainability of the disciplinary proceedings by an incompetent authority, we have to reproduce the definition of 'competent authority' as'mentioned in section-2 (aa) of the Removal from Service (Special Powers) Ordinance, 2000 and we reproduce it as under:- "[(aa) "Competent authority" means the Chief Executive and where, in relation to any person or cla$s of persons, the Chief Executive authorizes any officer or authority, not being inferior in .Rank to the appointing authority prescribed for the post held by the person against whom action is proposed to be taken, to exercise the powers of competent authority. Under this Ordinance, that officer or authority, and , in relation to an employee of a Court or Tribunal functioning under the Federal Government, the appointing authority or the Chairman or Presiding Officer of the Court or the Tribunal;]"
Now, in accordance with Section-5 of the' Removal from Service (Special Powers) Ordinance, 2000, the competent authority has to appoint an inquiry officer or inquiry committee, who is required to communicate to the accused the charges and statement of allegations specified in the order of inquiry passed by the competent authority. This shows that the charges have to be framed with the statement of allegations by the competent authority, In the instant case against the Appellant charge sheets dated07.9.2000 and 20.9.2000 were issued by the Director General, Intelligence Bureau Major General Rafi Ullah Khan. The question is whether on these dates he was the competent authority in accordance with definition / provisions df the Removal from Service (Special Powers) Ordinance, 2000.
15. In this connection, the learned Standing Counsel has referred us to notification dated 16.8.2000 of the Cabinet Secretariat, Establishment Division, whereby the Director General, Intelligence Bureau has been authorized to exercise the powers of competent authority in respect of employee of BPS-16 to 19 under the Removal from Service.Date of hearing: 25th February, 2006.
QAZI MUHAMMAD HUSSAIN SIDDIQUI,MEMBER- The Appellant, who had been serving as Entomologist in the Department of Plant Protection of Ministry of Food, AgricuIture and Livestock, was dismissed from service under-5(l)(iv) of Government Servants (Efficiency and Discipline) Rules 1973, vide notification dated 15.12.2001. He preferred a departmental appeal against his dismissal on 10.01.2002, but it remained unrespondent till expiry of statutory period of 90 days; hence, he filed this appeal before the Tribunal on 15.4.2002, praying to set-aside the impugned order of his dismissal and to reinstate him in service with all back benefits.
2. The disciplinary proceedings against the Appellant had been initiated with the issuance of the following show cause notice dated 24.11.1998:- "WHEREAS, you, Syed Khurshid Anwar, while emplo/ed as Entomologist (B-17), Department of Plant Protection, Karachi, committed the following acts prejudicial to good order and service discipline unbecoming of a civil servant namely:-
(i) You, in league with Mr. Muhammad Shamim, Assistant Director / the then Drawing and Disbursing Officer (HQs), Department of Plant Protection, Karachi, issued over your signatures as many as 1.1 (eleven) fictitious sanction communication memos on various dates and of various amounts on account of fictitious purchases of High Speed Diesel and M.T. Spare parts from fake firms M/s. Kasama Petroleum Services, Alflah Society, Karachi and Khan's International, Federal 'B'
Area, Karachi, without obtaining sanction of expenditure from the Competent Authority and without delivery of the stores.(Establishment), who was the appointing authority in respect of the Appellant, at the relevant time i.e. During the month of the September 2000. Perhaps, due to such lacuna the Cabinet Secretariat, Establishment Division issued another notification dated 14. 12.2000 making the Director General, intelligence Bureau competent authority in respect of employees in BPS-17 to 19.
18. The above discussion shows that inspite of the notification dated 16.8.2000 the Director General, intelligence Bureau was not a competent authority in respect of the Appellant at the relevant time viz. In September 2Q00.Thus, the contention of the Learned Counsel for the Appellant, we find, is correct, that the disciplinary proceedings against the Appellant had not been initiated by a competent authority in accordance with law i.e. Removal .From Service (Special Powers)
Ordinance, 2000. This was a grave discrepancy, which cut across the very root of the disciplinary proceedings initiated against the Appellant by the Director General, intelligence Bureau, without any lawful authority.
19. The other aspect of this case is that the penaIty of compulsory retirement was. Imposed upon the Appellant retrospectively in both the notifications (dated 23.5.2001). This was a patent illegality on the part of the Respondent vitiating the entire disciplinary proceedings against the Appellant, In case Noor Muhammad v. The Member Election Commission, Punjab and others reported in 1985 SGMR 1178, it was held as under:- "(b) Civil Services-- ---Removal from service-Order of departmental authority, held, could not be made to operate retrospectively-No executive authority was vested with such powers unless expressly empowered in that . Behalf by Rules--Order of dismissal / removal could take effect only from date it was passed."
Referring the above-mentioned authority and PLD 1979 Lahore 699, it was held in The Vice- President (Admn), National Bank of Pakistan and others v. Basharaf Ali and others, that the submission made by the Learned Counsel for the Respondent No.1 that since the dismissal order purported to be retrospective in effect, seems to have force. In Syed Sikandar AH Shah, v. Auditor- General of Pakistan and others, reported in 2002 PLC (CS) 1027, it was held that the termination of service could not be with retrospective effect unless competent authority was expressly empowered in this regard by some statute or rules made thereunder.
20. It may be pointed out that the Respondents have not shown if they were expressly empowered to pass impugned order retrospectively under some statute or rules made thereunder.
21. The serious illegalities, discussed above, have rendered the disciplinary proceedings against the Appellant, ab initio, void and nullity in the eyes of law. The penaIty of compulsory retirement imposed upon the Appellant cannot be sustained, therefore, without resorting to the discussion of the merits of the case, we allow this appeal, set-aside the penaIty of compulsory retirement imposed upon the Appellant and reinstate him in service from the date of his compulsory retirement with the observation that if the Appellant was so nasty, as per record of the Respondents, he could bo retired _on medical grounds as allegedly requested by him, provided his request for that was supported by necessary medical evidence. However, the Respondents will be at liberty to initiate fresh disciplinary proceedings against the Appellant strictly in accordance with law and that should be within a period of four months from the date of receipt of a copy of this judgment. AIternatively, the Respondents may consider the retirement of the Appellant on medical grounds. The intervening period be treated as leave of any kind that may be due to him.
22. No order as to costs. for imposition of major penaIty of 'dismissal from service' as specified in rule 4(1) of the Rules ibid.
4. NOW, therefore, you Syed Khursheed Anwar, Entomologist, Department of Plant Protection, Karachi, are hereby required under Rule 5(1)(iii) of the Rules ibid, to show cause within 14 (fourteen) days of receipt of this Show Cause Notice as to why the major penaIty of 'dismissal from service' should not be imposed upon you in terms of the Government Servants (E&D) Rules, 1973. You may also indicate whether you wish to be heard in person by the Authorized Officer."
3. In his reply dated 07.12.1998 to the show cause notice the Appellant denied the allegations against him. He raised the objection that the show cause notice was issued without any investigation / inquiry or the opportunity of personal hearing to him. However, in par-2(iv) of the said reply, he made the following admission:- "The amount was deposited by me in good faith on the verbal orders tof Mr. Abdul Mannan Khan, Director (Administration) and not as a resuIt of detection of fraud as alleged. Money was arranged through borrowing from my friends and relatives."
In para-3 of the said reply of the show cause notice, he stated as under:- ".............. I am now on the last fag-end of my service career and in circumstances explained, dismissal would be too harsh a punishment. I would therefore request your goodself kindly to take a lenient view in the matter ....."
It appears that considering the objections, raised by the Appellant in his reply to the show cause notice, the Respondents thought it advisable to issue a charge sheet to the Appellant and to hold a departmental inquiry into the allegations against the Appellant. Consequently, charge sheet dated 12.5.1999 containing the same allegations / (Special Powers) Ordinance, 2000. The learned Standing Counsel further argued that the two charge sheets were issued to the Appellant in the month of September 2O0O i.e. After the issuance of the said notification; hence, the Director General, Intelligence Bureau had quite legally initiated the disciplinary proceedings against the Appellant as competent authority under the Removal from Service (Special Powers) Ordinance, 2000.
16. The Learned Counsel for the Appellant contended that inspite of said notification the Director General, Intelligence Bureau could not act as competent authprity because he was inferior in rank to the appointing authority prescribed for the post (BPS-18), the Appellant held t the relevant time.
According to the learned counsel, Secretary Establishment Division was the appointing authority in respect of post in BPS-17 to 19 and the Director General, Intelligence Bureau.Was, by an amendment through notification dated 14.12.2000, made the appointing authority in respect of the employees or BPS-17 to 19 of the Intelligence Bureau, which would mean that till the issuance of notification dated 14.12.2000, the Secretary Establishment Division was the appointing authority of the Appellant, as such, the Director General, Intelligence Bureau, being inferior in rank to the Secretary Establishment Division, at the relevant time i.e. In the month of September 2000, was not Competent to issue the charge sheets and statement of the allegations to the Appellant.
17. We have carefully considered the rival contentions of the learned counsel for the parties and perused the notifications and the relevant law. As per definition of 'competent authority' already reproduced above, any officer inferior in rank to the appointing authority could not be authorized t(5 act as competent authority under the Removal from Service (Special Powers) Ordinance, 2000.
The Respondents had not denied the assertion of the Learned Counsel for the Appellant that the Director General, intelligence Bureau was inferior in rank to the Secretary
(ii) On the basis of the afore-mentioned forged cash memos/bills/cbmparative statements and sanction communication memos, the then Drawing and Disbursing Officer (HQs) prepared as many as 11 fictitious bills on various dates and of different amounts and presented the same at the counter of D.G.P.R., Karachi. All these bills were got passed and cheques received from the DGPR, Karachi, the details of cheques drawn fraudulently from : State Bank of Pakistan are as under:-- [Table]S.No. Amount Cheques No. & Date Name of Firm(1) High Speed Diesel1. Rs. 64,700/- F581531 dated 25.9.97 M/s Kasama Petroleum Services, Karachi.2. Rs. 79,200/- F584728 dated 25.10.97 . -do-
3. Rs. 69,650/- F585846 dated 03.11.97 -do-4. Rs. 58,800/- F587503 dated 17.11.97 -do-5. Rs. 34,300/- F592700 dated 08.1.98 -do-6. Rs. 52,500/- F594464 dated 27.01.98 -do-7. Rs. 39,200/- F593699 dated 27.01.98 -do-8. Rs. 44,800/- F598826 dated 05.03.98 -do-9. Rs. 49,000/- F600562 dated 24.03.98 -do-(2) M.T. Spare Parts10. Rs.20,554/50 F599022 dated 10.03.98 M/s Khan'sInternationalKarachi.
11. Rs. 18,500/- F599566 dated 10.3.98 -do- 'Total Rs. 531,2304/50
(iii) You got printed a bill/cash book in the name of fake firm i.e. M/s. Kasama Petroleum Service, Alfalah Society, Karachi and the cheques issued in the name of this fake firm were issued / passed on to you by the then Drawing and Disbursing Officer.
(iv) You have also operated a fictitious Account No.1219-4 in Muslim Commercial Bank in the name of bogus firm M/s Kasma Petroleum Services and all the cheques of this bogus firm were deposited in its account by you.
(v) You issued expenditure sanction memos towards the purchase of M.T. Spare parts from file No. 1W / 4-4/97 while there was no demand of such M.T. Spare parts, no quotation was floated, but a fictitious comparative statements was prepared with forged signatures of director (Admn) and Mechanical Engineer which was submitted to then Drawing and Disbursing Officer (HQ) for claiming amount from the Director General, Pakistan Revenues, Karachi.
(vi) On detection of this fraud, you refunded the entire amount of your share vide Challan No. 14 dated 2,4.98 and Challan No. 19 dated 30..5.98 in the National Bank of Pakistan, Malir City Branch, Karachi through Mr. Muhammad Shamim, Assistant Director / the then Drawing and Disbursing Officer (HQ).
2. WHEREAS, in the, light of the facts and circumstances of the case, it has been decided by the undersigned (Authorized Officer) that it is not necessary to have an inquiry conducted through an inquiry officer in the case, in terms of Rule 5(1 )(iii) of the Government Servants (E&D) Rules, 1973.
3. AND WHEREAS, I am of the opinion that the aforesaid acts tantamount to 'Misconduct' and 'corruption' on your part in terms of rule 2(4) of th Government Servants (E&D) I Rules, 1973 and call
23. Copies of the Judgment be sent to the parties under registered cover antf to the relevant quarters under rule 21 of Service Tribunal (Procedure) Rule, 1974.