' SARDAR MUHAMMAD RAZA KHAN, J.--- Salman Faruqui, former Secretary Ministry of Commerce has been granted leave to appeal from the judgment dated 30-6-1999, whereby, his dismissal from service was maintained and his appeal thereagainst was dismissed.
2. A show-cause notice was issued to the appellant on 9-5-1997 by the authorized officer as follows:- "Whereas you, Mr. Muhammad Salman Faruqui, Officer on Special Duty (under suspension), Establishment Division, GOvernment of Pakistan, Islamabad while posted as an officer of Customs and Excise Group/Secretariat Group, Government of Pakistan, have been accused of having committed the following acts which constitute misconduct and corruption under rules 2(4), 3(b) and 3(c) of Government Servants (Efficiency and Discipline) Rules, 1973:-
(i) abused your official position as public servant for personal gain and got a Plot No,F-16, K.D.A.
Scheme No,5, Clifton Karachi measuring 2000 sq. Yds. Allotted in favour of S. Saleem Ali son of S. Abdul Ghaffar resident of 887, Gokhla Road, New Town, Karachi. The plot was allotted vide KDA/Clif/F-16/5/73/1956, dated 12-12-1973. Despite efforts of concerned authorities, the allottee Mr. S. Saleem Ali could not be traced. It is learnt that property at the address given for Mr. S. Saleem Ali belonged then to Dr. Asad Faruqui and Mr. Amjad Faruqui your maternal-cousins. The plot was transferred in favour of your brother-in-law Mr. Zubair Haider son of Late Qamaruddin Haider vide KDA letter No,KDA/Clif/F-16/5/2215, dated 16-8-1974. The plot was again transferred in favour of your wife Mrs. Shah Taj by way of gift vide KDA letter No,KFA/Clit/F-16/BL-5/90/298, dated 17-4-1990. The indenture of lease was made and executed on 9-7-1990 in favour of Mrs. Shah Taj.
(ii) abused your official position in collusion with the then Chief Minister Sindh Mr. Muzaffar Hussain Shah and then Director-General KDA Mr. Sabahat Ali Khan to have the same plot commercialized in favour of Mrs. Shah Taj (your wife) despite the fact Sharae Saadi where the plot is located was not approved for commercialization. The plot was commercialized vide KDA letter No,KDA/Com.Cell/F- 16/B1-S/Sch 5/1025, dated 21-7-1993;
(iii) abused your official position and in collusion with the then Director-General, KDA and beyond his competency got permission to pay 10% of the commercialization fee of Rs,7 million with the balance to be paid in four instalments in two years Rs,7,00,000 equal to 10% commercialization charges were paid by Mrs. Shah Taj vide Challan No,50124/F-2144, Book No,0502, dated 20-7-1993.
Soon after its commercialization the plot was retransferred in favour of Mr. Zubair Haider vide KDA's letter No,KDA/Com.Ce11/1435, dated 18-10-1993;
(iv) abused your official position and in collusion with the then Director-General, KDA and then Minister for Housing and Town Planning Pir Mazharul Haq got waived the sum of Rs,7,79,625 surcharge on account of late payment of the instalments of commercialization charges. The surcharges leviable at the rate of 18% per annum was waived by the Minister for Housing and Town Planning, Government of Sindh on a summary from the Director-General, KDA;
(v) abused your official position for personal gain and in collusion with the then Director-General KDA caused loss to KDA by not paying the sum of Rs,26,89,798 on account of non-utilization fee;
(vi) abused your official position and in collusion with concerned officials evaded payment of Rs,4,18,380 on account. Of stamp duty, registration fee and capital value tax by having the deed of assignment of leasehold rights in favour of Mr. Muhammad Gulraiz on 21-5-1995 registered at a value of three million rupees. Minimum value for the open commercial plot fixed by the Collector/Chief Inspector of Stamps, Karachi at the time was Rs,2,898 per sq. Yard i,e, Rs,5,796,000 for a plot of 2000 sq. Yds. In the above mentioned deed the plot was falsely declared as 'residential'.
This amounts to concealment of actual value of the plot;
(vii) caused loss to the public exchequer through evasion of stamp duty, registration fee and capital value tax on the property by registering the value of the above mentioned plot substantially below prevailing market price of the plot and also below the actual charges of Rs,7 million on account of commercialization fee paid. This amounts to concealment of actual value of the plot;
(viii) abused your official position for personal gain to accumulate assets in excess of your known sources of income;
(ix) by reason of the above you appear to be guilty of misconduct and corruption within the meaning of rules 2(4), 3(b) and 3(c) of Government Servants (Efficiency and Discipline) Rules, 1973 inasmuch as you abused your official position for personal gain to acquire a plot, conceal its ownership and have it converted against existing rules into commercial plot. You caused pecuniary loss to the KDA/Government of Pakistan by obtaining waiver of surcharge for late payment of commercialization charges and evasion of duty, fee and tax by falsely declaring the property as residential plot instead of commercial plot and by registering the value of the plot much below its market value. You have accumulated assets far in excess of your known sources of income.
2 . And whereas I, the Authorized Officer, have decided in terms of Rule 5(1)(iii) of Government Servants (Efficiency and Discipline) Rules, 1973 that it is not necessary to have an inquiry into the above charges conducted through an Inquiry Officer or Inquiry Committee.
3. Now, therefore, you Muhammad Salman Faruqui, OSD (under suspension) Establishment Division, Government of Pakistan, Islamabad are hereby called upon to show cause as to why a major penalty which includes the penalty of dismissal from service, may not be imposed upon you under the provision of the aforesaid Rules, on the above grounds.
4. Your written reply to show-cause notice should reach the undersigned within fourteen days of its receipt by you, failing which it would be presumed that you have no defence to offer, and ex parte decision would be taken.
' You may also state whether you want to be heard in person."
3. Para. No,2 of the show-cause notice would indicate that the authorized officer had decided not to hold an inquiry under Rule 5(1)(iii) of Government servants (Efficiency and Discipline) Rules, 1973.
While, on the other hand, an authorized officer decides to hold an inquiry under Rule 5(1)(ii) of Government Servants (Efficiency and Discipline) Rules, 1973 that reads as follows:-- "5. Inquiry procedure.--- (1) The following procedure shall be observed when a Government servant is proceeded against under these rules:-- (i)
(ii) The authorized officer shall decide whether in the light of facts of the case or the interest of justice an inquiry should be conducted through an Inquiry Committee. If he so decides, the procedure indicated in rule 6 shall apply."
4. A perusal of the aforementioned provision of law would indicate that it is prior in sequence and calls upon the authorized officer to hold an inquiry if the facts of the case so demand or if it is considered A necessary in the interest of justice. Whether an inquiry needs to be held or not, in the given conditions, therefore, is a judicial discretion which must be exercised if the conditions given in the rule are satisfied.
5. A perusal of the charge-sheet (supra) would indicate beyond doubt that it pertained to serious, intricate, disputed and denied questions of fact. How a prudent man, in the circumstances, would reach to the conclusion that all such allegations of fact are true without being proved and if not proved through holding a regular inquiry, would it not violate the interest of justice. It has been a consistent view of this Court that where the charges are serious, pertaining to intricate question of fact and where the penalty of dismissal from service is likely to be imposed, a regular inquiry shall be conducted to prove such disputed and denied questions of fact. By resorting to the provisions of rule 5(1)(iii) of Government Servants (Efficiency and Discipline) Rules, 1973, the authorized officer happened to condemn the appellant unheard. The only remedy is to have a recourse to the principles of natural justice and to hold an inquiry under rule 5(1)(ii) of the Rules of 1973, wrongly dispensed with under rule 5(1)(iii).
6. Learned Deputy Attorney-General argued that the appellant avoided to appear in compliance with the notice issued to him and that he was at liberty to contest the state of affairs he now happens to dispute. That he is now looking for excuses to undo the consequences of disciplinary proceedings. We are not satisfied with the arguments for two-fold reason; firstly, that the so-called excuse is provided by the authority itself and secondly, the argument aims at putting the burden on the accused officer of getting some proceedings validated by his presence when such proceedings were unlawful and against the principles of natural justice from the very inception.
7. In view of what is proposed, it is not in the interest of justice to discuss the merits of the case. The charges are quite serious which demand that guilt be brought home to the appellant after providing him an opportunity of being heard.
8. Consequently, the appeal is accepted, the impugned judgment is set side and the case is remanded back to the competent authority to hold regular inquiry within the contemplation of rule 5(1)(iii) of the Rules of 1973 and thereafter to proceed and pass order in accordance with law. If the appellant has not superannuated, he shall be deemed under suspension. The matter being old, it be concluded as early as possible.