' JUSTICE (R) TANVIR BASHIR ANSARI (CHAIRMAN).---This appeal is directed against the order of dismissal from service dated 31-1-2004 against which the appellant preferred a departmental appeal which remained unactioned within the prescribed period of 90 days.
2. Briefly, the facts of the case are that the appellant was employed as Assistant Director (B-17) in the Immigration and Passport Department, Dera Ghazi Khan. A charge-sheet, dated 31-1-1995 was firstly served upon the appellant containing allegations pertaining to the period when he served as Assistant Director, Passport in Dera Ismail Khan from 1992-1993. After conducting an inquiry and issuance of a show-cause notice the appellant was dismissed from service vide order dated 4-12- 1997.
3. This order of dismissal was challenged before this Tribunal in Appeal No,62(P) of 1998. This appeal was heard along with Appeal No,312(P) of 1998 filed by the appellant's co-accused namely Haji Hameedullah Khan. Both these appeals were decided vide judgment dated 27-7-1999. The order of dismissal was set aside on the ground the inquiry proceedings were not validly held and a direction was issued to the respondent-Department to hold a fresh inquiry to be concluded within a period of four months.
4. A fresh charge-sheet dated 17-11-1999 along with statement of allegations was served upon the appellant on 10-12-1999 i,e, after the period of four months prescribed by this Tribunal. The allegations against the appellant were as under:--- "(1) He accepted 33 applications in the absence of applicants/without Police verification/punched Identity Cards/bogus documents. (Annexure "A")
(2) He accepted 422 passport applications on the basis of forged character certificates/bogus Identity Cards/column of profession left blank/without putting initials on Declaration forms.
(Annexure "B")
(3) He granted 93 passports on the basis of fake documents/ character certificates/bogus Identity Cards. (Annexure "C").
(4) He granted 14 passports without mentioning profession/on punched Identity Cards. (Annexure "D").
(5) He accepted and granted 27 passports on the basis of forged documents/character certificates/bogus/pouched Identity Cards. (Annexure "E").
(6) He accepted and granted 20 passports without entry of profession/in the absence of applicants/without police verification. (Annexure "F")."
' Simultaneously Mr. Sultan Ahmed Khan was appointed as Enquiry Officer. The appellant objected to the initiation of disciplinary proceedings mainly on the ground that as the proceedings were not initiated or concluded within the prescribed period of four months, the same could not validly be continued.
' It is also manifest from the record that on 16-12-1999, the appellant filed a Miscellaneous Petition No,799 of 1999 before this Tribunal praying that the inquiry proceedings not having been taken within the prescribed period of four months as prescribed in the judgment of the Tribunal dated 27- 7-1999, the department be restrained from proceeding further with the same. This application was not entertained by the Registrar of this Tribunal vide note, dated 20-3-2001. Subsequently the appellant filed a constitutional petition in the Peshawar High Court bearing Writ Petition No,116 of 2000 on 21-6-2000 praying that the fresh inquiry proceedings be quashed and the order of suspension from service issued after 27-7-1999 be set aside. The Honourable Peshawar High court passed the following order in its judgment dated 27-3-2001:-- "(5) Because there is an order of reinstatement in favour of the petitioner and because thereafter he was suspended but on record there is no approval of the authority extending the period of suspension, therefore, petitioner shall be considered to be reinstated and of course entitled to all back-benefits from the date of order of the Tribunal till date and onwards. Our this order, however, is subject to the result of fresh enquiry as ordered by the Federal Service Tribunal on 27-7-1999. This petition is allowed in the above terms." (underlining is ours).
5. Thereafter on 28-4-2001, the appellant was directed to submit his reply to the charge-sheet to the Enquiry Officer, Instead of complying with the same, the appellant insisted that no fresh inquiry could be conducted after expiry of four months. He subsequently filed Contempt Petition No,252 of 2001 in the Peshawar High Court which was decided on 22-10-2002 in the following terms:-- "(4) This writ petition is, therefore, dismissed in limine as not pressed with the observation that this Court has not passed any order for initiating any inquiry against the petitioner. As a matter of fact, it has made a reference to the inquiry already ordered by the Federal Service Tribunal in its judgment dated 27-7-1999." (underlining is ours).
6. Although in the meanwhile on 6-11-2001, the appellant had submitted his reply to the charge- sheet, dated 17-11-1999, he on his own understanding of the orders of the Peshawar High Court, dated 27-3-2001 and 22-1-2002 decided not to join the inquiry proceedings considering the same to be void. The appellant once again approached this Tribunal through M.P. No, 195 of 2002 praying for stay of the inquiry proceedings. This Tribunal vide order dated 9-9-2002 did not find it fit to interfere with the inquiry proceedings and passed the following order:-- "In these circumstances and at this stage, without going into questions of powers of this Tribunal regarding review or implementation, we do not see any reason to interfere with the proceedings and preempt any final order which the respondent department may pass. The petitioner has the right to file an appeal if he feels aggrieved by any order that may be passed as a result of the proceedings. The Petition is rejected as misconceived and not maintainable. Parties be informed accordingly."
7. The appellant participated in the inquiry proceedings in the beginning. Later the appellant did not appear first on medical grounds and then on the ground of apprehended contempt of Court.
The inquiry was concluded on 21-5-2002 wherein all the six charges were established against him.
8. After the conclusion of the inquiry proceedings, the authorized officer issued show-cause notice on 27-9-2002. The appellant submitted his reply thereto on 22-10-2002. Not considering the reply to be satisfactory, the Competent Authority passed the impugned order, dated 31-1-2004 whereby the appellant was dismissed from service.
9. We have heard Mr. Shah Abdur Rashid, Advocate for the appellant and Mr. Kahlil-ur-Rehman Abbasi, Advocate for the respondents and perused the record.
10. The foremost ground urged by the learned counsel for the appellant is that the period of four months fixed by this Tribunal in its judgment, dated 27-7-1999 passed in Appeal No,62(P) of 1998 was mandatory and that its violation must entail the vitiating of the entire proceedings of the fresh inquiry. It is vehemently contended that this Tribunal had fixed the aforementioned period consciously and it was the bounden duty of the department to have concluded the de novo inquiry proceedings strictly within the period of four months and that continuance of the disciplinary proceedings beyond this period was wholly void.
11. In order to appreciate the correct import of this contention, it is necessary to distinguish between a mandatory direction and one which is merely directory in nature. An analogy for the purpose can be fruitfully drawn from the nature of such statutes and enactments. According to Maxwell on Interpretation of Statutes an imperative or mandatory enactment is one which is couched in such language as makes the violation of a statute subject to a penalty whether express or implied.
Whenever a statute provides for imposition of penalty as a consequence of its non-compliance, the statute is necessarily to be regarded as mandatory. Where however, no such penalty is decipherable to be attached to the non-compliance, the enactment is considered to be directory only, the substantial compliance with which is considered sufficient. This principle of interpretation of statutes has been enunciated in Niaz Muhammad Khan v. Mian Fazal Raqeeb PLD 1974 SC 134, Maulana Noor-ul-Haq v. Ibrahim Khalili 2000 SCM R 1305, Ghulam Hassan v. Jamshed Ali and others 2001 SCM R 1001, Mafiziullah v. Manaiullah and others PLD 1963 Dacca 318 and Nasrullah v. The State P LD 2001 Pesh.
152.
12. Applying this principle in understanding the direction given by this Tribunal in Appeal No,62(P) of 1998 it becomes manifest that while ordering the holding of a de novo inquiry a direction to conclude the same within the period of four months was not accompanied by the visitation of any penalty if the fresh inquiry was not concluded within the prescribed period. That this direction was merely directory in nature is also manifest from the judgment passed by the Honourable Peshawar High Court on 27-3-2001 wherein it was emphasized as under:-- "Our this order, however, is subject to the result of fresh enquiry as ordered by the Federal Service Tribunal on 27-7-1999."
' The Honourable Peshawar High Court was conscious of the fact that the inquiry proceedings had not been concluded within four months as prescribed in the order of this Tribunal dated 27-7-1999 and subjected its decision to the result of fresh inquiry which, in contemplation of the High Court was yet to be concluded. The appellant considered the holding of the fresh inquiry as contempt of the Peshawar High Court's order dated 27-3-2001 which prompted him to file Contempt Petition No,252 of 2001. The same was dismissed vide order dated 22-10-2002 wherein the holding of the fresh inquiry by the FST was referred to by it. It is noted that even on 22-10-2002 the fresh inquiry had not been concluded and no exception to its non-conclusion was taken by the Peshawar High Court.
' Further the appellant again approached this Tribunal through Miscellaneous Petition No, 195 of 2002 praying for staying of the inquiry proceedings. Vide order dated 9-9-2002 this Tribunal had not seen any reason to interfere with the inquiry proceedings or to preempt any final order which might be passed by the department.
13. The above narration would clearly depict the intention of the Tribunal in treating the direction contained in its order dated 27-7-1999 to be directory only. The inquiry which was undertaken involved complicated allegations and required , a detailed treatment. The inquiry proceedings were concluded and the inquiry report was submitted on 21-5-2002. A perusal of the inquiry report persuades us to hold that this was a substantial compliance of the direction issued by this Tribunal.
' In view of this discussion we find no merit in the contention of the learned counsel for the appellant which is rejected.
14. It is next contended on behalf of the appellant that the inquiry proceedings and the inquiry report were perverse as those were not supported by any material on the record. It is further asserted that the inquiry proceedings were conducted ex parte and behind the back of the appellant and thus were bad in the eye of law. The inquiry proceedings are further assailed on the ground that the Enquiry Officer had given his report upon charges which were alien to the charge- sheet. It is submitted that against each allegation, the Enquiry Officer had recorded findings in respect of "alleged irregularities" as well as "other irregularities". It is strongly urged that the report of the Enquiry Officer was influenced by his findings not only upon the alleged irregularities against the appellant but also by his findings on other irregularities which were not included in the charge- sheet.
15. We have examined the inquiry report in detail. The inquiry proceedings as per the record commenced on 7-11-2002. The appellant submitted his detailed defence reply. The appellant participated in the inquiry. Subsequently, the appellant did not appear initially on medical grounds and finally stated in his letter dated 21-2-2002 that his participation in the inquiry proceedings would amount to contempt of count and that he had no intention to indulge in committing contempt of Court. It is clear from the record that the appellant at a later stage of the inquiry deliberately refused to participate in the same upon his perception that participation in the inquiry that continued beyond four months would be contempt of Court.
' In such circumstances, there is no merit in the submission on behalf of the appellant that the inquiry was held against him ex parte or that the procedure adopted by the Enquiry Officer was violative of the principles of natural justice.
16. The Enquiry Officer had before him specific allegations against the appellant which were contained in the statement of allegations. The record in each case was examined in detail. The conclusion arrived at by the Enquiry Officer did not appear to be against any established principle of law or natural justice. The contention of the appellant that the Enquiry Officer was influenced by extraneous circumstances and material is not well founded. The proof of alleged irregularities of each charge was grave enough to warrant the findings of the Enquiry Officer that the charges were proved.
17. We are thus satisfied that the entire disciplinary action commencing from the issuance of the fresh sheet and culminating in the impugned order of dismissal are in accordance with law and are not in violation of any principle of natural justice. We do not find any merit in this appeal which is hereby dismissed.
18. No order as to costs.
19. Parties be informed accordingly.