RASHID ALI MIRZA (MEMBER).--- While he had been serving as Librarian (BPS-16), Regional Campus, Karachi, the appellant was removed from service of A.I.O.U. Under Removal from Service A (Special Powers) Ordinance, 2000 vide Notification, dated 23-12-2002. He preferred a departmental appeal to the respondents on 1-1-2003 which remained unreplied hence this appeal.
2. Briefly, the history of this case, gleaned from the record, is that vide order, dated 22-10-1997 the appellant on the demise of Mr. Ghulam Abbas Maka, Deputy Regional Director, Regional Campus Sukkur was ordered to look after the A.I.O.U. Regional Office/Centre, Sukkur, as well as to act as Drawing and Disbursing Officer as he was senior and his reputation was very much appreciateable by the superiors of A.I.O.U. On 5-1-2002 the appellant was issued a letter from the Chairman Enquiry Committee of respondent regarding misappropriation of funds. The appellant replied the same refuting the allegation therein. He stated that in the preliminary enquiry the payment of 8 part time tutors was alleged against him for which he had already submitted the proper receipts obtained from all these tutors and thus, this allegation could not be proved in the past and now it is once again alleged and his reply is the same. He stated that all the payments were handed over to Ex- Assistant Regional Director, Mr. Kalimullah Memon who after wrote letters to all the part time tutors and verified the outstanding if any but there was nothing outstanding on the account of part time tutors remuneration. After verification and being satisfied from the accounts record he issued, a No Dues Certificate to the appellant which is sufficient proof. He stated that after issuance of this certificate he was relieved from Sukkur and proceeded to join Regional Campus Karachi. He denied to have misappropriated any amount and stated that he is innocent and as such liable for every sympathy as he is not at fault to be blamed in any matter, relating to misappropriation of fraud which neither he can think of it nor dream of it.
4. The written comments have been filed on behalf of the respondent wherein punishment of dismissal imposed upon the appellant has been justified.
5. We have heard the learned counsel for the parties and perused the record.
6. The learned counsel for the appellant argued that the appellant B has not committed any misconduct as alleged. The learned counsel stated that in view of the denial of serious allegations of fact by the appellant a regular enquiry was absolutely necessary, but no proper enquiry was held. No witnesses were examined and on the basis of preliminary enquiry only he was illegally removed from service. He contended that dismissal order was signed by Mr. Tariq Mehmood Khokhar, Assistant Registrar-I, who is neither Authorized Officer nor authority to do so. He placed reliance on 2001 PLC (C.S.) 1123 in case of Saleem Raza v. Government of Sindh and others. He further contended that paragraph 3 line 4 of the dismissal order clearly proves that penalty was not imposed but the gentleman who signed the dismissal order was not competent at all. He further contended that charge-sheet was issued by Prof. Dr. Muhammad Rashid, Chairman Enquiry Committee. The appellant attended the inquiry and submitted reply of the charge-sheet but in supersession a fresh charge-sheet was issued by the Special Enquiry Committee which clearly shows the mala fides of higher authorities to have enquiry report according to their wishes and to dismiss the services of the appellant. He further contended that not a single allegation is discussed by the Committee nor it is mentioned that allegations are fully proved.
7. The learned counsel for the respondents stated that the charge of misappropriation against the appellant was prima facie proved and the disciplinary action taken against him was justified.
8. We have considered the above submissions of both sides. The proceedings against the appellant had been initiated under Removal from Service (Special Powers) Ordinance, 2000 and he was also punished under the same Ordinance. Broadly speaking the procedure for initiating the disciplinary proceeding is given in section 5 of the Ordinance 2000 Removal from Service, authority shall pass an order in writing wherein charges and statement of allegations have to be mentioned and the Enquiry Officer or the Committee shall then communicate to the accused such charges and statement of allegations. On denial of charges and allegations by the accused the Inquiry Officer or the Committee shall hold inquiry during which accused shall be given chance to cross- examine the witnesses and to bring on' record his defence, if any. Thereafter, second show-cause notice of the proposed penalty has to be given to the appellant along with copy of inquiry report.
This is to be followed by appropriate penalty by the competent authority. Under section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000, the competent authority is empowered to dispense with the inquiry under subsection (1), if it is in possession of sufficient documentary evidence against the accused or for the reasons recorded in writing, it is satisfied that there is no need of holding an inquiry. In this case the inquiry was held on the basis of question-answers form by the Inquiry Committee. The appellant had denied the allegations, but no witnesses were examined in the preliminary inquiry and the appellant was deprived of his right of cross- examination because his defence was prejudiced. It has been repeatedly held by the Honourable apex Court in a number of cases that on the basis of preliminary enquiry where chance of cross- examination is not given to the accused official, charges cannot be held to have been proved.
Reliance is placed on 1997 TD (Service) 346, 2002 SCMR 1004=2002 PLC (C.S.) 960, 1980 SCMR 850, 1997 SCMR (sic), 2004 SCMR 316, 2004 SCMR 490, 2005 SCJ 455, 2003 PLC (C.S.) 314, 2003 SCMR 1126, 1997 PLC (C.S.) 873, 1993 SCMR 683 and 1440, 1996 PLC (C.S.) 868, PLD 1994 SC 22, 1985 PLC (C.S.) 219 and 245, 1990 PLC (C.S.) 745, 2003 PLC (C.S.) 7, 2003 PLC (C.S.) 365, 2003 SCMR 256, 2004 SCMR 294, 2000 PLC (C.S.) 857, 1992 SCMR 1789, PLD 1994 SC 222, 1996 SCMR 201, 1999 SCMR 841, PLD 1981 SC 176, (sic) SCMR 1987, 1562 and 1463, (sic) PLC (C.S.) 5470, 2004 PLC (C.S.) Supreme Court 1275, 2004 SCMR 1662, PLD 2002 SC 667, 1997 SCMR 1543, 2005 (sic) 878. Since no chance was given to the appellant to cross-examine the witnesses, the disciplinary proceedings against him stood vitiated and in such proceedings the appellant could not have been penalized legally. The Honourable Supreme Court has, repeatedly held that in case of major penalty, where allegations of fact are denied, a regular departmental inquiry is absolutely necessary giving the accused full chance of defending himself by means of cross-examination of the witnesses. Obviously, that had not been done by the Inquiry Officer or Inquiry Committee. In case of charge of misconduct, under section 5 of Removal from Service (Special Powers) Ordinance, 2000 a full-fledged inquiry was to be conducted which had not been done in the case. In case of awarding major penalty, a proper inquiry was to be conducted in accordance with law notwithstanding certain admissions made by the appellant. Reliance is placed on 2004 PLC (C.S.) 344.
7. From the above discussion of the material on record, it is evident that the respondents had not drawn the disciplinary proceedings against the appellant in accordance with law. Over and above all this, the respondent had not given any satisfactory reply to the objections about the competent authority. The definition of competent authority given under section 2(aa) of Ordinance, 2000 is under:-- "Competent Authority means the Chief Executive and where, in relation to any person or class of persons, the Chief Executive authorize an 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."
8. We have carefully considered the above arguments of the learned counsel for the parties. The authorities cited by the learned counsel for the appellant do support his contentions squarely. Not drawing the disciplinary proceedings under relevant law, not holding regular inquiry in a case of major penalty where serious allegations of fact are denied, would definitely vitiate such disciplinary proceedings. Therefore, in view of such discrepancies the impugned order of the respondents removing the appellant from service is not sustainable.
9. We, therefore, allow this appeal, set aside the impugned order and direct the respondent to reinstate the appellant in service. The case is remanded to the respondents to hold de novo proceedings on the same charges giving the appellant full and fair opportunity and allow him to put up his defence. The de novo proceedings shall be initiated and completed within a period of four months from the date of receipt of a copy of this judgment. The question of back-benefits shall depend upon the result of de novo proceedings. No order as to costs.
10. Copies of the judgment be sent to the parties (under registered cover) and to the relevant quarters under Rule 21 of Service Tribunal.