' ABDUL HAMEED DOGAR, C.J.--- Through the instant petition, order dated 17-3-2005 passed by this Court in C.P.L.A. No,10902 of 2003 is sought to be reviewed.
2. Facts of the case in brief are that the petitioner joined F.I.A. As Inspector on 15-7-1976. He was promoted as Assistant Director on 13-10-1998. On 15-4-1997 he was placed under suspension and was served with a charge sheet on 17-5-1997. Mr. Zia-ud-Din, Deputy Secretary, Interior Division was appointed as an Inquiry Officer. His inquiry report was considered to be wanting in many respects by the authorized officer i,e, Secretary, Ministry of Interior, who ordered de novo inquiry. The petitioner was consequently served with an amended charge sheet and statement of allegations on 23-8-1997. Mr. Saad Sharif, the then Director Bureau of Police Research and Development, Islamabad, was appointed as an Inquiry Officer. The petitioner submitted his reply to the charge sheet denying the allegations. Inquiry Officer after hearing the petitioner submitted his report on 1- 12-1997 and found him guilty. Authorized Officer having considered and accepted findings of the Inquiry Officer, served the petitioner with a show-cause notice dated 3-12-1997 inquiring him to show cause as to why the major penalty of dismissal from service may not be imposed on him. The petitioner denied the allegations and on his request, personal hearing was afforded to him by the Authorized Officer on 4-4-1998. The authorized Officer, finding the explanation furnished by the petitioner, as satisfactory, exonerated him from all the charges and recommended for his reinstatement in service. However, the Authority, after having considered the record of the proceedings and being satisfied with the findings of the Inquiry Officer and not accepting the recommendations of the Authorized Officer, in exercise of the powers under Rule 3 read with Rule 5(1)(iv) of the Government Servants (Efficiency and Discipline) Rules, 1973, (hereinafter referred to as the E&D Rules, 1973), imposed major penalty of compulsory retirement from service with immediate effect vide notification dated 18-1-1998, in terms of Rule 4(1)(b)(ii) of the E&D Rules, 1973.
The petitioner preferred departmental appeal on 25-7-1998 and on failing to get any response, filed appeal before the Federal Service Tribunal. The FST upheld the order of award of major penalty vide its judgment dated 18-10-2002 which was assailed by the petitioner before this Court in Civil Appeal No, 1700 of 2002, and this Court vide its judgment dated 27-5-2003 set aside the Tribunal's aforesaid judgment and remanded the case for decision afresh within a period of two months. The F.S.T. Vide its judgment dated 26-7-2003, again dismissed the petitioner's appeal which was assailed before this Court through C.P.L.A. No, 1902 of 2003, and was dismissed vide the judgment under review, hence this petition.
3. Learned counsel for the petitioner has submitted that the Authorized Officer while disapproving the report of the inquiry officer had exonerated the petitioner from all the charges and recommended for his reinstatement in service vide order dated 29-4-1998, hence, if the authority was to disagree with his findings or recommendations then it was incumbent on the authority to have served the petitioner with a notice within the purview of rule 6-A of the E&D Rules, 1973. The learned F.S.T. Observed that since the order of imposition of major penalty of compulsory retirement was passed by the Authority against the petitioner under Rule 5(1)(iv) of the E&D Rules, 1973 and not under Rule 6-A, therefore issuance of notice under rule 6-A of the E&D Rules, 1973, was not necessary. He added that since under Rule 5(1)(iv) the case was to be sent to the authority only for confirmation of the major penalty and not otherwise and in petitioner's case the authorized officer had recommended for his exoneration, therefore, order passed by the authority could not have been presumed to be under Rule 5(1)(iv) of the E&D Rules, 1973. He has further contended that, if at all, action was required to be taken under section 6-A of the E&D Rules, 1973, as it was the case of the department before the F.S.T., then issuance of show-cause notice was a must. He maintained that authority can exercise jurisdiction only under Rule 6-A as in case of disagreement Rule 5(1)(iv) does not envisage exercise of such authority. It is further his case that since the findings in the judgment under review are not in consonance with the law laid down by this Court in a number of cases, (i) Chief Director, Central Directorate of National Saving, Islamabad v. Rahat Ali Shervani 1996 PLC (C.S.) 383=1996 SCMR 248, (ii) Maqsood Ahmed Sh. v. Islamic Republic of Pakistan through Secretary, Establishment 1987 SCMR 1562 (iii) Muhammad Younas v. Secretary Ministry of Communications 1993 SCMR 122, wherein it was held that if a case disposed of by the authorized officer under Rule 5(1)(iv) is intended to be reviewed by the Authority in exercise of the power under Rule 6A, then no order adverse to the interest of the accused officer could be passed without affording him an opportunity of hearing. He submitted that this Court while deciding the C.P.L.A. Vide the judgment under review too, proceeded on the premise that action against the petitioner was taken by the authority under Rule 5(1)(iv), hence the impugned judgment may be reviewed and while allowing the pc tition/appeal impugned judgment passed by the Federal Service 1 ibunal as well as notification dated 18-7-1998 whereby major penalty of compulsory retirement was imposed on the petitioner by the Authority may be set aside.
4. Ms. Nahida Mehboob Elahi, Deputy Attorney General on the other hand, while controverting the contentions raised by the learned counsel for the petitioner, submitted that since action was taken against the petitioner under Rule 5(1)(iv) of the E&D Rules, 1973 and it was not under section 6-A as has been observed by the F.S.T. And upheld by this Court in the judgment under review, therefore, issuance of fresh show-cause notice before imposition of major penalty, by the authority was not required. She, however, found great difficulty in answering the query as to whether the Authority in exercise of power under section 5(1)(iv) was empowered or competent to pass. Order for imposition of major penalty of compulsory retirement, when the authorized officer had recommended for petitioner's exoneration and had not sent the case for imposition of major penalty.
5. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case minutely, with their assistance.
6. Before dealing with the contentions of the learned counsel for the parties, it would be highly appropriate to go through the relevant observations, made in the judgment under review which read as follows:-- "16. The above-mentioned shows that the Tribunal, while passing the impugned judgment, has dealt with in detail, all aspects of the matter. The inquiry officer dropped a large number of charges against the petitioner. This shows his impartiality. The factual aspects have been dealt with by the Inquiry Officer, the Authority and the Tribunal and the conclusions drawn are based on the evidence available on record and do not suffer from any misreading or non-reading of evidence or any legal infirmity. The Inquiry Officer had found him guilty as above and although the Authorized Officer had recommended the petitioner's exoneration but the Authority had agreed with the findings of the Inquiry Officer and had not agreed with the recommendations of the Authorized Officer and as such, there was no requirement of issuance of any fresh show-cause notice. The authority, competently and lawfully exercised its powers under Rule 5(1) (iv) of Government Servants (E&D) Rules, 1973. The Authority was within its right, either to agree with the Inquiry Officer or to accept the recommendations of the Authorized Officer. Therefore, no exception can be taken to its decision in this respect. The recommendation of petitioner's exoneration by the Authorized Officer was merely a, recommendation to the authority and the said recommendations did not create any vested right in the petitioner to be exonerated and under the above said sub-rule (iv), the Authority can pass such orders as it may deem proper. The final decision was to be taken by the Authority. Recommendation by the Authorized Officer to drop charges, would not take away power of Authority to impose penalty. The order of the Authority having been passed after full consideration of finding of inquiry Officer, was not open to objection." (underlining is ours)
7. As to the first contention raised by the learned counsel for the petitioner that action in the instant case was not taken' by the Authority against the petitioner under section 5(1)(iv) and it was in fact under section 6-A of the E&D Rules, 1973, it may be mentioned here that although the Service Tribunal in its judgment had categorically observed that section 6-A was not invoked yet, the record belies the same because in parawise comments furnished by the respondents before the FST it was, in reply to paras. 4 & 5, categorically pleaded that major penalty of compulsory retirement from service was inflicted on the petitioner by the Authority in exercise of powers under section 6-A of the E&D Rules, 1973. The relevant extract from the parawise comments is reproduced hereinbelow for ready reference.
"The competent Authority having applied his mind imposed major penalty of the compulsory retirement from service on the basis of charges proved against the appellant in exercise of powers vested upon him under Rule 6(A) of the Government Servants (E&D) Rules, 1973. There is nothing mala fide on the part of Authority."
' The above position stands affirmed vide letter dated 2-10-1998 written by the then Establishment Secretary to the Principal Secretary to Prime Minister, copy whereof has been placed before us by the learned counsel for the petitioner vide C.M.A. No, 907 of 2006 which reads as under:-- "14. The disciplinary case of Mr. Ehsanullah was processed under Rule 6-A of the Government Servants (E&D) Rules, 1973 and it was found that the indulgence of the appellant in speculative purchase of prize bonds and holding of assets disproportionate to his known means of income were squarely established. It was, therefore, proposed to the Authority to consider imposition of a major penalty of Compulsory Retirement on Mr. Ehsanullah. The authority approved the same and notification for the Compulsory Retirement of the officer as at Annex. J was accordingly issued by the Interior Division on 18th July 1998. This notification has already taken effect. The facts proved in the case afforded sufficient ground for imposition of the penalty which is considered justified. It is, therefore, proposed that the appeal of Mr. Ehsanullah may be rejected.
15. The Prime Minister in his capacity as the 'Authority' may be pleased to consider advising the Appellate Authority; the President of Pakistan to reject the appeal of Mr. Ehsanullah, in terms of rule 6 of the Civil Servants (Appeal) Rules, 1977.
(Sd.) (Muhammad Afzal Kahut), Establishment Secretary Principal Secretary to P.M.
(Mr. Muhammad Saeed Mehdi), IBD Esst. Divn. U.O.No,8/57/98-D.3 dated 2-10-1998.
' Hence, it stands confirmed that in petitioner's case Rule 6-A of the E&D Rules was invoked and case of the petitioner in the judgment under review proceeded altogether on wrong premise that the authority acted under section 5(1)(iv) of the E&D Rules, 1973. The underlined portion, from the judgment under review reproduced in para. (supra) is explicit in this regard.
8. Before proceeding further it would also be advantageous to have a glance at section 5(1)(iv) of the E&D Rules, which reads as following:-- "5.Inquiry procedure.--(1) The following procedure shall be observed when a Government servant is proceeded against under these rules:-- 1.
2. ..
3.
4. On receipt of the report of the Inquiry Officer or Inquiry Committee or, where no such Officer or Committee is appointed, on receipt of the explanation of the accused, if any, the authorized officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty he shall pass . If it is proposed to impose a major penalty, he shall forward the case to the authority along with the charge and statement of allegations served on the accused, the explanation of accused, the findings of the Inquiry Officer or Inquiry Committee, if appointed and his own recommendations regarding the penalty to be imposed. The authority shall pass such orders as it may deem proper".
9. Adverting to the next contention of learned counsel for the petitioner that if action, at all, was required to be taken under section 6-A or was taken thereunder, then a notice was mandatory, it may be pointed out here that in the originally promulgated rule 6-A, though the Authority while proceeding under the said Rule was not obliged to issue any show-cause notice to the accused, yet pursuant to observations made by this Court in the cases of (i) Chief Director, Central Directorate of National Saving, Islamabad v. Rahat Ali Sherwani 1996 PLC (C.S.) 383=1996 SCMR 248, (ii) Maqsood Ahmed Sh. v. Islamic Republic of Pakistan through Secretary, Establishment 1987 SCMR 1562 (iii) Muhammad Younas v. Secretary Ministry of Communications 1993 SCMR 122, the said rule was amended and new sub-rule (2) was inserted therein vide SRO-74(1)/2001, dated 2-2- 2001 which requires that no action under the said rule can be taken unless the authorized officer designated by the authority has informed the accused in writing of the grounds on which it is proposed to make the order and the accused has been given an opportunity to show cause against the same, including an opportunity of personal hearing, if requested by him, particularly when the authority contemplates to pass an order adverse to the interest of the accused. The amended rule 6-A of the E&D Rules, 1973 for the sake of convenience and ready reference is also reproduced herein below:-- "6A. Revision.--(1) Subject to sub-rule (2), the authority may call for the record of any case pending before, or disposed of by the authorized officer and pass such order in relation thereto as it may deem fit;
(2) No order under sub-rule (1) shall be passed in respect of an accused unless the authorized officer to be designated by the authority has informed him in writing of the ground on which it is proposed to make the order and has been given an opportunity of showing cause against it, including an opportunity of personal hearing if requested by the accused or is otherwise necessary in the interest of justice, in particular, when the authority contemplates to pass an order adverse to the interest of the accused."
' No doubt, pursuant to order for de novo enquiry, the petitioner was served with an amended charge sheet along with statement of allegations, on 23-8-1989 which could have been taken in due compliance of the requirement under sub-rule (2) of rule 6-A of the E&D Rules, if proceedings would have been carried out under Rule 5(1)(iv) of the E&D Rules, 1973, and authorized officer had recommended for imposition of penalty on the petitioner within the ambit of rule 5(1)(iv), but since, in the instant case, the authorized officer had exonerated the petitioner of the charge, therefore, in our view, the charge sheet served earlier on him, had lost its efficacy and thus could not have satisfied the requirement of Rule 6-A of.The E&D Rules, 1973, because if the Authority had to proceed against the petitioner under Rule 6-A then it was incumbent on the authority to have served a fresh notice/charge sheet on him and he, in all fairness, should have been given opportunity of showing cause against the proposed action, as none can be condemned unheard in violation of the maxim "audi alteram partem".
10. In view of above discussion, we find merit in this review petition, which is allowed, order dated 17- 3-2005 dismissing the CPLA No,1902 of 2003 is recalled, the petition is converted into appeal and is allowed, and the impugned judgment dated 26-7-2003 passed by the Federal Service Tribunal, Islamabad, as well as notification dated 18-7-1998 whereby major penalty of compulsory retirement was imposed on the petitioner by the Authority is set-aside.
Review accepted.