Salim Gul Shaikh, Member.--This appeal has been filed by the appellant under Section 4 of the Service Tribunals Act 1973 assailing the impugned Order dated 10.02.1998 whereby he has been dismissed from service.
2. Briefly stated the facts of this appeal are that the appellant was working as Constable in the Anti-Narcotic Force at Turbat. On the night between the 9th and 10th of November 1997, while he was on guard duty from 2300 hours to 0200 hours, he reportedly resorted to aerial firing with his official rifle and also threatened his superior officer SI Humayun Majeed as well as SHO/SI Hafeezullah Pathan. About one month later,. the appellant was served with a brief Show-Cause Notice dated 13.12.1997 which is reproduced below: An inquiry held in Turbat on 13.11.1997 has revealed that while you were detailed for guard duty on 09.11.1997 from 2300 hours to 0200 hours, you resorted to aerial firing and threatening your superior officer Sub-Inspector Humayun Majeed on 09 November 1997 with your official Rifle No, 15211325.
After that you also threatened the SHO Sub-Inspector Hafeezullah Pathan, when he tried to take the rifle from you and then absented yourself along with the rifle from the ANF station for the night 9/10 November 1997".
2. Your reply should reach this office by 20 Dec. 1997 explaining as to why disciplinary action should not be taken against you.
Sd/- (Lt. Col. Jawad Iqbal) Joint Director
3. The appellant veheniently denied the allegations in his reply dated 20.12.1997 describing them as baseless and unfounded.
4. Meanwhile, a criminal case was also registered against the appellant on the same charges vide FIR No, 122/97 under Section 337-H (2) 504 PPC by SHO SI Hafeezullah Pathan as a consequence of which, he was arrested and sent to jail. While under detention, the appellant submitted an application to Respondent # 2 dated 18.11.1997 requesting him not to take any action against him until the criminal case filed against him was decided.
5. On 27.12.1997 however, the appellant was served with Charge-Sheet by the Authorized Officer, Lt. Col. Jawaid Iqbal, accusing him of gross mis-conduct/in-efficiency under Efficiency and Discipline Rules 1973/ANF Ordinance (CNSA-1997). The Statement of Allegations accompanying the Show- Cause Notice stated: "(I) That during your official duty at ANF Police Station at Turbat on 09 November 1997, you resorted aerial firing and threatened your superior officer Sub-Inspector Humayun Maj id.
(II)That you also threatened the SHO/Sub-Inspector Hafeezullah Pathan when he tried to take the rifle from you.
(III)That you had absented yourself from office for the night of 9/10 November 1997, without informing your superior officer."
6. The Charge Sheet also stated that "Mr. Wasiullah Durrani, Sub-Inspector, an officer of the ANF had been appointed Inquiry Officer under sub-rule II of Rule-5 of the Government Servants Efficiency and Discipline Rules 1973 and/ANF Ordinance (CNSA 1997), which was submitted in accordance with the Sub-Rule-III to VII of Rule 6 of the said rule on 8 December 1997." [Note: A reference has perhaps been made here to the Inquiry Report].
7. The appellant submitted his reply to the Charge-sheet on '06.01.1998 again vehemently denying the charges. Finding his reply unsatisfactory, the competent authority passed the impugned order dismissing the appellant from service. The appellant preferred `departmental appeal and subsequently mercy appeal which remained unsuccessful. He preferred an appeal before the Tribunal after being informed that his mercy petition had been rejected.
8. During the hearing both sides informed the bench that they had made written submissions and therefore had nothing more to add by way of arguments. The learned counsel for the appellant in his written arguments assailed the impugned order on the ground that major punishment of dismissal from service has been imposed on the appellant without following the due process of law. It was also contended that since the appellant had vehemently denied the allegations leveled against him, it was incumbent on the authorized officer to order a full-fledged inquiry to ascertain the real facts. This was not done and the impugned action was taken against the appellant on the basis of preliminary inquiry which was illegal in the eyes of law.
9. It was further contended that the appellant was not allowed either to call his own witnesses or to cross examine witnesses. It was also stated that a copy of the inquiry report prepared by SI Wasiullah Durrani was neither given to the appellant nor was opportunity of personal hearing provided to him. It was further pointed out that the Impugned Order was not addressed to the appellant directly. It was jointly addressed to Director General ANF; (ii) AGPR, Sub Office, Quetta (iii)
The Cash Section, ANF, Quetta, and (iv) The official concerned.
10.Finally it was stated that the appellant was acquitted of all charges by the Judicial Magistrate in the criminal case registered against him by SHO/SI Hafeezullah Pathan.
11.In their reply, the respondents stated that the appellant had always maintained an indifferent attitude towards work as a result of which he was served with several warnings. It was further stated that the respondents had fulfilled the legal requirement by holding the regular inquiry into the incident through Sub-Inspector Wasiullah Durrani of the ANF and the appellant was also provided full opportunity to defend himself properly.
12.We have perused carefully the entire material placed on record by both sides. The question for consideration is whether the respondents have fulfilled all legal requirements before passing the impugned order.
13. Admittedly, disciplinary proceedings against the appellant were conducted under the Government Servants (Efficiency and Discipline) Rules 1973. In order to understand the points raised by the appellant in his arguments it will be relevant to briefly recall the essential provisions of Rules 5 and 6 of the said Rules. Sub-rule (II) of Rule 5 refers to the procedure that is required to be observed when a civil servant is proceeded against. The said sub-rule says: "The Authorized Officer shall decide in the light of facts of the case or the interest of justice whether an inquiry should be conducted through an Inquiry Officer or an Inquiry Committee. If he decides that an Inquiry is necessary then the procedure under Rule 6 shall apply.
14.Now Rule 6 says that when an Inquiry Officer is appointed, the Authorized Officer shall--
(I) Frame a charge and communicate it to the accused officer with the Statement of Allegations explaining the charge and of any other relevant circumstances which are proposed to be taken into consideration.
(II)Require the accused within a reasonable time, which shall not be less than seven days or more than fourteen days from the day the charge has been communicated to him, to put in a written defence and state at the same time/Whether he desires to be heard in person.
(III)The Inquiry Officer or the Inquiry Committee as the case may be, shall inquire into the charge and examine such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessary and the accused shall be entitled to cross-examine the witnesses against him.
15.Having perused the material on record, we find that the respondents have committed serious omissions during the course of the disciplinary proceedings which have impaired its credibility in the eyes of law. In the first place, we find that the Charge-Sheet is defective in terms of sub-rule (1) of Rule 6 since it does not indicate the penalty that is contemplated to be imposed on the appellant. In the case of Muhammad Anwarul Haq V/S Government of the Punjab reported in NLR 1985 TD 396, it has held that the Show-Cause Notice should indicate precisely the penalty or penalties that are proposed against delinquent and failure to so would make the order of dismissal nullity in the eye of law. The respondents have failed to meet, this criteria.
16.Secondly, the Inquiry Report does not state whether the witnesses were examined in the presence of appellant or that he was allowed to cross-examine them. We consider, this omission on the part of the respondents as grave violation of the rights of the appellant in the light of sub- rule III of Rule 66 where the word "shall" has been used making it a mandatory requirement to be followed. We are fortified in our view by the judgment in the case of Khalid Parvaiz Butt V/S General Manager (Operation) Power, WAPDA, reported in 1997 PLC (CS) 348 wherein it has been held that inquiry procedure adopted by the department was not in accordance with the procedure as laid down by the law and the appellant was not given adequate opportunity to defend himself. The penalty of removal from service was set aside by the Tribunal.
17.Thirdly, we find that the material placed on record does not provide any evidence about the inquiry report being provided to the appellant before major penalty was inflicted on him. There are a number of judgments of the Tribunal wherein this omission has been considered as serious violation of the law. In this connection, we would like to cite case laws reported in 1991 PLC (CS) 706 (Muhammad Ashraf V/S Member (Revenue), Board of Revenue and another); 1992 PLC (CS) 490 (Zulfiqar Ali V/S Assistant Superintendent of Police, Sargodha) and 1993 PLC (CS) 698 (Shoukat All Shahani V/S Senior Superintendent of Police S.R.P. Sukkur).
18.Fourthly, the accused official was honourably acquitted by the Judicial Magistrate in the case filed by the SHO SI Hafeezullah Pathan vide FIR No, 122/97 on 11.11.1997. The charges against the appellant in this case were the same as those in the Show-Cause Notice dated 27.12.1997 which formed the basis of his dismissal from service.
19.Lastly, the record placed before us reveals that the Inquiry Officer SI Wasiullah submitted his report to the Authorized Officer on 8.11.1997 which was prior to the date on which the first Show- Cause Notice was served on the appellant i.e on 13.12.1997. In our view this is a glaring omission on the part of the respondents which alone makes the entire disciplinary proceedings infirm in the eye of the law. We are fortified in our view by dictum laid down in case of Basharat Ali Vs. Director E&T, Lahore (1997 SCMR 1543); Zaheer Ahmed Vs. WAPDA (2001 SCMR 1566); and Syed Yakoob Shah Vs. PESCO, WAPDA, (PLD 2002 (SC) 667.
19. In view of the fore-going discussion, we are not inclined to accept the averments of the respondents as they have been unable to prepare convincing case. We therefore set aside the Impugned order and reinstate the appellant into service with all back benefits from the date he was dismissed from service.