Ch. Ejaz Yousaf, J.--This appeal by leave of the Court is directed against judgment dated 04.08.2004 passed by the Federal Service Tribunal, Lahore, whereby appeal filed by the petitioner against imposition of major penalty by reduction in rank was dismissed.
2. Facts of the case, in brief are that the appellant was awarded major penalty of reduction in rank from ASI to that of Head Constable by Respondent No, 1 vide order dated 16.4.2003 on the basis of show-cause notice dated 17.1.2003, dispensing with regular inquiry. The allegation against the petitioner was that he, during investigation of the case FIR No, 163, dated 20.11.2002 u/S. 337-A(1)
(2)/34 PPC, registered at P.S. Aroti, had obtained a sum of Rs, 3500/- as `gratification from complainant Muhammad Ali s/o Sultan. The appellant preferred departmental appeal before Respondent No, 2 which remained unfruitful and was dismissed vide order dated 9.1.2004. Being aggrieved, the appellant approached the Federal Service Tribunal but in vein. The appeal filed by him was dismissed, vide the impugned judgment, hence this petition.
3. It has been mainly contended by the learned counsel for the petitioner that since reduction in rank was a major penalty within the purview of Section 4(b)(i) of the Government Servants (E&D)
Rules, 1973 (hereinafter called as "E&D Rules, 1973), hence regular enquiry could not have been dispensed with in the case of the appellant. It is further his grievance that before imposition of major penalty, neither any evidence was recorded nor the appellant was afforded opportunity to lead his defence, hence, it being in contravention of Section 6 of the E&D Rules, 1973 the impugned judgment is not sustainable.
4. Though none despite service has appeared on behalf of the respondents yet, while giving our anxious consideration to the contentions raised by the learned counsel for the appellant, we have carefully perused the record of the case.
5. No doubt, reduction in rank is one of the major penalties prescribed by rule 4(1)(b)(i) of the E&D Rules, 1973. The said rule reads as follows:-
4. Penalties.--(1) The following are the minor and major penalties, namely:-
(a) Minor Penalties: (i).................................
(ii).................................
(iii).................................
(iv)..................................
(b) Major Penalties: (i)Reduction to a lower post or time-scale, or to a lower stage in time-scale; (ii).................................
(iii) .................................
(iv) ..................................
It appears from the record that though in pursuance of show-cause notice personal hearing was afforded to the appellant by the enquiry officer on 7.4.2004 yet, neither any evidence was recorded or taken by him nor the petitioner was afforded opportunity to rebut the same. It is well settled that if major penalty is required to be imposed on any Government employee, then procedure as laid down in Rule 6 of the E&D Rules, 1973 is required to be adhered to. The relevant provision reads as under:- "6, Procedure to be observed by the Inquiry Officer and Inquiry Committee: Where an Inquiry Committee is appointed, the authorized officer shall--
(1) Frame a charge and communicate it to the accused together with statement of the allegations explaining the charge and of any other relevant circumstances which are proposed to be taken into consideration.
(2) 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 to state at the same time whether he desires to be heard in person.
(3) The Inquiry Officer or the Committee, as the case may be shall inquire into the charge and may examine such oral 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 witness against him.
Here it would also be advantageous to have a glance at Rule 5 of the E&D Rules, which empowers the Authorized Officer to direct enquiry against Government Servant through an Inquiry Officer or an Inquiry Committee which reads as under:- "5. Inquiry Procedure: (1) The following procedure shall be observed when a government servant is proceeded against under these rules:-
(i) In case where a government servant is accused of subversion, corruption or misconduct, the authorized officer may require him to proceed on leave or, with the approval of the authority, suspend him; Provided that any continuation of such leave or suspension shall require approval of the authority after every three months; Provided further that where the authority is President or Prime Minister the powers of the authority under this clause shall be executed by the Secretary, Establishment division. (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 56 shall apply.
(iii) If the authorized officer decides that, it is not necessary to have an inquiry conducted through an Inquiry committee, he shall--
(a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and
(b) give him a reasonable opportunity of showing cause against that action: Provided that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity. (iv) 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 orders accordingly. If it is proposed to impose a major penalty, he shall forward the case to the authority alongwith the charge and statement of all allegations served on the accused, the explanation of the 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.
(2) The exercise or powers under clauses (i) and (iv) of sub-rule (1) by the authorized officers in the Pakistan Missions abroad shall, unless already so provided, always be subject to the approval of the authority."
A bare perusal of the aforesaid provisions lead to the conclusion that no major penalty can be imposed on a Government Servant unless his guilt is properly inquired into by appointing an Inquiry Officer or an inquiry committee within the purview of Rule 5 of the E&D Rules, 1973 and the accused is served with a proper show-cause notice or charge sheet containing statement of allegations on which the penalty is proposed to be inflicted. Law is well settled in this regard. In the case of Jan Muhammad v. The General Manager, Karachi Telecommunication Region (1993 SCM R 1440), the appellant was served with a charge sheet on the ground that he had disobeyed order of his superior which amounted to misconduct. He submitted his reply. After formal investigation order of compulsory retirement from Government service was passed. It was held that Order of compulsory retirement was not sustainable as inquiry was not held in accordance with procedure laid down under Rule 6 of the E&D Rules, 1973, the order, therefore, was set-aside. In the case of Ghulam Muhammad Khan v. Prime Minister of Pakistan & others (PLD 1994 SC 222), while referring to the case of Nawab Khan & another v. Government of Pakistan through Secretary, Ministry of Defence & others (1996 SCM R 802), it was held that there is a marked distinction between Rule 5 and Rule 6 of the E&D Rules, inasmuch as under the former Rule, a regular inquiry can be dispensed with, whereas the latter rule envisages conducting of regular inquiry which would necessitate the examination of witnesses in support of the charges brought against the accused civil servant, his right to cross-examine such witnesses and his right to produce evidence in rebuttal. The question, as to whether the charge of a particular misconduct needs holding of a regular inquiry or not, would depend on the nature of the alleged misconduct. If the nature of the alleged misconduct was such on which a finding of fact could not be recorded without examining the witnesses in support of the charge or charges, the regular inquiry could not be dispensed with In the case of Rashid Mehmood versus Additional Inspector-General of Police and 2 others (2002 SCM R 57) the appellant was acquitted from a criminal, charge by the trial Court. Despite acquittal, he was proceeded against by the department on the ground that since, he had become criminal minded, therefore, was unfit to be retained in service. On finalization of the proceedings, the appellant was dismissed from service. The Service Tribunal maintained the decision of the departmental authority. Appeal was preferred to the Supreme Court which was allowed and it was held that regular inquiry having not been conducted by the departmental authority, there were no basis to hold that the civil servant was guilty of misconduct. Judgment passed by the Service Tribunal was accordingly set aside and the authority was directed to reinstate the appellant in service with back benefits. What to speak of holding of an inquiry prior to imposition of major penalty, in the case of Inspector General of Police v. Shafqat Mehmood (2003 SCM R 207), it was held that failure to associate civil servant with inquiry conducted against him would render the proceedings as unsustainable. In the said case, respondent was dismissed from service on the basis of registration of a criminal case, whereas the judgment of the trial Court, whereby the respondent was acquitted, was not considered by the department. It was born out from the record that regular inquiry, as required under Sindh Police (E&D) Rules, 1988, was not conducted, however, a fact finding committee, to investigate the, matter, was constituted in which respondent was not even allowed to participate. The Tribunal, after careful consideration and following the rule laid down by this Court in the case of Rashid Mehmood v. Additional Inspector General of Police and others (2002 SCM R 57), (supra) allowed the appeal which was up held by this Court.
6. Upshot of the above discussion is that since in the instant case major penalty of reduction in rank was imposed on the appellant without a proper inquiry and recording of evidence, therefore, the impugned judgment dated 4.8.2004' passed by the Federal Service Tribunal, Lahore, as well as departmental order dated 16.4.2003, whereby major penalty of reduction in rank was /inflicted on the appellant are hereby set-aside. Needless to point out that the department shall be at liberty to proceed against the petitioner if deemed appropriate, in accordance with law.