' SHEIKH HAKIM ALI, J.--- A doctor, who is at the verge of retirement has come to this Court through the instant civil petition against the judgment dated 22-8-2007 passed by the learned Punjab Service Tribunal, Lahore (hereinafter referred to as the "Tribunal") by which his Appeal No,1598 of 2007, against the award of punishment of compulsory retirement was dismissed.
2. Dr. Muhammad Shahbaz Mufti, the petitioner, was serving as Assistant Director (Research), Semen Production Units, Qadirabad, District Sahiwal, when on 1st November 2005, the Secretary to the Government of the Punjab, Livestock and Dairy Development Department, Lahore had issued an order for appointment of an Enquiry Officer namely Dr. Ashraf Iqbal Mughal under the provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000 (hereafter to be called as the "Ordinance"). In the aforementioned order the charges levelled against the petitioner in seriatim were noted. Reply to the charge-sheet was admit submitted by the petitioner. The Enquiry Officer proceeded against the petitioner in which the petitioner, had afterwards walked out and had not participated. Ultimately, the Enquiry Officer, after conduct of complete enquiry submitted his report to the Director, Livestock Farms, Lahore, against the petitioner, in which he concluded that all the .Charges levelled against him, proved except misappropriation of Rs,7,382.75, Doctor was found guilty. Thereafter, the competent authority, issued a show-cause notice under section 5(4) of the Ordinance to the petitioner to show cause as to why the punishment prescribed by the Ordinance might not be awarded to him. The Secretary, Livestock and Dairy Development Department, awarded the punishment of compulsory retirement on 13-2-2007. This order was challenged by the petitioner before the Tribunal through an appeal referred to above which was dismissed on 22-8- 2007. Hence, this petition for leave to appeal.
3. Petitioner's learned counsel submits that the whole proceedings of enquiry were illegal, as no charge-sheet and statement of allegations were ever communicated by the Inquiry Officer concerned, therefore, the enquiry conducted, report prepared against the petitioner, and acting on that report, ordering compulsory retirement of petitioner, were illegal and unlawful, as the petitioner was condemned unheard. Statements of witnesses were not recorded with his own handwriting by the Enquiry Officer, therefore, the proceedings conducted by him were illegal and liable to be set aside and a fresh enquiry should have been ordered.
4. Contrary to it, learned counsel appearing on behalf of the respondent has supported the impugned judgment by which the petitioner was ordered to retire compulsorily.
5. In para.2 of the order dated 1st November, 2005, the following charges against the petitioner were noted, which para. Is being reproduced for ready reference as under:--- "(2) And Whereas, Secretary, L&DD Department/Authority on due consideration of findings of the probing officers and perusal of relevant record is misconduct and liable to disciplinary action, on account of following charges:-
(i) Wilful abknce from duty from 12-11-2004 to 3-6-2005.
(ii) Misuse of powers by issuing the supply order of purchase of Wheat Bhoosa.
(iii) Misappropriation of Government money amounting to Rs,7382.75 on account of bogus/false purchase of Barseem seed at higher rates.
(iv) Tampering of record and misappropriation of Government money amounting to Rs,98,000 against the supply of 56000 Kgs. Wheat Bhoosa, in connivance with Messrs Muhammad Akram, Office Superintendent, office of Deputy Director Semen Production Unit, Qadirabad District Sahiwal, Liaqat Ali, Ex-Store Keeper, Semen Production Unit, Qadirabad, District Sahiwal, now at Semen Production Unit, Kallurkot District Bhakkar and Messrs Hayat Enterprises, Khanewal.
(v) Filing false and fabricated complaint against the Senior Officer/Incharge."
6. To appreciate the contentions of learned counsel, section 5(1) of the Ordinance is reproduced below:--- "Power to appoint an Inquiry Officer or Inquiry Committee.---(I) If the competent authority considers that an inquiry is necessary it shall, before passing an order under section 3, appoint an Inquiry officer or Inquiry Committee whose convener, shall be of a rank senior to that of the accused or if there are more than one accused, senior to all accused to scrutinize the conduct of a person in Government service or a person in corporation service who is alleged to have committed any of the acts or omissions specified in section 3. In case two or more accused are to be proceeded against jointly the competent authority for the accused senior most in rank shall be the competent authority in respect of all such accused for holding the inquiry jointly. The Inquiry officer or as the case may be, the Inquiry Committee shall---
(a) communicate the accused the charges and statement of allegations specified in the order of inquiry passed by the competent authority,
(b) require the accused within seven days from the day the charge is communicated to him to put in written defence;
(c) enquire into the charge and may 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 witness against him; and
(d) hear the case from day to day and no adjournment shall be given except for special reasons to be recorded in writing and intimated to the competent authority.
' Explanation.--- The order of inquiry and the statement of allegations specified in the said order shall be signed, by the competent authority; provided that where the Governor or the Chief Minister is the competent authority, the same may be signed by such officer as may be authorized in that behalf, and such order and the statement of allegations so signed shall per se constitute the charge-sheet for communication by the Inquiry Officer or the Inquiry Committee to the accused person; and According to section 5(1)(a) read with Explanation, an Enquiry Officer has been saddled with the duty only to communicate to the accused the charges and the statement of allegations, otherwise, the statement of allegations and charges are to be prepared and issued by the competent authority. If the competent authority has directly issued and served the charge-sheet and statement of allegations upon the accused, the aim, purpose and spirit was duly served of the above noted provision, therefore, this point raised has got no .Worth so as to pass the reversal order of the challenged order.
7. We have examined this objection of learned counsel through another aspect also. In the order dated 1st November, 2005, the charges and statement of allegations were noted, to which petitioner had filed written reply to it. We have also found from the record that before the Enquiry Officer, after some time, the petitioner had walked out and the Enquiry Officer had completed the enquiry after obtaining affidavits of concerned witnesses and making a deep and thorough probe into the matter and then had submitted his, report. In other words, petitioner was fully cognizant of the charges and allegations levelled against him at the time of ordering of enquiry and at the stage of commencement of enquiry proceedings as he had submitted reply to it. As to why petitioner avoided to join enquiry proceedings after some time is best known to him, who had opted not to participate into the proceedings. The contention of the learned counsel that the Enquiry Officer had failed to communicate the statement of allegations and the charge-sheet, therefore, the proceedings were vitiated as required' by section 5 of the Ordinance could not be supported through record and evidence. It has not been controverted that the petitioner was issued and communicated the charge-sheet and the statement of allegations, to which reply was submitted by him. In other words, the petitioner was issued statement and allegations and charge- sheet by the competent authority and not by the Enquiry Officer. The statement of allegations and charge-sheet, according to section 5 of the Ordinance were to be issued by the competent authority but it was to be communicated by the Enquiry Officer. As to what illegality was committed by the Enquiry Officer, if he had not communicated the charge-sheet or statement of allegations, if the competent authority had communicated it to the petitioner? We have found that no penalty or its 'effect in case of non-observance of this provision was noted in the aforementioned provision. The failure or lack of Enquiry Officer to communicate the statement of allegations and charge-sheet to the petitioner which were already communicated by the competent authority to the petitioner, could not be held to be against the provisions of section 5 of the Ordinance so as to vitiate the proceedings. It could be merely a failure to comply with a technicality, otherwise, the petitioner was not prejudiced in his defence because the petitioner was served with statement of allegations and charge-sheet by the competent authority himself. When a law has not provided any adverse effect in case of noncompliance of directory provision, the whole proceedings of the Enquiry Officer cannot be vitiated, if any prejudice was not caused to the employee in his defence. The purpose and aim to communicate charge-sheet and statement of allegations to the accused, by the Enquiry Officer was to inform the employee beforehand, to be prepared to defend the allegations being levelled against him which were to be probed against him during the enquiry proceedings. We are fully satisfied that charges and statement of allegations were in the knowledge of the petitioner before the commencement of the inquiry proceedings, therefore, no prejudice was caused to the petitioner if these were not communicated through the Enquiry Officer but were delivered by competent authority himself.
8. As regards the collection of affidavits of the witnesses during the enquiry proceedings, there was no violation of the provision of any law or of the Ordinance, because Enquiry Officer was conferred powers under section 7 of the Ordinance to regulate its own procedure. It is pertinent to point out that petitioner has to blame himself when he had walked out of the enquiry proceedings being conducted against him, without any legal justification and granted an opportunity to the Enquiry Officer, not to record the statements of witnesses in his own hand but considered it fit to receive the written affidavits of the witnesses. Had the petitioner participated in the enquiry proceedings, he could have asked the Enquiry Officer, to record the statements of the witnesses so as to grant him opportunity to cross-examine them in the enquiry proceedings. As he has adopted and opted to walk out from the proceedings, he by his own conduct, had allowed the Enquiry Officer to conduct the proceedings in his own way. In these circumstances, the enquiry proceedings cannot be considered to have been vitiated due to the adoption of this procedure.
9. On merits, we have also noted that first charge levelled against the petitioner was wilful absence from duty with effect from 12-11-2004 to 3-6-2005. While submitting written reply, no specific explanation, as to how the allegation was incorrect or the petitioner had been attending the office or to his assigned work, was mentioned. Even no proof was appended to disprove this allegation.
The same is the case with the other charges levelled against the petitioner which were considered to have been proved against him. Therefore, the judgment rendered by Tribunal cannot be considered and held to be illegal, and amenable to be interfered with by this Court. Resultantly, the leave is refused and the civil petition is dismissed.