1. N. A. CHOUDHURY (MEMBER).-Appellant, Abdul Rashid, was employed as Stenographer with the Embassy of Pakistan, Indonesia, during 1972-75. He was involved in a racket for smuggling of a car while working in the above capacity. He was charge sheeted by the Secretary, Establishment Division, for the import of a car and having received.An illegal gratification of US $20,000. In the F. I.
2. R. Registered by the Director, Federal Investigation Agency, for the same benefits, it has been mentioned that he secured illegal gratification amounting to US $3,000. The appellant was neither a diplomat, nor an officer and as such was not legally entitled to import a car. Ultimately, the appellant was dismissed from service under the orders of the Secretary (Administration) Ministry of Foreign Affairs, issued on 29th November, 1975. An appeal against these orders was addressed to the Prime Minister on 27th December, 1975, which was dismissed on 18th May 1976. Hence this appeal before the Service Tribunal submitted on 15th June, 1976.
3. The learned counsel for the appellant raised a fundamental point regarding competence of the authorised officer under the powers delegated by the competent authority to issue a charge-sheet and order an enquiry against the accused official. The official was holding a post in Grade 11. In terms of Government notification dated 3rd November, 1973, authorised officer in his case was the Joint Secretary of the Ministry concerned and the authority was the Secretary. The official was charge-sheeted on 11th April, 1975, on 10th April 1975, the delegation of powers operative on the basis of the notification dated 3rd November, 1973 were substantially changed under the orders of the President. The President designated the Prime Minister to exercise the powers of the Authority and to authorize the Establishment Secretary to perform functions of the Authorised Officer under the Efficiency and Discipline Rules, 1973 in respect of the appellant. It was the case of the learned counsel for the appellant that this change in the Authority and the Authorised Officer could be made effective only after the publication of the above order in the Gazette notification of the Federal Government. Since this Gazette notification was not issued, the charge-sheet issued against the accused official was without jurisdiction and without competence. The learned counsel quoted as authority the judgment of their Lordships of the Supreme Court in case of Muhammad Suleman v. Abdul Ghani . In the judgment, their Lordships have held that the contents of the orders should take effect only from the date of their publication in the official Gazette notification and not from any earlier date.
4. The learned counsel further pointed out that the orders of the Authority designated under orders dated 10th April 1975 was the Prime Minister who never passed any orders of dismissal of the appellant. In terms of the Government notification dated 3rd November, 1973, the Authority was the Secretary of the concerned Ministry, in this case the Secretary (Administration), Ministry of Foreign Affairs. No orders of the departmental Secretary were passed for the penalty imposed on the appellant. The orders passed by some other officer of the Government is without jurisdiction and without competence. These orders were communicated by the Secretary Foreign Affairs.
5. He further argued that according to the mandatory provision of the E & D Rules, 1973 and the procedure prescribed thereunder, it is a clear requirement that the witnesses cited by the accused official should be produced and opportunity should also be provided to him to cross-examine them. In the present case, the accused official requested the Inquiry Officer to produce a particularly named person as witness. Instead of producing that witness, the Inquiry Officer asked the appellant to produce that witness from the defence side if so desired by him. Since the administration has refused to call a particular witness named and demanded by the accused official, mandatory provision of the rules, as mentioned above, has been violated. In the circumstances, it was the case of the learned counsel for the appellant, that the whole proceedings of disciplinary action stand vitiated for non-observance of a mandatory procedural provision.
6. The learned counsel also pointed out that the punishing authority (Prime Minister) did not apply his mind to the facts of the case before passing the punishment order and relied on the findings of the Inquiry Officer and recommendations of the authorised officer by recording only his agreement to the recommendations. The learned counsel quoted a a number of authorities in support of the contention that where only an agreement is recorded, it is reasonable to infer that the concerned authority/officer has not applied his mind.
7. The learned State counsel briefly argued the case that since the President's order regarding the changed Authorised officer and the Authority were issued before charge-sheeting the accused official, such orders had become operative and the action taken under those orders of designation of Authorised officer and the Authority were competent.
8. Regarding the refusal to call a particular witness demanded by the accused official and denial of cross-examination, the learned State counsel tried to make a point that as the official was allowed freedom to call that particular person needed by him as witness from his own side, the basic provision of the rule to call a particular witness has not been violated.
9. Regarding the orders of the Prime Minister, the learned State counsel read various portions of the summary submitted to the Prime Minister in connection with the punishment awarded to the appellant. He pointed out to the order of agreement recorded on the file by the Prime Minister to the recommendations made in the summary.
10. After hearing both the parties, we have examined all the points raised by the learned counsel for the appellant and State carefully, we have the following conclusions to record :-
(a) In view of the clear authority of the Supreme Court, referred to by the learned counsel for the appellant, that a particular order takes effect from the date it is notified in the official Gazette, we1 have no alternative but to accept the contention of the learned counsel. It is logical and reasonable, particularly because there A is no other authentic source through which such orders can be brought to the notice of a civil servant who is governed by these instructions and orders.
11. Even the press report cannot be relic on in most of the cases.
(b) We do not agree with the learned State counsel that the mandatory provision of the rules regarding calling a particularly named witness has not been violated. Under Rule 6 (3), it is an absolute right of the accused official to cross-examine the witnesses against him. If a particular witness named by him is not produced, it is tantamount, to denial of the right of cross-examination B of that witness and hence denial of the reasonable opportunity contemplated in the rules to be afforded to the accused civil servant. This is sufficient to vitiate the whole proceedings of the disciplinary action.
(c) We have examined the file containing the summary on which orders of the Prime Minister are said to have been recorded. On receipt of the recommendations of the Authorised Officer along with the findings of the Inquiry Officer, the Establishment Division prepared a summary which contained a proposal for the departmental action as well as prosecution under the normal law for prevention of corruption and for violation of Foreign Exchange Regulations. The Prime Minister ordered an independent examination of the issues by the Attorney General. The Attorney General made recommendations only in favour of action for prosecution giving reasons for his proposal.
12. The Prime Minister har recorded in his order that.... "I agree with the Attorney General. "The plain meaning of these orders of the Prime Minister, as we can see, is to conduct prosecution against the accused official and no departmental action has been ordered by the Prime Minister. We have also not been shown any file or orders regarding the dismissal of the appellant by the Establishment Secretary or by the Secretary (Administration), Secretary of Foreign Affairs. In these circumstances, this point also goes against the respondent.
(d) If the orders regarding the Authorised Officer and the Authority dated 3rd November, 1973 are considered applicable and operative ; the orders for dismissal should have been passed by the Secretary (Admn.), of the Ministry of Foreign Affairs. In that case, the enquiry proceedings should have been ordered by the Joint Secretary concerned of the same Ministry. We do not find any action taken by these two functionaries at the relevant stages in this case. On the other hand, if we concede that the orders dated 10th April, 1975 were applicable and operative under which the redesignated Authority vested in the Prime Minister and the Secretary, Establishment Division was made the Authorised Officer, we do not find the orders of the Prime Minister, as mentioned earlier, although the Establishment Secretary has functioned as redesignated Authorised Officer. The net result is that the order of dismissal passed against the appellant is without jurisdiction and of no legal effect.
13. In the above circumstances, the appeal is accepted as the respondent department has absolutely no case for defence. The appellant should be reinstated into service with effect from the date he was dismissed, with all the consequential benefits becoming admissible to him under the normal rules.
14. Before closing the judgment on the case, we take notice of an important fact discovered during the examination of the files regarding the absence of orders of the Prime Minister. The Ministry of Foreign Affairs Y. Had made a misstatement on page 4, para. 1 of their written objections furnished through the learned State counsel. The written objections are accompanied by a usual verification on oath recorded on 26th June, 1978. The written objections categorically state that orders of the Prime Minister C were obtained whereas no such orders are prosent on the file examined during the course of hearing. The Service Tribunal expects the administration to verify the facts carefully before making any such statements on oath.
15. Parties be informed accordingly.