SAYED MEHAR HUSSAIN SHAH, MEMBER ~ This appeal has been filed by the appellant against the impugned order of his reduction to the lower post for a period of three years or till date of superannuation, dated 7.7.2006 under The Removal From Service (Special Powers) Ordinance, 2000 awarded by the respondent No. 2, against which he preferred departmental appeal on 21.7.2006 to the respondent No. 1. The appeal sent by the appellant on 21.7.2006 remained un-replied and thereafter on expiry of statutory period of 60 days, the appellant had filed this appeal in this ;Court on 18.10.2006.
2. Precise facts leading to the filing of this appeal are that the appellant had been serving as Chief Welfare Officer (BS-18) Staff Welfare Organization Karachi, was taken up departmentally and on 27.7.2004 a regular departmental inquiry was ordered against the appellant by the Secretary Establishment Division indicating therein the following allegations summarily:-
(i) That the appellant executed a lease agreement in respect of plot near Tughlaq House with P.S O.
For a period of 10 years (1993-2003) on 21.11.1992, without seeking approval of the Competent Authority;
(ii) Has executed the lease in favour of P.S.O. Without calling open tenders which is mandatory;
(iii) Has leased out the plot at a rent of Rs. 50,400/- per annum, which is meager as such caused loss to Government;
(iv) Has not obtained-demanded or deposited into Government Treasury the Commission on the sale of Rs. 4,32,000/- I.G. Per year in addition to the prescribed and agreed rent @ Rs. 225/- per every 1000 I.Gs. During each year as per Clause-4(h) of the Agreement;
(v) Has not included the clause of enhancement of annual rent in Agreement;
(vi) Has not followed proper procedure nor protected the interests of Government in executing the agreement.
3. The appellant submitted his reply to the said charges on 30.8.2004 and denied the charges levelled against him. The inquiry was conducted by Mr. Sohail Akbar Shah and as per record, the said inquiry officer submitted his findings to the authority on 22.9.2004 recommencing minor penalty to be imposed upon the appellant keeping in view his 34 years length of service and moreso the appellant was at the verge of retirement.
4. That on receipt of findings from the Inquiry Officer, the competent authority on 4.12.2004 issued show- cause notice to the appellant and copy of the inquiry report was also supplied with the said show-cause notice to the appellant. The appellant again denied the charges in his reply of show- cause notice on 15.12.2004 contending therein that the appellant did not transgress of his authority nor violated any rule. As per his version, there had been no standing instruction from the Director- General Staff Welfare Organization, Islamabad. That the appellant before signing the agreement would have to seek approval from the said officer from Islamabad. The appellant further contended that the Inquiry Officer did not consider the submission of the appellant and inquiry report was drafted by the Inquiry Officer on the basis of presumptions which having no value in the eyes of law. The appellant further contended that no charge-sheet was issued to the appellant by the authority nor proper opportunity was given to him for defending the case. The appellant denied the charges forcefully. As per record, the appellant was called for personal hearing on 7.4.2005 through letter dated 29.3.2005. As per record and as per averments of the advocate for the appellant, the appellant had appeared for personal hearing at the fixed date before the authority at Islamabad. The competent authority did not pass order and ordered for de novo inquiry vide letter dated 19.4.2005 and appointed one Mr. Muhammad Ishaq Soomro, Deputy Administrator of Abandoned Properties Organization, Karachi, who on 10.5.2005 fixed the inquiry, which subsequently was postponed by him on 30.5.2005. The appellant on 9.10.2006 demanded copy of the inquiry report, which was forwarded by the Inquiry Officer to the authority concerned for further disposal.
The authority again did not accept the findings of the Inquiry Officer and ordered for de novo inquiry proceedings on 2.11.2005 against the appellant by appointing an inquiry committee comprising upon Mr. Najumus Saqib Siddiqui, Director Administration, N.I.P.A., Karachi and Mr. Khursheed Khan, Senior Instructor, N.IP.A., Karachi. The said inquiry committee supplied questionnaire to the appellant consisting upon 7 questions, which were replied by the appellant.
The said inquiry committee submitted their findings to the authority on 24.2.2006 recommending that major penalty of compulsory retirement from service may be imposed upon the appellant. On receipt of inquiry report from the inquiry committee, the competent authority on 3.4.2006 issued show-cause notice to the appellant, which was replied by the appellant through his defence reply to show-cause notice on 18.4.2006. The competent authority on 7.7.2006 finally imposed the major penalty of reduction to the next lower post for a period of 3 years or till the date .Of his Superannuation, whichever is earlier, against which the appellant was obliged to send his departmental appeal to the respondent No. 1 on 21.7.2006, which remained un-responded and thereafter the appellant on expiry of 60 days had filed the above-said appeal in this Court on 18.10.2006 well within time.
5. The Advocate for the appellant contended that the impugned order dated 7.7.2006 regarding reduction in rank of the appellant is not maintainable. None of the two Inquiry Officers and finally the inquiry committee did not { examine any prosecution witness and the inquiry report drafted by the inquiry committee is not indicating the defence plea of the appellant. The inquiry committee had recommended imposition of major penalty of compulsory retirement from service against the appellant without any evidence and submission of findings on the length of evidence. The competent authority had pre-meditated mind to punish the appellant. The inquiry against the appellant was conducted in question and answer form. The Advocate for the appellant continued his arguments by stating that there are so many procedural irregularities in the departmental proceeding. Personal hearing was provided but it was just an eyewash. Single lapse of the appellant. Was dealt with major penalty without any substance. The way and procedure adopted by the Inquiry Officer and committee were not as per required standard. The Advocate for the appellant finally concluded that fundamental right of the appellant has been sheerly violated. The Advocate for the appellant placed reliance upon rulings, PLD 2006 SC 175, 1983 PLC (CS) 948, 2006 SCM R 1096, 2006 TD (Service) 85, 1996 SCMR 80?, 1993 SCM R 1440, 2006 SCM R 600, 1014 & 1641, 2006 SLJ 609, SBLR 2006 Tribunal 181, 2001 SCM R 114, PLD 1981 SC 176, PLD 1980 SC 307, 1975' SCMR 455, 2000 SCMR 1376, 1988 SCM R 91, 1991 SCM R 1148, 1999 SCM R 1311 & PLD 1980 SC 310. The Advocate for the appellant finally concluded his arguments with pray that impugned order of reduction to next lower post for a period of 3 years awarded to the appellant, may be set aside with consequential benefits and further stated that appellant through notification dated 19.1.2007 has since retired from service w.e.f. 15.11.2006 and such aspect may also be kept in view while passing order in the subject appeal.
6. The Advocate for the respondents relied upon the comments filed by the department and stated that action taken against the appellant was proper and in accordance with law. The appellant has been penalized keeping in view the commission of his misconduct on the basis of evidence.
7. We have heard the arguments of both sides and perused the record, lt is admitted fact that no regular departmental inquiry in proper way ever was conducted against the appellant, no complainant and prosecution witness was ever called for and examined by the inquiry committee presence of accused official, repeated inquiries were ordered and recalled by the department and reason thereof was also not made available for study to the Court. The inquiry committee conducted the inquiry in questions and answers form, which is not the requirement of law. The appellant having unblemished record of service and on the first lapse has been taken up severely.
The finding of the inquiry committee is not supported by any kind of oral, documentary and circumstantial evidence. The penalty awarded to the appellant is without any substance. Authority if any is required i.e. 2000 SCMR 1376, 2009 SCM R 281 & 2009 SCM R 29. The order of reduction to the next lower post for a period of three years dated 7.7.2006 as such awarded to the appellant is set aside with all consequential benefits and his pension and other dues as such may be further calculated and paid to the appellant in view of the above-said orders.
Parties be informed accordingly.