' KHILJI ARIF HUSSAIN, J.--- Briefly stated the facts to decide the petition for leave, directed against the judgment of Federal Service Tribunal dated 30-9-2008 passed in Appeal No,454(R)CE of 2005 are that a charge sheet dated 12-11-2004 was issued to the petitioner under Removal From Service (Special Power) Ordinance, 2000 (hereinafter referred as Ordinance 2000). The allegations against the petitioner in the charge sheet dated 12-11-2004 were that the petitioner have amassed a lot of wealth and properties in the shape of ten plots of various sizes in Islamabad, Lahore, Faisalabad, Gujranwala and Chiniot while service in WAPDA and further he remained incapable of checking the gross irregularities of his immediate subordinates and permitted direct electricity supply at the premises of Mubarak Dairy Dosehra. The petitioner in his reply to the charge sheet gave details of the properties owned and investment made by him including the investment in plots and its source of income, other than monthly salary. Along with reply, he also annexed, various documents in support of his contentions about his source of income other than monthly salary. After reply to the charge sheet the respondent issued shows cause notice dated 20-12-2004 informing him that on the basis of the documentary evidence available, it is not considered necessary to have formal inquiry against the petitioner and that proceedings are being initiated under section 5(4) of the Removal from Service (Special Powers) Ordinance 2000 which might entail imposition "One of the Major Penalties" as specified in the said Ordinance. The petitioner in his reply to the show-cause notice denied the allegations and requested that opportunity of personal hearing may kindly be afforded to highlight the factual position regarding charges mentioned in the charge sheet. Vide order dated 14-1-2005, after taking into consideration reply to show-cause notice and argument advanced during the course of personal hearing, major penalty of compulsory retirement from service was passed. The petitioner firstly preferred representation under section 9 of the Ordinance, 2000 and then filed appeal before the Federal Service Tribunal, which was dismissed on 30-9-2008.
3. Heard Mian Mehmood Hussain, Advocate Supreme Court for the petitioner and Mr. Aurangzaib Mirza, Advocate Supreme Court for the respondents No, 1.
4. Learned counsel for the petitioner vehemently argued that once the proceeding were initiated (charge-sheet was served upon the petitioner) under section 5(1) of the Ordinance 2000 the respondent could not initiate proceedings under section 5(4 of the Ordinance, 2000 dispensing formal inquiry. He further contended that allegation levelled against the petitioner need recording of the evidence, particularly when the petitioner in reply to the charge sheet and the show-cause notice had placed on record sufficient material in support of his contention that whatever properties owned by him were purchased through his lawful and disclosed source of income.
Learned counsel for the petitioner in support of his contentions relied upon the cases of Chief Election Commissioner of Pakistan and others v. Miss Nasreen Pervez, 2009 SCM R 329, Muhammad Haleem and another v. General Manager (Operation) Pakistan Railways Headquarter, Lahore and another 2009 SCM R 339, Zarar Khan v. Government of Sindh and others PLD 1980 SC 310 and Ghulam Hadi Baloch v. Collector of Customs (Preventive) and others 1987 SCM R 602.
5. On the other hand, learned counsel for the respondents argued that sufficient material was available on the record on the basis of which, it was deemed not necessary to hold inquiry, and order for the removal of the petitioner from service was passed after taking into consideration available material.
6. We have taken into consideration arguments advanced by the learned counsel for the parties and perused the record.
7. From perusal of the record it appears that inquiry officer served that charge sheet dated 12-11- 2004 upon the petitioner, wherein respondent alleged that petitioner is holding various plots in his name, and that the petitioner in his reply admitted that the properties mentioned in the charge sheet are owned by him but given details show the said properties were acquired by him. From a glance of reply to the charge-sheet, it appears that most of the properties were purchased by the petitioner in installments. The petitioner had also alleged that he had declared all the properties owned by him in his declaration of assets and personal data forms in the year 1999. He further stated that permission to purchase a car was granted to the petitioner by Managing Director WAPDA, vide his letter dated 1-6-1992, but instead of purchasing car, he invested his savings in the payment of installment of the properties purchased by him from time to time. The petitioner also disclosed in his reply to the charge sheet that he had earne some amount from the sale of the plots and gift given to him by his father. The allegations levelled against the petitioner, keeping in view his reply needed a detail inquiry to establish whether assets owned by him were purchased through lawful source of income or not.
8. In the case of Zarar Khan (supra) it was held that if the authorized officer, chooses to adopt one procedure, he cannot adopt the other and vice versa. In the instance case while serving the charge sheet the petitioner was not informed that respondent had in his possession sufficient documentary evidence and as such there was no need for inquiry. The inquiry officer after receiving the reply to the charge sheet in which petitioner denied all the allegations leveled against him produced documents in support of his contentions, informed the petitioner that no formal inquiry is required, as sufficient material is available with the respondent without given detail, what documentary evidence was in his possession, so as to give an opportunity to the petitioner to put his defence, to satisfy the principle of audi alterm partem.
9. In the case of Chief Election Commission Pakistan (supra) it was held that:--- "(3) It is settled law that when a major penalty is to be 'imposed on a civil servant a regular enquiry is to be held to determine the factual basis of the allegations which are required to be proved in accordance with the law. Moreover, the Removal from Service (Special Powers) Ordinance, 2000 (where under the imposed action appears to have been taken explicitly required a regular enquiry before taking action under section 3 which can in the relevant context only dispensed with under section 5(4) in the event of sufficient documentary evidence being available against the civil servant or for reasons to be recorded in writing showing satisfaction of the competent authority as to absence of need for holding an enquiry. Evidently most of the allegations required explicit proof and no reasons for dispensing with the requirement of an enquiry appear to have been recorded."
' In the case of Muhammad Haleem (supra) it was held that where allegations/charges/misconduct is of the nature requiring production of evidence to prove the same then holding departmental inquiry is necessary and dispensation thereof cannot be made as there would be no evidence of material in possession of the department to establish and prove the charge/allegation of facts, and civil servant proceeded would be deprived of his right to defend himself.
10. On seeing the charge sheet along with its reply we are of the view that the allegations levelled against the petitioner are of the nature which required production of evidence to prove the same.
11. On reading section 5(1) together with section 5(4) of the Ordinance, 2000 it appears that competent authority has to first decide whether to appoint Inquiry Officer or Inquiry Committee to scrutinize the conduct of a person in Government service or a person in corporation service who is alleged to have committed any acts or omissions specified in section 3 of the Ordinance, 2000 or that there is no need of holding an inquiry as it is in possession of sufficient documentary evidence against the accused to proceed without holding any inquiry. The employee/ accused has a right to know nature of the documentary evidence in possession of the competent authority on the basis of which competent authority decided not to hold inquiry, to provide opportunity to him, to put his defense.
12. For the foregoing reasons, this petition is converted into appeal and impugned judgment dated 30-9-2008 of the Federal Service Tribunal, Islamabad, passed in Appeal No,454(R) CE of 2005 is set aside. However, respondents if so advised can proceed against the petitioner by holding a proper inquiry in accordance with law.