MALIK ZAWWAR HUSSAIN (MEMBER).-Th is appeal has been filed against the order dated 3rd January 1980 issued by the Secretary Education where by the appellant was removed from service with immediate effect and it was also ordered to recover the financial loss caused by her to Government on account of her irregular acts while posted as Headmistre s, Government Girls High School, Khanqah Dogran, District Sheik supura, from her pension. Since her review petition against the orderh was not disposed of within the prescribed period of 90 days so she had preferred the present appeal before this Tribunal, praying that the impugned order be set aside and she be re- instated in service with all the back benefits.
2. The facts of the case are that while the appellant was posted as Headmistress of the Government Girls High School, Khanqah Doran, she was served with a charge-sheet dated 23rd December 1978 containing 15-charges which was later on amended vide order dated 8th March, 1979. Thc allegations against the appellant were with regard to her absence from the School, preparation of fictitious record and misappropriation of the School Funds. The charge-sheet along with the statement of allegations was served upon the appellant by the Authorised Officer i,e, Director, Public Instruction and consequently the enquiry was conducted by Lt-Col. (Retd.)
Muhammad Yousaf, 0. S. D. IV (Esq.) SGA&E Department. During the enquiry 10 witnesses were examined on behalf of the Department while the appellant produced 5 witnesses in her defence.
The appellant also produced her written statement to supplement her reply to the charge-sheet.
The Enquiry Officer also examined a Court witness to arrive at a just decision of the case. After the conclusion of the enquiry, the said Enquiry Officer found that out of 15 charges. Charge No, 10 was not proved against the appellant while-the remaining charges were held to be proved against the appellant. The Enquiry Officer submitted his Enquiry Report along with the record, etc. To SGA&1D which were transmitted by them to the Director, Public Instruction I. e. The Authorised Officer. It appears from the record that the Authorised Officer submitted the file to the Authority along with the recommendations who later passed the impugned order after giving a persona! Hearing to the appellant in accordance with the rules.
3. We have heard Mr. M. A. Riaz learned counsel for the appellant and Mr. H. R. Cheema, learned District Attorney, assisted by Mr. Rashid Ahmad Bhatti, Departmental Representative, and have also perused the record of the case. It has been argued on behalf of the appellant that the Enquiry Officer did not permit the appellant to cross-examine the witnesses except one witness which is in violation of rule 7 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 which has vitiated the entire proceedings. It has also been argued that the Enquiry Officer has relied upon the statements of witnesses which were presented by Mrs. F. B Saleem. It has further been submitted that although these witnesses could have been produced by the prosecution but they had been withheld. As such, these statements do not carry any weight and cannot be read in evidence because these witnesses were not presented by the prosecution for cross-examination. It has also been argued that the Enquiry has not been conducted according to the rules. To supplement it, the learned counsel has argued that the Authorised Officer had not issued any show-cause notice or given any personal hearing to the appellant before making his recommendations for imposition of major penalty to the Authority. In support of this contention he has relied upon the judgment of the Supreme Court reported as Syed Mir Muhammad v. N.-W. F. P. Government through Chief Secretary . On facts it has been argued that the finding on Charge No. 1 regarding wilful absence is erroneous because the Enquiry Officer has considered and relied upon extraneous matters which may have influenced his mind. To supplement this argument he has submitted that Charge No. 1 was only regarding her absence for three days but the Enquiry Officer has also included other dates which were not the subject-matter of Charge No. 1. It has also been argued that the evidence produced by the prosecution do not prove the other remaining charges as well. On the other hand, the learned District Attorney has argued that the appellant was given an opportunity to cross .Examine all the witnesses by the Enquiry Officer and the statements of witnesses appended with the written statement amply prove that not only an opportunity to cross.Examine the witnesses was afforded to the appellant but she did avail it and had in fact cross-examined the witnesses.
Regarding the non-issuance of a show-cause notice by the Authorised Officer he has argued that two procedures have been laid down in rule 6 of the Punjab Civil Servants (E & D) Rules, 1975 and in the present case the procedure of enquiry through the appointment of an Enquiry Officer was resorted to by the Departmental Authority and there is no provision in the rules requiring the Authorised Officer to issue any show-cause notice before making recommendations for imposition of major penalty to the Authority. Regarding the written statements produced in evidence by the prosecution witnesses he has submitted that even if these statements are excluded from the evidence even then there is sufficient evidence to bring home the charges to the accused. It has also been argued on behalf of the respondent that the Enquiry Officer has confined himself only to the material on the file and the charge-sheet only and has not imported any extraneous matter.
He has taken us through Charge No. 1 to show that this charge not only pertained to the absence of the appellant for three days but it also contained an allegation that the appellant had not been attending the School regularly and has been marking her attendance in the Attendance Register fictitiously, and to argue that the Enquiry Officer has rightly relied upon the evidence regarding the appellant's irregular attendance or absence from School on other dates.
4. We have given or anxious thought to the arguments of the parties and have also perused the record. Without adverting to the merits of the case on facts we feel that the appeal is liable to be accepted only on the legal plane. So we would adhere to it only. We have gone through the1 judgment of the Supreme Court so relied upon on behalf of the appellant. It has been observed by the Lordships of the Supreme Court in case PLD 1981 SC 176 at p. 187 as follows :- It seems to us, therefore, that on a proper construction of rules 5 and 6 read together, it is a statutory requirement that if a formal inquiry is held, then the Authorised Officer should, after he has tentatively decided upon the action he proposes to recommend to the Authority, give an opportunity to the accused Officer to offer his explanation against the proposed action in the light of the finding of the Enquiry Officer or Enquiry Committee, before sending his recommendation to the Authority. This would, of course, necessitate that a copy of the inquiry report be furnished to the accused Officer at this stage, and he should be apprised of the action proposed against him.
' We may observe here that rules 5 and 6 of N.-W. F. P. Government Efficiency and Discipline Rules of 1973 so referred to by their Lordships are synonymous to rules 6 and 7 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975.
5. We have carefully examined the Enquiry File and the other relevant record and we have found that the Authorised Officer i,e, Director Public Instruction did not give an opportunity to the appellant to offer her explanation against the proposed action in the light of the findings of the Enquiry Officer after he had tentatively decided upon the action he proposed to recommend to the Authority and before its submission to it. Consequently, the Authorised Officer before formulating his recommendations for the Authority did not have the benefit of explanation of the appellant in relation to the material A brought on the record during the enquiry proceedings and the findings of the Enquiry Officer. This being essential in order to satisfy the requirements of the law, the failure to do so invalidates the recommendations of the Authorised Officer as also the ultimate order passed on that basis by the Authority against the appellant.
6. In view of the above we set aside the impugned order dated 3rd January 1980 and accept the appeal accordingly with no orders as to costs. PLD 1981 SC 176