' NASRULLAH ACHAKZAI, CHAIRMAN --- Brief facts for filing of this appeal are that the appellant was appointed in the Prison Department, Balochistan, Quetta as Deputy Superintendent Jail (BPS-17). He was serving in the Department for the last so many years and served in many Central & District Jails of Balochistan. The appellant was performing his duties in the Department to the best of his abilities and entire satisfaction of his superiors as Deputy Superintendent Jail at District Jail Quetta, when in the night of 17th and 18th January, 2008 two high profile prisoners escaped form Sub Jail ATF Quetta, on coming to know about that incident the then Superintendent District Jail Quetta (Mr. Ghulam Murtaza) informed the Inspector General of Prison Balochistan, Quetta who further conveyed the message to Secretary Home and Tribal Affairs Department Government of Balochistan. The Inspector General of Prisons after preliminary inquiry, has come to the conclusion that the said persons have made their escape good with the connivance of Jail Staff on duty and the ATF Staff, and it was recommended that the Superintendent Jail, Quetta and Mr. Abdul Qayyum, Superintendent/Incharge Sub-Jail ATF may be placed under suspension.
2. Consequent upon the aforesaid recommendation the services of Mr. Ghulam Murtaza, Superintendent District Jail were placed under suspension and the appellant was directed to look after the charge till the posting of new incumbent. Later on it came to the knowledge of appellant that some inquiry was conducted to prove the escape of two highly profile prisoners under the Chairmanship of Inspector General Prison Balochistan and the Members of Inquiry Committee were Additional Secretary II Home Department and Deputy Inspector General (Special Branch). The Inquiry Committee submitted its report on 29.2.2008 it was recommended that further promotion of the appellant should be banned, after finalization of inquiry Chief Minister (Competent Authority)
Balochistan has been pleased to issue Show-Cause Notice dated 15.5.2010 to the appellant. The appellant submitted a detail reply to the Show-Cause Notice, later on, Secretary Home on receipt of Inquiry Report and reply to the Show-Cause Notice without observing recommendations of Inquiry Committee a summary was sent to the Chief Minister of Balochistan wherein it was proposed that the appellant's rank of Deputy Superintendent Jail (B-17) be reduced to that of Assistant Superintendent Jail (B-16).
3. The Home Secretary by means of Notification dated 4.1.2011 (Impugned Notification) reduced the rank of appellant from Deputy Superintendent to that of Assistant Superintendent Jail the appellant being aggrieved from the impugned Notification filed a representation before the higher authority on 22.2.2011, but the same has not been decided as yet. Hence filed this appeal before this Tribunal.
4. The respondent No, 2 filed reply that the competent authority in the instant case was the Chief Minister who imposed penalty of reduction in rank after adopting all the legal formalities under the relevant law and it is within the competency of competent authority to agree or disagree with the findings and recommendations of inquiry committee. The competent authority after examining all facts of the case and severity of the allegations decided to disagree with the recommendations of the Inquiry Committee and imposed major penalty of reduction in rank. The Inquiry Committee held that the Deputy Superintendent District Jail Quetta was the Chief Executive Officer of the Jail and Sub-Jail ATF was subsidiary Jail of District Jail Quetta, accordingly the Deputy Superintendent being CEO Chief Executive Officer was suppose to supervise and make frequent visit to Sub-Jail ATF but he failed to do so. Therefore, he cannot absolve of the charges of escape of high profile prisoners, the Assistant Superintendent Jail was posted to control the daily affairs of Sub-Jail ATF only. The appellant was served with Show-Cause Notice under RSO, 2000 and penalty was imposed after due opportunity of defence. The competent authority after examining facts of the case and severity of the allegations decided to impose major penalty of reduction in rank to the appellant.
5. The learned 'counsel for appellant inter alia contended that the impugned notification is totally in conflict with the recommendation given by the Inquiry Committee, as it was suggested by the Inquiry Committee that further promotion of the appellant should be banned where as the competent authority without assigning any reasons have imposed major penalty of reduction in rank which caused miscarriage of justice, on the basis of which the impugned notification is liable to be declared as illegal. No proper inquiry in the matter has been conducted by the Inquiry Committee the conclusion drawn by it in respect of appellant are contrary to record. The impugned notification is also in conflict with the order No, I.G.Prs/E-1-4/14942/45, dated 7.12.2007 and other order issued by Inspector General of Prison, Balochistan. The Assistant Superintendent Sub-Jail ATF was under the direct control of Superintendent District Jail Quetta and the appellant could resume the charge only after order of Superintendent of District Jail Quetta which was not on record under the Jail Manual and concerned rules the appellant was not responsible for the security and day to day affairs of Sub-Jail ATF, while Sub-Jail ATF is miles away from District Jail Quetta where the appellant was performing his duties neither the Superintendent District Jail directed the appellant to visit or look after the affairs of Sub-Jail ATF nor the Assistant Superintendent Sub-Jail ATF has informed the appellant about any administrative or security problems in Sub-Jail ATF. Thus the appellant is not responsible for the escape of high profile prisoners. As the competent authority has not considered the cumulative effects of the inquiry report wherein it has been held that Assistant Superintendent Sub-Jail ATF has been appointed on political basis and the appellant has no role in the appointment/posting of Assistant Superintendent, Warders at the ATF Sub-Jail Quetta and he lastly contended that the high profile prisoners has made their escape with the connivance of the Staff posted over there and no care has been taken by the competent authority to post such type of personals at high sensitive Jail, thus the appellant is not at fault on any account. The learned counsel for appellant further contended that the Chairmanship of Inquiry Committee by the then Inspector General Prison Balochistan was also not justified as such, the impugned notification is liable to be set aside.
6. On the other hand the learned Assistant Advocate General Mr. Naseer Ahmed Bangulzai while strongly opposing the contention urged by the counsel for appellant has stated that the competent authority in the instant case was the Chief Minister and he imposed penalty after adopting all legal formalities under the relevant law, he secondly contended that it was within the competency of the competent authority to agree or disagree with the findings and recommendations of inquiry committee, the competent authority after examining the facts of the case and severity of the allegations decided to disagree with the recommendations of the Inquiry Committee and imposed major penalty of reduction in the rank of appellant. He further contended that the appellant being a Deputy Superintendent was the Chief Executive Officer of the Jail and Sub-Jail ATF subsidiary District Jail of Quetta. The learned A.A.G. Urged that the Government is authorized to appoint any competent officer for the purpose of conducting inquiry as Chairman of Inquiry Committee under the relevant rules. He was supposed to supervise and make frequent visit to Sub-Jail ATF but he failed to do so and disowned his duties therefore, he cannot absolve of the charges of escape of high profile prisoners, and he requested for dismissal of the appeal.
7. We have considered the file, inquiry report and contention of the counsel for appellant and learned Assistant Advocate General, the first contention of the learned counsel is that impugned Notification is totally in conflict with the recommendation by the inquiry committee as it was suggested by the inquiry committee that further promotion of the appellant should be banned while the competent authority without assigning any reasons have imposed major penalty of reduction in rank which caused miscarriage of justice, in contrast of this contention the learned Assistant Advocate General has stated that the competent authority can agree or disagree with the recommendations of the committee, the contention of the learned counsel for the appellant has force hence, we agree that when the competent authority while in disagreeing with the recommendations of inquiry committee, it has to show strong reasons for the same, which are lacking in the instant case. So for as the second contention of the learned counsel for appellant is concerned that no proper inquiry has been conducted by the inquiry committee the conclusion drawn by it in respect of the appellant are contrary to record, in opposition to this the learned Assistant Advocate General stated that the inquiry has been conducted according to law. We perused Section 5, sub-section (1) of Balochistan Province Removal from Service (Special Powers)
Ordinance, 2000 which is reproduced herein below:- "Power to appoint Inquiry Officer or Inquiry Committee. (1) Subject to the provisions of subsection (2), the competent Authority shall, before passing an order under Section 3, appoint an 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 of the acts or omissions specified in Section 3. The Inquiry Officer or, as the case may be, the Inquiry Committee shall---
(a) communicate to 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 a 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 witnesses 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."
' On perusal of Section 5, sub-section (1) of Balochistan Removal from Service (Special Powers)
Ordinance 2000, it is mandatory for the Inquiry Committee to communicate to the accused the charges and statement of allegations specified in the order of Inquiry passed by the competent authority and opportunity of written defence as well as examination of oral and documentary evidence in support of the charge or in defence of accused are lacking in the case as well as the inquiry report which according to our view is not an inquiry as mandated by law. The third contention of the learned counsel for appellant is that Assistant Superintendent Sub-Jail AFT was under the direct control of Superintendent District Jail Quetta and the appellant could resume the charge only after order of Superintendent of District Jail Quetta, which was not on record and under Jail Manual and concerned rules the appellant was not responsible for security and day to. Day affairs of Sub-Jail ATF while Sub-Jail ATF is miles away from District Jail Quetta and the Superintendent District Jail Quetta did not order or direct the appellant to visit or look after the affairs of ATF Jail nor Assistant Jail Superintendent ATF ever informed the appellant about any security problem in Sub-Jail ATF while opposing this contention the learned Assistant Advocate General has urged that Deputy Superintendent was the Chief Executive for Sub-Jail ATF and he was responsible for the escape of high profile prisoners. We have perused Rules 1002 & 1004 which is reproduced herein below:--- ' "Rule 1002.--- For the purpose of duty, the expression "Deputy Superintendent" shall be deemed to include Assistant Superintendent and every person for the time being performing all or any of the functions or duties of a Deputy) Superintendent.
' Rule 1004.--- (i) The Deputy Superintendent shall be the chief executive officer of the prison and shall discharge his duties under the immediate directions and orders of the Superintendent. It shall be his duty to see that all orders issued by the Superintendent are duly carries out.
(ii) It shall be the duty of the Deputy Superintendent to maintain discipline both amongst subordinate officers and the prisoners and the strict enforcement of all rules, regulations and orders relating to the management of the prison, prisoners, and the staff."
' By perusing all these rules Deputy Superintendent and Assistant Superintendent are rendering services of the same kind and the Deputy Superintendent shall discharge his duties under the immediate directions and orders of the Superintendent it shall be his duty to see that all orders by Superintendent shall carried out and in the instant case Sub-Jail ATF is about 5 Kilo Meter away from District Jail Quetta and is situated in Cantt. Area, in the Inquiry report no evidence has been brought on record that the Deputy Superintendent has not carried out any order or direction issued by Superintendent District Jail Quetta, hence we accept the arguments for the counsel of appellant. The fourth contention that the cumulative effects of Inquiry Report wherein it has been held that the Superintendent Sub-Jail ATF has been appointed on the political basis and appellant has no role in the appointment, posting and transfer of Assistant Superintendent, Warder at the ATF Sub-Jail Quetta is concerned, however, the learned Assistant Advocate General does not strongly opposed this contention. We have perused the Rule 1127 of Pakistan Prison Rules in which only the Inspector General is the competent authority to transfer orders from one jail to other and the appellant has no role in it, and it has not been explained in inquiry as to why before appointing of Warder at Sub-Jail ATF the files and inclination of the Warder has not been examined by the competent authority. The last contention of the counsel of appellant that under the law and rules of propriety the Inquiry Committee in the Chairmanship of the then Inspector General Prisons was not justified while reputing this contention the learned Assistant Advocate General said that the competent authority was competent to appoint the then Inspector General Prison as Chairman of that Committee, we agree with the counsel for appellant on the ground that the then Inspector General Prison Balochistan has himself failed to discharge his official duties as according to Rules 897, 898, 899 & 900, Rules of Pakistan Prison Rules framed under the Prison Act, 1894, the then Inspector General Prison Balochistan remained as Inspector General Prison Balochistan w,e,f, 21.9.2007 to 30.10.2008 and the respondents have failed to bring on record any minutes that during his tenure as Inspector General Balochistan he ever inspected ATF Sub-Jail Quetta. This fact is also corroborated from the Inquiry Report dated 17.1.2008, in which he for the first time noted the security defects/loopholes in the security of prison i,e, Sub-Jail ATF Quetta. This inefficiency caused escaper of two highly profile prisoners.
8. Thus white keeping in view the above- mentioned reasons. We set aside the Inquiry Report dated 17.1.2008 under the Chairmanship of the then Inspector General of Prisons Balochistan and Notification No, SO (PRS) 2-23/PART-2/2011/359-65, dated 4.2.2011, allow the appeal and reinstate the appellant to his previous position with all back benefits however, the Government may reconstitute a Committee to inquire into the matter impartially while keeping in view the provisions of Balochistan Removal from Service (Special Powers) Ordinance, 2000 and Rules for the Superintendence and Management of Prisons of Pakistan i,e, Rules 897, 898, 899 & 900, with no order as to costs, file after completion be consigned to record.