' ICH. GHULAM QADIR (MEMBER).-This appeal under section 4 of the Service Tribunal Act by Mr. Abdur Rashid Butt appellant is directed to challenge the legality and validity of Government Order No, S & GAD/ 4335-43/78 dated 9th December, 1978 whereby the respondent/Government was pleased to award the punishment of compulsory retirement from service to the appellant under Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 (hereinafter referred to as the Rules, 1977) for having found him guilty of inefficiency, misconduct, and corruption under the said rules. Under para. II of the impugned order the respondent was further pleased to order that the Local Government Department shall calculate the actual amount misappropriated by the appellant and take necessary steps for recovery of the same.
2. Brief facts of the case as put down in the memo. Of appeal are that the appellant who had joined the service under the respondent in 1956 in the Village Aid Department as Supervisor was holding the post of Assistant Director in the said Department at the time of passing the impugned order.
The respondent had appointed a Commission of Enquiry No, II to probe into the allegations of corruption and misappropriation etc. In certain specified departments of the Government (including Local Government Department) and their Officers. Accordingly, after holding an enquiry against the appellant the said Commission-II submitted a report against the appellant whereupon the respondent issued a show-cause notice dated 25th September, 1978 to the appellant wherein it was said that having considered the report of Commission of Enquiry No, II the competent authority had decided to service show cause notice under Civil Servants (Efficiency and Discipline) Rules, 1977 on the following charges :-
(1) That on 30th March, 1976 you had drawn an amount. Of Rs, 1,50,000 from National Bank of Pakistan vide cheque ' No, 330407 and deposited it into Kashmir National Bank (which is not a scheduled Bank) and in reward of this, you got your son employed in the said Bank.
(2) That you advanced an amount of Rs, 60,009 to the following Project Leaders for which no work has been done :-
(a) Ch. Ghularn Gillani Project") Leader Rs, 12,000. He is General Manager, Muslim Commercial Bank.
(b) This amount was advanced for the purpose of protection of land against flood damage. Total cost of land does not exceed Rs, 2,000 approximately.
(b) Ch. Gheeba Khan father of 1 the above named gentleman Rs, 8,000.
(b) Mr. Muhammad Rafiq Rs, 20,000.
(d) Mr. Munshi Khan Rs, 20,000.
' That 11000 mandays have been utilized on the road of Akbari Bridge-Sarhoota Road. On the basis of detailed estimates of the work done furnished by Assistant Director Local Government and People Works Programme it has been established that 50% amount has been misappropriated by you.
(4) That 2399 mandays have been shown as utilized for the Project Chapprian-Dhari Sahibzadian Road. It has been proved that the expenditure is not commensurate with the work done and approximately wages/funds for 1000 mandays have been misappropriated by you.
3. The appellant submitted a detailed reply to his show-cause notice explaining his innocence but the same did not satisfy the competent authority who later on passed the impugned order whereby the appellant was compulsorily retired from service. The appellant filed a review petition requesting the recall of the impugned order but this petition was rejected by the respondent vide his order dated 4th March, 1979. It is under this background that the appellant has now sought his redress by way of appeal before the Service Tribunal.
4. The appellant has raised the following objections to the validity and legality of the impugned order on law as well as on merits
(a) That the impugned order has been passed under rules 3 and 4 of Civil Servants (Efficiency and Discipline) Rules, 1977 which rules are contrary to the very spirit of the interim Constitution whereunder every person is guaranteed equality before law and a fair trial. As such the said rules are void and any order passed under such void rules would be ineffective and of no legal consequence.
(b) That the report of the Commission upon which the impugned order has been based was factually incorrect and was made without hearing the appellant and as such was invalid.
(c) That the appointment of the said Commission of inquiry Was illegal.
(d) That the respondent rejected the Review Petition without considering the reply submitted by the appellant.
(e) That the Charge No, 1 in the show-cause notice is factually wrong and incorrect as the appellant had got his son employed in the ' Kashmir National Bank much before drawing the amount of Rs, one and a half lac from the National Bank of Pakistan and depositing the same in the Kashmir National Bank.
' That the Charge No, 2 was also baseless because the schemes against which amounts in question were advanced were prepared by the District Council and the Advisory Council and were approved by the respective Chairman and the appellant had nothing to do with the preparation of these schemes who only advanced the amounts to the concerned persons under rules for completion of the schemes/projects. At the time of inquiry by the Commission more work than due was found to have been done on spot as was evident from the report of the concerned Overseers.
' That Bharges Nos. 3 and 4 are also incorrect and false and would transpire from the record. In this connection copies of reports of Assistant Director and Assistant Engineer, Local Government are submitted which clearly falsify the charges levelled against the appellant.
' With the above-mentioned submission the appellant has prayed for reversal of the impugned order and his re-instatement from the date of his compulsory retirement.
5. The respondent Government appeared through its counsel and filed written objections wherein it was contended that the impugned order was passed absolutely in accordance with law and rules in force and that the objections raised by the appellant in his memorandum of appeal were unfounded and without any force. Moreover, an objection to the maintainability of the appeal on the ground of limitation was also raised.
6. The appellant got summoned the relevant record in evidence and appeared as his own witness and closed his evidence. The counsel for the respondent neither examined any witness nor produced any record in rebuttal.
7. We have heard the arguments addressed by the learned counsel for the parties and have also gone through the record minutely with the assistance of the parties. We now proceed to decide the charges levelled in the show-cause notice seriatim and do not propose to consider and give any finding or the legal objections raised in the memo. Of appeal as the same were not argued or pressed into service at all during the course of arguments by the learned counsel for the appellant who mostly relied upon and concentrated his arguments on the facts and merits of the case.
8. Charge No, 1.-The 1st charge against the appellant as laid down in show-cause notice is that the appellant drew an amount of one lac and fifty thousand rupees from National Bank of Pakistan vide Cheque No, 330407 on 3rd March, 1976 and deposited the same in Kashmir National Bank in reward of which the appellant got his Km employed in the latter Bank. The appellant has categorically refuted this charge in his appeal in the manner that he never got his son employed in the Kashmir National Bank in lieu of the abovementioned amount from National Bank of Pakistan to Kashmir Bank and rather admitted the fact of the appointment of his son in the said Bank before the date of transfer of the above, stated amount from the National Bank of Pakistan. In support of his plea he has placed on record a copy of the letter regarding appointment issued by the General Manager of Kashmir National Bank, Mirpur, Azad Kashmir on 1st February, 1976 addressed to Mr. Tariq Rashid appointee wherein it is stated that in response to his application dated 27th January, 1976 the post Junior Officer is offered to him who was required to report for duty to Manager Kotli Branch on 1st January, 1976 failing which the offer of appointment was liable to cancellation. The fact of employment of the son of the appellant is not in dispute and according to the photostat copy Exh. P. 2 of the letter of appointment placed on record it can be safely presumed that the incumbent must have joined on the due date. Although copy of the letter of appointment Exh. P. 2 refers to an application dated 27th January, 1976 and requires the applicant to join on 1st January, 1976, 1. e. a date much earlier in time than that of application and thus a sort of anomaly was created as regards the date of' application. To remove the doubts thus cast we felt advised to call for the personal file of Tariq Rashid appointee from the concerned Department which was accordingly summoned for examination. This file was received by the Office and we perused the same for our satisfaction. On page 8 of this file there is a letter dated 27th January, 1976 from Manager Kashmir National Bank Branch Kotli addressed to the General Manager K. N. C. B. Head Office Mirpur wherein it is stated that Tariq Rashid appointee had joined the service in the Bank on 1st January, 1976. It is an official record and carries alongwith it a presumption of truth under the law of evidence. This record has dispelled and diffused the clouds of suspicions which had arisen on account of reference to application dated 27th January, 1976 in the letter Exh. P. 2 which in fact is the date of endorsement of the application by the concerned Bank. Thus we are satisfied that the stand of the appellant stands proved beyond an iota of doubt that his son was employed three months earlier than the drawal of amount as charged in the show-cause notice. The respondent did not rebut the statement of appellant by any documentary or oral evidence. As such, as discussed above, the charge that the appellant withdrew an amount of one and half lac of rupees from the National Bank on 30th March, 1976 and demisted the same in Kashmir National Bank in order to secure employ eat of his son stands dissolved and refuted. The learned counsel for the respondent was confronted with this position of the matter but he had no answer or explanation to offer in support of the charge. As a result the appellant is absolved of this charge.
9. Charge No, 2.-The second charge as framed in the show-cause notice is to this effect that the appellant advanced an amount of sixty thousand rupees to the following project leaders for which no work has been done. {{TABLE}} Rs, Ch. Ghulam Gillani Project Leader 12,000
(1) Ch. Gheeba Khan father of the above named Project Leader 8,00Q
(3) Mr. Muhammad Rafiq Rs, 20,000
(4) Munshi Khan 20,000 {{TABLE}} ' (These amounts were advanced for protection of lands against flood damages) ; the cost of protected land does not exceed Rs, 2,000 (approximately). Before assessing the liability of the appellant in the light of the charges levelled against him we think it advisable and advantageous to briefly narrate here the working system of Rural Works Programme for a better appreciation of the matter. According to the record made available to the Tribunal and the statement of the appellant procedure for preparation of development schemes which was in vague in pursuance of the manual of instructions appears to be that the Local Councils were authorised to formulate the schemes in the interest of community at large on pro forma and then were to be submitted to District Council or the Government, as the case may be in accordance with the powers of sanction as specified in the manual. Only such schemes as were technically sanctioned and administratively approved were to be executed under the works programme. However, before the approval of competent authority the Project Director was to append a certificate that on the basis of experts' advice he is satisfied that the scheme is technically sound. After the approval of the competent authority the Local Council concerned had to implement the scheme through a Project committee whose Project Leader was to be the Chairman or Member of the Local Council. The Assistant Project Director was the Drawing and Disbursing Officer in the district on behalf of the Project Director. The Disbursement of funds was to be done by him under the overall supervision and control of Project Director. The release of funds was to be made in instalments in accordance with the progress of work. The Officers engaged in the Rural Works Programme were expected to conduct frequent inspections of the projects. The Government vide its order issued under No, 1214- 73/75 dated 9th July, 1975 sanctioned fresh constitution of Central Advisory Council and District Works Council according to which the Prime Minister was the Chairman and the Ministers were the Members of the Central Advisory Council and a Minister nominated by the Prime Minister was to act as Chairman and the elected Members of Legislative Assembly were to be the Members of the District Works Council. Accordingly on 9th July, 1975 the constitution of District Works Councils was made and Ch. Ghulam Ahmad Reza Minister was appointed Chairman of District Works Council Kotli.
10. Now, keeping in view the above scheme of the Rural Development we would like to adjudge in the light of record whether the procedure laid down for guidance was followed or whether there was any deliberate departure or deviation from procedure resulting in any loss or misconduct etc., and if the appellant was responsible for any such default as to justify his involvement in the charges framed against him. As the charge reads it is alleged that no work was done against the amounts advanced by the appellant for the schemes under discussion. On the other hand the record to which the reference would be made clearly shows that the schemes in question were either completed or partially completed much before the inquiry by the Commission started. In order to detail. As regards the advance to Mr. Ghulam Gillani for construction of a protection Bund called 'Hill and rot Bund' an amount of Rs, 12,000 was advanced in two instalments. Six thousand rupees were paid as advance to the Project Leader on 17th January, 1976, and proper receipt was obtained which is in file No, 12 at page 3 made available to his Tribunal. Ch. Mazher Hussain concerned M. L. A. Was associated with the Project Committee as required by rules. On 30th June, 1976 the remaining amount was paid to the project leader vide his receipt on page 7 of the said file.
On the report of Overseer who had certified that two Bunds measuring 80 x 6 x 2/2 x 5 were constructed on the spot by the Project Leaders. Similarly as regard advance made to Muhammad Rafiq Project Leader, the record of file No, 5 shows that an amount of Rs, 12.000 was paid to the Project Leader on 25th January, 1976 vide his receipt at page 3 of the relevant file. This amount was advanced for the construction of Khud-Bal Protection Bund. Later on, on 22nd April, 19'76 according to the progress report submitted by the Secretary Union Council in the month of April, 1976, the remaining Rs, 8,000 were also released for the completion of the scheme as it was reported by the Secretary Union Council that 80 3/4 x 3/4 protection wall was already constructed by the Project Leader and some material was lying on the spot the cost of which was estimated in the report to be nearly Rs, 12,000. The files regarding the construction of Chamber-Khud Bund to be constructed under the leadership of Munshi Khan and Water Tank Narhote to be constructed under the leadership of Ch. Yaqub have not been made available by the concerned department/authority despite repeated reminders and rather it was stated before the Tribunal that the same were not available. However, the appellant got summoned the reports of concerned Supervisors relating to the progress of these two schemes and from the perusal of these reports and the relevant available record, it is established that Rs, 10,000 were paid to Ch. Yaqub Project Leader for the construction of Water Tank Narhote and Rs, 20,000 were paid to Munshi Khan Project Leader for the construction of Chamber-Khud According to the report submitted by the Supervisor on 21st June, 1976, it was reported that some work was done but the scheme was not finalized due to the carelessness of the Project Leader. Again, the concerned Supervisor vide his letter Exh. P-7 submitted a list of incomplete scheme Exh. P-8 in which at serial No, 38, it is mentioned that 45 x 30 x 30 Water Tank was dug but the massonry work yet to be done. Similarly the Supervisor submitted another report dated 16th Jane, 1977 Exh. P-9 and 10 about Chamber-Khud Bund which shows that 150 x 3 x 16' protection Bund was built but the scheme was not finalized due to slackness of the projects leader. From these reports and the available record, it is evident that work on the concerned schemes was partially done and it was not correct as mentioned in the charge-sheet that no work at all was done on these schemes. So far as the payments made by the appellant are concerned it is provided under rules that about 50% amount of the sanctioned fund could be released by the Drawing and Disbursing Officer in advance and the remaining amounts were to be released according to the progress of work. As such there seems nothing to blame the appellant for making payments as he was authorised under rules to make the payments in advance and the remaining amount to be paid on the attestation of the concerned Supervisors or Secretary Councils. Besides, the appellant had, in fact, nothing to do with the preparation or the usefulness of the schemes, The usefulness of these schemes was, however, confirmed by the Project Director by finally entering these schemes in the Annual Development Programme register after proper approval and Ruction. In the light of above discussion the charge that no work was done against the advances.Made for the schemes is definitely falsified by the evidence based on official record and consequently no charge as levelled in the charge-sheet is established against the appellant with the result that he is absolved of this charge as well.
11. Charge No, 3.-It has been alleged under Charge No, 3 that 11000 mandays were utilized on the Akbri Bridge Sarhota Road and on the basis of detailed estimates of the work done furnished by Assistant Director Local Government and Peoples Works Programmes it was established that 50% amount was misappropriated by the appellant.
12. The appellant has refuted this charge and stated in his statement as witness before the Tribunal that according to the approved Development Programme 2 miles Akbri Bridge Sarhota Road was to be constructed within the prescribed period of the plan and the total strength of labour estimated to be engaged on this road was 44776 mandays. According to the appellant he held the post of Assistant Director Kotli till the end of August, 1976 where after he was transferred from Kotli.
During his stay at Kotli it mile road was got constructed by him with the help of 9448 mandays.
13. According to the ratio of original approved estimate of 44776 mandays for a total of 2 miles roau a strength of 11194 mandays was to be consumed in the construction of mile road whereas somewhat less mandays (9448) were actually utilized as is evident from the official record Exh. 32 (an attested photostat copy) which is detailed repLrt of the sanctioned projects of all the districts of Azad Kashmir and under the head of `Kotli District' the detail of this road is given at Serial No, 5.
Presumption of truth attaches to the correctness of this record under section 114 of the law of Evidence as all official acts are presumed to have been performed correctly unless proved otherwise. This version of the appellant or the record produced in support of his statement has neither been challenged in cross-examination by the learned counsel for the respondent nor any document of appellant. There is no other documentary evidence on record which could lead us to the inference that out of 11000 mandays 50% amount was misappropriated by the appellant. No such evidence has been made available to the Tribunal which could establish that 11000 mandays were fake and fictitiously shown in the record and the amount of 50% mandays was misappropriated by the appellant himself. How can the Tribunal form an opinion or come to a conclusion for which there is no basis or proof at all. In the absence of any proof or evidence we are helpless to draw adverse conclusion on surmises or (conjecture and as such hold that the authority has failed to prove the accusation levelled against the accused appellant and as a result we absolve him of this charge also.
14. Now, lastly, we take up charge No, 4 which is identical to charge No, 3 in nature. Under this charge it is alleged that on the construction of Chapprian-Dheri Sahibzadian Road utilization of 2399 man-days was shown in the record whereas it was approved that the expenditure was not commensurate with the work done and approximately funds for 1000 mandays were misappropriated by the appellant.
' The appellant has denied the charge and made a statement saying that according to the sanctioned scheme the total length of this road was 3 miles for the construction of which 67164 mandays were approved to be utilized under the programme. During his stay at Kotli station he got 118 mile (one furlong) road constructed with the help of 2399 mandays as is proved by Exh. P-32 which is an attested photostat copy of the original record of the department whereas according to the ratio of sanction be used for the construction of 1/8 mile road in question. Thus about 400 less mandays were spent than the estimated figure. This version of the appellant is supported as correct by reports Exhs. P-34 and P-35 which are the photostat copies of the original record produced before the Tribunal. These reports were submitted by the Assistant Engineer and Assistant Director concerned jointly regarding the present position of the project on 5th February, 1977 that is, much later after the appellant had left the charge on account of his transfer. Progress reports of roads Exhs. P-40 and P-42 prepared by the Director of Local Government and Peoples Works Programme showing position of the roads up to 1st January, 1977 also confirm the figures of mandays given by the appellant. The truthfulness of this statement of the appellant was not questioned or impeached through cross-examination by the counsel for the respondent. No documentary or oral evidence was brought on record by the respondent to falsify the statement or appellant. In these circumstances when there is no evidence to connect the appellant with the alleged misappropriation of 1000 mandays it would be unfair and unjust to draw conclusion of guilt on the mere charge or unfounded assumptions.
15. Before closing the case we feel duty bound to advert to the legal objection of limitation raised by the respondent in written objections although this legal point was not agitated or pressed into service during the arguments by the counsel for the respondent. The impugned order was made by the respondent/Government on 9th December, 1978. The appellant filed his review petition before the respondent on 1st July, 1979 which was rejected on 4th March, 1979. The appellant filed this appeal before the Tribunal on 1st April, 1979, that is, within 30 days of the impugned order. As such the appeal was filed within the prescribed limitation of time.
For the reasons discussed above, I have come to the conclusion that the charges framed against the appellant have not been proved with the result that the appellant stands exonerated from all the charges. Consequently, accepting the appeal the impugned order of compulsory retirement of the appellant dated 9th December, 1978 is set aside.
' SARDAR MUHAMMAD ASHRAP KHAN (CHAIRMAN).-While agreeing with conclusion arrived at by the learned Member that the charges framed against the appellant having remained unproved the impugned order deserves to be set aside. I would like to briefly express myself in support thereof.
' From the perusal of the file relating to the disciplinary proceedings against the appellant made available to us by the Services and General Administration Department it transpires that even the Government itself which acted both as authorised officer and authority in instant case, did not find the appellant guilty of the charges that were specifically levelled against him in the show-cause notice served upon him and that the impugned order of his compulsory retirement is based on his having been found to have committed other illegalities and irregularities in the discharge of his official duties which were not made the subject of charges against him. The above conclusion becomes inescapable when one goes through paras. 21 and 22 on the noting side of the aforesaid file finding given ' there on by the competent authority, It appears appropriate to reproduce the said paras which read as follows :- {{URDU TEXT}} ' In view of the contents of the findings given in the paras. Reproduced above it cannot be said that the charges for which the appellant was proceeded against departmentally, were held to have been proved against him by the competent authority. As regards the first charge, the conclusion drawn by the authority is that the appellant is entitled to the benefit of doubt in respect of allegation of securing employment for his son in Kashmir Co-operative Bank Limited, as a reward for depositing Rs, 60,000 in the said Bank but that he has committed the irregularity of depositing public funds in an unscheduled Bank without the written permission. It may be stated here that the appellant was never charged with the allegation of which he has been found guilty by the competent authority. The second charge has been determined to have been proved against the appellant on the ground that the project leaders have not completed the work on the projects for which rupees sixty thousand were paid to them by the appellant with the result that the Public Funds have been wasted. The charge as framed against the appellant was not that the project leaders have left the work uncompleted on the projects resulting in the wastage of Public Fund but it contained a specific allegation that no work at all was done on the schemes against the amounts paid as advances to certain project leaders by the appellant. It needs hardly any mention that not doing the work at all on a project is quite a different thing from not completing the same.
So far as the finding on the third charge is concerned, it is to the effect that while according to the report of the Commission of Inquiry only four furlong Road has been constructed on the spot, the same is shown to be six furlong in the official record and this difference having remained unexplained the conclusion is that it has occurred due to serious misconduct. As is clear from the contents of this charge there was no allegation against the appellant of his fictitiously showing the construction of road of greater length in the official record than was actually found on the spot by the Inquiry Commission. As a matter of fact the allegation as has been found to have been proved against the appellant is not even supported by entries in the relevant official record according to which also only half a mile road and not six furlongs road is shown to have been constructed. Not only does that but the report of the Commission of Inquiry too not contain any such allegation. The above finding of the competent authority given while discussing the charge in question appears to be based on some misunderstanding. The last charge has neither been discussed nor there any specific determination except the remark that the nature of this charge is identical to that of above charge and the dealings in this matter also do not appear to be straight and above hoard. On the basis of the above findings the competent authority in para. '22' of the said file has held the appellant to have committed the misconduct and other irregularities in the utilization of the Public Funds in the execution of projects and consequently the penalty of compulsory retirement has been awarded to him. The above analysis of the findings of the authority recorded on the charge, against the appellant would show that although the specific allegations of which the appellant was accused of in the show-cause notice were not established against him, yet the sins of omission and commission not made the grounds of disciplinary action against him but during the course of disciplinary proceedings found to have been committed by him in the discharge of his duties in relation to the projects under consideration have been seriously taken notice of and weighed heavily with the competent authority in the instant case and have actually led to the passing of the impugned order. The relevant service rules which are mandatory in nature do not at all permit the authority empowered to impose penalty on a civil servant to have a resort to such a course of action. The disciplinary proceedings against the civil servant are taken against him under Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 framed under section 23 of the Azad Jammu & Kashmir Civil Servants Act whose sub-rules (3) and (4) of rule 6 prescribed the procedure to be followed in a case where regular inquiry against the civil servants through Inquiry Officer or Inquiry Committee is dispensed with and show-cause notice is served upon him directly. It would be advantageous to reproduce the aforesaid rules which are to the following effects :- ' Rule 6. Inquiry procedure to be observed by the Authorised Officer; the following procedure shall be observed by the Authorised Officer when a civil servant is proceeded against under these rules:- ' of the Authorised Officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall-
(a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action ; and
(b) give him a reasonable opportunity of showing cause against that action :
(c) Provided that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or Azad Jammu and Kashmir or any part thereof it is not expedient to give such opportunity.
(4) Of receipt of the explanation of the accused, if any, the Authorised Officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty he shall forward the case to the authority alongwith the explanation of the accused, and his own recommendations regarding the penalty to be imposed. The authority shall pass such orders as it may deem proper.
' Rule 8. Action by the Authority.-In the case of any proceedings the record of which has been reported for order under sub-rule
(4) of rule 6 or sub-rule (8) of rule 7 the authority shall after affording the accused an opportunity of being heard in person as it may deem fit.
' From the plain reading of the provision of the rules reproduced above, the position which invariably emerges therefrom may be summarised as follows
(a) In a disciplinary proceedings where regular inquiry through an Inquiry Officer or Inquiry Committee is not considered necessary against the accused civil servant it is incumbent upon the Authorised Officer to serve show-cause notice in writing on him.
(b) That such a notice shall specify the penalty or penalties proposed to be inflicted upon the accused civil servant in disciplinary proceedings being initiated against him.
(c) That the specific allegation or allegations free from any sort of vagueness or ambiguity on the basis of which the civil servant is being proceeded against departmentally shall be embodied in the show-cause notice served upon him.
(d) That with a view to enabling him to correct or contradict the charge made against him the accused civil servant shall be provided with a fair and adequate opportunity of submitting his explanation to the same in his defence.
(e) That a competent authority is empowered to impose any lawful penalty upon the accused civil servant only in a case where the charge contained in the show-cause notice against him is determined to have been proved and an opportunity of personal hearing has been given to him.
It would thus be seen that unless and until a charge specifically communicated to the accused civil servant in the show-cause notice is held to have been proved against him, he does not become liable to award of any punishment under the relevant service rules notwithstanding the fact that during the course of disciplinary proceedings some other illegality, irregularity or misconduct, no matter how serious in nature it may be, is found to have been committed by him in the discharge of his official functions and duties. To put it in other words if during the disciplinary proceedings the competent authority comes to the finding that although the charge being investigated is not proved against the accused civil servant yet he has been guilty of committing certain other collateral illegality or irregularity in the discharge of his official acts no punishment can legally be awarded to him for such an illegality or irregularity not covered by the specific charge. When the impugned order in the present case is looked at from the point of view of above legal position there is no escape from the conclusion that the same has been' passed without lawful authority because, as stated earlier, it has proceeded on the grounds other than those on which the disciplinary action against the appellant was commenced. Such an order is not only unwarranted under the relevant statutory rules which being penal in nature must b. Strictly construed but also offends against the well-recognized principle of natural justice embodied in a maxim "audi alteram partem" which is always deemed to be implied part of an inherent in every law and is the STATE OF J & K (Sardar Muhammad Ashraf Khan, Chairman) observed not only by law Courts but also by executive and administrative authorities in the discharge and performance of their duties and functions. The order impugned in the present appeal in the circumstances of the case tantamounts to the condemnation of the appellant unheared inasmuch as he was neither put on notice of the grounds which have actually promoted its passing nor he had the opportunity of meeting the same in his defence. In this case the disciplinary proceedings were started against the appellant for certain specific allegations made known to him in a show-cause notice served upon him to which reply was submitted by him to the competent authority but instead of the said allegations certain other irregularities amounting to misconduct were found to have been committed by the appellant in the discharge of his official acts in consequence of which the penalty of compulsory retirement was inflicted upon him by the competent authority. This action of the authority contravenes both the statutory rules quoted above as well as the above-stated dictum of natural justice that no one should be condemned unheard. In such a situation if the competent authority was of the opinion that the irregularities and misconduct of which the appellant was found guilty during the disciplinary proceedings but not covered by the specific accusations made against him called for the disciplinary action against him then the right and proper course to be adopted by the competent authority was that a separate, formal and regular disciplinary proceedings should have been initiated against him for such irregularities under the relevant rules but without going through the necessary formalities and adopting the methods and steps prescribed under law the imposition of any penalty on the appellant in the disciplinary proceedings under discussion is not permissible and lacks the legal sanctity behind it. The competent authority does not enjoy the unfettered-powers in the matte of imposition of penalties on the civil servant but derives the same from C the Efficiency and Discipline Rules which are exercisable strictly in accordance with the said rules and subject to the limitations placed thereunder. Under the aforesaid rules the power of the authority to award punishment is confined to a case only where the charge levelled against the accused civil servant is proved against him beyond reasonabl doubt.
' Now, I, independently of the above findings of the competent authority, on the charges would advert briefly to them one by one with a view to finding out as to whether or not the same is established in the light of the material and evidence available on the record. The detailed examination of these charges has already been carried out by the learned Member of the Tribunal.
So far as the first charge is concerned, it may be stated at the very beginning that the appellant has been held by the competent authority to be entitled to the benefit of doubt in regard to it but to me there is no question of giving benefit of doubt to the appellant as this charge stands completely rebutted by the reliable evidence on the record. The documents placed at pages 8 and 10 of the personal file of the appellant's son Mr. Tariq Rashid Butt maintained in the concerned Bank and now lying in the Central Office of the Registrar Co-operative Societies Muzaffarabad go to prove beyond any doubt that the son of appellant had joined the service in the Kashmir in National Bank Limited Kotli on 1st January, 1976. Thus the bottom is knocked out of the allegation that the appellant had procured the employment for his son in the said Bank by way of favour for depositing a certain amount in it when we find that the said deposit was made on 30th ' March, 1976 establishing thereby that the appellant's son was employed in the said Bank prior to the deposit of money in it by the appellant, ' The second charge in fact consists of two allegations namely :-
(i) That no work was done against the amount of Rs, 60,000 advanced by the appellant for completion of projects sanctioned under the Peoples Works Programme to their Project Leaders.
(ii) That the expenditure involved in the said projects was quite disproportionate to the benefits which were likely to accrue from them as the expenditure of Rs, 60,000 was to be incurred for protecting the lands of the approximate value of Rs, 2,000 against the flood damages.
' These allegations also stand belied even from the relevant record of the Department. From the list of the incomplete projects from 1970-71 to 1976-77 prepared by the Assistant Director Local Government and Peoples Works Programme Kotli and sent to the Director. Local Government vide its covering letter No, - y/29608 dated 22nd January, 1978, a photostat copy of which is Exh. 4/0, on the file, it is amply-borne out that out of the schemes under the Peoples Works Programme pertaining to the Sub-Division Shensah of Kotli District, only two schemes namely-Chamber-Khud Bund and Water-Tank Narhote have remained incomplete which means that out of the four projects for the completion of which the amount in question was advanced to Project Leaders, the work on two projects was partially done while the remaining two were completed by the Project Leaders. Thus the charge of no work at all having been done on those projects is not factually correct. As regards the second allegation of the projects being unreasonable, it will suffice to say that the preparation and sanctioning of these schemes fell outside the ambit of the authority and functions of the appellant and as such he cannot be burdened with any responsibility for any lapse or carelessness in this regard. These projects were sanctioned either by the Advisory Council or by District Council and thus for the faults of others the appellant cannot be made accountable on account of the projects being irrational or infeasible for reason of involving expenditure incommensurate with their utility or usefulness. The last two charges are of identical nature as in both of them the appellant is alleged to have misappropriated the Government Funds by showing the utilization of more mandays in the partial execution of the projects relating to Akbari Bridge Sarhota Road and Chapprian Dheri Sahibzadian Road of Kotli District than were actually consumed on the construction of Roads of the said Projects. These charges too do not find any reliable support from the evidence or material on the official record. The number of the labourers engaged for the construction of said roads were entered in the register kept for the purpose by the concerned department and known as Muster-Roll and thus these charges in other words amount to the allegation that the entries in the said register were incorrect, fake and fictitious. Legally speaking, a rebuttable presumption of correctness attaches to the aforesaid entries because under section 114 (e) of the Evidence Act, there is an ordinary presumption that an act done by a Public Officer in his public capacity is rightly clone and a persona alleging the contrary has to prove his allegation. In the present case not only that there is no reliable evidence on the record to rebut or even to excite a slight suspicion about the genuineness of the entries in the register under consideration but on the contrary there is a substantial documentary evidence which lends support to the presumption that the mandays shown to have been consumed in the construction of the roads in question in the relevant report are correctly entered. The aforesaid evidence providing credibility to the entry of the official record exists in the form of original estimates of the road projects under consideration according to which 2 miles long Akbri Bridge Sarhota Road was to be constructed by utilization of 44776 mandays while 67164 mandays were to be consumed on the construction of 3 miles long Chappria Dheri Sahibzadian Road. In these charges the allegations were to the effect that amount equal to 50% and about 1000 mandays respectively were misappropriated by the appellant out of 11000 and 2399 mandays shown to be utilized on the construction of mile and 1/8 mile long aforesaid road, respectively. But the official record, copies of which are Exh. P-23, Exh. P-32, and Exh. P-42 shows that instead of the above stated mandays 9448 and 2399 mandays were consumedon the construction of the aforesaid portions of the roads, respectively during the period of posting of appellant at Kotli whereas according to the calculations arithmatically worked out on the basis of the original estimates of the aforesaid road projects, 11200 and 2800 mandays were estimated to be utilized for the above works on the said roads, respectively. This proves that the actual cost incurred on the constructional work on the said projects was less than what was originally estimated and this fact goes a long way to strengthen and fortify the presumption of correctness attached under law to the relevant entries in regard to the employment of labour force in the construction of roads in the official record and thus in the absence of any rebuttal as to the genuineness of the entries in the official record, the allegations of misappropriation of Public Funds by the appellant do not have any basis whatsoever.
' The sum total of the above analysis of the findings of the competent authority and charges is that the impugned order is actually founded on the grounds which were neither communicated to the appellant in a show-cause notice nor was he given any opportunity of showing cause against them and that the evidence and material available on the record not only does not substantiate the actual charges made against the appellant but negating and contradicting the same to great extent corroborates the pleas taken in defence by the appellant in his reply to show-cause notice and in a Review Petition filed before the competent authority.
' For the foregoing reasons, the impugned order of compulsory retirement of the appellant dated 9th December, 1978 is declared to be without lawful authority and of no legal effect and consequently setting it aside, the appellant is restored to his office and emoluments from the date of the passing of the same.
' The parties shall bear their own Costs who be informed of this order.