' BRIG. ABDUR RASHID (MEMBER).-The appellant, Abdur Razaq joined service as Lower Division Clerk in the office of Financial Adviser (Air Force) on 24th September, 1966 and was subsequently promoted as Upper Division Clerk on 18th December, 1972 and as Assistant on 29th May, 1976. In the year 1976 certain adverse entries were recorded in his ACR by his immediate superior against which the appellant represented but. His representation was not accepted for expunction of adverse remarks.
2. On 15th August, 1977 the appellant was served with a charge-sheet in which charges like lack of interest in work, unpunctuality in attendance, occasional absenting and finally adressing a petition direct to higher authorities for redress of his grievances were listed. The appellant was called upon to explain his conduct with regard to the said charges. At the same time Controller of Accounts (Air Force) (Mr. Mujahid Hussain) was appointed as an Inquiry Officer to enquire into the charges levelled against the appellant.
3. The appellant tendered his explanation with regard to the charges on 4th January, 1978. The Inquiry Officer conducted his inquiry on the 8th of February, 1978 in the presence and hearing of the appellant where he was given full opportunity of cross-examining the witnesses. However, After the inquiry report had been completed, acre of was not provided to that the appellant was, there ore, not aware offering Inquiry Officer and could not be expected to provide his defense. The inquiry report and the explanation of the appellant obtained earlier on 4th January, 1978 were forwarded as two separate entities to the authority, who ordered the removal from service of the appellant on 31st July, 1978. The appellant's appeal against his removal from service addressed to the Secretary, Ministry of Finance was also turned down on 30th May, 1979 after which he came before the Service Tribunal.
4. In the case of Syed Mir Muhammad v. N.-W. F. P. Government (I) the honourable Supreme Court has held that rules 5 and 6 of the Government Servants (Efficiency and Discipline) Rules, 1973 require that copy of inquiry report must be furnished to the accused official to offer his explanation with regard to adverse findings recorded against him. Such requirements cannot be simply brushed aside on the plea that this course would amount to serving a second show-cause notice.
In the present case the explanation of the appellant was obtained on 4th January. 1978, the 4 inquiry was conducted on 8th February. 1978 which held the accused guilty of the charges levelled against him. But, since the inquiry report was not shown to the appellant, he did not know anything about adverses findings of the inquiry report. The appellant would, therefore, be deemed not to have been given a reasonable opportunity of defence.
5. These mandatory requirements of law having been ignored, the appellant shall be deemed to have been re-instated in service with effect {{FOOT NOTE}}
(1) PLD 1981 SC 176 {{FOOT NOTE}} ' from the date he was removed from service. However, the respondents have the option of proceeding against the appellant afresh if they so desire after satisfying the requirements of law which had been earlier overlooked.
6. No order as to cost. Parties be informed accordingly.
' SHAH ABDUR RASHID (CHAIRMAN).--I am in agreement with the conclusion arrived at by my brother, Brig. Abdur Rashid, and would have ordinarily added nothing to what he has stated.
However, Mr. Shahudul Huque, counsel for the respondent-Department, during the course of his arguments, had insisted that the stand taken by the Government had vehemently pressed before us should be incorporated in the order and that a positive finding be given thereon. It is contended that the Government Servants (Efficiency and Discipline) Rules, 1973, do not specifically provide for furnishing the inquiry report to the accused officer, or for giving him fresh opportunity of showing cause, as held by the Supreme Court in the case of Syed Mir Muhammad v. N.-W. F. P. Government, referred to in the order of my brother. He contends that this Tribunal, not being a Court, as held by the Supreme Court itself in the case of M. Yamin Qureshi v. Federation (1) the decisions of the Supreme Court are not binding on it under Article 189 of 1973 Constitution, and that the matter should be examined by the Tribunal itself on its own merits. The arguments, I may say are not only ridiculous but are indicative of folly. Through Article 189 (ibid) refers to the outs only, nevertheless, Article 190 of the same Constitution makes it incumbent upon all executive and judicial authorities throughout Pakistan to act in the aid of Supreme Court. If the arguments taken by the learned counsel for the respondent are accepted, then it would amount to saying that the decision of the Supreme Court shall not be binding even on the parties to a dispute in which a decision is given.
Apart from that, under Article 212(3) of the Constitution, this Tribunal is subject to the appellate Jurisdiction of the Supreme Court and has to follow its decision on all points of law.
7. The arguments which Mr. Mumtaz Hussain had addressed before the Supreme Court in the case of Syed Mir Muhammad were never addressed before this Tribunal in any other case. If this Tribunal had been assisted in bringing out the specific points in any other case, we would have ourselves decided the question on the lines on which the Supreme Court has taken the decision. The decision is based on the principle of natural justice that no one shall be condemned unheard. The Inquire Officer himself not being the punishing authority and the final decision being in the purview of the Authorised Officer or the Authority, the accused officer has every right to explain before them the defects, if any, C in the report of the Inquiry Officer and the evidence on which the conclusion is based. The arguments of the learned counsel for respondent on the specific points, therefore, are without any substance and deserve rejection outright.
(1) PLD 1980 SC 22