Syed Hamid Ali Bukhart, Member.--This appeal is directed against the impugned notification dated 13.04.2012 whereby the appellant was removed from service under Sections 2{4), 8(b) and 3(c) of the Government Servants (Efficiency & Discipline) 'Rules, 1973. %he departmental appeal filed by him on 25.04.2012 was rejected under Rule -6(1) of the Civil Servants (Appeal) Rules, 1977 vide order dated 15.06.2012 and the present appeal has been filed on 20.06.2012, which is within the prescribed period of limitation.
2. Brief facts necessary for adjudication of the lis at hand are that the appellant was appointed as Inspector (BS-16) in the respondent-department on 30.06.1996 and subsequently his services were terminated with effect from 15.02.1997 being irregular appointee. Later on he was appointed as Elementary School Educator (ESE) on contract at Elementary School, 521 TDA Kot Addu, District Muzaffargarh on 30.09.2002. In exercise of powers conferred by clause (1) of Article 89 of the Constitution of the Islamic Republic of Pakistan, the President was pleased to make and promulgate the Sacked Employees (Reinstatement) Ordinance, :2009 (Ordinance No, II of 2009) on 14.02.2009 for the purpose of providing relief to persons who were appointed in a corporation service or autonomous or semi-autonomous bodies or in Government service during the period from 01.11.1993 to 30.11.1996 and were dismissed, removed or terminated from service during the period from 01.11.1996 to 31.12.1998. Under this Ordinance, the appellant was reinstated into service in the Intelligence Bureau as Inspector (BS-16) on 01.04.2009. lie tendered his resignation on the same day and sent the. same to the Deputy District Education Officer (Male) Kot Addu through S.M.S. Courier Consignment No,31033, which remained unprocessed and it was accepted with effect from 23.04.2011 vide No,2510, dated 25.05.2011. On knowing that position the appellant moved an application for revision of this order and requested for acceptance of his resignation With effect from 01.04.2009. Consequently the pay, of the appellant could not be stopped by the District Accounts Office. Since the pay of the appellant was computerized, therefore, it remained depositing in-his. account in the National Bank of Pakistan, Kot Addu. One Malik Shakeel Ahmed son of Malik Khuda Bukhsh' of Kot. Addu made a complaint to the Director General, Intelligence Bureau, Islamabad on 21.04.2011 that the appellant was doing dual service and receiving pay from, both the departments i,e, IB and Provincial Education Department. Therefore, a charge sheet containing the following charges was issued to the appellant on 05.09.2011 under Rule 5 of the Government Servants (Efficiency & Discipline) Rules, 1973 by the authority in which Capt. (Retd.) Tariq Nadeem Yousafzai, Director CR HQ; Islamabad was appointed as Inquiry Officer:-- I "(a) that after reinstatement in service under. Sacked Employees (Reinstatement) Ordinance, 2009, you joined duties at CR HQ, Islamabad w,e,f, 01.04.2009 while you were already working in Education Department Office, Kot Addu as Elementary School Educator that you were drawing two salaries from Federal . Government and Punjab .Government i,e, Intelligence Bureau and Education Department Office, Kot Addu which is tantamount to misconduct on your part.
(c) that you performed duties as Invigilator in 2009 and 2010. This type of duty earned you extra money over and above the salary Which obviously you have not returned. This also goes to. prove your malaficle as' you knowingly "worked" in two departments.
(d) that you misled the department by concealing facts about your previous service status in Education Department Office, Kot Addu."
The appellant deposited the entire amount of salary in the Treasury vide Challans No,28 and 67 on 23.04.2011 and 19.05.2011. He submitted his reply to the Inquiry Officer on 17.09.2011 by refuting the above charges levelled against him, which was not 'found satisfactory, therefore, the matter was probed by the Inquiry Officer in questions - answers form without recording statements of witnesses, etc. in the presence of the appellant and that too without giving him the opportunity of cross-examination. All the charges were proved in the inquiry. The inquiry report was submitted_ on 29.12.2011 with the following recommendations:-- "(a) I the Inquiry Officer am fully convinced as a result of above mentioned probe that charges levelled against the accused in the under reference charge sheet are correct However, taking humanitarian aspect into consideration that the accused did these omissions due to apprehensions that he may be terminated once again, he . deserves sympathy.
(b) Therefore, it is recommended that the accused may not be awarded major penalty of dismissal from service on humanitarian grounds. He may be awarded any other punishment under the-rules which competent authority consider appropriate.'
Some portion has been underlined for emphasis.
Notwithstanding the above recommendation, the appellant was served with a show-cause notice dated 18.01.2012 proposing the penalty of dismissal from service.
3. The learned counsel for the appellant argued that the penalty of removal from service was proposed by. the Inquiry Officer in his inquiry report dated 29.12.2011. However, the authority in its show- cause notice dated 18.01.2012 sought the reply of the accused as to why a major penalty which includes the penalty of dismissal from service under the E & D Rules should not be imposed upon him and after receipt of reply of the show-cause notice decided to impose the major penalty of removal from service upon him without advancing reasons, which is against the provisions of Section 24-A of the General Clauses Act, 1897. He further argued that the inquiry was conducted in questions - answers form which has already been disapproved by the Hon'ble Supreme Court as mere questions and answers do not amount to affording the accused reasonable opportunity. He also argued that the appellant had not been afforded the opportunity of pouring proper defence as any witness, etc. was not examined in his presence nor was he given the chance to cross- 'examine them. He next argued that the impugned order was passed against the appellant with retrospective effect which is against the dictum of apex Court. He contended that the Director General, being -authority, issued. a charge sheet on 05.09.2011 which is against the Government Servants (Efficiency & Discipline) Rules, 1973, therefore, the impugned order is ultra vires and liable to be quashed on this score alone. The learned counsel further contended that the appellant has been punished for the misdeeds of others as he submitted his resignation on 01:04.2009 but the District Education Department failed to process the same in time due to indolence for which the appellant cannot be held responsible. He vocally contended that after his resignation. on 01.04.2009 the appellant could not be admonished for keeping On. release the salary in his account at NBP Kot Addu as it was not his duty to inform the District Accounts Office by submitting change nor it was known to him and as and when it came to his knowledge he refunded the same, therefore, the charge of receiving dual salaries does not arise. He vehemently argued that an independent Inquiry. Committee/Board constituted by the District Education Officer, Muzaffargarh on 08.06.2011 to probe the same allegations in which it was proved that the appellant's resignation was accepted on 01.04.2009 and he deposited the whole released amount of salaries in the Government Treasury through challans on 23.04.2011 and 19.05.2011 without any delay- and this fact was in the knowledge of the respondent-department, therefore, it did not tantamount, to misconduct and malafide on his part On the basis of these arguments the learned counsel pleaded for acceptance of the appeal and reinstatement of the appellant with back benefits.
4. The learned counsel for the respondents submitted that the appellant was issued a charge sheet by the authority containing all the four charges to which he submitted his reply which was not found satisfactory, therefore, the matter was probed into by staging an inquiry through an independent and impartial Inquiry Officer in accordance with the law and the rules. In the circumstances, the appellant is not justified in saying that the inquiry was not just and proper. He further submitted that all the charges were proved in the inquiry and the appellant was punished after issuing him a show-cause notice, therefore, it cannot be said that he has been condemned unheard. The learned counsel also submitted that by taking a lenient view the penalty of removal from service has been imposed upon the appellant despite. the fact that the penalty of dismissal from service was proposed in the show-cause notice, therefore, he does not deserve any further leniency. He stated that on receipt of a complaint probe into the episode, was carried out and on receipt of the report disciplinary proceedings were initiated against the appellant on account of the charges that after reinstatement in service he kept on serving in the Education Department, Kot Addu and drawing salaries from the Education Department till 30.06.2010 and the respondent- department simultaneously and he misled the respondent-Bureau by concealing the fact about his previous service status, therefore, the respondents were justified in removing the appellant from service. He further argued that the appellant did not inform the respondent-department about his previous service and sent an application to the Deputy Director, Education Department on 23.04.2011 for acceptance of his resignation from 01.04.2009, therefore, the action of the appellant smacks malafide. He lastly argued that the competent authority held him guilty and imposed the major penalty of removal from service on the. basis of concealment and distortion of facts, therefore, the appeal be dismissal with cost."
5. We have heard the learned counsel for the parties and have also perused the record.
6. A plain reading of opening para of the charge sheet dated 05.09.2011 shows that it was issued by the authority whereas, according to Rule 6 (1) of the Government Servants (Efficiency & Discipline)
Rules, 1973, it should have to be issued by the Authorized Officer. In. this way the appellant has been deprived of his legitimate right of defence. The perusal of show-cause notice dated 18.01.2012 reveals that a major penalty which includes the penalty of dismissal from service to be imposed upon the appellant has been proposed whereas the penalty of removal from service mentioned has been inflicted upon him which is against Si. No,98 (3) of ESTACODE, 2000 Edition. It has been decided by the Establishment Division vide their O.M. No,6/8/79-D.I dated 10.07.1979 that in a show- cause notice the proposed action is required to be specified, and no general mention is to be made by reference to all the minor or major penalties in the rules. It has been further decided in the said O.M. that serving of a show-cause notice and mere reply thereto in denial of allegations or mere questions and answers do not amount to affording the accused reasonable opportunity of showing cause as required by clause (b) of Rule 5 (1) (iii) of the Government Servants (Efficiency & Discipline) Rules; 1973. The requirement of reasonable opportunity of showing cause against proposed action will only be satisfied if particulars of the charge or charges, substance of evidence in support of the charges and specific punishment which would be called for after the charge or charges are established are communicated to the accused who is given reasonable time and opportunity to show-cause.
This has not been done by the respondents. Further, the mode of inquiry . adopted by the Inquiry Officer was also not warranted by the. Rules. The inquiry was conducted in questions - answers form which has already been disapproved by the Hon'ble Supreme Courtin the cases reported as 2001 T.D. (Services) 361, 2000' PLC (CS) 859 and 1993 SCMR 1440 as mere questions and answers do not amount to affording the accused reasonable opportunity. It is also against Rule 6 of the E&D Rules. The inquiry report, on the basis of which the appellant was charged, was not based on the statements of witnesses. It was necessary for the Inquiry Officer to record they statements of witnesses in the presence of the appellant and give him the opportunity to cross-examine them to elicit the truth. Reliance is placed on 1998 SCMR 137. Copy of the inquiry report has not been supplied to the appellant Non-supply of copy of the inquiry report to the accused to enable him to offer his explanation C amounted to denial of providing him reasonable opportunity of defence.
Reliance is place on 1993 PLC (CS)
10. As per several decisions of the superior Courts as well as of this Tribunal in the cases dealt under the Government Servants (Efficiency & Discipline) Rules, 1973, final show-cause notice was not is required to be issued to the accused mentioned the proposed penalty and having not been issued the same, the decision made by the , competent authority was illegal and void being in contravention of principles of natural justice. We are fortified to take this view from the judgment of the. Hon'ble Supreme Court reported in 1985 SCMR 174. We are also conscious of the settled law that when a thing is required to be done in a prescribed manner that should be done in that manner and in none other Reliance is placed on 1981 SCMR 244. In a nutshell, the Inquiry Officer as well as the respondent-department have failed to act in accordance with law and the rules on the subject. Further, it was not duty of the appellant to stop his salary rather it was the responsibility of Education Department to inform the District Accounts Office concerned about the resignation of the appellant and for stoppage of his pay by submitting change. It is also settled law that no person could be punished for the faults of others and in this regard reliance is placed on 2001 PLC (CS) 1037. Furthermore, it is borne from the record that the amount of monthly salaries sent in the account of the appellant by the District Accounts Office has been deposited in the Treasury by him and no loss is sustained either by the department or the Government exchequer. Moreover, the Inquiry Officer in the I.B. proved all the charges in his inquiry report whereas the Inquiry Committee/Board constituted in the Punjab Education Department cleared the appellant from the charges. The inquiry conducted by the Education Department was of two members while in the case of I.B. it was by 'single person, therefore, the view taken by two member Inquiry Committee / Board would prevail. The Inquiry Committee constituted by the Punjab Education Department vide Order No, 1282 dated 07.06.2011 in his inquiry report submitted to Regional Director Anti-Corruption, Dera. Ghazi Khan in reply to Letter No, ACE. DGK.CC.674/11/20170 dated 19.05.2011 opined as under:-- {{URDU TEXT}} The recapitulation of the above hinges the whole matter in a soothing manner leaving no liability on the shoulders of the appellant. Therefore, the impugned orders are neither maintainable nor sustainable in the eye of law and liable to be set aside.
7. For the foregoing reasons, we accept the appeal, set aside the impugned order dated 13.04.2012 and impugned order dated 15.06.2012 and reinstate the appellant in service with all consequential benefits.
8. There shall be no order as to costs.
9. Parties shall be informed accordingly.