1. ' SARDAR MOHAMMAD ASHRAF KHAN (CHAIRMAN).-This service appeal under section 4 of the Azad Jammu and Kashmir Service Tribunal Act, 1975 is directed against the Government Order No, S& GAD/3965-71/ 78 dated 18th November, 1978 where under the penalty of compulsory retirement was awarded to the appellant on the charges of inefficiency, misconduct and corruption.
2. ' The brief facts leading to the present appeal are that Ch. Mohammad Latif appellant having joined the service in the Co-operative Department of Azad Jammu and Kashmir Government as Assistant Registrar Cooperative Societies on 11th May, 1966 had arisen to the position of Registrar Co-operative Societies in the said Department when he was transferred as Officer on Special Duty in the Revenue Department on 1st February, 1972. From there he was further deputed in the same capacity to the Department of Industries and while working there as Additional Director Industry, he was arrested on 25th December, 1977 and was also placed under suspension with effect from the same date on the charges of abetting the offence of misappropriation, forgery and cheating alleged to have been committed by the managements of dissolved Cooperative Banks. Later on disciplinary proceedings were initiated against him on the grounds of inefficiency, misconduct and corruption under the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 (hereinafter called as Efficiency and Discipline Rules) and acting under rule 6 (2) of the said Rules, a charge sheet framed against him on 24th January, 1978 under the signature of Secretary Services and General Administration Department and simultaneously vide Notification No, Admin/S & GAD/1341-49/78 dated 24th January, 1978, Raja La Hussain, an Officer on Special Duty to the Government, was appointed as Inquiry Officer to inquire into the allegations against the appellant contained in the aforementioned charge-sheet which reads as follows {{URDU TEXT}} ' The appellant submitted his explanation to the charge-sheet served upon him but before the said Inquiry Officer could start the Inquiry, he was replaced by Mr. Abdul Majid Salahria, Secretary Forests vide Government Order No, Admn/7-016-23/78, dated 20th April, 1978 who in turn was also replaced by Commission of Inquiry No, 2 vide Order No, Admin/ 8520-28/78 dated 6th May, 1978.
3. The said Commission after holding inquiry into the allegations against the appellant submitted its findings thereon in the shape of a report to the Government which issued a fresh show-cause notice to the appellant incorporating in it some of the allegations already embodied in the previous charge-sheet framed against the appellant. It appears necessary to reproduce the above show-cause notice which runs as under :- ' No, S & GAD/Co-op-1/3078-79/78.
4. ' Services and General Administration Department Azad Government of the State of Jammu and Kashmir M'abad.
5. ' Dated :-The 24th September, 1978.
6. ' Ch. Muhammad Latif Ex-Registrar Co-operative Societies, (under suspension) Azad Government of the State of Jammu and Kashmir M uzaffarabad.
7. ' Subject :-Show-Cause Notice.
8. ' While examining the affairs of the Co-operative Department serious irregularities committed by you as Registrar Co-operative Societies. Came to the notice of Commission of Inquiry No, II and the competent authority accepting the recommendations of the Commission has decided to give show-cause notice to you Ch. Muhammad Latif Registrar Co-operative Societies (under suspension) under rule 6 (3) (b) of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, on the basis of the following allegations :-
(1) The Audit of Kalyal Industrial Co-operative Bank for two preceding years was held in 1975 and the irregularities in sanctioning the loan to Directors to the tune of 45 lac without obtaining the prior sanction of the Registrar, was pointed, out by the auditors. The report was received in Registrar's office on 26th June, 1976 whereas you took action on this report on 5th October, 1976. This delay of 4 months in initiation of action pertaining to gross irregularity is significant to show that you intended to give latitude to the Directors of the Bank in obtaining money without sanction.
(2) That Audit- of Kashmir National Co-operative Bank for the years 1974-75 and 1975-76, though initiated yet was not completed till the Bank was sealed. Initially Ch. Fazal Din was appointed to carry out the audit of the above Bank while he was busy with the Audit of Transport Society. When Mr. Fazal Din could not complete the Audit till May, 1976, you (Ch. Muhammad Latif) appointed a committee of Auditors under Assistant Registrar, Mirpur. This committee also could not take on the audit as its members were already committed on the audit of other Societies. Consequently five months were wasted. Finally in November, 1976 Mr. Habib-ur-Rehman, Assistant Registrar was nominated to carry out the audit with the instructions to complete the audit within two months. Mr. Habib-ur-Rehman audited the accounts of only 40 branches out of 62 branches of this Bank, when it was sealed on 6th January, 1977. As the Bank was sealed therefore the audit of remaining 22 branches could not be carried out. Since gross irregularities were committed by the management of this bank during this period which were in your knowledge, it is, therefore, believed that not holding/delaying the audit was maneuvered with your complicity or was intentional on your part.
(3) That you should have refixed the priorities by detaching the auditors from their existing commitments and employing them on the audit of the bank which remained pending for over two years.
(4) That Mr. Habib-ur-Rehman could have been instructed to start his audit from the Head Office of the Bank which (assuming, that you were not in knowledge of irregurities of the Bank Management) should have given overall picture of all the branches of the Kashmir National Co-operative Bank.
9. This way you could have the information of irregularities earlier than what happened finally at a later stage.
(5) That had you brought the specific problem of shortage of staff to the notice of Secretary of the department keeping in view the seriousness of the case, he would have helped you with the provision of extra departmental staff, but it appears that you were not serious enough in the case and was a party to the whole affairs.
(6) That for auditing the account of the banks you could requisition services of Commercial Auditors to expedite the audit of the left over bank. Also you could approach the Accountant- General to help you in the matter. According to the Bye-laws of the Bank, the Commercial Auditors could be appointed with the consultation of the bank who have to bear the fees. Even if they (Bank) did agree to the Commercial Auditors at their costs the possibility of delay were still there.
(7) That you left yourself at the mercy of the circumstances did not explore the possibilities and resources for arranging the audit of these Banks and wasted a lot of time. You should have asserted yourself more to get the audit completed in time.
(8) That you had already some inkling of the happenings in the banks at that particular period and hence had purposely delayed the audit of these banks. This inability to get the audit conducted in time lead to other irregularities for which you are held exclusively responsible.
(9) That you failed to hold inquiries into the working and financial affairs of the banks under section 43 of Co-operative Societies Act, 1925 and allied offences being committed by these banks.
(10) That you failed to exercise due vigilance and control of management of the Commercial Banks thereby affording opportunity to the Directors etc., of these Banks and their relatives to draw heavy advances of money without tangible security and complete documentation and thereby not paying back the loans to the banks in regular instalments. You lacked moral courage to exercise full control over the managements.
(11) That you failed' to take stern action against Ch. Muhammad Akhtar, Ch. Muhammad Akram and Ch. Khadim Hussain etc., Directors Kashmir National Co-operative Bank, obtaining heavy advances in their favour from the Banks. Ch. Muhammad Akhtar opened the account with an advance of Rs, 50,000 which was sanctioned by you. This amount was repaid and only a balance of Rs, 4336 was transferred to United Corporation on 8th December, 1974. Subsequently no loan were sanctioned to Ch. Muhammad Akhtar, but a loan of Rs, 1,22,42,863.44 was advanced to United Corporation, of which Ch. Muhammad Akhtar was a member, but the account was operated by Ch. Abdul Aziz. There is no record of this amount in the office of Registrar or Assistant Registrar, Mirpur.
10. Ch. Muhammad Akram opened the account with the advance of Rs, 50,000 sanctioned by the Registrar. The total advance was drawn by him and repaid leaving a balance of Rs, 4,554 transferred to United Corporation on 8th December, 1974. Ch. Muhammad Akram was also the member of the Corporation but did not operate the account. He was sanctioned another advance of Rs, 3,50,000 by you on 16th December, 1972. This account was also closed by the debitor with a debit balance of Rs, 4,52,143 and transferred to United Corporation accounts. No record of this transaction is available in the office of Registrar and Assistant Registrar. Ch. Khadam Hussain was sanctioned an advance of Rs, 2 Lac on 16th December, 1972. Again this account was also closed and the balance of Rs, 2,58,291 was transferred to United Corporation on 8th December, 1974. This amount is much less than the total indebtedness of the Corporation which is Rs, 1,22,42,863.44.
11. 'These irregularities/transactions took place within your knowledge.
(12) That you failed to collect Rs, 1,95,157.53 left uncollected from Kalyal Industrial Co-operative Bank.
(13) That you irregularly deposited Rs, 3 Lac received as Government aid for Co-operative Department, with Ex-Premier Co-operative Bank Muzaffarabad.
(14) That you failed to account for Rs, 3,750 as interest on Rs, 25,000 statedly to have been drawn by Qazi Abdul Hayee, Deputy General Manager, from the Azad Co-operative Bank.
(15) That you failed to produce Cash Book of your office pertaining to your period as Registrar Co- operative Societies before the Commission of Inquiry No, II.
12. ' In view of these facts you are found guilty of misconduct and inefficiency and the competent authority proposes to award you any of the major penalties under rule 4 (b) of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 and you are required to show cause as to why action should not be taken against you as laid down in these rules.
13. ' You are required to submit your reply to the undersigned within 10 days of the receipt of this show- cause notice. In case your reply is not received within the specific period, it will be presumed that you have accepted the charges levelled against you and the case will be decided accordingly.
14. After the issue of show-cause notice you are required to be, heard in person under rules. However, to meet the ends of justice, you can be heard in person for any clarification with regard to charges, if you state no clearly in your reply to this notice.
15. ' No, S&GAD/Co-op-I/3078-79, dated 24th September, 1978.
16. (Sd.) S. Muhammad Ibrahim Khan ' Dy. Secy.
17. ' Service & General Administration.
18. ' The appellant submitted detailed reply to the above show-cause notice refuting all the allegations made against him in the same. The Government after hearing the appellant personally and taking into consideration the report of Commission of Inquiry, the show-cause notice and the reply of the appellant thereto found him guilty of inefficiency, misconduct and corruption under the Efficiency and Discipline Rules and consequently awarded him the penalty of compulsory retirement vide the impugned order. The appellant filed a Review Petition before the respondent against the order of his compulsory retirement but without success as the same was rejected on 4th March, 1979.
19. ' Now the appellant has approached this Tribunal for the redress of his grievances arising out of the impugned order by way of filing this appeal with the prayer that by setting aside the same he be re-instated to service from the date of his, suspension. The respondent has contested the appeal and filed written objections through its counsel.
20. ' During the course of proceedings in this Tribunal, the appellant besides appearing as his own witness got the statement of Mr. S. D. Katal, Section Officer Services and General Administration Department, Mr. Sabir Hussain, Supdt., Co-operative Department and Zamir-ud-Din, Assistant, Home Department recorded and also produced certain documents. The respondent did not adduce any evidence in rebuttal.
21. ' The learned counsel for the parties addressed lengthy arguments at bar in addition to filing written arguments. The learned counsel for the appellant assailed the impugned order both on legal grounds as well as on merits. The legal pleas raised by him are:-
(i) That the Commission of Inquiry No, 2 was not lawfully constituted and as such it was not competent to inquire into either the allegations against the appellant or the affairs of the department with the result that the impugned order based on its report is unsustainable.
(ii) That the said Commission conducted its proceedings in violation of the relevant law as well as the well-recognized principle of natural justice as the same were conducted secretly at the back of the appellant who was neither afforded an opportunity to hear and cross-examine the witness who might have deposed against him nor he was confronted with the incriminating material or evidence used against him nor any opportunity of producing defence was given to him.
(iii) That the show-cause notice served on the appellant was incompetently issued as the officer issuing the same, was not an authorised officer of the appellant as contemplated under Efficiency and Discipline Rules.
(iv) That the allegations as contained in the show-cause notice were vague and lacking in assential particulars such as evidence on which the same were based and thus the appellant was deprived of the responsible opportunity of meeting them in his defence.
(v) That the impugned order is also unmaintairtable as the procedure provided in rule 6 (3) of Efficiency and Discipline Rules was unlawfully adopted in a disciplinary proceedings by issuing show-cause notice to the appellant whereas the procedure envisaged by sub-rule (2) of the said rule was applicable in his case.
(vi) That the impugned order is mala fide inasmuch as the departmental proceedings against the appellant which resulted in its passing were actuated by the malice, ill-will and personal vendetta nursed by the Government respondent as well as its certain officers against him, the proof whereof is amply born out from the official record itself.
(vii) That the impugned order is also bad in law as the same has proceeded on finding the appellant guilty of inefficiency, misconduct and corruption whereas there was no allegation of corruption against him in the show-cause notice served upon him and made the basis for the impugned order.
22. ' On the merits of the case it has been contested by the learned counsel for the appellant that there was no material or evidence on the relevant record to substantiate the allegations made against the appellant and that even the Commission of Inquiry No, 2 has exonerated him of them and has praised his performance and conduct as Registrar Co-operative Societies.
23. ' After taking into consideration the record of the case, the arguments of the counsel for the parties aid relevant law on the subject we are of the view that there is no need to enter into discussion on all the legal grounds raised by the learned counsel for the appellant and on the merits of the case as we find that the disciplinary proceedings against the appellant have been conducted in flagrant disregard of the mandatory procedure prescribed in the relevant rules which illegality or irregularity alone has vitiated the whole proceedings rendering the impugned order passed in consequence thereof null and void.
24. ' In the matter of disciplinary action and penalties a civil servant is governed by the Efficiency and Discipline Rules framed under the Civil Servants Act. In order to bring out clearly aforesaid illegality it will be useful to reproduce relevant portions of sections 5 to 8 of the said rules which deal with the method of inquiry against and imposition of penalties on accused civil servant which read as follows.
25. ' S. Initiation of proceedings.-If, in the opinion of the authority there are sufficient grounds for proceedings against a civil servant, it shall direct the authorised officer to proceed against the said civil servant.
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 :-
(1) In case where a civil servant is accused of subversion, corruption or misconduct, the authorised officer may require him to proceed on leave, if due, or, with the approval of the authority suspend him, provided that any continuation of such leave or suspension shall require approval of the authority after every three months ;
(2) The authorised officer shall decide whether in the light of facts of the case or the interests of justice an inquiry should be conducted through an inquiry officer or Inquiry Committee. If he so decides, he shall appoint an Inquiry Officer or Inquiry Committee consisting of two or more persons who or one of whom shall be of the rank senior to the accused or all of the concerned and the procedure indicated in rules 7 and 8 shall apply.
(3) .
(a) .
(b) give him a reasonable opportunity of showing cause against the action ; ' Provided that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or Azad Kashmir or any part thereof it is not expedient to give such opportunity.
26. (4)
7. Procedure to be observed by the Inquiry Officer or Inquiry Committee.--Where an Inquiry Officer or Inquiry Committee is appointed, the authorised officer shall-
(1) frame a charge and communicate it to the accused together with statement of allegations explaining the charge and of any other relevant circumstances which are proposed to be taken into consideration;
(2) require the accused, within a reasonable time, which shall not be less than seven days or more than fourteen days, from the day the charge has been communicated to him, to put in a written defence and to state, at the same time whether he desires to be heard in person.
(3) The Inquiry Officer or the Committee, as the case may be, shall 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 witness against him.
(4) ...
(5) ..
(6) The Inquiry Officer or the Committee, as the case may be, shall within ten days of the conclusion of the proceedings or such longer period as may be allowed by the authyrised officer submit his or its findings and the grounds thereof to the authorised officer.
(7) On the receipt of the report of Inquiry Officer or Inquiry Committe, the authorised officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty, he shall pass orders accordingly, if it is proposed to impose a major penalty, he shall forward the case to the authority alongwith the charge-sheet, a statement of allegations served on the accused, explanation of the accused, the findings of the Inquiry Officer or the Inquiry Committee and his own recommendations regarding penalty to be imposed.
8. Action by the authority.-In the case of any proceedings the record of which has been reported for orders 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, pass such orders as it may deem fit.
27. ' From the bare reading of the provisions of rules reproduced above, it becomes absolutely clear that after receiving direction from the authority to initiate departmental disciplinary proceedings against civil servant, the authorised officer in relation to further proceedings is left with only two options namely, that in the light of the facts of the case or the interests of the justice he should either acting under sub-rule (2) of rule 6 of the Efficiency and Discipline Rules appoint an Inquiry Officer or Inquiry Committee to conduct regular inquiry into the charge against the accused civil servant or under sub-rule (3) of the said rule dispensing with the regular inquiry simply issue show- cause notice to the accused civil servant informing him of the action proposed to be taken against him alongwith the grounds thereof and also to give him a reasonable opportunity of showing cause against that action. If the authorised officer decides to observe the former course then he is to frame a charge against the accused civil servant to be communicated to him together with the statement of allegations explaining the charge and ask him to submit his explanation to the same.
28. Then the Inquiry Officer or the Inquiry Committee, as the case may be, after inquiring into the allegations against the accused civil servant in accordance with the procedure provided in sub- rules (3) to (7) of rule 7 of the Efficiency and Discipline Rules shall submit its findings on the charge with reasons thereof to the authorised officer. On receipt of the inquiry report, the authorised Officer. Shall determine as to whether or not charge against the accused civil servant is proved and in case his determination is in the affirmative, he is empowered under sub-rule (8) of the aforesaid rule to inflict any one or more of the minor penalties himself on the accused civil servant but if he is of the opinion that the major penalty is called for then he shall submit the entire record of the case alongwith his recommendations as to the penalty to be imposed upon the accused civil servant to the authority who shall make such order as he or it may deem fit.
29. ' Now, let us proceed to see and examine as to whether in the present case the prescribed statutory procedure detailed above has been followed or not. In this case the Government who at the relevant time was both authority and authorised officer of the appellant after deciding to initiate disciplinary proceedings against the appellant for certain allegations of inefficiency, misconduct and corruption had chosen to observe the procedure provided by sub-rule (2) of rule 6 of Efficiency and Discipline Rules by appointing Raja Lal Hussain, an officer on special Duty as Inquiry Officer for holding inquiry into the allegations against the appellant and also framed a charge- sheet against the appellant. Before the said Inquiry Officer could commence the inquiry, the Government-respondent amended the Notification of his appointment and in his place Mr. Abdul Majid Salahria, Secretary Forests was appointed as Inquiry Officer who was further replaced by the Commission of Inquiry No,
2. The said Commission in its capacity as Inquiry Committee appointed under Efficiency and Discipline Rules inquired into allegations against the appellant and submitted its report containing its findings thereon which is placed on the departmental file No, 3 pertaining to the disciplinary proceedings against the appellant. On receipt of the Inquiry Report and after its examination the Government-respondent, in its capacity as authorised officer, was bound to take further action in terms of sub-rale (8) of rule 7 of the Efficiency and Discipline to which it should have decided as to whether or not charges against the appellant have been proved or not and in the light of its determination should have either exonerated the appellant of the charges or imposed upon him any of the minor penalties and if the said penalty was not considered sufficient and major penalty was called for then the same could be imposed under rule 8 of the said rules in its capacity as authority. But as would appear from subsequent proceedings taken after the receipt of inquiry report, the above stated course was not adopted and instead acting under sub- rule (3) of rule 6 of Efficiency and Discipline Rules a fresh show-cause notice which also included certain charges embodied in the previous charge-sheet was served on the appellant and on the basis of the said show-cause notice, the reply of the appellant thereto and recommendations of the Commission of Inquiry No, 2 the penalty of compulsory retirement was inflicted upon him. Such a procedure was not at all warranted by the rules on the subject referred to above which being statutory, mandatory and penal in nature were required to be adhered to strictly and faithfully.
30. After a decision having been made by the competent authority to have the regular inquiry conducted into the allegations against the appellant through Inquiry Committee in terms of rule 6
(2) of the Efficiency and Discipline Rules and after submission of the report by said committee in respect thereof under rule 7 (7) of the said rules, it was not at all permissible to it to then have recourse to alternative procedure provided in rule 6 (3) ibid and issue fresh show-cause notice to the appellant comprising certain allegations which were also included in the previous charge framed against him and enquired into and findings given thereon by the Commission of Inquiry No, 2 in its capacity as Inquiry Committee appointed under the Efficiency and Discipline Rules. Sub- rules (2) and (3) of the Efficiency and Discipline Rules are alternative procedures available to the authorised officer for adoption at the beginning of the disciplinary proceedings against the civil servant which cannot be pressed into service simultaneously but only one of them is to be chosen for observance in the said proceedings. Thus the Government as authorised officer having once exercised its option in favour of the aforesaid former sub-rule in departmental proceedings against the appellant and appointed the inquiry committee for investigation into the charges framed against him it was then under legal obligation to complete the said proceedings in accordance with procedure prescribed for the purpose in the relevant rules. Thus on receipt of the inquiry report what the competent authority was required to do was this that if after the scrutiny of the said report it was of the view that none of the charges which were the subject of the inquiry was established against the appellant it should have passed the order absolving him from them but in case any one or more of them were found to have been proved against him then it should have awarded him either the minor penalty under rule 7 (8) of the Efficiency and Discipline Rules or after affording reasonable opportunity of personal hearing to him major penalty under rule 8 ibid but, as stated earlier, instead of adopting the above course of action the competent authority resorted to altogether different hereby abandoning the further procedures to be observe, disciplinary proceeding taken in accordance With rule 6 (2) of the Efficiency and Discipline Rules a direct show- cause notice was served upon the appellant under rule 6 (3) of the said rules which ultimately resulted in his compulsory retirement from service. Such a course of action was legally justified only if at the time of the initiation of the disciplinary action against the appellant and after taking into consideration the facts of the case or the interests of justice the disciplinary authority had not deemed it necessary to have the regular inquiry conducted into the charges against the appellant but in the present case it was decided at the relevant stage not to dispense with the regular inquiry and consequently the inquiry committee was appointed to inquire into the charges framed against the appellant which also submitted its findings thereon to the Government. Thus the action of the competent authority of relinquishing the further steps which were binding upon it to be taken on receipt of the findings of the Inquiry Committee on the charges against the appellant in a departmental proceedings being conducted under rule 6(2) of the Efficiency and Discipline Rules and instead taking recourse to alternative procedure of issuing direct show-case notice upon the appellant provided by rule 6(3) of the said rules tantamounts to transgression of the statutory rules on the subject invalidating the whole departmental proceedings including the impugned order resulting therefrom There is even nothing on the record to indicate that order made under rule 6(2) of the said rules directing formal inquiry into the charges in this case was ever recalled by the competent authority nor there were any compelling circumstances to do so and to adopt an alternative procedure envisaged by rule 6 (2) of the said rules. I am supported in this view of the matter by decision of Supreme Court cited in PLD 1980 SC 310 wherein the similar circumstances it was held that the authored officer choosing to adopt procedure under rule 5(2) of the Efficiency and Discipline Rules (in our case rule is 6(2) cannot adopt alternative procedure evisaged in rule 5(3) of the said rule and vice versa. It needs hardly any mention that the Government does not enjoy unfettered powers in the matters of procedure and the penalty to be adopted and imposed in a disciplinary action against a civil servant but is bound to act within the four walls prescribed by Efficiency and Discipline Rules in this regard. Any deviation from them makes the whole of the departmental proceedings illegal and any order of punishment ensuing proceedings illegal and any order of punishment ensuing therefrom also becomes invalid and of no legal effect.
31. ' On the above view of the matter the disciplinary proceedings against the appellant stand vitiated with the result that impugned order based thereon is also rendered null and void. As regards the show-cause notice itself, its certain factual as well as legal aspects cannot be lost sight of while considering the legality or otherwise of the impugned order.
32. ' From the reading of the opening paragraph of the show-cause notice two things become quite clear. First that it has been issued under the provision of sub-rule (3) of rule 6 of the Efficiency and Discipline Rules and second that it has proceeded on the basis of irregularities which came to the notice of the Commissioner 'Inquiry No, 2 while examining the affairs of the Co-operative Dr. Treatment and communicated to the Government in its recommendations bad submitted its report regarding the Co-operative it's No, Co-1-1I/56/385/78 dated 26th July, 1978. We have examined the aforesaid report but could not find any of the irregularities contained in the show- cause notice to have been attributed in it to the appellant by the Commission. In other words this means that it is not correct that the Commission of Inquiry No, 2 in its report submitted to the Government in respect of the Co-operative Department had found the appellant guilty of committing any of the irregularities made the basis of allegations against him in the show-cause notice which thus is based on the wrong premises. In the context of the said report of the Commission of Inquiry, it has also been contended by the learned counsel for the appellant that the inquiry into the affairs of the Co-operative Department did not fall within the purview of the jurisdiction of the said Commission and as such any report in respect of it could not be used against the appellant for awarding any disciplinary punishment to him. The above contention of the learned counsel for the appellant has much substance in it in view of the relevant record made available to us. The said Commission was appointed under Notification No, S & GAD/1(1)30/77 dated 20th November, 1977 under Pakistan Commissions of Inquiry Act, 1956 as adopted in Azad Kashmir to probe into persistent public allegations of gross misuse, misappropriation and embezzlement of grant and fund of certain departments mentioned in the said Notification in which subsequent amendment was made vide No, S&GAD/I(1)30/78 dated 30th June, 1978.
33. ' We have examined the above-stated Notification and amendment thereto but did not find any mention of the Co-operative Department in the list of the Departments in respect of whom the said Commission was empowered to inquire into certain types of allegations. We allowed time to Additional Advocate General, Counsel for the respondent to produce any document indicating that the affairs of the Co-operative-Department were also to be investigated by the Commission under consideration but he has shown his inability to produce such document with the result that according to the record before the Tribunal, the said. Commission was not legally authorised to make any inquiry into the affairs of the Co-operative Department and thus any report submitted by it to the Government in respect thereof was without lawful authority. Although the impugned order is stated to have been based on the recommendations of the Commission of Inquiry No, 2, show-cause notice issued to the appellant and his reply thereto yet, in fact it is founded on the report of the said Commission of Inquiry regarding the affairs of the Co-operative Department inasmuch as the show-cause notice itself had stemmed from the said report of the Commission.
34. Since, as seen above, the report of the Commission under discussion did not contain any finding about the appellant of his being guilty of committing any irregularity and it also lacked legal sanction behind it, the question of issuing show-cause notice and inflicting penalty on the appellant on its basis did not arise and consequently the impugned order become unlawful and untenable. The above-pointed out infirmity in the show-cause notice has perhaps occurred on account of some confusion caused by the fact of the two reports having been submitted by the Commission of Inquiry No, 2 to the Government, one containing its finding on the charges against the appellant and the other regarding the Co-operative Department generally. The above mentioned reports were quite separate and distinct which could not form the part of or read with each other as they were submitted by the said Commission in exercise of their powers and functions in different capacities enjoyed by the Commission under different laws. The first mentioned report was submitted by it in its capacity as Inquiry Committee appointed under Efficiency and Discipline Rules whereas the other report regarding Co-operative Department was made as Commission of Inquiry appointed under the Pakistan Commission of Inquiry Act, 1956.
35. Anyhow whatever might have been the cause of the defect referred to above in the show-cause notice we have to consider it as it reads and to express our views in respect of its legality or otherwise.
36. Now I proceed to deal briefly with the departmental inquiry conducted by the Inquiry Committee appointed in this case, without which the examination of the case would remain incomplete. After going through the Inquiry report submitted by the Commission of Inquiry No, 2 in its capacity as Inquiry Committee appointed under the Efficiency and Discipline Rules the conclusion is irresistable that while conducting the said inquiry and making the report the Inquiry Committee absolutely failed to comply with the requirement of the relevant statutory rules. Rule 7 of the said rules makes it imperative upon the inquiry committee to inquire into the allegation and to examine such oral or documentary evidence in support of the charge or in defence of the accused civil servant and to give him opportunity to cross examine the witnesses appearing against him while under sub-rule
(7) of the same rule it is required to submit its findings and the grounds thereof to the authorised officer. But in the present case the procedure envisaged by the above rule was altogether ignored by the inquiry committee. From the report it is evident that the inquiry committee has based its conclusions in respect of certain matters on documentary as well as oral evidence. Thus it was incumbent upon the said committee to have recorded the statements of the witnesses deposing against the appellant in his presence giving him also the opportunity of cross-examining them and also confronted him with the incriminating material used against him. He should have also been given an opportunity of rebutting the evidence appearing against him. But as would appear from the reading of the inquiry report, the inquiry committee denied the appellant the opportunity to exercise any of the above-mentioned rights vested in him under rules. The witnesses whose statements were taken into consideration against the appellant by the inquiry committee while making its report were not examined in his presence nor he was afforded an opportunity to cross examine them. Similarly the documents which were used against him in arriving at conclusions with regard to the irregularities/illegalities, committed and commissions made by the appellant in the discharge of his official duties were not shown to him and he was also not given an opportunity to adduce evidence on his behalf to rebut the charges and the evidence appearing in support thereof. Thus the non-observance of the provisions of service rules referred to above by the Committee during the conduct of the inquiry into the charges has resulted in the total denial of right of defence conferred on the appellant by the said rules. As regards the inquiry report, it also suffers from many material infirmities and defects. As stated earlier under sub-rule (7) of the Efficiency and Discipline Rules the inquiry committee was bound to confine its findings on the charges framed against the appellant in the charge-sheet and to give grounds on which such findings were based. But here too the inquiry committee did not confine itself within the four walls of its authority and by travelling far beyond its jurisdiction has recorded its conclusions against the appellant on many matters not covered by the specific charges made against him and has also based its findings in most cases only on suspicions, conjectures, surmises and on its personal views in respect of a particular matter or a situation. It would be worthwhile to quote a few extracts from the inquiry report to show that the most of its findings given in a report in respect of the conduct and functioning of the, appellant as Registrar Co-operative Societies are based not on any substantial or legal evidence. At para '2' of page 5 of the report, it has been stated that "since gross irregularities were committed by the management during this very period which leads us to suspect that mission of not holding/delaying the audit could be manoeuvred or" intentional". At page 7 (c) of the report, it is observed that "despite departmental handicaps, the commission is of the opinion that Ch. Muhammad Latif should have asserted more to get the audit completed in time." Similarly, at page 8 (b) of the report it has been stated that" in view of the situation prevalent, he should have been more thorough in his inspection and probed deeper probably the neglect was wilful. "Similarly, at para. 'k' of page 19 of the report it has been stated that "above action on the part of the Registrar and that of Assistant Registrar Mirpur although give a fare decree of cover to both but some indication does exist that both had some knowledge of heavy advances being given out by the Banks. It is not, however, possible to pin point such a suspicion." At page 29 of the report, it has been remarked that "the commission is of the opinion that there is no person for Mr. Bashir to misplace, destroy the Cash book, the destruction of the cash book would be of benefit to Mr. Latif."
37. The inquiry committee at para. Of page 11 of its report has also observed that "while the corruption on the part of banks management must be taken cognizance of and they must be punished, notice must also be taken of Ch. Mohammad Latif lack of moral courage which he should have displayed even though it may have been at the cost of his own survival."
38. From the above extracts of the inquiry report it becomes abundantly clear that in most of the cases the conclusion arrived at by the inquiry committee about the charges against the appellant and his conduct and work in his official capacity and reflected in its report are the outcome of the suspicions, conjectures and its personal views and are not based on any reliable evidence. It is no gainsaying the fact that under the rules the said committee was duty-bound to come to a conclusion as to the guilt of the appellant upon an objective evaluation or assessment of the evidence brought on record during the enquiry proceedings. It will also be observed that on certain matters even the contradictory views have been expressed by the enquiry committee in its report.
39. It is also noticed that certain charges framed against the appellant in the charge-sheet were found by the inquiry committee to be suffering from vagueness and ambiguity rendering their examination difficult. Similarly, at para 15 of page 20 of the said report it has been stated that "the charge has neither been framed correctly nor is it based on proper investigation. The factual position is that amounts in question are, not co-operative accounts and are mostly private in nature". Probably for this reason the inquiry Committee has further divided the charge No, 1 into seven sub-charges, Thus when the inquiry committee itself was not certain about the nature of the some of the charges and was of the view that they have been either framed incorrectly or ambiguously how it was then expected to record its findings thereon which could be considered just right and dependable.
40. ' The legal flaws pointed out above in the conduct of inquiry and the making of the report have vitiated the inquiry report. Although, as stated earlier, the impugned order has not been based on the inquiry report under consideration on whose receipt a further show-cause notice was issued to the appellant which ultimately resulted in the passing of the said order, yet even no penalty could be imposed upon the appellant on the strength of the enquiry report submitted by the inquiry committee for the reasons stated above.
41. ' For the foregoing reasons the impugned order of the compulsory retirement of the appellant dated 8th November, 1978 is declared to be unlawful and of no legal effect and consequently the same is set aside. The appellant who had joined profession of law under licence after his impugned retirement shall be entitled to all back benefits and service rights to which he would have been so entitled but for his compulsory retirement except that the income which accrued to him from the legal practice shall be deducted from the emoluments of the period for which he remained out of service.
42. ' The parties are left to bear their own costs. The parties shall be informed of this order. KH. GHULAM QADIR (MEMEER).-I agree. <