' Justice (R) Sheikh Ahmad Farooq, Chairman.--Mr. Muhammad ,Irfan and Samuel Masih, appellants were removed from service with effect from 22.09.2012 vide two separate orders dated 24.09.2012. Both the appellants filed departmental appeals but the same were also rejected by the competent authority vide two separate orders dated 13.11.2012. Being aggrieved with the said orders dated 24.09.2012 and 13.11.2012, Muhammad Irfan and Samuel Masih, present appellants have preferred the appeals Bearing No. 3274 and 3275(R)CS/2012 respectively.
2. Since the titled appeals contain identical facts and questions of law and, as such, these are being decided through this single consolidated judgment.
3. The background of this case is that on 22.06.2012 at about 10.00 AM. Mr. Akhtar Zaman, Security Guards Gadwal caught Samuel Masih, while he was carrying 31 copper webbing plates wrapped in Khaki Dangri on his bicycle. The contention of Samuel Masih/appellant is that he was, in fact, carrying the said plates back to the factory on the request of Ashfaq Hussain, Khakroob, who had inadvertently brought the said copper plates outside the factory along with other waste and garbage. The matter was reported to Federal Investigating Unit (F.I.U.), and M/s. Samuel Masih and Ashfaq Hussain, Khakroob were suspended and investigations were started by FIU However, later on Muhammad Irfan/appellant, Khakroob was also involved who was neither directly involved in the theft of copper nor caught red-handed by Mr. Akhtar Zaman, Security Guard on 22.06.2012. On the basis of their confession, the appellants were issued charge sheet and statements of allegations on 05.07.2012, on the charge of stealing copper/brass scrap as well as bad/poor service record by Managing Director, POF, Gadwal. A two Member Inquiry Committee was constituted. The Inquiry Committee, after recording the statements of witnesses and examining the record, held the appellants guilty of the charges vide report dated 24.08.2012. The appellants were then issued show-cause notices dated 29.08.2012 by the MD, POF Gadwal, in reply whereof, the appellants denied the charges and requested for the withdrawal of the show-cause notice, which was not found satisfactory, as such, the General Manager, Engg., by order dated 24.09.2012, imposed major penalty of removal from service. Their departmental appeals against the impugned orders were rejected vide order dated 13.11.2012, hence, these appeals.
4. Learned counsel for the appellants challenged the impugned orders on legal as well as factual plane. He stated that, according to Daily Order Sheet, dated 22.12.1990, the Managing Director/POF, Gadwal, and the General Manager were designated as Competent Authority and Authorized Officer respectively for officials in BPS-1 to 15 working in Gadwal, Wah Cantt. He submitted that in the present case, the Managing Director, POF Gadwal, constituted the Inquiry Committee, issued charge sheet and statement of allegations and also served show-cause notice, which according to the rules, are required to be issued by the Authorized Officer. He further submitted that the impugned orders dated 24.09.2012, have been passed by the General Manager, Engg., in the capacity of competent authority, whereas he was Authorized Officer as per order dated 22.12.1990, therefore, the whole proceedings and orders against the present appellants were null and void, having been passed by incompetent authorities. Learned counsel next contended that the so- called inquiry, which was held, was also not in accordance with law as prosecution witnesses were neither examined in presence of the appellants nor were they allowed to cross-examine the witnesses. He highlighted that the statements of appellants/Muhammad Irfan and Samuel Masih were recorded on 14.07.2012 and 13.07.2012 respectively, whereas statements of prosecution witnesses were recorded subsequently i.e. On 18.07.2012. He contended that even the inquiry, which was conducted, was in question-answer form, which has been deprecated by the Superior Courts in number of cases. Learned counsel alleged that the confessional statements of the appellants were recorded under duress and coercion, while they were in the custody of F.I.U., which could not be used against them.
5. On factual aspect of the case, the learned counsel for the appellants submitted that the alleged confessional statements were recorded on 22.06.2012, which were made basis of the charge sheet dated 05.07.2012. He pointed out that a perusal of the so-called confessional statements would show that there was no mention of the officer who has recorded the same. He claimed that the appellants have categorically denied of having made such confessional statements. Rather, they stated that during custody of FIJ, their thumb impressions were obtained on white papers, whereafter the said confessional statements were written at their back. He pleaded that on both counts, i.e. Legal as well as factual; the impugned orders are not sustainable and are liable to be set aside. In support of his arguments, the learned counsel placed reliance on the case law reported as 2002 PLC (CS) 651, 2006 PLC 265, 2007 PLC (CS) 555, 2007 PLC (CS) 816, PLJ 2005 (Services) 210, PLJ 2007 Tr.C. (Services) 26, PLJ 2012 (Services) 89, PLJ 2012 (Services) 154, 2009 SCMR 187 and 2011 SCMR 1.
6. The respondent-department opposed the appeal. In their parawise objections, they stated that on account of stealing and sale of stolen material, which were not only proved during inquiry proceedings, but also on account of appellants' confessional statements, they were rightly awarded major penalty of removal from service. They contended in their parawise comments, that, according to existing rules, the competent authority for the appellants, who fell under the category of staff, is Managing Director, whereas for workmen, General Manager is the competent authority, therefore, the impugned orders have rightly been passed. Learned counsel for the respondents submitted that all the legal formalities have been adopted, in as much as that the appellants were served with charge sheet, obtained their replies, inquiry was conducted wherein the appellants were given full opportunity to defend themselves, show-cause notices were served and personal hearing was also granted to them. He pleaded that the entire proceedings were conducted in accordance with law, as such, it is incorrect to say that the proceedings were illegal or that the appellants were condemned unheard. Learned counsel argued that the appeals of the present appellants are liable to be dismissed, being without any merit.
7. We have heard the learned counsel for the appellant as well as the learned counsel, who appeared for the respondents, in addition to examining the record carefully.
8. Before proceeding further in the matter, we would like to observe that the incident which triggered the initiation of disciplinary proceedings i.e. Theft, is primarily a cognizable offence and ordinarily, Mr. Akhtar Zaman, Security Guard, Gadwal, who caught, Samual Masih red-handed, should have got a criminal case registered against him in the concerned Police Station, followed by the necessary investigation and trial. No doubt, criminal proceedings and departmental proceedings could be taken against a civil servant simultaneously, but this particular case could have been investigated in a better manner by the Police.
9. As per Delegation of powers under Government Servants (E&D) Rules, 1973, the competent authority and authorized officer were nominated in respect of different formations for officials in BPS-1 to 15 vide order dated 22.12.1990 and, according to the said order, the competent authority for the appellants is the Managing Director, whereas General Manager has been designated as Authorized Officer. The contention of the respondents that the competent authority for the appellants is the Managing Director is correct, but perusal of the record reveals that all the proceedings, i.e. From issuance of charge sheet till show-cause notice were passed/made by the Managing Director, POF Gadwal, whereas the impugned orders of removal from service were passed by the General Manager, who, as per order dated 22.12.1990, was the Authorized Officer.
10. Under Rule 5(1)(iv) of Government Servants (E&D) Rule, 1973, the Authorized Officer is required to issue charge sheet, statement of allegations, nominate Inquiry Committee or Inquiry Officer, issue show-cause notice and if it is considered that a major penalty has to be imposed, then the Authorized Officer has to forward the case to the Competent Authority along with his recommendations, but in this case as observed above, all the proceedings were conducted by the Authority and the impugned orders were passed by the Authorized Officer. Therefore, the whole proceedings against the present appellants were conducted in violation of the (E&D) Rules, 1973, and the same cannot be sustained.
11. Even otherwise, the inquiry, which was conducted against the present appellants, was in question-answer form. The Hon'ble Supreme Court of Pakistan in the case reported as 1993 SCMR 1440 has held that inquiry conducted in question-answer form is not permissible under the law.
Further, during the inquiry, no witness was examined in presence of the appellants as their statements were recorded on 18.07.2012 much later than the statements of the appellants, which were recorded on 13.07.2012 and 14.07.2012. As per inquiry procedure, the statements of prosecution witness(s) are required to be recorded first, and the accused has a right to cross-examine him/them and thereafter, the statement of the accused is to' be recorded at the end. All these lacunae have made the entire proceedings against the present appellants violative of the rules.
12. The alleged confessional statements of the accused/civil servants are of vital importance in this case. As far as, the stance of the respondents that the appellants confessed their guilt on the basis of which they were proceeded against, is concerned, suffice to observe that the so-called confessional statements were recorded by a person, whose name and designation is not mentioned therein. It is also worth consideration the that so-called confessional statements were recorded at the time when the present appellants were in the custody of staff of F.I.U. (Federal Investigating Unit), which is a law enforcing agency and could be equated with Police force. Hence, the so-called confessional statements of the present appellants, which have been recorded during their custody of F.I.U. Could not be made a basis for awarding punishment. In this regard, we would like to refer to Article 39 of Qanun-e-Shahadat Order, 1984, which clearly stipulates that any confession made by a person while in Police custody shall not be relevant unless it be made in the immediate presence of a Magistrate, which shall be proved as against such person. Reliance in this regard is placed on the case law reported as PLJ 2012 Tr.C. (Services) 89.
13. There is another aspect of the case, i.e. According to the charge sheets, the present appellants have sold the stolen property to the vendors, namely, Muhammad Tanveer and Sunni, on various dates, but the Inquiry Officer, did not record their statements. We also cannot ignore the fact that the appellant/Muhammad Irfan had attached an affidavit of the said vendor, namely, Muhammad Tanveer along with his appeal, wherein he has denied to have purchased any official scrap from Muhammad Irfan. Similarly no criminal proceedings were initiated against Muhammad Tanveer and Sunni, who had allegedly purchased the stolen property from the present appellants.
Moreover, the role allegedly attributed to the present two appellants is quite different but they have been treated alike.
14. Lastly, in addition to the allegation of stealing copper webbing stripes (scrap), the appellants were also charged for their previous conduct of being habitual absentees from duty and slipping away from the place of duty. However, perusal of the record would reveal that for the said charges, they have already been penalized and, therefore, could not be awarded any punishment in any subsequent proceedings again. In this regard, we would like to refer to the judgment reported as.
1998 PLC (CS) 648, wherein it has been held that "previous omissions could not be made the justification for future penalties particularly when omission had already been adjudicated upon administratively."
15. For the above reasons, the impugned orders dated 24.09.2012 and 13.11.2012, are not sustainable and, accordingly, set aside. The instant appeals are accepted and the appellants are directed to be reinstated in service. However, the question of back benefits shall be decided in accordance with the procedure laid down in Serial No 155, Vol. II of Civil Establishment Code [Estacode 2007 Edition] and the dictum laid down by the Hon'ble Supreme Court of Pakistan in the judgment reported as 2010 SCMR 11. Nevertheless, the respondent may hold a de novo inquiry against the present appellants, if they so desire. In case,' a de novo inquiry is ordered against the appellants, the same shall be completed within a period of four months from the date of receipt of the copy, of this judgment.
16. Parties to bear their own costs and they be informed accordingly.