' A. O. RAZIUR RAHMAN (MEMBER).-The Appellant in this case is Dr. Riaz Ahmed Khawar, who was dismissed from service by the competent authority by virtue of an order issued on 15th May, 1979. A review petition, having been submitted to the President on 15th June, 1979 was rejected on 27th November, 1979, where after the present appeal was filed on 19th December, 1979.
2. The Appellant, who, at the time of dismissal from service, was serving in the Jinnah Post Graduate Medical Centre, Karachi, as a Casualty Medical Officer, was proceeded against on the basis of a complaint, made against him on 14th May, 1977, by the father of a young girl for molesting her in the female observation room of the Casualty Department, where she had been brought for treatment in a semi-conscious state, after she had taken an over doze of sleeping pills. A Board, comprising three officers of the Medical Centre, was constituted by the Director of the Centre, to investigate and report on the allegations made by the father of the girl. This Board found the allegations to be true and reported accordingly to the Director, where after the Appellant was charge-sheeted and an enquiry conducted by orders of the Government by an Enquiry Officer appointed for the purposes. The Enquiry Officer submitted his report and findings after full-fledged enquiry into the matter on 13th February, 1979. He arrived at the finding that the allegations against the officer had been fully established. In view of this, the Secretary, Ministry of Health, in his capacity as the Authorised Officer, recommended that the major penalty of dismissal from service be imposed on the officer under section 3 of the Government Servants (Efficiency and Discipline) Rules, 1973. This recommendation was accepted by the President and, by order issued by the Ministry of Health, Social Welfare and Population, on 15th May, 1979, the Appellant was dismissed from service with immediate effect.
3. We have heard both the parties at great length and come to the conclusion that the allegations against the Appellant, which were of a very serious nature, were properly investigated by a Committee of Officers of the Jinnah Post-Graduate Medical Centre, who held that the allegations had been substantiated. We are also satisfied that the full-fledged enquiry held by an Enquiry Officer under the Efficiency and Discipline Rules was also conducted in accordance with the prescribed procedure, as a result of which the allegations against the Appellant were fully established and the charge proved. In this connection, we have given the fullest consideration to the plea of the Appellant that the allegations brought against him were false and fabricated and cooked up by some of his colleagues in the Medical Centre who were hostile to him and desirous of doing harm to him to the extent of blasting his career. We have also given thought to the allegation made by the Appellant that the father of the girl had made the complaint against him because of an altercation between him and the Appellant on the question whether the case was to be registered as Medico-Legal or non-Medico-Legal. Similarly, we have also taken into account a petition of compromise submitted jointly by the complainant and the Appellant, after a number of witnesses had been examined, in which it had been stated that the complainant wanted to withdraw the complaint, because, after discussion with the accused officer, he had come to the conclusion that the allegations made by his daughter were due to misunderstanding caused by hallucination.
4. We have closely examined the evidence recorded by the Enquiry Officer, as well as the written statements made by the Appellant from time to time, and we have no hesitation in holding that there is no basis for the allegation made by the. Appellant that he had been falsely accused by the father of the girl at the instigation of some of his colleagues. While, the main facts, as urged in the complaint, namely, that the Appellant behaved improperly with the girl patient in the female observation room of the Casualty Department and went to the extent of attempting to outrage her modesty, that the patient was able to escape from his clutches on account of another employee of the Centre banging the door and the Appellant hiding himself in the bath room, which enabled the patient to open the door, that the patient left the hospital immediately for home, that the next day the father of the girl saw the immediate superior of the Appellant and, thereafter, made a written complaint to the Director of the Centre, have all been fully established and leave no room for doubt that the Appellant was guilty of misconduct and that the findings in this behalf cannot be refuted.
The fact that, at a certain stage of the enquiry proceedings, the father of the girl, jointly with the accused officer, submitted a so-called compromise petition before the Enquiry Officer should not make any difference to the findings, because the so-called compromise has no relevance to the case and does not alter the facts as disclosed by the evidence. Even a superficial reading of the joint petition shows that the story of misunderstanding due to hallucination has been, introduced at the suggestion of the accused officer and is contradicted by the evidence on record. It was, therefore, rightly disbelieved and rejected by the Authorised Officer and the Authority. Besides, from the legal point of view, this case not being a matter of personal dispute between two parties, the question of compromise cannot be entertained at all)/ cost. It would have been not only undesirable but even disastrous from the administrative, social and moral point of view, to do so.
5. The allegation of malice, on the part of any of his colleagues, being responsible for implicating him in a case of this nature has also not been proved and there is no reason to accept the suggestion that the case was fabricated at the instance of any other employee of the Medical Centre, with a view to harming the Appellant. Considering the circumstances of the case, it would be absurd to accept the suggestion made by the Appellant that the complainant, who has a respectable position in society, and his daughter, who is admittedly in her early teens, would expose themselves to the humiliation that goes with an allegation of the nature involved in this case and that too merely to humor one of the Doctors at the Medical Centre. Nor can there be any justification for accepting the contention of the Appellant that the father of the girl brought a false charge against him on account of altercation over the question of treating the case as Medico- Legal or Non-Medico-Legal, because he could have had no reason for feeling aggrieved when the Appellant had actually registered the case as Non-Medico-Legal.
6. It is, stated in the petition of appeal, and the point was repeated in the course of the arguments; that the falsity of the charge against the Appellant was apparent from the fact that, according to the Casualty Register, there were three patients in the observation room at the time of the alleged incident, and not only the daughter of the complainant, and that this fact alone was sufficient to disprove the story of attempted molestation as alleged. We have perused the photostat copy of the Casualty Register and noted that, although the Register shows the time of the arrival of the patients, it makes no mention of their departure and also does not indicate whether, and for how long, they stayed in the Observation Room. It is, therefore, of not much help in establishing the case of the Appellant that there were three patients in the room at the time of the alleged incident.
7. Apart from the facts of the case, it has been urged on behalf of the Appellant in the petition of appeal, and the point was specially emphasised during the hearing, that the Appellant was prejudiced in his defence on account of material irregularities in the course of the preliminary enquiry as well as the regular proceedings against him. In this connection, the following points have been raised The preliminary enquiry was held behind his back and he was not even provided a copy of the complaint.
(2) Copies of the statements recorded in the preliminary enquiry were not supplied to him.
(3) No "Show-Cause" Notice against the proposed punishment was given to him.
(4) No copy of the result of the enquiry was supplied to him.
8. The petition of Appeal also alleges that the Enquiry Officer was biased against the Appellant and that he was a party to the conspiracy against him. We have thoroughly examined the record of the enquiry proceedings and are fully satisfied that the Enquiry Officer was not only impartial but also accommodating towards the Appellant. The allegation of partially is baseless and frivolous.
9. So far as the points mentioned at (1) and (2) above are concerned, it is observed that the preliminary enquiry held under the orders of the Director of the Jinnah Post-Graduate Medical Centre was prior to the charge-sheeting of the Appellant and was purely intended to ascertain whether the allegations made by the complainant were such as to justify a regular enquiry against the accused officer. The question of associating the said officer at this stage did not arise and, therefore, the holding of the preliminary enquiry behind his back did not in any way prejudice the case against him. Non-supply of the copy of the complaint or of the statements recorded in the preliminary enquiry also did not cause any prejudice to the accused in his defence, nor was it incumbent on the authorities under the rules to do so. The accused officer was informed of the charge levelled against him, and of the facts alleged, at the time when he was charge-sheeted and this satisfied not only the letter but also their spirit of rules on the subject. As regards points (3) and (4), it is seen that the charge-sheet served on the Appellant clearly mentioned that a major penalty was indicated in the case and, therefore, it met the requirement of the relevant rules on the subject. Under rule 5 (1) (ii), the authorised officer shall, if he decides that an enquiry should be conducted by an Enquiry Officer, follow the procedure laid down in rule 6 of the E & D Rules. This rule lays down that a charge shall be framed and communicated to the accused together with the statement of the allegations, that the accused shall be required to put in a written defence, that the Enquiry Officer shall enquire into the charge and examine both oral and documentary evidence in support of the charge as well as in defence of the accused and that he shall, thereafter, submit his findings and the grounds, thereof to the authorised officer. On receipt of the' report of the Enquiry Officer, the authorised officer is required under rule 5 (1) (iv) of the E & D Rules to determine whether the charge has been proved and, if it is proposed to impose a major penalty, to forward the case to the competent authority, which may pass such orders is it may deem proper. There is nowhere any provision in the Rules for the serving of a fresh show-cause notice on the accused.
Therefore, the contention of the Appellant, that non-service of a show-cause notice against the proposed punishment after the conclusion of the Enquiry against him was an irregularity, is not supported by the relevant rules on the subject and is without any force. Similarly, the supply of a copy of the result of the enquiry has not been prescribed in the Rules and it cannot be claimed that non-supply of the copy of the Enquiry Report in any way vitiated the proceedings. In fact, even it non-issuance of a show-cause notice after the report of the Enquiry Office and non-supply of copy of the Enquiry Report were irregularities, we would go to the extent of saying that, in the instant case, they could not have caused any prejudice to the accused in his defence, since he had been fully acquainted with the allegations against him and the evidence on which they were based and that he had been given the fullest opportunity not only to answer the charge but also to cross- examine the witnesses against him and adduce his own evidence in defence. The claim, therefore, that the procedure adopted in the enquiry in any way prejudiced the case of the Appellant has no legs to stand on and is, accordingly rejected.
9. In the light of the above, we hold that not only was the enquiry properly conducted, but the findings were also correct, and therefore, the order of dismissal passed against the accused was justified. As such, we do not find any ground for interfering with the impugned order.
10. The appeal is dismissed.
11. No order as to costs.
' MOHAMMAD IRSHAD KHAN (MEMBER). -Respectfully agreeing with the above orders recorded by my learned colleague, Mr. A. O. Raziur Rahman, and the reasons given by him, I would like to add a little. Placing reliance on Mir Muhammad's case reported in PLD 1981 SC 176, the learned counsel for the appellant has suggested invalidation of the impugned order for the failure of authorised officer to supply the copy of Inquiry report to the accused appellant and provide him an opportunity to offer his explanation in the light of finding of Inquiry Officer.
14. On a careful consideration of Mir Muhammad's case and the facts of the present case, I am of the view that the contention of the learned counsel is unsound. It is correct that in Mir Muhammad's case it has been held by their Lordships that it is a statutory requirement that if a formal inquiry is held, then the authorised Officer should, after he has tentatively decided upon the action he proposes to recommend to the Authority, give art opportunity to the accused Officer to offer his explanation against the proposed action in the light of the finding of the Inquiry Officer, before sending his recommendations to the Authority, which would necessitate that a copy of the inquiry report be furnished to the accused Officer at that stage, and he should be apprised of the action proposed against him. However, the learned counsel perhaps loses sight of another important judicial dictum laid down by their Lordships in the same authority, which appears at page 183 of the report enunciating the law that the correct rule to follow in cases of disciplinary inquiries, is that if an omission, defect or irregularity in the conduct of the inquiry has not caused material prejudice to the accused official in the matter of his defence, then such an irregularity, omission or defect, would not, by itself, vitiate the action taken against him. In my humble view, the combined effect and the true import of the above-stated two dictums would be that non-supply of the Inquiry report to the accused official and denial of opportunity of explanation thereto by the authorised officer would invalidate his recommendations and the order passed thereon by the authority only if it is established that such an omission has caused material prejudice to the accused officer in the matter of his defence.
15. It is a cardinal principle of interpretation of judicial decisions that a judgment of Court is meant to apply to the facts of the particular case in which it was given and can have but little weight in a case of which the facts are different. And let me add, in my humble way, that the peculiar aspect of Mir Muhammad's case was that in that case there was a charge against the accused official contained in the charge-sheet as well as in the statement of allegations that be "enjoyed a persistent reputation of being corrupt." Obviously the charge was completely bald and devoid of all particulars and specifications. Even the statement of allegations did not at all show on what material the charge was framed and what was the basis for saying that the accused official was persistently reputed to be corrupt. However, in support of the charge the following new material was brought on record during the course of the inquiry proceedings:-
(I) that the accused official bad demanded illegal gratification as a motive for payment to a decree-holder his decrial amount of Rs. 59,250.00 during the pendency of his application for execution of his decree in his Court ;
(ii) there were instances of certain references under section 18 of the Land Acquisition Act wherein he had proceeded to award compensation to the objectors of amount even in excess of what they had actually claimed and that it was suggested that this was done for dishonest and main fide reasons ;
(iii) instances were given of the grant of injunctions in circumstances suggesting receipt of illegal gratification ;
(iv) there was the instance of the restoration of a suit, earlier dismissed for non-prosecution in contravention to the provisions of rule, 4, Order IX, C. P. C. For dishonest reasons ;
(v) evidence was also produced to the effect that the general reputation enjoyed by the accused among the members of the bar was that he was a corrupt officer.
16. Since the above material was brought to light for the first time during the inquiry proceedings whereof the accused official had no prior notice or information, it was definitely in the interest of justice and fairness that a copy of the inquiry report containing the findings of the Inquiry Officer based on the above-said material should have been furnished to the accused official and he should have been provided an opportunity to offer his explanation against the action proposed to be taken against him in the light of the findings of the Inquiry Officer, but it was not so done by the authorised Officer. I, therefore, venture to submit, with greatest respect, that the ratio decidendi in Mir Muhammad's case seems to be that the accused officer in that case was not provided any opportunity to offer his explanation in respect of the new material brought against him for the first time during the enquiry proceedings, which undoubtedly prejudiced his defence, for, the authorised Officer and the authority had the findings of the Enquiry Officer based on such new material without any explanation being available of the accused officer in respect thereof.
However, the facts of the present case are quite different. Here in the charge against the appellant, and all evidence on which it was based, was communicated to him in full details vide charge- sheet and the statement of allegations, and the appellant was provided full opportunity to defend himself. In fact he submitted his detailed written explanations touching every point and mentioning every stand which he could take, and produced all his defence during the inquiry proceedings, which he could. Not only this, on completion of the inquiry proceedings, copies of all material brought on the record of the enquiry proceedings including copies of all the depositions were supplied to the appellant and ample opportunity was provided to him to explain the entire material on record, which he availed by submitting his two detailed written statements commenting upon the evidence adduced during the enquiry proceedings and mentioning his contentions in respect thereof. Apparently, therefore, there remained I nothing more to be done by him in his defence even if the inquiry report was furnished to him. Therefore, the decision in Mir Muhammad's case has no application to the facts of the present case, and the said authority is of no avail to the appellant.
17. I am, therefore, led to the conclusion that in case in hand non-supply of the inquiry report to the appellant was a procedural error hardly be doubted but the said error has not, in any way, worked to the prejudice of the appellant. Therefore, I am perfectly, clear in my mind that even the said omission does not at all affect the validity and legality of the impugned order. In the result, the appeal is dismissed.