1. ' MUSHTAK ALI KAZI (CHAIRMAN).By an order dated 2nd January, 1980 the appellant a Deputy Superintendent, District Jail was found guilty misconduct and was punished by stoppage of two increments with future of effect by the Inspector-General of Prisons Sind. He has accordingly preferred this appeal after rejection of his departmental appeal by the Home Secretary, Government of Sind by his order dated 13th May, 1980.
2. ' The facts in brief are that an application was made purporting to have been signed by one Abdul Aziz Rajput against the appellant Mr. Ghulam Mohammad Sario, that he was a Political Party man favouring Peoples Party Prisoners. Mr. K. M. Durrani, Superintendent Sukkur Jail was deputed to conduct secret enquiries. It was found that Mr. Sario had not been enjoying good reputation as Deputy Superintendent, Incharge of Dadu Jail. He was, therefore, transferred and served with a charge-sheet dated 12th August, 1978 signed by Secretary to Government. Home Department. The allegation; were that he had allowed interview to Martial Law convicts in excess of the rules, arranged their interviews in his own office, extended favours to them by showing 32 prisoners to have been assigned the work of 'inside cleaning', though not more than 5 or 6 prisoners were needed for the purpose. It was also alleged that the appellant had contacts with political workers and he extracted money from well-to-do prisoners and allowed them concession of sending for their meals from their homes. The appellant made a reply to the charge-sheet.
3. ' The applicant in whose name the application had originally been sent denied having signed or sent that application and no one was prepared to give evidence against the appellant. Mr. K. M.
4. Durrani however found sufficient evidence from Jail record regarding irregularities and he even found one under trial prisoner named Bashir Ahmed son of Shafi Mohammad Channa sitting on the chair in the office of Deputy Superintendent Mr. Sario and taking meals with him. The connection of this prisoner was with P.P.P. He also found U.T.P. Nawaz son of Obhayo accused under section 481, P.P.C. Confined in cell without any cause. He also found from the record 35 prisoners allotted the task of inside cleaning. They had all been convicted under the Martial Law Orders and Regulations. The Dadu District Jail was a small Jail consisting of 4 or 5 barracks only. Obviously these convicts were not assigned any labour work. Reference was accordingly made to the Secretary to the Government, Home Department by the Inspector-General of Prisons as the Authorised Officer and he was informed by the Secretary to Government in reply that since sufficient evidence was available on record it was necessary to hold regular enquiry into the matter and the Inspector-General of Prisons as the Authorized Officer was directed to issue show- cause notice to the accused officer in his capacity as the Authorized Officer indicating major penalty under the Efficiency and Discipline Rules, 1973. This was a secret letter dated 11th November 1979. On the authority of this letter from Government, regular enquiry in respect of allegations in the charge-sheet were dispensed with, and the appellant was served with a show-cause notice under rule 5 (3) of the Efficiency and Discipline Rules. This notice contained detail of misconduct that the appellant had extended favoritism to P.P.P. Workers who had created disturbance at Mehar and were sentenced under MLR by allowing them unauthorized interviews. That he extracted money from the prisoners and exempted them from labour or assigned nominal work to them. To this show-cause notice the statement of allegations was also annexed, the notice was duly served on the explanation the Inspector-General 2nd January, 1980 in his capacity minor penalty of stoppage of two 1st December 1980 to the appellant. Appellant and after obtaining his of Prisons passed orders dated as the Authorized Officer awarding increments with future effect from The main contention of the learned counsel for the appellant in this case is that after having served the appellant with charge-sheet and thereby having proceeded under rule 6 by deciding to conduct regular enquiry through the Enquiry Officer, the Inspector-General of Prisons could not issue a show-cause notice under rule 5 (3) separately, during the pendency of the departmental enquiry initiated by the Home Secretary. On perusal of the departmental file however it has become clear that the regular enquiry ordered by the Home Secretary was dispensed with and the Inspector-General of Prisons in his capacity as the Authorized Officer was directed to issue a show- cause notice under rule 5 (3) of the Efficiency and Discipline Rules. There could be no objection this procedure in view of the decision of the Supreme Court in the case of of Sohrab Khan Kalwar v.
5. Government of Sind (1). The facts of that case were also more or less similar. The Authorized Officer had decided in that case under sub-rule (2) of rule 5 of the Efficiency and Discipline Rules that it was a fit case for holding a formal enquiry into the charges framed against the appellant. The Enquiry Officer then reported that he could not proceed with the enquiry as the witnesses had refused to give evidence in public and had insisted that they would make their statements only in camera in absence of the appellant. As such procedure was not permissible, the holding of the enquiry stood frustrated and the Authorized Officer dispensed with the enquiry and served the appellant with show canes notice under rule 5 (3). Reliance was placed on earlier decision reported in Shahbas v. The Crown (2). In case of Zarar Khan v. Government of Sind (3) the facts were slightly different and while 12 departmental proceedings were already pending against the appellant under sub-rule (2) of rule 5 of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973, the Authority had proceeded against the appellant under subrule (3) of rule 5 on the same charges as were the subject matter of the departmental enquiries pending against the appellant of which he was subsequently exonerated. The order of compulsory retirement passed by the Chief Minister as the Authority was accordingly set aside. In the present case however the enquiry had been dispensed with because of sufficient evidence available in the jail record and the non- availability of any oral evidence in respect of the charge-sheet. The order under rule 5 (2) and therefore been impliedly recalled by the Authority and substituted by order under rule 5 (3). The main enquiry was not kept pending and the show-cause notice had not been separately issued as suggested by Mr. Naitmatullah Qureshi in the course of his arguments. Under the circumstances the earlier orders passed by the Home Secretary could be recalled for the obvious reasons and enquiry could be substituted by proceedings initiated on issue of show-cause notice.
6. ' In the result the appeal under section 4 of the Sind Service Tribunals Act, 1973 is dismissed with no orders as to costs. {{FOOT NOTE}}
(1) PLD 1980 SC 279 (2) PLD 1956 FC 46
(3) PLD 198Q SC 310 {{FOOT NOTE}}