1. ' MUSHTAK ALI KAZI (CHAIRMAN).-This service appeal is directed against the order of removal from service passed against' the appellant-an Extra Assistant Director of Agriculture by the Secretary to Government, Agriculture Livestock and Fisheries Department.
2. ' The facts in brief are that the appellant had joined the Agriculture Department in July, 1959 as Agriculture Assistant He was thereafter, promoted as Extra Assistant Director of Agriculture in grade-17. He was posted as Farm Superintendent at Ghotki from 30th October, 1973 to 24th April, 1974. In the year 1978 the Agriculture Farms were inspected and the reports were forwarded to the Departmental Promotion Committee, They recommended reversion of the appellant to grade-15 as Agriculture Assistant. By an order dated lst August, 1978 the appellant was accordingly reverted under Martial Law Order No, 55 as Agriculture Assistant grade-15 and reduced in rank but the Government in September, 1978 decided to upgrade the post of Agriculture Assistant from grade- 16 to grade-17. The appellant was then served with a show-cause notice dated 12th November, 1979 for acts of misconduct, that as Farm Superintendent Ghotki he could not exercise control over his subordinate staff resulting in theft of cotton produce, that he did not verify the agricultural machinery ; that he incurred excessive expenditure on P. C. L. ; that the yield of cotton at the Farm was only 2 maunds per acre as against 8 maunds per acre in the locality. The appellant sent his reply which was not considered satisfactory and by an order dated 31st May, 1980. Mr. S. M. Wasim as Secretary to Government and Authority removed the appellant from service. Appellant then preferred a departmental appeal to the Chief Secretary and thereafter preferred this service appeal.
3. ' It has been argued by Mr. Illahi Bux Kehar on behalf of the appellant that reasonable opportunity to show-cause had been denied to the appellant. That under para. 8 of the show-cause notice the appellant had been given the Option whether he desired to be heard in person. The appellant submitted his explanation in writing but in the concluding para of the explanation he stated ; "in case my replies are still incomplete to satisfy the Government I may kindly be given a chance to be heard in person". This explanation is dated 21st November, 1979 By an order dated 31st May, 1980 the appellant was removed from service. He was thus not afforded any opportunity to explain his case personally before the authority.
4. ' It has next been argued that the show-cause notice is defective as the specific penalty as envisaged under Rule 5(3)(a) of the Efficiency and Discipline Rules, 1973 had not been expressly stated in the notice. Under the relevant subrule the accused had to be informed of the action proposed to be taken in regard to him and the grounds of action. The learned counsel had argued that action proposed to be taken means action which has been provisionally decided upon after conclusions on facts have been reached against the public servant. That on the basis of those conclusions provisional punishment should be decided upon and then a notice issued to the public servant to show-cause. That in this ease the action proposed had been left vague and it had been stated that the appellant had rendered himself liable to one or more penalities as described in Rule 4 of the Efficiency and Discipline Rules. That it has not been stated whether the appellant had rendered himself liable for major penalty or minor penalty.
5. ' It has then been argued that the impugned order is in violation of the principle, that no one should be subjected to punishment twice for the same cause, that is, the rule against double jeopardy:.
6. The learned counsel has pointed out that for the period in question namely 1973 to 1974 the appellant had been punished in respect of similar charges by reduction in rank from grade-17 to grade-16. That he has afterwards been issued a show cause notice and removed from service in respect of the same charges.
7. ' The learned Assistant Advocate-General Mr. A. A. Mohammadally has not disputed the fact, that no personal hearing was afforded to the appellant to explain the allegations contained in the show-cause notice dated 12th November, 1979. There is also nothing on record to suggest that any such opportunity was given to the appellant. In Abdul Hamid v. Province of West Pakistan (1) the facts were more or less similar. A charge sheet was served on the appellant incorporating several allegations of misconduct relating to his official duties. He was required to send his reply in writing by a specific date and to say whether he wished to be personally heard. The appellant put in a long explanation and at the end he appended the following paragraph:- "Necessary record may be called for perusal, which will establish the truth of my assertions and satisfy the authorities as to my innocence. I may be given a chance of being heard if any point still remains unexplained."
8. ' The appellant had thus submitted a detailed explanation in respect of the allegations against him, in the hope that his explanation will be accepted as satisfactory. He made it clear however, that if any point still remained unexplained by which he obviously meant that his explanation did not carry conviction, then he should be given a chance of being heard personally. The appellant had however no opportunity of representing his case in person. It was held by S. A. Rehman, J. That this infirmity vitiated the order of removal passed subsequently.
9. ' In a more recent case of Sohrab Khan Kalwar v. Secretary to Government of Sind, Department of Food (2), a charge-sheet was served on the appellant under sub-rule (3) of Rule 5 and the appellant was clearly required to state whether he wanted to be heard in person, and in his reply he had answered in this . The Enquiry Officer reported that he could not proceed with the enquiry as the Members of the Floor Mills Association had refused to give evidence in public and the holding of the enquiry stood frustrated. The order to hold a regular enquiry was then recalled and the Authorised Officer proceeded in terms of Rule 5 sub-rule (3). It was held by Anwarul Hag, C. J., that the Authorised Officer was apparently justified in coming to the conclusion that it was not necessary to have an enquiry conducted through, an Enquiry Officer, and to porceed in terms of sub-rule (3). This rule contemplates that the Authorised Officer shall inform the accused civil servant in writing of the action proposed to be taken in regard to him and the grounds of action ; and to give him a reasonable opportunity of showing cause against that action. That in the charge-sheet served on the appellant, the appellant was clearly required to state whether he wanted to be heard in person, and in his reply he had answered this . Irrespective, therefore, of the question whether a personnal hearing is mandatory requirement under sub rule (3), it is clear that in the present case the option given to the appellant in the matter of personal hearing could not be denied to him without sufficient cause. As already stated, there is no indication on the record that the Authorised Officer was conscious of his obligation arising under the show-cause notice served by him on the appellant. As a result, the appellant was clearly deprived of the opportunity to show that the allegations against him were without foundation. The learned Judges of the Supreme Court accordingly observed "on this view of the matter we consider that order of removal {{FOOT NOTE}}
(I) PLD 1969 SC 460 (2) PLD 1980 SC 279 {{FOOT NOTE}} ' from service passed by the Provincial Government against the appellant stands vitiated. We accordingly declare this order to be without lawful authority and of no legal effect."
10. The learned A. A -G. Concedes that the option of the personal hearing given to the appellant in the show-cause notice and his request in the explanation for a personal hearing made it obligatory for the authority to give him an opportunity of appearing in person to show cause against the final order. That there was nothing on record to suggest that any such opportunity had been afforded to the appellant. That the order of removal thus stands vitiated.
11. ' Therefore, without discussing the other grounds of appeal, and going into the merits of the case, we are of opinion that in the light of the submissions made by the counsel for the appellant and the A. A. G. The order of removal from service of the appellant is set aside. As to the desirability or otherwise of continuing the proceedings against the appellant from the stage at which the illegality crept in, we leave the option in the matter to the Government to proceed against the appellant afresh from that stage. The appeal is accepted to this extent and the parties are left to bear their own costs.