1. ' MUSHTAK ALI KAZI (CHAIRMAN).-This appeal under section 4 of the Sind Service Tribunals Act, 1973 is directed against the order dated 8th April, 1980, passed by the Chief Secretary to Government of Sind as Authority dismissing the appellant an Executive Engineer, Highways Department Government of Sind on the ground of misconduct and embezzlement of Government funds under the Sind Civil Servants (Efficiency and Discipline) Rules, 1973 and imposing the penalty of dismissal from service.
2. ' The appellant had joined the Department as Assistant Engineer Buildings and Road in the year 1962. In 1974 he was promoted as Executive Engineer, Highways Department. Till 7th August, 1977 he was posted as such at Dadu when he was transferred to Khairpur. Thereafter on 28th July 1978 he received an order dated 19th July, 1978 from Secretary to Government of Sind, Communication and Works Department as Authorized Officer suspending the appellant from service. The suspension period was further extended by an order dated 7th February, 1979. The appellant was then served with a charge-sheet dated 31st May, 1979 by the authorized Officer. This charge-sheet contained two charges, one of misconduct and the second of inefficiency and negligence. The first charge was to the effect that while working as Executive Engineer, Highways Division, Dadu from 7th November 1975 to 7th August 1977 the appellant in collusion with his Sub-Divisional Officer allowed payment to the Contractor in respect of earth work for 6969919 c. f. On Khairpur Nathan Shah Buriro via Gazo Road against the actual quantity of 4687384 c. f. And thereby effected excess payment of Rs, 2,84,328. The second charge was that the appellant had failed to check the measurements in respect of the earth work in accordance with the rules and he had done the checking to the extent of 4.76% as against 10% required under the Rules.
3. ' The appellant submitted his explanation that he was posted in the Khairpur Nathan Shah Sub- Division when the earth work from mile 1.3 to mile 4.3 had already been completed and only the work from mile 4 to mile 5 had remained. That the checking team had verified the measurements at a late stage without making proper allowances for the changes due to continuous traffic, weathering effects, rain and floods. Regarding the percentage check the appellant explained that the measurements from mile I to mile 4 were to be made by Mr. Mohammad Nawaz Khokhar, his predecessor and he had to check the final measurements but he was transferred when the work remained in progress.
4. ' The Authorised Officer not being satisfied with the explanation referred the case for enquiry to a Committee consisting of Mr. H.A.G. Sani, Chief Engineer as Chairman, and Mr. Ghulam Mohammad Junejo and Mr, Bashir Ahmed Khan, Director, Highways and Superintending Engineer respectively as Members. They found that the shortfall in measurement could be on account of external causes i. e. Traffic intensity, water overflow etc. From 5% to 10% every year during the five years that the work remained in progress. That the loss of 25 to 30% in these years could be round about 50 lac cu. Ft.
5. Or so on account of natural causes and rains. They accordingly exonerated the appellant in respect of the first charge.
6. ' Regarding the second charge they found that the percentage check done by Mr. Burdi (the appellant) was 4.76% as against the required percentage i. e. 10%. That this charge having been proved, the Enquiry Committee recommended the minor penalty of stoppage of increment for 3 years with a warning and stoppage of further promotion for the same period.
7. ' The authorized Officer did not agree with the findings and recommendations of the Enquiry Committee. He therefore referred the case to the Director-General Provincial Inspection Team for further report. As a result the Director-General and President Court of Enquiry, Provincial Inspection Team sent his findings that the weathering action effect could not be as high as 36% and it could at the most be worked out to 3.33% on the authority of the book of Specifications, page 213. It was therefore concluded that the excessive recording of fictitious measurement was an attempt to defraud the Government.
8. ' The Director-General also suggested that the quantity of 2.89 laces cu. Ft. Of earth work on account of borrow pits-depression fillings had been grossly exaggerated. That such depressions were to be shown in cross sections and approval of the Superintending Engineer obtained before the actual placement of earth.
9. ' The authorised Officer on getting the second revised report made his recommendations to the Chief Secretary who accordingly dismissed the appellant. The appellant then preferred a departmental appeal to the Governor of Sind & Martial Law Administrator, Zone 'C' but pending the departmental appeal the present service appeal was filed after the period of ninety days had elapsed.
10. ' The learned counsel on behalf of the appellant has contended that before passing of the final order even the copy of the enquiry report, as required by sub-rule (5) of rule 5, Efficiency and Discipline Rules, had not been forwarded to the appellant nor had the appellant been furnished with a copy of the second report of the Inspection Team which had formed the basis of the recommendations of the Authorised Officer and on which the dismissal order had been passed.
11. ' Mr. Lakho has further argued that the appellant had not been served even with a show-cause notice regarding the action proposed to be taken against him and the grounds of action, after the report of the Enquiry Committee or the Inspection Team. He had thus been denied the opportunity of showing cause against his dismissal. Mr. Lakho has cited the recent decision of Supreme Court in the case of Syed Mir Muhammad v. N.-W.F.P. Government (1).
12. 'In this decision Dr. Nasim Hasan Shah, J. Has relied upon the earlier decisions of the Lahore High Court on the point. It was argued before the Supreme Court that the relevant rules did not require a copy of {{FOOT NOTE}}
(1) PLD 1981 SC 176 {{FOOT NOTE}} ' the report furnished to with a view to enable him to make a representation against the findings contained therein and that it would amount to attempt to introduce the concept of a second show-cause notice through the back door. That the terms of rule 5 only provided that on the receipt of the report of the Enquiry Officer the Authorized Officer had to forward the case to the authority if major penalty was proposed. This argument was rebutted on the ground that demands of natural justice require that an opportunity ought to be granted to die accused to explain the new Material brought against him during the enquiry proceedings. This would not be a second show- cause notice but a step to comply with the demands of fairness and natural justice.
13. ' In the case of Punjab Road Transport Corporation v. Punjab Appellate Tribunal (1), relied upon by the Supreme Court, it was observed that while dismissing the accused, the employer based his decision not merely on the charge-sheet and the reply but also on the enquiry report copy of which was not supplied to the respondent. In the absence of the Enquiry Officer's report he could not know the grounds for the decision and the omission to supply the enquiry report amounted to contravention of the Rules.
14. ' In the same case the Supreme Court held (1973 SC MR 455) that the respondent should have been furnished with a copy of the Enquiry Report and he should also have been given an opportunity to show cause why the order of dismissal should not be passed against him. Similar decision was given by the Supreme Court in Islamabad Club v. Punjab Labour Court No, 2 (2).
15. ' It was accordingly observed by Dr. Nasim Ham Shah, J. As under :- "After giving our anxious consideration to the submissions made by the learned counsel for the parties, we have formed the view that in a case where a formal enquiry is held, it seems to be an implicit requirement of the relevant rules, that a copy of the enquiry report should be furnished to the accused official so as to enable him to offer his explanation with regard to the adverse findings if any, recorded against him by the Enquiry Officer or the Enquiry Committee, as the case may be.
16. Such a requirement cannot be brushed aside by saying, that it would amount to a second show- cause notice."
17. ' It was further observed : "In reaching this conclusion, we are fortified in our view by the fact that in sub-rule (3) which embodies the shorter procedure for dealing with disciplinary matters it is clearly contemplated that the Authorized Officer shall inform the accused of the action proposed to be taken in regard to him and the grounds of the action, and shall give him a reasonable opportunity of showing cause against that action. There seems to be no logical reason for denying the accused officer a similar opportunity in a case where a formal inquiry is held in terms of rule 6 read with sub-rule (2) of rule
5. It appears to be the salutary requirement of rule 5 that {{FOOT NOTE}}
(1) PLD 1972 Lab. 699 (2) PLD 1980 SC 307 {{FOOT NOTE}} ' the accused Officer must be given a reasonable opportunity of showing cause against the action proposed to be taken against him. If the shorter procedure is followed and inquiry is dispensed with, then this stage is reached when the grounds of the proposed action and the allegations are conveyed to him ; but this stage is reached in the case of a formal inquiry only after the inquiry has been completed and the authorised officer has formulated his views in the light of the inquiry report. It seems to us, therefore, that on a proper construction of rules 5 and 6 read together, it is a statutory requirement that if a formal inquiry is held, then the Officer should, after he has tentatively decided upon the action as proposed to recommend to the Authority, give an opportunity to the accused Officer to offer his explanation against the proposed action in the light of the findings of the Inquiry Officer or Inquiry Committee, before sending his recommendations to the Authority. This would, of course, necessitate that a copy of the inquiry report be furnished to the accused Officer at this stage, and he should be apprised of the action proposed against him."
18. ' In the present case appellant Ghulam Rasool Burdi was not supplied with the copy of the enquiry report absolving him of the charge No, I in respect of misconduct, inefficiency and negligence and recommending a minor penalty. He had no knowledge in respect of the order calling for a second report from the Inspection Team nor was he informed of the comments of the Inspection Team finding him guilty of over payment, embezzlement, and misconduct. He was also not aware of the recommendations of the Authorized Officer in this respect with the result that he was found guilty of embezzlement when this fact was not even alleged in the charge-sheet. He was thus denied the benefit of the explanation in relation to this new material brought against him during the enquiry proceedings as well as the findings recorded by the Inspection Team in the second report. Failure to do so invalidates the recommendations of the Authorised Officer and the ultimate order passed on their basis by the Authority against the accused Officer.
19. ' The learned A. A.-G. Mr. Hasan Akbar admits that the order of dismissal passed against the accused Officer cannot be sustained.
20. ' We accordingly set aside the order of dismissal passed against the appellant and remand the case, leaving it open to the relevant authorities to proceed from the stage from which the error could be corrected : namely by supplying a copy of the finding of the Enquiry Officer and then a copy of the report of the Director-General, Provincial Inspection Team, Technical Wing, Hyderabad in the form of comments on the report of the Enquiry Committee. After supplying this material to the appellant he should be given a notice to show cause why the specific penalty proposed should not be imposed upon him to enable the appellant to submit his explanation in regard to the material brought against him during the enquiry proceedings and the opinion formed in respect thereof by the Enquiry Officer as well as the Director-General, Inspection Team and the action proposed to be recommended by the Authorized Officer.
21. ' The appeal is allowed in the above terms. There will be no order as to costs,