' MUHAMMAD KHURSHID KHAN (CHAIRMAN).-On August 1, 1975, the Commissioner, Peshawar Division, Peshawar, wrote a D.
0. Letter to Mr. F. K. Bandial, the then Chief Secretary to the Government of North West Frontier Province, informing the latter that a few weeks ago when he called on the District Bar, Mardan, the members of the Bar Association unanimously expressed their dissatisfaction over the conduct of the Executive Engineer, Public Health Engineering, Mardan, and the mode of life he was leading and it was also pointed out by them that the Water Tanks constructed out of the municipal funds were defective and the Public Health Engineering Department had not been successful in rectifying the defects. The Commissioner made suggestion for a discreet inquiry into the personal conduct and reputation of the Executive Engineer. On receipt of the letter, the Chief Secretary, by an order in writing, asked the Director, Anti-Corruption North-West Frontier Province, for a discreet inquiry to be completed within a week. The latter directed the Deputy Superintendent of Police, Anti-Corruption Establishment, Peshawar to do the needful. The Deputy Superintendent Mr. Abdul Hamid submitted his report dated 7th August, 1975, stating therein that Mr. Gul Mast, Executive Engineer, Public Health Engineering, Mardan, was a drunkard and a gambler and was even otherwise leading an immoral life. Some details with regard to corruption on his part were set out in the report which were also intended to suggest that the officer had assumed a style of living beyond his ostensible means and had also a persistent reputation of being corrupt. The report was sent to the Director, Anti- Corruption who, in turn, forwarded it to the Chief Secretary with his letter No, 4735/ ADE, dated 8th August, 1975.
' After the receipt of the report from the Anti-Corruption Establishment, Mr. Gui Mast was placed under suspension by the Government of North-West Frontier Province, for misconduct and corruption vide Notification No, SOS. II (S&GAD) 2 (49)/71, dated 30th August, 1975, Annexure B.
Seven charges were levelled against him which read as follows :- "(1)
You accepted heavy commission from the Contractor as illegal gratification and so the Contractor used defective material in the construction of Water Tank on Shamsi Road in the vicinity of Public Health Engineering Office, Mardan. As a result of defective work carried out under your direct supervision, the Water Tank started leaking. You got the said Water Tank repaired through 8/9 employees of your Department including Chowkidars, Drivers etc. Who worked for 19 days free of charge in addition to their own duties.
(2) You allowed the execution of work of laying sewerage pipes in Mardan City below specification.
The work was carried out under your direct supervision on account of your personal ends.
(3) The work of Water Supply Scheme, Mardan was carried out unsatisfactorily and below specification under your supervision.
(4) You received 20% commission amounting to Its. 60,700 as illegal gratification by directly negotiating with the Manager of the ' Firm at Karachi for the purchases of pipes worth over Rs, three lacs in the year 1974.
(5) You allowed defective fitting of pipes on account of which the Water Tank constructed at Water Spring Shamozai, Police Station, Katlang was not receiving water properly.
(6) You are maintaining two Motor Cars 1973-74 models and constructed a palatial bungalow in your village Omar Payan, Peshawar and also constructed another bungalow in your village with your ill-gotten wealth disproportionate to your known sources of income.
(7) You have got stinking reputation for corruption and also indulge in drinking and gambling."
' Usual show-cause notice was given to the accused Officer and he denied the allegations in their entirety and ultimately Mr. Mustajab Khan, Superintending Engineer, Irrigation Department, was appointed as an Inquiry Officer to enquire into the charges.
' The first five charges as embodied in the charge-sheet were enquired into by the Inquiry Officer while the remaining two were left untouched by him saying that he had no media of probing into them. The Inquiry Officer exonerated the accused of all the five charges enquired into by him. The inquiry report having not been considered objective and complete by the Authorized Officer, namely the Chief Secretary, was sent to the Secretary, Public Works Department, for his comments.
While comments were awaited, the case of Mr. Gul Mast was referred to the Anti-Corruption Committee No, 1 of which the Chief Secretary was the Chairman. The case was considered in a meeting of the Committee held on June 3, 1976 and it was decided that an open inquiry be conducted by the Anti-Corruption Establishment. While inquiry report from the Anti-Corruption Establishment was still awaited, a confidential D. O. Loster No, 1631/JEF/76, dated 14th October, 1976 was received by the Chief Secretary to the Government of North-West Frontier Province, from the Establishment Secretary, Government of Pakistan, in which it was stated that the investigating agencies under the Federal Government had reported against the officers shown in the enclosed list serving under the Government of North-West Frontier Province, the allegations having been given against each name. The Chief Secretary was advised to take appropriate disciplinary action against those officers and it was further suggested that where an officer had completed 25 years' service qualifying for pension or other retirement benefits, he may be retired under the Civil Servants Act. Mr. Gul Mast was one of the officers included in the list. He had not by then completed 25 years qualifying service. The Chief Secretary as an Authorised Officer (hereinafter to be referred as the Authorized Officer) decided to issue a show cause notice to the said officer. The latter was served with a show-cause notice dated 16th October, 1976, Annex-B. The three charges levelled against him, as contained in the show-cause notice, read as follows :- "Whereas you, Mr. Gul Mast Khan, Executive Engineer, Public Health Engineering Department, Mardan-
(1) while posted as Executive Engineer, Public Health Engineering Department, Mardan, used substandard material in the construction of water tank at Mardan.
(ii) failed to execute the excavation and construction work of Water Supply Scheme, Mardan, satisfactorily.
(iii) have a reputation for corruption, drunkenness and gambit And whereas you are considered to be corrupt under N.-W. Province Civil Servants (Efficiency and Discipline) Rules, 1973.
' Now, therefore, you are hereby called upon to show cause within 7 days of the receipt of this notice as to why major penalty as prescribed in the above-mentioned rules should not be imposed on you. If no explanation is received from you within the specified period, action will be taken without further communication."
' The accused submitted a detailed written reply to the show-cause notice on October 30, 1976, Annex. K, denying the allegations made against him. The reply having not been found satisfactory, the impugned order was passed the same day, whereby the accused-officer was compulsorily retired from service with immediate effect.
' Aggrieved by the order of his compulsory retirement, Mr. Gul Mast preferred an application for review to the Chief Minister, North-West Frontier Province. On the expiry of a period of ninety days from the date on which the application for review was preferred he preferred the present appeal to this Tribunal and Mr. Atiqur Rehman Qazi, Advocate on his behalf has urged (1) that the impugned order was bad in law as having been passed without a show-cause notice to the appellant, (2) that the intended penalty to be imposed upon the appellant had not been specified which would vitiate the inquiry, and (3) that in the conduct of inquiry, there had been an element of bias and want of open and independent mind on the part of the departmental authority and there was also lack of evidence to substantiate the charges against the appellant.
' On the first point, Mr. Atiqur Rehrnan Qazi emphasized the fact that it was obligatory upon the departmental authorities to issue a show-cause notice to the appellant before the passing of the impugned order. He maintained that notwithstanding the fact that there was no specific provision for such a notice in the North-West Frontier Province Government Servants (Efficiency and Discipline) Rules, 1973, such a provision has to be read in these Rules because principles of natural justice cannot be excluded in disciplinary proceedings and any decision made against a civil servant in violation of the doctrine of audi alteram partem (no one can be condemned unheard) cannot be sustainable in law and reliance is placed in this connection on certain findings and observations of their Lordships in the cases of Commissioner of Income-tax, East Pakistan v.
Fazlur-Rehman (I), The University of Dacca and the Registrar, University of Dacca v. Zakir Ahmad (2), West Pakistan through Secretary, Food Department, Lahore v. Haji Muhammad Akbar Khan and others (3), Alauddin v. Board of Intermediate and Secondary Education, Lahore and two others (4) and Abdul Saniad alias Dadda v. Khan Iqbal Ahmad Khan Lodhi (5).
' We have carefully examined all these cases. In the first ot these cases, it was observed by their Lordships of the Supreme Court that in proceedings under section 33-A of the Income-tax Act, 1922, it is essential {{FOOT NOTE}}
(1) PLD 1964 SC 410 (2) PLD 1965 SC 90
(3) PLD 1971 Pesh. 20 (4) PLD 1971 Lah. 829
(5) PLD 1972 Lab. 41 {{FOOT NOTE}} ' that opportunity of hearing should be given to the applicant and if no such opportunity is given then the order of the Commissioner of Income-tax passed in such proceedings would be void and of no legal effect as the mere absence of provision as to notice in the Statute cannot override the principle of natural justice and that order affecting rights of person and property cannot be passed without affording opportunity of hearing to the party. It was further observed that the right to be heard is not confined to proceedings which are judicial in form but extends to all proceedings by whomsoever held which may affect the person or property or other right of the parties concerned in the dispute. The second was a case where Zakir Ahmad, a student of the University of Dacca in the second year M. A. Economics Class, was expelled from the University for a period of two years for being guilty of serious breach of discipline without a show-cause notice having been issued to him. The action so taken was challenged by him in the High Court of East Pakistan, Dacca, by means of a writ petition where he succeeded. On appeal by the opposite-party, it was held by the Supreme Court of Pakistan, that the student had a right to be heard before he was pronounced guilty for alleged indiscipline, misconduct and rowdyism, the maxim audi alteram partem being applicable as principle of natural justice even in the absence of positive words to that effect for the issue of a show-cause notice. The appeal was consequently dismissed holding that the High Court was justified in declaring the order questioned before it as void and of no legal effect. In the third case, the facts were that the Government of North-West Frontier Province requisitioned certain property situated in the limits of Peshawar City and determined its rent without issuing a notice to the owner as also without hearing him. The action of the Government was challenged and it was held by the High Court that in assessing the rent without notice to the owner, the rule of natural justice was violated with the result that the assessment had no force in law and was not binding on the owner. In Allauddin's case, the facts were that while studying at Government Intermediate College, Wandat Colony, Lahore, he submitted his admission form for Annual Intermediate Examination to be held in 1965. His result was declared on 20th August, 1965 and he was successful in all papers except Geography in which he was placed in compartment. A provisional certificate was said to have been issued by the Principal of the College to him to the effect he had been placed in compartment in Geography in his Annual Intermediate Examination held in 1965. On the basis of that certificate, Allauddin got admission to 3rd year class in Islamia College, Lahore.
Thereafter, he submitted his admission form for supplementary examination in the subject of Geography and he was allotted Roll No, 2074. The examination started at 2-00 p.m. And half an hour later, he was served with a notice that he was not eligible to appear in the Annual Examination, 1965, due to shortage of lectures with the result that his result for the Annual Examination 1965, has been quashed and his candidature for want of his eligibility to appear in the Supplementary Intermediate Examination 1965, cancelled. The matter was taken by the student to the High Court by which it was held that even in the absence of a provision making it incumbent on authority to issue a show-cause notice, the principles of natural justice cannot be excluded in all disciplinary proceedings against any person and any decision made in violation of the principle of audi alteram partemv cannot be sustainable in law.
' In Abdul Samad alias Dadda's case, one of the points arising for determination before the High Court was as to what was the exact nature of the hearing to be afforded to a Goonda under subsection (2) of section 14 of the West Pakistan Control of Goondas Ordinance, 1959, and whether this hearing postulates a formal show-cause notice. It was held that the requirements of section 14
(2) of the Ordinance would be met either by issuing formal show-cause notice after necessary declaration under section 13 and Goonda given opportunity for his explanation or if Tribunal puts to person concerned substance of proposed order and allows him opportunity to make an oral submission in regard thereto.
' It will be seen that the facts of the cases referred to by the learned counsel for the appellant were entirely different from, and not bear the slightest resemblance with, the facts of the case before us and the authorities in those cases proceeded on their own facts. Nevertheless, the rule of law laid down in those cases being of universal application cannot be overlooked. It was laid down therein that the principle of natural justice as embodied in the maxim "audi alteram partem" cannot be excluded in disciplinary proceedings ; that any decision made in violation of this principle cannot be sustainable in law and that in the absence of a provision to the contrary, this principle is to be deemed incorporated in every enactment. So far as the rule so laid down is concerned, there can be no quarrel about its correctness. The point that, however, requires determination by us is whether this rule was attracted to the facts of the case before us and had been violated. In this connection reference may first be made to rule 5 of the North-West Frontier Province Government Servants (Efficiency and Discipline) Rules, 1973, hereinafter called the Rules, which lays down that if the authorised officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall, by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action and give him a reasonable opportunity of showing cause against that action. In the instant case, this requirement was satisfied by issuing a show-cause notice to the appellant on October 16, 1976, informing the latter of the action proposed to be taken in regard to him and requiring him to show cause within seven days as to why the proposed penalty should not be imposed upon him. The appellant submitted a detailed reply to the show-cause notice on 30th October, 1976, whereupon the Authorized Officer submitted the case to the authority with his own recommendations regarding the penalty to be imposed and the authority proceeded to pass the impugned order. The learned counsel for the appellant, when confronted with the situation that a show-cause notice, as required by the Rules, had been served upon his client, came forward with the argument that the authorised officer and the authority being two distinct entities, the authority should have also issued a second show- cause notice before passing the order appealed against, and this course having not been adopted, the order was in violation of the principle of natural justice as embodied in the maxim "audi alteram partem" and was, therefore, void and without lawful authority. This argument, in our view, amounts to putting cart before the horse. The Rules contain provision for a show-cause notice by the Authorised Officer and do not envisage a second show-cause notice by the Authority.
The authorities referred to, and relied upon. By the counsel for the appellant also contemplate one show-cause notice. The object of show-cause notice is, and the general consensus of judicial opinion also seems to be, that in order to ensure the elementary and essential principles of fairness, the person sought to be affected must at least be made aware of the nature of the allegations against him to enable him to make any relevant statement putting forward his own case and to correct or controvert any relevant statement brought forward to his prejudice. This object, in the instant case, was fully achieved by serving show-cause notice, dated 16th October, 1976, upon the appellant and by affording him an opportunity to show cause against the proposed action which opportunity had also been availed by him by submitting his reply, dated 30th October, 1976. In between the issuance of the said show-cause notice by the authorized officer and passing of the impugned order by the authority, no new circumstances or any fresh allegations to the prejudice of the appellant, took place which could necessitate the submission of yet another reply by him to correct or controvert the same. The learned counsel for the appellant was not in a position to refer to any law or authority to support the contention that in the circumstances of a case like the present one, it would be incumbent upon the authority to issue second show-cause notice to the civil servant concerned and that non-compliance with such a procedure would result in the violation of the principle of natural justice embodied in the maxim "audi alteram partem". In the circumstances, we feel inclined to the view that there is no merit in the first submission made on behalf of the appellant before us.
' The second point refers to the show-cause notice, dated 16th October, 1976, being not specific with regard to the intended penalty and it has been strenuously contended on behalf of the appellant that it was obligatory upon the Authorised Officer to have specified the particular penalty intended to be inflicted upon the appellant and this having not been 'done, the show-cause notice was defective which would vitiate the inquiry. This contention, in the circumstances of the case, cannot prevail. In this connection, it may be stated at the outset that the penalties to be awarded under the Rules are categorised as "minor penalties" and major penalties". The misconduct on the part of a Government servant is also of two kinds, one calling for a minor penalty and other calling for a major penalty. The major penalties as given in the Rules are, (i) Reduction to a lower post, grade or time scale, or to a lower stage in a time scale, (11) compulsory retirement, (iii) removal from service, and (iv) dismissal from service. The inquiry procedure in all matters involving major penalties, is one and the same. A reference to the show-cause notice would show that the accused was called upon to show cause within seven days as to why one of the major penalties prescribed in the Rules should not be imposed upon him. This warning coupled with the circumstances that the charges levelled were of a very serious nature, must have made the appellant conscious of the fact that the action against him could result even in his dismissal from service and the penalty of dismissal from service was obviously graver than one of compulsory retirement. In the circumstances, it cannot be urged with any sense of reasoning that in matter of his compulsory retirement, the appellant was taken by surprise. This apart, the appellant submitted a dosailed reply to all the charges against him and it cannot be said with any stretch of imagination that the course adopted by the authorised officer in not specifying the particular penalty in the show-cause notice caused any prejudice to the appellant or that it resulted in the miscarriage of justice. This being the position, the second contention raised on behalf of the appellant cannot advance his case.
' The only contention that requires serious consideration is the third contention, namely, whether there had been an clement of bias and want of open and independent mind on the part of the departmental authority in the conduct of inquiry against the appellant and whether there was lack of evidence to substantiate the charges levelled against him. Learned counsel for the appellant referred to almost all the relevant facts right from the commencement of the inquiry proceedings up to the passing of final order of compulsory retirement and strongly contended that the course adopted by the departmental authority during the inquiry proceedings which at times also resulted in the infringement of the mandatory provisions of the Rules clearly suggested that there was an element of bias against the appellant as well as want of an open and independent mind.
We have examined the entire record and after giving a careful and dispassionate consideration to the matter have arrived at the conclusion that the matter should not have been dealt with in the manner in which it has been dealt with. We propose to refer to those facts and circumstances which would lend support to the view of the matter we take.
' The authorized Officer, on the receipt of D. O. Letter from the Commissioner, Peshawar Division, Peshawar, asked the Director, Anti-Corruption Establishment, for a discreet inquiry. This seems to have been done by the said officer to enable him to decide his future course of action. On the receipt of report from the Anti-Corruption Establishment, the Authorised Officer decided that inquiry shall be conducted through an Inquiry Officer and in pursuance of the decision so taken, appointed Mr. Mustajab Khan, Superintending Engineer, as an Inquiry Officer to enquire into the charges, framed a charge and communicated it to the accused together with statement of the allegations. All this was in conformity with the relevant provision of the Rules. The Inquiry Officer, as stated already, submitted his report exonerating the accused of the first five charges leaving the remaining two charges undetermined saying that he had no media of probing into them. The Authorised Officer, however, declined to accept the findings of the Inquiry Officer on the ground that the inquiry report was not objective and complose. If the report was really incomplete or otherwise defective; the Authorised Officer could refer it back to the Inquiry Officer and after getting the needful done was expected to follow the procedure as laid down in rule 5 (4) of the Rules, which is in these terms : "5-(4) On receipt of the report of the Inquiry Officer or Inquiry Committee or, where no such Officer or Committee is appointed, on receipt of the explanation of the accused, if any, the Authorised Officer shall dosermine whether the charge has been proved. If it is proposed to impose a minor penalty, he shall pass orders accordingly. If it is proposed to impose a major penalty, he shall forward the case to the authority alongwith the charge and statement of allegations served on the accused, the explanation of the accused, the finding of the Inquiry Officer or Inquiry Committee, if appointed, and his own recommendations regarding the penalty to be imposed. The authority shall pass orders as it may deem proper."
' Instead of determining whether the charge had been proved and forwarding the case to the Authority along with the charge and statement of allegations served on the accused, the explanation of the accused, the finding of the Inquiry Officer and his own recommendations regarding the penalty to be imposed, the Authorised Officer adopted a procedure, unwarranted by the Rules, by referring the case to the Secretary, Public Works Department, for his comments. He then commits another irregularity by referring the case to Anti-Corruption Committee No, 1 of which he was the Chairman, with a suggestion for an open inquiry without waiting for comments from the Secretary. A decision is then taken by the Anti-Corruption Committee No, 1 headed by the Authorised Officer for an open inquiry by the Anti-Corruption Establishment. Again without waiting for the result of the said inquiry, the Authorised Officer, on the receipt of D. O. Letter from the Secretary, Cabinet Secretariat, Establishment Division, without caring for his previous decisions with regard to the holding of regular inquiry against the accused appellant, and leaving the previous inquiry proceedings incomplete, proceeds to issue a fresh show-cause notice on the 16th October, 1976, and then follows a summary procedure resulting in the retirement of the appellant within a short span of two weeks. Prior to the receipt of the D.
0. Letter, the Authorised Officer himself, considering all the aspects of the matter had decided and rightly, that the inquiry shall be conducted through an Inquiry Officer and for that purpose appointed a Superintending Engineer as an Inquiry Officer. Sometime later, he further felt that an open inquiry by the Anti-Corruption Establishment was also necessary and a decision is accordingly' taken. On the receipt of D.
0. Letter, however, all these proceedings are left incomplete and the Authorised Officer, regardless of his earlier decisions, proceeds to issue a fresh show-cause notice and then adopts a summary procedure for a speedy action against the accused. He, does not give any reason for all this sudden change. It appears that all this was done under the pressure of the D.
0. Letter and it certainly smells of bias and want of an open and independent mind on the part of the Authorised Officer. Then the haste with which the fresh show-cause notice was taken to a successful end is also indicative of something very unusual. In this connection, it may be stated that reply to the show-cause notice dated the 16th October, 1976, was delivered by the appellant to the. Section Officer concerned of the Services and Genera Administration Department on 30th October, 1976 at 12-45 p. m. This fact is evident from the acknowledgment in writing of the Section Office on the Confidential letter by Mr. Gul Mast to the address of the Chie Secretary, photostat copy of which has been produced before us and has been marked as Z. During those days, office hours were from 8.00 a.m. To 2-00 p.m. The same day, the reply is placed before Authorised Officer who formulates his own recommendations and submits the same to the Authority, the decision is then taken by the latter and then notification is issued and its copies are forwarded to all concerned. All this happens within a short period of about 75 minutes. This alone may not be sufficient to prove any sort of bias against the appellant but taken together with other facts and circumstances set out above, it does lend support to the version given by the appellant's counsel.
' Coming now to the submission of the learned Advocate for the appellant with regard to evidence, it may be stated at the outset that the first two charges contained in the show-cause notice, dated 16th October, 1976, were also the subject-matter of inquiry conducted by Mr. Mustajab Khan, Superintending Engineer. After doing all that was required of him, the Inquiry Officer exonerated the appellant of these charges and the reasons given by him therefor appear to be quite convincing.
There is absolutely nothing on the official record made available to us to show that the findings of the Inquiry Officer were not based on the factual position. In the circumstances, we feel inclined to the view that the Authorised Officer and the Authority erred in holding the appellant guilty of these two charges. -Their decision, on the point, it may be stated, was based on no evidence.
' Adverting not to the third charge which refers to the appellant's having a reputation for corruption, drunkenness and gambling, it may be stated that the prosecution, in this behalf can only refer to the D. O. Letter of the Commissioner, Peshawar Division, Peshawar, report of Mr. Abdul Hamid Khan, Deputy Superintendent and the reports of the Investigating agencies under the Federal Government. The reports and other record of the Federal Investigating Agencies have not been produced before us and we are, therefore, not prepared to attach any importance to the same especially when it is not known to us as to what sort of material had been collected by those agencies. In the circumstances, we are now left with the D.
0. Letter of the Commissioner and the report of Deputy Superintendent, Anti-Corruption Establishment. In the said D.
0. Letter, reference has been made to a verbal complaint by the members of the District Bar Association Mardan. The D.
0. Letter is, in fact, based on the aforesaid complaint. This D.
0. Letter cannot help the prosecution for two reasons. The first is that it contains a general reference to dissatisfaction of the members of the Bar over the conduct and mode of life that the appellant was leading and has no specific reference to his reputation for corruption, drunkenness or gambling, and the second is that the statement of none of these members had been recorded to support the allegations contained in the D.
0. Letter. As regards the report of the Deputy Superintendent, it may be pointed out that the said Officer also does not seem to have recorded the statement of any one. No evidence has been produced before us to support the conclusion arrived at by the Deputy Superintendent. The so- called "Secret Inquiry" conducted by him with which the appellant was not associated cannot be made basis for condemning him. By saying so, we should not be understood to mean that the appellant was a man of unquestionable integrity. All that we mean to say is that the material produced before us was not sufficient to hold him guilty on the charge under discussion.
From the discussion given above, the position which emerges is that there was an element of bias against the appellant in the conduct of departmental inquiry and even otherwise, the material made available to us was not sufficient to hold him guilty on any of the charges levelled against him. The result, therefore, is that we accept this appeal, set aside the impugned order and direct that the appellant be re-instated within three months with all the back benefits. In the circumstances of the case, we make no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.