' Justice (Rtd.) Sheikh Afimad Farooq, Chairman.-- Aggrieved by the inaction of the appellate authority i,e, Respondent No, 1 on the departmental appeal dated 22.04.2013, the appellant has approached this Tribunal through the instant appeal wherein he has challenged the Notification dated 26.3.2013 whereby major penalty of dismissal from service was imposed upon him.
2. Concise facts preceding the filing of this appeal may be glanced through and summarized. On the recommendations of the Federal Public Service Commission (FPSC) on 13.6.1999, the appellant was appointed as a Lecturer in PAF Public School. Lower Topa. With the efflux of time, the appellant was appointed as acting Head of the Department. However, on 22.10.2007 there took place exchange of invectives between the appellant and his colleague Hamid Ali Khan which jelled into a melee. In this no holds barred encounter, the appellant being physically weaker sustained injuries.
The appellant thus got himself medically examined and also made a complaint against the aforesaid Hamid Ali Khan. Two fact finding inquiries were conducted to probe into the aforesaid occurrence but incidentally no disciplinary proceedings ensued. Immediately thereafter on 27.10.2007 the appellant was transferred to PAF Teachers Training Institute at Islamabad. This resulted in the discontinuation of certain allowances which were admissible to the appellant at his previous place of posting namely Lower Topa School. The appellant agitated the matter before this Tribunal and got some relief. Not fully satisfied with the decision of this Tribunal the appellant filed an appeal in the Honorable Supreme Court of Pakistan which was accepted. Review Petition against the said order of the Honorable Supreme Court of Pakistan is stated to be pending.
3. After around 21/2 years of the aforesaid incident on 5.3.2010 the appellant was served with a charge sheet on the following allegations:- "1. Involved in scuffle with Mr. Hamid Ali Khan, Lecturer on 22nd October, 2007 and used harsh and abusive language.
2 Involved in misappropriation of funds amounting to Rs, 450,936/- while acting as Mess Secretary, Pre-Cadet Mess at PAF Public School, Lower Topa. .
4. The appellant in his reply to the charge sheet controverted the aforesaid allegations by inter alia maintaining that in actuality aforesaid Hamid Ali Khan was aggressor and he (appellant) was a victim. He also denied the allegation of misappropriation. Wing Commander Muhammad Sadiq Malik was appointed as Inquiry Officer to probe into the aforesaid allegations leveled against the appellant. In the marathon Inquiry Report dated 9.4.2010 the appellant was found guilty. The first charge stood proved against the appellant. In regard to the second charge it was held that the appellant had mismanaged the Mess affairs. The Inquiry Officer thus recommended that "strict disciplinary action may be taken against Hfiz Farooq Ahmad Khan P322 Lecturer in Pakistan Studies under the Government Servants (E&J) Rules, 1973 read with. Removal from Service (Special Powers)
Ordinance, 2000 and its sub sequence (sic) amendments". On the basis of this Inquiry Report on 19.7.2012 the appellant was served with a Show Cause Notice under the provisions of Removal from Service (Special. Powers) Ordinance, 2000. The appellant in his reply to the Show Cause Notice again controverted the allegations leveled against him. The appellant was afforded an opportunity of personal hearing. Subsequently vide impugned Notification dated 26.3.2013 major penalty of dismissal from service was imposed upon the appellant. The appellant preferred a departmental appeal on 26.4.2013 which remained responded.
5. Against such a ticklish backdrop the appellant brought this appeal by inter alia alleging that the then British Principal Mr. David George Hep worth, who nurtured a bias against the practicing Muslim staff, being hand in glove with the aforesaid Hamid Ali Khan hatched a conspiracy to remove, him (appellant) from the position of Head of the Department and to ultimately chuck him out from the aforesaid Teaching Institution. It was alleged that it was the aforesaid Hamid Ali Khan who had unduly and without any rhyme and reason assaulted the appellant and being physically stronger had thrashed the appellant resulting in multiple injuries to him. The appellant also alleged that the Inquiry Officer was biased against him and deliberately targeted him. He maintained that the aforesaid Hamid Ali Khan was neither summoned during the inquiry proceedings nor he appeared as a witness but still the findings of guilt against him were returned by the Inquiry Officer.
The appellant even went to the extent of alleging that the inquiry Officer had changed and manipulated the statements of the witnesses. The appellant thus prayed for the setting aside of the impugned Notification dated 26.3.2013 whereby major penalty of dismissal from service was imposed upon him and his consequential reinstatement into service with back benefits.
6. The appeal was resisted by the respondents. In the written objections various preliminary objections were raised to the maintainability of the appeal. It was maintained that no departmental representation was made by the appellant before filing the appeal. It was also claimed that the appeal is barred by time. It was amplified that within the scheme of Removal from Service (Special Powers) Ordinance, 2000, a departmental appeal/representation against the impugned order has to be made to the appellate Authority within 15-days, whereas the appellant had filed the departmental representation in 30-days and as such departmental representation was barred by time and consequently, the appeal filed by the appellant was also barred by time.
On merits, it was contented that the appellant was treated in accordance with law and all coda formalities were fulfilled.. It was explained that during inquiry, charges were proved against the appellant and as such impugned penalty Was justifiably imposed upon him.
7. We have heard the learned counsel for the parties at considerable length and gone through voluminous record with their able assistance.
8. We first advert to the preliminary objections of the respondents. It has been contended by the learned counsel for the respondents that prior to filing the instant appeal, the appellant had not filed departmental representation and as such, the instant appeal is incompetent. As against this, the contention of the appellant is that he had filed departmental representation which was received in the Prime Minister's Secretariat and was faradized on 22.4.2013 against S.No, 44, which was forwarded to GR-III of Grievance Wing. This being so, it is difficult to hold that the appellant had not made departmental representation. However, it has further been contended that the appellant had not filed the departmental representation through proper channel. This too suffers from factual inaccuracy as the appellant is shown to have sent the copy of departmental representation to the Principal through registered post vide Receipt No, 884 dated 22.4.2013.
9. Be that as it may it is well settled that in case a departmental appeal is not properly filed or submitted to an incompetent Authority the same is required to be returned to the appellant. For its re submission in accordance with the rules. In the instant case, the departmental appeal was submitted to the competent authority, which was never returned to the appellant and as such no adverse order could be passed against the present appellant.
10. It has further been contended that the departmental representation was filed by the appellant within 30-days. Of the impugned order whereas under the. Provisions of the Removal from Service (Special Powers) Ordinance, 2000 the appellant was required to file departmental representation within 15-days. It is pertinent to mention that paragraph 7 of the impugned notification dated 26.3.2013 whereby major penalty of dismissal from service was imposed upon the appellant reads as under:- "7. Hafiz Farooq Ahmed Khan, Lecturer has right of appeal to the appellate authority for review of above decision within a period of 30 days from the date of communication of this notification, as prescribed under Rule 5(4) of Appeal Rules-1977."
' It would not be out of place to mention here that Civil Servants (Appeal) Rules, 1977, which were framed under Section 25 of the Civil Servants Act, 1973 are applicable to the penalties imposed under the Government Servants (E&D) Rules, 1973. According to sub-rule (4) of Rule 5 of Civil Servants (Appeal). Rules, 1977, an appeal could be filed within a period of 30-days from the communication of the order appealed against. In this backdrop, the competent authority while imposing the penalty has himself allowed the present appellant to file an appeal within 30-days, as envisaged in the Civil Servants (Appeal) Rules, 1977. Hence, the departmental appeal as well as the instant appeal, cannot be considered as barred by time.
11. We may mention en passant that the Inquiry Officer himself was not certain as to under what provision of law he was proceeding against the appellant. His approach was ambivalent and cryptic when Paragraph 9 of his Inquiry Report he mentioned as under:-- "9. In spite of the fact that documentary evidence was verified to (sic) the presence of Hafiz Farooq Ahmed Khan and he was afforded full Rights and Privileges under Government Servants (Efficiency & Disciplinary) Rules, 1973 read with Removal from Service (Special Powers) Ordinance, 2000 and its subsequence (sic) amendments yet the accused deliberately indulged himself into the delaying tactics and attempted to hamper the proceedings of the inquiry a number of times."
12. As noted supra, the Inquiry Officer was not certain as to under which provisions of law, he was proceeding against the appellant. It was for this reason that he mentioned both Government Servants (E&D) Rules, 1973 read with Removal from Service (Special Powers) Ordinance, 2000. This being the position, it is imperative to mention the relevant law under which the appellant ought to have been departmentally proceeded against. Removal from Service (Special Powers) Ordinance, 2000 was repealed on 5.3.2010. However, Repealing Act further provided as under:-- "(2) All proceedings pending under the repealed Ordinance or the rules made there under immediately before the commencement of this Act against any person whether in government service or corporation service shall continue under the repealed Ordinance or the rules made there under. "
' So we have to see whether any departmental proceedings were pending against the appellant on 5.3.2010. No doubt, Order of inquiry against the appellant was issued on 26.2.2010, the date on which Removal from Service (Special Powers) Ordinance, 2000 was in the field but charge sheet/statement of allegations was served upon the appellant on 5.3.2010, the date on which Removal from Service (Special Powers) Ordinance, 2000 was repealed. Now it has to be seen whether under the provisions of Removal from Service (Special Powers) Ordinance, 2000 the disciplinary proceedings against the appellant could have been commenced on 5.3.2010. In 2003 PLC (C.S.) 645 it was held by the Honorable Lahore High Court that issuance of charge sheet/statement of allegations was the start of quasi disciplinary proceedings. Moreover, in a case reported as PLD 1969 Peshawar 147, the Honorable Peshawar High Court had held that the "departmental proceedings" cannot be said to be instituted against a civil servant before he is charge-sheeted. As mentioned above, charge sheet and statement of allegations were served upon the appellant on 5.3.2010. This being so, on the aforesaid date Removal from Service (Special Powers) Ordinance, 2000 stood repealed and as such, the appellant ought to have been proceeded against under the Government Servants (E&D) Rules, 1973. This misapplication of law knocks at the bottom of the disciplinary proceedings initiated and concluded against the appellant and this infirmity is alone enough to quash these proceedings. But inspire of this, we deem it apt to advert to the merits of the case as well.
13. This brings us to the main controversy. At the cost of repetition, it may be mentioned that the main allegation against the appellant for which hardiest penalty of dismissal from service was imposed upon him is thit he had scuffled with his colleague Hamid Ali Khan. Ironically, the aforesaid Hamid Ali Khan never made out, any grievance of the alleged scuffle with the appellant. He was never medically examined. He was never summoned during the departmental proceedings and he never appeared as a witness during the inquiry, having gone abroad. But inspire of this the appellant was . Found guilty of the aforesaid scuffle. This was enigmatic and preposterous even.
Besides, in this case Wing Commander Tariq Nadeem, the then principal, and Wing Commander Khurram Shamim had earlier, conducted fact finding inquiry into the aforesaid incident of scuffle.
They were most important and relevant witnesses. But their statements were never recorded during the inquiry. Additionally, Wing Commander Jan Muhammad and Flight Lieutenant Riffat Naz were star witnesses of the prosecution during the departmental inquiry. The aforesaid Jan Muhammad in his statement before the Inquiry Committee felt no inhibition in implicating the aforesaid Harmd Ali Khan. He was evasive in his cross-examination. Rather, he had to admit that he had never seen the appellant fighting with any one prior to the incident nor using abusive language. Similarly, Flight Lieutenant Riffat Naz in his evidence deposed that the aforesaid Hamid Ali Khan had caught the appellant by his collar and there were blood stains of the face of the appellant: queerly enough inspire of such weak and shaky evidence the Inquiry Officer proceeded to hold the appellant guilty.
14. This brings us to the second charge wherein misappropriation was alleged against the appellant. But the Inquiry Officer did not hold the appellant guilty of misappropriation and merely held that the appellant guilty of mismanagement of the mess. It is significant to note that the appellant was never charged with the allegation of mismanagement of mess and as such, he had no occasion to defend this charge. Even otherwise, the amount of Rs, 450936/-attributed to the appellant was not in fact, a loss. Rather, it was calculated to be a difference between the funds allocated in the budget and the actual expenditure of the school mess. Obviously, the appellant alone was not responsible for the allocation of the budget and the actual expenditure. The affairs of mess of the school were being run by a Committee, which included the President, Food Member and Mess Manager in addition to the appellant, who was the Mess Secretary. The appellant was not the competent authority for enhancing the daily messing rate fixed for each pre-cadet. He also could not single highhandedly change the mess menu, which resulted in the alleged loss. Above all, the amount attributed to the appellant as a loss to the school was not proved, beyond doubt during the inquiry proceedings. Hence, the Inquiry Officer was .Not justified in holding the present appellant guilty of even mismanagement of the mess affairs. Therefore, we are constrained to hold that the findings of the Inquiry Officer are whimsical and not well founded. We also feel that the inquiry proceedings were lopsided and partisan in character.
15. For the foregoing reasons, we accept the appeal and set aside the impugned order dated 26.03.2013 whereby major penalty of dismissal from service was imposed upon the appellant.
Consequently, the appellant is ordered to be reinstated into service with immediate effect.
However, the question of back benefit shall be decided by the competent authority in accordance with the instructions contained at Serial No, 155, Vol.11 of ESTACODE, 2007 Edition, which mode had been approved by the Honorable Supreme Court of Pakistan in the judgment reported as 2010 SCMR 11.
16. Parties to bear their own costs and they be informed.