Muhammad Javed Iqbal Kasi, Member.--This appeal is, under Section 4 of the Service Tribunals Act, 1973, against order dated 14.04.2015, whereby major penalty of compulsory retirement from service was imposed upon the appellant.
2. Succinctly the facts of the case are that the appellant while working as Principal (BS-19) at Federal Government Public School, Murree Cantt was placed under suspension and served with a charge sheet dated 18.09.2014, on the following allegations:-- "a. Collection of money for admission over and above the prescribed dues. b. Collecting donations in the name of uplifting of the school from parents/guardians and even from teaching staff while the work is being undertaking by Formation. c. Blackmailing/threatening teaching staff by showing pictures of his meeting with GOC. d. allowing his favourite teaching staff living in MES accommodation inside the school premises to run tuition centre. e. Humiliating and insulting teaching staff in front of students. f. Allotted married MES accommodation to Mr. Muhammad Naveed, TGT (Bachelor) without getting formal approval from Competent Authority. g. Non maintenance of waiting list regarding allotment of quarters without proper criteria. h. Non maintenance of deduction of house rent / conveyance allowance /05% utility bills etc. J. Not taken any action himself and not informed Regional Office Rawalpindi and FGEI (C/G) Dte that Mr. Muhammad Naveed has alleged in act of moral turpitude. k. Not taken any action himself and not informed Regional Office Rawalpindi and FGEI (C/G) Dte that Mr. Asmatullah LDC behaves rudely with female staff and guardians and openly take bribe for admission of students. l. Not taken any action himself and not informed Regional Office Rawalpindi and FGEI (C/G) Dte that involvement of Mr. Mehrban Lab Assistant in immoral activities. m. Not taken any action himself and not informed Regional Office Rawalpindi and FGEI (C/G) Dte against Mr. Asmatullah LDC for overwriting / cutting and missing of important papers from personal file of Mr. Naveed, TGT. n. Non maintenance of attendance register."
The appellant through his application dated 03.10.2014 requested for supply of relevant documents and simultaneously denied the allegations vide reply dated 04.10.2014. The Inquiry Committee held him guilty of the charges, as such, the Additional Secretary, i.e. the Authorized Officer served a show-cause notice on 05.11.2014. The appellant again requested for supply of documents vide applications dated 12.12.2014, 16.01.2015, 17.03.2015 and 20.03.2015, however, vide letter dated 25.3.2015 he was directed to appear for personal hearing before the Additional Secretary on 01.04.2015. The appellant failed to appear for personal hearing on account of sickness and sent written application on 30.03.2015, therefore, vide order dated 14.04.2015 major penalty of compulsory retirement was imposed upon him. The departmental appeal filed by the appellant on 06.05.2015 remained un-responded, hence this appeal.
3. The learned counsel for the appellant challenged the impugned order on the ground that incomplete charge sheet as well as incomplete statement of allegations were served upon him; without supplying the relevant documents despite repeatedly asked by him; inquiry was conducted in question-answer form, no opportunity of cross-examining was granted; the President of Inquiry Committee was changed without giving any reason and neither any witness or any complainant was appeared nor examined in presence of the appellant. He also challenged the show-cause notice as it was issued by the Authorized Officer whereas it has to be issued by the competent authority. The learned counsel submitted that the appellant was neither heard nor order has been passed by the competent authority. He further submitted that the appellant has been imposed major penalty of compulsory retirement just two months before his age of superannuation. He prayed for the acceptance of the appeal with all back benefits.
4. The respondents opposed the appeal. In the parawise comments, it was stated that the appellant has accepted his compulsory retirement as he is receiving monthly pension regularly and since he has received his dues, his reinstatement or conversion of compulsory retirement into normal retirement is not justified. The learned counsel for the respondents stated that the appellant has been approbating / reprobating as he has filed this appeal for reinstatement on one hand and on the other is getting monthly pension. He refuted the contention of the appellant and submitted that the charge sheet and show-cause notice were issued by the Additional Secretary i.e. Authorized Officer but final punishment order was issued with the approval of the Secretary, Ministry of Defence. He stated that the appellant managed to escape for personal hearing and sent application with medical leave just to delay the proceedings. He stated that the appellant was given full opportunity but he deliberately avoided to appear for personal hearing. He argued that the contention of inquiry conducted in question-answer form was in accordance with law and referred case law reported as 2012 PLC (CS) 866. He pleaded that since the Inquiry Committee proved the charges, as such, he was rightly punished and his appeal being devoid of any merit is liable to be dismissed.
5. The first objection of the respondent-department is that the appellant approbating / reprobating as on one hand he challenged the order of compulsory retirement and on the other, has submitted papers for pension and is receiving pensionary benefits regularly, carry no weight.
6. Perusal of the record shows that an Inquiry Committee comprising Joint Secretary-Admn and Deputy Secretary (Army-C) Ministry of Defence and Principle (BS-19), FG Girls High School No. 2, Chaklala delivered the questionnaire containing as many as 44 questions to the appellant. The appellant in his reply to the questionnaire again denied the allegations whereafter the Committee, without examining the witnesses, held him guilty of the following charges:-- i. Allegations Nos. A & B collection of money & collection of donations from private persons ii. Allegation No. F, allotted married MES accommodation to Mr. Muhammad Naveed Tahir, TGT (Bachelor) iii. Allegation No. N, non-maintenance of Attendance Registrar iv. Allegation No. O, allowing Mrs. Fehmida Begum, Honorary Teacher in Federal Board Examination as Invigilator several times. v. Allegation No. P, irregularities in leave account / service boo; of school employees vi. Allegation. No. Q, forcing 14 teachers and class-IV employees to him."
In the case reported as Jan Muhammad vs. The General Manager, Karachi Telecommunication Region, Karachi and another (1993 SCMR 1440), it has been held by three Hon'ble Judges of the Hon'ble Supreme Court e Pakistan that: "6. In Government Servants (Efficiency and Discipline) Rules, 1973 "misconduct" is defined. Rule 4 contemplate minor and major penalties. Compulsory retirement is included in major penalties.
Rule 5 empowers authorized officer to direct enquiry against Government servant through an Enquiry Officer or Enquiry Committee or if he is satisfied, may order that there would be no enquiry in the interest of security of the country. If it is decided that there should be enquiry either by Enquiry Officer or Enquiry Committee then procedure laid down in Rule 6 is to be followed and the requirements enumerated therein are that charge shall be framed and Government servant proceeded against would be allowed to reply to the charge after which evidence is to be recorded by examining witnesses in support of the charge allowing opportunity to the affected Government servant to cross-examine the witnesses and he can also produce witnesses in his defence. It appears that in the instant case this procedure as such was not followed in letter and spirit and witnesses were not examined in support of the charge. It was necessary for that reason that ultimately major penalty has been imposed upon the appellant. The manner in which enquiry proceedings were conducted by way of questionnaire without examination of witnesses in support of charge or defence cannot be approved as it is not consistent with requirements of Rule 6 of the abovementioned Rules".
The judgment relied upon by the learned counsel for the respondents {2012 PLC (CS) 8} rendered by two Hon'ble Judges of the Apex Court, wherein it was held that "the contention of learned counsel for the petitioner that mode of recording of evidence by the enquiry committee was violative of provisions of Qanun-e-Shahadat Order, that the evidence was recorded in question and answer form or that he was not allowed to cross-examination some witnesses appear to underpin the impression that it was a regular trial and overlooks the fact that it was a departmental/domestic enquiry in which the provisions of Qanun-eShahadat Order may not applicable stricto sensu" is distinguishable as in that case the charge was absence from duty without leave and medical certificate, contrary to that in the present case there were number of allegations and without confronting the material against the accused, the inquiry conducted in questionnaire form could be said to have been conducted in accordance with law. In the case reported as Chairman, State Life Insurance Corporation & others vs. Hamayun Irfan & 2 others (2010 SCMR 1495) wherein it has been held that "it is settled principle of law that in case of conflict between judgment of the apex Court, then judgment of the larger Bench shall prevail as law laid down by this Court in Multilines Associate's case (PLD 1995 SC 423)", therefore, following the rule of law, the case law relied on behalf of the respondents is distinguishable. In this case, the inquiry report does not show that the Committee examined any of the documentary evidence to prove the charges against the appellant. It may also be noted that the Committee proved the charges "irregularities in leave account/service Books of School employees and forcing 14 teachers and Class-IV employees to him" whereas the said allegations were not part of the charge sheet, thus the Inquiry Committee travelled beyond its limit.
7. The proceedings against the appellant were conducted under the Government Servants (E&D)
Rules, 1973, wherein the role of the Authorized Officer is to suspend the official, issue charge sheet; appoint Inquiry Officer and on the basis of inquiry report, if minor penalty is to be imposed then he has to proceed further in accordance with law. If in the opinion of the Authorized officer, major penalty is to be imposed, then he is required to forward the case to the competent authority with his recommendations, where-after the competent authority has to issue show-cause notice and on receipt of reply, impose major penalty after grant of personal hearing but in the present case, the show-cause notice was issued by the Authorized Officer and also directed the appellant to appear before him for personal hearing whereas personal hearing has to be granted by the competent authority before imposing major penalty. Thus, we are of the firm opinion that the proceedings against the appellant were not conducted in accordance with law. Even otherwise, the allegations, levelled by the department against the appellant, were required to be proved without any shadow of doubt whereas in this case, as stated above, the inquiry was conducted in question-answer form, without adducing any evidence and without giving chance of cross- examination to the appellant. Furthermore, the charges were vague in nature as no document whatsoever has been placed on record to substantiate the allegations, which makes the proceedings unlawful and against the rules.
For the foregoing reasons, we accept the appeal, set aside the impugned order dated 14.04.2015 whereby the appellant was retired compulsorily. We were inclined to remand the matter for de novo proceedings but refrain ourselves for the reason that the appellant had already been superannuated on 14.06.2015, thus no proceedings could be initiated against him. Resultantly, the appellant stands retired on attaining the age of superannuation. He is entitled to all back benefits.
9. No order as to costs. Parties be informed accordingly.