' These are two appeals by Muhammad Nawaz Iqbal who was dismissed from service as Junior Clerk by two orders, both dated 23rd August, 1978, issued by the Deputy Commissioner, Sheikhupura, the charges being of misconduct arising out of indiscipline. An appeal made to the Commissioner, Lahore Division, was rejected on 28th July, 1979, The appeals seek to have these and the appellant re-instated in service with full back benefits. This judgment will dispose of both the appeals through a single order.
2. In one case the appellant was served with a charge-sheet containing four charges. These were refusal to receive re-instatement order dated 7th February, 1978 after his three annual increments had been stopped and thus not reporting for duty; leaving headquarters without proven permission ; misbehaviour with the Office Superintendent ; and having earned the report "A corrupt official" in the ACR for 1974. An enquiry was conducted by Mr. Jamshed Ali, Assistant Commissioner, who found the appellant guilty of charges 2 and 3. After a show-cause notice was issued and replied to, the D.C. Passed the impugned order of 23rd August, 1978. In the other case, the charges were, absence from duty without proper leave ; rude behaviour towards the Tehsildar, Nankana Sahib ; not taking interest in Government work and being addicted to alcohol ; and presenting an application at Saddar without routing it through proper channel. In this case, the enquiry was conducted by Mr. Hamiduddin Bhatti, Magistrate, who ignored the charges about addiction to liquor and presenting an application direct but found that the other charges were established against the appellant. This enquiry was conducted ex parte, as the appellant did not make himself available on the day of the enquiry. After the issue of show cause notice, the D. C. Passed the impugned order of 23rd August, 1978.
3. The parties were heard. Learned counsel for the appellant assailed the impugned orders mainly on legal grounds but later, decided to argue the case on merits also when we advised him to do so.
Our consideration in giving this advice was that the full picture should be presented before us. The record of the case was also sent for and examined.
4. It was contended on behalf of the appellant that in fact no independent order had been passed by the D. C. In respect of the matter agitated in Appeal No, 81/919. The impugned order of 2nd March, 1978 was actually passed in respect of Appeal No, 80/918 and it was only in the last paragraph of this order that the D. C. Had referred to the other appeal in the following words :- "4, In another case of wilful absence from duty the official has also been awarded major penalty of dismissal from service vide my order dated 23rd August, 1978, hence I dismiss the accused official Mr. Muhammad Nawaz Iqbal, Junior Clerk, from service."
' The order was termed as unlawful and void for a number of reasons. In respect of the subject- matter of Appeal No, 80/918 no notice of enquiry was served on the appellant and he was not associated with the enquiry : the fact that the appellant had applied for leave with regard to which he was described as absent, was ignored or not taken notice by the Enquiry Officer ; the appellant was not given the opportunity to cross-examine the witnesses who deposed against him in the enquiry and his request to this effect was not accepted ; and there was serious violation of rule 7 of the E & D Rules by the Enquiry Officer and the competent authority i. e. The D. C. According to case of Afzal Chaudhry (1), the statement of a witness who is not cross-examined by the accused official is worthless and vitiates the whole proceedings. The only communication received by the appellant about the enquiry was a letter endorsed to him and directing him to appear for the enquiry as and when summoned. The enquiry was conducted in Nankana Sahib where the appellant was posted but he was on leave. He reported for duty on 8th July, 1978 (Saturday) and requested the Enquiry Officer in writing to allow him to inspect the record and to associate him with the proceedings but the E O. Informed him that he had already completed the enquiry on 6th July, 1978 (Thursday) and forwarded his recommendation to the D. C. The enquiry was thus conducted in a short time on just one day i,e, 6th July, 1978, the next day being Friday. The appellant further submitted that the second charge-sheet dated 5th July, 1979, was never served on him, whereas the enquiry was in respect of this charge sheet and not the first one. The notice in the newspaper too was not about the enquiry but only directed him to receive the charge-sheet.
5. On behalf of the respondents, the learned District Attorney argued that the appellant had purposely avoided service of the 2nd Charge-sheet merely to have a legal point to rely upon in future. The report of the process-servers clearly indicated that the appellant was avoiding service of the notices. In any case, since the appellant refused to accept the charge-sheet there was no question of associating him with the enquiry. The appellant had been absent from duty on many occasions and did not even care to join the enquiry in Nankana Sahib.
6. We have gone through the two orders of 23rd August, 1978, both dismissing the appellant from service. The order which is concerned with the enquiry conducted by Mr. Jamshed Ali, A. C., mentions the four charges against the appellant and without discussing the report of the Enquiry Officer refers to the other order of the same date and then proceeds to dismiss the appellant. The other order (enquiry conducted by {{FOOT NOTE}}
(1) 1981 PLC (C. S.) {{FOOT NOTE}} ' Mr. Hamiduddin Bhatti) is detailed and goes thoroughly into the charges and the finding of the Enquiry Officer before proceeding to dismiss the appellant. However, it is a fact that in the latter case the appellant was not present during the enquiry on 6th July, 1978, and the proceedings were conducted on ex parte basis. On the other hand, he was properly associated with the enquiry conducted by Mr. Jamshed Ali and in his reply to the show-cause notice, made on 17th August, 1978, averred that his absences from duty in Nankana Sahib were occasioned by his attendance in this enquiry which was held in Sheikhupura. This means that in respect of the inquiry held by Mr. Jamshed Ali, the appellant had no legal or factual objections as he had in the case of the enquiry by Mr. Hamiduddin Bhatti. We have gone through both the enquiry reports with great attention.
Both are emphatic and conclusive that the appellant was guilty of some of the charges which doubtless constitute misconduct on his part. However, in the Hamiduddin Enquiry, the appellant can cite in his defence the justifiable objection of not receiving due notice of the enquiry and thus not being associated with it and the fact that the witnesses appearing therein were not cross- questioned by him. At the same time the circumstances showing how the appellant purposely avoided service of notices cannot also be ignored. In the ultimate analysis even if the appellant, in respect of the Hamiduddin Enquiry, has the advantage of a few legal deficiencies in his favour, he has none in regard to the Jamshed All Enquiry and the attendant proceedings. In the case of that enquiry and the preceding and subsequent proceedings under the E & D Rules we find that the conclusion arrived at by the competent authority and the appellate authority was entirely justified.
But we take note of the fact that the arguments of learned counsel for the appellant were almost wholly devoted to the Hamiduddin Enquiry and its resultant dismissal of the appellant from service.
We, therefore, find nothing objectionable in the order on 23rd August, 1978, in so far as the proceedings taken about the Jamshed All Enquiry are concerned. As for the few legal deficiencies connected with the Hamiduddin Enquiry, they are of no avail to the appellant in view of our finding in respect of the other enquiry and the connected proceedings as a result of which he stands dismissed.
7. In view of the above discussions the two appeals are dismissed.