1. ' KH. GHULAM QADIR (MEMBER).- Appellant Mujahid Hussain Naqvi, Ex-Deputy Director Information Department has assailed the Government Order S&GAD/I-1/2982-3042/78 dated 18th September, 1978 by way of an appeal under section 4 of the Service Tribunals Act, 1975 whereby the appellant was removed from service on the charges of inefficiency, misconduct and corruption under, rule
(3) (a) (b) and (c) of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977.
2. ' The facts that culminated in passing of the impugned order concisely are that Azad Government of the State of Jammu and Kashmir set up two Commission of Inquiries under section 3 of the Commission of Inquiries Act, 1955 to probe into certain allegations of misappropriation, embezzlement and gross misuse etc. Of grants in some departments including Information Department which fell within the purview of Commission of Inquiry No, 2 headed by Brigadier Mohammad Arif Khan. Vide Government Order No, 4031-44,178, dated March 12, 1978 the appellant, alongwith three other officers, was suspended on allegation of misconduct and inquiry entrusted to Commission No, II who probe into the allegations levelled against the appellant. During the inquiry the appellant was summoned by the Commission but, according to the appellant, neither any charge was disclosed to him nor was any evidence recorded in his presence. After the conclusion of inquiry the Commission submitted its report to the Government-respondent who decided to initiate proceedings against the appellant. Accordingly, on 14th May, 1978 the Services and General Administration Department issued a show-cause notice to the appellant under rule 6
(3) of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 containing five charges. The appellant submitted his reply to this show-cause notice refuting all the charges but after 10 days of his reply the appellant received the first charge of the notice in an amended form to which also the appellant submitted his reply. On 26th June, 1978 another show-cause notice was served upon the appellant under rule 6 (3) (b) of the said Efficiency and Discipline Rules containing four charges. The appellant submitted his reply to this notice as well denying all the charges as baseless and untrue. The Chief Executive of Azad Kashmir Government heard the appellant in person in connection with the charges mentioned in the above-quoted two show-cause notices and finally the impugned order was passed awarding the penalty of removal from service. The appellant availed of the departmental remedy and submitted a review petition against the impugned order before the respondent but this attempt proved fruitless as the review petition was rejected. Having exhausted his departmental remedy the appellant has now filed this service appeal calling into question the impugned order as illegal and void on the following grounds :-
(i) That the Commission of Inquiry No, 2 was not legally competent to make an inquiry against the appellant.
(ii) That the proceedings of the Commission were ex parte, secret and whimsical and as such had no effect in the eyes of law.
(iii) That the respondent based the impugned order on the report of the Commission of Inquiry without independently applying its own mind to the facts of the case and the material on record and as such the impugned order is illegal and void.
(iv) That the appellant was charged with corruption and misconduct but has been punished for inefficiency as well which is illegal.
(v) That the charges were vague and lacking in essential particulars and the appellant was not afforded any reasonable opportunity of showing cause in violation of rule 6(3) of the Efficiency and Discipline Rules and the principles of natural justice.
(vi) That the Authority was also "Authorised Officer" in the case of the appellant but did not distinctly act in the capacity of "Authorised Officer".
(vii) That the authorised officer before proceeding further is bound to decide whether in the light of the facts of the case or in the interest of justice an inquiry is to be made or not. If he decides in negative then he can have recourse to the summary, arbitrary, and less beneficial procedure laid down under sub-rules (3) and (4) of rule 6 instead of adopting procedure under rules 7 and 8 but no such decision was taken by the Authorised Officer and as such the whole proceedings became illegal. Moreover, the procedure laid down under rule 6 of Efficiency and Discipline Rules is highly discriminatory in nature and contravenes fundamental right of equality before law guaranteed by the Interim Constitution Act.
(viii) That the appellant was not afforded an opportunity of showing cause against the proposed penalty which failure has rendered the penalty illegal.
(ix) That the penalty of removal from service is highly excessive and unwarranted in the circumstances of the case.
3. ' With these submissions the appellant has prayed for re-call of the impugned order and his re- instatement into service with all back benefits.
4. ' The respondent filed the written statement controverting almost all the objections raised in the memo. Of appeal averring that procedure laid down under the (Efficiency and Discipline) Rules was correctly followed by the competent authority and having found the accused appellant guilty of the charges levelled against him penalty of removal was duly awarded after affording him an opportunity of hearing by the respondent. However, under clause X of para. 9 of written objections it was stated that charges levelled against the appellant in the show-cause notices were crystal clear and the appellant had to defend himself regarding these charges and as such the report of the Commission has no bearing so far the present appeal is concerned. In the end it was urged that the appeal may be dismissed with costs.
5. ' The appellant filed a replication without adding any fresh matter to his grounds of appeal and got summoned some relevant record in support of his case and examined two witnesses namely Abdul Qayyum Information Officer and Sheikh Mashood Ahmad, Assistant, Services and General Administration Department on his behalf and also appeared as his own witness. The respondent did not lead any evidence in rebuttal.
6. ' We have heard the arguments advanced by the appellant himself who now is an Advocate and the counsel for the respondent and also carefully perused the record placed before us. Now we proceed to consider and determine the contentions vehemently raised before us by the parties.
7. The appellant who himself argued his case expressly stated before the Tribunal that although he has raised a number of legal objections in memo. Of his appeal, yet he would confine his arguments to only one legal point, that is to say, that he was not afforded a reasonable opportunity of showing cause against the action proposed to be taken against him as contemplated under sub-rule (3) of rule 6 of the Civil Servants (Efficiency and Discipline) Rules, 1977 (hereinafter called as the Efficiency and Discipline Rules, 1977) and would forego his arguments on all the rest legal points raised in his appeal. Thus the web of his arguments was woven round only this pivotal point and no arguments were made on any other legal ground stated in the memo of appeal.
8. ' While elaborating his arguments on this score the appellant based his contention on the following grounds :-
(i) That the charge-sheet was shorn of details and lacked in essential particulars.
(ii) That despite his written request no copy of the report of the Commission was supplied or made available to the appellant.
(iii) That the appellant was not allowed to inspect the record upon which the Commission of Inquiry had prepared and based its report.
(iv) That he was not allowed to adduce any defence in rebuttal.
9. ' On the basis of these flaws the appellant contended that the impugned order was liable to be set aside as illegal for the mandatory provision of sub-rule (3) of rule 6 of the Rules, 197/were flagrantly violated. The appellant substantiated his arguments on these points by referring to judgments delivered in PLD 1970 Lah. 811 ; PLD 1957 Kar. 54 and 363 ; PLD 1960 Kar. 500 and PLD 1978 Lah.
972. Besides this, the appellant argued that even on facts and merits no case was made out against him as alleged in the show-cause notices ' We have studied the relevant provisions of the said (Efficiency and Discipline) Rules, 1977 and have also gone through the rulings cited above relied upon by the appellant in support of his arguments and would, in the first instance. Like to examine whether any infringement of the said rules occurred and, if so, what is its effect on the impugned order.
10. ' The appellant who was a civil servant was proceeded against under the Efficiency Rules, 1977 and was finally awarded major punishment of removal from service by the government in its capacity as Authority. In order to appreciate the objections put forth by the appellant as regards the procedure adopted and the legality and validity of the impugned order it would be appropriate and advantageous to examine the relevant provisions of the said Rules, 1977 in detail to enable us to form correct opinion and give a proper finding vis-a-vis the objections advanced by the appellant. Chapter III of the said rules is captioned as "Inquiry and imposition of penalties". Under this Chapter rule 5 deals with the initiation of proceedings against an accused civil servant and reads as under :- "Rule 5.-If, in the opinion of the authority there are sufficient grounds for proceeding against a civil servant, it shall direct the authorised officer to proceed against the civil servant."
11. ' The Azad Jammu and Kashmir Government had already appointed two Commissions of Inquiries if probe into the allegations of misuse and misappropriation etc. Against certain departments and the concerned officers and as a result the case of the appellant was dealt with by Commission of Inquiry No, II who had submitted its report to the Government after making some inquiry against the appellant. The Government, being authority as well as authorised officer itself in the case of the appellant as contemplated under section 2 (b) and (c) of the Rules, 1977 thought it fit to decide to proceed against the appellant as in its opinion there were sufficient grounds in the report of the Commission to do so.
12. ' Now, rule 6 of the said Rules comes into play and prescribe the procedure to be followed by the authorised officer while conducting proceedings against a civil servant. Rule 6 is mandatory in nature as it opens with the wording "the following procedure shall be observed by the authorised officer when a civil servant is proceeded against under these rules". The relevant sub-rule (2), (3) and (4) of rule 6 and rule8 are reproduced below for convenience and proper appreciation of the prescribed procedure.
13. "Rule 6 (2). -The authorised officer shall decide whether in the light of facts of the case or the interests of justice an inquiry should be conducted through an inquiry officer or Inquiry Committee consisting of two or more persons who or one of whom shall be of the rank senior to the accused and the procedure indicated in rules 7 and 8 shall apply.
(3) If the authorised officer decides that it is not necessary to have an inquiry conducted through an inquiry committee, he shall-
(a) by order in writing inform the accused of the action proposed to be taken in regard to him and the grounds of action ; and
(b) give him a reasonable opportunity of showing cause against that action.
14. (Note. -The proviso not reproduced being irrelevant for the decision of this case).
(4) On receipt of explanation of the accused, if any, the authorised officer shall determine whether the charge has been proved. If it is proposed to impose minor penalty he shall pass orders accordingly. If it is proposed to pass a major penalty he shall forward the case to the authority alongwith the explanation of the accused and his own recommendation regarding the penalty to be imposed. The authority shall pass such order as it may deem proper.
15. ' Rule 8. Action by the Authority.- In case of any proceeding the record of which has been reported for orders under sub-rule (4) of rule 6 or sub-rule (8) of rule 7 the authority shall, after affording the accused an opportunity of being heard in person, pass such_ orders as it may deem fit."
16. From a careful perusal and study of the relevant rules quoted above it becomes easy to understand that under the Efficiency and Discipline Rules, 1977 two authorities, namely, 'Authority' and 'Authorised Officer' have been assigned distinct and separate functions in their respective capacities to initiate and conclude proceedings against an accused Civil Servant under the scheme of Inquiry. The nature of the procedure to be followed by the Authority and Authorised Officer is mandatory one and it is obligatory on the part of these authorities to follow the same strictly so that, on the one hand, the accused civil servant may have fair and just trial and on the other hand, the proceedings may assume the validity in so far as the compliance of rules or procedure is concerned.
17. ' In the case of the appellant the Government happened to be Authority as well as Authorised Officer as the appellant was as officer of Grade 17. The Government in its capacity of Authority, on the report of Inquiry Commission No, II decided to proceed against the appellant under the provisions of Efficiency and Discipline Rules and then in its capacity as Authorised Officer decided not to have an inquiry conducted through an inquiry officer or Inquiry Committee and straightaway followed a summary procedure prescribed under sub-rule (3) of rule 6 of the said Rules. Under clause (a) of this sub-rule (3) the Government in its capacity as Authorised Officer is bound (1) to inform the accused appellant of the action proposed to be taken against him and the grounds of the action and (2) to give him a reasonable opportunity of showing cause against that action.
18. ' Under sub-rule (4) on receipt of explanation the Government as "Authorised Officer' has to determine whether the charge is proved and if the decision is in affirmative and it is proposed to impose a major penalty then the Government in its capacity an Authority can pass such order as it may deem proper but before passing any such proper order the Authority is bound to act under rule 8 and to afford the accused an opportunity of being heard in person.
19. ' Now, having clearly understood and laid down as above the obligatory relevant provisions of the said Rules, 1977 let us examine the case of the appellant in the light of these rules and determine whether the record of the case of appellant fulfils the essential formalities and requirements of rules that have the force of law.
20. ' The perusal of the record clearly reveals that Commission of Inquiry No, II was appointed by the Government under Commission of Inquiries Act, 1956 for inquiries into allegations in general to satisfy itself whether complaint against its officials were based on facts justifying initiation of proceedings under the Efficiency and Discipline Rules, 1977 but it can by no stretch of argument be deemed to be a substitute for an Inquiry Committee to be appointed by the authorised officer (here the Government itself) under sub-rule (2) of rule 6 of the said Rules, 1977. As such the report of the Commission of Inquiry was just a preliminary inquiry on the basis of which the Authority was to decide whether any action against the accused-appellant was justified to be initiated under the said rules. The Commission of Inquiry would have done well if it had associated the appellant in the inquiry throughout but its failure to do so does not in any way give a cause for legal grievance to the appellant and render its proceedings null and ineffective because its probe in the matter was not made under the (Efficiency and Discipline) Rules, 1977. Thus the objection of the appellant, if any, that the Commission conducted inquiry ex parte and recorded evidence against him in his absence is not of an consequence as the report of the Commission cannot legally be read or used as a piece of evidence to prove the charges levelled against him.
21. ' However, the Government in its capacity as Authority was within its premises to feel satisfied by the report of Commission and to decide to initiate proceedings against the appellant but while doing so it was incumbent upon the Authority to strictly follow the prescribed procedure and when it decided not to get an inquiry made by any officer or Committee as envisaged under sub-rule (3) of rule 6 then clauses (a) and (b) of sub-rule (3) come into play and the authority becomes legally bound to inform the accused appellant of (1) the action proposed to be taken against him and (2) the grounds of action and (3) to give a reasonable opportunity of showing cause against that action. These three requirements of procedure are mandatory and imperative in nature and are so interconnected that omission to observe any of them is by itself sufficient to affect fatally with the result that the whole proceedings and the resultant final order of the Authority becomes vitiated and falls to the ground as a futile exercise without any consequence.
22. ' In the case of the appellant the Government in its capacity as Authorised Officer formed its opinion on the basis of the material contained in the report of Inquiry Commission and proposed to take action of dismissal from service and accordingly issued show-cause notices twice, the first containing five charges issued on 4th May, 1978, and the second containing four charges issued on 26th June, 1978. In these show-cause notices it was said that the competent Authority proposes to award punishment of dismissal and that appellant should show cause within seven days as to why he should not be dismissed from service. It was further added in these notices that under rules the appellant was not required to be heard in person. However, to meet the ends of justice he can, be heard in person if he states so clearly in his replies to show-cause notices.
23. ' The appellant submitted his detailed replies to these show-cause notices denying all the charges as baseless and incorrect and after the receipt of his explanations the competent authority offered an opportunity of personal hearing to the appellant and after hearing him in person finally passed the impugned order against him.
24. These rules of procedure are based on common sense and principles of natural justice and the object behind them is that the accused civil servants when proceeded against should have a fairplay in his defence and that is why it has been made incumbent upon the authorised officer to inform the accused civil servant of the charges and the grounds thereof, unmistakably so that the accused person may easily and clearly understand as to what charges he has to meet and that what was the material on whit the charge-sheet was based. Not only that the accused officer should only know and understand the nature of the charges but a further duty is cast on the authorised officer that he should give a reasonable opportunity of showing cause against the proposed action. These prerequisite and imperative requirements can be fulfilled only when the charges are clear and self-explanatory containing essential particulars and a copy of the material forming basis of the charges is supplied to the accused person and access to the relevant record for inspection is made possible and sure so that the accused official is enabled to prepare his real defence easily.
25. ' If these formalities are observed then it can very well be said that requirements of rules were complied with and the spirit of the rules was fully carried out for the ends of justice. This inescapable duty of the authorised officer is spelt out from the use of words "he shall" which distinctly refer to the authorised officer who is burdened with the duty to offer reasonable opportunity for showing cause. The expression "reasonable opportunity to show cause" is not an idle or meaningless form but contains a very salutary and substantial provision of law and although this expression is not defined yet what constitute reasonable opportunity can be determined in the light of peculiar circumstances and facts of each case.
26. ' Now, having fully appreciated the scope of clauses (a) and (b) of sub-rule (3) of rule 6 of the Efficiency and Discipline Rules, 1977 let us proceed to test that action of the authorised officer on the touchstone of clauses (a) and (b) of sub-rule (3) and determine whether the necessary and essential provisions of rule were complied with or not. While arguing on legal aspect of his case the appellant emphatically urged that (i) the charges were shorn of details, (2) that neither copy of report of Commission of Inquiry was delivered to him nor he was allowed to examine and inspect the record to enable him to prepare his defence and (3) that no opportunity was given to him to lead evidence in defence. Consequently, relying on PLD 1970 Lah. 811 PLD 1975 Kar. 540 ; PLD 1957 Kar. 363 ; PLD 1960 Kar. 500 and PLD 1978 Lah. 972 he contended that the impugned order was rendered null and void having no legal consequence against his service rights. We have given serious consideration to the contentions of the appellant in the light of the record and have come to irresistible conclusion that the grouse of the appellant so far as the legal infirmities are concerned are largely misconceived and without any substance. It is true that some of the charges are vague and lacking in essential particulars but this flaw in itself would not be I sufficient to render the impugned order null and void because the impugned order does not flow only from such charges. The vagueness of some of the charges will be pointed out in the following paragraphs while discussing the charges on merits. The main complaint of the appellant is based' on the ground that he was not offered a reasonable opportunity of defence before submitting his explanation for the reasons that neither the grounds of action, or for that matter, a copy of the report of Commission of Inquiry was conveyed to him nor he was allowed to inspect and examine the relevant record on the basis of which the charges levelled against him rested despite the fact that he had made written request to the concerned authority in that behalf. According to the appellant failure on the part of the respondent to comply with the mandatory provisions of the rules has prejudiced him irreparably in preparing his defence which fact by itself is a strong ground to render the resultant impugned order passed against him ab initio void and inoperative as regards his service rights. We have deeply deliberated over the matter in issue in the light of record and rules and have come to irresistible conclusion that the contention of the appellant is entirely misconceived and unfounded. The first point of the appellant that grounds of action were not conveyed to him because, no copy of the report of Commission of Inquiry was supplied to him before asking him to submit his explanation to the charges is without any force because a civil servant is governed by the Civil Servants (Efficiency and Discipline) Rules, 1977 in the matter of inquiries and disciplinary actions and any infringement of these Rules by the Authority or Authorised Officer would entitle the civil servant to claim security against violations of the rules and procedure that have the force of law. The inquiry conducted by the Commission of Inquiry No, II under the order of the Government-respondent was not tantamount to an inquiry under the Efficiency and Discipline Rules, 1977 but was a preliminary probe to adjudge whether initiation of proceedings under the Efficiency and Discipline Rules was called for or not, The report of the Commission was basically meant for the satisfaction of the Government and under no law or rule such a report could be read or used as a piece of evidence against the appellant with the result that it was in no way obligatory on the respondent to furnish a copy of the report of Commission to the appellant before proceeding to take any action under rules against him. In other words failure to furnish a copy of such a preliminary report does not vest any legal right in the appellant to assail the impugned order finally passed as a result of proceedings conducted under the Efficiency and Discipline Rules, 1977.
27. ' So far as the other objection of the appellant is concerned that grounds of action were not conveyed to him is not factually correct. Except some charges which lacked in essential details the two show cause notices not only mention the action proposed to be taken against the appellant but also give the grounds of action in detail which could easily enable the appellant to appreciate the nature of the charges he was required to meet and explain and the perusal of the record has convinced us that while replying to the charges the appellant was fully conscious of the grounds and accordingly submitted his explanation in detail.
28. ' Another objection of the appellant that in spite of his written request he was not allowed to inspect the record which formed the basis of the charges levelled against him also does not find support from the record. The perusal of the record has revealed that appellant filed two applications dated 6th May, 1978 marked Annexures L & M addressed to Secretary Services and General Administration wherein it is requested that copy of report of Commission of Inquiry may be supplied to him besides the permission to inspect the concerned record. These applications are final ones as they bear the signatures of the appellant himself and find cline the appeal file. It these petitions were presented to the Secretary Services before filing replies to show-cause notices then how these are filed with the appeal before the Service Tribunal. The fact of their filing with the appeal negates the stand of the appellant that he had presented these petitions to the Secretary Services for the purposes mentioned therein. It appears to be an afterthought action of the appellant which in no way helps the case of the appellant. On the other hand, the perusal of the record (file captioned "Commission of Inquiry No, II") shows that appellant did make an application to the Secretary Services dated 6th May, 1978 at page 62 of the said file requesting for permission to examine the record on which application the concerned Secretary wrote "permitted". This snows that the appellant did make request to the concerned Secretary for inspection of necessary record as and when he felt the need to do so and he was allowed to examine the same. In these circumstances we do not feel convinced that the appellant was ever denied the permission to inspect the relevant record with the result that the argument of the appellant that he was prejudiced in preparing his defence by the refusal of the concerned authority to allow inspection falls to the ground as without any substance. The appellant relied on PLD 1957 Kar. 54 ; PLD 1957 Kar. 363 ; PLD 1970 Lah. 811 and PLD 1978 Lah. 972 in support of his, above referred contentians but these rulings do not help the case of the appellant because these rulings are distinguishable as in these cases request to inspect the record was clearly refused and in some cases grounds of action were also not communicated which facts had definitely prejudiced the condemned persons in preparing defence whereas in the case of appellant it is nowhere established that request to inspect or examine any record was ever denied resulting in any prejudice or amounting to denial of reasonable opportunity for showing cause.
29. ' The appellant argued his case on merits as well and vehemently contended that even on merits no case was made out against him as not only the charges were generally vague but that no proof was available on record to establish a single charge against him. We gave our serious consideration to this aspect of the case and examined the record minutely and critically.
30. ' The appellant was served with two show-cause notices containing nine charges in all. These charges will be examined on merits to adjudge as to which of these are established as proved on the basis of record.
31. Charge No, 1.-The amended charge No, I of the first show-cause notice reads as under :- "(a) you associated yourself in the printing of dummy copies of Weekly 'Ingelab' dated 16th to 23rd April, 16th May to 23rd May, 23rd May to 30th May, 1977 and subsequently verified the advertisement in these dummy newspaper for payment of Rs, 1,950 with a view to defrauding the Government."
32. The first part of this charge that the appellant associated in the printing of dummy copies of Weekly was dropped by the authority as incorrect but the second part relating to the verification for payment was held to be proved. This part of the charge is not clear as to how the appellant defrauded the Government by simply verifying the advertisement for payment. Unless it is alleged in the charge that the appellant knew that the advertisement was dummy and bogus or that it was not within the competence of the appellant to verify the advertisement or that the payment was verified at a higher rate than the prescribed one, the element of fraud cannot be presumed. As such this charge lacks essential particulars and is vague. Even on merits the charge has no legs to stand upon because unless it is proved that the appellant knew the dummy nature of the printed weeklies mere verification of the advertisement for payment by the appellant in the course of discharge of his official duties would in no way go to prove that the verification was made fraudulently in collusion with the concerned Editors of the weeklies to defraud the Government.
33. Charge No, 2.-Under this charge it was alleged that three weeklies, namely, Haqqiqat, Neelum and Millet were paid huge advertisement charges in October, 1975 on the eve of Azad Kashmir Day. The advertisement bills were to be verified at the rate of Rs, 312 full page per sanctioned rate whereas the appellant verified pay meat at the rate of Rs, 1,248 to Weekly Neelum and paid Rs, 21,000 to each Paper, and no care was taken to see that only one block was used by all the papers. The appellant had denied the charge before the authority who agreeing with h the analysis made by the Secretary Services on this held that this charge was only partially proved to the extent of verifying bills at high rates. The appellant got summoned the relevant record and examined Mr. Abdul Qayyum Information Officer as his defence witness. The perusal of cash-book and the budget Exhs. PG and PG/I plainly reveal that no such amounts were paid in the month of October, 1975 to these Weeklies as alleged in the charge and especially by the appellant.
34. ' According to the statement of witness Abdul Qayyum Information Ober in the years 1975 and 1976 not the appellant but Sardar ' Rashid Khan and after him Mr. Ahmad Shamim were acting as Drawing and Disbursing Officer and according to the cash book of Information Department payment of Rs, 63,000 was never made to weeklies Millat, Neelum and Haqqaiqat. Thus payment of Rs, 63,000 to three Weeklies in October, 1975 is not proved from the record. The verification by the appellant at the rate of Rs, 1,248 is also not proved because the perusal of the verification slip attached with the bill of weekly Neelum shows that the appellant verified the bill at sanctioned rate of Rs, 312 and further added that Minister Incharge of Information and Agriculture Departments has ordered the payment of this advertisement bill at commercial rate of Rs, 1,248 and if the Agriculture Department had really got the advertisement published at commercial rate, then it was the discretion of the department to make the payment at aforesaid commercial rate and with this verification the bill was forwarded for necessary action under rules. Thus it is clear that the appellant had very clearly explained that the sanctioned rate was Rs, 312 only and payment at commercial rate of Rs, 1,248 was left to the discretion of Agriculture Department. If after such a clarification the Agriculture Department makes payment at commercial rate the responsibility shifts to the Agriculture Department and the appellant cannot be held responsible for verifying the bill at a higher rate than the sanctioned one.
35. The perusal of the record reveals that even on some other advertisement bills the appellant appended verifications clearly stating that verification of the bills was made under the orders of Senior Minister for Information Department and the same were sent for further necessary actions. If the verification of bills by the appellant in the capacity of Deputy Director, Information Department was found excessive or not in conformity with the sanctioned rules by the Officers of the concerned departments they could very well object to the payment of the said bills and return for correct verification according to the rates fixed by the Government but instead of taking action under rules the concerned departments made the payments without any objection. Thus responsibility for payment at the rate higher than the sanctioned rates directly falls on the concerned departments and the appellant cannot be hauled up for the loss caused who had made the position clear in his verification that amounts of the bills were verified under the orders of Senior Minister Incharge of the Information Department. With this discussion it is abundantly clear that the charge as framed is not proved even partially as held by the Authority and the appellant is absolved of the same.
36. Charge No, 3.-This reads as under :- "That it has come to the notice that advertisements appearing in different papers have been verified at different rates. They are the following : -
(i) Insaf 8 x 3 column inches, bill presented for Rs, 700 and verified for Rs, 600,
(ii) Pakwattan 9 4 column inches bill presented verified for Rs, 450.
(iii) Kasheer 6 X 3 column inches, verified for Rs, 600. The above shows that different rates per column inch were allowed to different papers."
37. ' As the charge reads it is nowhere mentioned in the charge that it was the appellant who verified the bills at different rates. However, the appellant produced rate list Exhs. PK/1 and PK/2 in rebuttal which shows that different rates for various Weeklies of Azad Kashmir were fixed by advertisement Cell, of Press Information Department, Government of Pakistan, and the appellant only verified the bills in accordance with these rates. By verifying bills at different specified rates the appellant just complied with the instructions and made no departure from any rule or direction and as such no case is made out against the appellant who is absolved of this charge as well. Charge No, 4.-In this charge it is alleged that a number of Newspapers were printed without a print line and that the appellant did not care to look into such printing and stop the same with the result that {{PAGE CUT}} +) ating continued with appellant's complicity. The appellant has -0 veracity of the charge in his reply submitted before the Autho- 04 g that it was Council subject and all that Information Depart- 0 Id do in this behalf was to bring the irregularity into the notice I authorities and accordingly the Information Department of hmir Government write letters to the Deputy Secretary Council .1-i cut the irregularities in question. The Authority was not satisfies] (D 0 :xplanation of the appellant and held this charge as proved 4) IA 0.) 0 . r4 sve carefully studied the legal aspect of the issue and are of the 0 tat finding of the Authority about the guilt of the appellant on 4.) of this charge was incorrect. Under the Azad Jammu and 0 g I VI o u ric I I Act, the subject of Press and Publication falls within the ! +A 'N es. F the Council subject and the Azad Kashmir Government has no t.4 0 0 (,?, n to take any action whatsoever in this behalf. Sections 25 and 54 4- aid Act are clear on thepoint and it is only the Azad Kashmir 0 G1 ri $.4 "4 cat can take any legal action, if the provisions of the said Act tts u) 0 td d in any manner.
38. Thus the appellant does not seem to be r4 '1$4 in any way for not taking any timely action against the con- Fs at ss or newspaper. However, the appellant has placed on the Lg3,1 pies of letters Exh.
39. PJ/I and PJ/2 sent by the Information .14 .Wri fy4 p, it to Azad Jammu and Kashmir Council informing the Council rt ta , ularities about Printing of papers. This shows that the appel- *ri P4 Oke care to discharge his duty, if any, in this respect and in- 4-4 competent forum to look into the matter, With this discus- (-1 0`-' 0-4 arge levelled against the appellant melts away as baseless and the appellant is absolved of the same as well.
40. ' Charge No, 5.-This charge alleges that certain advertisements appeared in some weeklies much later than the dates on which such adver- tisements were supposed to be published but the appellant verified the bills for payment without checking the advertisements appeared in time or not. {{PAGE CUT}} ' According to this charge pre-dated Weekly, that is, dated 14th September, 1977 and 7th February, 1978 were being printed on 15th February, 1978 when on being informed of this fact the S. H. O.
41. Muzafrabad confiscated the Printing block in Al-Madina Printing Press Muzafrabad, From this event of an attempt to print pre-dated newspaper it was presumed that pre-dated Papers were printed to obtain payments for advertisements by showing them to have been printed in time. The charge further states that there was a common complaint that advertisements appeared in Weeklies much later than the due dates but the appellant verified the same without checking due date for advertisement with the result that payments were made for these useless belated advertisements.
42. This also was scrutinised by the Deputy Secretary Services and General Administration Department alongwith other charges and made the following remarks "It may be true that the advertisements appearing in these weekly newspapers were much belated and the purpose of their printing was defeated and even then the bills were verified and paid, yet no instance has been quoted, therefore Mr. Naqvi cannot be held guilty of this charge". Secretary Services also agreed with this report of the Deputy Secretary Services.
43. ' The Authority while examining the case observed that analysis made by the Deputy Secretary/Secretary Services appears to be correct. This means that finding of the Administration Department that charge No, 5 was not proved against the appellant was upheld by the Authority as well ' As such charge No,5 against the appellant was baseless and the appellant is absolved of the same.
44. ' Charge No, 6.-Briefly stated the charge says that the appellant made a false statement before the Commission inasmuch as the appellant did not own and identify signatures made on some bills whereas he admitted encashing a cheque bearing a different signature and thus there was every reason to believe that he was signing in different ways to cover up illegal payments.
45. ' As the reading of the actual charge would show it is so lengthy and ambiguous that it becomes very difficult to ascertain definitely the exact nature of the charge. From the charge as framed what at the most can be made out is that the appellant made a statement before the Commission of Inquiry that the signatures on the various bills found above the stamps of Dy. Dir. Information were not his signatures and this statement was held to be false by the Commission as the appellant was found to have signed one cheque issued to the then Deputy Commissioner M'abad in a different way than the one in which he usually used to sign. The appellant has denied this charge stating that during the period the said bills were signed he was neither incharge of the advertisement section of the department nor did he sign the said bills. From the record it is not established that the signatures on the bills for payment to the weeklies in question in the capacity of Dy. Director were that of appellant. The finding of the Commission as is clear from the charge itself is squarely based on presumptions and surmises. The Commission has based this charge on the ground that since the appellant had signed oae cheque in a different signature than his usual ones it would be presumed that the appellant had signed the above bills also in a different signature. The above presumption drawn by the Commission is so wild and imaginary that no reliance can reasonably be placed on it to form any finding regarding correctness of the charge. It is common place knowledge that the bank accounts are often opened by the account holders in different signatures from those which they normally make in general for other purposes. Thus if the appellant did sign a cheque in question in a different signature than those found in his official or private correspondence, it does not mean that the signatures on the said bills were definitely that of the appellant. No such inference can legally be drawn to hold the appellant responsible for signing the bills under discussion. This being the case, the question of making false statement which is the subject of this charge, does not arise. Hence this charge also stands disproved against the appellant.
46. Charge No. 7.-This charge says that certain amounts were received by the appellant from the Director Local Government but the same were not taken on charge and no account was produced before the Commission and thus whole or portion of the amount was presumed to have been embezzled. This charge also is not substantiated from the record. It is an admitted fact that the amounts alleged to have been embezzled did not belong to Information Department and these amounts were given to the appellant by the then Director Local Government for spending for purposes unconnected with the Information Department. The explanation of the appellant is that the money in question was received by him from the Chief Secretary for expenses for specific purposes and the same was spent accordingly and the account was rendered to the Chief Secretary. This explanation has been admitted by the competent authority as is evident from note 42 on noting side of the file in which the case of the appellant was dealt with. In the said note the appellant has been absolved of the real allegation of embezzlement but has been held guilty partially for not keeping the statement of accounts with him. This finding of the authority is legally in correct because the actual charge was of embezzlement and not of not keeping the statements of accounts. Apart from the above finding of competent authority we are also of the opinion that this charge is not established against the appellant. When the amount in question was entrusted to the appellant by some other authority for specific purposes naturally the appellant was only responsible to render account of the same to the concerned authority and under no rules he was obliged to take this amount of the charge in the official books of Information Department or to keep their accounts in the department. The authority which gives amounts to the appellant never complained of any embezzlement of the said amount by the appellant. As such this charge also is without any foundation.
47. Charge No, 8.-This charge says that while scrutinizing his personal file in connection with his irregular promotion it was noticed that the appellant tampered with the Government record. There is no specific allegation as to what was the nature of tampering and in the absence of a clear charge how could appellant explain and reply the same. As such the allegation is simply vague and understandable. On merits as well the counsel for the respondent has not been able to show us during the course of his arguments that how and where in the record the alleged tampering was committed. As such this charge is also vague and baseless with the result that no responsibility can be fixed upon the appellant for tampering with the Government record.
48. Charge No, 9.-Under this charge it is alleged that from the service record of the appellant if appears that his appointment promotion was made as a result of political pressure arranged by the appellant. This charge does not explain and make clear the nature of the political pressure exerted by the appellant and unless such nature is pointed out how could the appellant be in a position to reply or meet the same. As such the charge suffers from vagueness. Besides, we have examined the service record of the appellant as regards his appointment. From the perusal it is evident that the post was got advertised by the Information Department through the Public Service Commission and the appellant was selected by the Commission and recommended for appointment and in consequence the then Government made the appointment of the appellant.
49. As such the appointment of the appellant was made in the prescribed manner. The service record of the appellant nowhere speaks out that his appointment was the result of any sort of political pressure and much less that the same was in any way arranged by the appellant.
50. ' As a result of the above discussion the appellant is absolved of this charge as well for want of any proof.
51. The result of the foregoing discussion on all the charges levelled against the appellant is that not a single charge stands proved against the appellant with the result that the impugned order of removal from service is unsustainable which is hereby set aside. The appellant stands re-instated in service with effect from the date he was removed from service with all consequential benefits wider rules. However, it is in our notice that the appellant has been engaged in the practice of law under licence. Therefore the income earned by him from business shall be deducted from the emoluments to which he may be found entitled to.
52. ' There shall be no order as to costs.
53. ' The parties shall be informed of this order.
54. ' SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).-I agree.