1. ' MUSHTAK ALI KAZI (CHAIRMAN). --This appeal arises from an order of the Government of Sind in the Services and General Administration Department dated the 7th April, 1975 whereby 31 officers of Police and Excise Department including the appellant, a Sub-Inspector of Police, were dismissed.
2. The appeal had been heard and disposed of as time barred by the previous Tribunal with Mr. Justice (Rtd.) Ghulam Rasool Shaikh as Chairman. On appeal the Supreme Court has set aside the dismissal after holding that the appeal was filed before the Tribunal within time.
3. ' The facts of the case are as under :- ' Between 4th and 7th November, 1974, 38 residents of Karachi died due to use of country liquor containing Mathenol and Barbiturates. Besides those who died many more persons suffered severe physical damage of permanent nature such as paralysis, blindness and mental derangement. This incident received wide publicity in the Press and caused embarrassment to the Provincial Government when Provincial Assembly happened to be in session. Number of adjournment motions were tabled and charges were leveled against the Government responsible for enforcement of Abkari Act. The Government hurriedly issued notification appointing Mr. B. G. N. Kazi, Sessions Judge, Karachi as Tribunal for making an enquiry into the matter to determine the causes leading to the large number of deaths and the extent of negligence of duty by concerned officials.
4. 66 witnesses were examined by the Tribunal and the report was submitted to the Government. One of the findings in the enquiry report was to the effect that the narcotic dens in the slum areas of Karachi started functioning from the year 1972 and these dens flourished with the connivance of the Excise and Police officials until the happening of the tragedy. The Government accordingly ticked out the officials and agency charged with the responsibility of implementing Abkari Act on or about the date of the occurrence of the tragedy and directed issue of show-cause notices to them under rule 5(3) of the Efficiency and Discipline Rules,1973. One such notice dated 14th December, 1974 was issued to the appellant by the Authorized Officer containing the allegations (1). That while posted as S. H.
0. Kalakot from 19th February, 1973 to 16th May, 1974 be was negligent in his duty to control the illicit trade in liquor which eventually resulted in the use of poisonous country liquor by 52 persons in Karachi in November, 1974, the majority of the persons having died; (2) That the. Officer had a persistent reputation of being corrupt. In the show-cause notice the appellant as the Accused Officer was given option of personal hearing and he was asked whether he desired to be heard in person.
5. ' After receipt of the explanation in writing, it was forwarded to the Deputy Inspector-General of Police by the Authorized Officer. These explanations were then sent to the Chief Secretary, Government of Sind on 24th December, 1974. By an order dated 7th April, 1975 the 31 Officers were dismissed by the Government of Sind under the relevant notification. The list included the name of present appellant at S. No, 8.
6. ' Since the order was issued by the Government the appellant preferred a review petition on 3rd May, 1975 but no reply was received intimating the result of this petition. The appellant accordingly preferred service appeal before the Tribunal on 30th August, 1975.
7. ' Some of the Officers whose service appeals were dismissed on merits also preferred appeals before the Supreme Court. Some of these appeals were heard and disposed of by the Supreme Court being Appeals Nos. K-13 and K-14 of 1978 decided on 17th May, 1980. The facts of those appeals were more or less similar to the facts of the present appeal and the Supreme Court had observed that they were satisfied that the Tribunal's order in respect of the appeals decided was illegal. The appeals had accordingly been allowed but it was left open to the Government to take fresh proceedings against the appellants according to law if they so desired.
8. ' It has been argued by Mr. Muzaffar Hassan on behalf of the appellant that the charges in show- cause notice are vague and no statement of allegations or any other material were supplied to the appellant to know on what evidence these charges were based. The show-cause notice had been issued on the basis of the report of the Tribunal but a copy of that report had not been furnished to the accused officer and the report was kept secret. Mr. Muzaffar Hassan has pointed out that he actually requested the Authorized Officer, in writing for furnishing particulars in respect of the show-cause notice but he was informed that no further particulars could be given.
9. ' Mr. Muzaffar Hassan has also pointed out that in the show-cause notice served on the appellant an option given to the appellant whether he desired to be heard in person. The appellant stated in writing in his explanation. "I desire to be heard in person. I also request that I may kindly be allowed to produce defence and to cross-examine the P. Ws. If any." Admittedly the option of personal hearing accepted by the appellant was subsequently withdrawn and no further material was furnished to the appellant nor was he allowed any cross-examination of the witnesses who may have deposed against him. The appellant's request for producing the defence was also rejected.
10. When an Authority proposes to dismiss or reduce in rank a Member of the Civil Service he shall be given an opportunity of putting his case against the proposed action and the opportunity has to be reasonable opportunity. The grounds of action have to be mentioned with clarity and wherever necessary, the charges should be definite with full particulars and the evidence on which the charges are based should also be stated so that the Accused Officer should have sufficient opportunity to refute the charges. Mere asking for an explanation is not sufficient compliance with the statutory requirement. If the charges are based on any document or report the copy of the same must be furnished to the Accused Officer to enable him to effectively meet the allegations contained in the charges.
11. ' Personal nearing is a part of reasonable opportunity to show-cause and once the option is allowed the same cannot be withdrawn. Personal hearing enables the authority concerned to clear up his doubts during the course of arguments and a party should be allowed the opportunity to clear up doubts by persuading the authority by reasoned arguments to accept his point of view. In a recent decision of the Supreme Court in the case of Sohrab Khan Kalwar v. Government of Sind (I), the appellant was clearly required to state whether he wanted to be heard in person. In his reply he answered this question in the affirmative. It was observed by Anwarul Haq, C. J., as he then was, that irrespective of the question whether personal hearing is a mandatory requirement under sub- rule (3), it is clear that the option given to the appellant in the matter of personal hearing could not be denied to him without sufficient cause. As a result the appellant was clearly deprived of the opportunity to show that the allegations against him were without any foundation. On this view of the matter, the Supreme Court considered that the order of removal from
(1) PLD 1980 SC 279 ' service passed by the Provincial Government against the appellant stood vitiated. They accordingly declared this order to be without lawful authority and of no legal effect.
12. ' In an earlier case of Abdul Hamid v. Province of West Pakistan (1), a charge-sheet was served on the appellant incorporating several allegations of misconduct relating to his official duties. He was required to send his reply in writing by. a Specific date and to say whether he wished to be personally heard. The appellant put in a long explanation and at the end he appended the paragraph in which he stated, "I may be given a chance of being heard if any point still remain unexplained". The appellant was not given a chance of being heard personally and the case was decided against him. It was observed that under these circumstances, the view cannot be sustained that the appellant was afforded reasonable opportunity to show cause against the action proposed to be taken within the meaning of that term as used in the Civil Service Rules and that this infirmity vitiated the order of removal passed subsequently.
13. ' It has then been argued, that the Government had by a notification dated 18th March, 1972 declared Mathenol to be liquor for the purpose of the Sind Abkari Act but later on by another notification dated 4th September, 1974 Mathenol was omitted from the regulations applicable to spirits. That this action on the part of the Government was in fact responsible for free use of methenol as a base in the manufacture of unauthorized country liquors. That in any case the incident occurred between 4th and 7th November, 1974 and mathenol was used between 1st November, 1974. And 4th November, 1974, when the appellant was not serving as Sub-Inspector Kalakot Police Station the appellant having been transferred from that Police Station on 16th May, 1974 six months prior to the occurrence. It could not therefore be said that the incident had occurred due to any negligence on the part of the appellant. That in any case the interference of the Police Officers in matters connected with the use of drugs was viewed with dis favour by the Excise Department since it was initially the duty of that department to prevent misuse of intoxicants and proper implementation of the Abkari Act. That the appellant had received several letters` of commendation from his superiors and he had never earned any bad report regarding his integrity in the A C Rs, There was therefore no basis for the two charges levelled against him in the show- cause notice. That the appellant was made a victim in an attempt by the Government to appease the public criticism, publicised in the Press and discussed on the floor of the Assembly House. That these 31-persons were joined together in a single order and dismissed unblock by the Government without considering each case on merits. That apart from the misjoinder the order is defective since there was no recommendation by the Authorized Officer forwarded to the Authority for imposing a major penalty. That the orders were passed by the Government over and above the authority who will be the Deputy Inspector-General of Police in case of the appellant. That the Efficiency and Discipline Rules were thus violated and the orders of dismissal were illegal.
14. ' Mr. Hassan Akbar, A. A. G. Concedes that on the basis of the same show-cause notice, action had been taken in cases of Lal Muhammad and Muhammad Aslam but their appeals had been allowed by the Supreme Court on similar grounds. {{FOOT NOTE}}
(1) P D 1963 SC 460 {{FOOT NOTE}} We accordingly find that the orders passed by the Government dismissing the appellant from service could not be justified under the circumstances, the allegations being vague and the appellant having been denied the reasonable opportunity of showing cause against the said order.
15. The orders should also have been allowed to be passed by the "Authority" and should not have been passed by the Government directly, nor could the cases of all the Officers be joined together since each case had to be decided B on its own merits. The order of dismissal passed against the appellant is accordingly set aside and the appeal is allowed with no order as to costs. It is, however, open to the Government to take fresh proceedings against the appellant on definite charges, and strictly in accordance with law, allowing the appellant a reasonable opportunity of defending his concluding the right of personal hearing.
16. ' Since the orders of dismissal could not be legally sustained, the appellant may be re-instated and paid the arrears of his salary for the intervening period from the date of dismissal-until re- instatement.