1. MUHAMMAD APZAL ZULLAH, J.--The refusal of the Lahore High Court by its judgment dated 15-5-1975 in its writ jurisdiction, to set aside the order of the dismissal from service of the appellant has been called in question through this appeal by special leave, which was granted on 24-2-1981 to consider : whether the proceedings against the appellant were affected by bias of Enquiry Officer and the punishing authority and further whether the appellant was not afforded opportunity of hearing in accordance with rule 50(1) of the Pakistan Cantonment Servants Rules, 1954.
2. The essential facts relied upon from the appellant's side are that he was serving as Cantonment Engineer at Rawalpindi when he was first trans--ferred to Peshawar Cantonment in January, 1972.
3. He had not yet joined at Peshawar when in May, 1972 the earlier transfer order was cancelled and he was transferred to Multan. It appears that he not only disliked his transfer to Multan, but also started protesting against. It after joining his duty there on 18-5-1972. It also appears that he obeyed the transfer order only in its letter by joining his duty at the new station, but he had no intention to serve there ; because he took leave of absence immediately on ground of what was stated to be "to settle his domestic affairs". Subsequently he sought extension of the leave from time to time and ultimately absented without leave (through his case is that he had always submitted applications for leave in time). However, on account of his absence from duty he was suspended on 12-8-1972. Later on he was served with a charge-sheet on 31-8-1972. The main charges were that since his transfer from Rawalpindi to Multan he had tried to avoid the performance of his duties on one or the other plea and that since 6-8-1972, he was absent without even an application for leave. Accordingly, be was accused of wilful avoidance of duty. It was also pointed out in the charge-sheet that on account of absence from duty of the appellant, the execution of certain work had suffered considerably which had resulted into administrative inefficiency. The second charge related to the failure of the appellant to furnish documents/ notification with regard to his academic and technical education in respect of which he was accused of wilfully abstaining to comply with the orders of his superiors. It was also mentioned in connection with this charge that the non-compliance of the aforementioned directions would lead to an inference that he had sought employment under the Cantonment Board by sheer misrepresentation of facts. , The appellant submitted a detailed explanatory statement to the Enquiry Officer which in effect was his reply to the charge-sheet. He also requested the Enquiry Officer to call to be present at the time of enquiry three persons, namely, Cantonment Executive Officer, Assistant Secretary and Accountant. He had sought personal hearing and opportunity of producing defence. It was in that connection that the presence of the three persons at the time of enquiry was requested by him.
4. The Enquiry Officer associated the appellant in the enquiry. He did not formally examine orally any departmental witness against the appellant nor was the statement of any of the witnesses of the appellant recorded, though they were summoned to remain present as had been requested by him.
5. It, however, appears from the report of the Enquiry Officer that as and when occasion arose during the examination of the records, the appellant availed opportunity of explaining the facts and circumstance to his own advantage with reference to the record. Oral questions were also asked from the other persons in attendance.
6. The Enquiry Officer submitted a lengthy report of more than dozen pages. The record which furnished primary proof in support of the accusa--tions against the appellant, was examined with his assistance. The relevant dates including those relateable to the submission of leave applications by the appellant were thoroughly checked. With regard to the second charge, the appellant had failed to produce the most essential certificates even during the enquiry. He was found guilty of "wilful disobedience of orders, dereliction of duty and misconduct". Accordingly, the report was submitted by the Enquiry Officer to the punishing authority who served the appellant with another show-cause notice on 23-8-1973. The appellant availed of the opportunity and submitted a detailed explanation on 8-9-1973, which was rejected and the punishing authority dismissed him by the order dated 18th March, 1974 which reads as follows :- " . ....The enquiry against the accused Raja Muhammad Ashraf, Cantt. Engineer, Multan Cantt.
7. (Under suspension) having been completedwherein all the charges were proved and taking into consideration the cause shown by the accused under rule 50(3) of the Cantt. Servants Rules, 1954, it has been proved that Raja Muhammad Ashraf is guilty of fraud, misrepresentation, disobedience of legal orders of his superiors and misconduct. He is neither a matriculate nor a qualified overseer and has also made contradictory statements in support of his possessing technical qualifications and service in the Army Engineer Deptt. From 1940 to 1949.
8. Under the circumstances, the appointing Authority is of the opinion that retention of the accused Raja Muhammad Ashraf, Cantt. Engineer, Multan Cantt. (under suspension) in service would be detrimental to the efficient administration of the Cantonment. As such it has been decided to dismiss him from service with effect from the date of his suspension."
9. It needs to be mentioned that the appellant bad challenged the order of transfer and suspension in the High Court through Writ Petition No. 1257-S of 1972 which having been dismissed, he filed an Intra-Court Appeal which was also dismissed on 29-1-1974. It is thereafter that the only order of dismissal was passed, which was challenged by him .In the High Court through a fresh writ petition filed on 2-5-1975. It, was dismissed in limine on 15-5-1975.
10. Learned counsel has in support of this appeal contended that Mr. A. I. Durrani, Director, Military Lands and Cantonments, who acted as competent authority and passed the order of dismissal, was biased against the appellant, and because the Enquiry Officer was acting under his influence, therefore, the finding of guilty against him was on account of the so-called bias by reference. He has in this behalf relied on the two explanatory statements in writing submitted by the appellant on 24-4-1973 and 8-9-1973. About the treatment of this aspect by the learned Single Judge in the High Court, learned counsel argued that the contention was repelled on the ground that the plea of bias could not be held to be established by "mere word of mouth" of the appellant. Learned counsel has also contended that defence witnesses of the appellant having once been summoned by the Enquiry Officer, he was bound to record their statements unless for sufficient reasons to be recorded in writing, he did not find it necessary to formally examine them.
11. After hearing the learned counsel at some length in support of his first contention we agree with the learned Single Judge in the High Court than there is nothing on the record placed before the learned Judge, except the appellant's own assertions, to establish that the punishing authority had bias against him. It is interesting to note that in his reply dated 25-4-1973 the appellant had not made any direct assertion regarding so-called personal bias of Mr. Durrani, but in his reply dated 8-9-1973 submitted to the show. Cause notice after the finding of guilty, he narrated certain incidents from which be made further inferences for himself that he (the appellant) had the, impression that Mr. Durrani had on account of those incidents thought as if the appellant was against him (i. e. Mr. Durrani). This by itself was not enough to establish personal bias against the punishing authority. Be that as it may, there is no direct allegation against the Enquiry Officer, who dealt with the matter as fairly as it was possible. The alleged bias of the Enquire Officer by indirect reference to the alleged bias of Mr. Durrani was, without foundation. 1t also needs to be mentioned that the orders of transfer and suspension were challenged by the appellant before the High Court in an earlier writ petition which was dismissed. We have seen the judgment rendered in Intra-Court Appeal filed by the appellant. He had failed then to urge the plea of bias. For all these reasons, we find no force in the first: contention raised by the learned counsel.
12. The second contention regarding opportunity of defence, can be repelled by reference to a simple fact that, although raised in the writ petition, it was not urged before the High Court at the time of hearing. However, we deem it necessary to make some observations with regard to the technical point raised by the learned counsel. The rule 50(1) relied upon by him reads as follows :- "50.-(1) No order of dismissal, removal of reduction (other than an order based on facts which have led to his conviction in a criminal Court) shall be passed against a cantonment servant unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of being heard and defending himself. The grounds on which it is proposed to take action shall be precisely stated in the form of charges, which shall be communicated to the person charged together with a statement of the allegations on which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether be desires to be beard in person. If he so desires and if the authority concerned so directs, an oral inquiry shall be held. At that inquiry relevant oral evidence shall be taken with regard to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witness, to give evidence in person and to have such witnesses called on his behalf as he may wish to examine. Provided that the officer conducting the inquiry may, for special and sufficient reasons to be recorded in writing, refuse to call a witness, whose evidence is not necessary for securing justice to the person charged. The proceedings shall contain a sufficient record of the evidence taken and a statement of the findings and the ground thereof Provided that :-
(a) this sub-rule shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communi--cate with him ; and
(b) when it is impracticable to carry out all or any of the provisions of this sub-rule, reasons for not carrying out the provisions shall be recorded in writing, and every effort shall be made to ensure that no injustice is caused to the person charged."
13. On the assumption that the aforequoted rule applied to the proceedings in this case, we, after hearing the learned counsel, in this behalf, are of the view that it was not contravened by the Enquiry Officer. He did not record oral evidence in the case, because as it appears from the report, the subject matter of enquiry related to the record. If at all, explanatory questions could be asked during the enquiry from the appellant and/or other persons, either on the initiative of the enquiry Officer, or on the request of the appellant. It is strange that although the appellant requested that three persons named in his written statement dated 25-4-1973 should be called to remain in attendance during the enquiry, when they were called and were in attendance, he did not make any request for their formal examination as defence witnesses. In this behalf, learned counsel explained that the appellant did not insist on the formal examination of the defence witnesses, because the Enquiry Officer had verbally told him that it was not necessary. Making this unilateral assertion as the basis, learned counsel raised another contention that it was necessary for the Enquiry Officer to have recorded the reasons for not examining the witnesses ; because as contended rule 50(1) required him to do so. Firstly, we do not accept the belated explanation for failure of the appellant to insist upon the examination of his witnesses. Even if it be assumed that he was verbally told by the Enquiry Officer that formal) recording of oral statements was not necessary, he could have insisted in this behalf through a written application, and should have obtained a written[ order of refusal. He cannot make capital out of his own act of omission may intentional, so as to take advantage of a mistake. Subsequently, if the finding went against him such conduct cannot benefit the appellant. The provisions of such rules are meant to advance the interest of justice and are not intended nor can they be permitted to be made use of as vehicle of delay, vexation or to defeat the ends of justice. The Enquiry Officer had substan--tially complied with the essential requirements of the rule by calling the witnesses on the request of the appellant, who himself was squarely responsible a for not examining them as such in a formal manner. Thus the appellant could not have availed of such an argument in the High. Court as it is based on a mere technicality and would have been repelled in its discretionary jurisdiction invoked by the appellant.
14. The upshot of the foregoing discussion is that this appeal fails and is accordingly dismissed with costs.