ABDUR REHMAN KHAN KAIF, J.-The above-mentioned two constitutional petitions filed by S. Ajmal Shah, the then Sub-Divisi6nal Officer, Public Health Engineering Department; Nowshera and Gul Mast Khan, the then Executive Engineer in the Public Health Engineering Department, Mardan, respectively, are directed against the order dated 18-6-79 whereby the penalty. Of reduction to lower post was .Imposed on both of them for having been found guilty of misconduct and inefficiency as a result of inquiry conducted under the N; W. F. P. Government Servants (Efficiency and Discipline) Rules, 1973. The petitions arise out of the same inquiry proceedings against the two Officers and both were accordingly heard together.
2. The facts of the case briefly are that in order to provide drinking water to the residents of village Misri Banda in District Peshawar, it was proposed to install a tube-well and pump water to a surface reservoir from which the water was to be distributed. This work was to be supervised and controlled by Gul Mast Khan petitioner in Writ Petition No. 840/79, S. Ajmal Shah petitioner in Writ Petition No. 793/79 and one Qazi Muhammad Saqil, Sub-Engineer in the Public Health Engineering Department. For the execution of the work drilling operation at a site in the village started but the site was not found suitable for the purpose when inspected by the Superior Officers. The petitioner S. Ajmal Shah was then serving an ad hoc basis as Sub-Divisional Officer in the Public Health Engineering Department who relinquished the job subsequently on having been selected as Assistant Engineer on 20-11-76 in the B. &. R. Of P. W. D. But before joining B. &. R., he was served with a charge-sheet by the authorised Officer (Chief Secretary) on 27-4-76 which runs as under-
(a) you started drilling of a tube-well at Misri Banda at a site which was neither suitable for the purpose nor approved by the Executive Engineer nor according to the plans of the work;
(b) you failed to properly maintain the drilling logs and the strata samples in respect of the said tube-well and also submitted a false and incorrect strata chart in respect thereof to the Chief Engineer during his inspection on 1-7-75; and
(c) you kept false samples in the strata box, and on actual checking of the bore hole at the site from 189 to 202 feet it was found that the strata was clay instead of sand as shown in the strata chart.
(2) By reason of the above, you appear to be guilty of misconduct and inefficiency in the discharge of your official duties and have rendered yourself liable to all or any of the major penalties specified in the North-West Frontier Province Government Servant (Efficiency and Discipline) Rules, 1973.
(3) You are, therefore, required to put in your written defence within fourteen (14) days of the receipt of this charge-sheet as to why discipli--nary action as aforesaid should not be taken against you and whether you desire to be heard in person.
(4) Your written explanation or defence, if any, should reach the under--signed within the aforesaid period, failing which it shall be presumed that you have declined to offer the same.
(5) A statement of allegation is attached."
3. A similar action was also simultaneously taken against Gul Mast Khan on the same date wherein he was charged for his failure to select suitable site for the installation of the tube-well and for his inability to exercise proper supervision and control over the work in question. Detailed explanations were submitted by both the Officers but finding the explanations submitted as unsatisfactory, a formal regular inquiry into the said allegations was initiated with the result that one Muhammad Ajmal, the then Superin--tending Engineer, Irrigation Department was appointed as an Inquiry Officer with the direction to make a probe into the allegations. The Inquiry Officer submitted his report and on the basis of that report, the impugned order dated 16-8-79 was passed by the Authority. Appeal/Review petitions against the abovesaid order were filed by both the petitioners but it is stated that those petitions have not been headed to so far.
4. The learned counsel appearing for the petitioners vehemently contended that the inquiry conducted by Muhammad Ajmal Khan, respondent No. 3, was violative of the principle of natural justice as well as rules governing such inquiries as the crucial witnesses were examined by the Inquiry Officer in the absence of the petitioners. He further contended that the inquiry in question was not held continuously from day to day as enjoined by law and that it was after three years of the completion of the inquiry when the impugned order was passed and that too without issuing any show-cause notice to the petitioners. He further submitted that the impugned order is also defective in the sense that the same does not disclose or specify the time as to how long the petitioners arc to remain in the reduced rank in their services. Assailing the impugned order further it was stated that S. Ajmal Shah petitioner being a direct selectee as Assistant Engineer could not be demoted to the rank of Sub-Engineer.
5. We have considered the contentions of the learned counsel for the petitioners and also carefully gone through the record of the case and that of the inquiry proceedings. The inquiry report is bearing no date of its completion but a covering letter in this connection is dated 30-10-76.
Relevant portion of the inquiry report containing full details of the proceedings before discussing the charges, which is relevant for the purposes of the matter before us, reads:- "After collection of the record the enquiry was fixed to be held at Mardan in the office of the Executive Engineer, Public Health engineering division, Mardan, from 3rd to 5th August, 1976, and all the three accused Officers were informed to be present at Mardan on the above dates. The Chief Engineer, Public Health Engineering Depart--ment,. Peshawar, and Mr. Muhammad Younis Contractor for the work and Mr. Abdus Salam Mate incharge of the work on site were also summoned to be present as witnesses in the enquiry. But the Chief Engineer, Public Health Engineering Department, expressed his inability to be available on the said dates the enquiry was postponed to 19th to 21st August, 1976. Syed Ajmal Shah, Sub-Divisional Officer could not be informed in time as he bad proceeded on medical leave. Mr. Abdus Salam mate incharge of the work at site also had not been contacted and so not present. Nevertheless on the dates fixed for enquiry, statements of two witnesses, namely Mr. Mir Naeemullah Khan, Chief Engineer, Public Health Engineering Department, Peshawar and Mr. Muhammad Younis, Contractor were recorded and two accused i. e. Mr. Gul Mast Khan, Executive Engineer and Qazi Mohd Saqil, Sub-Engineer, were allowed to cross-examined them. The statements of the two accused were also recorded.
The nature of charges is such that the presence of Syed Ajmal Shah Sub-Divisional Officer was necessary to complete the enquiry, so it was postponed and efforts were made to contact him.
Accordingly he was informed to be present at Mardan on 10-9-76 for the enquiry. Notices were also issued to other two accused and the mate incharge of the work at site to be present. On the date of enquiry all the three accused were present. As the mate incharge of the work at site bad been discharged from service after stoppage of the work and was not present in his village so be could not be informed and thus was not u resent. Any how Syed Aimal Shah- Sub-Divisional Officer was shown the statements of Chief Engineer, Public Health Engineering Department, and Mr: Muhammad Younis Contractor, and statements of two other accused recorded, on the previous hearing. He was asked to give his own view-points on these statements. As the mate incharge of the work was not present, so enquiry had to be postponed again. Executive engineer, Public Health Engineering Division, Mardan was asked to point out his whereabouts and direct him to attend my office on any working day so as to enable me to complete the enquiry. Mr. Abdus Salam, mate incharge of the work attended my office on 25-10-76 when his statement was recorded."
6. Reduction to a lower post comes within the scope of major penalties as provided under rule 4(1)
(b)(i) of the N: W. F. P. Government Servants (Efficiency and Discipline) Rules, 1973. It would be proper at this stage to examine the inquiry proceedings and the inquiry report submitted by respon--dent No. 3 in the context of the relevant rules.
'7. The relevant rules in this behalf are rules 5 and 6 of the N.-W. F. P. Government Servants (Efficiency and Discipline) Rule, 1973. Sub-rule (2) of rule 5 empowers the Authorised Officer to decide whether in the light of the facts of the case or the interest of justice an enquiry should be conducted through an Inquiry Officer or Inquiry Committee; and if he so decides, the procedure indicated in rule 6 shall apply. In case an Inquiry Officer or Inquiry Committee is appointed the procedure is more formal than as laid down in sub-rule (3) of rule 5. According to sub-rule (1) of rule 6 the authorised Officer is to frame a charge, communicate it to the accused together with the statement of allegations explaining the charge and of any other relevant circumstances, which are proposed to be taken into consideration; and the accused is then required to put in a written defence within a reasonable ~ time of the service of the charge-sheet upon him and to state at the same time whether he desires to be heard in person. It is clear that at this stage, the explanation required from accused is only a preliminary nature; and if he denied the charge or charges a formal enquiry will follow according to the procedure outlined in sub-rules (2) to (5) of rule 6.
8. When the Inquiry Officer has submitted his report to the authorised Officer, the matter is governed by sub-rule (4) of rule 5, which is in fact a composite rule dealing with both the situations, namely, where an inquiry is held or where it is dispensed with. The sub-rule is in the following terms:- "On receipt of the report of the Inquiry Officer or Inquiry Committee or, where no such Officer or Committee is appointed, on receipt of the explanation of the accused, if any, the authorised Officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty, he shall pass orders accordingly. If it is proposed to impose a major penalty, he shall forward the case to the authority along with the charge and statement of allegations served on the accused, the explanation- of the accused, the finding of the Inquiry Officer or Inquiry Committee, if appointed and his own recommendations regarding the penalty to be imposed. The authority shall pass such orders as it may deem proper."
In case where it is proposed to impose a major penalty as a result of the formal inquiry, the authority according to the rule is required before passing order to take into consideration the following :-
(a) The charge and statement of allegations served on the accused;
(b) the explanation of the accused;
(c) the finding of the Inquiry Officer or Inquiry Committee ; and
(d) the recommendations of the authorised Officer regarding the penalty to be imposed.
Sub-rule (2) of rule 6 provides:- "The Inquiry Officer or the Committee, as the case may be, shall enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessary and the accused shall be entitled to cross-examine the witnesses against him."
Similarly sub-rule (3) of rule 6 provides:- "The Inquiry Officer or the Committee, as -the case may be, shall hear the case from day to day and no adjournment shall be given except for reasons to be recorded in writing. However, every adjournment with reasons, therefore, shall be reported forthwith to the authorized Officer and normally no adjournment shall be for more than a week."
9. Now in the instant case, the charge-sheet along with the statement o allegations as provided under the above-mentioned rule was served on the petitioners at the time of initiation of the formal inquiry on 27-4-76 and the proceedings started some where in August, 1976, by the Inquiry Officer. It is evident from the report as reproduced above that for the first time the inquiry proceedings were fixed for recording of the evidence at Mardan from 3rd to 5th August, but since the Chief Engineer, Public Health Engineer--ing Department had shown his inability to be available the enquiry was adjourned to 19th August, 1976. It is further evident that S. Ajmal Shah petitioner had not attended the mentioned proceedings as, according to the Inquiry Officer, he could not be informed for the reasons that he had proceeded on medical leave. It shows that the statements of the two witnesses; namely, Mir Naeemullah; Chief Engineer; Public Health Engineering Department and Mr. Muhammad Younis, Contractor were recorded in the absence of S. Ajmal Shah .Petitioner.
On that occasion the statement of Gul Mast Khan petitioner and his co-accused, namely, Muhammad Saqil, Sub-Engineer were also recorded. Again it appears that on 10-9-76, all the three accused Officers were present before the Inquiry Officer but the statement of-S. Ajmal Shah was not recorded and instead be was allowed to cross-examine the other accused Gul Mast Khan. S. Ajmal Shah was also shown the statements of the above-mentioned two witnesses recorded in his absence and he was asked to give his view-point on their statements. There is nothing in the report that any opportunity was afforded to him for recalling the witnesses for the purposes of cross- examination. This report further shows that the statement of last witness, namely, Abdus Salam, mate incharge of the work, was recorded on 25-10-76 but the report is silent about the presence of the petitioner. It is thus evident that the enquiry was completed on 25-10-1976 and the report was submitted on 30-10-76. The statement of Gul Mast Khan petitioner was recorded on 19-8-76 and the statement of S. Ajmal Shah was never recorded. The perusal of the impugned order would show that on the basis of the report submitted on 30-10-76, order C with regard to the reduction of the petitioners to the lower posts were passed on 18-6-79 after a period of about three years by the Authority/Authorised Officer,
10. The first point that falls for determination is whether the enquiry was conducted in accordance with the relevant rules or, in the alternative, there had been infringement of the rules having statutory force. As discussed above, the bare reading of the enquiry report would show that the proceeding were conducted in flagrant violation of the principle of natural justice as well as the rules governing such actions. There is no denying the fact that important and crucial witnesses were examined by the Inquiry Office at the back of the petitioners particularly in the case of S. Ajmal Shah, petitioner without affording any opportunity to cross-examine such witnesses despite the fact that such a right of cross-examination has been enshrined in the rules governing the actions. The proceedings when thoroughly examined appear nothing but a mockery of the procedure inasmuch as S. Ajmal Shah when available was only shown the statements of the witnesses examined in his absence for his comments without giving him any opportunity to re-- call the witnesses and to exercise his right of cross-examination of the witnesses who deposed against him.
11. Be that as it may, the whole proceedings were conducted in a novel and strange manner. For instance, the statement of Gul Mast Khan was recorded on 19-8-76 whereas the last witness was examined on 25-10-76. Similarly the statement of Gul Mast Khan was recorded but that of S. Ajmal Shah was not recorded in spite of having attended the proceedings at a later stage as mentioned in the report. Then again we .Come across a novel procedure by allowing S. Ajmal Shah petitioner to cross-examine the other petitioner Gul Mast Khan. The perusal of the report and the relevant inquiry record would show that the Inquiry Officer was either completely ignorant of the relevant rules or in utter disregard of the statutory rules has not cared to hold a continuance inquiry from day to day as enjoined by law. He was to hear the case from day to day and no adjournment could be allowed except for reasons to be recorded in writing and such reasons therefore, were to be reported to the concerned authorities and under no circumstance adjournment could be granted ordinarily for more than a week.
12. While hearing the matter, we examined the relevant record of the proceedings in order to satisfy ourselves whether any reason, for adopting a different procedure is available but to our utter surprise we found that what to say of the recording of any reason, no proper record of the proceedings has been maintained. Since the petitioners were being proceeded against on the allegations which, if proved, called for major penalty and a formal regular departmental inquiry under the relevant rules had been initiated the preparation of a detailed record of the entire proceedings from start to finish was mandatory in the given circumstances.
13, Adverting to the discussion about the charges in the report, the' bare reading of this report would show that neither the evidence was discussed nor cogent reasons for finding the petitioners as guilty of the charges framed have been given. It appears to us that in the instant case, the Inquiry Officer being completely ignorant of the requirement of such proceedings was also not conscious of the observance of the relevant rules and has thus completely by passed the relevant provisions of the Efficiency and Discipline Rules. Witnesses have not been examined in the presence of the petitioners in support of the allegations, so as to afford opportunity to cross- examination of the witnesses and the inquiry having been conducted in the slip-shod manner, at his own convenience irrespective of the considera--tion whether the petitioner was present. Or absent, whole exercise appears to be a violation of the rules, which recognised the entitlement of the accused of cross-examination of witnesses, and contrary to the principle of natural justice.
14. As a result of the above discussion and the proved position that the proceedings were conducted in utter violation of the provisions contained in rules, we have no hesitation in saying that the enquiry was not conducted in accordance with the rules and on that score alone the inquiry proceedings culminating in the impugned order should be quashed.
15. There is, however, yet another aspect of the matter which also leads to the same conclusion. It is abundantly clear from the record that the inquiry report was submitted on 30-10-76 and the impugned order based on the report was passed on 18-6-79. It is thus evident that after a period of three years of the completion of the inquiry, the impugned orders was passed and that too without the issuance of any show-cause notice to the petitioners. As has already been stated if it is proposed to impose a major penalty as a result of the formal enquiry the authorised Officer is required to forward the case to the authority along with the charge and statement of allegations served on the accused, the explanation of the accused, the finding of the Inquiry Officer or Inquiry Committee if appointed and his own recommendations regarding the penalty to be imposed as provided for by sub-rule (4) of rule 5 of the Efficiency and Discipline Rules, 1973.
16. It would not be out of place to refer to a recent authority reported as S. Mir Muhammad v. N: W. F.
P. Government (P L D1981 SC 176), wherein their Lordships had an occasion to examine the application of the mentioned sub-rule in a similar circumstance. Their Lordships observed:- "The explanation of the accused referred to in sub-rule (4) of rule 5 cannot mean the preliminary denial or admission of the accused official in terms of clause (b) of sub-rule (1) of rule 6; as at that time all the circumstances and evidence to be marshalled against him during the course of the inquiry are not within his knowledge; and be would acquire knowledge thereof only when the evidence has been led and the Inquiry Officer or Committee has formulated its findings. A proper explanation of the accused Officer in such a case can only be furnished if he is supplied a copy of the inquiry report so as to offer his comments in regard to the findings recorded therein, and the action proposed to be taken against him on their basis.
In reaching this conclusion, we are fortified in our view by the fact that in sub-rule (3), which embodies the shorter procedure for dealing with disciplinary matters it is clearly contemplated that the authorised Officer shall inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and shall give him a reasonable opportunity to showing cause against that action. There seems to be no logical reason for denying the accused Officer a similar opportunity in a case where a formal inquiry is held in terms of rule 6 read with sub-rule (2) of rule
5. It appears to be the salutary requirement of rule 5 that the accused Officer must be given a reasonable opportunity of showing cause against the action proposed to be taken against him. If the shorter procedure is followed and inquiry is dispensed with then this stage is reached when the grounds of the, proposed action and the allegations are conveyed to him, but this stage is reached in the case of a formal inquiry only after the inquiry has been completed and the authorised Officer has formulated his views in the light of the inquiry report. It seems to us, therefore, that on a proper construction of rules 5 and 6 read together, it is a statutory requirement that if a formal inquiry is held, then the authorised Officer should, after he has tentatively decided upon the action he proposes to recommend to the Authority, give an opportu--nity to the accused Officer to offer his explanation against the proposed action in the light of the findings of the Inquiry Officer or Inquiry Committee, before sending his recommendations to the Authority. This would, of course, necessitate that a copy of the inquiry report be furnished to the accused Officer at this stage, and he should be apprised of the action proposed against him."
In this case copies of the report were not supplied to the petitioner by the authorised Officer and they were not allowed any opportunity to submit their explanations with regard to the finding of the Inquiry Officer which was adverse to them nor were they apprised of the action proposed to be recommended against them. This being essential in order to satisfy the requirements of the rules, the failure to do so would invalidate the recom--mendations of the authorised Officer and the ultimate order passed on their basis by the authority against the petitioner.
17. The impugned order further suffers from very serious defect inasmuch as the order does not disclose or specify the time as to how long the petitioners will remain in the reduced ranks in their service. Our attention in this connection was invited to the provisions contained in rule 29 of the'
Fundamental Rules which reads:- "If a Government servant is, on account of misconduct or inefficiency, reduced to a lower grade or post, or to a lower stage in his time scale, the authority ordering such reduction shall state the period for which it shall be effective and whether, on restoration, it shall operate to postpone future increments and if so to what extent."
Our attention was also invited to the impugned order concerning S. Ajmal Shah petitioner. It is evident that this petitioner was directly selected as Assistant Engineer, and, therefore, he could not be demoted to the rank of Sub-Engineer.
18. The upshot of the above discussion, therefore, is that the inquiry proceedings as well as the impugned order are wholly unsustainable being in clear violation of the statutory provision contained in the relevant rules. The inquiry proceedings which form the basis of the impugned order are, therefore, quashed with the result that the order automatically collapses and become non-existent. Both the petitions are accordingly allowed with no order as to costs.