Rizwan Ali Dodani, Member .--By means of the instant appeal, the appellant above-named, has impugned the order dated 01.10.2019 whereby a major penalty has been imposed against him in terms of reduction to lower post.
The appellant also impugned the appellate order dated 22.11.2019 whereby his departmental appeal dated 04.11.2019 has been rejected.
2.Facts of the case as set out in the memo of appeal are that the appellant was served with a show cause notice dated 12.04.2019 on the charges of manipulation/interpolation in the attested photocopies of Forms-45 pertaining to the Constituency NA-239, Korangi Karachi-I. It was, inter-alia alleged that in the light of a fact finding report dated 18.9.2018 made by the inquiry officer Aleem Shahab, (Director Finance), the appellant has been found involved in changing, modifying, interpolating and tampering with the figures of the vote in the original forms-45 of Polling Stations No. 79, 219 and 220 of the Constituency NA-239, Korangi Karachi-I in connivance with Mr. Sohail Mansoor Khawaja, the runner up candidate with the intention to induce and mislead the Hon'ble Commission and to give him advantage over Mr. Muhammad Akram, Returned Candidate. The Authorized Officer stated in the show cause notice that from the consideration of the inquiry report, he has been arrived at a provisional conclusion that the appellant is responsible and guilty of misconduct and there is sufficient material/substantial evidence to impose penalty upon the appellant and, therefore, the Authorized Officer, by means of this show cause notice, without opting to a regular inquiry , called upon the appellant in terms of Rule-5(iii)(a) & (b) read with Rule-4 of the Government Servants (Efficiency & Discipline) Rules, 1973 to show cause within seven days of receipt of the show cause notice. The appellant duly replied the show cause notice on dated 12.04.2019 whereby he has denied all the allegations on various grounds. Thereafter , the impugned order imposing penalty has been issued vide dated 01.10.2019; where-against departmental appeal dated 04.11.2019 was preferred by the appellant that has been rejected by the competent authority vide order dated 22.1 1.2019; hence, this appeal.
3. The learned counsel for the appellant argued that the appellant was charge shee ted by the Authorized Officer on the basis of facts finding inquiry as he dispensed with the regular inquiry . He further contended that it has been mentioned in the fact finding inquiry report that nothing has been found that could directly involve the appellant with the charges, however , an inference can be drawn due to his stressed behaviour while recording statement before the facts finding officer and nature of his job. Learned counsel argued that the inquiry officer has charged the appellant for manipulation for dated 10.09.2018 as shown in the inquiry report while according to the statement of Ch. Nadeem Qasim Director Election that all the forms-45 of the subject constituency was tallied with form-48 in respect of different Polling Stations of the said Constituency without finding any inconsistency on 13.09.2018 which shows that original forms 45 was correct on 13.09.2018 or before, that aspect confirms that the charges for dated 10.09.2018 with regard to appellant are false and without any justification. He lastly argued that the imposition of penalty on surmises and conjectures are not sustainable.
4. Conversely , the learned counsel for the respondents contended that the impugned penalty has been imposed upon the appellant after having adhered to all the codal formalities and the involvement was sufficiently maintained in the fact finding inquiry , therefore, the appeal is liable to be dismissed.
5. Heard and record perused minutely . It has been noted at the very outset from the record that the Authorized Officer has invoked the provision of Rule-5(iii)(a) & (b) read with Rule-4 of the Government Servants, (Efficiency & Discipline) Rules, 1973 to dispense with the regular inquiry and after having found fact finding inquiry report as a conclusive and sufficient material. We have gone through the fact finding inquiry and it was found that the inquiry officer has fixed the responsibility upon the appellant on an inference that was drawn by him on the point that after having recorded the statement of all the concerned officers/ persons of both the Centres i.e. Karachi and Islamabad, he could not find any one directly responsible for the alleged offence in question nor any evidence has come on record against any one, however , from the statement of appellant and his position, as the appellant is the only person in the whole process, who was found during the course of hearing very stressed, though he did not plead guilty but the justification as to the incident given by him in the last paragraph of statement shows that he is involved and responsible for this act. So such sort of conclusion as to fixing of responsibility with regard to the offence against the appellant in his report in our considered opinion cannot be deemed to be a conclusive and sufficient material. As such, the act of the authorized officer to dispense with the regular inquiry on the basis of such weak material was unwarranted and a colourful exercise of powers. It has further been observed that before passing the impugned order for impositio n of penalty , no show cause notice was given by the competent authority to the appellant nor personal hearing has been afforded to the appellant neither by the competent authority nor by the appellate authority before rejecting departmental appeal of the appellant which is not sustainable under the 'law as same is hit by the Canon of audi alteram parterre inasmuch as no one should be condemned unheard [National Industrial Relations Commission, Full Bench at Karachi] and that in the instant matter , where a major penalty was imposed, departure from this mandatory provision of law shall cause serious prejudice to the appellant.
6. In this view of the matter , we are constrained to set-aside the impugned orders while allowing the appeal, however , the respondents are at liberty to initiate the denovo inquiry against the appellant strictly in accordance with law and within a period of three months, if so undertaken. No order as to costs.