Muhammad Mushtaq Jadoon, Member. The appellant felt aggrieved by impugned order of respondent dated 31.03.2017, whereby major penalty of reduction to a lower post from Assistant Private Secretary (BPS-16) to Stenotypist (BPS-14), for a period of two years, was imposed under E&D Rules, 1973.The appellant preferred departmental appeal on 11.04.2017, which was rejected, vide impugned order dated 19.05.2017. Hence this appeal. The appellate also prayed for suspension of impugned order till final disposal of appeal. Record indicates that no status quo was granted.
2. Learned Counsel for the appellant argued that the whole inquiry proceedings are based on mere, surmises, conjectures and hearsay evidence. Verbal evidence of Complainant and Naib Qasid has been admitted against documentary evidence adduced by the appellant. The major Complaint against the appellant was taking of Rs. 140000/- as bribe from the Complainant namely Abdul Qayum. Abdul Qayum has remained a civil servant and was an interested witness-cum complainant, as the appellant remained his tenant for a brief period. The only proof of bribery, the most serious allegation, against the appellant was taking bribe of Rs. 140000/- from one Abdul Qayum and only piece of evidence produced was a an unsigned note "received Rs. 140000/-" on the backside of visiting card of the appellant. Even Inquiry officer Muhammad Mazaffar Khan Deputy Secretary (DU) IPC, in his report dated 08.06.2016, concluded that as regards to alleged bribe the applicant/complainant could not produce any evidence. The same fact was conveyed to the complainant by the Section officer IPC through a letter dated 17.04.2017.
3. Learned AAG and the Departmental Representatives relied on Inquiry report and Show-Cause Notice. The inquiry was conducted as per E&D Rules, 1973 and the appellant was afforded full opportunity of defending himself. The major penalty was awarded as per E&D rules and fully justified in view of serious nature of allegations, specially impersonation and damaging repute of institution.
4. Appellant joined service as Steno- typist in 2007 and promoted to Grade-15, as Stenographer, in 2010. The said post was upgraded as Assistant Private Secretary on 05-07-2013.
5. Record indicates that two inquiries were initiated, first by Manzoor Ahmed, Section Officer, later on Muhammad Mazaffar Khan Deputy Secretary (Dev) was appointed Inquiry Officer vide letter dated 23.05.2016.
6. The inquiry report, dated 08.06.2016, submitted by Deputy Secretary is not even signed, which indicates the ignorance of procedure at such senior level. As per rules a memo. of Charge Sheet is forwarded to the Inquiry Officer who serves it upon the accused official, seek his response, record statement of witnesses; adduce evidence, give an opportunity to the accused to cross-examine the witnesses. No such procedure was followed. Based on verbal statements of complainant and witnesses and the accused parawise comments the inquiry report was submitted to. Authorized Officer, who A without applying his mind and just acting as a forwarding agency drafted a Show-Cause Notice and served it on the appellant. Statement of complainant and witnesses not available in inquiry file.
7. Inquiry Report indicates that seven charges were framed and summary of findings as under:-- a) Call Data Recorder was not produced/ and as per report such data can be obtained by Ministry of Interior. b) Complainant could not produce any evidence and proof 1 of bribery of Rs. 140000/- c) One witness certified that the complainant and his wife paid visit to IPC office. d) As to allegation of visiting as PS the accused stated that he was designated on officiating charge basis and performing duties as such. e) Complainant stated that all conversation about job, bribery took place on phone and record can only be traced by FIA and police.
8. Based on above findings the inquiry officer recommended as under: a) Initiation of disciplinary proceedings. b) Forensic analysis of handwriting may be referred to FIA.
9. Ignorance of procedure under E&D Rules is visible from the "Charge Sheet" signed by Amir Muhammad Khan Niazi, Deputy Secretary (Admn) IPC in the capacity of (Authorized Officer) upon the accused (Appellant). It would be pertinent to recap the procedure laid down under E&D Rules, 1973:
(a) As per E&D Rules, 1973 Rules, grounds for penalty are inefficiency, misconduct and corruption plus style of living beyond known means of income or persistent reputation of being corrupt.
(b) Inquiry procedure as laid down in Rule-5, envisages that the authority shall appoint an authorized officer.
(c) Authorized Officer, based on the facts, shall decide whether to issue a Show-Cause. If he decides to issue Show-Cause Notice and on receipt of reply, a Authorized Officer is competent to impose minor penalty. If in the opinion of Authorized Officer minor penalty is justified, he shall pass an order accordingly. While in case of major penalty, the authorized officer shall forward the case, along with his recommendations, to the authority for imposing major penalty under Rule 5 (1)(i to iv).
(d) In case the authorized officer decides to inquire into the facts of the case through inquiry officer or inquiry Committee as the case may be, he shall nominate and forward the case with memo of allegations to the inquiry officer or the inquiry committee, as the case may be.
(e) The inquiry Officer or the Inquiry Committee shall followed the procedure as laid down in Section 6 of E&D Rules, 1973.
(f) The inquiry officer or the inquiry committee, as per Rule 6(6), shall submit his or its findings and the grounds there of to the Authorized Officer. On receipt of findings of the authorized officer shall make an opinion that minor penalty, based on findings is required he shall pass the orders accordingly. While in case of major penalty the authorized officer shall forward the case to the authority along with his recommendations and reasons.
10. In this case of appellant an inquiry officer was appointed. But the authorized officer, vide Letter No F-1038/2007/Admn.II dated 31.12.2015 addressed a letter in the nature of "Show-Cause", with the labelling of "charge sheet" to the appellant levelling allegations and directing the appellant to respond directly to the inquiry officer. A novel procedure indeed. Appellant filed parawise comments to the Inquiry Officer and rebutted all the allegations contained in Inquiry Memo. In Inquiry No. 1 conducted by section officer the findings of inquiry officer were: i) The person, impersonating as As (IPC) could not be traced. ii) Bribe allegations not proved. iii) Defiling of the office decorum proved on the basis of the evidence of two Naib Qasid on two grounds.
(a) Complainant (Abdul Qayum) and his wife visited the office for job.
(b) Complainant and his son visited the office during duty hours
(c) Appellant is an APS but his visiting card shows him as PS.
11. Second Show-Cause Notice issued by DS (Adman) Miss Saima Ashraf, dated 02.11.2016 indicates that inquiry officer was changed as Mr. Manzoor Ahmed, Section Officer regretted to conduct inquiry as he was busy in connection with PM Youth Training Program. But parawise comments offered by the respondents, dated 07.07.2017 gives findings of inquiry I, as explained vide para 10. It seems that de novo inquiry was ordered without citing reasons and in violation of maxim" nobody should be vexed twice for the same cause".
12. As per provisions of E&D Rules 1973, job of the inquiry officer is to establish guilt, or otherwise, of an accused person. In this case report of inquiry officer is unsigned and with a covering letter dated 08.06.2015. Following two recommendations were made by the Inquiry Officer: a) Initiation of disciplinary proceedings b) Referral to FIA for forensic analysis of writings of accused. Little did the inquiry officer knew that he was appointed inquiry officer for disciplinary proceedings as per E&D Rules, 1973. Otherwise he could not have called the appellant as "accused" in his recommendation part of inquiry report.
Provisions and spirit of E&D Rules does not envisage recommendations of minor or major penalty or any other recommendations but, based on memo of allegations, proof of guilt, or otherwise, of accused.
Four findings of inquiry officer hardly establish any fact against the appellate. The findings are summarized as under.
(a) Applicant and his wife visited appellant department to give confidence to the applicant/complainant;
(b) Using PS card, applicant confirmed that he was performing as PS at that time;
(c) The bribery allegations of Rs. 140000/- not pored unless handwriting confirmed;
(d) All conversation place on mobile and call data could not be not be obtained;
(e) Impersonation as AS (IPC) could not be traced.
Analysis part of Inquiry report is even more interesting to the level of bias and prejudice that the appellant, while acting proactively, provided copies of the entry register which does not reflect entry of applicant/complainant on the dates of 12.05.2015 and 18.05.2015. Thus defence of accused creates suspicion. So the fundamental rights of appellant to adduce evidence in his defence ridiculed without legal or ethical grounds.
13. And based on cited inquiry report Deputy Secretary Admin, (Saima Ashraf) issued yet another "Charge Sheet". Very title is violative of provisions and procedure of E&D Rules, 1973. Despite the fact that the inquiry officer clearly stated that allegation of Rs. 140000/- against the accused (Present appellant) has not been proved unless alleged handwriting, on the back side of accused visiting card, is proved. Authorized Officer has repeated the same in the charge sheet dated 02.11.2016.
14. Competent Authority imposed major penalty of reduction to a lower post (BS-11) for a period of two years for misconduct, on 31.03.2017. E&D Rules set elaborate procedure in case of inquiry, role of inquiry Officer, authorized officer and the authority. Proceedings under E&D Rules 1973, are of judicial nature (Section 7) and covered under Civil Procedure Code, 1908 and Sections 193 and 228 of the Pakistan Penal Code (1860). Thus any erroneous and irregular process vitiate the whole proceedings. The respondents have been constantly and continuously improving the allegations as the appellant rebutted all the allegations with documentary evidence. Authorized officer, on receipt of inquiry report, must analyze the findings of inquiry officer and make recommendations for major penalty to the authority. In this case after receipt of inquiry report another Show-Cause was issued and based on parawise response of appellant major penalty was imposed. It tantamounts to miscarriage of justice. In the impugned order only three grounds were stated, summarized as under:-
(i) Called a citizen Mr. Abdul Qayum and his wife to the office of AS (IPC) the pretext of appointment of his son and training of his wife in making coffee through Mr. Zafar Mehmood, Niab Qasid.
(ii) The visit of common citizen and his son confirmed by Mr. Muhammad Aslam, N. Q. in the office of AS (IPC);
(iii) Use of visiting card of PS, not being PS.
15. The appellant provided entry register data to rebut the allegation of visit of complainant and his son. Otherwise also IPC offices, including AS (IPC), is a public place and not a restricted or out of bound area. The applicant produced documentary evidence that he was appointed Private Secretary (BS-17) on current charge basis on 02.08.2013 for a period of three months, again on 11.10.2013 and 29.01.2014. Department issued an official card as well with the designation of Private Secretary (BS-17). In the whole inquiry proceedings lot of flimsy, hearsay information was placed on file but hardly substantive evidence Complainant, Mr. Abdul Qayum on whose complaint, the inquiry was initiated is not a neutral person. Appellate had filed a damages suit against claim in the Court of District Judge, Islamabad.
16. In the circumstance due to procedural illegalities, and lack of substantive evidence appeal is accepted, impugned order dated 31.07.2017, whereby major penalty, of reduction to lower post from Assistant Private Secretary (BS-16) to Stenotypist (BS-14), was imposed, is set aside. Appellant shall be entitled to financial benefits, salary and allowances of BS-16 for the reduction to lower post period of two years.
17. No order as to costs. Parties be informed.