Tauqeer Ahmed Khan, Member. By way of this appeal under Section 4 of the Service Tribunals Act, 1973, appellant assails the order dated 28.01.2021 through which a major penalty of compulsory retirement was imposed upon her. Her departmental appeal dated 26.02.2021, preferred against the said punishment, has remained un-responded.
2. Brief facts of the case, as enumerated in the memo of appeal, are that the appellant was appointed as Election Officer (BPS-16) in June 2004, where after, she was promoted as District Election Commissioner (BPS-18) on 21.11.2007.
While she was performing her duties as District Election Commissioner, Karachi (East), a charge sheet dated 10.07.2017 along with statement of allegations, was served upon her, containing the following allegations:- "WHEREAS, you; Mrs. Tabinda Khalique, District Election Commissioner, Karachi (East) have been found accused on account of misuse of Power, Nepotism & Corruption in appointment of non- gazetted staff during the posting as Deputy Director (Estt.) in the office of PEC, Sindh and in field offices and liable to be proceeded under the Government Servants (Efficiency & Discipline) Rules, 1973.
WHEREAS, in response to the PEC, Sindh direction to submit the comments regarding the irregular appointments in the office of PEC Sindh and in field offices, you submitted that all the allegations leveled against you are false and baseless and no such practice was carried out.
WHEREAS, you have also shown negligence and recklessness during the appointment on nepotism basis and abuse of authority by maneuvering the appointments for your brother, sister and sister in law in your official capacity as Deputy Director (Estt), while posted in the office of PEC, Sindh and also being a member of selection board.
WHEREAS, being a responsible officer and having a meaningful experience, you are supposed to maintain the high standards in disposing of official business and, to maintain the proper liaison but you have not only failed in the spectrum of efficient working and also your undesirable act falls adversely in alibi.
AND WHEREAS, prima facie from the facts of the matter it appears that you are responsible and guilty of misconduct and substantial evidence is available to arrive at conclusion that disciplinary action is liable to be taken against you.
NOW, THEREFORE, you, Mrs. Tabinda Khalique, District Election Commissioner, Karachi (East) is proceeded against for misconduct in accordance with Government Servants (Efficiency and Discipline) Rules, 1973 in the capacity of Deputy Director (Estt.) in the office of PEC, Sindh. Hence, to this Statement of Allegations alongwith Charge Sheet, if you have any defence, oral or documentary, may submit to the Inquiry Officer within stipulated period otherwise the Inquiry Officer will submit its report to the Competent Authority for necessary action under the law, assuming that you have nothing to say in your defence.
It is stated by the appellant in her memo of appeal, that the charge sheet was duly replied by her, denying & refuting the charges, leveled against her in the charge sheet/statement of allegations.
On receipt of such reply, it was stated, that Mr. Shamshad Khan, was appointed as inquiry officer to conduct inquiry against her and to submit his report to the authorized officer.
Without conducting a proper inquiry in accordance with law, without providing chance of defence to the appellant, chance of cross examination to the witnesses and to produce her witnesses in defence, inquiry report was submitted, whereafter, a show cause notice was served upon her, without supply of report of inquiry officer, even then it was replied satisfactorily.
Consequent upon receipt of the inquiry report, a major penalty of 'reduction to lower post/scale of Election Officer (BPS-17) with effect from 05.12.2018' was imposed upon the appellant, vide notification dated 13.12.2018. After adopting the procedure, provided under the law, appellant approached this Tribunal in appeal No. 3(K)CS/2019. Notice thereof was issued to the respondents, who filed their comments and after hearing the parties, vide judgment dated 11.03.2020, this Tribunal set-aside the impugned order, directing the respondents to hold denovo proceedings, which should be completed within four months.
3. A charge sheet, thereafter, was issued to her on 16.06.2020 alongwith statement of allegations, containing the following: "WHEREAS, you Mrs. Tabinda Khalique, District Election Commissioner, while holding the post of Deputy Director (Establishment) in the office of the Provincial Election Commissioner, Sindh and in the field offices and also as a member of the Departmental Selection Board for the recruitment and selection of non-gazetted staff, with Negligent and reckless behavior and while exercising hepotism, favouritism and committing corruption, played a pivotal and important role in recommending and appointing the following close relatives of your family i.e. your sister, brother and sister-in-law against the posts of Senior Personal Assistant and Senior Assistants:-
1. Ms. Farhat-ul-Umraat, Senior Personal Assistant (BPS-16) [Sister-in-law].
2. Mr. Kiran Khalique, Senior Assistant (BPS-15) (Brother).
3. Miss. Daminda Khalique, Senior Assistant (BPS- 15) [Sister].
WHEREAS, the findings of the Special Audit Report of the Auditor General of Pakistan dated 08.04.2016, disclosed and exposed the factum of nepotism, favoritism and massive irregularities in the process of subject recruitment and affirmed this allegation that nepotism and favouritism was also granted by you to the following other candidates including your above close relatives:- Muhammad Selman, Senior Personal Assistant (BPS-16)
Allah Bux, Senior Assistant (BPS-15), Syed Zameer Haider, Senior Assistant (BPS- 15)
Syed Muhammad Razi, Senior Assistant (BPS- 15)
Syed Haris Mehmood, Senior Assistant (BPS- 15)
Syed Muneeb Ali, Senior Assistant (BPS-15)
Syed Anas Mujahid, Junior Personal Assistant (BPS-14)
Shoaib Iftikhar, Junior Personal Assistant (BPS-14)
Waqas Ahmed, Junior Personal Assistant (BPS-14)
Asadulah, Junior Personal Assistant (BPS-14)
Sharjeel Saleem, Junior Personal Assistant (BPS-14)
Mumtaz Ali, Junior Assistant (BPS-11)
Muhammad Asif, Junior Assistant (BPS-11)
Shoukat Ali, Junior Assistant (BPS-11)
The Report of Special Audit was concluded with the following recommendations: "On the basis of audit findings, it is recommended that though codal formalities were completed for recruitment i.e. advertisement, educational requirements, age limit, etc, but nepotism/ favoritism reflected as pointed out in the succeeding paragraphs".
WHEREAS, in order to re-verify the veracity and authenticity of the above report of the Special Audit, the ECP has got conducted the Fact Finding Inquiry through Mr. Muhammad Rasheed Bhatti, then Regional Election Commissioner, in the office of Sindh. The said Inquiry Officer conducted the written and shorthand/typing tests of officials at serial numbers 1, 3, and 9 to 13 above, while confirming the observations of special audit report, concluded and recommended in paragraphs 8, 9 and 14 of the report as under: "8. Besides, Ms. Tabinda Khalique, Deputy Director was Dealing Officer of such cases at that time and office Record show that her role apparently is also questionable in terms of getting accommodated her three relatives in service being member of Selection lard as she surely did favour to them. Resultantly, the then PEC get the needful done for her at his own sweet will by accommodating his own relatives and obliging other officers too, which indicates that more potential candidates have apparently been ignored who must had have better educational qualifications and better marks if the obliged ones were not given undue favour"
9. The Selection Board was also not constituted in accordance with ECP's notification as instead of notified board it was comprised upon JPEC as Chairman, Director MIS (IT) and DD (Estt) as members'.
The undersigned further recommends that necessary action under Government Servants (Efficiency & Discipline). Rules, 1973 may be initiated against Ms. Tabinda Khalique DD (Estt) now DEC Karachi account of misuse of her assignments relating to recruitment process etc and getting accommodated her three relatives in service extending undue favour to them, misleading the PEC office in constituting Selection Board other than those officers which were notified by ECP etc..."
WHEREAS, in the light of above sufficient material and evidence, the ECP got started disciplinary proceedings it required under the E&D Rules and appointed Mr. Shamshad Khan as Inquiry Officer.
The said Inquiry Officer vide his inquiry Report dated 21.11.2017, give his findings as under "2. In view of the aforementioned findings of the case, I find that Mrs. Tabinda Khalique District Election Commissioner, Karachi East (The Deputy Director-Establishment) accused officer is guilty of inefficiency and misconduct under the Govt. (Efficiency and Discipline) Rules, 1973 and punishable under the said.
WHEREAS, being an officer and having a meaningful experience, you were supposed to maintain the high standard in disposing of official business, to maintain the proper liaison and make the process transparent. However, you failed to perform your official duties with due diligence and sincerity as per the mandate of law and per the obligation of your post. The process of the above recruitments was spoiled by your unwarranted, inefficient and neglect behavior and action which is tantamount to misconduct liable to the disciplinary action under the E&D Rules.
AND WHEREAS, from all the above facts and evidences, it is manifestly clear that you while holding the post of Deputy Director (Establishment) as well as holding the membership of DSC, misused your official authority/ duty by exercising nepotism and favoritism and corruption in recommending and appointing the non-gazetted staff including your close relatives and also mislead the PEC office in constitution of DSB, also showed negligent and unwarranted behavior and failed to discharge your obligation which is not only benchmark towards discharge of official duties but also violates the (1) merits and deprives the eligible and deserving candidates from employment, (2) the Election Commission (Officers and Servant) Rules, 1989 and (3) the provisions of the Constitution of Islamic Republic of Pakistan guaranteeing the fundamental rights of individual and discouraging the inequality and discrimination. Your actions/conduct prime facie constitute misconduct which is liable to the disciplinary action under the E&D Rules. From the facts and evidence, it appears that you are responsible" and guilty of misconduct and substantial evidence is available to reach the conclusion that disciplinary action is liable to be taken against you.
NOW THEREFORE, you Mrs. Tabinda Khalique, District Election Commissioner, Rahim Yar Khan, is proceeded against for misconduct on the abovementioned grounds/allegations in accordance with the E&D Rules. You are directed to put in your written defence/reply to this statement as well as to the Charge Sheet within the stipulated time to the nominated Inquiry Officer. If your written reply is not received within the stipulated time it shall be presumed that you have no defence to offer and resultantly the law shall take its own course.
Also intimate whether you desire to be heard in person. End: as above.
Sd/- (Dr. Akhtar Nazir)
Secretary/Authorized Officer Mrs. Tabinda khalique District Election Commissioner Rahim Yar Khan."
On receipt of the above charge sheet/statement of allegations, vide her application dated 25.06.2020, addressed to the Chairman Inquiry Committee, she requested for certain documents, but a notice dated 06.07.2020 was served upon her, directing her to appear on 16.07.2020 on which date inquiry was proposed to be held and vide letter dated 13.08,2020, some documents were provided to her instead of all as requested by her in application dated 25.06.2020, as such, according to her, her right of self defence has been prejudiced. Again, vide her application dated 13.07.2020, she requested for certain documents, but the same were also not provided to her.
Having no option left, she, finally tendered her reply to the charge sheet clearly mentioning that despite requests and non-supplying of requested documents, she is submitting her reply, reiterating that despite her request made for supply of documents, which were essential and necessary for preparation of her defence reply, same were not supplied to her, eve then she submitted her reply, giving detailed reply of each pare/allegations and explaining her position, denying the allegations; further stating that being member of the Departmental Selection Board (DSB), she has no power to recommend anyone for appointment as she was not the Chairman of the said Board and only a member. It was further stated by her in reply to pars-3 of the statement of allegations that the entire process of 'special audit', fact finding inquiry and the disciplinary proceeding against her were based on 'anonymous complaint' and the authenticity of such anonymous complaint should have been considered by the special audit team. It was the rule that anonymous complaint/ communications must invariably be destroyed by their recipients. No action of any kind is to be taken on them and no notice of any kind is to be taken of their contents.
If a communication is found to be pseudonymous, it (and any previous note etc connected with it) must similarly be destroyed.
It was further stated that, so-called inquiry was then conducted against her, where norms of natural justice have not been followed, rather violated as no witness was examined and proper inquiry, as required under the law, was not conducted against her and she was not allowed to cross examine any witness appearing against her nor was she allowed to produce her witnesses in defence. DR was asked to cross examine the appellant, which is against the spirit of law/rule; hence, such an inquiry, it was stated, is nothing but farce and the punishment imposed thereupon is nullity in the eyes of law and liable to be set aside. Show cause notice dated 26.11.2020 was served upon her alongwith inquiry report, to which again, she submitted her detailed reply, explaining her position and denying the allegations. Based on such recommendations/conclusion of the inquiry committee, the impugned notification dated 28.01.2021 was issued imposing major penalty of compulsory retirement' upon the appellant. The appellant after preferring departmental appeal on 26.02.2021, approached this Tribunal, as the same remained un-responded.
4. In its comments, the respondents have stated that Election Commission is an autonomous, constitutional and judicial body, which has been mandated with various jurisdiction and authorities under the law and the Constitution; it has to ensure and perform the sacred duty to organize, conduct the elections and to make such arrangements as are necessary to ensure that elections are conducted honestly, fairly, justly and in accordance with law. To achieve the said goal, each and every official/ officer is charged with obligation and responsibilities and they have to make sure their commitments towards the said goal. The appellant, against whom, serious charges have been established in de-novo proceedings of inquiry, is not entitled to remain in the establishment as a senior official (to whom any important duty could be assigned) and does -not deserve any leniency or concession, therefore, the appeal merits dismissal.
It was stated that various written, oral, telephonic complaints were received by the respondents, questioning the whole process of appointment, its transparency, legality and fairness. It was reported to be result of misuse of power, favoritism and nepotism. The crux of these complaints was that non-deserving have been appointed in the ECP. Serious notice of the issue was taken by the concerned authority and it was desired to conduct a special audit of the whole process from the office of Auditor General of Pakistan, without any bias or prejudice to anyone including the appellant, just to ensure the fairness and transparency in the process. After the report, charge sheet was issued to the appellant with the statement of allegations, which charge sheet contains true allegations. The appellant replied the charge sheet appointment of inquiry officer, conduct of inquiry and submission of report has not been denied. It was further stated that major penalty of reduction to lower post/scale of Election Officer (BPS-17) with effect from 05.12.2018 vide notification dated 13.12.2018 was imposed upon the appellant. Filing of appeal No. 03(K)CS/2019 by the appellant and the decision of this Tribunal dated 11.03.2020 has also not been denied.
A charge sheet dated 16.06.2020 was served upon the appellant containing allegations which were true in nature and has surfaced through the material available and collected by that time. It was further stated that the appellant was in possession of some of the relevant documents and she was provided with each and every document relevant and required by her. She was afforded full opportunity to defend herself. Not only the rules & regulations have been complied with but the principles of natural justice, equity and fair play have also been adhered to. No prejudice whatsoever has been caused to the appellant. She has put her complete defence and defended the charges against her with full vehemence in the proceedings of denovo inquiry. She was supplied with each and every documents as required.
The penalty, subject matter of this appeal is based upon the de-novo inquiry, statements recorded during the inquiry and the documentary evidence, therefore, questioning the veracity of complaints is unsustainable. The appellant could not rebut the veracity of allegation throughout the proceedings and even in her personal hearing before the Chief Election Commissioner, she remained failed to defend herself, rather confessed her guilt and begged for mercy as mentioned in speaking order dated 23.06.2021. She concealed facts from DSB and her authorities and did not inform them as to her close relatives are also in the short listed candidates. Instead of separating herself from recruitment process, she opted to remain active rather controlling member of whole recruitment process being DD (Estt). She remained custodian of all the record including applications, question papers, answer sheets etc and it is established on record that she gave undue favour to her own relatives and those who are relatives of other officials/officers of ECP. The inquiry committee conducted the inquiry in accordance with law and its mandate. Besides the relevant rules, the principles of natural justice, equity and fair play were also observed by the committee. It was the mandate of inquiry committee to inquire & examine whole recruitment process which also involves checking validity/legitimacy of constitution of DSB. The whole process of recruitment was found illegal and she has been found guilty in de-novo proceedings. The statement was made by her independently and voluntarily as DW-1 before the members of inquiry committee. Her statement was correctly recorded without any omission and commission; each page of the statement was signed by the appellant as a token of its correctness. At the end of the Statement dated 19.07.2020, she gave a certificate "read, understood and affirmed correct my own statement". Each page of cross examination was also signed by her in token of its correctness. It was stated that after due process of law and principle of natural justice, major penalty of compulsory retirement was imposed upon the appellant vide notification dated 28.01.2021. She filed her appeal, which was treated as review application dated 26.02.2021 in the interest of justice, equity and fair play, she was also afforded opportunity of personal hearing, which was availed by her on 22.04.2021. After due consideration of every material placed on record, her review application and the stance taken during the personal hearing and various admissions made by her, the review dated 26.02.2021 has been rejected upon its own merits.
5. At length arguments were heard from both sides and with the able assistance of both the learned counsel, perused the entire record including the citations cited at the bar.
6. The learned counsel for the respondent, at the very out-set raised the point with regard to jurisdiction of this Tribunal, appellant, being not a civil servant. This point was also raised in the appeal Nos. 34(K) CS/2021 & others filed by Asadullah & others.-vs.-Election Commission and the same was decided in favour of the appellants therein, after relying on the judgment of the Apex Court in the case of Mst. Nasreen Pervez reported in 2009 SCMR 329. The citation/observations, for the sake of convenience, is reproduced as under: "5.... Obviously the respondent whose terms and conditions were determinable by the Federal Legislature under Article 221 of the Constitution and was governed by statutory rules had to be considered .a civil servant in terms of the aforesaid judgment........
7. We are conscious of certain judgments of this Court pertaining to employees of superior Courts i.e. Government of the Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others PLD 1993 SC 375 and Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad 1997 SCMR 141 wherein it was held that Court employees were not civil servants and amenable to the jurisdiction of Service Tribunals. It is evident that their Lordships held so on the basis of 'Article 208 of the Constitution holding that the Parliament had no role in regulating the terms and conditions of service of such employees. The principle lad down in the above judgments cannot be applied to the instant case because of Article 221, like Article 240, expressly enables the Parliament to regulate the terms and conditions of employees of the Election Commission. The contention that the respondent was not a civil servant must, therefore, be repelled".
In view of the above, the objection that the Tribunal lacks jurisdiction is hereby repelled as it has already been settled by the apex Court in its judgment supra.
7. As argued on behalf of the appellant's side that charges as contained in the charge sheet dated 16.06.2020 in the instant case has been Amended as compared to the one earlier issued through show cause notice 16.07.2017, which is not warranted and according to the learned counsel, inquiry was required to be conducted on the same set of allegations/charges, not otherwise.
8. In the charge sheet/statement of allegations earlier issued to the appellant on 10.07.2017, different allegations are leveled i.e. charge sheet and statement of allegations, both are different.
We have already reproduced the statement of allegations issued to the appellant alongwith the charge sheet dated 10.07.2017 and the charge sheet is being reproduced as under to show that both are different:-- "You, Mrs. Tabinda Khalique, District Election Commissioner, Karachi (East) is hereby. charge sheeted on account of misconduct during the posting as Deputy Director (Estt.) in the office of PEC, Sindh under the Government Servants (Efficiency & Discipline) Rules, 1973, on the following grounds:-
(i) Conduct prejudicial to good order, service discipline and contrary to Government Servants (Conduct) Rules, 1964 and unbecoming of a gentlewomen on account of misconduct upon appointment of individuals.
(ii) You have been found inefficient and guilty of misconduct as your actions reflect of nepotism/favoritism in the appointment of following officials:
1. Ms. Farhat-ul-Umraat, Senior Personal Assistant (BPS-16).
2. Syeda Saliha, Senior Personal Assistant (BPS-16) (Tendered resignation on 13.12.2016, hence, her written test was not conducted by the Inquiry Officer)
3. Syed Anas, Senior Personal Assistant (BPS-16)
4. Mr. Abdul Rehman, Junior Personal Assistant (BPS-14)
5. Syed Munib Ali, Senior Assistant (BPS- 15)
6. Syed Mumtaz Ali, Junior Assistant (BPS- 11)
7. Mr. Waqas Ahmed, Junior Personal Assistant (BPS-14)
8. Mr. Asadullah, Junior Personal Assistant (BPS-14)
2. A statement of Allegations alongwith its annexures are enclosed. You are hereby directed to put up your written defence within 14 days of the receipt of this Charge Sheet to Mt. Shamshad Khan, Additional Director General (TR&E), who has been appointed as Inquiry Officer in this case"
It appears that there are material contradictions in both the charge sheet and statement of allegations. Both are to be in consonance with each other, In the charge sheet it was stated that she has been found inefficient and guilty of misconduct, whereas, in the annexed statement of allegations, she was stated to be, "shown negligence and recklessness during the appointment on nepotism basis and abuse of authority by maneuvering the appointments". In the statement of allegations, the appellant has been admitted to be member of Selection Board, therefore, the argument that the appellant was not a member of Selection Board thus lost its force.
9. Both the charge sheet/statement of allegations earlier issued to the appellant and the one dated 16.06.2020 issued after the judgment of this Tribunal, there are drastic/major changes in the set of allegations, not warranted by law. No change in the charges is supposed to be made or allowed. Inquiry was required to be held on the same set of charges, earlier leveled, and not otherwise.
10. We have also noticed that after the issuance of charge sheet/statement of allegations dated 16.06.2020, the appellant, vide her application dated 25.06.2020, addressed to the Authorized Officer, requested for the provision of following documents:- "1. Copy of order of Honorable FST Karachi in which de novo Inquiry has been ordered;
2. Copy of Election Commission (Officers and Servants) Rules 1989;
3. Evidence of misusing my official authority/ duty and misleading office of the PEC Sindh by constituting DSB at my own choice;
4. Evidence of excluding the members already notified by ECP for DSB;
5. Evidence showing that I misused my chair and kept my superiors and other members aside to extend any favor.
6. Copies of different written complaints as discussed in Para-3 of the charge Sheet;
7. Copy of the portion of Special Audit Report where I have been blamed for doing any job beyond coda! formalities in the process of recruitment;
8. Copy of rules under which the relatives of already serving officers/officials are prohibited to apply in response to advertisement for recruitment against of any post or cannot participate in the recruitment process;
9. Copy of the Rules under which already appointed and working officials of any cadre can be asked to go through the recruitment process a fresh after service more than two years;
10. Copy of evidence/document showing my 'specific recommendations'/my sweet will for selection of my relatives;
11. Copy of notification/order of constituting DSB not constituted in accordance with ECP's notification;"
Since the requested documents were not supplied to her, as observed, she had to move another application dated 13.07.2020. The application was addressed to the Chairman, Inquiry Committee.
The application, in verbatim, is reproduced as under for the sake of convenience:- "Written defence to your honour letter/notice quoted above, it is submitted that Charge Sheet bearing No. F.7(2)/2019-Estt-II dated 16.6.2020 was served upon me along with statement of allegations but not a single document provided to me in support of above said to enable me to reply Charge Sheet.
Sir, in this regard, I have submitted my application dated 26.6.2020 whereby, Honorable Authorized Officer was requested to provide necessary documentary proof/evidence cause to served Charge Sheet which was sent through courier (TCS) and the same duly received by the office and also a copy of my application was endorsed to your kind office for information but till today. I have not received any documentary evidence in connection with Charge Sheet and statement of allegation.
Sir, due to the absence of documentary proof I remained unable to reply Charge Sheet and statement of allegation properly. However, I have received the above referred notice for appearance along with written defense on 16.7.2020 before the Inquiry Committee.
Sir, since I had requested to provide the necessary document for reply of Charge Sheet (if any) on such basis I have served with Charge Sheet which are not received to date. Therefore, it is requested to provide documents/any written complaint (what so ever) to that I could enable to reply the Charge Sheet with documentary proof properly in proof of my innocence".
It has also been observed by us that instead of supplying the above requested documents, a notice dated 08.07.2020 was issued to her, directing her to appear before the Committee alongwith written or oral defence and list of witnesses, if any, on the date i.e. 16.07.2020, otherwise, the proceedings shall be concluded on the basis of available evidence and record before the Committee. Thereafter, vide letter dated 13.06.2020, some documents, were provided to the appellant i.e. copies of complaints received in ECP, ECP (Officers and Servants) Rules, 1989, Special Audit Report, Fact Finding Inquiry Report conducted by Mr. Rasheed Bhatti and regular inquiry conducted by Mr. Shamshad Khan and she was asked to obtain the judgment of FST from her counsel or from the FST. The documents, requested by the appellant, were very important and should have been supplied to her, but some documents, which were either not relevant or important, were supplied to her; hence, her right has seriously been prejudiced to defend herself and to prepare her reply to the charge sheet.
The respondent in para-10 of the comments have stated that, "the appellant was in possession of some of the relevant documents and she was provided with each and every document relevant and required by her". They were not supposed to deny the legal right of defence i.e. provisions of requested documents were very much necessary and supposed to be provided to her to prepare her reply to the charge sheet, but same were deliberately not provided to her.
11. The documents, which were supplied to her, have been annexed by the appellant alongwith her memo of appeal at pages-97 onwards. At page- 97, is a complaint, signed by Siraj Bodlo, Zeshan Ali Chohan, Karim Abdul Razzaq, Zahida and Kod Khan. The said complaint only bears the name and to address has been written. From the above complaint, it has also been observed that allegation was leveled in para-2 against the appellant, that, Misses Tabinda Khaleeq Deputy Director Establishment got promoted her brother Kieran Khalique from Data Entry Operator who was appointed last few months ago and was not eligible for post as he did not know nothing about date entry but now promoted illegally as Senior Assist in Korangi Distt". It means that Qiran Khalique was already in service and there was no question of "recommending and appointing" him by the appellant, as alleged against the appellant in the charge sheet.
In order to get the contents of the said complaint verified/testified, all the complainants were supposed to be called to appear in the inquiry, but record does not show whether they were called or examined during the inquiry against the appellant. As such, said complaint cannot be relied upon, as the same does not bear the address of the complainant.
The other document, supplied to the appellant is a complaint dated 13.03.2015, available at page- 10, neither bear the signature of the complainant nor name and address, as such, it is an anonymous complaint and no action is required to be taken on such complaint, in our considered view. It is the cardinal principle that anonymous communications must invariably be destroyed by their recipients. No action of any kind is to be taken on them and no notice of any kind is to be taken of their contents. If a communication is found to be pseudonymous, it (and any previous notice etc., connected with it) must similarly be destroyed. Had the complainant been real person, they would have made a complaint with their name so that they could have been examined/cross-examined during the inquiry.
12, When the appellant failed to get the requested documents, therefore, she had submitted her reply to the charge sheet on 16.07.2020 again stating about non-supply of requested documents made through her application dated 25.06.2020, stating that she has been left with no option but to submit written defence without examining documentary evidences etc. which is beginning of denial of natural justice and that, "no rule or law prevents any citizen of Pakistan to participate and compete in the recruitment process in accordance with law" and that the, "persons discussed in the para and others as well gained their positions through their own performance and were selected by the DSB comprised of two most seniors as Chairman and I, a most junior member. In the capacity of most Junior member of the DSB had no approach for selecting/recommending anyone whoever he/she might be. Each and every selection was made on the basis of their individual performance by the DSB and not by me".
13. On our perusal of the inquiry report, we find that in para-9 (page-227), it was stated that, "...... subsequent fact finding inquiry conducted by Mr. Muhammad Rashid Bhatti, REC in the PEC, Sindh (Headquarters); and regular inquiry conducted through question papers were in the custody of S.M.Tariq Qadri, the PEC, Sindh and were handed over to Special Messenger through Deputy Director ".
The sentence, "regular inquiry conducted through question papers" reflects that inquiry was conducted through question papers and if it is so, it cannot be said to be a regular inquiry. The inquiry through questionnaire or question-answer form cannot be considered or equated with regular inquiry. Hence, the inquiry held against the appellant is apparently an inquiry based on questionnaire, which has not been appreciated by the Apex Court in a number of judgments. This Tribunal in its judgment dated 28.09.2020 passed in appeal No. 139(K)CS/2019 has discarded such type of inquiry by observing that, "Proceedings of the inquiry annexed with the comments also makes it abundantly clear that the inquiry was conducted in questionnaire as mentioned in opening para of the report of the inquiry officer at page-10. It has been the emphasis of the Hon'ble Supreme Court that while imposing major penalty upon a delinquent, a detailed/thorough inquiry has to be conducted providing the accused full chance to defend himself, but in this case, regular/proper inquiry has not been conducted and penalty imposed upon the appellant in our view cannot be sustained. There are several discrepancies and legal infirmities which have been found in the conduct of inquiry by the respondents against the appellant, which are fatal and in our view has seriously prejudiced the case of appellant. There are serious allegations having been levelled against the appellant which could not have been proved otherwise than holding a proper/regular inquiry". In this regard, reliance is placed on 2008 PLC (CS) 973, where this Tribunal had observed that, "....He also prepared questionnaire on each and every allegations and then sought answers of the appellant on it. No separate statement of appellant was recorded nor was he asked to produce any defence if he wanted to do so. The explanations in answers and questionnaire do not fulfil the requirement of law because in that event the appellant was confined to the answers of the questions which were put to him whereas if he was allowed to adduce his own evidence in defence then he would have been at liberty to bring any other evidence also. Recording of statement in questionnaire form has also been disapproved by the Superior Courts. In these circumstances of the case the impugned orders are not sustainable in the eyes of law... Yet in another case reported in 2008 PLC (C8) 786, this Tribunal has also observed that, "12. After going through the enquiry proceedings, it appears that the enquiry against all the three appellants have not been conducted as provided under the Removal from Service (Special Powerx) Ordinance, 2000, the enquiry was conducted in questionnaire form, which procedure has been disapproved by the Honourable Supreme Court, Record shows that the respondents did not examine the material witnesses to prove the allegations", In a case reported in 2010 PLC (CS) 1299, the Service Tribunal Khyber Pakhtunkhwa Had also observed that, "....Admittedly, no proper procedure has been adopted by the respondent-department. In the instant case, the inquiry has been conducted in questionnaire form which practice has been condemned by the super Courts. Neither any witness has been examined in presence of the appellant no any opportunity of cross-examination was provided to him to defend himself properly...."
14. In para-20 of the report, we find that, "the DR started cross examination (Pp.39-49/Encl) by asking the accused to explain working arrangement in the Establishment Branch under her supervision". In our considered opinion DR has no authority to cross examine the accused. The cross examination, in our view, has to be between the witnesses. First of all the witness, if any, has to appear and record his/her statement before the inquiry officer/inquiry committee, as the case may be and then he/she has to be cross examined by the accused. DR has no role to play, unless otherwise called by the inquiry officer/committee. DR has only to sit in the inquiry alongwith the necessary record and to watch the proceedings. The entire report shows that DR cross examined the accused which in our view is not warranted by law. Therefore, the entire proceeding of inquiry is vitiated by such conduct of inquiry/DR/inquiry committee. In para-24 of the report, the appellant again insisted forthwith regarding provisions of complainants, if any, be presented to her, material evidence of allegations may be provided to her and the rules barring the relatives of an employee from applying for employment in the department and evidence, if any, be provided to her that she has committed nepotism and favouritism. From the perusal of the enquiry report, we find that the entire cross examination was conducted by the DR, not warranted by law. Neither any complainant was examined or called to appear before the inquiry committee to testify the complaints, if any, filed against the appellant, therefore, the said complaint cannot be relied upon.
15. The conclusion of the inquiry committee against the appellant is reproduced as under: "98. To sum up all inquiry proceedings and findings, the Inquiry Committee has arrived at following conclusion with consensus:- 1) Mrs. Tabinda Khalique, DEC, Rahimyar is proven guilty and found that she has subjected herself to misconduct within the meaning of Government Servants (Efficiency and Discipline) Rules, 1973 and Government Servant (Conduct) Rules, 1964, while posted as Deputy Director (Estt) in the PEC, Sindh Headquarters, on the following grounds:- a) Inefficiency and sheer disregard to provision of rules in performance of responsibilities in her own domain as Deputy Director (Estt) in relation to an illegal recruitment process carried out through an unauthorized Departmental Selection Board (Para-69/ante); b) Failure to observe due diligence in the performance of his duties, which resulted in undermining merit and infringement of right of deserving candidates in the illegal recruitment process;"
We find that in the annexed statement of allegations to charge sheet earlier issued to the appellant in July 2017, the appellant has been admitted as, "a member of selection board" (refer para-3) and whereas, in the charge sheet dated 16.06.2020, issued after the judgment of this Tribunal, she has also been admitted as, "being a member of the DSB for recruitment of the officials....". Thus the recommendations of the inquiry committee on her being, "an unauthorized Departmental Selection Board" is totally illegal, unwarranted and against the own admission of the Election Commission of her being Member of the Selection Board.
16. Furthermore, as per the observations of the inquiry committee at para-100, we find that S. M.
Tariq Qadri, Former PEC Sindh, Mr. Tanvir Zaki, Former Joint Provincial Election Commissioner, Sindh and Mr. Waseem Akhtar, DEC, Hyderabad, were not charge sheeted. We find that a notice dated 03.07.2020 was though issued to Mr. S.M. Tariq Qadri, former Provincial Election Commissioner, Sindh, who was the appointing Authority, was called to submit his written statement to the inquiry Committee, but no action was taken against Mr. Tariq Qadri and the appellant was taken to task; hence, discriminated against. This is clear cut discrimination as persons who are at the helm of affairs of the Commission have been let free, whereas, the lower level functionaries were taken to task. In this respect, Article-25 of the Constitution, being clear on the point, is reproduced as under:- "25. (1) Equality of citizens. All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children."
On the point of discrimination/discriminatory treatment, a judgment of High Court of Sindh is relied as reported in 2020 PLC (CS) 1249, where it was observed that: "9. Reverting to the plea taken by the learned counsel for the petitioners regarding discrimination.
We have considered this aspect of the case under Article 25 of the Constitution, which guarantees equal treatment to all persons similarly placed. Prima-facie, in terms of Article 27 of the Constitution, no citizen in the service of Pakistan or other person shall he discriminated in any manner. Article 27 does not only safeguard against the discrimination at the time of appointment of service but subsequent appointment as well. Disparity in the pay scale allowances in the province of Sindh, as compared to other provinces is in clear negation of the aforesaid Articles".
It was further stated in the notice that, "During this period, you, being the Provincial Election Commissioner, Sindh, were the Appointing Authority in terms of the Rule-8 of the Election Commission (Officers and Servants) Rules, 1989 and the whole process took place with your approval", it means that the appellant, being a legitimate member of the Selection Board and also being junior to her rank, has only recommended and it was Mr. S.M. Tariq Qadri, who was the appointing authority, but no action seems to have been taken against him and he was taken to task after the judgment of this Tribunal and not prior to that, while the appellant was punished with a major penalty of 'reduction to the lower post/scale of Election Officer (BPS-17) with effect from 5th December, 2018, vide notification dated 13.12.2018. The said punishment was set-aside by this Tribunal vide its order dated 11.03.2020.
17. It is quite astonishing to note here that after the judgment of this Tribunal dated 11.03.2020 a charge sheet dated 16.06.2020 alongwith the statement of allegation was issued; served upon the appellant and inquiry initiated against her which was concluded on 05.10.2020 through inquiry report, whereas, in November. 2020, matter was referred to the FIA for institution of criminal proceedings against retired officers of Election Commission of Pakistan i.e. S.M. Tariq Qadri, Ex- Provincial Election Commissioner and Mr. Tanveer Zaki, Ex-Provincial Election Commission and the said inquiry is still under process under Enquiry No. 33,2021 of FIA Corporate Crime Circle, Karachi, which was confirmed by the FIA Officials, Who were called to apprise the Court about the pendency of such inquiry against those persons/offices of the Election Commission. Thus clear cut discrimination is apparent on the part of respondents, as observed above, as has been meted out with the appellant, not warranted by law.
18. The allegation No. 3, leveled against the appellant in the charge sheet dated 16.06.2020 that, "on the different written complaints, in order to check the accuracy, transparency and merit in the appointment of the above-mentioned recruitments, the competent authority of the ECP got conducted the special audit of the through the Auditor General of Pakistan. The Auditor General of Pakistan during audit minutely examined the personal files of the recruited officials, their answer sheets and merit list prepared by the Provincial Election Commissioner, Sindh, and vide its report dated 08.04.2016. while observing the massive discrepancies, irregularities, nepotism and favouritism in the subject process of recruitment, recommended the following to the ECP.- "On the basis of audit findings, it is recommended that though codal formalities were completed for recruitment i.e. advertisement, educational requirement, age limit, etc, but nepotism/favoritism reflected as pointed out in the succeeding paragraphs" cannot be allowed to be taken by the respondents in presence of their own admission when in the charge sheet 16.06.2020 and also in the charge sheet earlier issued, they themselves admitted by stating that, "The Auditor General's report held that undue favour was extended to you while selecting/appointing you on the present post. The said Auditor General vide its report dated 08.04.2016, while observing the massive discrepancies, irregularities, nepotism and favoritism in the subject process of recruitments, overall, recommended the following to the ECP:- "on the basis of audit findings, it is recommended that though codal formalities were completed for recruitment i.e. advertisement, educational requirement, age limit. etc". When all codal formalities were completed for recruitment including advertisement, educational requirement, age limit etc., then how can it be said that the codal formalities were not completed. The respondents are bound under the principles of "Estoppel to act under the said principle. They are blowing hot and cold at the same time, which is not permissible under the law.
19. We have also observed that the recommendations were made by a duly constituted Selection Board, headed by the Chairman and such recommendations were approved by the competent authority and the recommendees were duly appointed with the approval of the appointing/competent authority. At this belated stage, the recommendations of the Selection Board cannot be challenged, especially pointing out irregularities only against the appellant while the other member and Chairman of the Board were excluded which is unwarranted and not sustainable. We are of the view that the (competent authority must have exercised duo diligence while approving the recommendations of the Selection Board and, therefore, no adverse inference can be drawn against the appellant.
20. The upshot of the above discussion is that clear cut discrimination is apparent on the face of record; hence, the imposition of impugned major penalty upon the appellant cannot sustain. It is, therefore, set-aside alongwith the appellate rejection order. The appellant is, thus, ordered to be reinstated in service with all back benefits.
21. No order as to costs. Parties may be informed.