MUHAMMAD IRSHAD KHAN (MEMBER).-The appellant employed as an Auditor in the Office of the Controller of Military Accounts, Karachi, while posted in the Office of L. A. O. Malir Cantt., was served with a charge-sheet dated 29-7-1979 for the following allegations :- "(i) That he had been irregular and unpunctual in attendance as he was absent for 93 days during July, 1978, to June, 19-9, and incurred 49 lates during 1979.
(ii) That he had not submitted any application in respect of his absence mentioned in (i) above in spite of several verbal instructions and L. A. C's order.
(i.e) That he failed to maintain and submit work book in spite of reminders.
(iv) That he was in the habit of running away from Units wherever he was sent for audit.
(v) That he pinched away old attendance register to destroy evidence against him.
(vi) That he instigated his fellow workers not to work and slip away from duty post."
The appellant replied to the above charge-sheet refuting and denying each and every charge. Mr. Muhammad Rafiq, Deputy Assistant C. M. A. Was thereafter appointed as an Enquiry Officer who conducted enquiry proceedings on 29-9-1979 and submitted his report holding the appellant guilty of all the charges except the charge mentioned at (ii) above which, according to the Enquiry Officer, was not proved, The case was then submitted by the authorised officer to the authority recommending imposition of a major penalty. The Military Accountant-General, acting as an Authority, considered the case and passed the impugned order dated 15-11-1979 exonerating the appellant from charges ; (i.e) and (vi) and holding him guilty of charges Nos. (1), (i.e), (iv) and (v), imposed upon the appellant a penalty of removal from service. The appellant submitted a departmental appeal on 17-12-1979 but as he did not receive any reply thereof even c z expiry of ninety days, he preferred the present appeal before this Tribunal.
2. We have heard the learned counsel for both the parties and also perused the relevant record placed before us by the Departmental Repre--sentative. The learned counsel for the appellant raised several grounds challenging the legality and the validity of the impugned order. His main emphasis was that the enquiry proceedings against the appellant, having not been conducted in accordance with the prescribed procedure and law, are illegal and void. He, inter alia, submitted that the appellant was not provided a proper opportunity of being heard, the examination of the witnesses was not done in a proper and prescribed manner and above all, copy of the report of the Enquiry Officer was not supplied to the appellant even though he specifically demanded for it. The contention of the learned counsel for the respondent, briefly speaking, is that the enquiry was conducted in a proper manner and the appellant was provided an opportunity to cross-examine the witnesses but he himself did not avail of this opportunity afforded to him. He, however, submitted that the copy of the report of the Enquiry Officer was not supplied to the appellant, even on his demand, because there is no provision in the Government Servants (Efficiency and Discipline) Rules, 1973, for the supply of copy of the enquiry report.
3. After giving our anxious consideration to the submissions made by the learned counsel for the parties we have come to the conclusion that in the instant case mere non-supply of the copy of the enquiry report has caused a material prejudice to the appellant in his defence and, therefore, the impugned order passed against him vitiated on this short ground. To elucidate the point it may first be advantageous to reproduce the report of the Enquiry Officer :----- The individual in his replies to the charge-sheet bearing No. G/AN/ 273-LXII of 29-7-1979 did not mention the witnesses to be produced by him. 1, therefore, called upon him to give names of witnesses if any through a letter No. MR/PC/I of 20-8-1979 to Mr. Muhammad Yousuf L. A. O., Malir (by name) to enable me to fix the date for hearing of the case but no reply was received. I also contacted L. A. O. On phone, but it was also of no help, as the L.A.O. Auditor were on audit duties. I issued a signal on 12-9-1979 for enquiry on 19-9-1979 in the office of L.A.O. C.O.D. But Mr. Arif did not attend. On my return from the C.O.D. Drigh Road, it was requested by Mr. Muhammad Yousuf LAO Malir that the Signal was received late in his office. I had to revise the date of hearing on 29-9-1979 after approval by the C.M.A.
On 29th September, 1979 Mr. M. Arif Qureshi A/11341 visited the office of L.A.O. C.O.D. Drigh Road, examined the relevant record produced and examined certain witnesses. My findings in respect of each charge is appended below :-
(1) Irregular and unpunctual in attendance-93 days absence and 49 days late.-In reply, he did not admit the charge for 93 days absence and 49 days late and stated that all entries in Annexures' A and B to the chare-sheet are false. In the absence of attendance Register absence up to May, 1979 could not be verified. The register for the month of 6/79 was available and the absence of 16 days and late for 7 days were verified by the individual in my presence and found correct. In the absence of Attendance Register the absence and late upto 31-5-1979 could not be verified but the details of absence are in conformity with the monthly Audit completion reports submitted by L.A.O.
The individual admitted that he was absent only for 75 days and not 93 days, but failed to produce any details of actual absence. In view of this the charge stands --established.
(2) Non-submission of' leave application.-The individual stated that he had been submitting sick report M. C. And F. C. In support of his absence. The Office could not show any reference to the individual demanding the applications for the
(3) Non-Maintenance of work book.-Maintenance of work book is a Department requirement under prescribed manuals and orders and an auditor of nearly 8 years standing is supposed to observe.
Further the work book is a document to prove the presence and the progress of work of each auditor. On the contrary the individual has accepted the charge on the pleas that he has not been maintaining the work book as other members of the staff had not been maintaining. The Superintendent. LAO, however, shown some work books.
(4) Slipping away from Unit where he was sent for audit.-The individual refused to accept the charge of slipping away from DCM/110 Ord. Coy on 12-6-1979 and stated that he remained in the Units up to 2-30 p.m. And that he was not served with the explanation note. The Superintendent L.A.O. Stated that DOM/110 Ord. Coy are adjacent to each other and he personally visited both the units where he did not find him after 11.
15. Hence he prepared the explanation note dated 13/14-6- 1979 which the individual refused to receive. The function of L.A.O. Is indicative of the facts that the Superintendent can only watch the attendance/progress of the work and I have no reason to disbelieve this statement.
(5) Loss of Old Attendance Register.-The old attendance register alongwith other record were kept under lock in an almirah whose key is kept by the Superintendent. When the Super-- intendment is away, the keys are entrusted to Mr. Rauf Raja posted by Depot authorities to L.A.O. C.O.D. On 14-7- 1979 he reported that Mr. Arif Qureshi took keys from him to consult some Books;Documents for reference in connection with some official work and took away the attendance register. The case after due verification was reported to C.M.A., Karachi. Mr.-Arif Qureshi in reply to the charge has not only denied but also stated to reserve the fights to take up proper legal action for the alleged loss of the attendance registers. The individual demanded that the complaint of Mr. Rauf Raja be brought under Quranic oath, but there is no such provision in the E & D Rules of 1973. Mr. Rauf Raja, however, confirmed that the report was made by him/we any fears as alleged by Mr. Qureshi.
Evidently the responsibility of punching the old attendance register is circumstantially proved.
(6) Instigating fellow workers not to work and slip-away,- During the course of enquiry, Mr. Arif Qureshi asserted that he could not mislead his fellow workers as they are matured enough to watch their own interest Superintendent L.A O. Mr. G. N. Raja stated that on three/four occasions whenever detailed for audit he not only refused to go to unit, but also advised his fellow workers `not to go' as there was no charm in service in C. O. D. Display of such behaviour on his part gives rise to indiscipline in the sub-office and provides wrong path to the new entrants."
A bare reading of the above report would show that the findings of the Enquiry Officer are based more on conjectures and surmises than on appreciation of evidence, so much so that the authority was constrained to conclude that the charge mentioned at serial No. (vi) above was not properly proved because the Enquiry Officer had not concluded anything definite nor he examined any evidence or witness relating to this allegation. Not only this, the Enquiry Officer himself held in respect of charge No. (v) that it was circumstantially proved. It also seems clear that the statements of witnesses and the accused appellant as well as the enquiry report were recorded by the Enquiry Officer in a quite unusual, rough and slip--shod manner. It can hardly be considered a speaking report and no fair conclusion could be based on it unless the accused appellant was given an opportunity to explain his case in the light of the contents thereof. Therefore, it was only proper that on receipt of the report of the Enquiry Officer, a copy thereof should have been supplied to the accused appellant by the authorised officer and the accused appellant should have been provi--ded an opportunity to offer an explanation in his defence.
5. It may be seen that according to sub-rule (iv) of rule 5 (1) of the Government Servants (Efficiency and Discipline) Rules, 1973, in a case where it is proposed to impose a major penalty as a result of formal inquiry, the Authority is required before passing an 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 Enquiry Officer or Inquiry Committee ; and
(d) the recommendations of the authorised officer regarding the penalty to be imposed.
The explanation of the accused referred to in (b) above, as laid down by the Supreme Court in the case reported as PLD 1981 SC 176, cannot mean the preliminary denial or admission of the accused official in terms of clause (b) of sub-rule (1) of rule 6 ibid ; as that time all the circums-- tances on the basis whereof the Enquiry Officer had formulated his findings were not in the knowledge of the accused officer. A proper explanation of the accused appellant in the instant case could only be furnished if he was supplied a copy of the enquiry report so as to offer his comments in regard to the findings recorded therein. It, therefore, follows that the proper course of action in the instant case for the authorised officer was that after he has tentatively decided upon the action he proposed to recommend to the Authority, he should have given an opportunity to the appellant to offer his explanation against the proposed action in the light of the findings of the Enquiry Officer, before sending his recommendations to the Authority, which, of course, necessitated that a copy of the enquiry report should also have been furnished to the accused- officer at this stage, which was not done. This omission, in our view, materially prejudiced the accused appellant in his defence : for the Authority did not have the benefit of explanation of the appellant in relation to the findings of the Enquiry Officer. The aforesaid failure of the authorised officer invalidates his recommendations and the ultimate order passed on their basis by the Authority against the accused.
6. For the foregoing reasons we consider it unnecessary to discuss on merits the charge against the accused appellant. The appeal is allowed, the impugned order is set aside and it is directed that the appel--lant be re-instated into service with effect from the date he was removed from service. The arrears of pay etc. For the period the appellant remained out of service should be paid to him only if he satisfies the concerned Authority that he was not gainfully employed elsewhere during the said period. Since the impugned order is being set aside by us on technical ground, it will still be open to the competent authority to proceed against p the appellant either de novo or from the stage from which the error could be corrected, namely, by supplying a copy of the report of the Enquiry Officer and to provide him an opportunity to submit his explan--ation in respect of the opinion formed by the Enquiry Officer and then to proceed further as provided in the Rules.
7. There shall be no order as to costs.
8. Parties to be informed.